Plaintiff v First Defendant

Plaintiff v First Defendant - [2008] VSC 530 - VSC 2008 case summary — Zoe

[22]

16 Mr O'Bryan's submissions were based on the contents of the Victorian Government Schools Teacher Class Handbook ("the handbook") published in February 2001. In particular, his submissions concerned the section of the handbook entitled "Complaints, Unsatisfactory Performance and Serious Misconduct". Mr O'Bryan submitted that that part of the handbook prescribed specific procedures, where an issue arose concerning either a complaint, alleged misconduct, or unsatisfactory performance, on the part of the teacher. He submitted that, depending upon the view taken by the principal of the nature of the allegation made against the teacher, or the nature of the concern relating to that teacher, the principal was obliged to follow a particular procedure prescribed by the handbook. Mr O'Bryan submitted that in June 2003 the principal had assessed the allegations, made against the plaintiff, as constituting "unsatisfactory performance" by the plaintiff. Having reached that conclusion, the principal commenced to implement the "unsatisfactory performance procedures", which are found at pages 44 and following of the handbook, by commencing a first period of monitoring for the plaintiff. Accordingly, as prescribed by the handbook, the principal was obliged to allow to the plaintiff two periods of monitoring, if he continued to have concerns about the performance of the plaintiff after completion of the first period of monitoring. Mr O'Bryan submitted that consequently the plaintiff had a "legitimate expectation", based on the procedure for dealing with performance based complaints set out in the handbook, that he would be given an opportunity by the principal to be heard, before the principal departed from the regime for performance based complaints set out in the handbook. Thus, Mr O'Bryan submitted that, having commenced to deal with the complaints against the plaintiff, on the basis that they related to unsatisfactory performance, the principles of procedural fairness required that the principal of the school afford the plaintiff a right to be heard, before the principal referred the matter to the Secretary of the Department in November 2003. The principal failed to give the plaintiff that opportunity, and the plaintiff was thereby denied procedural fairness.

[28]

22 Mr Bourke then turned to the decision of the Merits Protection Board of 19 February 2008. He submitted that even if the plaintiff could establish that Mr Way, in November 2003, had failed to afford him procedural fairness when he referred the matter to the Secretary, the plaintiff could not identify any error of law made by the Board in its decision in February 2008. In particular, Mr Bourke submitted that the plaintiff did not raise, before the Board, the issue now raised before me, namely, the alleged breach by Mr Way of the principles of procedural fairness when he referred the matter to the Secretary. Thus, Mr Bourke submitted the Board could not have made an error, since it did not, and was not called upon to, decide that point. Mr Bourke further submitted that, if there was any error by the Board as alleged by the plaintiff, that error did not constitute jurisdictional error. In that respect, he referred to a number of authorities, including the decision of the High Court in Craig v The State of South Australia[3], and the decision of the Court of Appeal of Victoria in The Returned and Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission & Anor[4]. Mr Bourke further submitted that any such error was not an error of law on the face of the record, since the handbook did not constitute part of the record of the Board. Further, he submitted that, in any event, any such error was not reviewable, because it was not an error which was material to the decision under review.[5] Finally, Mr Bourke submitted that, even if the plaintiff has established reviewable error, in the exercise of my discretion, I should not grant the plaintiff prerogative relief. That submission was based on the failure of the plaintiff to agitate the point, now raised before me, on any previous occasion. He submitted that the plaintiff had thereby acquiesced in any want of procedural fairness by Mr Way, and that in the exercise of the court's discretion, I should refuse the plaintiff prerogative relief based on a complaint which he had hitherto desisted from making on a number of occasions when had the opportunity to do so.

[32]

26 To the extent that the relevant section of the handbook does prescribe any set of procedures, it would seem that that section describes four different responses, which may be adopted by a principal, where that principal has a complaint relating to a teacher brought to his or her attention. Essentially, the principal may: refer the matter to an external agency; implement "complaints procedures"; implement "unsatisfactory performance procedures"; or contact the "Complaints and Investigations Unit" on matters relating to serious misconduct. That structure is evident from page 34 of the handbook, which is the first page of the section entitled "Complaints and Satisfactory Performance and Serious Misconduct". On page 39, the book describes the processes which can be adopted when determining an appropriate action by a principal. The handbook states that where the complaint involves "misconduct or sexual harassment", the principal must contact the Complaints and Investigations Unit for advice. Where the complaint raises "significant issues in relation to unsatisfactory performance", the principal "should implement the managing unsatisfactory performance procedures". The next paragraph states that "in determining the appropriate action" the principal may consider a number of different possible responses, ranging from a formal apology to referring the complainant to the appropriate external authority. One of those responses is described as "implementing a formal period of monitoring". For simplicity of reference, I shall refer to that process as the "complaint monitoring" process. Page 42 of the handbook contains the section which commences with the heading "Unsatisfactory Performance". That section provides that where the principal considers a teacher's performance to be unsatisfactory the "following procedures may be applied". (Emphasis added). On page 46, the handbook describes part of the procedures as the "first period of monitoring". On page 47, the handbook states that if, after the first period of monitoring, the performance of the teacher continues to be below the required standard, the principal should notify the teacher in writing and provide the opportunity for the teacher to meet and discuss the matter. The principal may then provide a further opportunity for a second period of monitoring.

[35]

29 The conclusion, which I have just reached, is sufficient to dispose of the plaintiff's application for prerogative relief. However, there are a number of other bases upon which, in my view, the plaintiff's claim should fail. If, contrary to my conclusion above, the principal did embark on the "unsatisfactory performance" procedures prescribed in the handbook, he did so in circumstances in which he did not commit to providing the plaintiff with two periods of monitoring. First, the letter of 2 June 2003 is to the contrary. Secondly, and in any event, I agree with Mr Bourke that the section of the handbook, relating to "unsatisfactory performance" procedures, was not designed to be as inflexible as contended by Mr O'Bryan. The handbook was designed to provide a common sense and practical guide to teachers in dealing with matters arising in the course of their employment. The "unsatisfactory performance" procedures could not, in that context, have been intended to straight jacket a principal in such a way as to require him, in each case, to provide a teacher with two periods of monitoring. If Mr O'Bryan's submissions are correct, then a principal, who committed to implementing the "unsatisfactory performance" procedures, would be obliged to permit a teacher two periods of monitoring, notwithstanding that during, or at the end of, the first period of monitoring, the principal may come to the conclusion that a second period might be entirely futile. In the present case, after the first period of monitoring, the principal was advised of further complaints and issues relating to the plaintiff. In his letter to the plaintiff dated 21 November 2003, the principal described the plaintiff's behaviour as "continuing unsatisfactory teaching performance and unprofessional conduct". In that letter, the principal set out the findings which he had made in relation to eleven further complaints relating to the plaintiff. The nature of those complaints, and the reference by the principal to "unprofessional conduct", clearly indicate that, even if the principal had, in June 2003, commenced to implement the unsatisfactory performance procedures, he was now treating the matter as being more serious, and as requiring the referral by him of the matter to the Secretary.

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