Porche v State of Queensland

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Erian v State of Queensland (Department of Agriculture and Fisheries) [2020] ICQ 012

Hickey v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service) [2020] ICQ 22

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

R v Industrial Court of South Australia; Ex part General Motors-Holdens Pty Ltd (1975) 10 SASR 582

Ms H. Blattman of Counsel, instructed by Crown Law, for the Respondent

• [1] Ms Letitia Jane Porche ('the Applicant') filed an application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('IR Act') following the dismissal from her employment as a Senior General Teacher by the State of Queensland (Department of Education) ('the Respondent').

• [2] The Applicant was dismissed on the basis that she had failed to perform her duties to the standard expected of a teacher and had performed her duties carelessly, incompetently or inefficiently pursuant to s 187(1)(a) of the Public Service Act 2008 (Qld) ('PS Act').

• [3] The Applicant submits that the termination was unfair in that it was harsh, unjust and unreasonable.

• [4] Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable. In determining whether a dismissal is harsh, unjust or unreasonable, the Commission must consider the following matters under s 320 of the IR Act:

1. Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

(a) whether the employee was notified of the reason for dismissal; and

(i) the operational requirements of the employer's undertaking, establishment or service; or

(ii) the employee's conduct, capacity or performance; and

(c) if the dismissal relates to the employee's conduct, capacity or performance -

(i) whether the employee had been warned about the conduct, capacity or performance; or

(ii) whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and

(d) any other matters the commission considers relevant.

• [5] Section 187(1)(a) of the PS Act provides:

(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -

(a) engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or

• [6] Section 188 of the PS Act provides:

1. Disciplinary action that may be taken against a public service employee

(1) In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

• termination of employment
• reduction of classification level and a consequential change of duties
• transfer or redeployment to other public service employment
• forfeiture or deferment of a remuneration increment or increase
• reduction of remuneration level
• imposition of a monetary penalty
• if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
• a reprimand

• [7] The Applicant was dismissed from her employment as a teacher following substantiated allegations of unsatisfactory performance over an extensive period at Coomera State Primary School ('Coomera SS') and Coombabah State Primary School ('Coombabah SS').

• [8] The Applicant commenced teaching a Year 1 class at Coomera SS in January 2015. The Applicant was absent during Term 2 having taken long service leave.

• [9] Upon the Applicant's return at the commencement of Term 3, Deputy Principal, Ms Shiree Salazar, advised the Applicant that a number of parents had raised concerns that the Applicant was not approachable and that their children were worried about the Applicant's return to the school because of her manner and tone of voice.

• [10] All relevant interactions concerning the Applicant's performance were recorded by Ms Salazar in a document titled 'Chronology'. This document recorded details of all interactions with the Applicant regarding her performance and covered the period of 1 April 2015 to 3 November 2016.

• [11] On 18 November 2015, Coomera SS Principal, Mr Chris McMillan, undertook a classroom observation of the Applicant's teaching. He recorded the following areas as requiring improvement and provided feedback to the Applicant:

• continue to work with coaching to lift the pedagogy so that learning improves in effectiveness and efficiency;

• work on effective and efficient routines so that more learning occurs (e.g. transitions);

• work on aspects of teaching to make the learning focus much more explicit; and

• work on implementation of the Essential Skills of Classroom Management and regional support material.

• [12] Throughout Term 3 and Term 4 2015 and Term 1 2016, a number of reports about the Applicant's conduct were made to Ms Salazar and Mr McMillan from teaching staff, parents and students. As noted in the Chronology, these reports included allegations that the Applicant:

• was leaving the classroom to go and heat up food and eating it during teaching time;

• failed to mark the roll on 1 September 2015, 9 and 20 November 2015 and 12 February 2016;

• failed to properly tidy the classroom to make it ready for the cleaner on 1 September 2015;

• refused to take phone calls from another staff member who was trying to give the Applicant a message about a Year 1 student needing to catch a bus home that day;

• refused permission for a student to go to the toilet, after which he wet himself;

• failed to give a Year 1 student his lunch as the teacher on duty on 18 November 2015;

• failed to enter records into OneSchool[1] on numerous occasions;

• failed to notice children missing from her class, between 9 December 2015 and 8 February 2016;

• presented to school on her day off on 26 February 2016, without telling the other classroom teacher and disturbed the class following which Mr McMillan requested she leave the school and subsequently emailed her to communicate his expectation that she not attend on non-rostered days unless previously arranged with him;

• failed to show up for eating duty and playground duty on 3 March 2016;

• failed to wear a hat and high visibility vest when on duty on 3 March 2016; and

• [13] In Term 4 2015, at least one child in the Applicant's class was refusing to go to school because of the Applicant's demeanour. On 25 February 2016, Ms Salazar met with the Applicant informally to raise this and a number of other issues with her.

• [14] Following further concerns regarding the Applicant's performance, Ms Salazar and Mr McMillan met with the Applicant on 24 March 2016 to discuss their concerns regarding the Applicant's performance and to set expectations for the future. The Applicant was provided with additional support in the form of regular feedback sessions with Mr McMillan and Ms Salazar,[2] as well as in-class observation, modelling and coaching from the Student Engagement Coach. This support was provided as part of a documented Informal Support Plan (Stage 1 of the Managing Unsatisfactory Performance ('MUP') process), and from 24 August 2016, a Support and Development Plan (Stage 2 of the MUP process).

• [15] The Applicant's performance issues continued with the Chronology detailing the following:

• failing to complete the class roll on 29 April 2016;

• being on a private phone call which extended to 20 minutes after the bell rang, during which time students could not get into the classroom on 12 August 2016;

• parent complaints on 12 and 19 August 2016 and 1 September 2016;

• interrupting another teacher's classroom and disturbing the students who were completing a science assessment and speaking rudely and dismissively to the other teacher on 13 September 2016;

• speaking in an unprofessional manner to other staff on 15 September 2016 and 31 October 2016;

• failing to administer tests properly on 2 June 2016, 14 and 15 September 2016 and 7 October 2016;

• being unprepared for a maths lesson on 14 June 2016;

• missed duties and failing to wear the high visibility vest on playground duty on 14 April 2016 and 15 September 2016;

• opening a classroom door and throwing swimming notes out to the children sitting in line who were waiting to go to class with another teacher;

• using a raised voice and unapproachable manner in class; and

• walking a long way in front of her Year 1 class and failing to observe that they were so far back that children were misbehaving close to a carpark.

• [16] In addition to the above, there were ongoing deficiencies in the Applicant's teaching performance in the period 25 May 2016 to 20 October 2016 which were recorded by the Student Engagement Coach.

Commencement of Managing Unsatisfactory Performance Process - Stage 2

• [17] Following the Applicant's failure to demonstrate improvement through the Stage 1 Informal Process, the Applicant was informed on 9 November 2016 that Stage 2 of the formal MUP process would commence. The process was documented in an Identification and Development Plan and was provided to the Applicant in a meeting with Mr McMillan, Ms Salazar, Ms Annette Rose (Principal Human Resource Consultant, Department of Education), and Mr Jason Sperling (Queensland Teachers Union of Employees ('QTU') representative).

• [18] The Applicant commenced sick leave on 14 November 2016 and remained on sick leave for the remainder of the 2016 school year and for the whole of the 2017 school year.

• [19] The Applicant sought to return to work in Term 1 of the 2018 school year. The Respondent required the Applicant to undergo an Independent Medical Examination ('IME') to ensure her fitness for work and to continue the MUP process. Dr Benjamin Duke, Psychiatrist, conducted the IME and reported that the Applicant was fit for work, however, recommended that the Applicant return to a different school. The Applicant also requested a transfer to a different school. The Respondent accepted the transfer recommendation and placed the Applicant at Coombabah SS commencing Term 1 in 2018.

• [20] The Principal of Coombabah SS, Mr Murray Gleadhill, and Deputy Principal, Ms Tina Flesser, created a document titled Record of Interactions following the Applicant's commencement at the school. Contemporaneous entries were made in this document of events relating to the Applicant's performance over the period in which the Applicant was employed at Coombabah SS.

• [21] A meeting was held on 17 January 2018 between the Applicant, Mr Gleadhill and Ms Rose in which the MUP process was explained to the Applicant. At this meeting it was determined that the MUP process would not commence for 20 days,[3] allowing time for the Applicant to settle into the new school.

• [22] Over the 20 day period, the Applicant made a number of comments indicating that she did not believe that she should be subject to the MUP process. The Applicant stated that the MUP process was unfair and that she was being victimised, targeted, and bullied. According to the Record of Interactions, the Applicant stated that she would not be doing lesson plans, did not do emails with parents at this stage of her career, was being exploited, that the teaching coach was making her do too much work and that she did not have time to plan lessons for teachers' aides or to meet with them. On 5 February 2018, the Applicant stated that she was not going to partake in the MUP process.

• [23] Concerns regarding the Applicant's teaching and behaviour arose almost immediately upon her commencement at Coombabah SS. Specific concerns noted in the Record of Interactions over this period included the following:

• the Applicant was distracted and typing on her phone during a staff meeting on 5 February 2018;

• the Applicant was on her phone typing during Ms Flesser's informal classroom visit and was not engaging with students on 12 February 2018;

• students reported that the Applicant had been yelling at them, was on her mobile phone talking about personal matters during class time, was crying in class and not engaging with the class on 13, 14, 16 and 17 February 2018;

• Mr Gleadhill observed on 12 February 2018, that the Applicant was on her phone during class teaching time after having been advised that this was impermissible;

• on 14 February 2018, the Record of Interactions noted that a parent reported that the Applicant had marked her child's homework incorrect when it was correct;

• it was reported to Mr Gleadhill on 15 February 2018 that the Applicant had failed to make the classroom tidy such that the cleaner was unable to clean properly after school;

• on 15 February 2018, the Applicant failed to attend a lunchtime meeting with Mr Gleadhill and told Ms Flesser that she did not want to meet with him; and

• on 19 February 2018, the Applicant refused to attend a morning meeting with Mr Gleadhill and Ms Flesser, stating that she was not going to the meeting, that it was a manipulation, and that she was not on a MUP process.

Recommencement of Stage 2 of the Managing Unsatisfactory Performance Process

• [24] On 19 February 2018, Stage 2 of the MUP process recommenced, with the process and goals documented in an Improvement Plan and discussed with the Applicant in a meeting.

• [25] The Applicant continued to be the subject of complaints from students, parents and other staff as detailed in the Record of Interactions on 20, 21, 22, 26, 27 and 28 February 2018.

• [26] Written and oral feedback was provided from Mr Gleadhill, Ms Flesser and Head of Curriculum, Ms Donna McAfee to the Applicant following lesson observations on 20, 21, 26 and 28 February 2018, however, this feedback was not accepted by the Applicant. The Record of Interactions records that each of the lessons was considered by the observers to be ineffective.

• [27] Mr Gleadhill confirmed a litany of performance issues which included the following:

• a complaint by Religion Teacher, Mr Allan Read regarding lack of class control;

• Mr Gleadhill's observations of a chaotic classroom with little feedback given to students; and

• lesson plans not being provided by the Applicant as required by the MUP Improvement Plan.

• [28] Mr Gleadhill wrote to the Regional Director, Mr John Norfolk on 1 March 2018, recommending that Stage 2 of the MUP process be truncated due to the Applicant's failure to participate in the process and his concerns relating to the risk to student health, safety and learning outcomes.

• [29] The key findings of the Stage 2 MUP process included:

• four formal lesson observations, each being deemed ineffective;

• failure to provide any detailed lesson plans to school administration;

• receipt of seven parent complaints during Stage 2;

• failure to observe students leaving her classroom for significant periods; failure to observe students from other classes being present in her classroom; and marking the roll incorrectly, all of which presents considerable risk to student safety and represents a serious breach of duty of care; and

• failure to attend the weekly MUP progress meetings and further, when provided with feedback after each lesson, the Applicant either returned the lesson observation form or made comments such as "I'm doing a great job and that it's just your opinion".

• [30] The Applicant was advised by letter dated 1 March 2018, that upon review of the Stage 2 MUP process and her lack of participation in the MUP process, the Principal of Coombabah SS was recommending to the Regional Director that the timeframes for Stage 2 be truncated and Stage 3 commence immediately due to concerns held relating to the risk of student health and safety and learning outcomes.

• [31] The Applicant provided a written submission to Mr Norfolk regarding this decision on 6 March 2018 and following consideration of her submission, Stage 3 of the MUP process was commenced. Mr Norfolk noted his concerns that the Applicant was not participating in the process in good faith and that her performance issues were sufficiently serious and pressing in nature.

Managing Unsatisfactory Performance Process - Stage 3

• [32] Stage 3 of the MUP process involved an assessment of the Applicant's performance by two external review officers. This assessment included classroom observation, examination of materials and discussion with persons nominated by the Applicant.

• [33] The two external review officers were Ms Kate Bentley, the then Principal of Miami State School and Mr Michael Josey, Principal of Benowa State School. The review officers observed the Applicant teaching on one occasion unannounced and three occasions in classes previously arranged with the Applicant.

• [34] On one of the three pre-arranged class observations, the observation was terminated with Ms Bentley taking over control of the class. Ms Bentley gave evidence that it was necessary to terminate the observation to ensure the good order and management of the class after it became chaotic. All four classes were deemed ineffective by the external review officers.

• [35] As part of the MUP - Stage 3 Report dated 12 March 2018, the external reviewers made the following notes:

• [the Applicant displayed] a lack of content knowledge, preparation and capacity to provide a basic structured session for learning.
• the disconnect between Ms Porche and the students was significant, resulting in poor personal learning relationships, limited mutual respect, a breakdown in feedback and formative assessment practices, and chaotic routines.

• [36] The external reviewers also reviewed the MUP process that had been undertaken and determined that it had been conducted in accordance with the MUP policy. The reviewers concluded that the Applicant's performance was unsatisfactory and that she was not suitable for continued employment. The reviewers recommended referral to the Board of Review for consideration of disciplinary action.

Managing Unsatisfactory Performance Process - Stage 4

• [37] In accordance with Stage 4 of the MUP process, the matter was referred to the Board of Review for further consideration.

• [38] The Board of Review is comprised of the Executive Director, Integrity and Employee Relations, an Executive Principal, a Principal, a representative of the QTU, and an advisor from the Performance and Conduct team.

• [39] On 13 March 2018, Mr Desmond Kluck, Executive Director, Performance and Safety advised the Applicant that she was suspended from duty on normal remuneration pursuant to s 189(1) of the PS Act[4] until the conclusion of all necessary processes to determine liability for disciplinary action.

• [40] The Applicant commenced her absence from the workplace due to health reasons on 29 March 2018, at which time her suspension was discontinued.

• [41] Following a number of IMEs, a report was provided 25 February 2019 by Dr Duke in which he advised that the Applicant was capable of participating in normal disciplinary and performance management processes.

• [42] On 4 March 2019, Mr Kluck issued a letter to the Applicant advising that her suspension with pay under s 189 of the PS Act would continue to allow continuation of the current disciplinary process which remained outstanding.

• [43] On 5 March 2019, the Board of Review met and reconsidered the MUP - Stage 3 Report along with the Applicant's medical clearance to return to work and participate in the disciplinary process. The Board of Review recommended that the Applicant be invited to show cause, in writing, as to why she was not liable for discipline in accordance with s 187(1)(a) of the PS Act. This was communicated to the Applicant in correspondence from Mr Dion Coghlan, Acting Assistant Director-General, Human Resources, dated 21 March 2019.

• [44] The Applicant provided a number of responses to this show cause letter, including emails on 22 March 2019, 29 March 2019, 1 April 2019 and a letter from the Applicant's treating psychiatrist, Dr Trevor Lotz, dated 22 March 2019.

• [45] The Board of Review met to consider the Applicant's responses on 4 April 2019 and agreed that the disciplinary process should proceed and recommended the termination of the Applicant's employment.

• [46] Mr Coghlan advised the Applicant of the decision to find her liable for discipline and confirmed that she was required to show cause within seven days as to why her employment should not be terminated pursuant to s 188(1) of the PS Act.

• [47] The Applicant requested and was granted an extension to respond to the findings and proposed penalty letter.

• [48] On 3 May 2019, the Board of Review met and considered the Applicant's responses. The Board of Review recommended, based on the evidence presented, the termination of the Applicant's employment.

• [49] On 10 May 2019, the Applicant requested the opportunity to provide further information in relation to her personal circumstances to the Respondent. The Applicant's request was granted and on 13 May 2019, the Applicant submitted an email attaching a letter from Dr Lotz.

• [50] On 3 June 2019, the Applicant was hand delivered the letter from Mr Coghlan advising of his decision to terminate her employment.

• [51] The Applicant submitted that the MUP process forced her into hypervigilance due to excessive scrutiny and excessive administration procedures. The Applicant stated that she had to work though lunches, before school, at home at night and on weekends and throughout holidays to meet the excessive demands of parents, colleagues and administration.

• [52] The Applicant submitted numerous times throughout the appeal process that she was forced into a 'fight or flight' response and a state of hypervigilance because of the excessive expectations of the process.

• [53] The Applicant submits that she was subject to 'gaslighting' and the process was "unwelcome, unsolicited, offensive, intimidating, humiliating, and threatening [the Applicant's] right to feel supported and have a sense of job security in [the Applicant's] employment".

• [54] The Applicant referred to the policy regarding workplace harassment and bullying, which includes reference to reasonable management action to address issues of employee performance. The Applicant submits that issues of employee performance were manipulated.

• [55] The Applicant submits that the MUP process should not have been recommenced on the basis that the medical advice from Dr Lotz indicated that whilst she was fit to return to work, she should not be subject to performance management.

• [56] In summary, the Applicant's submissions refer primarily to the following allegations:

• the process did not involve procedural fairness; and

• the outcome was harsh due to the Applicant's personal circumstances.

• [57] The Respondent provided extensive submissions which can be summarised as follows:

• the Respondent has followed the relevant policies and procedures in managing the Applicant's unsatisfactory performance and the disciplinary process at all material times;

• the Applicant has been afforded natural justice and procedural fairness throughout the informal MUP, the formal MUP and the disciplinary processes;

• the Applicant has been given ample opportunities to improve her performance;

• despite the extensive support and feedback provided to the Applicant during all three stages of the MUP process, the Applicant's performance was deemed unsatisfactory, and subsequently referred to the Board of Review for consideration;

• the Respondent refutes and notes there is no evidence to support that the Applicant has been 'oppressed' or 'abused' by the MUP and disciplinary process;

• the Respondent can reasonably rely on the IME reports in relation to the Applicant's fitness to participate in the performance and disciplinary process; and

• the Applicant's personal circumstances do not outweigh the seriousness and significance of the conclusions reached regarding her unsatisfactory performance and that she has performed her duties carelessly, inappropriately or inefficiently as a teacher.

Evidence of Mr McMillan and Ms Salazar - Coomera SS

• [58] Both the Principal and Deputy Principal at Coomera SS gave oral evidence at the hearing of this appeal. For the reasons outlined below, I accept the evidence of Mr McMillan and Ms Salazar as an accurate account of their experience with the Applicant. Both witnesses were measured in their evidence and whilst acknowledging the deficiencies of the Applicant, did not appear to hold any ill-will towards the Applicant on a personal level.

• [59] Mr McMillan's classroom observations were that children were not following a routine and significant learning was not happening in the classroom. Mr McMillan stated in evidence that he expected no more from the Applicant than any other classroom teacher. Ms Salazar gave evidence that as part of her regular classroom walk throughs, she observed that the Applicant's classroom routines were "chaotic and all over the place". Ms Salazar gave evidence that when she spoke to the Applicant about her being unaware of children missing from her class, the Applicant responded that "she had other students to watch".

• [60] At the meeting between Mr McMillan, Ms Salazar and the Applicant on 24 March 2016, the expectations for the future were made clear to the Applicant. The Applicant was told that she needed to improve her accessing and reading of school information, that communication with students and parents needed to be more positive, that there was a need to obtain a better understanding of individual student needs, to improve her management of the class and the establishment of routines.

• [61] The Applicant did not meet these expectations as evidenced by complaints from parents and colleague observations. An example provided by the Respondent was that a number of colleagues made complaints regarding the Applicant's use of assessment material for in-class teaching, undermining the validity of the assessment. This included writing a bank of words on a whiteboard that came from an assessment piece and using a maths assessment piece and changing only one aspect for in-class teaching. The Applicant confirmed in evidence that Ms Salazar raised this issue with her at the time. These complaints formed part of a broader number of staff complaints.

• [62] Mr McMillan and Ms Salazar gave evidence of the significant support provided at Coomera SS to assist the Applicant to improve her performance. The Student Engagement Coach provided approximately 28 sessions from May to November 2016 and Ms Salazar gave guidance about providing the Applicant guidance regarding the preparation of a weekly timetable. This support did not improve the Applicant's performance, with Mr McMillan recalling a planning meeting in which the Applicant arrived with a sheet covered in post-it notes that continually fell off that was presented to him as a timetable. Mr McMillan also gave evidence that the Applicant's response to the demands of a Special Education Program ('SEP') student was to ask for them to be withdrawn from her classroom. Mr McMillan gave evidence that the Applicant had a narrow understanding of the requirements of professional practice.

• [63] Mr McMillan interviewed ten students from the Applicant's class and his recollection was that they did not have the depth of understanding of the routines and rules of class that he would expect at that year level.

• [64] Mr McMillan gave evidence that he wanted to do 'whatever it took' in terms of resources and release time to help the Applicant meet the performance expectations of a school teacher. Mr McMillan also gave the Applicant the opportunity to seek medical help if she felt there was a health reason stopping her from performing. Despite the support given by Mr McMillan, it became clear that the Applicant could not accept that her performance needed to improve.

• [65] The Applicant was given an extensive period of time, from 24 March 2015 to late 2016, to demonstrate improvement as part of the Stage 1 informal MUP process before the decision was made to place her on a Stage 2 formal MUP process. This decision was reasonable in the circumstances given that the Applicant was unable to demonstrate any improvement in her performance, nor did she accept that her performance needed any improvement.

Evidence of Mr Gleadhill and Ms Flesser - Coombabah SS

• [66] Following Dr Duke's recommendation and the Applicant's request, the Applicant was transferred to another school upon her return having been absent for the 2017 year. The Principal, Mr Gleadhill and Deputy Principal, Ms Flesser gave oral evidence at the hearing of this matter. I accept the evidence of Mr Gleadhill and Ms Flesser as an accurate account of their experience with the Applicant. As with the witnesses from the former school, both witnesses were measured in their evidence and did not appear to hold any animosity towards the Applicant.

• [67] The Applicant stated that she was told that she would be placed in an intervention teacher role following her transfer to Coombabah SS for Term 1 2018, however, there was no evidence provided confirming that arrangement. Mr Gleadhill gave evidence that he had no knowledge of any suggestion that the Applicant was to be placed in a role as an intervention teacher.

• [68] Ms Flesser gave evidence that she noticed the following with respect to the Applicant's classroom:

There were some things I noticed when I visited the classroom, [her] thoughts [were] random in nature; not logical in sequence; explicit teaching not evident at all, explanations on how things are done were not given by the teacher; no evidence of differentiating which is adjustments for different students; confusion, with students looking at each other to work out what they needed to do; the behaviour was not structured or controlled.

• [69] Ms Flesser gave evidence that she recalled a particular maths assessment where she entered the classroom and the Applicant did not notice that Ms Flesser had entered the room because the Applicant was on her phone. Ms Flesser noticed that students were talking to each other during the assessment.

• [70] The detailed lesson observation sheets provided by Ms Flesser and Mr Gleadhill outlined significant deficiencies in the Applicant's teaching. When the MUP process recommenced, the Applicant did not produce lesson plans despite it being a requirement of the MUP process.

• [71] Ms Flesser gave evidence that she conducted an interview with six students to ascertain whether the students were getting feedback from the Applicant through marking. Ms Flesser stated that there was no teacher marking that she could see in the students' workbooks and there were no comments for improvement. There was no written feedback in their books and the students indicated to Ms Flesser that there was little to no oral feedback provided.

• [72] Ms Flesser also gave evidence that she recalled entering a classroom and seeing all of the students' literacy results displayed on the electronic whiteboard so that all the students could see each other's diagnostic reading test results. Ms Flesser also recalled the general untidiness of the classroom.

• [73] Ms Flesser gave evidence that the Applicant had communicated to her that she did not want to attend team meetings and wanted to do things her own way.

• [74] Mr Gleadhill gave evidence that he recalled walking into the Applicant's classroom and observed the Applicant was walking around without shoes and was looking at her phone. He observed that the classroom floor was a mess and students were walking in and out as they pleased. On the first lesson, Mr Gleadhill noted that two students came in an hour late for the lesson and no explanation was sought. The attendance roll had been marked incorrectly and on another occasion, he observed seeing students throwing a soccer ball around the classroom.

• [75] Mr Gleadhill also gave evidence that when the Applicant was given feedback, she did not challenge the actual performance feedback but simply said that she was happy with what she was doing. Mr Gleadhill stated that he got to the point where he put the Head of Special Education Services in the classroom permanently to support the SEP students who were struggling and to ensure basic student safety. This followed the Applicant marking a student as present when he was in fact absent. Mr Gleadhill stated that this is a safety issue because this would result in the parents thinking that the child is at school when they could be anywhere.

• [76] It is clear from the Applicant's evidence that she felt enormous pressure as a consequence of the MUP process. What is not clear, however, is the nature of the work that she claims was done outside of normal working hours. There was no evidence of the output associated with working such extensive hours. One example is the production of routine documents such as lessons plans. The evidence is that the Applicant did not produce lessons plans as required by the MUP process. In the minutes of one meeting with Mr Gleadhill and Ms Flesser,[5] the Applicant is noted as saying the following in response to queries about why she had not produced a lesson plan for a particular lesson:

• She does not have separate planning for the English lesson
• She goes with the flow
• There is no lesson plan because I don't have time

• [77] In response to Mr Gleadhill's question as to how she will teach the lesson without a lesson plan, the Applicant is recorded as having replied that it was easy because she was an experienced teacher.

• [78] The Applicant submitted that the observations noted by Mr McMillan were not an honest assessment of her performance in 2016. There is no evidence other than the Applicant's testimony to indicate that the observations noted by Mr McMillan were anything other than an accurate reflection of what he witnessed at the time. It is unlikely that Mr McMillan's account was inaccurate given that similar observations were made by observers of other lessons both prior to and following this time.

• [79] Mr Gleadhill stated that because the Applicant was not showing any improvement and had refused to engage with the MUP process, he made the decision to recommend that the Stage 2 process be truncated.

• [80] Mr Gleadhill's email attaching his letter of recommendation to truncate the process to the Director of Human Resource Business Partnering in the southeast region, Ms Kirsty Payne states:

I have tried to be honest and factual and it's written out of concern for the damage to students and our state schooling system that I have needed to put this in writing.

• [81] Mr Gleadhill's letter stated the following:

In my experience MUP processes are often a wake up call to staff that they are underperforming and they need to lift their game or it provides them with the realisation that teaching is not for them (for a variety of reasons) and they choose to leave the profession.

This MUP process however, has gone well beyond the above examples, as the person involved is clearly not fit to present each day in front of a class of 27 students. Her continued behaviours are irrational, rude and illogical and go completely against the State School Priorities, especially teaching quality and improving student outcomes.

• [82] Mr Gleadhill's letter proceeds to outline his frustration at the damage the Applicant's behaviour is causing to the reputation of Coombabah SS.

• [83] I accept that Mr Gleadhill's decision to request that the Stage 2 process be truncated was reasonable on the basis that the Applicant's performance was not improving and was not likely to improve whilst she refused to engage with the MUP process. Mr Gleadhill acted out of genuine concern regarding the impact the Applicant's teaching performance was having on the students in her care.

• [84] Stage 3 of the MUP process commenced with the external reviewers, Ms Bentley and Mr Josey meeting with the Applicant to explain the process involved in Stage 3. The Applicant was given the opportunity to nominate three lessons which the external reviewers could attend to observe, and was advised that an additional lesson would be observed unannounced.

• [85] The oral evidence given by Ms Bentley with respect to the third observation in which she had to take control of the class was particularly compelling. Ms Bentley is an experienced teacher, former Principal and now Regional Director for the Respondent who had recently undergone training in MUP processes prior to her involvement in this matter. Ms Bentley gave detailed evidence of the Stage 3 MUP process and had a clear recollection of the classes she observed. Ms Bentley observed that the third observation lesson was so chaotic that she had to take control of the class whilst Mr Josey followed up students who had left the class crying.

• [86] The Stage 3 MUP Report stated that the Applicant displayed a lack of content knowledge, preparation, and capacity to provide a basic structured session for the learning. It outlined the disconnect between the Applicant and the students as significant with poor personal learning relationships, limited mutual respect, break-down in feedback, formative assessment practices and chaotic routines. Problems included the Applicant not knowing student's names, grammatical and spelling errors in material, no feedback and superficial content.

• [87] Feedback was given to the Applicant following each of the four lessons observed by the external reviewers. In cross-examination, the Applicant challenged Ms Bentley's assessment that her teaching was 'superficial' and put to Ms Bentley a question regarding democracy that she had asked students to consider as evidence of higher order content. Ms Bentley gave evidence that although this was a higher-level question, she did not believe the process was higher order. The Applicant did not question other aspects of the Stage 3 report, including Ms Bentley's evidence that the chaotic nature of the classroom resulted in her terminating her arranged observation in order to take control of the class. In such circumstances, it was reasonable to progress to Stage 4 of the MUP process.

• [88] The Applicant gave evidence that the level of parent complaints was high in number because the class was a "bad mix of demanding parents and difficult kids". Not only was this denied by the leadership team at the school, it also did not explain why the complaints and performance concerns continued after the Applicant transferred to a different school and teaching a different year level.

• [89] The Applicant submitted that her class in Coomera SS was particularly challenging, stating:

The class was very, very, poorly designed and as a result I had a mixture of very demanding and very manipulative parents to contend with.

• [90] Ms Salazar gave evidence that a spreadsheet was produced outlining the student matrix of each class. This spreadsheet was used to ensure a balanced class based on previous years academic results, balance behaviours, interpersonal conflict, learning difficulties, and to ensure a balance between the classes. The Applicant was emailed information regarding the spreadsheet and was offered an opportunity to discuss the spreadsheet and spread of students amongst the classes, however, the Applicant did not take up this offer. The Applicant submits that the student spread may have changed in Day 8 in 2016 and throughout the year, however, there is no evidence that this had a significant impact on the class dynamic.

• [91] The Applicant submits that Ms Salazar's disrespect 'rubbed off' on the parents and the children in her class, submitting:

... it is clear, that Shiree's open disrespect towards me was rubbing off on the parents and children in my class, encouraging them to be manipulative in their complaints against me for the purpose of modelling to children that they will get ongoing, individual attention, by 'victimising [sic] me, through exaggerated complaints, the twisting of what I said or how I handled a situation or not acknowledging that in some situations I may have needed to use my "voice" as a last resort to ensure the safety of all my students due to the challenging behaviours that were occurring in my room. Parent's [sic] feed off administrations [sic] responses and manipulatively support children's misuse of the word "yelling".

• [92] There was no evidence provided to the Commission that Ms Salazar encouraged parents or children to make complaints against the Applicant. The evidence suggests a pattern of ongoing 'yelling', or as the Applicant submits, 'using her voice'. This was not a one-off occurrence to address a safety issue, rather it was a regular occurrence over an extended period of time. There is no evidence that the students misused or misunderstood the word 'yelling'.

• [93] The Applicant submits that the concerns raised by teachers Ms Dawn Shepherd, Ms Jacqui Larson, and Ms Caitlyn Savage were not always truthful and were driven by personal agendas. She describes teaching partner, Ms Ruth Cook's reported concerns as obsessive, compulsive and vexatious. The Applicant submits that the recollections of Ms Flesser at Coombabah SS were inaccurate and exaggerated. The Applicant also stated that the emails from her teacher partner, Ms Yvonne Price at Coombabah SS were inaccurate. The Applicant dismissed the complaints of her former colleagues, Ms Savage and Ms Larson as rude and gave evidence that they were all ganging up on her. There was no other evidence before the Commission that there was any orchestrated attempt to 'gang up' on the Applicant.

• [94] There is a consistent pattern throughout the MUP process of the Applicant attempting to discredit anyone who raised concerns about her behaviour or teaching performance, rather than addressing the substance of the complaint. It is simply not plausible that multiple educators of varying seniority across different schools colluded to misrepresent the Applicant's performance deficiencies.

• [95] The Applicant attempted to psychoanalyse the motives of those involved in the process but did not appear to consider at any stage that there may in fact be genuine issues with her performance. The Applicant gave evidence that the process ignited her 'fight or flight' response, was an exercise in gaslighting, and an abuse of process. The Applicant stated that her response to the process reflected her right to self-preservation.

• [96] The Applicant appears to have adopted a perspective that resulted in an inability to take on feedback from others in the workplace. It seems that at no stage of the lengthy performance management process did the Applicant show any capacity for reflection on her performance. This is despite concerns raised by the Principals, Deputy Principals, co-teachers, and other staff across the two schools. I note the Applicant's submissions that she would not internalise their views. The difficulty with that mindset is that it confirmed that her performance was not going to improve as the Applicant did not believe it needed to improve.

• [97] The Applicant made submissions that the MUP process involved a number of procedural failures that rendered the process unfair. These submissions relate primarily to the following, which are considered below:

• proceeding with the show cause process despite contrary medical advice;

• not allowing the Applicant to test the validity of each complaint;

Proceeding with the show cause process following medical advice

• [98] The Applicant appeared to be concerned about potentially being labelled as having a 'mental illness' throughout the MUP process. At the hearing this point was mentioned, with the Applicant again confirming that her case was not that she had a mental illness throughout this process or was unfit to perform her role as a teacher, but that the process added to her feelings of anxiety and being overwhelmed.

• [99] Following the issuance of the show cause notice by the Board of Review, the Applicant was absent on sick leave for almost a year. The Applicant relied upon the letter by Dr Lotz dated 5 February 2019, which stated the following:

I have read and discussed the recent independent psychiatric examination by Dr Duke, I concur with his findings, however, believe that Ms Porche is capable of returning to work fulltime and does not need to undergo a return to work program.

I have mentioned previously that I do not believe that she would manage a performance management process, and would recommend that no further action is taken, Ms Porche is capable of returning to work and I would advocate this occur as soon as possible.

• [100] The Applicant referred to Dr Lotz's letter which recommended that she could return to duties but could not undergo the performance management process when cross-examining Mr Coghlan. The Applicant put to Mr Coghlan that it was a procedural flaw in the process for the Respondent to 'override' this medical recommendation. Mr Coghlan gave the following evidence:

Part of being available to perform your duties as a teacher is to participate in any performance process or any other duties required of a teacher. And that is: one of the duties of a teacher is to perform their role satisfactorily. If not, the other part of those duties is to participate in any performance improvement process required is fundamental to the role of a teacher. ...part of being your role of a teacher is to participate in performance improvement process as required.

• [101] The opinion of Dr Lutz was not shared by Dr Duke, who had provided the IME report. The Respondent relied on the opinion of Dr Duke in determining that the show cause process could continue. As outlined by Martin J in Erian v State of Queensland (Department of Agriculture and Fisheries):[6]

...One of the reasons that treating medical practitioners do not ordinarily provide a report (other than as to the treatment they have provided) is that an expert's report must be independent...

• [102] Dr Lotz was the Applicant's treating doctor rather than an independent doctor. I accept the Respondent's submission that the language of Dr Lotz's report is not the language of an independent medical opinion. In these circumstances, it was reasonable for the Respondent to give greater weight to the independent medical opinion provided by Dr Duke.

• [103] I also accept that a teacher is either fit to perform duties and be accountable for their performance or they are not. It is not reasonable to allow a teacher to perform their duties without any performance accountability on the basis that they are not medically fit to be performance managed.

Opportunity to test the validity of individual complaints

• [104] The Applicant submits that every complaint noted in the documentation was not put to her at the relevant time to allow her to test its validity. The Applicant submits that this amounted to a breach of procedural fairness.

• [105] The Respondent submits that the substance of every issue was raised with the Applicant throughout the process and that the Applicant accused Ms Salazar of twisting the truth and gave evidence that her class were "a bad mix of bad parents and difficult children". In this context, the Respondent submits it was appropriate to not give the Applicant the details of each parent so she could interrogate them. I accept the Respondent's submission that the Applicant's lack of insight meant that it would not be appropriate to give the details of every parent complaint. This is particularly so when some of the complaints related to how unapproachable some parents found the Applicant to be as a teacher. There is no evidence that the Applicant requested or was denied the details of any complaint. I note that a significant number of specific parent complaints and staff complaints were put to the Applicant throughout the process.[7] The oral evidence from Ms Salazar confirmed that issues were raised with the Applicant regularly and soon after they emerged.

• [106] A significant number of parent complaints had been put to the Applicant at or near the time they were raised. The Applicant confirmed with Ms Salazar at the time that she did not let a child go to the toilet because he engaged in 'work avoidance' and was aware of a number of the other specific complaints. One example was a student who had refused to attend the Applicant's class and arrangements were made for the child to be brought in for swimming lessons only. Ms Salazar gave evidence that she gave the Applicant feedback about ways she could deal with continual toilet visits with, for example, follow-up work during playtime or speak with the parents.

• [107] The Applicant was also made aware of issues regarding another student whose parents refused to send her back to the Applicant's class. This student had a bowel dysfunction and in cross-examination, the Applicant recalled the issue being raised at the time, saying:

[student] was extremely manipulative, so she could get teacher attention, so her Mum could get attention from me.

• [108] The Applicant was made aware at the time that another student had been moved out of her class and that the carer had made allegations that the Applicant yelled regularly. The Applicant was aware that another student's mother had raised concerns regarding her lack of learning extension. Ms Salazar gave evidence that the Applicant was generally dismissive of the complaints when they were raised.

• [109] The question was asked of Mr Coghlan by the Respondent whether every single complaint by student, parent and staff would usually be presented to a teacher. Mr Coughlan answered that it was a matter for each Principal to determine at a local level. However, in this matter he saw significant reflection on the performance process by a range of people, including principals, deputy principals, independent principals throughout the entire process. Mr Coghlan stated:

... What I expect to see is a process in which you have the concerns identified to you, whether individually or summated, and then you have an opportunity to demonstrate performance improvement over a range of period of times and in [the Applicant's] particular circumstances that was over an extended period of time, with extended support across two school settings by both the administrations teams of those two schools, and independent principals and deputies.

• [110] The evidence was that, depending on the nature of the complaints, parents were generally encouraged to raise their concerns with the teacher at first instance. I accept that this is not always appropriate, particularly in circumstances in which concerns have been raised about the manner of the teacher, as in this case.

• [111] The evidence from both schools indicate that the substance of every issue was raised with the Applicant throughout the process. I accept that the Applicant was also aware of most of the specific complaints through the regular meetings with school administration.

• [112] In cross-examination the Applicant admitted to many of the performance concerns such as missing marking the roll and having students answer the classroom phone. The Applicant accepted that the classroom was untidy on occasions and admitted that Ms Salazar had raised with her the issue that the cleaners were refusing to clean her classroom. The vast majority of issues were raised with the Applicant on a timely basis throughout the process.

• [113] I accept that in the circumstances of certain complaints it was reasonable to put the complaint to the Applicant in generalised terms rather than specific details. One such example is the matter in which parents raised concerns that the Applicant was unapproachable. Considerations of whether the Applicant was in fact 'unapproachable' are not particularly relevant, with the focus on ensuring that the Applicant was aware of the concerns generally and support given to improve her dealings with parents. I accept the Respondent's submission, that to allow the Applicant to interrogate each parent would have been inappropriate in the circumstances. The course of action taken by the Respondent to put some complaints to the Applicant in general terms to ensure the substance could be addressed was entirely reasonable.

• [114] The Respondent submits that the regular nature of the complaints was an issue not simply because of the nature of the complaints, but because it was relevant to the requirement to have respectful collaborative relationship with parents and carers regarding their children's learning and wellbeing. The Applicant did not have the relationships with parents that she needed to have as part of her duty as a teacher.

• [115] I accept that the substance of the complaints, and in most cases the exact complaints, were put to the Applicant at or soon after the time they occurred. However, even if the complaints that were not presented individually to the Applicant are excluded from consideration in this matter, it is clear that the Applicant was still unable to comply with the requirement that she maintain respectful collaborative relationships with parents and carers.

• [116] The evidence confirms that the performance issues were regularly put to the Applicant over a long period of time. The few individual complaints that were not put to the Applicant were of limited significance in the context of the entire process.

• [117] The Applicant provided responses to the show cause letter on 22 March 2019, 29 March 2019 and 1 April 2019. The Applicant's responses indicated that she objected primarily to the process. The Board of Review considered the Applicant's submissions and agreed to recommend the termination of the Applicant's employment.

• [118] The Applicant submitted that the involvement of Mr Mark Anghel, the internal legal officer at the QTU, in the Board of Review decision resulted in a flawed disciplinary process. Mr Anghel attended the Board of Review meetings as a representative of the QTU.

• [119] Mr Anghel gave evidence that his role at the QTU was to provide general advice regarding the MUP process and to identify if external legal assistance should be provided depending on the member's particular circumstances. He stated that his usual process would be to provide general advice to members on the MUP process and then email details of the process to the member. He would then recommend that they work with their local QTU Organiser throughout the MUP process. Mr Anghel gave evidence that he followed this process in this matter.

• [120] Mr Anghel gave evidence that his role as the QTU nominee on the Board of Review was to ensure that any disciplinary process had been followed correctly by the Respondent. Mr Anghel stated that on previous occasions, he has had robust conversations with the Board of Review and where a process has been deficient, he has advocated to ensure that the matter is sent back to ensure any disciplinary process undertaken is procedurally fair. Mr Anghel was not of the view that the process was deficient in the Applicant's matter.

• [121] Mr Anghel stated that he had a number of conversations of a general nature with the Applicant and referred her to the QTU Organiser, Ms Jodie McFadden for ongoing support. The Applicant requested a new organiser following her transfer to Coombabah SS and was then supported by QTU Organiser, Ms Kelly Creedon. Mr Anghel was not involved in providing any individualised support to the Applicant as part of her MUP or disciplinary process.

• [122] The Applicant conceded in cross-examination that she recalled Mr Anghel advising her directly that he would be on the Board of Review. It was therefore no surprise to the Applicant that Mr Anghel would be involved in examining her matter to ensure that the Respondent had adhered to the correct MUP and disciplinary process at the Board of Review stage.

• [123] I am not persuaded that Mr Anghel's role in the Board of Review process rendered the process procedurally unfair. He was not involved in providing the Applicant specific advice with respect to the substance of her matter prior to the Board of Review deliberations, with this direct assistance provided by QTU Organisers. Mr Anghel's role in the process at the Board of Review level was to ensure the MUP process was followed correctly and that the Applicant was afforded the opportunity to respond to the show cause notices as part of the disciplinary process. There is no evidence that this process was in any way compromised as a result of Mr Anghel's involvement.

• [124] The Applicant submits that she had been 'set up to fail', describing the management of the MUP process as 'unsupportive, inflexible and non-employee focused'. The Applicant also submits that the outcome had been pre-determined.

• [125] There is no evidence that anyone involved in the process wanted the Applicant to fail. Mr McMillan gave evidence that he wanted the Applicant to have all the support she needed to allow her to meet the performance expectations. The extensive amount of support given to the Applicant over the entire period, including Student Engagement Coach sessions, weekly meetings with school leadership and regular feedback indicates that the Applicant was given every opportunity to succeed.

• [126] The Applicant submits that the letter sent by Mr Gleadhill to Ms Payne on 16 February 2018 was evidence that he had a "preconceived intent to place [the Applicant] on this MUP program regardless of how [the Applicant] performed in the first 18 days at this school". It appears that the Applicant has misunderstood the 20-day settling in period as being a period to determine if the MUP should proceed. This period was clearly communicated as a time to allow the Applicant to settle into the new school after which the MUP process would proceed as previously advised. Following the recommencement of the process, if the Applicant had then satisfied the performance requirements of the MUP process, the process would presumably have gone no further.

• [127] The Applicant referred to an email from Mr Shayne Galt to Ms Salazar in which he inquired whether the Applicant had an underlying medical condition. Mr Galt states the following in the email:

Our biggest concern is that we get through the process without questioning if she has any health concerns that could be impacting on her performance, only to have her raise this at the board of review stage. In our experience, the expectation from the board of review is that if there is any indication an employee has a medical that could be impacting on performance then this should be raised and addressed by the department. Given Letitia has raised she is seeing a psychologist and her behaviour/actions/comprehension throughout the process has raised some concerns, I think we need to address this matter before proceeding with a formal managing unsatisfactory performance process.

I have talked to Kirsty Payne and she agrees with this course of action. I would like to discuss this with you further as there are a number of steps that have to occur before we can consider proceeding to and Independent Medical Examination...[8]

• [128] The Applicant put this email to Mr Kluck in cross-examination, who responded that he disagreed with the Applicant's characterisation of the email as indicative of a pre-determined outcome. I accept that this email was intended to simply ensure compliance with each stage of the process. It is a reality that some MUP processes will continue to the Board of Review stage whilst others successfully conclude before that stage. Ensuring that all processes are complied with along with the way is simply sound practice. If the Applicant had engaged with the process and been able to successfully demonstrate her professional competence, I am satisfied that the matter would not have progressed to the Board of Review stage.

• [129] In cross-examination, Mr Kluck confirmed that a telephone conversation was had with the Applicant in which she indicated that she did not believe the MUP process should be proceeding as the process was a 'manipulation'. Mr Kluck denied the Applicant's contention that he had agreed that the MUP process was an abuse of process, stating only that he recalled the Applicant making that statement.

• [130] In my view, the level of support provided to the Applicant confirms that the termination of her employment was not a pre-determined outcome. The Student Engagement Coach appointed to assist the Applicant by offering feedback and modelling appropriate performance provided approximately 28 sessions with the Applicant. Following the commencement of the MUP process, the Applicant was given extra time on Tuesday mornings away from her class to plan her workload. The Applicant was given every opportunity to succeed in meeting the performance requirements of her role. These and other support processes provide a sufficient basis to conclude that the Applicant was in no way set up to fail.

• [131] As part of the submission that the outcome was pre-determined, the Applicant also submitted that prior to commencement of Term 1 with Coombabah SS, she received a letter from Mr Gleadhill confirming the dates that a familiarisation process would run, the pupil-free days and confirming the MUP process will start in Week 5 of Term 1 (following a 20-day 'settling in period'). The Applicant submits that the MUP process commenced earlier than Week 5 as evidenced by the level of scrutiny of her performance. The Respondent submits that although there was a 20 day 'settling in period' prior to the recommencement of the MUP process, this did not mean the Applicant was not subject to the norms of professional behaviour. The Respondent submits that complaints about the Applicant began almost immediately upon commencement of the school term.

• [132] I accept that the MUP process did not formally re-commence until Week 5 and that any documentary notes regarding complaints or performance issues were recorded as they would have been with any other teacher not on a MUP process. The 'settling in period' did not require the school administration to ignore concerns when they were raised. The period was intended to allow the Applicant to familiarise herself with the school processes before focusing on the MUP process, not a hiatus from professional accountability. Standard observations and the taking of contemporaneous notes of the Applicant's performance within the first 20 days did not suggest that the outcome of the MUP process was pre-determined or that procedural fairness was not afforded.

• [133] In the Applicant's Statement of Facts and Contentions, it is contended that the performance management process was flawed as it was commenced as a consequence of bullying by Ms Salazar at Coomera SS. In the Respondent's Statement of Facts and Contentions, the Respondent stated that the allegation of bullying was examined and the Regional Director found that she was not satisfied that the actions taken by the Coomera leadership team were unfair or represent bullying and harassment and that the actions of Mr McMillan and Ms Salazar were considered reasonable management action. Given that the performance issues witnessed by Ms Salazar were also identified by Mr McMillan, Ms Flesser, Mr Gleadhill, Ms Bentley, Mr Josey and other staff, I do not accept that Ms Salazar's involvement in the commencement of the process rendered the process unfair.

• [134] Examining the MUP and disciplinary process from a procedural viewpoint reveals a considered process throughout which the Applicant was included in all aspects of the lengthy procedure, in that:

• the Applicant was given documentary feedback making her aware of concerns regarding her performance as far back as 18 November 2015 following the informal classroom visit by Mr McMillan at Coomera SS. Mr McMillan conducted a regular classroom visit as he would do with every other teacher. Following this visit, the Applicant received feedback that listed constructive improvement recommendations and noted that the lesson 'was not successful';

• the Applicant was given multiple opportunities over the lengthy process to address the concerns of the Respondent. The Applicant accepted in evidence that Ms Salazar raised many issues as per the detailed chronology dated 25 February 2016. Mr McMillan arranged weekly or fortnightly meetings to discuss how the Applicant was tracking against the criteria;

• the Applicant acknowledged that she was told that the timeframe to demonstrate improvement was by August 2016 before consideration was given to progressing to a Stage 2 formal process;

• Mr McMillan formed the view that the Applicant was not meeting expectations based on unsolicited parent complaints, student issues, children not wanting to go to school, and staff observations. It was reasonable in these circumstances to progress to a formal Stage 2 MUP process;

• after the Applicant was transferred to Coombabah SS, she went through an induction to ensure she was aware of staff and duty responsibilities and where she could seek support (e.g. the Head of Curriculum, Master Coach and teaching team cohort);

• a 20 day settling in period was held prior to re-commencing the MUP process. The evidence of Mr Gleadhill and Ms Flesser was that deficiencies in the Applicant's performance became apparent almost immediately;

• following the findings that the Applicant had not engaged in Stage 2 of the MUP process, Stage 3 of the process commenced. Stage 3 of the MUP process allowed the Applicant to identify which three lessons she would like the external reviewers to attend. Only one class had the presence of the reviewers unannounced. After every observed lesson, the Applicant met with the reviewers to discuss their observations. This process offered the Applicant the very best opportunity to demonstrate her performance as a classroom teacher;

• the notes taken by the external reviewers for the Stage 3 MUP process are specific and provide a clear picture of a teacher who is not performing to an acceptable standard. The Applicant was given every opportunity to perform at her best throughout the Stage 3 MUP process, particularly given that she was able to nominate the three classes in which she was to be observed by the external reviewers; and

• following the external reviewers' observations and review of the MUP process to this point, it was entirely reasonable to conclude that disciplinary action should be considered and to refer the matter to the Board of Review.

• [135] In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam,[9] Gleeson CJ discussed the manner in which procedural fairness cases are approached by the courts:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

• [136] In applying the conception of procedural fairness as a concept to avoid practical injustice, I am satisfied that the Applicant suffered no practical injustice in the determination of this matter. All stages of the MUP process were undertaken in a procedurally fair manner, with the Applicant advised of each step throughout the lengthy process. The Board of Review gave the Applicant the opportunity to show cause with respect to the allegation and the proposed disciplinary penalty, ensuring no decisions were made without first providing the Applicant with the opportunity to be heard.

Was the dismissal harsh, unjust or unreasonable?

• [137] The High Court considered in Byrne v Australian Airlines Ltd,[10] whether, in all the circumstances of that matter, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. The decision related to the matter of R v Industrial Court of South Australia; Ex part General Motors-Holdens Pty Ltd,[11] in which the court considered that a lawful dismissal may be legitimately categorized as harsh and unreasonable and wrongful dismissal where an excusable mistake has been made might deserve none of these adjectives. The Court noted that:

...The criterion is not lawful or wrongful dismissal, but harsh, unjust or unreasonable.[12]

• [138] Given the above consideration, the question of whether the process was procedurally fair must be considered along with the substance of the matter as a procedural deficiency will not necessarily result in a determination that the dismissal was harsh, unjust or unreasonable. In this matter, I am satisfied that the substance of the performance issues raised over the extensive period of time were put to the Applicant on a regular basis ensuring that there were no genuine procedural deficiencies that impacted on the final determination of the Applicant's employment. If the individual complaints that were not specifically put to the Applicant at the time they occurred are excluded from consideration, the remaining performance deficiencies were sufficiently serious to warrant dismissal.

• [139] The Applicant submits that she was overloaded with excessive administration procedures, excessive scrutiny and excessive workload. From the evidence before me, the greater level of scrutiny was a reasonable response to concerns raised by students, parents and colleagues regarding the Applicant's performance. I am not persuaded that the Applicant was subject to excessive administration procedures or workload. It is a reasonable expectation that teachers will draft lesson plans and in the Applicant's case she was provided with time away from the classroom to undertake this work. It seems to me that the Applicant viewed requirements such as the provision of lesson plans as an unnecessary addition to her job, rather than as tools to assist her to perform her usual job to a satisfactory standard.

• [140] Much of the Applicant's evidence and submissions addressed broad issues such as being overworked and noted that she was required to attend an excessive number of meetings. I note that at no stage was the Applicant required to attend meetings outside of work hours and time within her workday was given away from her class during work hours to support her writing of lessons plans. Attending meetings during work time and drafting relevant documents directly relevant to her teaching could not reasonably be considered excessive workload.

• [141] The Applicant responded to the show cause process by objecting to being made to respond to 'trivial' matters alleged to have occurred over such a long period. The difficulty with the Applicant's submission that the particulars were 'trivial' is that the culmination of single incidents have a serious impact over time. The extensive chronology of matters in evidence outlines performance deficiencies that whilst taken as a single act may not be viewed as serious, become a genuine performance issue when repeated. One example is the untidiness of classroom. On a single occasion this may be considered trivial, however, when an email is received from the school cleaners advising that they cannot clean the Applicant's room because of the consistently messy state, then it becomes a genuine performance issue. Other issues ranging from failure to conduct effective lessons to yelling at students are issues that if repeated, become serious performance issues. A number of issues such as failing to mark the roll properly are serious safety issues on every single occasion.

• [142] The Applicant describes the issues raised as 'nit-picking' and shows limited insight into the cumulative impact these failures have on student's safety and learning. The indifference to parent complaints and dismissal of colleague concerns as motivated 'by other agendas' suggests a pattern of thinking that was unlikely to improve. The continued pattern of unprofessional conduct confirms that the Applicant was either unable or unwilling to perform her duties in accordance with the requirements of the role.

• [143] The Applicant dismissed the concerns raised about her performance as 'micro-management' and clearly did not see the requirements outlined by the administration team in either school as necessary. In response to the allegation that the almost exact assessment piece was being taught to students in class, the Applicant gave evidence that "this deliberate fault finding was not conducive to a happy workplace". In response to a similar allegation regarding a separate piece of assessment from colleague Ms Larson, the Applicant stated, "this is an abuse of process".

• [144] In my view, the Applicant's description of 'intense micro-management' was simply accountability processes established to ensure that students were not experiencing adverse safety or education outcomes. Being spoken to about undermining assessment by using slightly amended versions of assessment tools in class was not micro-managing, it was necessary to ensure the validity of the assessment. Similarly, it was not micro-management to direct a teacher to mark the roll accurately, it was a requirement of a teacher's role.

• [145] The Applicant gave explanations for one-off occasions in which there was a legitimate explanation for incidents within her classroom. One example is that it was a replacement teacher that did not mark the roll for her class on a particular date. No explanation was given for the other times that the roll was not marked on days in which the Applicant had control of her class.

• [146] There is no reason to indicate that the performance concerns raised could not have been addressed by the Applicant, however, this was unlikely given the Applicant's response to the intervention by the leadership of the schools in which she was based. The blunt refusal to accept feedback and engage with the MUP process in order to improve her performance reflects a puzzling lack of insight into her situation.

• [147] I have examined the chronology of events covering the provision of informal feedback and support to the formal MUP process and ultimately the show cause process. These processes were undertaken in an appropriate manner and I am satisfied that the Applicant was given extensive support to enable her to address the performance issues. The Applicant gave evidence that she did not feel that the support provided by the Respondent was in fact support. In the context of a question regarding the support of a coach for a task, the Applicant stated "support would have been for her to do it", reflecting a consistent theme that the Applicant viewed support in the form of coaching as simply more work to do rather than an opportunity to improve.

• [148] The oral evidence given by Mr McMillan and Ms Salazar from Coomera SS, Mr Gleadhill and Ms Flesser from Coombabah SS and by the external reviewer Ms Bentley was compelling in that it confirmed that whilst every attempt had been made to support the Applicant, she was simply not performing the duties required in her role as a teacher over an extended period of time.

• [149] The Applicant made extensive submissions that the dismissal was harsh given the impact that the loss of employment would have on her personal circumstances. The Applicant made following submission:

The situation exposed me to further abuse in the home and resulted in the chain of causation of events that included the loss of my full-time parenting rights, marriage breakdown, financial hardship, loss of quality of life, loss of life goals including sporting and holiday goals, loss of time with my daughter and the achievement of her developmentally appropriate goals. The entire situation was unfair, unjust, unreasonable and it was too harsh to terminate me from my employment.

• [150] The Applicant feels aggrieved that her employment has been terminated in circumstances in which she is a single parent and is responsible for mortgage payments and other financial commitments. I accept that the decision to terminate the Applicant's employment has had a serious impact on her personal life and her ability to service her financial obligations. It is unfortunate that a teacher who had spent many years in her profession could not find a way to engage with the process to improve her performance and maintain her employment.

• [151] If the Applicant had meaningfully engaged with the MUP process or accepted coaching and feedback, it may well be that the decision to terminate could be considered harsh. However, the Applicant's insistence that performance management was in fact bullying and that the complaints were motivated by other agendas meant that the extensive level of support and coaching was never accepted by the Applicant. The Applicant's consistent refusal to accept that there was any basis for the continued complaints from students, parents and staff meant that the Respondent had no option after such a long period of deficient performance but to terminate her employment. The safety and learning outcomes of the students were dependent on the Applicant performing at the level expected of a teacher. The decision was not harsh in that it was proportionate to the substantiated conduct which had occurred over a lengthy period of time without any prospect of improvement. It was just, fair, and reasonable in the circumstances.

• [152] In consideration of s 320 of the IR Act, I accept that the Applicant was notified of the reasons for dismissal in a letter from the Respondent dated 3 June 2019 in compliance with s 320(a).

• [153] As determined by President Davis in Hickey v State of Queensland (Department of Communities, Disability Services and Seniors) (Disability Accommodation and Respite and Forensic Disability Service),[13] a consideration in determining whether a dismissal is unfair is whether the employee had previously been placed on notice as to the unacceptability of the conduct. Section 320(c) of the IR Act provides that the employee must either be warned about the conduct, capacity or performance, or given an opportunity to respond to the claim about the conduct, capacity or performance. In this matter the Respondent complied with both aspects of s 320(c).

• [154] The Applicant was advised via correspondence from Mr McMillan dated 8 November 2016 that she was to be subject to a formal Stage 2 MUP process. The correspondence outlines the areas of performance concerns previously discussed between the parties and includes the following paragraph:

If at the conclusion of the managing unsatisfactory performance process your performance remains unsatisfactory a disciplinary process may be initiated which could result in the termination of your employment.

• [155] The Applicant was advised via correspondence from Mr Norfolk on 6 March 2018 that following concerns relating to the risk of student health and safety and learning outcomes, Stage 3 of the MUP process would be commenced. Mr Norfolk outlined the Stage 3 process and advised that after consideration of the Stage 3 process report the following may occur:

As regional Director I will consider the report and may:

• Dismiss the matter providing reasons for doing so to you and the Principal; or

• Submit to the Board of Review a letter recommending that the Board of Review consider a particular form of disciplinary action, including termination of employment, pursuant to Section 187 of the Public Service Act 2008 and attaching a summary of the MUP process and relevant documentation; or

• [156] The Applicant had clearly been placed on notice that her performance was unacceptable and was aware that her continued employment was contingent upon satisfactory performance. I accept that the Applicant had been warned that failure to improve her conduct, capacity or performance would result in escalation of the MUP process and potentially result in termination of her employment.

• [157] In compliance with s 320(c)(ii) of the IR Act, the Applicant was given an opportunity to respond to the claims about her conduct, capacity or performance throughout the MUP process and also in response to the show cause notices through the disciplinary process.

• [158] On 21 March 2019, the Applicant received correspondence from Mr Coghlan, inviting her to show cause as to why a disciplinary finding should not be made against her in relation to the following allegation:

That since the start of Term 3, 2015 you have failed to perform your duties to the standard expected of a Teacher.

• [159] The correspondence included extensive details of the performance deficiencies over the long period of time and the findings of the detailed Stage 3 MUP Report prepared by the external officers.

• [160] On 15 April 2019, the Applicant received correspondence from Mr Coghlan advising that he had considered her email responses of 22 March, 29 March and 1 April 2019 and the letter dated 22 March 2019 from the Applicant's treating psychiatrist Dr Lotz. The correspondence confirmed Mr Coghlan's finding that the allegation was substantiated and that pursuant to s 187(1)(a) of the PS Act the Applicant has performed her duties carelessly, incompetently or inefficiently. Mr Coghlan stated that he was considering whether disciplinary action should be taken and advised that he was giving serious consideration to termination of employment. He invited the Applicant to respond to the correspondence. Based on the substantial evidence before him, this finding was fair and reasonable in the circumstances.

• [161] I accept the Respondent's submission that it would have been untenable to have permitted the Applicant to continue to teach in circumstances in which her conduct as reported by students, parents and staff posed a genuine risk to both student learning outcomes and wellbeing.

• [162] In these circumstances, the dismissal of the Applicant from her employment was not harsh, unjust or unreasonable.

[1] OneSchool is the Respondent's software suite that schools use to run reporting and administrative processes.

[2] On 12, 14 and 28 April 2016; 3, 12 and 27 May 2016; 23 June 2016; 14 and 20 July 2016; 3, 17, 24 and 31 August 2016; 7 and 14 September 2016; 6, 7 and 12 October 2016.

[3] The period being 17 January 2018 to 18 February 2018.

[4] Section 189 of the PS Act was repealed under the Public Service and Other Legislation Act 2020 (Qld).

[5] Planning Meeting on 20 February 2018.

[6] [2020] ICQ 012 [37].

[7] As outlined in the Chronology document (e.g. 7 and 14 September 2016; 1 and 3 November 2016).

[8] Exhibit 5 Email from Shayne Galt to Shiree Salazar dated 27 September 2016.

[9] [2003] HCA 6 [37].

[11] (1975) 10 SASR 582.

[13] [2020] ICQ 22.