Application by New South Wales Teachers' Federation on behalf of its member Debra Balsters re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996
DECISION
[2008] NSWIRComm 32
1 Mrs Debra Balsters ('the applicant') had been a teacher employed by the Department of Education and Training ('the respondent') for 16 years. Her last teaching appointment was at Lake Munmorah Public School ('the School') where she had been a primary teacher since 1992. On 7 September 2006, the applicant was removed from the school and directed to perform non-teaching duties at the respondent's Swansea District Office. This transfer had arisen following a 12 week Teacher Improvement Program (TIP) and review of the applicant's performance during 2006, after which the School Principal, Ms Alison Miller, determined that the applicant had failed to demonstrate the standards required for a classroom teacher.
2 As a result, in February 2007, the applicant was informed that the respondent was considering disciplinary action against her. The applicant and her Union, the New South Wales Teachers' Federation ('the Federation') made formal representations defending her position and the allegations made against her. However, she was advised by letter of 9 May 2007, from Mr John Mather, Regional Director, that he had decided, pursuant to s 93B(1) of the Teaching Service Act 1980, to dismiss her effective from that date.
3 On 30 May 2007, the Federation filed an application on the applicant's behalf, pursuant to Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act') seeking the applicant's reinstatement as a classroom teacher. Attempts at conciliating the applicant's claim were undertaken, but proved unsuccessful. Accordingly, the Commission made a finding pursuant to s 87 of the Act, and set the matter for arbitration.
4 For the purposes of this judgement, where reference is made to particular students in the School, the names of the students will be replaced by pseudonyms.
THE EVIDENCE
For the applicant
5 The applicant completed her teacher training in infants/primary teaching in 1988. She has also taught secondary mathematics (1990 to 1991) and from 1992 had taught at Lake Munmorah Primary School, primarily at Years Five/Six level. The applicant deposed that from 1992 to 2006 she had never received any criticism of her teaching ability or classroom management and since 2003, (when teachers have been annually reviewed), none of her reviews had been critical of her performance. The annual reviews are known as Teacher Assessment and Review Schedule (TARS).
6 In 2006, the applicant was allocated a composite Year Five/Six class with 27 students (comprising 10 Year Six students and 19 Year Five students). In March 2006, the Year Six students were placed in other Year Six classes following complaints from the students and parents about the composite class and as a measure to assist the applicant's perceived teaching difficulties. On 23 March, another child ('S') was added to her class who displayed significant behavioural problems and was later diagnosed with Obsessive Compulsive Disorder and Tourette's Syndrome. The applicant said she had received no training in dealing with Tourette's Syndrome children and was offered no extra support until 31 August.
7 On 19 May, the Principal, Ms Miller, informed the applicant that there had been student and parent complaints about her and she was to be placed on a TIP. The applicant said she was never shown copies of the complaints or informed of their substance. She was told that two parents had rung three months earlier to complain that their children disliked school. She said she was never told of these complaints nor the children involved. The applicant deposed that she was shocked by this criticism and believed she was being treated unfairly by being put on the TIP.
8 On 22 May, a meeting was held with the applicant, Ms Miller, Ms McNamara (Deputy Principal), Ms Van Egmond (Assistant Principal) and the applicant's support person, Ms Mascord, at which the applicant was told she needed to improve elements four and five of the Professional Teaching Standards. These were requirements that:
· Teachers communicate effectively with their students.
· Teachers create and maintain safe and challenging learning environment through the use of classroom management skills.
9 The TIP involved other teachers observing her classroom lessons and reporting on her attainment of these standards. However, the applicant said that the teachers who observed her class were unaware of the special needs and learning difficulties of her students. She said the School did not provide a teacher's aide until Term Two, even though funding for the position was available. The applicant said that no account was taken of the growing discipline problems in the School and that there had been a complete disregard of her good teaching record.
10 The applicant believed that the contents of the TIP was poor. Observers gave contradictory advice, feedback was unhelpful, observation times were changed so that prepared lessons were not observed and students became disruptive and angry by the program.
11 In oral evidence, the applicant agreed she had been trained to manage students with varying degrees of capability and behavioural problems and that she was expected to effectively manage a composite Year Five/Six class. The applicant was questioned on the School's Student Welfare Policy, introduced in 2005, which provided that "it is essential that teachers anticipate problems, take quick action and are consistent, fair and firm". She agreed that teachers must be reasonable and fair otherwise students would develop a sense of grievance and conduct themselves inappropriately. The applicant said that part of this policy dealt with a Discipline Flow Line. She explained the various steps in the process. A final step in the process was "time out" where the student was sent to a member of the Executive (Principal, Deputy Principal, or Supervisor) and further action would be taken.
12 The applicant accepted that in 2006 there were a number of "unhappy" students in her class. She agreed that there had to be effective strategies in place to maintain classroom discipline and to ensure students receive instruction at the appropriate level of their capability. She said however, that this may be affected by a non-school related incident. A student who is not focussed on the learning task, may engage in inappropriate behaviour. The applicant accepted that the smaller the class, the easier it was for the teacher to observe inappropriate behaviour, build a rapport with students and develop individual education plans. She accepted that building students' self esteem requires establishing a rapport and investigating why a student is behaving inappropriately. She agreed it is important to treat students fairly and that teachers have a duty of care for the safety and welfare of the students in their class.
13 The applicant said that at the end of 2005, she had been asked to send literacy rankings to the Executive in order to formulate the composite classes in 2006. She agreed that a number of her Year Six students had wished to be in a straight Year Six class. Four of the 10 Year Six students had been sent to "buddy class" for misbehaviour on a number of occasions from February to March 2006. On 9 March, in a meeting with Ms Miller and Ms McNamara, the applicant said she had been told the Year Six students would be taken out of her class. At this meeting, she had also been told of complaints about the way she had spoken to students. She denied having trouble managing the class and denied the complaints. On one complaint, she had actually spoken to the boy's mother on a couple of occasions. It was later said that there were 11 documented parent complaints and 21 documented student complaints. The applicant said she had only become aware of this detail in May 2006. The applicant said that after the 9 March meeting, she was quite distressed and proceeded on a week's sick leave. When she returned she sent cards of appreciation to Ms Miller, Ms McNamara and Ms Van Egmond for sending flowers to her while she was off on sick leave.
14 After now having 19 students, the applicant agreed it gave her more opportunity to observe the class and develop individual education plans. However, she conceded that she continued to experience difficulty in managing the class.
15 The applicant could not recall a meeting with her supervisor, Ms Van Egmond on 5 May 2006, where Ms Van Egmond had suggested a thorough investigation of misbehaviour incidents, so as to get both sides of the story. She said the meeting concerned a student, 'T', who was not completing his work, was continually disruptive and always out of his seat. Ms Van Egmond suggested using a negotiated reward system with 'T'. It had also been reported to Ms Van Egmond that five students 'M', 'T', 'J', 'JD' and 'B' had complained that the applicant had "picked on them". The applicant said that this was the students' "perceptions". Ms Van Egmond had found that they felt a sense of injustice, because others were equally at fault.
16 While the applicant denied receiving informal support from Ms Miller, Ms McNamara and Ms Van Egmond at this time, she accepted that the Deputy Principal dropped into her class once or twice a week, students were counselled after referral from her, all staff were provided with a review of the Discipline Code and she had been encouraged to use different strategies to address classroom management issues. The applicant agreed that at her TARS meeting on 22 March, Ms Miller had suggested strategies which she tried and had worked.
17 The applicant said that prior to the TIP meeting on 22 May, she had received a copy of the Procedures for Managing Teachers who are Experiencing Difficulties with their Teaching Performance, and had read through them. She understood she had a responsibility to enhance her performance and seek assistance. She could have a support person at all times and consult the Federation. She did not understand that the TIP was to be negotiated or that she could discuss it with her support person. The applicant said that at the meeting she denied having any difficulties or any issues with classroom management. She wanted details of the complaints. (She received further details the following week.)
18 The applicant was asked if she had said she was going to "fight the program" (TIP). In further questioning, she said she had meant she was going to fight to keep her job. She had been upset and was crying at the time. She said in cross-examination she had been misunderstood and was always intending to do the TIP. She agreed that when she left the meeting she warned staff in the staffroom of the fact she was on a TIP.
19 At a further meeting on 30 May, the applicant said she had not accepted a real problem existed, but she had been willing to improve and had co-operated with the TIP. The applicant insisted that there was no negotiation of the TIP; rather, it was simply read to her by Ms McNamara. She did not ask for a copy of it and had not seen it until February 2007. The applicant conceded that she had not raised the terms of the TIP with Ms Miller, because she did not want to interfere and said that "they would do what they liked anyway". The applicant agreed there had been 21 observed lessons, review meetings and opportunities for her to observe lessons at the School and other schools (Budgewoi Public).
20 The applicant accepted that after completion of the TIP and the Principal's decision there was an independent review and that she had an interview with the reviewers. In further cross-examination, the applicant accepted that during the 12 week TIP, there were regular review meetings which she had attended with her support person. Minutes were taken and provided to her. She agreed she could ask questions, but she claimed there was limited discussion. On 15 June, she had received consultant support for 'T'. The applicant accepted that Ms McNamara had prepared a separate plan for 'T' if he became disengaged from the class. On 11 August, the applicant attended a day's Behaviour Management Course. The applicant felt she did not get much out of the course. The applicant agreed that of the 21 observed lessons, 15 were assessed as unsatisfactory. While she had an opportunity to make comment on the observations, she had not done so until after the end of the program as "after thoughts". She accepted that she could have been more constructive in her feedback after the observations, but had chosen not to.
21 The applicant said that students continued to be sent to the Executive during the TIP in accordance with the School policy. She denied that she hadn't given adequate explanations for referring students, particularly ones where safety concerns were an issue. She agreed the classroom was unsafe by some behaviours, such as students climbing through windows, leaving the room, throwing chairs or pens or hitting other students. However, she said that this was why she referred the students to the Executive. The applicant conceded that it was her responsibility to try and make sure these incidents didn't happen. She said the poor relationships were between the students, not between her and the students. She said everyone had tried to change the students' behaviour, including the Deputy Principal, Assistant Principal and their parents.
22 The applicant agreed there were a number of students involved in the misbehaviours, and that there was an extensive list of incidents (around 50) where students were referred to the "buddy class" level of discipline. The applicant agreed that by week seven (of the TIP) there had been no improvement in the students' behaviour. She said new strategies were not working.
23 The applicant said that she was upset when 'T' was removed from her class, as no student had ever been removed from her class before. She had said on 26 July, that she was "doing everything alright now but will try to improve". However, the applicant felt her professional judgment was being disregarded and she just had to do what she was told to do.
24 The applicant agreed that at a meeting on 17 August, she was told that Ms Miller still had concerns over her performance and she had impressed on her that she was in charge of the class. The applicant did not believe she had lost control, but was simply following the School policy. Ms Miller had also stressed the importance of the welfare, learning outcomes and safety of her students.
25 The applicant was questioned on a number of comments by observers of her class. She said an outside teacher, Ms Park, did not know her class. The applicant did not accept Ms Van Egmond's observation of inconsistent interaction when 'J' threw a pen at her. She said she was "surprised" that her lessons were unsatisfactory. She said she had not written comments on some of the observed lessons, because she did not think it would achieve anything and might prejudice her position. Her "after thoughts" were written after her final assessment was found to be unsatisfactory.
26 The applicant claimed there was no consultation at her review meetings. The Principal just had a script and she felt to argue would create further problems. It was usually half an hour of saying how terrible she was, with no positive feedback. On 5 September, when Ms McNamara observed a reading lesson, the applicant said she did not know how Ms McNamara came to a conclusion that the majority of the students had no understanding of the concepts in the lesson. She had not monitored their progress, because she intended to do so in the next lesson. The applicant explained that when she had said she "had not wanted a small class because she couldn't 'hide' them with others", she had meant that she could put students between others and with fewer students its easier for students to see the misbehaviours of others and be distracted.
27 The applicant agreed that there was a review of the Principal's decision by the Employee Performance and Conduct Unit (EPAC) and that she had written a submission defending her position. Similarly, when the final decision maker, Mr Mather, was considering the matter, she had put submissions to him. Finally, the applicant said that no one had been injured in her class, she was aware of her responsibilities and reported everything concerned with safety.
28 In re-examination, the applicant claimed that she had not seen a number of documents before February 2007. They were the 5B "buddy class" referrals; the minutes of the initial meeting; the overview from Ms Van Egmond of 23 May; and the draft TIP.
29 The applicant said that she had taught 'J' in 2006 only, and had not been told he suffered from Attention Deficit Hyperactivity Disorder (ADHD) and Tourette's Syndrome. She had no knowledge or training on how to deal with these behaviours, nor was she offered extra support. She was not told that 'S' had Tourette's Syndrome, Obsessive Compulsive Disorder and Mixed Conduct and Emotion Disorder prior to teaching him. Tourette's Syndrome was diagnosed in Term Two. The applicant deposed that she had heard that 'S' had said that "every teacher I've ever had has left because of me. I got rid of them".
30 The applicant was referred to the full extract of the minutes of the initial TIP meeting in which Ms Miller said she believed the applicant was a committed teacher. She (the applicant) had voiced her love for teaching and it was that love for teaching that was the reason why she was going to fight the program.
31 The applicant said she had not been given any opportunity to observe a class with a Tourette's Syndrome student. She added that she had not been given any assistance or training in controlling violent children.
32 The applicant said that the observations of teachers from other schools were put in her pigeon hole and she wasn't given any opportunity to discuss their observations with them.
33 Ms Christine Knight is the School's librarian / teacher and has worked with the applicant for 14 years. She has every class in the school at least once a week involving 570 students. Ms Knight deposed that the applicant was always organised, thoroughly prepared, used library resources effectively and efficiently and usually spent her breaks in her classroom. She described the applicant as a quietly supportive colleague who did not frequent the staff room socially. Ms Knight had observed that the applicant stuck consistently to the Discipline Flow Line and followed the School's policy closely to ensure consistency.
34 Ms Knight referred to a particular week when she had taken 5B and described it as the worst five days of her career. At the start of the day two boys ('M' and 'E') had a verbal argument, 'M' overturned his desk, a girl 'K' was crying because someone had taken her book and 'J' was loudly teasing other children. She said this had set the scene for the day.
35 It was Ms Knight's opinion that 5B was a mismatch of personalities with not enough role models. The children seemed to realise they had a degree of power. She believed the tone of the class changed after the Year Six boys were moved out in March 2006, without consultation with the applicant. Ms Knight believed that the physical position of 5B meant the class and the applicant were isolated from the rest of Year Five.
36 Ms Knight could not recall the applicant experiencing any particular teaching difficulty and she had always passed her TARS. She had developed a warm relationship with her students and was known for using positive rewards. There were never any concerns that her students did not meet student outcomes or achieve poor basic skills results.
37 As the librarian, Ms Knight described how the applicant was always well prepared with any research task and followed up on each task and any particular discipline issue. The applicant was always punctual in collecting her class from the library.
38 Ms Knight observed that individually most of the 5B children appeared friendly and co-operative. However, as a group they were difficult. 'T' was particularly disruptive and a number of children continued poor behaviour into Year Six. 'S' had continued his appalling behaviour and had suspensions, negotiated attendances and restricted playground access in 2007.
39 Ms Knight deposed that when the applicant was removed from the school, a very tight control was engaged on 5B. The Deputy Principal took the class and Ms Knight had observed a constant trail of support from the Principal, Deputy Principal and teachers' aides. This support continued throughout the year, but had not been earlier provided to the applicant.
40 Ms Knight said the applicant worked hard on her TIP and used the library to secure resources. Ms Knight said that in all the years as a colleague the applicant demonstrated interest and concern for the students' welfare and academic achievement and worked tirelessly to ensure all students achieved their outcomes. She had concern for the wellbeing of the students and colleagues and constantly demonstrated empathy and compassion in practical ways.
41 In further examination in chief, Ms Knight who had also acted as Principal at the School, said that her observations came from having involvement in the school assemblies, delivering resources, running the choir and students using the library. In her acting position on the Executive up to the end of 2005 and early 2006, Ms Knight had never heard any criticism of the applicant.
42 Ms Knight was referred to an incident report on 15 March 2006 involving 'S', in which she described his disruptive behaviours - swearing, answering her back and crawling under the table. Nevertheless, he was regarded as the best reader in the school. The teaching staff were informed at the start of 2007 that 'S' was diagnosed with Tourette's Syndrome. They had talked about his other disorders. Ms Knight said she had never been trained on how to handle Tourette's Syndrome children until later in 2006.
43 In cross-examination, Ms Knight agreed that the essence of school training is to learn how to manage the behaviour of students. Ms Knight said her observation of the applicant involved her preparation and researching for lessons. She said that the applicant was always in her room and ready to start after breaks, whereas most other teachers, including herself, spent time going from the staff room to their rooms.
44 Ms Knight accepted that generally a smaller class was more manageable than a larger one. She conceded she had not been involved in the applicant's 2006 TIP preparation or the TIP process itself. Ms Knight said that when the applicant discussed her problems in the class, she had offered her informal support.
45 Ms Knight agreed that the 2007 school captain, a prefect and two house captains were in 5B during 2006. She said they had sporting leadership, but were not work role models. She agreed there was only one student in 5B who had identified behavioural problems. Ms Knight accepted that seeking collegial support involved the applicant asking for it. She agreed it was only her observation, that the applicant appeared not to have been given much support.
46 Ms Tracey Caban has been a teacher at the school for 13 years. She gave evidence concerning a letter she wrote to Mr Mather on 18 September 2006, concerning the behavioural problems of six students in the applicant's class. Ms Caban had previously taught some of these students, in particular students 'S' and 'T'.
47 Ms Caban was asked to identify a number of incident reports concerning 'S', who she had taught in 2005 and 2007. On one occasion (15 March 2007) she said he was non-compliant, swearing at her and acting very defiantly. As a result, Ms Caban said he was suspended for three days - a decision made by the Executive. In fact, he was suspended on more than one occasion. Ms Caban had been involved with the Learning Support Team meetings concerning 'S'. Ms Caban became aware in 2007 that 'S' suffered from Tourette's Syndrome, but she had not been aware of his condition in 2005. There had been a meeting of teachers with the Tourette's Association in early 2007. Ms Caban said she had received teacher's aide support for 'S' in 2007, but not in 2005.
48 In cross-examination, Ms Caban said that in 2006, the applicant had asked her about problems with children in her class and she had given her some informal advice. Some of these strategies had worked, but others had not.
49 Ms Caban said she had not been asked by anyone to prepare the letter to Mr Mather. The teachers at the School had been talking and she felt someone needed to know that the children in combination in 5B were quite difficult to teach. She was surprised to learn that there was no record of Mr Mather receiving her letter. She conceded she had not provided a copy to the School's Executive or raised it's contents with the Principal or her supervisor.
50 Ms Caban conceded that in 2005 'S' had not displayed the type of behavioural problems he had later in 2006. Ms Caban accepted that she had not identified any of the students she referred to in her letter to Mr Mather as having behavioural problems in her end of year report in 2005. Only one student identified in 2004 ('E') was the only asterisked student in 2005.
51 Ms Caban denied that there had been role models in the class, despite the class having the present school captain ('B'), a prefect ('M') and class captain ('MF'). Ms Caban said she had not found 'M' and 'B' to be strong in leading other children. Ms Caban said that while the captains and vice-captains were voted by the students, this practice was now being reviewed to ensure that the student leaders were real role models.
52 Ms Caban described the methods she uses to change student behaviour and recognise good behaviour. Rewards systems work for some children. While consistency is important, different children need different standards. This is achieved though a Discipline Flow Line. Ms Caban agreed that in most cases, a misbehaving student will be asked for an explanation of their behaviour. The teacher would always endeavour to ensure fairness to all concerned.
53 Ms Caban said that student 'J' had major issues with other children at various times. However, she hadn't seen the need to recommend separating him from other children after she experienced his behaviour in 2005. Ms Caban was asked about a number of other difficult children she had in her class in 2006. She agreed that this mix would be true of any number of classes which teachers are required to manage.
For the respondent
54 Ms Alison Miller has been employed as a teacher since 1972 and has been a Principal of four public schools since 1996. She was appointed to the School in January 2005. Ms Miller said she always had a cordial and professional relationship with the applicant. Ms Miller said that in 2005, the applicant had asked for support in dealing with student behavioural issues. However, Ms Miller did not consider these problems as requiring detailed support. In early 2006, however, Ms Miller said she had concerns with the high incidence of behavioural problems being referred by the applicant to the Executive, particularly from her Year Six students. As a consequence, Ms Miller removed all Year Six students from her class, leaving 19 Year Five students. In reply, the applicant said that this restructuring was not due to discipline problems, but the Year Six children's desire to be in a straight Year Six class. She said that only once in her career had a student been removed from her class.
55 Ms Miller deposed that ordinarily a smaller class was more manageable, allowing the teacher greater opportunity for individual student attention. Ms Miller believed that the mix in 5B during 2006 was no more challenging than the other two Year Five classes. She rejected the assertion that the class had been poorly selected.
56 Ms Miller said that the decision to include 'S' in the applicant's class was made in consultation with her. It did not have a cumulative effect with the other Tourette's Syndrome student ('J'). The applicant responded that 'S' had been suspended a few times in 2006 and 2007, and 'J' was now medicated and has regular Teacher Assistant Support (TAS).
57 Ms Miller said that teachers' aides are not specifically funded for a particular student and were allocated at the Principal's discretion. The applicant did have support from a teacher's aide in Term Two during her TIP. However, the applicant said this support was only sporadic.
58 Ms Miller denied the School had growing discipline problems and she further denied that members of the Executive had the same management problems as the applicant. Ms Miller questioned that if the applicant had been an effective and efficient teacher prior to 2006, why was she unable to address the areas of concern in her teaching performance?
59 Ms Miller denied that the TIP was "poor". The applicant was given a great deal of support and assistance and Ms Miller had been disappointed that she was unable to demonstrate improvement. Ms Miller said the formulation and implementation of a TIP is a consultative process. At no time did the applicant complain about observers of her class, changes in the TIP or not being provided with paperwork. Ms Miller referred to specific assistance given to the applicant from Ms Lori Gibson, Assistant Principal, Behaviour. The applicant said Ms Gibson's strategies did not manage the class effectively.
60 Ms Miller believed that the applicant was in self-denial in that she had a serious teaching deficiency that needed to be addressed. Ms Miller felt she was simply going through the motions (of the TIP). Minutes of review meetings had confirmed that the applicant believed she was doing everything right. The applicant denied these claims and noted Ms Miller's own comments about her that she would arrive early, had tried hard to demonstrate efficiency and improvement had been noted.
61 Ms Miller said that prior to May 2006, she had made the applicant aware of oral and written complaints from students and parents and had given her the names of the parents. A number of children said they were unhappy in her class, they did not want to come to school and their attitude had changed. In reply, the applicant said the complaints concerned the composite class and not her teaching performance. Ms Miller said she had given the applicant all appropriate documentation and nothing further had been requested by her.
62 Ms Miller had prepared a report on 24 May 2006 about her concerns with the applicant's standard of teaching performance. She regretted that the applicant felt she was being treated unfairly, but as the Principal of the School she had specific responsibilities which she could not ignore.