McMullen and New South Wales Department of Education and Training [2009] NSWIRComm 83

25 On 17 July 2006, Mr Bowden gave the applicant a letter requesting a meeting with her to discuss her placement on a TIP. She was also advised that she could have a support person present. The proposed meeting did not occur as the applicant could not arrange a support person. On 20 July 2006, Mr Bowden attempted to give the applicant another letter rearranging the meeting for 24 July. She refused to accept the letter and Mr Bowden placed it in her pigeon hole. The meeting did not take place as the applicant was on sick leave from Friday, 21 July to Friday, 28 July. On 1 August 2006, Mr Bowden gave the applicant another letter giving notice of a meeting on 3 August. The Federation organiser, Ms Kathy Deacon, was ill on this occasion and the meeting was rescheduled for 8 August. 26 On 4 August 2006, Ms Best wrote to the applicant and advised her that in order to avoid any conflict of interest and accord her procedural fairness, she would manage both complaints and Ms Melinda Zanetich was to assist in the process.

27 On 8 August 2006, the applicant attended a meeting with Mr Bowden, Mr Proops and Ms Deacon. During this meeting, the applicant was informed she would be placed on a TIP. 28 From 10 August to 21 August 2006, the applicant was off sick and during this time she submitted a workers' compensation claim for stress related injury arising from being placed on the TIP. The claim was rejected by the GIO. No appeal of this decision was made. 29 On 21 August 2006, Ms Best wrote to the applicant seeking details of her allegations against Mr Proops and Mr Bowden, as her earlier letter was expressed in general terms. The applicant's complaints were reviewed by Ms Best, in accordance with the Disputes Resolution Procedures in the TIP guidelines. She had consulted the Federation on 30 August 2006, in accordance with the established protocols in the Guidelines. On 1 September 2006, Ms Best advised the applicant that there were no procedural impediments to the TIP continuing 'and her other complaints would be dealt with concurrently with the TIP', but separate to it. 30 On 8 September 2006, Ms Best received a letter from the applicant complaining about procedural unfairness in the TIP and questioning the Federation's involvement. She challenged the right of the Federation to sign off on her complaints without her approval. 31 On 14 September 2006, Mr Bowden, Mr Proops, Ms Savvopoulos and Ms Culshaw were interviewed by Ms Zanetich concerning the applicant's formal complaints.

32 On 20 September 2006, the applicant was advised that her compassionate transfer would not be considered until all unresolved issues at Padstow North Public School were concluded. 33 On 27 September 2006, the applicant and a solicitor from Turner Freeman, Mr Aaron Magner, attended a meeting with Ms Best and Welfare Officer, Ms Heidi McArthur. This was followed up by a letter from Turner Freeman confirming the applicant's objection to the proposed TIP and, in particular, Mr Proops' involvement as supervisor and Mr Bowden's overseeing of it. She believed that the TIP was introduced as 'payback' for her complaints against them and the process would be completely prejudiced and biased by their continued involvement. 34 On 29 September 2006, Ms Best wrote to the applicant to advise that she had found the complaints against Mr Bowden and Mr Proops to be not substantiated. 35 On 17 October 2006, the applicant's solicitor, Turner Freeman, wrote again to Ms Best and objected to the TIP and Mr Proops' continued involvement. 36 On 18 October 2006, the applicant was directed by Ms Helen Wardega, Relieving School Education Area Director, East Hills, to participate in the TIP and attend a preliminary meeting with Mr Bowden. 37 On 20 October 2006, the applicant's solicitor wrote to Ms Wardega seeking a review of the direction given to Mr Bowden for the applicant to participate in the TIP. The request was refused on 26 October 2006. Mr Urry then wrote to the applicant on 30 October directing her to attend a meeting with Mr Bowden on 1 November in order to negotiate the terms of the TIP.

38 The TIP commenced in late November 2006 and continued for 10 weeks until 29 March 2007. The applicant had five days sick leave during the period and the TIP was extended by a week. Mr Proops participated in 13 out of 16 classroom observations, and an independent observer, Ms Deborah King, Quality Teaching Consultant, participated in nine observations. Mr Bowden observed one lesson. The applicant was rated as unsatisfactory in 11 out of the 16 observed lessons. Review meetings were held each week during the TIP and the applicant continued to protest Mr Proops' and Mr Bowden's involvement and later, Ms King's involvement. A support person (Ms Culshaw) was present on each occasion. The applicant declined to sign any of the documents relevant to the program.

39 The Principal's final report and recommendation was made on 2 April 2007. He determined as follows: With reference to the above comments, it is determined that Mrs Jane McMullen has shown no improvement and does not satisfy requirements for the position held. It is recommended that the case be referred for independent review.

The applicant provided a 115 page handwritten response to the Principal's Report. 40 In a letter from Mr Urry dated 29 March 2007, (clearly a mistake as it predated the Principal's Report) the applicant was directed to report to a non-teaching position in the Arncliffe Regional Office, pending an independent review. 41 An independent review was conducted by two Deputy Principals, Mr Gerard Smee and Ms Katherine Walsh. They interviewed the applicant, Mr Bowden, Mr Proops and Ms King. Their report of 18 May 2007, accepted the Principal's recommendation and, in particular, concluded: It was evident that both Mr Proops and Ms King had demonstrated a genuine concern for Ms McMullen's welfare and they had implemented the program fairly and effectively while providing adequate support for her. ... I have determined that the Principal's determination that Ms Jane McMullen has not met the level of performance required is accepted. The rationale for this decision is: After considering the program documentation and interviews with Ms McMullen, Mr Proops, Ms King and Mr Bowden we determined that: a. Ms McMullen was advised of the areas of her performance where difficulties had been identified. b. An improvement program was negotiated and implemented. The program included all the necessary elements. (8.3 The Improvement Program page 12). c. There were regular formal review meetings which considered progress, provided feedback and determined future action. Clarification from the interviews indicted that correct procedures had been followed. 42 On 28 May 2007, Mr Urry received material from Mr Kevin Schipp, Manager Staff Efficiency and Conduct Team, which included a briefing and a copy of all the TIP documents. As the decision maker, Mr Urry was required to determine whether the applicant had been appropriately assessed and what further action should be taken. 43 On 1 June 2007, Mr Urry wrote to the applicant advising that it was his opinion her performance was unsatisfactory and he was considering disciplinary action. 44 On 23 July 2007, Mr Urry wrote to the applicant advising he was considering disciplinary action and that she could avail herself of an interview with him and provide any submissions. The applicant requested, and was granted, an extension of time to respond. 45 On 9 August 2007, Mr Urry met with the applicant, her support person, Ms Louise Cawdron, a Federation representative, Mr Rick Carter and a note taker, Ms Yvonne Stapleton. There is a factual dispute as to what was said at this meeting and by whom. I will come to this dispute later. 46 On 22 August 2007, the Federation's General Secretary, Mr John Irving, wrote to Mr Urry to complain about the unfair nature of the TIP and, in particular, the involvement of Mr Proops and Mr Bowden while complaints against them remained on foot. In the penultimate paragraph Mr Irving said:

Federation therefore believes that it would be inappropriate to dismiss Ms McMullen and that she should be transferred to another school where, after an appropriate period of settling in, that she undertake a Program of Improvement based on the one devised at Padstow North Public School. 47 On 22 October 2007, Mr Urry informed the applicant that he had formed the opinion her work performance was still unsatisfactory and after considering her submissions and additional information, had decided to dismiss her. 48 On 27 October 2007, the applicant received a letter from Mr Schipp advising her that he was considering placing her name on the Not to be Employed List (NTBE list) and inviting her to provide him with a written submission within 14 days as to why he should not do so. This decision is on hold pending the outcome of these proceedings.

THE EVIDENCE Alleged 3 March Incident 49 The applicant said that on this day, Mr Proops came into her classroom. There were children in the room, parents coming into the room and a teacher next door. She deposed: I was sitting down when Mr Proops came into the classroom. He was mumbling something and was in an aggressive manner. He said, "stupid bloody Lesbian" mumbling under his breath. "Here's this stupid bloody thing". Mr Proops threw the Teacher Learning Evaluation Report at me. I said, "This report has no date on it". He said, "I will sign it any date I like" and he dated the report 7 March 2006, although it was 3 March 2006. He discussed the Teacher Learning Evaluation Report with me... ... I stood up when he came in and the report ended up on the floor. I picked up and placed it beside me on the desk. Mr Proops stormed out of the classroom. I did not make a report to the Principal as believed that this was a mannerism of Mr Proops. 50 The applicant said that on 7 March 2006, Mr Proops approached her to arrange a meeting to discuss her Teacher Learning Evaluation Report. He had mumbled 'You stupid bloody lesbian'. The applicant did not report this incident. 51 In oral evidence, the applicant agreed the purpose of these early meetings were to discuss her teaching program. She denied she had made up the allegations against Mr Proops in order to avoid having her performance being supervised by him. She agreed that she hadn't challenged Mr Proops about his alleged homophobic comments. This was because it had been embarrassing. However, she said she had raised her concerns, many times, with Mr Bowden. The applicant said that it was not her who was aggressive. However, she had been upset. She claimed she hadn't felt threatened by Mr Proops' adverse comments in his feedback report. 9 March Incident 52 In her statement, the applicant said that: I met with Mr Proops in the staffroom ("the 9 March Incident"). He was (sic) appeared agitated. He threw a copy of the Teacher Learning Evaluation Report at me and it struck me in the face. He said, "Why don't you have a copy?" I was trying to find the report. He became aggressive at me and threw a copy of the Teacher Learning Evaluation Report. It struck me and he threw papers, pens, pencils, plate and a saucer. I was about 1 metre away from him and a desk was between us. I was hit in the face by the pens and paper and I saw objects flying past me. I said, "I can't find the report?" He just started screaming, "You stupid bloody lesbian, I am sick of you. I tried three times to discuss this report and you're not bloody listening. I don't want to have another meeting" or words to that effect. He was going red in the face, thumping the table and there was spital coming out of his mouth and it was hitting me, he was waving his arms around in an aggressive manner. He was totally out of control. There were teachers, students, and other people around that would have been able to hear him screaming. I was asking him, "What is this all about? Is this a threat to my employment?" He just kept screaming and yelling and said words to the effect of 'yes this is a threat to your employment'. I felt so humiliated and scared that I said words to the effect of 'I need a witness to this' and just had to run out of there as I worried about my safety. As I ran out of the staffroom, I ran into Mrs Humphreys, the librarian. She said, "What's the matter? Are you alright?". I ran straight into the Principal's office as I was scared for my safety from Mr Proops. I was crying. I said to Mr Bowden, the Principal, "I can't stay in there with this meeting with Mr Proops. He is acting too aggressively." Mrs Byrnes, a permanent teacher (RFF) was in the principal's office. Mr Bowden, the principal, came out of his office and said, "Where, where?" I said words to the effect of, "Mr Proops is in there, he is going berserk. He is so aggressive, so aggressive". It is the only word that I could get out. Mr Bowden was red in the face. Mr Bowden said, "You have to go back in there." I said "What? There is no way I'm going back in there." I said, "He will have to settle himself down and there is no way that I can see that happening today." The principal directed me to return to the meeting with Mr Proops. Mr Bowden said, "You will have to go back in there." I was shaking and crying and could not bring myself to go back into the meeting. I said, "I don't feel well. I am very upset and I will have to go home." Mr Bowden then left and went into his office. I then signed the register and went home. It was after school hours. 53 The next day, the applicant approached Mr Bowden and repeated to him what had occurred the day before. Mr Bowden asked her if she wanted to make a complaint and if she wanted him to talk to Mr Proops. She agreed to do so and on 13 March had provided a five page handwritten complaint about him. After this time, the applicant claimed to have continually asked Mr Bowden if he had spoken to Mr Proops. She said he would just 'shrug' and change the subject. The applicant said that, at no time, did she state that she did not want to continue with her complaint. She said she became distressed and frustrated that her complaint was not being progressed. 54 In oral evidence, the applicant confirmed what she had said in her statement. She agreed she had gone to Mr Bowden's office in an agitated and upset state. She had told Mr Bowden that Mr Proops had 'gone berserk'. She denied being highly agitated and standing over Mr Proops. She said Mr Bowden had directed her back to the meeting, and she had found this to be a shocking response. She had then left the premises. The applicant agreed that the next day Mr Bowden had asked her if she felt she could return to teaching. She had said she could, but not with Mr Proops supervising her. She agreed Mr Bowden had told her to write down what had happened. The applicant said she did not make a complaint, at this time, about Mr Proops' homophobic comments. However, she denied she didn't do so, because it was untrue. The applicant agreed that Ms Culshaw had advised her to get advice from the Federation and she did so (she spoke with Ms Deacon). 55 The applicant agreed that Mr Bowden had suggested a number of ways to streamline her program. However, she denied she had been resistant to his suggestions. She said that while Mr Bowden might have made suggestions for improvement, he hadn't told her how to go about them. She said things had got mixed up and her complaint was not being dealt with. The applicant said she objected to Mr Bowden and Mr Proops not giving her correct guidance. She had become confused because she was given short notice of meetings and had not been told what the meetings were about. The applicant denied frustrating the process by raising her complaints against Mr Proops.

56 On 5 April 2006, Mr Bowden had told her that he was dealing with her complaint at a local level. She had not told him the Federation had advised her that this was the way to handle the matter. She claimed she had discussed several options with the Federation and agreed the Federation had said to solve it at a local level. She denied telling Mr Bowden she would work towards that outcome. It was Mr Bowden who had raised the prospect of a compassionate transfer when he had discussed teaching issues with her. In oral evidence, she couldn't recall if he had offered her support in the next term. She denied raising her complaint every time attempts were made to discuss her teaching performance. 57 On 12 April 2006, the applicant said she had complained about the lack of action on her complaint, the accuracy of minutes of meetings and that confidential information had been left on the photocopier. She couldn't recall if there had been discussion of ways to help her teaching in Term Two. She denied wanting to deflect discussion from the issue of her performance. 58 The applicant claimed that on 17 May 2006, in a meeting to discuss ongoing assessment, Mr Bowden had said her assessment and examples were good. However, on 22 May he had expressed concerns about her professionalism and suggested she speak to Mr Proops as her supervisor. She said she was dismayed at this suggestion, given the complaints she had made against him. 59 In oral evidence, she said she hadn't signed the document setting out specific requirements for her professional development in Term Two because she kept on getting 'mixed messages'. She accepted that these reports were part of every teacher's assessment. However, she knew she was being treated differently because of her complaints against Mr Proops. She said Mr Bowden had praised her for her assessments of the students and was shocked that a later memorandum had actually criticised her. 60 On 26 May 2006, Mr Proops had reviewed her program for Term Two and offered her feedback. She agreed that he had used courteous language and had indicated he would be happy to discuss the review with her. The applicant said she had been available, at all times, to attend meetings.

13 June Incident 61 The applicant described an incident on 13 June 2006, as follows: On 13 June 2006, Mr Proops spoke to me about the end of term reports for the children in my class. Mr Proops came into the classroom and threw the children's reports in my face. He yelled at me calling me such as (sic) "gay" and "lesbian" in an aggressive manner. I said, "I am going to report you for physical abuse and homophobic comments" or words to that effect. Mr Proops left the room and returned with Mr Bowden. I explained what had happened and then said. I said, "I need to go to the toilet to get a drink" or words to that effect. Mr Proops and Mr Bowden then blocked the doorway. I tried to leave through the doorway and Mr Bowden tried to stop me and said, "You're not leaving" or words to that effect. He was yelling at me and he and (sic) stepped in front of me. It was after school and I was frightened and in my classroom. I then dodged them and ran out of the room. They then followed me and were shouting at me "you stupid fool". I ran down to the Infants' school and across the football field. I was running to my car to get away from them and they were still chasing me. I ran into the staffroom at the Infants' Department and saw Kelly Murphy and Faye Calshaw. I told them what had just happened. Mr Proops and Mr Bowden did not enter the Infants' Staffroom together. On 14 June 2006, I returned to the school. Mr Bowden walked up to me and said, "I need to have a meeting with you about the end of year reports that Mr Proops tried to give." (sic) Mr Bowden then reviewed the reports and said, "I don't know what Mr Proops is going on about with these reports. As I cannot see anything wrong with them." He said, "There are only a couple of spelling mistakes and a couple of these have to be redone." I made claims at that meeting in front of a teacher named Faye Culshaw about what had happened the day before. I said that "I want to make a complaint about you [Mr Bowden] about the incident yesterday and the fact that you have not done anything about Mr Proops". Mr Bowden suggested I put in a formal complaint. 62 The next day the applicant told Mr Bowden that she wanted to make a complaint about him for the incident the day before and for not doing anything about Mr Proops. In oral evidence, the applicant again said that Mr Proops had thrown the reports at her and called her names such as 'gay' and 'lesbian'. She had told him she was going to report him for physical abuse and homophobic comments. She denied she had insisted on a Federation representative being present before any further meetings were held. She claimed both Mr Bowden and Mr Proops blocked her leaving the room and had called her 'a stupid fool'. 63 The applicant agreed that on 16 June 2006, Mr Bowden provided her with proforma complaint documents and gave her details of his own supervisor, Ms Best. She said she contacted Ms Best by phone after making her formal complaint on 25 July 2006. However, in the meantime, Mr Bowden had sent her a letter scheduling a meeting for 20 July to discuss her teaching difficulties and the commencement of the TIP, with Mr Proops overseeing the program. The applicant agreed there had been several postponements of the meeting because she had objected to being placed on a TIP and had been consulting with the Federation. She had proceeded on sick leave and agreed she had prepared her written complaints while on leave. She denied she had wanted to 'keep it (the complaint) up her sleeve', to frustrate any attempts to put her on a TIP. She claimed that she hadn't thought of that at the time, as she was too stressed out. 64 The applicant maintained that it was Mr Bowden who had decided to resolve the complaint against Mr Proops at a local level. She had been asking him three times a week what he was doing about her complaint. She denied waiting to make a formal complaint until told she was to be placed on a TIP. When asked why her formal complaint letter made no reference to Mr Proops making a homophobic remark, she said she used the word 'discrimination' which she believed had covered it. 65 The applicant claimed she had handed her complaints to Mr Bowden on 25 July, even though she was sick on this day. She denied mailing them to Ms Best. Later however, she agreed she had given the complaint about Mr Proops to Mr Bowden and the complaint about Mr Bowden, she had sent to Ms Best. The applicant explained that she hadn't mentioned homophobia in her written complaints, because it was too embarrassing. 66 The applicant agreed that she made a complaint in Term Three about Mr Bowden making a homophobic remark in Term One. She denied this was a complete fabrication, although she told no one about it for some months. The applicant denied that her complaints were designed to engineer a situation where she would be given preference for a transfer and avoid any consideration of her performance. She again claimed it had been Mr Bowden who first suggested a transfer.

67 At the meeting on 8 August 2006, when the applicant was put on a TIP, she had told Mr Bowden 'I don't trust you' and that she was being 'set up' for making the complaints. She continued to make complaints about Mr Proops as her supervisor, and Mr Bowden. They were both present for classroom observations. She had felt totally intimidated and unable to perform to anywhere near her usual standard. In oral evidence, the applicant claimed there had been confusion over who was representing who at the 8 August meeting. Both Ms Deacon and Mr Carter were at the meeting. She said it was biased if the Federation representatives didn't even know who they were representing. The applicant had continued to insist that she was never happy with being put on a TIP, because she had been told her performance was good. She acknowledged that every teacher could improve their performance, and the only deficiency she had, was because of all the harassment she had to endure. 68 The applicant insisted the Federation could not 'sign off' on her complaint without her consent, and shortly after, she had engaged a new firm of solicitors. She believed the Federation hadn't been doing their job properly. At a meeting on 7 September, with her lawyer and Ms Best, the applicant said she hadn't been told of the involvement of an external assessor, Ms King and she and her lawyer had been 'thrown out of Ms Best's office'. 69 The applicant was asked why she hadn't provided further details of her complaints to Ms Best. She said she had made numerous phone calls and wasn't interviewed. Ms Best had interviewed other people and had then found there was no substance to the allegations. The applicant considered that the investigation was quite 'one sided'. In re-examination, the applicant was shown an annexure to Ms Best's affidavit in which the applicant said she had replied to Ms Best's request for more information on 8 September 2006. In this letter, she complained about cronyism and noted that Ms Deacon was a friend of Mr Bowden and Mr Carter. 70 The applicant said that Ms King had initially offered her support, but changed after the first lesson. She had seen Ms King go in and out of Mr Bowden's and Mr Proops' office and she now believed Ms King was also biased against her. She also accused Ms King of homophobic behaviour. The applicant believed Ms King was a paid consultant. 71 The applicant later claimed that the independent review had liquid paper over the date of 16 May and she hadn't been interviewed until 18 May.

9 August 2007 Meeting 72 On this day, the applicant and her support person, Ms Louise Cawdron, met with Mr Urry and Mr Carter. The applicant claimed Mr Urry had said words to the effect of 'the fairest thing would be to place Jane in another school and after a settling in period to go on another TIP' and 'place this in a detailed submission with details of your employment with the Flying Squad'. 73 In oral evidence, the applicant said she hadn't been confused as to who made this statement. It wasn't Mr Carter - it was Mr Urry. Ms Cawdron had taken notes to confirm what Mr Urry had said, as did the note taker. 74 In cross-examination, the applicant said that she had not sought alternative employment with the Catholic Education Office since her dismissal. She said over 18 months she had received some casual payments of around $200 in total for tutoring English to three overseas students. However, she had no invoices and no receipts. She remains on Centrelink payments.

75 Ms Louise Clarice Cawdron was not intended to be called to give evidence on the applicant's behalf. However, in the applicant's oral evidence, when she said that there were witnesses to Mr Urry's concessions in the meeting of 9 August 2007 (about her having been unfairly treated), the Commission questioned Mr Dixon as to why these witnesses were not to be called to give their versions of what had been said and by whom in that meeting. Mr Dixon maintained that it was not part of his case whether Mr Urry had said the words attributed to him or not. 76 The Commission considered that, not only had the applicant considered Mr Urry's alleged concessions as vindicating the crucial basis of her claim that the TIP process was unfair, but two other considerations necessarily arise. Firstly, Mr Urry was the final decision maker. If he really believed that the TIP process was unfair and the applicant should have been moved to another school to undergo a second TIP, why would he have not made that decision instead of the decision to dismiss her? Secondly, Mr Urry strenuously denied ever making such comments, including at the conciliation of the matter on 30 January 2008. (See details of his evidence at paras 155 and 157). It seems to me that a real and potentially serious issue of the applicant's credibility as a reliable witness is called into question by this conflict of evidence. As such, it must be resolved by the Commission. 77 Ms Cawdron's statement was tendered and she was required for cross-examination. Ms Cawdron claimed that Mr Urry has said at the meeting: "The fairest thing would be to place Jane in another school to be re-assessed independently." He said, "Jane, you should place this request in your submission to me along with details about the flying squad. And after a settling in period to go on another Teacher Improvement Program". He said, "Jane, you will need to give me a submission by 21 August 2007."

Ms Cawdron said she had made notes of the meeting and had recorded these comments by Mr Urry on a pink folder. The original folder was tendered with her statement. 78 In oral evidence, Ms Cawdron described herself as a friend of the applicant and her family for almost 40 years. She had accompanied the applicant to a number of meetings with the respondent. She said that in the meeting of 9 August 2007, Mr Carter, from the Federation, had spoken on the applicant's behalf. She had made notes which described that the applicant's complaint '(was) not resolved'. It was the same as another complaint during her time in the 'flying squad' concerning a violent child. She had noted 'unfair process' and 'seen as threat to career'. Mr Carter had said 'should have been dealt with at another school', 'could go to Discrimination Board', and (the applicant was) 'quite prepared to go to another school'. Ms Cawdron agreed that Mr Carter had said that the applicant was prepared to go to another school and undertake another TIP. The words 'fair go' were inserted between the sequence of the main notes under the note 'Urry said to place this request in a submission'. 79 Ms Cawdron had noted on the left side of the folder the words she claimed Mr Urry had said. She explained that she had a habit of making brief notes on one side of the page and important points on the left of the page. She was asked why the left hand notes seemed darker. She explained she had pressed harder on the other side. She denied that her notes had been fabricated much later. She said that if she wanted to cover anything up she would have done a better job than this. She insisted her notes were 'dead accurate' as to what Mr Urry had said on that day.

Respondent's evidence 80 Mr Kenneth John Bowden has been the Principal of Padstow North Public School since 2001. He has been a teacher for 32 years. Mr Bowden recalled that when the applicant commenced duty at the school, she had told him that it had been 10 years since she had delivered a teaching and learning program. Mr Bowden said that during 2006, the applicant had been required to report directly to the Assistant Principal, Mr Proops, in his capacity of providing professional guidance and feedback on her teaching and learning program. Mr Bowden said he understood Mr Proops, who had been at the school for 17 years, was highly respected by the school community and staff and he had always found him to be a highly professional educator. 81 Mr Bowden referred to the incident on 9 March 2006. He said that another teacher, Ms Christine Humphrey, had come to his office and said that he may be needed in the staff room as there could be a problem between the applicant and Mr Proops. The applicant had then entered his office. She had appeared angry. She had said she required a witness before attending any further meetings with Mr Proops. Mr Bowden said he had offered to discuss her problem, but the applicant said she was too upset and left. Mr Bowden denied that the applicant had said she felt scared for her safety, that Mr Proops had gone berserk or that Mr Proops had acted aggressively. Mr Bowden denied that he had been 'red in the face'. Mr Bowden said he then sought out Mr Proops, who told him that this was the third attempt he had made to discuss the applicant's teaching and learning program, and on this occasion, she had become aggressive and walked out of the discussion. 82 Mr Bowden said that on the following Monday, he had questioned Ms Humphrey about the incident. She had told him that when she had gone to the staff room, the applicant was standing over Mr Proops and had said in a raised voice 'I need a witness'. She said that Mr Proops was seated and spoke quietly and appeared calm. 83 Mr Bowden had met the applicant on 10 March 2006. He had asked her if she was okay to return to teaching. She had said she was, but she was not prepared to meet Mr Proops as her supervisor because he had yelled at her. Mr Bowden said he had advised her that she could make a complaint and he would deal with it. He said that, at no stage in that meeting, or beforehand, had the applicant made an allegation about Mr Proops directing homophobic comments towards her.

84 Mr Bowden confirmed that the meeting of 13 March 2006, had been to clarify expectations about the applicant's teaching and learning program. She had tabled a handwritten document alleging Mr Proops had adopted a bullying and intimidatory manner to his counselling. Mr Bowden deposed that in the past six years of his dealings with Mr Proops, there had never been any complaint by other teachers about his counselling methods. 85 Mr Bowden said that, at no stage in the meetings of 10 and 13 March 2006, or in her written complaint, had the applicant raised an allegation that Mr Proops had directed homophobic comments towards her. She had not raised the issue 'at least three times a week' after this time, nor did he shrug his shoulders or change the subject. He had always wanted to separate the issue of the complaint from discussion of her teaching performance.

86 Mr Bowden identified a meeting he had with Ms Savvopoulos and the applicant on 20 March 2006. He said it hadn't been a normal assessment, but it was part of the outcomes of the 13 March meeting, in which he had undertaken to give an independent assessment of the applicant's program. He had not been 'nit picking' and had never said 'everything is okay'. 87 Mr Bowden said he had issued a notice of a meeting on 24 March to discuss the applicant's supervision by Mr Proops and to give her feedback on her request for a compassionate transfer. On 27 March, the applicant said she couldn't attend the meeting that day because she couldn't arrange a suitable support person. Mr Bowden said he had indicated to her that he wished to conclude the matter as soon as possible. A rescheduled meeting on 3 April also did not take place. 88 In a meeting on 5 April 2006, the applicant had asked about her complaint and if she wished to formalise it. The applicant had told Mr Bowden that the Federation had advised her to resolve it at the local level, and that she had agreed to work towards that outcome. Mr Bowden had understood that the applicant did not wish him to take any further action in respect to her complaint against Mr Proops. She had given him no indication that she was 'extremely distressed'. Mr Bowden had then emailed Ms Best to inform her that her services as a mediator were no longer required. 89 In a meeting of 12 April 2006, Mr Bowden said that the applicant had not responded constructively and had acted very defensively. He had believed she was seeking to deflect the legitimacy of the counselling by alleging that she felt intimidated, harassed and 'picked on' and that her privacy had been breached. Arrangements were then made to have minutes of meetings placed in a confidential envelope. The applicant had made no complaint that he was not taking action over her complaint against Mr Proops. Mr Bowden believed that, by this time, on every occasion an issue was raised about her teaching performance, the applicant would deflect the discussion by insisting that the issues were not justified, and were examples of further harassment and bullying. 90 Mr Bowden said that at the beginning of Term Two 2006, he gave the applicant a letter outlining areas of help he, and Mr Proops, proposed for the term. The three areas were in programming, assessment and classroom management. The applicant was also expected to complete a day book. 91 Mr Bowden had a meeting with the applicant and Ms Savvopoulos on 17 May 2006, to discuss the student assessments and half yearly reports. He said he had been very disappointed with the lack of professionalism in the documentation the applicant brought to the meeting, but had refrained from saying so in the meeting because Ms Savvopoulos was present. He had raised his concerns with the applicant shortly after. Mr Bowden said he had not taken over responsibility of the program from Mr Proops. All of the documentation had made this very clear. 92 Mr Bowden gave his version of the incident on 13 June 2006. Mr Proops had come to his office and told him that he had attempted to discuss the applicant's half yearly reports with her, but the discussion had not gone well. He and Mr Proops had then gone back to her classroom and the applicant had told them she would not speak to them without a Federation representative present. She then went to leave, and in doing so had said 'I won't be abused'. He and Mr Proops then returned to his office. Mr Bowden said that, at no time, had the applicant said that Mr Proops had thrown the reports at her or yelled at her calling her 'gay' and 'lesbian' in an aggressive manner. Mr Bowden denied that he or Mr Proops had blocked the doorway. Neither of them had chased her through the playground. He had not yelled at her or called her a 'stupid fool'. She had not appeared to be frightened, but she was angry. He believed this to be a similar tactic she had used on other occasions to deflect feedback of her performance. 93 The next day, Mr Bowden had attempted to discuss her half yearly reports, this time with Ms Culshaw present. The applicant had interrupted him and said he had yelled at her yesterday and attempted to block her exit from the room. Mr Bowden said that he had been taken aback by these claims, and told her that there were procedures for making complaints against other teachers. She said she would do so. Two days later, Mr Bowden said he placed a note in her pigeon hole marked 'private and confidential' together with the proforma complaint forms. 94 Mr Bowden said he had a meeting with the applicant on the last day of term (30 June 2006) to discuss the applicant's professional goals and any problems with particular children. He denied there had been any exchange about her complaints and further abuse. Mr Bowden said he had not heard from her in that regard since 16 June. Mr Bowden maintained that the complaints against him were baseless. He rejected the applicant's claim that he had not acted on her complaint about Mr Proops. Mr Bowden said he had not seen any of the behaviour the applicant had alleged against Mr Proops, and she had never particularised any of her complaints. 95 Mr Bowden said that towards the end of Term Two he had decided to place the applicant on a TIP, because it was impossible to have any professional dialogue with her about her teaching performance. His concerns were threefold; her professional organisation, classroom management and her ability to plan and deliver effective lessons. During the vacation, he and Mr Proops, in consultation with the Staff Efficiency and Conduct Unit had developed a draft TIP. He said that a number of unsuccessful attempts were made to have a meeting with the applicant to discuss her being placed on the TIP. 96 Mr Bowden said that he had placed a sealed envelope containing a letter in the applicant's pigeon hole directing her attendance at a meeting on 24 July 2006. However, the applicant had returned the envelope to his administrative assistant saying it wasn't acceptable because it had been handed to her by a child. Mr Bowden had understood that she had actually sent the child over to collect her mail from the pigeon hole. The applicant was on sick leave from 21 to 28 July 2006 and a meeting was scheduled for 3 August 2006.

97 Mr Bowden said he had discussed with Ms Best the appropriate way of proceeding with the two formal complaints. She had suggested they be addressed together. Mr Bowden claimed that as he was concerned with the overlap between the complaints and the applicant's placement on a TIP, he had sought advice from the Regional Office to have the assistance of a neutral observer of the TIP (Ms King). 98 The 3 August meeting didn't proceed and was rescheduled for 8 August. Mr Bowden agreed that the applicant had said to him 'I don't trust you' and that she believed the TIP was unachievable. Ms Deacon had said that another Federation official would check the TIP and explain how it would work. A number of other unsuccessful attempts to schedule a meeting to discuss the TIP were made and it was finally held on 7 September 2006. Mr Bowden said he had been aware of the communications the applicant had with Ms Best over the period September and October 2006. 99 Mr Bowden said that around 11 October 2006, the applicant had been sent a registered letter directing her to participate in the TIP. She had said she hadn't received it and arrangements were made for it to be handed to her. She had initially refused, but later accepted it on 19 October 2006. 100 On 21 November 2006, after being given advice to proceed, Mr Bowden met with the applicant and her support person to advise her the TIP would commence. Mr Bowden said that the arrangements were that Ms King would undertake a number of classroom observations. Mr Bowden agreed that the applicant engaged in the TIP process, but she had refused to sign various feedback documents. On 2 April 2007, Mr Bowden presented his Principal's Report as required by the TIP Guidelines. 101 In cross-examination, Mr Bowden agreed that Ms Savvopoulos had been appointed as the applicant's mentor, because she had not had a permanent placement when working in the 'flying squad'. He said that Mr Proops' involvement was normal standard practice in supervising his teachers. 102 As to the incident of 9 March 2006, Mr Bowden deposed that the applicant had been agitated and angry because she believed Mr Proops had yelled at her and she had just wanted to go home. She had asked 'is this a threat to my employment' and Mr Proops had replied 'no, it doesn't have to be'. Mr Bowden said he wasn't surprised by Mr Proops' response. On 13 March 2006, in the meeting where the applicant tabled her five page response, Mr Proops had refuted the applicant's allegations and at a later meeting between them, Mr Proops had specifically denied losing his temper or throwing the reports at her. Mr Proops had denied being abusive, threatening or bullying. Mr Bowden had Mr Proops confirm that it was the applicant who was angry and who was standing over him. He had been calm and not in the slightest bit angry. Mr Bowden said he had conveyed Mr Proops' responses to the applicant. 103 Nevertheless, Mr Bowden accepted the allegations against Mr Proops were serious allegations. He had asked if she was okay to return to teaching as a standard question in looking after his staff. He agreed she had been upset, but she had agreed to return to teaching. He accepted that the applicant believed that Mr Proops had adopted a bullying and intimidatory manner with her. Mr Bowden said he had never taken over her supervision and Mr Proops had not been removed as the applicant's supervisor. It was Mr Bowden's evidence that he had believed the applicant's complaint against Mr Proops had been resolved by the Federation's advice that it be pursued at a local level. She had told him of this some time between 24 and 27 March 2006. It was confirmed in the meeting of 5 April 2006. Mr Bowden said he had made detailed notes of the meeting of 5 April 2006, because of the many issues the applicant had raised in the past. He had wanted an accurate record of what had occurred, in order to protect himself in the future if any issue arose. Mr Bowden said that a week later the applicant had again raised her original complaint of being 'picked on'. He had come to the view that she would raise the complaint issue every time her performance was being discussed. Mr Bowden said he had raised a compassionate transfer with Ms Best, but she had said, given the circumstances, it was most unlikely. 104 As to the incident of 13 March 2006, Mr Bowden denied making homophobic remarks to the applicant, or blocking her exit from the room. He said he didn't get a chance to say much to her at all. She had been angry, but was not crying. Mr Bowden strongly denied ever making any comments about the applicant's sexuality; indeed, he didn't know anything about her sexuality. 105 Mr Bowden said he had spoken to Ms Tracy Hayne, Principal Support Officer, Regional Office, about his uneasiness with the potential conflict of interest. He had told Ms Hayne there had been allegations, although he did not know the details. There were then representations made by the applicant, which had been handled at district office level. 106 Mr Bowden agreed that Mr Proops' feedback comments in a document of 26 May 2006, were generally a favourable assessment of the applicant's work and in his own meeting on 17 May with her, he had made no negative comments. He said this was because Ms Savvopoulos was present. However, Mr Bowden denied telling the applicant her work performance was good. He said Ms Savvopoulos did most of the talking at this meeting. Mr Bowden said he later gave a memorandum to the applicant in which he did point out some negative aspects of her work, not only her presentation of documents. Mr Bowden agreed that he and Mr Proops had considered placing the applicant on a TIP towards the end of Term, which had been after her formal complaints against them both. However, he said that prior to this time, he had had numerous conversations with the Department's Staff Efficiency and Conduct Unit about the necessary procedures, because he had not been involved with a TIP before. 107 Mr Bowden denied he had decided on a TIP because there had been a complete breakdown in their professional relationship. He maintained that the complaint had nothing to do with it. He acknowledged that he had found it impossible to have professional dialogue with her. However, there had been no breakdown in their communications. He said there was a difference between her teaching performance and her personal complaints and he had always tried to separate the issues. Mr Bowden agreed that he had been 'hugely disappointed' in the allegations made against him. He believed they were vexatious and he had wanted action by the Department to stop a repeat of them. Although the allegations were subsequently found to be unsubstantiated, he had not taken the matter any further. 108 Mr Bowden believed that the applicant had used the allegations and anger in order to deflect criticism of her performance. He further believed that the allegations were baseless and that she was a liar. While she had not trusted him, he had trusted her from a teaching point of view, but not as a person.

109 Mr Bowden said he was aware that the applicant had taken sick leave during the period of the TIP and had filed a workers' compensation claim for a stress related illness. He agreed it was a stressful process, but her complaint had been her perception of bias. Mr Bowden claimed he had frequently made general inquiries as to her health. He recalled her telling him that she was suffering stress and physical symptoms as a result of the arduous nature of the TIP and she believed it was an unfair process because of the bias of himself and Mr Proops. 110 Mr Bowden said that when he had come to making the Principal's Report he had taken all relevant factors into account, including the various classroom assessments and feedback discussions and the fact that 11 out of 16 classroom assessments had been deemed unsatisfactory. He conceded that while the applicant had shown a degree of improvement, it was minimal and inconsistent. He said it had been a difficult process, not only in reaching a final conclusion, but he believed he had been impartial throughout the process. Mr Bowden also believed that Mr Proops had been impartial throughout the process and professional in every sense of the word.

111 Mr Bowden was questioned about the Procedures for Dealing with Unsatisfactory Performance, in particular 8.3 (see par 11). Mr Bowden conceded that he had not taken into account these guidelines by specific reference to the actual document. However, he maintained that he had done everything to ensure no bias, including having an independent observer involved. He was acutely aware of the fourth dot point, but had not specifically referred to any personal issues in his Report, such as the applicant's health issues. 112 Mr Phillip Leslie Proops has been a teacher for 38 years and Assistant Principal at Padstow North Public School since 1990. He has been required to supervise teachers of students in Years Three to Six. Mr Proops said that in early March 2006, he had asked for the teaching programs of the four teachers under his supervision. Teachers usually submit a folder of materials covering key learning areas, rosters, timetables and implementation plans. The applicant's program had been deficient in that it omitted a timetable and omitted to set out any teaching philosophy or personal goals. 113 Mr Proops had arranged a feedback meeting on 7 March 2006, with the applicant, as was standard practice. It was not 3 March 2006. He had questioned her on her experience with programming and whether she had adopted Ms Savvopoulos ' program, as it was very similar. He denied he had called her a 'stupid bloody lesbian' or thrown anything at her. He said that her assertions were false and he had found them personally offensive. He hadn't even known the applicant's sexuality, nor was he interested in knowing. 114 Mr Proops said that when they had met again on 9 March 2006, he had maintained an even temperament and remained seated throughout. He was not agitated and hadn't thrown anything at her. It was the applicant who was agitated. She had told him she had felt threatened by the tone of his comments, which she regarded as being more critical than those made of other staff. Mr Proops agreed that this was true, because there was a considerable disparity in the quality of her work when compared to others. Mr Bowden had come down after she had left, and he had told him the applicant became upset and had stormed off when he attempted to discuss feedback with her. 115 Mr Proops had attended the meeting with the applicant and Mr Bowden on 13 March 2006, in order to clarify expectations regarding her program and to give her an opportunity to raise her perceptions of a threat to her job. It was in this meeting that the applicant had produced her five page letter of response to his feedback. Mr Proops said he did not see it until after the meeting and, although he was aware that the applicant was unhappy with his feedback, he had been unaware that her reply document had constituted a complaint against him. Mr Proops said he had little involvement in the review of the applicant's program for the balance of that term. 116 Mr Proops had attended another meeting on 12 April 2006, in which three areas of specific concern had been identified and where help was needed with the applicant's performance. She had responded by saying that she had felt intimidated and harassed and wanted a transfer out of the school. Mr Proops did not understand that she was making a specific complaint against him. After this meeting, Mr Proops had continued to try to supervise the applicant's work, but she refused to meet with him. On or about 3 May 2006, he and Mr Bowden had written to the applicant and had offered to discuss a review of her teaching program for Term Two. 117 On 13 June 2006, Mr Proops spoke to the applicant about her draft end of term reports. He said many of them were unfinished, incomplete or messy. He had tried to raise specific issues, but she had refused without a Federation representative being present. Mr Proops denied yelling at her, throwing the reports at her or calling her 'gay' or 'lesbian' in a threatening manner. He also denied that the applicant had said she was going to report him for physical abuse and homophobic comments. Mr Proops then went to see Mr Bowden and told him the applicant had refused to accept his feedback. When Mr Proops and Mr Bowden returned to the classroom, the applicant had said 'Ah this is bullying, I'm out of here' and left. Mr Proops denied that he or Mr Bowden had blocked her exit or had been yelling at her. He denied chasing her. He hadn't perceived her to be frightened; rather, she had responded in an aggressive and assertive way and her behaviour was totally unprofessional. She had ran down to the Infants School, some 300 metres away while her car was only parked about 20 metres away. 118 Mr Proops had subsequently learnt of the formal complaint made against him and he was interviewed by Ms Zanetich on 15 September 2006. He had later been informed by Mr Bowden, that the complaints had been unsubstantiated. Mr Proops had made notes of his meeting with Ms Zanetich about the allegations in which he had said he had remained calm during the 9 March meeting. 119 Mr Proops referred to the meeting of 8 August 2006. While he had known that the applicant was hostile to his involvement in the TIP, he had sought to deal with the issues in an objective and professional manner. Mr Proops said that he had felt that the attacks on himself and Mr Bowden were a device utilised by the applicant to avoid the proper management of the perceived shortcomings in her teaching performance. He said that, at all times, he had endeavoured to guide and assist the applicant. However, throughout her TIP, she had refused to engage with him in a constructive manner. 120 In cross-examination, Mr Proops said that he had assessed the applicant's preparation for lessons, sat in and observed some lessons and provided feedback afterwards. He could not recall sitting in any observed lesson with Ms King. He had been required to assess each lesson as unsatisfactory or satisfactory, according to a list of specific indicators. Mr Proops was asked about the various lessons he had observed and materials the applicant had prepared. He agreed that in the early part of March 2006, this was standard feedback to any teacher. 121 Mr Proops again denied ever making homophobic remarks about the applicant. He accepted that the meeting of 9 March 2006, had become heated. However, he hadn't been angry her. He had just wanted to have a professional discussion about her program. Mr Proops recalled that the applicant may have said something about a threat to her employment. While she had been standing, he had been seated. The applicant had left the room in an angry and agitated state. Mr Proops denied yelling at her or banging the table or throwing a piece of paper at her. Mr Proops said he did not operate by shouting at teachers. 122 Mr Proops said that when Mr Bowden came down, he had asked if he was alright. Mr Proops said he had made handwritten notes of the meeting because at one point the applicant had said 'its just my word against yours in any meeting we have'. He thought this had been a strange comment. However, his notes did not record that the applicant had been angry or aggressive. As to the applicant's five page feedback response, Mr Proops said he denied all of the allegations in that document. Mr Proops said that in his feedback document of 26 May 2006, he had tried to point out the good points, so as to improve her approach to the job. 123 Mr Proops said that at the meeting of 13 June 2006, the discussion had broken down with the applicant very quickly. He went to Mr Bowden with the reports and feedback materials with him. Mr Proops denied blocking the applicant's exit. She had again left in an angry mood. She hadn't been in tears. Mr Proops said that he had formed the opinion the applicant was very difficult to talk to on a professional basis. She would use anger and aggression to deflect any criticism of her performance and was the type of person who would make up allegations to avoid the proper management of her work. He said that in a normal professional teaching relationship, there must be a degree of trust. But this wasn't a normal professional teaching relationship. Nevertheless, Mr Proops maintained that he had always tried to have professional dialogue with her, but she just wouldn't allow it to happen. She had refused to engage in any sort of constructive dialogue from around 9 March 2006. 124 Mr Proops said that he wasn't aware if Ms King had known that the applicant had made a complaint about him. He would just say 'hello' to Ms King if he ran into her at the School. 125 Mr Proops accepted that the allegations the applicant had made against him were serious matters. Nevertheless, he still believed he had brought an impartial and professional mind to the process. In 38 years of teaching, Mr Proops said he had never been the subject of allegations of the type made by the applicant. 126 Ms Christine Humphrey, the Teacher / Librarian at the School, provided a statement, but, for medical reasons, was unavailable for cross-examination. Her statement was tendered with the usual caveats associated with a statement relied upon where the witness is unavailable for cross-examination. 127 Ms Humphrey recalled an occasion around 9 March 2006, when she had entered the staff room and observed Mr Proops seated at a table and the applicant had been standing beside the table. The applicant had appeared to be doing most of the talking; her voice was raised and agitated. She had appeared flustered, while Mr Proops had looked and talked in a calm manner. Ms Humphrey said she had quickly withdrawn and then informed Mr Bowden that he ought to go to the staff room because he should hear what was going on between Phil (Mr Proops) and the applicant. She had done so because she had believed Mr Proops needed assistance in what appeared to be a very difficult situation. Ms Humphrey added that while she hadn't always seen 'eye to eye' with Mr Proops she believed he always discharged his duties in a highly professional manner. 128 Ms Faye Celestine Culshaw has been a teacher since 1975 and was the Federation representative at the School, from 1990 to 1997 and 2002 to 2008. As the applicant's support person, Ms Culshaw had attended a number of meetings between the applicant, Mr Bowden and Mr Proops. 129 Ms Culshaw recalled the applicant tabling a complaint document at the meeting of 13 March 2006. She had not been given a copy of the document and hadn't known of its contents. However, there had been no complaint raised in the meeting about homophobic comments or behaviour by Mr Proops. Ms Culshaw had advised the applicant to obtain advice from the Federation in respect to her concerns. 130 Ms Culshaw had attended the meeting on 12 April 2006, which had been convened to discuss an informal support program, in respect to three areas of perceived deficiency in the applicant's teaching skills. The applicant had complained about a breach of confidentiality and Mr Bowden had agreed to circulate a hard copy of minutes of meetings, rather than by email. Ms Culshaw understood that after this meeting informal support had been offered by a range of teachers, including Ms Savvopoulos. 131 Ms Culshaw gave evidence of the events of 13 June 2006, when the applicant came down to the Infants School. The applicant had told her that she had felt she had to escape from what she perceived was a hostile situation involving Mr Bowden and Mr Proops. She had been tearful and upset. Ms Culshaw told her to write down what had happened and escorted her back to her car. Ms Kelly Murphy wasn't present (the applicant had said she was). Ms Culshaw said she hadn't seen Mr Bowden or Mr Proops, and she would have seen them if they had been following the applicant. Ms Culshaw had a conversation with Mr Bowden the next day. After she had told him what the applicant had told her, Mr Bowden had said words to the effect, that it was ridiculous and what had occurred was nothing like what the applicant had told her. 132 Ms Culshaw recalled another meeting in which the applicant had said she wished to make a complaint about Mr Bowden concerning the incident. She could not recall if she had mentioned Mr Bowden not doing anything about the complaint against Mr Proops. Ms Culshaw could not recall seeing any formal complaint. 133 In oral evidence, Ms Culshaw said that the applicant had told her she had felt intimidated, that Mr Bowden had blocked the doorway, but she had managed to dodge him and she had been followed down the carpark with both of them calling out her name. 134 Ms Culshaw said she was at all of the TIP review meetings as a support person and was aware that two Federation Officers, Ms Deacon and Mr Carter were involved in the initial stages of the TIP. 135 Ms Culshaw had no knowledge of the applicant having told her that Mr Proops and Mr Bowden had made homophobic comments towards her. She understood that the applicant had believed that Mr Proops had been aggressive when raising matters with her. 136 In further oral evidence, Ms Culshaw accepted the proposition that the professional relationships between the applicant and Mr Proops and the applicant and Mr Bowden had deteriorated over the course of 2006. 137 Ms Deborah King has worked for the respondent since 1974 and in 2006 and 2007 held the position of Quality Teaching Consultant. This role involves the professional development of teachers within the Region. She had been involved in only one other TIP previously. In October 2006, Ms King had been asked to provide support and assessment to the applicant as part of the formal TIP. She had been told that the relationship between the applicant and Mr Bowden and Mr Proops was 'strained'. It had been considered desirable to have an outside observer of a number of assessments so as to ensure objectivity and provide an additional source of support to the applicant in addressing the areas of her teaching which required improvement. In the first meeting after observing a Maths lesson, Ms King had described the type of support she could provide and her role in the TIP. She had provided oral feedback of the lesson discussing its strengths and weaknesses and suggestions for improvement. She had been conscious of the need to develop a rapport with the applicant. 138 Ms King said the first two lessons she observed she had rated as satisfactory. However, measured against the designated standards, the third lesson was unsatisfactory. She had provided feedback to the applicant. After this, it became increasingly difficult to engage the applicant in professional discussion about classroom practice. 139 Over the next few months, Ms King had observed seven further lessons, rating six as unsatisfactory and one satisfactory. She had attempted to provide feedback, but had found the applicant appeared very upset and angry during the feedback sessions. Occasionally, the applicant would question her independence and suggested there was no purpose to the process as she had already made up her mind. Ms King had told her this was not the case. 140 From the nine lessons Ms King observed, she came to the view that the applicant's teaching performance was generally unsatisfactory, and did not meet an acceptable standard. Ms King said that, at all times, she had attempted to be independent, professional and supportive. She denied that she had been overly aggressive, argumentative, unprofessional, unco-operative or intentionally unhelpful (as claimed by the applicant). She totally rejected the applicant's assertion that she had acted in a homophobic manner towards her. She also denied that she had been influenced in her assessments by anything other than her professional judgement of what she had observed. 141 In cross-examination, Ms King said she hadn't been told about the complaints against Mr Proops and Mr Bowden until well into the TIP. She believed it was the applicant who had told her. Ms King said she could only recall having a discussion about the TIP with Mr Proops once; maybe twice. Mr Proops had not expressed any opinion as to how the TIP was going, but she had raised her own concerns. 142 Ms King acknowledged that there had been positives all the way through the TIP. However, their ability to engage in constructive dialogue deteriorated in early 2007. The applicant had told her she believed the process was unfair because of the involvement of Mr Bowden and Mr Proops. The applicant had then accused her of bias, in that she believed her mind had already been made up. Ms King agreed that there were two aspects to the TIP: assistance to improve and assessment. Assessment was made by observing the criteria and competencies against professional teaching standards. Ms King agreed that these competencies would be different for a first year teacher, compared to a 10 year teacher. Some standards would be different, others would be the same. Ms King said she had conducted her assessments by reference to the Department's procedure guidelines for dealing with unsatisfactory performance. She had been trained in, and was familiar with, the guidelines. She was particularly aware of the applicant's stress issues. However, she wasn't aware that she had consulted a clinical psychologist. 143 Ms King said she had assessed whether a lesson was satisfactory or not by applying the majority of the criteria and using her professional judgement. Some criteria are more important for classroom teaching than others. Ms King accepted that there would be more workload on a teacher undergoing a TIP. This would include feedback meetings and preparing lesson plans. However, ensuring lessons are well prepared is a normal teaching requirement. Sometimes allowances were made for the applicant to be relieved in order to engage in feedback and other meetings. 144 Ms King denied that by observing that the applicant was upset and angry during feedback sessions, it had affected her ability to be impartial. Ms King had not known that the applicant had made a complaint against her for homophobic behaviour until she was shown the applicant's response to the Principal's Report. She was very upset by it. She said, however, that no formal complaint had been made. 145 Ms Cheryl Lynette Best is the School Education Director, East Hills, and has been employed by the respondent since 1982. Her supervisory responsibilities comprise six high schools, 18 primary schools and three special schools. Ms Best said that in a routine visit to Padstow North Public School in early 2006, Mr Bowden had expressed concerns to her with the applicant's teaching capabilities and indicated he intended to provide informal support to her. Ms Best further deposed that it was normal Departmental practice to work through a TIP, rather than facilitate a transfer, as this may avoid the underlying issues from being addressed. She said seven additional relief days had been approved to support the applicant's TIP. 146 Ms Best said she had received the applicant's formal complaint against Mr Bowden on 26 July 2006, in the mail and with notes attached thereto. On 1 August 2006, she had received an email from Mr Bowden advising of the complaint against Mr Proops and he suggested that, in the interests of procedural fairness, the complaint was referred to her. Shortly after, Ms Best received the applicant's feedback response of 13 March 2006, and Ms Best had various exchanges with the applicant (see chronology). Ms Best had decided that because the applicant's complaint arose from concerns about her teaching ability, it would be addressed by utilising the Dispute Resolution Procedures in the TIP Guidelines. These require that if a dispute can not be resolved at a local level it is referred to the School Education Director (herself) and the Federation. In this instance, she had met with the Federation organiser, Ms Deacon and Welfare Officer, Mr Carter on 30 August 2006. Consensus was reached that the TIP could continue with the current supervisors, together with an external independent person and the applicant was advised accordingly. 147 Ms Best said that when she had met with the Federation, she knew that Mr Proops was supervising the applicant and that Mr Bowden was overseeing the program. Ordinarily, the decision as to who directly supervises a teacher is made by the Principal. Ms Best agreed that one week after the meeting which had decided that the TIP could proceed, the applicant again complained in a phone call to her about the process involving Mr Proops and Mr Bowden. The applicant had also sought a deferment of the TIP to Term Four 2006. 148 Ms Best said she had received further representations from the applicant and her solicitors, objecting to the TIP and the alleged lack of procedural fairness. The solicitor had also suggested a transfer to another school. Ms Best said that the applicant was informed that her complaints against Mr Bowden and Mr Proops were unsubstantiated and she was ultimately directed to attend a meeting to negotiate the progress of the TIP. 149 Ms Best deposed that, at no stage, in the complaints against Mr Proops did the applicant allege he had used words such as 'stupid bloody lesbian', nor did she make the same allegations against Mr Bowden. The applicant had not made an allegation that Mr Proops had yelled at her by calling her names such as 'gay' and 'lesbian' in an aggressive manner in her formal complaint of 26 July 2006, or in the alleged response to the request for further particulars. In cross-examination, Ms Best acknowledged that the complaints against Mr Bowden and Mr Proops were serious.

150 Ms Best believed that there had been nothing to suggest that the applicant's supervisors could not carry our their role professionally and responsibly. Ms Best acknowledged that the applicant had not agreed with the Federation's agreement to the TIP proceeding. Ms Best insisted that the fact of the complaints having been made were not a procedural fairness issue in the TIP. Ms Best agreed that, at the time the TIP was being considered, the complaints against Mr Proops and Mr Bowden had not been resolved. 151 Ms Best said she had no further involvement in the matter after 20 October 2006, and had no role in the decision making resulting in the applicant's dismissal. 152 Mr Thomas John Urry is the Department's South West Regional Director. The region has 276 schools - 64 secondary and 212 primary and special schools. Mr Urry has been employed by the respondent since 1974 and his current responsibilities include delegated authority to make decisions concerning teacher efficiency matters, including any disciplinary action arising therefrom. 153 Mr Urry traced his involvement in the applicant's case from when he received the Principal's Report in April 2007, following the completion of the applicant's TIP. Mr Urry said he had been aware that Ms Best had been managing complaints raised by the applicant, but he hadn't been involved in handling those complaints. 154 After receiving the Principal's Report, Mr Urry directed the applicant to alternative duties at the Arncliffe office, which she had requested as it was closer to her home. The main area of controversy in Mr Urry's evidence concerned whether he had said the words the applicant attributed to him at the meeting on 9 August 2007 (see par 72). 155 Mr Urry strenuously denied making these comments and said it had been suggestions of the Federation's representative, Mr Carter. Mr Urry deposed that he had simply said that the applicant include the suggestion in her written submission. Mr Urry agreed that the applicant had said that she felt her complaint had been 'swept under the carpet'. She had referred to protected disclosures, but after a short discussion with the Federation representative, hadn't pressed that matter. 156 Mr Urry referred to the Federation's letter of 22 August 2007. He noted that the Federation representative had agreed that the applicant's complaints should be dealt with at a local level and that the TIP should proceed. While the Federation had later said this had been a mistake, it had provided no arguments to support its contention. Mr Urry said that he had his professional support officer, Ms Yvonne Stapleton, check with Ms Best concerning the applicant's complaints. Ms Best had advised that the complaints had been dealt with in accordance with the Department's procedures. Mr Urry had also been mindful that an independent consultant had been used during the TIP. 157 In oral evidence concerning the 9 August 2007 meeting, Mr Urry said he could not recall if Ms Cawdron had been taking notes at the meeting. He believed there was nothing else on the table and he hadn't seen the pink folder now included in Ms Cawdron's evidence. Mr Urry again emphatically denied saying the words attributed to him by the applicant. He explained that if it had been his view to transfer the applicant, there would have been no need for the meeting in the first place. He would have arranged an alternative placement. 158 In cross-examination, Mr Urry agreed he gave weight to the recommendations in the Principal's Report and to the independent reviewer's comments. It was their role to consider the procedural fairness aspects of the TIP. Mr Urry said he spends a lot of time on these matters. He said that while was aware of the complaints made by the applicant, he had not known the specifics. He had considered the role played by those against whom the complaints had been made. 159 Mr Urry said that when the applicant was transferred to alternative duties at Arncliffe, she had not been offered any remedial training. Mr Urry said he had not been aware of any teaching difficulties while the applicant was in the 'flying squad'. However, he said a decision is made about a teacher's performance at a given time. Other mitigating issues can be raised in follow up submissions. 160 Mr Urry was asked about Mr Irving's letter and suggestions. He had checked if the Department's procedures had been followed and was told they had been. Ms Best had advised him that there had been 'no climate of suspicion and mistrust'. Mr Urry said the option to transfer the appliant was always an option and was suggested by Mr Carter and reaffirmed in the applicant's final submission. It was always an open question until he had made his final decision. 161 Mr Urry agreed that while the applicant had only been given a day's notice of her dismissal, she had been provided with an interview and she had sent a submission. There was no appeal at that stage. Mr Urry agreed he could have opted for providing more notice. Mr Urry said other options to dismissal had been considered, including a direction to retire, transfer or further remedial action. Mr Urry said it was normal practice, after dismissal, to propose placing the teacher on the NTBE list. The applicant had been advised of this and had been invited to put a submission as to why she should not to be placed on the list. 162 Mr Urry was asked about his understanding of what was required under the TIP. Supervision was usually the responsibility of the line manager, such as the Deputy Principal or Head Teacher. Usually, even if the Principal is not the direct line manager, the Principal would still observe one or two lessons. If a conflict of interest arises, it is dealt with according to the grievance procedures, and it may not necessarily impact on the TIP. Even if a conflict of interest is proven, it may involve no more than changing the supervising person, but can include moving the teacher. In this case, Ms King had been engaged as an independent person. 163 Mr Urry deposed that in the meeting of 9 August 2007, he had been made aware of the complaints against Mr Bowden and Mr Proops, but was given no specifics. He said, in fact, it was the Federation's representative who actually moved the applicant on to the next part of the meeting. Mr Urry had not been dealing with any appeal from the findings of Ms Best as to the applicant's complaints. He was shown an undated letter from the applicant in which it was stated 'If you wish this letter may be used as an appeal'. Mr Urry had responded by forwarding her request for a transfer and seeking clarification of the grounds for an appeal. He had not received anything further from the applicant. 164 Ms Yvonne Ethel Stapleton was the note taker at the meeting on 9 August 2007. She provided a written statement, but was unavailable for cross-examination. In her statement, Ms Stapleton recalled checking her typed version of what had been said against her handwritten notes. She believed her notes were an accurate record of what transpired at the meeting. She said the reference to 'RC' having said, 'program of improvement should occur in another school - due time to settle in' and 'RD' 'suggested that this should be in JM's written submission' were to Rick Carter (RC), Regional Director, Mr Urry (RD) and Jane McMullen (JM).

SUBMISSIONS For the applicant 165 Mr Dixon, of Counsel, submitted that his principle argument in this case was that the circumstances surrounding the supervision and evaluation of the applicant's TIP were biased, and therefore unfair: See Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385. A second limb to the argument is that one of the primary purposes of assisting a teacher with performance issues, is to offer support and remedial assistance. He said this could never have happened because of the breakdown in the relationship between the supervisor and the teacher. The respondent had spent more time assessing the applicant rather than offering her support and assistance. There had been ample opportunities to do so, including when she was at the Arncliffe office, but nothing was provided. A third limb of the argument was that Mr Urry had other options, than dismissal, which was, in any event, too harsh in all the circumstances. 166 Mr Dixon submitted that there were three principal errors made by the respondent in its dealings with the applicant. He said the Commission need not find the errors were deliberate or affected by actual bias. Indeed, the Commission need not make findings at all as to whether the serious complaints against Mr Bowden and Mr Proops were proven. However, a reasonable person would apprehend bias in these circumstances. It was sufficient for the Commission to be satisfied that an incident(s) did occur and as a result the applicant had levelled serious allegations against them. The fact was that the applicant's distress hadn't assisted in her benefiting from the TIP as the respondent had failed to address her complaints. It wasn't that she wouldn't participate in a TIP, it was just that it should have been implemented in a different way and with different supervisors. 167 Mr Dixon submitted that an important matter to consider was that the applicant had been out of teaching for a lengthy period and had only returned with the 'flying squad' prior to permanent appointment at Padstow North Public School. The first problem arose when, in the course of a standard supervisory exchange, the applicant claimed that an incident had occurred and the Commission would be satisfied that it had. This would be sufficient to ground the complaint made against Mr Proops. Serious allegations were made in writing and the applicant was obviously distressed about the circumstances. 168 This resulted, Mr Dixon submitted, in the first error made by the respondent. Mr Bowden had made the mistake of believing that the applicant intended to abandon her complaint against Mr Proops. It may not have been deliberate. At the very next meeting the applicant had with Mr Bowden she had continued to complain about bullying and harassment. Over the next few months, the applicant made frequent inquiries about her complaint. Her relationship to this point with Mr Bowden was 'okay'. Indeed, feedback on her performance in May 2006 had been favourable. 169 Mr Dixon then referred to the incident of 13 June 2006. It was clear that the applicant had been distressed. She had been in tears and had told Ms Culshaw her exit had been blocked and she was subject to bullying. Again, the Commission need not find one way, or the other, as to what had occurred. The next day she gave notice of her intention to file a formal complaint against both Mr Bowden and Mr Proops - primarily, in respect to Mr Bowden, in that he failed to action her complaint about Mr Proops. 170 On 8 August 2006, the applicant was informed she was to be placed on a TIP. Again, the Commission need not find that the TIP was 'retaliation' for the complaints, but once it had been initiated, the process became biased and unfair. Mr Dixon said this had resulted in the second error. Ms Best had decided to separate the complaints from the TIP. This was impossible. There was evidence that other people could have supervised the applicant and, indeed, did so (Ms King). A reasonable decision maker could not but arrive at a view that there was at least a reasonable apprehension of bias by persons judging her performance; persons who the applicant had complained about: See Singh v Castell [1990] FCA 233. Mr Dixon noted that in the meeting of 27 September 2006, with the applicant and her lawyer, Ms Best had made a decision that Mr Proops would stay as the supervisor, notwithstanding that no decision on the complaint had, by then, been made. 171 Mr Dixon then dealt with the TIP itself. At that stage of the chronology Mr Proops' involvement had tainted the entire process, notwithstanding Ms King's later involvement. It was perfectly understandable that the applicant felt extreme angst, disappointment and suspicion that the whole process had already reached a foregone conclusion. Whether it was through paranoia, or some other form of unreasonableness, the applicant held the belief that the whole process was unfair. As her medical evidence attests, she was suffering terribly. Mr Dixon submitted that unfairness was further demonstrated by the applicant being assessed against the standards of a very experienced teacher. She should have been transferred to another school and undergone a second TIP after a period of settling in, as Mr Urry had proposed. 172 Mr Dixon submitted that unfairness had also been visited on Mr Bowden and Mr Proops. Mr Bowden could not have been impartial, when he had admitted he did not trust the applicant and Mr Proops had agreed he was 'only human'. Both of them had been put in impossible positions, and their decision making became subjective. Mr Dixon said that even Ms Best had acknowledged that the TIP assessment was judged against the standards of a competent and experienced teacher. Nevertheless, any favourable comments about her teaching were not considered at all. 173 Mr Dixon submitted that not only was there an apprehension of bias: (See Liversey v NSW 151 CLR 288), but the TIP procedure itself recognised the requirement of procedural fairness which had been breached in this case, see s 93(D)(2) of the Teaching Service Act. The next error involved Mr Urry, when he sent the Principal's Report to an independent assessment. Mr Dixon said that it was not clear whether the independent assessors had considered the issue of the complaints, or had even known about them. Mr Urry hadn't even known the specifics of the complaints. Mr Dixon conceded there was a conflict of evidence as to whether Mr Urry had agreed at the meeting on 9 August 2007, that the fairest thing to do would be to initiate another TIP at a different school. Even so, he should have adopted this option, rather than dismissing the applicant with one day's notice. Mr Urry hadn't offered any reasonable explanation for rejecting that option, or the other option of further retraining. Mr Urry had placed great weight on the Principal's Report, and apart from looking at the file, had not instituted his own independent inquiries. Mr Dixon said that the principles of natural justice also apply to the ultimate decision maker: See Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564. 174 Mr Dixon said that, having been dismissed, the applicant was then told she may be placed on a NTBE list, effectively ending her public school teaching career. Mr Urry's decision was therefore, more than just a dismissal. Mr Dixon said that once on the NTBE list, it would even be difficult for the applicant to obtain private sector teaching work. 175 Mr Dixon submitted that the decision to terminate the applicant's employment, which had been affected by actual or apprehended bias, was such as to render the dismissal substantively unfair. The applicant understandably took great exception to what she believed was a biased TIP. She had not refused to be mentored. Mr Dixon submitted that if a compassionate transfer had been offered, the applicant would have discharged her duties to the requisite level of satisfaction: See Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296. 176 In the alternative, Mr Dixon put that the applicant's dismissal was too harsh, given there is a real chance she will be placed on the NTBE list: See Metropolitan Meat Industry v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231; Alexander v Commissioner of Police [2009] NSWIRComm 3; Cockayne v Hurstville City Council [2009] NSWIRComm 1013 and RV and NSW Department of Commerce [2009] NSWIRComm 21. 177 Mr Dixon sought the applicant's reinstatement or, in the alternative, the maximum compensation available under the Act. For the respondent 178 Mr S Benson, of Counsel, submitted that this case had undergone a number of 'metamorphoses' in that it was originally a case of apprehension of bias, to one now of actual bias. However, that was not the way the case was run. There was no independent or objective evidence brought by the applicant to establish actual, or even apprehended bias. It was only her misguided view. There had been no errors made by Mr Bowden, Mr Urry or Ms Best. 179 Mr Benson traced the history of the applicant's teaching experience and said that from the outset of her present appointment, the School Executive had perceived some difficulties with her teaching performance. The teaching program was an important and routine measure for ensuring the delivery of the syllabus and the achievement of key learning goals. Mr Proops' first comments had been professional and constructive as was his duty. It had been consistent with his experience of over 30 years. Mr Benson said that the applicant's reaction was to refuse to engage in constructive dialogue, and storm out of the meeting. He said the Commission would reject the applicant's version of these meetings, particularly considering what Ms Humphrey said she had observed - Mr Proops seated and speaking calmly in the meeting of 9 March 2006. 180 Mr Benson submitted that the applicant's five page response to Mr Proop's feedback demonstrated that any critical comment was regarded by the applicant as abuse. Pointedly, she made no reference to allegations of homophobia in that document. The document is in general terms, but very emotive. Mr Proops had denied all of the allegations when asked about them by Mr Bowden. There was no other evidence that Mr Proops had ever acted other than in a highly professional manner. This was also Mr Bowden's experience. From this time, the evidence is clear that Mr Bowden attempted to separate the applicant's complaint about Mr Proops from consideration of the applicant's teaching performance. 181 Mr Benson put that by 5 April 2006, Mr Bowden had believed that the applicant's complaint against Mr Proops had been resolved through advice from the Federation. However, this proved not to be the case. Mr Bowden had then moved to the issue of providing support to the applicant in three areas of concern: assessments, programming and classroom management. The applicant would not accept this criticism and sought a compassionate transfer. Mr Benson described the applicant's version of the incident on 13 June 2006 as 'bizarre'. It was designed by the applicant to avoid discussing her performance. The sequence of events is then very interesting. The applicant said she intended to file a formal complaint against both Mr Proops and Mr Bowden. Mr Bowden, in a very professional manner, advised her how to go about it. A month passed and Mr Bowden sent her a letter indicating he intended placing her on a TIP. The applicant then went on sick leave and had only then filed her formal complaints. These allegations include having been bullied, harassed and discriminated against. She didn't refer specifically to homophobia and had explained that she had been too embarrassed to do so. Mr Benson observed that she wasn't too embarrassed when she did so later about something which Mr Bowden was alleged to have done months earlier. 182 Mr Benson put that it was not good enough for Mr Dixon to say he didn't rely on the allegations when the applicant was quite happy to make scandalous accusations against senior officers of the Department. He said that if they weren't relied upon, they should not have been in the evidence. In any event, the Commission would reject all of the applicant's allegations based on the Briginshaw test (Briginshaw v Briginshaw 60 CLR 336). 183 Mr Benson said that the homophobic allegation was not raised in the meetings in March, nor on 13 June 2006, nor in the formal complaint. He submitted that this had been a counter attack from the applicant for having been told she was to undergo a TIP. 184 Mr Benson submitted that Ms Best's investigation had been entirely appropriate and independent. The applicant had been asked to give particulars, but failed to do so. Ms Best had arranged to consider the applicant's complaint about the TIP under the TIP's Dispute Resolution Procedures. The implementation of the TIP didn't occur until November 2006, demonstrating that all of the applicant's concerns had been properly and carefully considered. The applicant had an opportunity to appeal Ms Best's findings and hadn't done so. It was simply wrong to suggest that the Department had not dealt with her complaints. 185 Mr Benson said that, to ensure procedural fairness, the respondent had injected an independent observer into the TIP, and a senior officer, Ms King, was appointed. Ms King had made a conscious effort to develop a rapport with the applicant and the applicant initially believed she was 'like a breath of fresh air'. Then, soon after Ms King had made criticisms, she too was accused of bias and having been 'infected' by Mr Bowden and Mr Proops. Mr Benson said there was simply no objective evidence of Ms King's bias. Nevertheless, the applicant had made a spiteful and hurtful attack on her. 186 Mr Benson submitted that the TIP had been implemented to provide support and to engage with the applicant on a professional basis. The process was obviously difficult for all concerned, but that doesn't mean there was any bias by Mr Proops and Mr Bowden. A TIP is designed to be managed at a local level and not transfer the problem to another school, as the applicant had sought. Mr Benson said that, of course, the procedures recognise that stress might arise and safeguards are in the procedures to ensure medical issues can be addressed. Mr Benson said there was no evidence of any unfitness of the applicant for any extended period and none of the medical opinions suggested she had been unfit to undertake the TIP. Mr Benson put that the applicant wanted to rely on both sides of the argument. She claims she was an effective teacher, unfairly assessed by biased supervisors, but in the alternative, says she couldn't perform to an adequate standard because she was so stressed. 187 Mr Benson submitted that the Principal's Report had been balanced, notwithstanding it had concluded she was unsatisfactory. The Regional Director had sent the Report for independent review. Mr Urry had a meeting with the applicant in order for her to make oral representations. This had been followed up by further submissions. Mr Benson said it was absurd to suggest that Mr Urry had told her the fairest thing would be to place her in a different school and have a second TIP. There would have been no need to have the meeting, if this was his view, as the final decision maker. Mr Benson put that the Commission would dismiss Ms Cawdron's notes as unreliable, given their many inconsistencies. It was open to infer that the crucial notations were made at a later time than had been suggested and were false, in any event. 188 As to the relevant legal principles applying in this case, Mr Benson said that it was trite law that the requirements of natural justice will vary according to the circumstances of the case: See Gow v Cronulla Sutherland Leagues Club (2002) 119 IR 122. Mr Benson noted that the decisions cited relating to apprehended bias involved judicial officers, not necessarily a decision maker in the administrative sense. Nevertheless, the same principles apply: See Crewdson v Department of Community Services (NSW) (No 13) (2006) 152 IR 42 and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] 205 CLR 507. Mr Benson submitted that because a TIP occurs at a local level, the Principal and Deputy Principal would not lightly step aside from their responsibilities. It would be the case that a teacher could simply make an unsubstantiated allegation and derail the whole process. 189 Mr Benson referred to the provisions of the Teaching Service Act and how they have been applied by members of the Commission: See Johnson Nsiah v Department of Education and Training [2006] NSWIRComm 351. 190 Mr Benson responded to Mr Dixon's submissions as follows: It didn't matter if Mr Bowden wrongly believed the applicant's complaint had been resolved, because it became very obvious she didn't accept the proposition. There had been no error made by Ms Best. She had communicated her conclusions on the complaints to the applicant before the TIP commenced and no appeal was lodged. She had engaged with the Federation as required by the TIP procedures and it was determined that the TIP could proceed. Apprehended bias, involving the Proops' allegation being determined by Mr Bowden, had been avoided by her having taken over the investigation of both complaints. Mr Benson said that there was simply no evidence that Ms King had been tainted by any bias. Her assessments had been independent and professionally carried out. 191 Mr Benson said that if Mr Dixon was putting that the applicant's beliefs were 'paranoia' and therefore the process was unreasonable, then such a submission should be rejected. Procedural fairness must be judged objectively, not on a person's paranoia. 192 Mr Benson put that it was no answer to transfer the applicant to another school in circumstances where a comprehensive review had taken place, after an enormous amount of informal and formal support over an extended period and which had found her to be unsatisfactory. It would just expose other students to adverse outcomes. 193 Mr Benson squarely addressed the question of trust. There was no evidence that Mr Bowden and Mr Proops could not bring independent and impartial minds to the TIP. The question of trust only arose in the context of the allegations which had been found to be unsubstantiated. What was clear from all the correspondence and minutes of meetings, was that Mr Bowden and Mr Proops had always conducted themselves in a measured and professional way. 194 As to Mr Urry being in error, Mr Benson noted that the applicant had been interviewed and made full representations. It was not correct to suggest that the two independent reviewers weren't aware of the complaints, because the full file had been sent to them which contained numerous references to the applicant's complaints. 195 Mr Benson noted that the respondent had not come to a concluded view as to whether the applicant's name should be placed on the NTBE list. It was not an automatic outcome. It was still subject to her representations and in particular circumstances, other options are available. In reply 196 Mr Dixon submitted that this case was always about a perception of apprehended bias. The fact that Mr Bowden had said he did not trust the applicant and Mr Proops had said the applicant would use any device in order to avoid being disciplined, demonstrated neither of them could bring an impartial mind to the TIP. In reference to the authorities, the crucial word is 'might' bring a reasonable person to conclude that a Judge might not bring an impartial or unprejudiced mind to the issue to be determined. 197 Mr Dixon said the Briginshaw test need not apply in this case because the allegations are not sought to be proven. Reliance was placed on the fact that the allegations had been made. Mr Dixon conceded that the allegations can't be ignored, as they are relevant.

CONSIDERATION RELEVANT PRINCIPLES Teaching Service Act 198 As I have already mentioned, there is an imperative on the Commission when determining matters such as this to ensure the protection of children. This includes protecting children from incompetent teachers. In New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32, I referred to the Minister's Second Reading Speech when introducing the 2006 amendments to the Teaching Service Act and a recent Full Bench decision about the subject. At paras [173] to [176] I said: 173 When introducing the above amendments to the Teaching Service Act , (No 24 of 2006), the Minister for Education and Training, the Hon. C Tebbutt , MLC said: As agencies responsible for the care and welfare of students the Department of Education and Training and TAFE have an obligation to protect the children and young people in their care from sexual, physical and emotional abuse and neglect and from other inappropriate conduct... For the first time express provision is made in these Acts for paramount consideration to be given to the importance of protecting children when dealing with staff disciplinary matters. Departmental decision-makers will need to give paramount consideration to the need to protect children when deciding how to deal with teachers and other staff who are subject to disciplinary action for misconduct or unsatisfactory performance. Courts reviewing disciplinary outcomes for TAFE teachers, school teachers and other people who work in schools, will also be required to give paramount consideration to the need to protect children when dealing with an appeal or other court action taken by an employee against any decision made by the department or TAFE in the disciplinary context . (my emphasis) 174 Thus, I have no difficulty at all with the proposition, (again not contested by Mr Dawson ), that 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.

175 This approach was endorsed by a Full Bench of the Commission in NSW Department of Education and Training v Cassis when it said at par 88: There can be no doubt that the welfare (and protection) of children is the paramount consideration in proceedings such as the present. This must be determined objectively with the assistance of the employment screening result. It is necessary to take all other factors into account. 176 That said, I respectfully agree with his Honour, Grayson DP, when he said in Nsiah that " I think as a general proposition, that incompetence and/or ineffectiveness on the part of the teacher has the potential to adversely affect the educational outcome of the student ". While Mr Benson relied on his Honour's conclusions in Nsiah , I believe a clear distinction can be made to the circumstances of this case, in that there was no evidence that the educational outcomes of students in 5B in 2006 were adversely affected. In fact, the undisputed evidence is that they were not. Notwithstanding this significant distinguishing observation, there are a range of other factors which I have taken into account when determining this application. Meaning of harsh, unreasonable or unjust 199 A finding by the Commission that a particular dismissal was unfair is a mixed question of fact and law: See Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 and Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282. The famous expression 'harsh, unreasonable or unjust' are the words used in the statute and each word has come to be defined, in the employment context, in a slightly different way. The much referred to authority is that found in Byrne & Frew v Australian Airlines Ltd, where the High Court said at p 450: 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. See also other Full Bench authorities in Bankstown City Council v Paris (1999) 93 IR 209; Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167; National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 and Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288. 200 Mr Dixon stressed that the applicant's dismissal was 'harsh' particularly given that her teaching career in the public sector has been lost to her and her placement on a NTBE list will have similar consequences for her in the private sector. 201 The question of the 'harshness' of a particular dismissal has been discussed in many authorities on the question. In Alexander v Commissioner of Police, a recent decision of the President, Boland J, his Honour encapsulated the principle in the following passage: 39 Reference should also be made to what Watson J said in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233. His Honour articulated what has become a fundamental guiding principle that 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 and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence: I fail to see why in applying this test ["was the termination ... so unfair as to warrant interference by the Commission?"] to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J., in Loty's Case ([1971] AR 95 at p 99), the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness 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.

See also Byrne & Frew v Australian Airlines Ltd; Little v Commissioner of Police (No 2) (2002) 112 IR 212; Busways v Johnson (1994) 55 IR 255; Wells v Commissioner of Police (2000) 100 IR 106 and Electricity Commission of New South Wales t/as Pacific Power v Crump . Procedural Unfairness 202 The gravamen of the applicant's case was that the TIP was biased and contaminated and, therefore an unfair process. That being so, I intend to refer to some relevant authorities dealing with the issue of procedural unfairness in unfair dismissal cases. Section 88 of the Act is relevant in this context (see par 17).

203 In Buckman v Burdekin Resources NL (1998) 85 IR 415, the Full Bench said at p 418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.

204 In the present case, the specific requirements in s 88 were complied with. There can be no doubt that the applicant: (a) was given a reason for her dismissal; (b) was given an opportunity to make out a defence or explanation for her unsatisfactory performance and did so; (c) understood that her continued unsatisfactory performance might lead to dismissal; and (d) vigorously sought re-employment to another school. 205 The thrust of the applicant's argument here is that the entire process was biased and everyone involved in it had been tainted, one way or another. Authorities for the proposition that an unfair process might invalidate a dismissal are to be found well summarised in Austin v NF Importers Pty Ltd (2005) 146 IR 113, where the Industrial Court said at paras [12] to [17]: 12 However, Mr Austin's fourth allegation - that he was not given an opportunity to respond to the general manager's belief that he had improperly turned a blind eye to the copying of illegal software - goes to the heart of the misconduct relied upon by the respondent, NF Importers Pty Ltd, and we gave anxious consideration whether to grant leave to appeal in relation to the relevant grounds in the application for leave to appeal and appeal. On balance, having regard to the reasons given by Staff J in this respect and the submissions made on behalf of the respondents, we also decided to decline leave in this respect.

13 At paragraphs [152] - [153] of the judgment at first instance, Staff J held: [152] I reach this conclusion [that the summary dismissal was not unfair] notwithstanding an allegation that the respondent failed to follow appropriate processes during the investigative and determinative aspects of the respondent's process. Viewed objectively, the termination of the applicant's employment by reason of his conduct did not, in all the circumstances, constitute relevant unfairness. The alleged failure to follow these provisions, even if established, could have no effect on this conclusion. [153] As Hill J said in Mason v Electricity Commission of New South Wales t/a Pacific Power (1995) 62 IR 436 at 442 (which was endorsed by Walton J, Vice-President, in Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122 at 204): Clearly the employer must be a judge in its own cause, may be biased and indeed may have prejudged the matter. But these considerations will not affect a dismissal which is otherwise justified on the merits.

14 If paragraph [152] were read in isolation, it may appear that Staff J concluded that the first respondent's actions did not constitute unfairness prior to considering and evaluating Mr Austin's allegations that he had not been afforded procedural fairness. Such an approach would underrate the potential significance of the failure to observe procedural fairness.

15 As the Full Bench stated in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50, unfair dismissal cases provide guidance when dealing with a claim under s 106 that the contract has become unfair primarily as a result of the actions of the respondent in terminating it. The correct approach in relation to procedural fairness in unfair dismissal cases has been stated by the Court in a number of cases, including Abboud, Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37; Starr v Commissioner of Police [2001] NSWIRComm 226; and Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122. Failure to follow an appropriate procedure may result in a dismissal being harsh, unreasonable or unjust; but not every failure of a procedural kind will warrant the intervention of this Court.

16 There are many cases where findings relating to procedural fairness will be critical to the essential elements of the case, particularly in the context of allegations of serious misconduct. In those cases, the employer bears the evidentiary burden of establishing a proper basis for summary dismissal for misconduct: see ( Pastry Cooks Union v Gartrell White (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1996) 72 IR 257 at 260). Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd provides the following graphic illustration of the manner in which a denial of procedural fairness can cast real doubt upon or taint the finding of serious misconduct and can indicate the need for real caution in evaluating a respondent employer's case: [114] Thirdly, the dismissal was harsh, unreasonable and unjust due to the procedures adopted by the club in terminating the appellant. Notwithstanding that at all relevant times the appellant knew the general nature of the allegations against her, there was, in reality, a deprivation of any proper "opportunity" (to use the language of s 88(b) of the Act) to make out a defence in relation to the allegations made against her, or to give an explanation of the conduct which was said to warrant dismissal. Whilst the respondent appropriately interviewed the appellant and invited her to provide an explanation, she was deprived of the actual records to which the allegations related. This failure so fundamentally affected the appellant's opportunity to give an explanation or provide a defence as to effectively, if not formally, deny that right absolutely. [115] This denial of access to the club records amounted to a substantive failure to provide such an opportunity and thereby was a substantially unfair procedure. To the extent that illustration of this is necessary, this was demonstrated by the fact that, in a sense, the whole process in this case miscarried in consequence of it -- leading not only to the appellant's summary dismissal, but also to the lack of assistance afforded to the Deputy President in hearing the matter, in that his Honour received only limited submissions or analysis because of the lateness of the receipt of the records in question. [116] By virtue of the respondent's unfair investigation procedure, from the outset the appellant was placed in a false position in relation to the allegations. She was, in effect, invited to incriminate herself by providing information to explain conduct which purported to have been her own, but in circumstances in which it was not effectively possible for her to confirm that the anomalies for which she was deemed responsible were even within her command.

17 In some cases, a denial of procedural fairness may give rise to a conclusion that the contract was unfair simpliciter . In Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 389, the Full Bench stated: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Frew v Australian Airlines; Burke v McGirr (1995) 185 CLR 410; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1995) 87 IR 57; Abboud v the State of New South Wales (Department of School Education) (1992) 92 IR 32; Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and D&R Commercial Pty Ltd v Flood (2002) 113 IR 344. 206 In view of my conclusions in this matter, it is unnecessary for me to deal with the principles applicable to the practicality of reinstatement or re-employment. Apprehended Bias 207 As I understand Mr Dixon's case, the Commission need not go so far as to find that Mr Proops and Mr Bowden were actually biased against the applicant. Nor does he submit that they were necessarily motivated by bad intentions. By the way, I think the applicant has the opposite view. Rather, he squarely put that there only need be an apprehension of bias to be found which rendered the TIP as unfair and therefore, the decision to terminate the applicant's employment, based on a biased and unfair process, must also be substantively unfair. 208 There was no dispute about the relevant legal test to be applied in circumstances where there is a claim of apprehended bias. Both Counsel were ad idem in that respect. In Crewdson v Department of Community Services the Full Bench expressed the principle in the following passage: 3 The test which governs such application is well-known and has been referred to in recent years by the High Court in Johnson v Johnson (2000) 201 CLR 488 and by Wright J, President in this Court in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65: whether a fair-minded lay-person might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to make. 209 This decision in Crewdson v Department of Community Services was obviously concerned with an allegation of apprehended bias brought against a Judge. Nevertheless, I agree that the principle is applicable to administrative decision makers, which would presumably include Mr Bowden and Mr Proops; although strictly speaking they were not the decision makers - Mr Urry was. 210 In my view, the following passage from Minister for Immigration and Multicultural Affairs v Jia Legeng at paras [71] and [72] is apposite to the present circumstances: ..The precise content of those adjectives, in the context, is not clear. Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

[72] The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson . The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected. 211 While I agree with Mr Dixon that by using the word 'might' rather than 'must' in the definition of what constitutes apprehended bias, the test is not a strict one. However, as I shall later develop, I am unable to conclude that Mr Proops or Mr Bowden were 'so committed to a conclusion already formed as to be incapable of alteration'.

212 Before dealing with the evidence in this case, it is necessary to make the following observations and findings as to the nature of the evidentiary case advanced by Mr Dixon on the applicant's behalf. It was Mr Dixon's submission that the Commission is not required to make findings as to the truth of the complaints made by the applicant against Mr Proops, Mr Bowden, Ms King and to a lesser extent, a number of other named persons associated with the history of the matter. It followed, as the argument was developed, that the applicant need only to have made the allegations, reported them and believed them, for her to be justified in asserting that the TIP process was fundamentally flawed and procedurally unfair, because of Mr Proops' and Mr Bowden's involvement in it. Mr Dixon even put that the making of the allegation may have been brought about by the applicant's paranoia or other unreasonableness. The proposition was further demonstrated, it was argued, by the applicant's willingness to be transferred to another school and, after a period of settling in, to undertake a fresh TIP.

213 In my opinion, the contention that the Commission need not make findings as to serious allegations made against senior teachers, in a case such as this, cannot be accepted for one moment. I find Mr Dixon's submission to be both misplaced and totally unrealistic. Moreover, I consider there to be a real disconnect between Mr Dixon's submissions and the evidence in the case advanced on her behalf. I would make the following observations to ground my opinion in this regard: 214 Firstly, even without putting any gloss on the allegations, they include, inter alia;

· violence; · bullying; · intimidation and extreme harassment; · homophobia and misogyny; · throwing papers, pens, pencils and a cup and saucer at the applicant; · chasing her through the playground; and · public humiliation and abuse.

There is not a whisker of doubt that these serious allegations lay at the heart of the applicant's claims that she had been unfairly treated by a biased and contaminated process; indeed, the thrust of her evidence was that she was only ever questioned about her teaching performance, and later put on a TIP, because it was 'retaliation' for her having made serious complaints about Mr Proops and Mr Bowden.

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.

228 Secondly, in my opinion, it was perfectly understandable and a natural human response for Mr Bowden and Mr Proops to be upset by serious allegations made against them. After all, they considered the allegations to be totally untrue and vexatious, as do I. However, it doesn't necessarily follow that the mere fact of the allegations being made would have automatically ensured their bias towards the applicant. Simply being upset about allegations you know to be false doesn't mean you are biased towards the alleger in a professional sense. Something more must be in evidence. These were two highly professional educators with 32 and 38 years experience respectively. There was no evidence that they had ever before behaved in the manner alleged. Indeed, the evidence is that they had always acted professionally and were well respected. I have no reason to doubt it. 229 Thirdly, one way of considering the conflicting evidence is to adopt the approach of the High Court in Briginshaw v Briginshaw, of the 'inherent unlikelihood of an occurrence of a given description' and that 'there is a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct': See Neat Holdings v Karajan Holdings Pty Ltd (1992) 110 ALR 449. Let there be no doubt that the applicant accused, and continues to accuse, Mr Proops of criminal behaviour, including assault. In my view, even without the evidentiary factors I have had regard to, there remains the inherent unlikelihood of the incidents occurring as described by the applicant. 230 Fourthly, notwithstanding Ms Humphrey was not available for cross-examination, her version of the incident of 9 June 2006, accords entirely with Mr Proops' version, in that he had been seated and appeared calm throughout and the applicant was doing most of the talking. Mr Bowden's evidence was that Ms Humphrey had told him the applicant was standing over Mr Proops who was seated and appeared calm. There is no suggestion that Ms Humphrey had colluded with Mr Proops as to what evidence she would give and no basis for concluding that she had any ulterior motive for giving the evidence she did. To the extent it is corroborative of Mr Proops' version of events and Mr Bowden's evidence of what he was told, I need not take her evidence any further than that. 231 Fifthly, there was no explanation as to why the applicant would wait some weeks before making a formal complaint (25 July 2006) about Mr Proops and Mr Bowden, given Mr Bowden had told her the procedure and provided proforma documents for her to complete on 14 June 2006. The chronology becomes very relevant here. This is particularly so given it was the applicant's evidence that she had asked Mr Bowden, at least three times a week before 13 June, what he was doing about the Proops' complaint. The applicant was advised on 17 July she was required to attend a meeting to discuss her being placed on a TIP. The meeting didn't occur and she was advised on 12 July of a rescheduled meeting on 24 July. Again, that didn't occur because she was on sick leave from 21 to 28 July. The timing of these events is a powerful indicator which demonstrates that, on the balance of probabilities, the real motivation for filing her formal complaints was the fact that she was soon to be placed on a TIP, with Mr Proops as her supervisor. I believe she had held the formal complaints in 'reserve' in case matters proceeded as they did. 232 Sixthly, despite the applicant frequently and consistently maintaining the allegations against Mr Bowden and Mr Proops, (confirmed when Mr Dixon said that she did not shy away from the allegations), there was no appeal from Ms Best's findings that the allegations were unsubstantiated. I do not consider the applicant's submissions to Mr Urry constituted an appeal of Ms Best's findings. In the absence of an appeal, that should have been the end of the matter. Plainly, the applicant didn't think so, and still doesn't think so. 233 Perhaps the most damning aspect of the applicant's evidence, which convinces me that she was an unreliable witness, was her evidence about what Mr Urry had said in the meeting of 9 August 2007. Despite Mr Dixon's anxiousness to avoid the issue, in my opinion, it goes to the heart of the applicant's credibility in this case. 234 Mr Urry emphatically denied saying the words the applicant attributed to him. I have absolutely no doubt that Mr Urry did not say that 'the fairest thing would be to place Jane in another school and after a settling period for her to go on another Teacher Improvement Program' in the meeting of 9 August 2007, or at any time. This finding is based on the following observations: 235 Firstly, it makes absolutely no sense why Mr Urry, as the final decision maker, would say one thing and do the complete opposite i.e. decide to dismiss the applicant. There is no question that he had the power to do either. In his evidence, Mr Urry made the obvious point, that if this was his view, there would have been no point to the meeting, or for it to continue, because the next step would have been to arrange the applicant's transfer. In any event, Mr Urry had not made any decision at that time, nor was he able to, according to the procedure. Indeed, the applicant seemed to accept that he hadn't made a decision at that time when in her subsequent undated 'show cause' response submission she said: I reiterate, that you said, you had, honestly, not made a final decision, on dismissal. Therefore as I mentioned in the meeting, I appeal to you for 'a fair go' - to be transferred to another school without the supervisors I complained about and after a reasonable - settling-in period to be placed on an Improvement Program without the bias and conflict of interest that I experienced from the last school. 236 Secondly, at no time immediately after the meeting did the applicant assert what she now says Mr Urry had conceded. It beggars belief that if the applicant really believed what Mr Urry had said what she now claims, why she did not protest immediately or shortly thereafter. 237 Thirdly, the above quote plainly indicates, it was the applicant, and not Mr Urry, who suggested the transfer and another TIP. This is entirely consistent with Mr Urry's evidence in that he had told her to put the request in her submission for him to consider.

238 Fourthly, Ms Stapleton's typed up version of the notes of the meeting indicate that 'RC' had said: 'program of improvement should occur in another school - due time to settle in'. 'RC' being Mr Carter. It was unfortunate that Mr Carter could not be traced to give evidence in these proceedings. Ms Stapleton believed the reference to Mr Carter to be correct. Of course, it makes perfect sense that the Federation official representing the applicant, would make such a plea. I believe it was he who did so. Mr Dixon speculated that perhaps Ms Stapleton had mistyped 'RC' for 'RD' (being Regional Director, Mr Urry). However, this is a very long shot; which is unsustainable in light of all the other contrary evidence. 239 Fifthly, this evidentiary conflict may never have come in to sharp focus had it not been for the applicant's oral evidence that she had witnesses to confirm what Mr Urry had said - her support person, Ms Cawdron, could not only corroborate her version of what Mr Urry had said, but had contemporaneous notes to prove it. The applicant said that a statement for these proceedings had been prepared by Ms Cawdron. When the Commission asked where this statement was and insisted on Ms Cawdron being called to give evidence, Mr Dixon was understandably reluctant to do so. I came to understand why. This implies no criticism of Mr Dixon, because I believe he knew the risk Ms Cawdron's evidence would bring to his client's case. 240 In my view, Ms Cawdron's evidence to the Commission was, at best, misleading, but more likely, dishonest. She produced a pink manila folder on which she claimed were her contemporaneous notes of the meeting. On the right hand side, were what appeared to be sequential notes of pertinent comments made by the attendees during the meeting. At about point six of the page are two asterisks referrable to what had been said, and recorded on the left hand side of the folder. The crucial quotes were in a heavier shade of pen. Squeezed in at the same point of the asterisks in the sequence were the words 'fair go' - the same words the applicant used in her subsequent letter to Mr Urry. In cross-examination, Ms Cawdron's explanation was that it was her practice to make short notes and then asterisk important points on the other side from which she was writing and separate to the sequence. She explained the heavier pen shade, as her other practice of pressing harder on the left hand side of the page. In my opinion, these explanations were utter nonsense and cannot be believed. Any objective observer would have little doubt that this document had been tampered with and was intended to convey a false version of the conversations at the meeting. I believe that the additions on the left hand side were added much later than 9 August 2007, and probably very recently, at the applicant's suggestion or connivance, and that a different pen was obviously used. It may well be that the applicant had been advised not to rely on Ms Cawdron's statement, but she had not followed the script because she was so keen to discredit Mr Urry. In any event, the only reasonable inference one can draw from this, is that when the applicant saw the minutes of the meeting taken by the note taker, she took a calculated gamble to deliberately and falsely claim the reference to 'RC' as being 'RD' and therefore the notes would corroborate her version of the conversation. In this deception, she has been regrettably aided by her friend, Ms Cawdron. 241 Before leaving the question of the allegations against Mr Bowden and Mr Proops, it cannot be overlooked that the applicant's claim that the allegations were never addressed, or inadequately addressed, by the respondent is simply, incorrect. The allegations were investigated by Ms Best and found to be unsubstantiated on 29 September 2006, two months prior to the commencement of the TIP. In other words, at the time of the TIP, there were no outstanding complaints or allegations against Mr Bowden or Mr Proops. The fact the applicant didn't like the outcome is not the point. She still doesn't accept the outcome. Mere dissatisfaction with the outcome cannot be a basis for claiming that the allegations were never investigated, particularly in light of the overwhelming evidence to the contrary. The Teacher Improvement Program (TIP) 242 There is no question that most teachers placed on a formal TIP will find the experience very stressful. Similarly, those involved in offering assistance in supervising, assessing and providing feedback may also find the experience uncomfortable, even stressful. There can be no argument that all direct parties to the present matter have experienced varying degrees of stress. Unfortunately, there can be no avoiding the circumstances which give rise to a TIP and the consequent necessity to have observers in the classroom during the process. It is why a TIP is a last resort and that prior to any TIP, a period of informal support and guidance is offered. That is exactly what occurred in this case. No one likes to be criticised or have observers watching their work, particularly in circumstances where disciplinary action might be a possible outcome. It needs to be said, however, that most professions have certain standards which are required to be met by periodic assessment or review. Most professions have procedures in place to address complaints about any perceived deficiencies or failures in an employee's performance of their duties. Nevertheless, the point is that professionals are expected to act professionally and engage constructively in any remedial or assessment process. Stress is a normal and everyday fact of life in any profession. The measure of a true professional is how one copes with stress in the workplace. Likewise, stress can manifest itself, in many ways, and to varying degrees. However, it can also be used as a deflection of any criticism. Without prolonging these pontifications much longer, I cannot avoid mentioning that, in my opinion, it has become far too common these days, for an employee whose performance is under review, to claim that he/she is suffering stress or depression, in order to avoid criticism of their performance. I hasten to add that stress is a genuine and serious issue in the contemporary workplace. However, not so in this case.

243 That said, I do not believe the applicant had a genuinely held belief that the TIP process was biased and unfair. Had the applicant not embarked upon a calculated, indeed a clever and bitter campaign, to do everything and say anything to avoid contributing in a professional and co-operative way with the TIP, (with the objective of scuttling it), then I might have been inclined to give her the benefit of the doubt as to whether she truly believed the process was biased and unfair. However, there are so many contrary factors, including as I have found, a disposition to fabricate events, which point entirely to the only conclusion I could come to in this matter. Before doing so, I make the following additional observations about the applicant's conduct. 244 Dealing firstly with the medical evidence - I have serious reservations as to the applicant's claims that she was so stressed by the harassment and bullying that she needed to consult a clinical psychologist. As I have said, there was no basis to such claims. Nevertheless, I am troubled by the medical evidence and find it unhelpful for a number of reasons. The clinical psychologist reported that the applicant was not on any prescribed medications, nor did she wish to undergo any psychological therapy for her alleged stress related condition. It seems curious to me that if the applicant was as sick as she maintained, that neither her GP, nor any treating specialist recommended, nor did she seek medication to relieve both the alleged physical and psychological manifestations of her illness. Moreover, if a patient was so stressed as to report 'suicidal ideation', why wouldn't the psychologist have recommended, indeed insisted on, some immediate and ongoing therapy? Perhaps more significantly though, was that none of the medical evidence, either expressly conclude, or impliedly suggest, that the applicant was unfit to undertake her responsibilities under the TIP. I note also that periods of sickness were for short periods. In addition, the applicant filed a workers' compensation claim for a stress related illness. That claim was rejected by the insurer and I was informed that no appeal had been lodged against that rejection. 245 Two separate incidents of serious violence were said to have been experienced by the applicant. The first involved an alleged crazed attack by a scissor wielding student during her time in the 'flying squad' and another, during her TIP, involved an alleged violent and drunken assault by a father on his child, which she claimed Mr Bowden had witnessed and ignored. She claimed both incidents deeply affected her, resulting in recurring nightmares and panic attacks. Not once are these two incidents mentioned by the applicant until she was asked by Mr Urry in July 2007 to show cause why she shouldn't be dismissed. Significantly, in my opinion, given the traumatic effect she said they had had on her, these incidents are not referred to at all in her consulting psychologist reports - as one might reasonably have expected. 246 In her purported response of November 2007 to Mr Schipp's notice of consideration of her being placed on the NTBE list, the applicant, for the very first time, mentions that 'I bumped my head on the wall and to be sent out of the Arncliffe office to get into my car in this state was total lack of duty of care and against OH&S Policy and Safety Regulations'. Nowhere is this incident mentioned until this time. 247 In all the early support meetings with Mr Bowden and throughout the TIP, the applicant would attempt to deflect attention from her teaching performance to the complaint against Mr Proops. It is plain, from at least the middle of March 2006, that the only answer she had to the concerns about her teaching performance was a compassionate transfer to another school. Some of the means she used to deflect discussion of her teaching performance included: · she complained about being mentored with Ms Savvopoulos; · despite receiving letters informing her of what particular meetings were to discuss, she claimed she was called to meetings under false pretences; · she objected to minutes of meetings, if the dates were incorrect or had not been signed; · she refused to attend meetings to discuss her teaching performance, without a support person present, or would make excuses why she couldn't attend; · she claimed it was improper that a letter advising her of a meeting was handed to her by a child when she had actually sent the child to collect her mail from her pigeon hole; · she claimed breaches of her confidentiality because minutes of meetings were put on the in-house email system and documents were left lying around the photocopy machine; · at the 9 August 2006 meeting, she argued about which Federation representative was representing her and claimed the meeting became confused because no one knew who was representing who; · she first sought that the TIP be transferred to Term Four. In fact, that was what occurred; · when assessments gave her positive feedback she claimed this meant she was not criticised for her performance; · she wouldn't acknowledge minutes of meetings or feedback by refusing to sign them and claimed registered letters were not received; · she rejected the Federation's advice that the TIP could proceed;

· she objected to being put on a TIP because one or two lessons were said to be satisfactory and she was told her performance was good; · she objected to the Federation signing off on her behalf about the TIP being able to continue, despite the correct and agreed process having been followed; · she instituted a workers' compensation claim and did not appeal its rejection; · she instructed new lawyers around October 2006, to assist in stopping the TIP from commencing; · she took sick leave immediately after the TIP was commenced; · she claimed Ms Best's investigation of the complaints against Mr Proops and Mr Bowden was 'one sided', because she hadn't been interviewed; · as soon as the independent observer, Ms King made critical comments of her performance the applicant claimed Ms King was contaminated by the bias of Mr Proops and Mr Bowden and had collaborated with them. She even claimed Ms King was homophobic; · she would use anger and aggression to challenge the views of the assessors and generally engage in an unco-operative and belligerent attitude to any meetings to discuss her teaching performance. 248 As will be seen from the above, the applicant had a bizarre and distorted view of the TIP which was completely irrational and unreasonable. On the one hand, any hint of criticism was met with a barrage of angry claims of bias, unfairness or unsupported allegations of homophobia, bullying, harassment and corruption. From her various handwritten contributions to the process, including her comments on Mr Proops' feedback of 13 March 2006, a 115 page response to the Principal's Report and submissions to Mr Urry, it is plain what the applicant's priorities were and that she would not be deterred. I note in particular, that in a last ditch effort to convince Mr Urry of how unfairly she had been treated, she made the extraordinary unsupported claims that during her time on the 'flying squad' she had been subjected to abuse on a daily basis for 18 months. She even blamed the Department for a car accident she had during this time because she had to drive to a school on roads which were unfamiliar to her! 249 On the other hand, any words of praise or encouragement, or no criticism at all, including Mr Bowden's refraining from criticising her in the presence of another teacher, were regarded by her as proof that the TIP was unnecessary, her performance was good and the TIP was retaliation for her complaints against Mr Proops and Mr Bowden. It is the same confusing logic as when the applicant welcomed Ms King's early involvement in the TIP while she was sympathetic to her, but then denounced her with the same various allegations when she made critical comments. Similarly, the applicant was critical of the Federation's involvement, even accusing it of being an advocate for the Department's position, yet it nicely suited her to use the Federation's letter in which the General Secretary had described her TIP as unfair. (As an aside, I would observe that the Federation has been called many things, but I can't imagine it ever being accused of being an advocate for the Department's interests against those of its members.) In any event, I do not see how the Federation's letter assists the applicant's case in any way. It was advanced in some perverse way, as plainly demonstrating that the TIP was unfair, just because Mr Irving said so. With respect, Mr Irving was doing no more than subjectively advocating the position of his member, as any Union Secretary would be expected to do. The letter is evidence of no more than that. To take it to a higher plane of proof, positive the applicant's case was right, is to completely misunderstand the role of the Federation in representing its members.

250 In my opinion, the applicant's offer to transfer to another school and undergo a second TIP was no more than a hollow and disingenuous gesture, designed, yet again, to avoid or postpone an inevitable assessment of her teaching performance. Interestingly, when the applicant first proposed a compassionate transfer there was no suggestion by her of undergoing a second TIP. It wasn't until the Federation's attempts to salvage her situation that the offer of undergoing a second TIP was made. Even so, it was conditional upon the applicant undergoing a period of 'settling in'. In my view, to transfer the applicant to another school, would do no more than transfer the problem of the applicant's belligerent and unco-operative attitude to another set of unsuspecting supervisors. That such an outcome is very likely, is no better demonstrated than by the applicant's emphatic insistence that her teaching performance was really not open to criticism. Any suggestion or genuine criticism was seen by her as 'nit picking' and unfair. In any event, I consider it an entirely appropriate and sound educational proposition that a compassionate transfer should not ordinarily be approved while identified performance issues are being addressed through a TIP. 251 There can be no substance to Mr Dixon's submission that the applicant was not offered remedial assistance. Indeed, this submission does not sit well with the applicant's evidence that her performance was good and she didn't warrant a TIP. She cannot have it both ways. In any event, it is plain that before the TIP commenced in November 2006, there had been months of informal advice and assistance offered, some of which she accepted, but most she didn't, particularly if it came from Mr Proops. The evidence is overwhelming in this regard and included the following. She was: s provided a copy of the programming policy, induction booklet, components of a successful program sheet, book work policy, TARS policy and PRC protocols. s provided assistance on how to conduct successful parent/teacher interviews. s provided assistance in programming, assessment, lesson planning, and use of technology. s released to participate in staff development. s provided extra resources ie books/classroom supplies. s provided feedback by supervisor/principal with written feedback regarding programming. s provided feedback on bookwork, homework, use of voice, standards and modelling. s provided feedback on daybook.

I would add that there is no obligation on the Department to offer remedial training during a period of non teaching secondment, particularly after a sustained finding of poor teaching performance. 252 The applicant demanded from the Department a strict and meticulous adherence to procedural technicalities. She criticised documents which were undated, wrongly dated or unsigned. Yet, when it came to her own compliance with relevant and reasonable timelines, the same standards were not self applied. Evidence said to be crucially relevant to her case simply wasn't produced. A number of examples serve to demonstrate the point.

a) Where were all the teachers, parents and students who she claimed were either witnesses to the incidents of bullying and harassment or could vouch for her competence as a teacher?

b) When I made inquiries as to who could verify what she said Mr Urry had conceded at the meeting on 9 August 2007, she claimed that her support person could do so, and not only that, she had made contemporaneous notes of what he had said. If Mr Urry's concessions were so crucial, it is curious indeed, that until the Commission insisted on Ms Cawdron giving evidence, that the applicant did not even mention any corroborative witnesses in her statement. Perhaps not so curious, because it subsequently emerged that Ms Cawdron had recreated her notes and, as I have earlier said, gave false and misleading evidence to the Commission.

c) When the Commission asked if the applicant had replied within 14 days to Mr Schipp's notice of intention to place her on the NTBE list, the applicant coincidentally produced the next day a handwritten, undated and unsigned document riddled with simple spelling errors, claiming it to be the submission. The respondent said it had never received such a submission. It is my view that it is likely that the document was created very recently in order to falsely claim she had done all that was asked of her by the Department. Even so, the intemperate language in this document was hardly likely to invoke much sympathy from Mr Schipp. She boldly stated that she didn't trust his motives in putting her on the NTBE list. (Of course, he hadn't at that stage and hasn't since.) Moreover, not content with describing Mr Schipp's behaviour as 'totally immoral and criminal' and Mr Urry as 'dishonourable', she also attacked three named women in the office calling them 'bully girl henchmen' and also accusing them of harassing, bullying, injuring and mistreating her.

d) The applicant was asked by Ms Best on 21 August 2006, to give further details of her allegations against Mr Proops and Mr Bowden within five days. The applicant claimed she had sent further and better particulars, but had kept no copies. The respondent said it never received such a response and had nothing so described in its files. The applicant claimed a letter she wrote to Ms Best on 8 September was this response. Apart from it being some 18 days later, the letter continued in the same scurrilous and emotive vein. It did not do as Ms Best had asked. I am satisfied that the applicant was not telling the truth when she said she had sent further and better particulars to Ms Best. CONCLUSIONS 253 For all the foregoing reasons, I am firmly of the view that, at all times, throughout the informal support for the applicant and the TIP, both Mr Bowden and Mr Proops acted in a thoroughly competent, professional and reasonable manner. This was despite the obvious difficulties caused by the applicant's unwillingness to co-operate in meaningful and professional dialogue with them, her petty nit picking and her repeated attempts to scuttle the process. 254 There was no independent evidence that either of them had acted in a biased manner towards the applicant; indeed, the accepted evidence is all the other way. There was no evidence that they had prejudged the matter. They endeavoured, at all times, to ensure that the applicant was accorded procedural fairness throughout the process. In my opinion, a fair minded layperson would not have been able to identify apprehended bias in the meticulous handling, assessment and reporting of the various stages of the process. All of the correspondence and minutes, in calm and unemotive language, demonstrate a measured and professional approach was being applied by Mr Bowden and Mr Proops to very difficult and provocative circumstances. 255 Mr Dixon sought to derive some comfort for his apprehended bias submission from the evidence of Mr Bowden that he didn't trust the applicant. This admission, Mr Dixon put, plainly demonstrated that Mr Bowden could not have brought an independent and unbiased mind to the process. I would address this proposition in the following way. The full extract of what Mr Bowden said needs to be quoted to ascertain the proper context in which he said he didn't trust the applicant. It was as follows: Q. You accept, do you not, that during the process of, that prior to the initiation of the Teacher Improvement Program at the meeting of 8 August, Miss McMullen actually said to you straight out that she didn't trust you? A. Yes.

Q. And indeed, you didn't trust her? A. Um, I didn't trust her comments that, all the things that she may have said, yes.

Q. I am actually talking about whether you trusted her as a person generally. I am referring back to the need for you to take notes and treat her differently to other teachers. Did you trust her? A. I trusted her from a teaching point of view but obviously not a personal point of view.

Q. What does that mean, you trusted her from a teaching point of view? A. Well, from a professional point of view I believed I could work with her in the process, although there had been some lack of trust.

Q. Are you giving this evidence now, notwithstanding you say there was a complete destruction of the professional dialogue concerning matters relating to her teaching performance? A. Yes.

Q. Well, which is it? Could you trust her to the point where you could work with her? Or is your evidence that you had no ability to have a professional dialogue with her as a result of A. I trusted her to the point that I could work with her but at the same time there was the issue of whether or not she would make any further false accusations.

Q. So as a person, as opposed to a professional, as a person you didn't trust her? A. No. 256 In any event, there was nothing in the evidence to suggest that Mr Bowden was anything but helpful and sympathetic to the applicant's position. Extraordinarily, when she told him she was intending to lodge a formal complaint against him, his reaction was to tell her how to go about it and arrange for the proforma complaint documents to be given to her. Mr Dixon also submitted that Mr Proops could not have brought an impartial mind to the process, because he had said that the applicant would use any device to avoid being disciplined. In my view, Mr Proops was only stating the obvious. The comment does not demonstrate any subjectivity on his part. 257 Even if I am wrong about Mr Bowden and Mr Proops' involvement, it doesn't account for the fact that a third, independent person, arrived at the same conclusion - as did Mr Urry and two other independent reviewers. In other words, six senior officers of the respondent all arrived at the same view after a long and detailed process. As was said in Ainsworth and Another v Criminal Justice Commission at p 578: "It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness "

Of course, Ms King's involvement didn't suit the applicant's plans to derail the TIP by lodging false complaints against those she knew were her direct supervisors. Initially, Ms King was described as 'a breath of fresh air', until she criticised the applicant's third lesson. The air very quickly turned sour. It seems a fair assumption that the applicant had to think of a way to also discredit Ms King. What better way than to accuse her of collaborating with Mr Bowden and Mr Proops and also claiming she acted in the same bullying and harassing way. (She described Ms King in her response to the Principal's Report as 'angry', 'taunting', 'with a smirky, nasty smile' .) Mr Urry however, wasn't so easy to nail. He hadn't participated in the actual classroom assessments, although he was the final decision maker. More care and thought was needed with him. So, in a bizarre twist, the applicant now claimed the final decision maker was actually on her side when he had said 'the fairest thing to do was to transfer her to another school and undergo a second TIP '. This was obviously false as I discussed at paras 233 to 240. 258 As for the two independent reviewers, Mr Dixon submitted there was no evidence that they were aware of the applicant's complaints against Mr Bowden and Mr Proops. I assume the inference is that if they had have been, they might have formed the view that there was at least an apprehension of bias. I reject this submission. Mr Urry's evidence was that he had referred the files to the independent reviewers and they had found no flaw in the process. It is obvious that the reviewers must have known of the applicant's complaints. They were scattered everywhere in the various documents the applicant herself provided, including her 115 page response to the Principal's Report. Mr Dixon did not suggest, nor was it put to Mr Urry, that he had not provided the reviewers with the full copy of all the documents. Moreover, the evidence was that the applicant, in fact, had a meeting with the reviewers. Given her often stated views and objections to the TIP, I cannot imagine that she wouldn't have raised her allegations with the reviewers. 259 Here, it seems to me, lies the answer to whether the fair minded observer might entertain a reasonable apprehension of bias. Could it not be said that the two reviewers, having considered all of the material relevant to the process, and having interviewed the applicant, Mr Bowden, Mr Proops and Ms King, were the 'fair minded observers'? They not only found no flaw in the process, but had said: It was evident that both Mr Proops and Ms King had demonstrated a genuine concern for Ms McMullen's welfare and they had implemented the program fairly and effectively while providing adequate support for her. ... Clarification from the interviews indicated that correct procedures had been followed. 260 The case advanced by the applicant was primarily that the TIP process was biased and unfair and that any dismissal arising therefrom must logically also be unfair. That submission is rejected. Accordingly, there can be no basis for the Commission to conclude that her dismissal was unjust or unreasonable, either procedurally or substantively. I note that Mr Dixon, in the alternative, put that the applicant's dismissal was harsh, particularly having regard to the likelihood of her name being placed on the NTBE list. Having regard for all the facts and circumstances discussed in this decision, I am unable to conclude that the applicant's dismissal was too harsh an outcome. I am satisfied that this is so, having regard to both the specific requirements of s 5A of the Teaching Service Act and the authorities of this Commission, which demonstrate the primacy which must be given in cases such as this to ensuring that students have a right to be taught by competent teachers. 261 That said, I would recommend that if the applicant is prepared to give a written undertaking not to seek employment in a public school or TAFE in New South Wales, then her name should not be placed on the Department's NTBE list. However, if the applicant declines to do so, I make no further recommendation on this matter. It follows that the Department may then take whatever action it considers appropriate, in accordance with the relevant Departmental policies. 262 For the reasons discussed herein, application IRC 2055 of 2007 is dismissed.

Peter J Sams, AM Deputy President

Annexure A

8. Procedural Guidelines for Dealing with Unsatisfactory Performance

· persons permanently employed under the SASS Act or who are permanent employees of the TAFE Division of the Government Service to have their performance reviewed periodically;

· officers or permanent employees employed under the Teaching Service Act 1980 to have their performance reviewed at least annually;

· the performance review to be against established criteria;

· if following a review of performance the opinion is formed that the officer or permanent employee is not performing his or her duties in a satisfactory manner, a performance improvement program may be implemented;

· the person must participate in any such performance improvement program in the manner required by the program;

· the performance improvement program is to be on terms and is to be implemented for such period as the Director-General considers appropriate.

The Director-General will delegate his or her functions to deal with unsatisfactory performance to an officer who understands the process and has the resources available to him or her to carry out the delegated function.

Workplace managers are responsible for ensuring that officers or permanent employees under their control meet required work standards. It is important that officers or permanent employees who are not meeting the required standards have those issues addressed as soon as performance difficulties are identified.

Generally, unsatisfactory performance means not meeting agreed tasks, or timeframes or standards of work. The agreed standards can be in a work plan or in any other documentation. Any standard that is applied must be relevant to the officer or permanent employee's position description, duty statement or articulated criteria.

The following strategies should be implemented and referred to in dealing with instances of unsatisfactory performance:

· provide and adhere to induction and probation programs; · ensure there are clearly articulated work standards and performance requirements which are reasonable and attainable; · provide development plans to assist the officer or permanent employee to reach expected work standards; · ensure that there is a clear understanding of the work to be performed; · ensure training and development opportunities, both on and off the job, are provided; · remove barriers to effective performance.

In dealing with any instance of unsatisfactory performance the workplace manager should examine whether the following standard EEO measures have been implemented with respect to the officer or permanent employee:

· ensuring equitable allocation of work, acting in higher grade opportunities, if appropriate; · appointing officers and permanent employees on their ability to perform the job; · ensuring fair and equitable distribution of overtime and leave; · ensuring fair performance assessment and development.

8.3 Consideration of organisational and non-work-related factors

The workplace manager/supervisor must consider factors which may contribute to the unsatisfactory performance.

Factors contributing to poor performance may include:

· organisational factors (e.g. poorly managed restructuring; poor work and job design with subsequent lack of challenge in work; ineffective recruitment and selection resulting in a "mismatch" of people and jobs; inappropriate planning, resourcing and competing deadlines);

· management practices (e.g. inappropriate or unacceptable management approach; inconsistent application of performance standards; biases, changes in opinion or lack of care or commitment on the manager's part);

· training and development needs (e.g. inadequate induction and explanation of job role/responsibilities; insufficient skills, training, or experience to perform the duties and responsibilities of the position; unsupported introduction of new technology);

· poor communication between management and employees (e.g. inadequate performance evaluation and feedback);

· social factors (e.g. disruptive personality clashes within the work environment);

· inappropriate work environment (e.g. occupational health and safety standards not being met; direct or indirect discrimination or workplace harassment); and

· personal issues (e.g. lack of motivation or commitment; health or other family problems; drug and alcohol misuse).

Performance difficulties that are not work-related may require intervention or assistance by management, employee associations, an employee assistance provider, or external individuals or organisations. The cause of performance difficulties needs to be identified and appropriate strategies developed, including implementation of an improvement program, to assist the officer or permanent employee deal with identified poor work performance.

Unsatisfactory performance should be dealt with by the workplace manager/supervisor as soon as performance difficulties are identified. The nature of the unsatisfactory performance should be clearly articulated, with reference to examples. This enables the officer or permanent employee and the manager or supervisor to be clear about the issues.

Before implementing disciplinary action to deal with unsatisfactory performance, the workplace manager/supervisor must be satisfied that reasonable assistance has been provided to the officer or permanent employee through an improvement program to enable him or her to perform at the required standard.

The action taken in instances of unsatisfactory performance will be determined by what is reasonable in the circumstances including whether:

· the officer or permanent employee has key accountabilities or objectives that include performance criteria, standards and targets, and training and development plans;

· equal employment opportunities are available to the officer;

· organisational and non-work related reasons for unsatisfactory performance have reasonably been considered.

Disciplinary action is not the first choice in managing unsatisfactory performance, but may become necessary when performance is still unsatisfactory following an improvement program. Disciplinary action is only appropriate where performance remains unsatisfactory after the officer has been given a reasonable opportunity to improve his or her performance.

If the Director General is of the opinion that an officer or permanent employee is not performing in a satisfactory manner or to a satisfactory level he/she may decide to take remedial action unless the officer is a school principal in which case disciplinary action will commence.

The Guidelines are subject to the rules of procedural fairness as required by sections 93D(2) and (3) of the Teaching Service Act, sections 22F(2) and (3) of the Technical and Further Education Commission Act and sections 30(3) and (3) of the Education (School Administrative and Support Staff) Act.

· the opportunity to respond to the opinion of the decision maker that his or her performance is still unsatisfactory after remedial action (including an improvement program) has been taken and he or she has been given a reasonable opportunity to improve;

· a separate opportunity to make representations in relation to any disciplinary action being considered.

An officer or permanent employee the subject of these Guidelines should be provided with a copy of these Guidelines.

The decision maker may seek advice from relevant "experts" to assist in forming a view as to how the matter might proceed. Advice can be sought from EPAC or the relevant human resource manager.

Dealing with unsatisfactory performance requires a staged process which is transparent, consistently applied and has regard to the particular circumstances of the case.

Improvement of performance and job satisfaction is the primary goal. Whilst remedial action will usually provide the desired results, it may be necessary to proceed with disciplinary action if the identified standards are not met and performance is still unsatisfactory. The process should also have regard to any relevant written documentation that may be in place.

Staff have a right to regular feedback about their performance.

The key stages for addressing unsatisfactory performance are:

· early intervention and informal counselling and support; · undertaking a performance improvement program; · undertaking disciplinary action or remedial action.

The primary responsibility for performance management is the officer or permanent employee's manager/supervisor. Early and effective informal counselling in most cases should address an unsatisfactory performance problem. It is only if action under this stage, has failed to rectify the unsatisfactory performance that consideration needs be given to involving the subsequent stages. The officer or permanent employee should be given reasonable verbal or written notice of the time, place and purpose of the proposed informal counselling session.

· outline the purpose of the discussion; · clarify expectations.

Early and effective informal counselling in most cases will address a work performance problem and inform the employee that their poor work performance is unacceptable.

· confirm the standards and explain how the officer or permanent employee's performance has differed from those standards by reference to the employees work examples or other relevant documentation;

· outline what she/he considers to be the applicable standards and explain how the officer or permanent employee's performance has departed from that standard with reference to the officer's work examples or other relevant documentation;

· provide an opportunity for the officer or permanent employee to respond to the manager's performance concerns;

· advise the officer or permanent employee of her or his right to use the Department's dispute resolution procedure if there is a disagreement.

The outcome of informal counselling should be agreed by the officer or permanent employee and their manager/supervisor. If the officer or permanent employee disagrees with the manager/supervisor's views on their work performance and/or proposals to improve work performance, they are to be informed of their right to use the Department's grievance and dispute resolution procedures. Any process for the management of performance would continue whilst the officer's grievance is considered and resolved.

Where there is no written correspondence following informal counselling, a diary note shall be made. The manager will advise her/his supervisor when informal counselling is being taken.

Early and effective informal counselling in most cases will address a work performance problem and inform the officer or permanent employee that their poor performance is unacceptable.

While it is always open to a workplace manager/supervisor to informally address performance issues with an officer or permanent employee, the Department has established processes for formally addressing unsatisfactory performance, should informal processes of support and remedial action not be successful. These are:

· Teacher Improvement Program · Principal Improvement Program · Procedures for Managing School Based Non Teaching Staff Identified as Having Performance Difficulties · Schedule 1, Performance Agreement, CEOs' Award · Procedure for Managing Unsatisfactory Performance (Staff employed under the TAFE Commission Division of the Public Sector Employment and Management Act (PSEM) 2002)

The procedures outlined in the above documents should be followed when considering the first two stages for addressing unsatisfactory performance. If at the end of a performance improvement program the officer or permanent employee's performance is assessed to be satisfactory, no further action is required other than the usual periodic reviews. Annexure B TEACHER IMPROVEMENT PROGRAM

1. Principles
2. Responsibilities
3. Leave
4. Applying for Transfer or Promotion
5. Resignation and Retirement
6. Dispute Resolution Procedures
7. Overview of the Procedures for Dealing with Teachers who are placed on a Teacher Improvement Program
8. Procedures to be Implemented at the School when a Teacher is placed on a Teacher Improvement Program
9. Implementation of a Further Support Program
10. Support to be provided to Teachers who are placed on a Teacher Improvement Program
11. Referral for an Independent Review

These procedures and time lines must be implemented at any time during the school year where a principal has identified that a teacher is experiencing difficulty with his or her teaching performance.

These procedures apply to all classroom teachers (except probationary teachers), and executive staff other than the principal who are identified as experiencing difficulty with their performance. Where a principal is identified as experiencing difficulty, the school education director will undertake the responsibilities and actions outlined in the document Performance Improvement Program for Principals (PIPP).

A key focus of these procedures is the provision of support to assist teachers to improve their performance. The implementation of these procedures will be supported by training.

Another element of these procedures is that documentation to support the process and its outcome is developed on an ongoing basis, and that the teacher is provided with the documentation as it is developed and given the opportunity to provide their comments.

The Department of Education and Training is committed to ensuring that it has efficient teachers who are skilled and committed to meet the needs of students, schools and the needs of the public education system. Basic principles underpinning this commitment are:

· Students have a right to be taught by competent teachers. · Teachers are responsible for performing their duties efficiently and competently. · Principals are responsible for dealing promptly and fairly with teachers who are experiencing difficulties with their teaching performance. · Teachers have the right to support throughout these procedures. · The school is the most effective environment in which to foster teacher improvement. · The Department of Education and Training has a responsibility to provide appropriate support and to take appropriate action, including dismissal, when it is evident that a teacher's performance has failed to improve following the implementation of an improvement program. · Once a teacher has been placed on an improvement program it is in the interest of all parties that the matter be resolved in accordance with the principles, responsibilities, procedures and timelines in this document.

When implementing these procedures all Department of Education and Training officers must act in a manner consistent with the principles of procedural fairness.

· The teacher's right to be informed by the principal about any difficulties the teacher is experiencing in their teaching performance and how the issues will be addressed; · The teacher's right to be given a copy of these procedures when they are first informed of the difficulties in their teaching performance; · The teacher's right to be heard, which includes the right of the teacher to put their views on the matter and respond to the difficulties identified; · The teacher's right to impartial decision making including:

• the right to impartiality in all phases of the process;
  • the right to an absence of bias in the decision maker(s); and
• the right to know the explicit action that will be taken. · Officers or persons supporting and making decisions about a teacher who has been identified as experiencing difficulties in their teaching performance must act justly and be seen to act justly. · The procedures provide for an independent review of decisions by a principal to recommend disciplinary action where a teacher's performance has failed to improve following the implementation of an improvement program.

Teacher efficiency is defined as a level of performance that is required for the position held.

In determining the minimum level of satisfactory performance of a teacher, principals are to apply the following standards:

· The teacher knows their subject content and how to teach it to their students · The teacher knows their students and how they learn · The teacher plans, assesses and reports for effective learning · The teacher communicates effectively with their students · The teacher creates and maintains a safe and challenging learning environment through the use of classroom management skills · The teacher continually improves their professional knowledge and practice · The teacher is an actively engaged member of their profession

Teachers who fail to meet the required level of performance disadvantage the education and welfare of students and can impact on the work load and morale of colleagues. Action to improve efficiency is essential. This is a shared responsibility of the teacher, executive staff and the principal. If a teacher fails to respond adequately to a structured improvement program the employment of that teacher may be terminated.

It is important to remember that teachers may have difficulties which affect their efficiency for a number of reasons including any or all of those listed below:

a) professional problems including classroom management, teacher student relationships, planning, communicating;

b) school management, organization and system shortcomings;

c) personal difficulties being experienced both within and outside the school. Principals should be both sympathetic and take care to understand the reasons for personal difficulties experienced by members of their staff; and

d) health problems. Where a teacher's difficulties in their teaching performance might be related to a health problem, fitness to continue teaching may be determined by referral to HeaIthQuest. (See Section 10.2 of the Teachers Handbook for further information about referral to HeaIthQuest).

If any of the issues in (b), (c), or (d) are identified, strategies to address these issues should be developed and implemented prior to or concurrent with the implementation of an improvement program.

1.4 Relationship to Teacher Assessment and Review Schedule

While a teacher's efficiency can be questioned at any time during the school year, all teachers will have their efficiency assessed annually through the Teacher Assessment and Review Schedule (TARS). The procedures at 7.1 must be implemented before a teacher can have their efficiency identified as causing concern on TARS.

It is necessary to distinguish between failure to meet the required level of performance and misconduct. Misconduct may be a single incident which can be proved or disproved. One incident of a teacher having difficulty does not prove that the teacher is not meeting the required level of teaching performance but simply shows that he or she has experienced difficulty once.

Whilst misconduct can be an isolated or specific event, failure to meet the required level of teaching performance is a pattern of behaviour. Misconduct may require a prompt disciplinary response, in contrast to the process for managing teachers who are experiencing difficulties with their teaching performance which is a more comprehensive and developmental process.

The Department of Education and Training is responsible for providing students with a range of opportunities to develop the knowledge and skills to take their place as capable and responsible citizens. This includes providing quality teaching, effective management and positive, safe learning environments.

The Department is committed to providing a safe working environment for teachers and for providing training and development opportunities to assist them in providing a broad range of educational opportunities for students.

The Department has a responsibility to provide appropriate support and to take appropriate action, including dismissal, when it is evident that a teacher's performance has failed to improve following the implementation of an improvement program.

The Department also has a responsibility for providing support mechanisms, such as the Employee Assistance Program, to assist staff who may be experiencing problems that are impacting on their performance.

Principals are responsible for the provision of educational leadership in the school. This includes the provision of structured induction programs, professional development opportunities and the availability of appropriate resources, including development programs and advisory, supervisory and support practices, particularly for teachers experiencing difficulties with their teaching performance.

Principals have an ongoing accountability for the supervision of teachers' work and the identification, at an early stage of difficulties teachers may be experiencing in their teaching performance and determining whether teachers meet the required standards. Decisions about whether teachers are performing at the level required will be made in the context of the professional judgement exercised by principals and executive staff.

In fulfilling their responsibility for the leadership and management of staff in schools, including dealing with instances where teachers are experiencing difficulties with their teaching performance, principals have a particular responsibility to:

· ensure the performance of teachers is monitored on an ongoing basis and appropriate feedback is provided; · properly inform teachers, who have been identified as experiencing difficulties with their teaching performance, about these procedures and time fines and of any statements or decisions arising from the procedures which affect them; · ensure the incorporation of the standards required to determine satisfactory performance for a teacher on an improvement program; · clearly identify the area/s for improvement and advise the teacher of the expected standard; · ensure that teachers, who have been identified as experiencing difficulties with their teaching performance, receive guidance and support through a formal negotiated and documented ten week teacher improvement program (See Section 10 for further details of support available); · ensure that teachers have the opportunity to respond to statements or decisions arising from the application of these procedures and properly consider such responses; · prepare all relevant documentation and refer a case, as appropriate for independent review; and · determine whether the teacher meets the required standards.

In performing their duties efficiently and competently, teachers have a particular responsibility to:

· assess and enhance their own performance; · seek assistance from colleagues, including executive staff, if they are experiencing difficulties; · participate in a ten week teacher improvement program (and the further program of up to six weeks if appropriate) designed to assist them to improve and overcome any difficulties in their teaching performance; · provide assistance to colleagues experiencing difficulties, in the context of a negotiated improvement program.

Teachers are expected to participate in the negotiated improvement program within the time frame specified. Should it be necessary for teachers to take leave during the period the following section clarifies the provisions to apply.

Teachers who are sick whilst on an improvement program are able to apply for sick leave in accordance with the sick leave provisions contained in Section 5.10 of the Teachers Handbook.

Teachers should be aware however, that if they take periods of sick leave during an improvement program, on the teacher's return to work the process will resume from the point it was at before the teacher started sick leave. (In some instances the return to work may be supported by a rehabilitation program).

A teacher who takes sick leave during an improvement program may be referred to HealthQuest to determine his or her fitness to resume work and participate in the improvement program. If HealthQuest determines that the teacher is fit to participate in an improvement program the process will resume immediately; and where appropriate, in accordance with HealthQuest recommendations.

Where a teacher on an improvement program takes sick leave, principals are to forward the teacher's sick leave form to Employee Service Centre, School Teachers (North or South) and, at the same time, forward a copy of the sick leave form to the Employee Performance and Conduct Unit using the fax cover sheet at Attachment U. Employee Performance and Conduct will consider this information when determining whether a referral to HealthQuest is appropriate.

Where a teacher has applied for and been given approval to take long service leave prior to the commencement of an improvement program, the teacher will be able to take the period of long service leave.

If a teacher is granted long service leave during an improvement program, the teacher will resume the improvement program immediately on return to duty.

Generally, teachers will not be granted leave without pay during the period of an improvement program or where they are subject to disciplinary action because of failing to meet the level of performance required.

If, in a rare situation, a teacher on an improvement program is granted leave without pay, in most instances, the teacher will retain right of return to their current school and will recommence their improvement program immediately on return to duty.

Teachers who are on an improvement program, or who are subject to disciplinary action because of failing to meet the level of performance required will be granted family and community service leave in accordance with Family and Community Service Leave and Personal Carer's Leave Determination Number One of 1998.

A workers compensation claim submitted by a teacher who is on an improvement program, or who is subject to disciplinary action, is to be managed in accordance with the processes and time lines stipulated in the Workplace Injury Management and Workers Compensation Act 1998, that is the principal must forward the claim for workers compensation to the GIO via the school area office, within seven days of receiving the claim.

If a teacher who is on an improvement program, or who is subject to disciplinary action because of failing to meet the level of performance required, submits a workers compensation claim for psychological injury, the principal must state that the teacher has had difficulties identified with their performance on the Employer's Report of Injury Form.

Generally, applications for transfer and promotion will not be actioned for teachers who are on an improvement program, or who are subject to disciplinary action because of failing to meet the level of performance required. Decisions about whether a transfer or promotion is actioned in such circumstances will be made by the Director, Employee Performance and Conduct.

Where a teacher applies to resign or retire whilst on an improvement program, such applications will be considered on a case by case basis by a designated senior officer of the Department.

Where the officer accepts the resignation or retirement of a teacher on an improvement program the teacher will be advised in writing of the circumstances under which any future application for employment will be considered.

Subject to the provisions of the Industrial Relations Act 1996, should any dispute arise about the implementation of the procedures, then the following procedures should apply:

1. The employee and/or Federation workplace representative will immediately raise the dispute with the principal.

2. Should the matter not be resolved within a reasonable period the matter will be referred to the School Education Director and the appropriate Federation officer for resolution.

3. Where the procedure in paragraph 2 above of this subclause does not lead to resolution of the dispute within a reasonable period, the matter will be referred to the General Manager, Industrial Relations and Employment Services of the Department and the General Secretary of the Federation. They or their nominees will negotiate an agreed method and time frame for resolving the matter.

4. Should the above procedures not lead to a resolution, then either party may make application to the Industrial Relations Commission of New South Wales.

7. OVERVIEW OF THE PROCEDURES FOR DEALING WITH TEACHERS WHO ARE PLACED ON A TEACHER IMPROVEMENT PROGRAM

8. PROCEDURES TO BE IMPLEMENTED AT THE SCHOOL WHEN A TEACHER IS PLACED ON A TEACHER IMPROVEMENT PROGRAM

The principal is to meet with the teacher to inform the teacher of the difficulties as soon as possible. The member of the executive staff who is to oversight the implementation of the improvement program is to attend. The teacher is to be informed beforehand that they may have a support person present and to be given the name of the executive staff member who will attend the meeting. At this meeting, the teacher is to be:

· given a copy of these procedures; · advised of the areas of their performance where difficulties have been identified; · advised of the expectations for improvement and that an improvement program will be developed immediately in consultation with the teacher and implementation will commence no later than one week from the date of this meeting; · advised of the standards required to determine satisfactory performance for the teacher on an improvement program; · advised of the expected standards with clearly identified area/s for improvement; · advised of the executive staff member who is responsible for oversighting the implementation of the improvement program; · informed about the types of support available (Section 10 of the procedures details the support available); · advised that they may wish to contact the NSW Teachers Federation; · advised that their name will be flagged on the computerised personnel system; · advised that they will get a copy of the principal's checklist and a record of the initial meeting; and · advised that they should complete documentation about this meeting.

In addition, the date of the meeting to develop the negotiated improvement program within the next week is to be negotiated and confirmed.

See Attachments A and B for a checklist and summary report for this meeting.

See Attachments C and D for documentation the teacher is to complete in relation to this meeting.

8.2 Advice to the School Education Director and Staff Efficiency and Conduct Team of the Employee Performance and Conduct Unit

The principal is to orally inform the School Education Director that the teacher has been advised that they are not meeting the level of performance required and that a structured and developmental ten week improvement program is being negotiated and implemented. The School Education Director will discuss the type of support that may be required for the implementation of the improvement program with the principal, including the allocation of relief days (See Section 10).

The principal is also to inform the Staff Efficiency and Conduct Team that the teacher has been advised that they are not meeting the level of performance required and that a structured and developmental ten week improvement program is being negotiated and implemented. The Staff Efficiency and Conduct Team will ensure the teacher's name is flagged on the computerised personnel system.

The proforma at Attachment E is to be used to formally notify the School Education Director and the Staff Efficiency and Conduct Team.

The ten week improvement program is to be negotiated and documented and should clearly indicate:

· areas of performance where difficulties have been identified; · standard of performance required; · time frame of the program; · possible strategies to overcome the areas of concern; · support to be provided; · specific indicators to demonstrate improvement; and · process for monitoring and feedback and timetable for formal review meetings.

A checklist for the development of an improvement program is at Attachment F.

A proforma for the development of an improvement program is at Attachment G.

A report to be used during the improvement program for classroom observations is at Attachment H.

Formal meetings of the executive staff member responsible for oversighting the implementation of the improvement program and the teacher (with a support person if requested) are to be held regularly to consider progress, and provide feedback, solve any problems and determine future action. The timetable for these review meetings is to be included in the improvement program. The executive staff member and the teacher may change, and document any changes, to this timetable during the period of the improvement program. The principal is to retain documented records of all review meetings (See Attachment I) which are to be made available to all staff participating in the review meetings.

The teacher may wish to provide his or her comments about the formal review meetings (See Attachment J).

At the conclusion of the ten week period, the principal is to formally meet with the teacher and the executive staff member to consider progress made. The principal will complete the report at Attachment M and the teacher can comment on this report by completing Attachment N. The outcome will be:

· If there has been improvement and the teacher has been assessed as meeting the level of performance required no further action will be taken and; · the principal will advise the School Education Director and the Staff Efficiency and Conduct Team and the flag will be removed from the teacher's record on the computerized personnel system (See Attachment K); and · the teacher is to be advised in writing by the principal that they have met the required level of performance and that no further action will be taken (See Attachment L); or · If there is some improvement but further support is needed for the teacher to meet the required level of performance, one further improvement program for up to six weeks will be implemented (See Section 9.2); or · If the teacher is clearly showing no improvement in their teaching performance, the teacher's efficiency is identified as not meeting the required level of performance. The principal will refer the case for an independent review (See Section 11).

If at the conclusion of the ten week improvement program the teacher's performance has demonstrated some improvement but still does not meet the required level of performance, a further improvement program is to be negotiated with the teacher and implemented.

The further improvement program will be for a maximum period of six weeks. If at any time during the six week period the teacher is clearly showing no improvement, the principal may immediately refer the case for an independent review (See Section 11). There will be no extension beyond six weeks.

The principal is to orally inform the School Education Director that the teacher has been advised that he or she continues to fail to meet the required level of performance and that one further structured and developmental improvement program up to a maximum period of six weeks is being negotiated and implemented. The School Education Director will discuss the further support to be provided for the implementation of the improvement program.

The further improvement program is to be negotiated and documented and should clearly indicate:

· areas of performance where difficulties continue to be identified; · standard of performance required; · time frame of the further program; · possible strategies to overcome the continuing areas of concern; · support to be provided; · specific indicators to demonstrate improvement; and · process for monitoring and feedback and timetable for formal review meetings.

A checklist for the development of an improvement program is at Attachment F.

A report to be used during the improvement program for classroom observation is at Attachment H.

A proforma for the development of a further improvement program is at Attachment O.

Formal meetings of the executive staff member responsible for oversighting the implementation of the further improvement program and the teacher (with a support person present if requested) are to be held regularly to consider progress, and provide feedback to solve any problems and determine future action. The timetable for these review meetings is to be included in the improvement program. The executive staff member and the teacher may change, and document changes, to this timetable during the period of the improvement program. The principal is to retain documented records of all review meetings (See Attachment I) which are to be made available to all staff participating in the review meetings.

The teacher may wish to provide his or her comments about the formal review meetings (See Attachment J).

At the completion of the six week period the principal is to meet with the teacher and the executive staff member to consider the progress made. The principal will complete the report at Attachment M, and the teacher can comment on this report by using Attachment N. The outcome will be either:

· the teacher meets the required level of performance and no further action will be taken: · the principal will advise the School Education Director and the Staff Efficiency and Conduct Team and the flag will be removed from the teacher's record on the computerized personnel system (See Attachment P); and · the teacher is to be advised in writing by the principal that they have met the required level of performance and that no further action will be taken (See Attachment L); or · the teacher's performance does not meet the required level of performance.. The principal will refer the case for an independent review (See Section 11).

10 SUPPORT TO BE PROVIDED TO TEACHERS WHO ARE ON A TEACHER IMPROVEMENT PROGRAM

The Department of Education and Training is committed to supporting teachers who are experiencing difficulties with their teaching performance with a view to the teacher improving and meeting the required level of performance.

Training will be provided to principals and executive staff about these procedures and their implementation. This training will include how to develop and implement an improvement program for teachers who are experiencing difficulties with their teaching performance.

Training to support a teacher who is experiencing difficulties with their teaching performance may also be available at the district level. The school area Training and Development/Curriculum Coordinator should be consulted about suitable programs.

10.2 Support for the Teacher Who is Placed on a Teacher Improvement Program

The negotiated improvement program must include the support to be provided to the teacher to meet the required level of performance.

The support should address the individual teacher's needs.

Professional support will be provided through a range of ways including:

· Guidance, advice and feedback from the executive staff member responsible for oversighting the implementation of the teacher's improvement program; · Guidance and advice from appropriate colleagues in the school. This could include mentoring and team teaching arrangements; · Guidance, advice and assistance from experts in a particular area from the district office, state office or from a neighbouring school. This could include mentoring and team teaching arrangements or the teacher visiting another school to observe teaching practices; · Expert advice from representatives of the Board of Studies.

To enable this support to be implemented, a Statewide pool of relief days, over and above school global budget funds is available.

These relief days will be allocated by the Regional Director.

It is recognised that it can be a difficult time for teachers when they are experiencing problems with their efficiency. In these circumstances teachers are encouraged to access the services of the Employee Assistance Program.

The principal will refer a case of a teacher failing to meet the required level of performance for an independent review at:

· the conclusion of a ten week improvement program where it has been determined that the teacher is clearly showing no improvement in their teaching performance; or · any time during the six week further improvement program where the teacher is clearly showing no improvement; or · the conclusion of the six week further improvement program where it has been determined that the teacher does not meet the required level of performance.

11.1 Material to be Provided for an Independent Review

The proforma at Attachment Q is to be used to refer a case for independent review.

· Evidence that the procedures have been followed (Attachments A, B, C, D, E, F, G, H and O). · Summary of the teacher's progress as documented at the formal review meetings (Attachment I). · The teacher's comments as documented at the formal review meetings (Attachment J). · The principal's report at the completion of the improvement program (Attachment M). · The teacher's comments on the principal's report at the completion of the improvement program (Attachment N).

The appropriate documentation should be provided as indicated in the attachments.

The principal is to advise the Regional Director that the teacher's case is to be referred for an independent review and seek the name of the independent reviewer to whom the case is to be sent (Attachment R).

The Regional Director will advise the principal of the name and address of the teacher to undertake the review and will request the principal to forward the completed case to the independent reviewer under confidential cover (Attachment S).

The principal is to advise the School Education Director and Employee Performance and Conduct that the case has been referred for an independent review (Attachment T).

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.