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[2022] ICQ 3
General information, not legal advice.
Industrial Court of Queensland
2022-02-08
Davis J
Original judgment source is linked above.
INDUSTRIAL LAW - QUEENSLAND - DISMISSALS - UNFAIR DISMISSAL - WHAT CONSTITUTES - Where the appellant was a teacher employed in a State (Department of Education) Primary School - where complaints about the appellant's performance were received - where a process of managing unsatisfactory performance was undertaken - where the Department concluded that the appellant could not be managed - where the appellant was dismissed - where the appellant brought an unfair dismissal claim - where the Queensland Industrial Relations Commission (QIRC) dismissed the claim - where the appellant appealed the decision of the QIRC - where the grounds of appeal were many and varied - whether any grounds show error of law or excess or want of jurisdiction - whether any other grounds identified
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842
Chambers v Jobling (1986) 7 NSWLR 1
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Erian v State of Queensland (Department of Agriculture and Fisheries) [2020] ICQ 012
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Porche v State of Queensland (Department of Education) [2021] QIRC 131
R v Bassi [2021] QCA 250
Re Minister for Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
SmithKline Beecham (Australia) Pty Ltd v Chipman [2003] FCA 796; (2003) 131 FCR 500
H Blattman of counsel instructed by Crown Law for the respondent
(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -
(a) performed the employee's duties carelessly, incompetently or inefficiently; or
(b) been guilty of misconduct; or
(c) been absent from duty without approved leave and without reasonable excuse; or
(d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
(e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee's appointment, secondment or employment by, in response to the requirement -
(i) failing to disclose a serious disciplinary action; or
(ii) giving false or misleading information; or
(f) contravened, without reasonable excuse -
(i) a provision of this Act; or
(ii) a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
(iii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.
(3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) -
(a) a public service employee under section 187A; or
(b) a former public service employee under section 188A.
(a) inappropriate or improper conduct in an official capacity; or
(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
victimising another public service employee in the course of the other employee's employment in the public service
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.
188 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.
(2) If the disciplinary action is taken following an agreement under section 187A(4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
(3) However, a monetary penalty can not be more than the total of 2 of the employee's periodic remuneration payments.
(4) Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee -
(a) must not be more than half of the amount payable to or for the employee in relation to the payment; and
(b) must not reduce the amount of salary payable to the employee in relation to the period to less than -
(i) if the employee has a dependant - the guaranteed minimum wage for each week of the period; or
(ii) otherwise - two-thirds of the guaranteed minimum wage for each week of the period.
(5) In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
(6) An order under subsection (1) is binding on anyone affected by it. ...
189 Suspension of public service employee liable to discipline
(1) The chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law. ..."
[4] Division 2 of Part 2 of Chapter 8 of the Industrial Relations Act 2016 (IR Act) concerns unfair dismissals. Section 316, 317 and 320 relevantly provide:
A dismissal is unfair if it is harsh, unjust or unreasonable.
(1) If it is claimed that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this part.
(2) The application must be made within -
(a) 21 days after the dismissal takes effect; or
(b) if the commission allows a further period on an application made at any time - the further period.
(3) An application may be made by -
(a) an employee; or
(b) with the employee's consent, an organisation whose rules entitle it to represent the employee's industrial interests.
(4) The registrar may reject an application if the registrar considers the dismissed employee is a person mentioned in section 315(1) as a person to whom section 316 does not apply.
(5) If the registrar rejects the application, the registrar must, by written notice, notify the applicant -
(a) that the application has been rejected; and
(b) of the reasons why the registrar considers the dismissed employee is a person mentioned in section 315(1) as a person to whom section 316 does not apply.
(6) The applicant may, by written notice given within 21 days after the registrar's notice is received, inform the registrar that the applicant wishes the application to proceed.
(7) If the applicant does so, the commission must deal with the application, despite the registrar's rejection.
(8) The commission and registrar must deal with an application as quickly as possible...
320 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
(b) whether the dismissal related to -
(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."
(1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of -
(a) error of law; or
(b) excess, or want, of jurisdiction.
(2) Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court's leave, on a ground other than -
(a) error of law; or
(b) excess, or want, of jurisdiction.
(3) However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
(4) If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court's leave on a ground mentioned in subsection (2).
commission means the commission, other than the full bench constituted by the president and 2 or more other members." (emphasis added)
(a) must give leave if it is satisfied it is in the public interest to do so; and
(b) may not give leave other than under paragraph (a)." (emphasis added)
"• was leaving the classroom to go and heat up food and eating it during teaching time;
"• the Applicant was distracted and typing on her phone during a staff meeting on 5 February 2018;
"• four formal lesson observations, each being deemed ineffective;
"• [the Applicant displayed] a lack of content knowledge, preparation and capacity to provide a basic structured session for learning.
"Ms Porche has been struggling with issues related to what appears to be difficulties with her principal and deputy at school, it appears she has been unfairly singled out as she alerted them to safety issues related to students with learning and intellectual disabilities.
In the time I have been treating Ms Porche on average once a month, she has struggled with trying to return to employment without undue harassment and difficulties. She is currently on no medication."
The proceedings in the Queensland Industrial Relations Commission
(a) Ms Porche;
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> (b) Ms Salazar;[11]
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> (c) Mr McMillan;
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> (d) Ms Flesser;
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> (e) Mr Gleadhill;
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> (f) Ms Bentley;
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> (g) Mark John Anghel;
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> (h) Mr Norfolk;
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> (i) Desmond Kluck;
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> (j) Dion Coghlan.
The Queensland Industrial Relation Commission's decision
"[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:
"[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."
"a) by overriding a medical expert to justify the termination of employment;[25]
b) by misinterpreting and/or failing to consider relevant evidence;[26]
c) by making findings without sufficient evidence or failing to undertake her own inquiries to garner evidence;[27]
d) by preferring the evidence of, or giving more weight to, the Respondent's witnesses;[28]
e) by showing bias against the Appellant;[29]
f) by failing to take into consideration the Appellant's personal circumstances;[30] or
g) by failing to understand and accept the Appellant's submissions.[31]"
"1. While there was not obvious Error in law beside the Commissioner over-riding the recommendation of my medical expert Dr Lotz, the Commissioner failed to consider factors leading to the process and she misinterpreted many of the facts making her judgements wrong and as a result she was in error when she concluded dismissing my application for reinstatement in this case and this judgement was therefore harsh, unjust, and unreasonable."[34]
"2. The Commissioner erred at paragraph 139 when she expressed that I was not subject to an excessive workload or administration procedures. In making this determination she does not appear to have considered evidence presented as to the additional administrative burden presented by documenting usual classroom procedures for the purpose of the MUP."
"[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."
"[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, 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:
"3. The Commissioner erred in paragraph 94 that it is not plausible that multiple educators might collude to misrepresent my performance. In making this determination the Commissioner appears to not have considered that there may have been personal antagonism at play including resentment. I did point this out to the Commissioner in my submissions by highlighting the onslaught of incorrect emails from teaching partner Jackie Larson's and my teaching peers that Shiree Salazar had befriended in a very social way. In my extension of argument, I highlighted how Jackie Larson's sent an email to deputy principal Shiree Salazar highlighting her dislike that I had contacted the union and discussed her poor treatment of me in the workplace."
"[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."
"[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."
"4. At paragraph 113 the Commissioner appears to find the factual basis of parent complaints are not relevant when assessing the reasonableness of the response to the allegations that were put to me as part of the MUP. However, at paragraph 108 the Commissioner notes that I was generally dismissive of complaints when they are raised. The Commissioner does not appear to consider the appropriateness of my reaction in the circumstances where the complaint is not based on fact."
"[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.
[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."
"[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."
"[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."
"5. At paragraph 149 the Commissioner considers the appropriateness of consideration, it is particularly where my personal vulnerability regarding finances and mental health were readily perceived. There were other alternatives open to the review panel including extended leave or redeployment that made the decision to terminate harsh, unjust, and unreasonable."
"[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."
(a) Ms Porche feels aggrieved by the termination of her employment given her personal and financial circumstances;[39]
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> (b) Ms Porche did not meaningfully engage with the MUP process or accept assistance to improve her performance: "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";[40]
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> (c) Ms Porche was given notice that her performance was unacceptable and that she must improve;[41]
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> (d) she was afforded procedural fairness;[42]
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> (e) "... 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";[43] then concluded,
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> (f) "In these circumstances, the dismissal of the Applicant from her employment was not harsh, unjust or unreasonable."[44]
"6. The Commissioner erred to understand how this process was an abuse of process and how it was my workplace right not to be subject to this workplace abusive process or victimisation, by failing to consider that the 'veiled support and performance process' was only placed on me after returning to work at a new school and being a new mother, even though I have taught for 19 years and these processes were only placed on me when I was subject to extremely bad class dynamics at both schools(As was argued in my facts and contentions submissions and my arguments and extension of argument submissions), in failing to understand and consider how the specifics of the class dynamics combined with the issue of discriminately being exposed to these stressful (abusive) processes upon returning to a new work situation after becoming a mother, effected all my rights as well and my performance in the workplace, it appears that the Commissioner's termination of my employment was harsh, unreasonable, and unjust.
7. The Commissioner erred to consider and understand that I worked for my university degree. I waitressed all the way though it and I worked hard to pay off my university FEES all by myself as documented in by submissions and explained orally in my hearings and mentions. As mentioned in my submissions and mentions, when studying for my paid university degree, I was taught by lecturers that all I can do as professional teacher is the best that I can do and that teachers have the right to their own interpretation of concepts depending on the context of the teaching and learning environment. The Commissioner has failed to consider these points that I presented in the hearing and she has failed to consider that as I have paid for the degree it needs to be considered that I have paid to ensure job security and that I have therefore paid not to be subject to a 'veiled support and performance process' in my career, which overlooks my right to interpretation depending on the context of the teaching and learning situation and overlooks that as a teacher you can only do the best that you can do. In erring to consider these other considerations, the Commissioner has failed to acknowledge that the support and performance processes placed too much power into administration's interpretation of all subject matter and concepts and contexts involved and denied me my right to interpretation of these things and my right to job security. This was therefore an abuse of process placing me on the defence, defending my job and job performance ongoingly and taking my right of interpretation away given the stressful circumstances that I was placed in. It appears that the Commissioner's decision to terminate my employment by not considering these other considerations was harsh, unjust, and unreasonable."
"8. At Paragraph 7 the Commissioner erred to understand the concept of substantiated allegations of unsatisfactory performance in her statement. "the applicant was dismissed from her employment as a teacher following substantiated allegations of unsatisfactory performance over an extended period at Coomera State School and Coombabah State Primary School." The term substantiate is to provide evidence to support or prove the truth of. The Commissioner failed to understand that at the point of my dismissal there had been no solid evidence to substantiate each and everyone of the allegations." It is appearing that she has failed to consider the many justifications in my written submission and oral submission including my extension of argument explaining exactly how many of these allegations to this day prove unsubstantiated."
"[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')."
"9. At paragraph 8 the Commissioner erred to understand that the decision to take my long service leave in Term 2 was largely influenced by Shiree's repetitively invasive, belittling, aggressive and unsolicited style management of me. It appears the Commissioner has overlooked and devalued my personal experience of how Shiree's approach to management was unreasonable as it made me feel that my job security was threatened, and I was not safe in my work environment. As the Commissioner has no substantiated evidence to prove that Shiree's, Chris, Murray's as well as Tina's approach to management did not threaten me in this way her it appears her attempts to invalidate the destructive effect it had on me and my work performance in the workplace are unjustifiable as it is a form of abuse gaslighting to invalidate someone personal experiences making the termination of my employment harsh, unjust, and unreasonable."
"[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."
"10. At paragraph 9 the Commissioner erred to include in her statement that at no time did Ms Salazar allow me to meet with all the parents in a one-to-one meeting to discuss the truthfulness and validity of these allegations at the time they were raised making the act of justifying this as a reason to place me on a support plan unsubstantiated and therefore a breach of the process and a procedural flaw to try to justify these as substantiated allegations. In failing to acknowledge the initial procedural flaws the Commissioner erred to acknowledged that Ms Salazar manipulated me onto the initial support plan making the resulting steps that followed leading to management out of my employment, harsh, unjust, and unreasonable due to the initial and ongoing procedural flaws in the process of the MUP.
(The Commissioner failed to consider that the union informed me that even one small breach of the process deems that the process itself was flawed and cannot therefore be considered as a legitimate or fair process to justify the termination of my employment, this making the dismissal of me harsh, unjust, and unreasonable."
"11. At Paragraph 10 The Commissioner erred to justify the truthfulness and therefore validity of Ms Salazar's recorded chronology and Mr McMillan' observations as well as their feedback at paragraphs 10 and 11, as they both have no physical evidence of taped lessons to validate the truthfulness of Mr McMillan's or any of the Deputies and or Principal's observations of my lessons and thus there is no solid evidence or substantiated evidence to prove that he was writing a true and accurate observation of what I could reasonably achieve given the cohort of children. To further support this the Commissioner failed to recall how I brought it to Chris's attention in my cross examination of him in court how his written observation of me was not in line with what the mother of [Sally][55] was observing in my lesson delivery each week when she supported her daughter in the weekly reading and language rotations, proving Mr McMillan was not writing honest observations of the excellent work that I was doing in the classroom. Commissioner Power erred to consider that she therefore has no substantiated measurable evidence to prove that Chris was not using this as a strategy for the purpose of lowering myself esteem to justify his "push" of me onto and further along the 'veiled support plan'. The Commissioner failed to recall how I provided verbal evidence and justification when cross examining both Chris and Shiree of how I had to buy a $200 running record box due to them not providing me with a running record box to meet their expectations and all the related implications discussed and evidence provided in the cross examination proving the process was flawed. The Commissioner's heavy reliance on Mr McMillan, Ms Salazar's as well as all the other staff and external staff's written hearsay observations with no substantiated physical evidence that the delivery of my lessons did not meet the requirements of a competent teacher given the mix of challenging dynamics across both schools made the decision to terminate my employment, too harsh, unfair, and unreasonable. The Commissioner also has no physical evidence to measure my lesson delivery against that of my fellow teaching staff to make her decision justifiable again making her decision too harsh, unjust, and unreasonable."
"[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:
"We can come back to that. Let's go back to 2015. So, your classroom observation focused - focus.
APPLICANT: I didn't - I got that out from not the trial bundle but the B7 volume 1 of two reportings.
MS BLATTMAN: So, that's volume 1, tab 21, Commissioner.
APPLICANT: Yes. Okay. What are my questions for that? Do you remember that, prior to this, I had [Sally's] mother, an ex-teacher, in my room, I think it was every Friday from my memory, helping me with guided reading and language activities?---I know the lady, but I have no recollection of that.
Do you acknowledge that in your report in the classroom observation focus in 2015, you did not write an honest and accurate observation of the excellent work that I was doing?"[57]
"MS PORCHE: Do you accept that this is a true report?---This - this is an informal observation at that time, and it's descriptive of what I saw.
Do you accept I don't agree with that? Do you accept that that was lowering my self-esteem, placing me in awareness that whatever I did was never going to meet your expectations?---I accept that I was discharging my responsibilities the best I could, diligently, and our expectations of you are no different to all state school teachers.
Do you acknowledge that you failed in your general conversations with me around my performance that year to acknowledge that it was because of this excellent teaching that [Sally] achieved the A standard that her mother was placing pressure on me to get that year?---As I stated before, I don't have- I was not made aware at the time of any conversation with this particular mother.
Do you acknowledge the extra time and money that I was putting in to make learning resources interesting and language activities interesting for the children to encourage the student engagement that you were looking for?---I think there's a record on evidence at one particular point where you raised the cost of materials, and that was not an expectation that we had, that it would cost you money.
Do you acknowledge that sometimes your expectations aren't in line with what happens, really, in the real world? As people say, there's one thing that's said, and one thing that happens?---Commissioner, all I can state is that I draw upon my experience as a principal over a long period of time, and also my training as an internal school review officer.
Do you acknowledge that my life depends on my teaching job, on my income? Do you acknowledge how important this piece of paper is due to -this paper determines my employment?---That - that was an informal document. That - that has no official status. It's the - managing unsatisfactory performance. So, at that time it was about identifying and providing support and resources to help you to meet the expectations.
But this was, in my mind, inaccurate and developed, in my mind, an awareness that you were building a story to push me - it's a process - to push me along the process?---No, that is not the case.
Do you acknowledge that you were destroying my trust in you and the validity of your observations, which was developing anxiety in me?---At no time did we intend to - we were doing our job and we were not trying to create anxiety."
Congratulations on your implementation of the school's visual reading goals and strategies being worked on with our HOPL (master teacher).
Congratulations on assisting students with knowing their reading strategies."
"12. At paragraph 12, the Commissioner erred to justify the truthfulness and validity ( and in consideration of the context) of the alleged situations in the hearsay accusations that I failed to wear a hat on duty , spoke unprofessionally to staff on 15 September 2016, and 31 October 2016, opening a classroom door and throwing swimming notes out, failing to wear a high visibility vest on playground duty of 14 April 2016 and 15 September 2016, failing to tidy the room classroom properly, yelled at the students etc, etc.. She did not refer to the detailed justifications in my submissions of how many of these allegations are twisted and not entirely truthful and are out of context in my extension of arguments submitted making the decision to terminate me by favouring the justifications of these parties over mine harsh, unfair, and unreasonable.
At paragraph 12 the Commissioner, erred to consider that she has no measurable evidence of my performance against other teachers who are considered competent at both schools, to compare their performance daily and measure if they sometimes forget to wear hats or go to the wrong duties, making her decision unreasonable, unjust, and harsh."
"[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:
"13. At paragraph 12 the Commissioner, erred to consider if I successfully received the message about the students needing to catch a bus home that day and if the message was successfully communicated to the student. The Commissioner also misinterpreted my verbal explanation regarding this allegation, not placing the classroom safety of children over the priority of receiving a message in situations where the message can be easily passed on through verbal communication from the recipient of the message to the classroom teacher. It is for these reasons that it appears that the Commissioner's decision to terminate my employment was unreasonable, harsh, and unjust,"
"14. At paragraph 13, the Commissioner erred to consider that children can be manipulative (because of sometimes learnt and reinforced behaviour from parents, older children, other students, friends' social media, etc., etc., particularly when it comes to school) and that perhaps the child in this situation was refusing to come to school for a multitude of reasons including wanting extra parent attention and using my demeanour untruthfully to manipulate the situation. The Commissioner failed to investigate through comparing and contrasting the amount of times this occurs to teachers at different schools throughout their teaching year highlighting the fact that again the Commissioner has no means to test the truthfulness and validity of the student complaint and trying to justify this as a reason to terminate my employment is unreasonable, unfair and harsh as there would be a lot of teachers out of employment if this was a basis to terminate teachers on. The Commissioner has no measurable way to confirm this, therefore she cannot truthfully use this allegation to justify my termination. Favouring Chris, Shiree's, Murray, Tina's and principal's external perspectives and verbal submissions over mine is a form of unequitable and non- justifiable decision making again making the decision to terminate my employment harsh, unjust, and unreasonable."
"[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."
"15. At paragraph 14, the Commissioner erred to consider and understand my verbal submissions presented in trial as well as my written submissions presented in my Extension of argument(paragraph 48) that was submitted to the Commissioner on 21/02/2021..., The Commissioner has failed to retain that I gave evidence of how the SEC teacher Dianne Ioane, struggled with the behaviour in my room when trying to demonstrate modelled lessons due to the difficult mix of cohort and in one particular situation she reduced my most sensitive boy, [Billy][64] to tears during one of her lessons. The Commissioner failed to consider that this is not a perfect world, and one of the implications within the primary state school setting, is that administration do in fact use manipulation strategies on their teachers and in this case it was to try to persuade me, that the SEC teacher was doing a better job than me at managing the behaviour of students when in fact she was not as she failed to keep the children 100% engaged all of the time, and she did not follow the school behaviour management approach consistently when I observed her modelled lessons. In failing to consider this, the commissioner failed to understand that Administration were being untruthful and unreasonable for the purpose of just getting the job done, and justifying their part in the veiled support process and in doing this were trying to lower my self- esteem enough to make me believe that I was a bad teacher who was performing at a much lower level than my teaching counterparts and who needed to ongoingly justify her performance on a MUP, making the termination of me harsh, unfair, and unreasonable. The Commissioner erred to understand that she has no substantiated evidence to prove that what I am saying is not true and no measurable and physical taped evidence to prove the SEC teacher was writing true and accurate records of what was really going on in the classroom. It appears naive, unjust, harsh, and unreasonable of the Commissioner to base her justifications of her decision without truly considering and understanding these considerations."
"48. Being subject to an ongoing process where my teaching competence and credibility was being constantly 'attacked' by all around me, I was exposed to administrations as well as anyone who was encouraged to report on Me's, ongoing exaggeration of my defensive communications and assertive communications. It has become apparent that the exaggerations of 'shouting, yelling or heavy, handed actions of me have been used throughout the reporting of me in these files. In many cases this was a deliberate form of manipulation, to paint me as an incompetent teacher and to 'cover administration 'backside' (so to speak). This was again an abuse of process and symbolic of the 'dark side of human nature' which was explained in more detail in my witness statement, justifying that I have no witnesses due to the 'dog eat dog nature' of being employed in a competitive work environment where there are limited resources and high pressure to achieve."
"[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, 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)."
"So on the 15th of September 2016, SEC provided LP with a support timetable for you to use in your planning and ensure that you were maximising the support provided - the SWD?---Enforcing - these are things that I was doing already so this is what I'm saying; it's a whole undermining me of my need for her because I was - I do do these things and you do them without even thinking so - - -
All right?---It's supposed to be support but yeah - - -
All right. So you say that Mrs Ione was also undermining you?---Well, it is undermining me because I was kind of - she was doing no better of a job than me. She was having the same problems that I was having and I was being put in a situation where I was kind of victimised into making her feel that - do you - like, I have to be honest so - - -
All right?---Making her feel that she's - she had the same problems as me. As I said, she reduced [Billy] to - one of my most sensitive boys to tears so."
"And you recall saying in that meeting that you were being targeted with an unfair spread of kids with behaviour issues?---It was common knowledge for anyone who entered the room that the class was challenging. Like - yeah. So I'm not sure if I - I don't think I used the word, 'targeted.' So - but yeah, I would have talked about my dissatis - dissatisfaction for the dynamics in the room - - -
Well - - -?--- - - - like as compared to - or in relation to - sorry - the management of me, because it's not how I would manage a class with those dynamics if that makes sense.
Well it's the case, isn't it, that it was offered to you in that meeting by Ms Ione to show you the class formation spreadsheet and the OneSchool data that had been used to do the class allocations sat the beginning of the year?---The day·eight numbers had changed though. I've got evidence of that.
Well they offered that, didn't they?---Yeah. But I can't recall if it was at that date or earlier in the year.
They also - Ms Ione expressed to you in that meeting that there were children with behavioural issues in all of the other year-one classes as well?---Yes. But they weren't being micromanaged. So that's taking a situation and - yeah. It's two totally different situations. They weren't being scrutinised excessively or had excessive meetings. So that just changes everything."
"16. At paragraph 14 the Commission erred to consider the truthfulness in Chris and Shiree's ongoing feedback and documentation combined with the reasonableness of what could be achieved in a day, given the different mix of dynamics in the class that I taught. She erred to consider that Chris and Shiree were not continuing to give me honest feedback in these sessions as an ongoing strategy to keep me dependent on them along the process and she failed to consider the possibility of this in light of the fact the Shiree as explained in previous affidavits and submissions tried to deny that the day 8 numbers changed that year, making my class a difficult mix even though I presented solid evidence of this in my submission in my modified extension of argument (paragraph 19). In this paragraph I presented evidence in an email sent from Claire Arthur to Shiree Salazar on Tuesday 9th of February 2016, which was found in B46(Volume lof 3) proving that the day 8 numbers did infact change in 2016 making my class an extremely difficult mix of students and this mix is described in paragraph 20 of my argument. Paragraph 20 is emailed evidence proving how administration tried to talk around the changes to the day 8 numbers by stating in the email "At the conclusion of each year classes are formed with a balance of student needs both academically and behavioural, which you will be aware of having been part of the process for forming year 2, 2016". As Shiree and Chris have both tried to deny, that the day 8 numbers of my class changed to make the class a very, very demanding mix of students, this in fact increased my workload due to the extra intricacies involved in dealing with the demands of students, parents, their special needs. The Commissioner erred to understand how this then proves the unreasonableness of their management and their ability to two twist the truth regarding feedback and the reporting of me to justify the MUP process. In erring to understand and consider these points, the Commissioner has seemingly favoured Shiree and Chris's inaccurate interpretation of the situation forcing me into ongoing oppression and stress when having to constantly defend and prove myself making their management of me into and on these processes and the justification of the termination of my employment, unfair, unjust, and unreasonable. Considering these points, the Commissioner failed to understand that the process is designed to be used to cover the principal's backside on the event I failed it, again making her decision unfair, unjust, and unreasonable. In failing to consider this, the Commissioner failed to consider how all this also occurred under Murray and Tina's management making her judgment again, harsh, unreasonable, and unjust." (emphasis added)
"17. As for the reasons mentioned in paragraphs 10,11 and 12, at paragraph 15, the Commissioner has failed to give solid physical justification that each one of these allegations were 100% truthful. An example of this is she has no evidence to prove that I had a private call that extended beyond 20 minutes past the bell. This was presented in my verbal submissions in the trial and some justifications were presented in the written explanations in my arguments and extension of arguments. Again, the Commissioner overlooked the inaccuracies in Chris and Shiree's collection of allegations against me and she misjudged that they did not presented me with each one of the allegations at the time of accusation, allowing me time to present my side of the story in a timely manner. In erring to consider these factors the termination of my employment was harsh, unjust, and unreasonable."
"18. At paragraph 16, the Commissioner erred to provided substantiated physical evidence that there were ongoing deficiencies in my teaching performance in the period 25 May 2016 to 20 October 2016 again relying heavily on the SEC teacher hearsay reports of me. It appears in doing this she is unfairly favouring the Student Engagement Coaches unsubstantiated allegations of me, failing to consider my verbal and written submissions that she demonstrated deficiencies in her teaching by not keeping the students 100% engaged 100% of the time, which was being required of me and how she reduced one of my most sensitive boys [Billy] to tears. The Commissioner also appeared to misunderstand this it is highly likely that the Student Engagement Coach as well as Shiree and Chris were using this twisted, unreasonable, and ongoing reporting and scrutinization of me as a form of behaviour management to make me feel that their skills and competencies as a teacher managing a class such as mine day in and day out, where superior to mine which is a form of abusive gaslighting, that was explained in my submissions and the Commissioner failed to apply to her understanding of how it was used in this context and she has no substantial evidence to prove otherwise. The Commissioner appears to not recognise that this behaviour does occur amongst staff within Education Queensland and was occurring in this circumstance making justification to terminate me unfair, unreasonable, and unjust. The Commissioner also fails to understand and link this to the arguments of the "problems of human nature that exist within Education Queensland that formulated the argument of why I have no witnesses that was submitted in my form 20 affidavit. As the Commissioner made no reference of this linking it to the" dog eat dog nature" of the performance process when teaching a challenging class of children, she erred to make a judgment that was not harsh, unjust, and unreasonable."
"[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."
"19. At paragraph 17 the Commissioner erred to acknowledge that in paragraph 39 as presented in my written submission of my extension of argument the definition of support in a supportive work environment means to:
"Keep someone or something from failing, or to give confidence or comfort to be successful." The Commissioner has no substantial evidence to invalidate my specific examples written in my submissions as well as my verbal submissions, as to how all the processes put in place were not in fact supportive of me but doubled my workload causing me feelings of great stress and anxiety and the increased workload was not realistic to what a reasonable and competent teacher could withstand and how this effected my right to feel safe and supported in the workplace. It is a form of abusive gaslighting on the Commissioner's behalf to try to invalidate and therefore devalue my submissions on how I felt unsupported and how this induced a fight of flight response in me and invalidate and devalue my verbal submissions as valid evidence when making her judgement. In erring to accept and understand how these submissions provide solid evidence supporting the abuse of process and how it effected my performance the Commissioner's termination of my employment was unjust, harsh, and unreasonable."
"[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)."
"39. 'The act of deliberate fault finding and recording of the ongoing hearsay information about me', was abusive and oppressive, belittling, undermining, disrespectful and stressful', and took away by basic human right to feel a sense of job security hence my right to feel safe in my job. Instead of spending hours on formulating these documents, administration and colleagues could have worked more productively to apply extra hands in the classroom to support me in meeting the variety of needs and behavioural challenges in the classroom. Any visiting staff who entered my room both at Coomera and Coombabah always stated, 'my gosh you should have a second teacher in the room at all times due to the challenges in the classroom'."
(a) a failure on 15 February 2018 to attend the lunchtime meeting with Mr Gleadhill;[70]
>
> (b) refusal on 19 February 2018 to attend a morning meeting with Mr Gleadhill and Ms Flesser;[71]
>
> (c) failure to accept feedback;[72]
>
> (d) failure to provide lesson plans as required by the MUP improvement plan;[73]
>
> (e) failure to attend the weekly MUP progress meetings;[74]
>
> (f) rejecting criticism and saying, "I'm doing a great job and that it's just your opinion".[75]
"20. As Chris, Shiree, Murray and Tina failed to communicate truthfully in their verbal submissions on how at both schools I was given an incredibly challenging dynamically designed mix of students, the Commissioner failed to understand how it was unrealistic for me to pass these processes without having to seek the support of a medical health expert, given this implication. The Commissioner erred to understand how Chris and Shiree's verbal submissions were untruthful as they were trying to justify that the implementation of the informal support plan was for the purpose of supporting me and ignored the fact that I had communicated openly during this process to them that I did not feel supported particularly as I pointed out to them that they were failing to sign me off on the things that I was doing well and failing to recognise that I had an infant to go home to at night and parent whilst being on this process which heightened the unwelcome and unsolicited stress of the situation. As having no experience in the modern classroom setting or having never experienced being on one of these plans herself the Commissioner appears to misunderstand exactly how the process overloaded me and how the management action was reasonably perceived by me as a threat to the security of my employment, making me feel undervalued, belittled, and unsafe in my employment and breaching my employment rights to not feel these things in the work environment. In my written submissions and in my verbal submissions during trial I gave the Commissioner specific examples of how I was being overloaded instead of supported on this process and I gave specific examples of the type of actions in the workplace that would have supported me instead of failed me. She has not referred to any of these in her explanations for judgement unjustly devaluing these as evidence. As the Commissioner has had no experience in the modern classroom environment and particularly has not been subject to a MUP program, she has misjudged the unreasonableness of the situation that I was subject to and she has no understanding of the excessive workload and excessive amount of unrecorded communications and spur of the moment meetings that I had to partake in, this including regular on the spot interrupted communications by different staff and administration entering the classroom environment and in some instances communicating their interpretations of instructions to follow and demanding certain things of my students, teaching and or student learning placing excessive pressure on my time and ability to realistically get things done and to realistically meet the level of expectation required when it had to be ongoingly proven on this plan. The Commissioner appeared to misunderstand that the untruthful and unsubstantiated paper explanation of my so-called failure on the "informal support process" was in fact not my failure, but administrations failure to manage me to ensure success and so I felt safe and supported in my teaching environment when I had to endure such a poorly dynamically designed class, day in and day out, during that year. The Commissioner failed to consider, it was not good management action to place a woman returning to work at a new school after having her first child in a work situation like this and that good and reasonable management action would have been to ask me exactly what support I wanted and needed and just get in and do the job instead of doubling my workload by recording what apparently was not done which is the opposite action of support in the workplace. The Commissioner erred to consider that it was a procedural flaw in the process for administration not to ensure that all the specialist teachers and visiting teachers who entered my room just simply ask me what I need them to do and follow my instruction immediately on what I needed them to do instead of them trying to micromanage me, telling me what they were going to do. Again, the Commissioner erred by devaluing my verbal and written submissions of this as valid evidence to support the unreasonableness and excessiveness of the situation. At paragraph 17 the Commissioners misinterpretation and misunderstanding of the excessive workload and excessive meetings and administration procedures that any MUP brings to the workplace and for all the reasons mentioned in this paragraph, made the termination of my employment harsh, unjust, and unreasonable."
"21. Again as at paragraph 17,[76] the Commissioner erred to identify that prior to this Stage 2 process, union representative Jodie McFadden had admitted to me in a one-to-one conversation that yes, Shiree Salazar was being a bully to me in her approach to the management of me yet she failed to act on this (as presented in my written extension of argument and verbal submissions). When I explained to her later in a phone conversation that I had written her statement in an affidavit concerning a related matter she denied having said this obviously out of fear of being victimised in her job and this was the reason that she was not asked to attend this meeting. I had rung the union and terminated her from representing me again due to her untruthfulness and my loss of trust in her. As the Commissioner appeared not to acknowledge the truthfulness in my submissions regarding this and how me being exposed to such mixed communications by union representative Jodie was making me feel that my employment was threatened, the termination of my employment was harsh, unjust, and unreasonable. The Commissioner failed to see how this was a procedural flaw in the process as it breached my right at this stage of the process to have effective, paid union representation. The Commissioner erred to deem the process flawed by her bias decision to overlook my verbal and written submission concerning these considerations as being valid evidence breaching my right to procedural fairness incredibly early in the process. The Commissioner also erred to consider how Mark Angel failed his duty to provide me fair legal representation by failing to bring this up to the Board of Review at the Board of Review stage process, deeming the process procedurally flawed at this stage as well. In failing to consider all these important considerations, it appears that the Commissioner's judgement to refuse my reinstatement was harsh, unjust, and unreasonable.
At paragraph 18, the Commissioner erred to consider that the ongoing scrutinization and criticism of me in the workplace was more than what a reasonable person could withstand as it was causing me to second guess myself. The Commissioner erred to consider that I commenced sick leave as Shiree's micromanagement of me, was becoming so unreasonable as it threatened my sense of job security and her insistent changes to my teaching and miscommunications regarding assessment as well as exposing me to the excess of 40 plus meetings on top of my already huge workload in a period of 9 months was more than what a reasonable person can withstand and led me to seeking the support of psychologist Wendy Gollan, and then commencing sick leave on 14 November 2016 due to teacher burnout and induced symptoms anxiety. The Commissioner erred to understand that my support person Kimberly Anderson found this evidence of the excess of 40 meetings that I was exposed to in a private and confidential document the department sent to me on April 15,2019 and she gave verbal evidence of this in her verbal submission in our first ever mention before the Commissioner. The Commissioner erred to consider how this justifies the termination of my employment as too harsh, unreasonable, and unjust."
"[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."
"22. At paragraph 19 the Commissioner erred to misunderstand how Dr Benjamin Duke's Independent Medical Report cannot ever legally be deemed as independent, as Dr Benjamin Duke was chosen and employed by Education Queensland to carry out the Independent Medical Report on me. The official meaning of independent means.
"something or someone is not influenced or controlled in any way by other people, events or things." In this way Dr Benjamin Dukes report can never be defined as independent of Education Queensland and it would be unjustifiable, unlawful and a form of double standards for the commissioner to try to justify Dr Benjamin Dukes Medical Judgments as more independent and or as more accurate as Dr Lot'z expert medical recommendations."
"[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."
"23. At paragraphs 76 the Commissioner erred at favouring Chris and Shiree's responses based on no evidence, saying their responses were measured and accurate yet she is inconsistent with her judgement of me saying I must present evidence to justify that my workload was excessive. It is not reasonable for the judge to have expected me to hoard all my evidence to justify this and in saying this she has erred to understand how it was not humanly possible to simultaneously gather evidence to prove the abuse of process whilst planning and implementing lessons and whilst being ongoingly scrutinized on this process."
"24. At paragraph 104 the Commissioner not having any formal medical qualifications misjudged Dr Lot'z medical opinion as not having the language of an independent medical opinion and biasedly and unfairly supported the respondent's submission to 'give greater weight to the independent medical opinion provided by Dr Duke. At paragraph 104 the Commissioner erred to misunderstand that Dr Lotz was not in fact my treating doctor but was my treating psychiatrist and it was a procedural flaw of hers as well as biased and unlawful to not consider Dr Lotz medical recommendations as valid as Dr Benjamin Duke's and to not follow the recommendations of Dr Lotz making the termination of my employment harsh, unfair, and unreasonable. The Commissioner has erred to consider that DR Lotz will advocate himself that it is against the law to override his expert medical opinion. In erring to consider this, the Commissioner has committed and error of law by overriding a medical expert to justify the termination of my employment."
"[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):
...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."
"1. When I last spoke to Ms Porche on the 13th of June 2018, I agreed that she should attempt to return to full duties as a teacher either at Coomera State School or another location. I have subsequently given her a clearance certificate and I assume she will be contacting Department of Education.
2. In my opinion she is not medically fit to participate in a show cause process. She continues to have some issues of anxiety and depression, which I do not believe to be a liability in her role as a school teacher, but would be exacerbated if she were to participate in a show cause process."
"Is Ms Porche able to participate in all aspects of her role as a teacher, including participating in performance development planning and performance feedback processes? If not, what are the clinical barriers preventing this employee's participation and their timeframe for resolution?
Yes. Ms Porche is going to be understandably anxious should any performance management processes be initiated, however as long as these are done in a reasonable manner and not in a way that she would construe as being a continuation of bullying and harassment I can see no reason why she should not be able to participate in these aspects of her work role as a teacher."
"This is to confirm that I have been the treating psychiatrist of Letitia, who has had problems with anxiety and depression as a result of what appears to be a "witch hunt" by her colleagues of Queensland Education.
Letitia gives a history of working and being particularly picked on, ostracised, and given duties far beyond her time considerations. From her description, it appears that she has been set up to fail.
As she did 'fail', she then received a 'show cause' for discipline reaction, and has been refused a return to employment until she accepts the 'show cause'. Letitia informs me that if she is to accept the 'show cause' she will then be fired from employment (constructive dismissal?).
She is therefore in a situation where they will not allow her back to work until she has signed a show cause and if she signs the show cause they will fire her.
This of course causes extreme anxiety and depression, Letitia only wants to return to work and be a teacher, a role she is dedicated to and has wishes to continue in her career.
I understand she is involving the Union in her petition to return to work without any 'show cause'.
In my professional opinion, the show cause is detective, and is effectively perpetuating her psychiatric disorder.
I have stated on many occasions that the show cause should be dismissed on the grounds of mental illness, however Queensland Education insists on this show cause, which as stated above, perpetuates her psychiatric disorder, and effectively sets her up to be fired from employment (constructive dismissal?) thereby causing further financial stress.
"25. At paragraph 100 and 103, the Commissioner erred by misunderstanding that on the 22 March 2019, Dr Lotz wrote that in his "medical opinion" the show cause was defective" and is perpetrating her psychiatric disorder. The Commissioner and Mr Coghlan erred to consider that the parties to the performance process were discriminating against me in the workplace as their judgement of my "satisfactory performance' and 'workplace accountability was not equally measured against my workplace colleagues who I have witnessed and am subject to their regular mistakes and failings in the workplace. At this point there is no evidence that all these accusations are true including the accusations of missing duties or turning up late to duties, the accusations of forgetting safety vests, the accusation of upsetting students with their comments and or yelling at students, not completing data sheets, or marking in time limits or always accurately and the list goes on and on. In these paragraphs the Commissioner and Mr Coghlan failed to consider that I was subject to the discriminate signing off me on this process as presented in my verbal and written submissions and that the Commissioner has no substantiated evidence to prove that this was not in fact true. It is for reasons including this, that Mr Coghlan cannot override Dr Lot'z medical expert recommendations for me not to participate by his statement that part of being in my role of a teacher is to participate in the performance improvement plan when the managers were failing to listen to my communications on how their management was overloading and pressuring me unreasonably given the classroom behaviours and dynamics that I had be given and it was reasonable for me to foresee and communicate at this point how the multiple steps on the MUP process were leading to my dismissal thus threatening my job security and therefore the termination of my employment was unreasonable, unjust and harsh."
1. Dr Lotz's report was to the effect that the show cause was defective and perpetuates Ms Porche's psychiatric disorder.
3. The evidence of Mr Coghlan is not expert medical opinion and therefore it could not be used as a basis to reject Dr Lotz's evidence.
4. Mr Coghlan did not take various things into account.
1. Dr Lotz's report was taken into account but not accepted;
2. Dr Lotz's report was rejected on a logical basis after the Industrial Commissioner took into account other relevant evidence;
3. Mr Coghlan's evidence was not the basis upon which Dr Lotz's opinion was rejected. Mr Coghlan is not a psychiatrist, but Dr Duke is. Dr Duke's opinion was preferred over Dr Lotz's.
"26. At 104 and 105 the Commissioner erred to misunderstand that where my employment is concerned is it critical that I am afforded every opportunity to respond and discuss the validity of each complaint made in a timely manner as that would constitute and ensure procedural fairness. Procedural fairness cannot be justified as this did not occur. Also, as each complaint had not and has not been substantiated to this date, Deputy Principal Shiree Salazar and all principals and deputies across the two schools needed to act supportively and encourage parents and children where they could take some ownership of their own actions and behaviours instead of trying to blame me the classroom teacher for every issue that arises. It seems the Commissioner is relying very heavily and very favourably on Ms Salazar's submissions even though Ms Salazar's perception of how she approached me in the management of me is quite different from my communicated experience and from the physiological bodily response of 'fight or flight' that her invasive style of management evoked in me. As the Commissioner was not there and did not witness this, she erred to understand that she cannot devalue my experience and invalidate it as not being truthful. In this way she takes no ownership of how she induced ongoing anxiety in me in which I had to seek the support of a psychologist and a psychiatrist. The Commissioner eered to understand she has no right to invalidate this. The Commissioner also falls to recognise that Ms Salazar has confused her facts such as trying to say day 8 numbers did not change when they did, and lying under oath saying that she gave me a contact number( other than the union) so I could call to discuss my unhappiness in her management of me when she did not and encouraging the twisted and untruthful reporting of me, denying how retaining my marking was not a form of workplace bullying as well as not signing me off and writing honest accounts of what I was doing well in the classroom and in my planning as was presented in all my submissions and written extension of arguments. Given all these factors, the Commissioners erred at having a favourable and bias view of Ms Salazar's accounts, and the errors in her recall of what really happened in the work environment, and this determines the termination of my employment harsh, unjust, and unreasonable."
"[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. The oral evidence from Ms Salazar confirmed that issues were raised with the Applicant regularly and soon after they emerged."
1. The submission from Ms Porche is that each and every allegation should have been put to her and the complainants identified.
2. A decision was made not to identify complainants to Ms Porche.
4. The substance of the complaints was put to Ms Porche.
"27. At 107 the Commissioner has erred to misunderstand the issue and the context of the issue. At cross examination I was trying to explain when it came to behaviour this student had regular issues with her peers and was extremely manipulative and attention seeking in this way. I explained in cross examination that I had an incredibly open relationship with the mother of this child, and I spoke to her regularly before school and we worked together communicating openly about the child and had a good professional relationship. As the Commission has erred to misunderstand the events and facts in these allegations, her determinations of my abilities as a teacher are flawed and deeming me incompetent based on her misunderstandings and then terminating my employment because of this misunderstanding was harsh, unjust, and unreasonable."
"[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."
"28. At 108 the Commissioner has erred to misunderstand the events in this situation as I submitted and verbally presented in my court hearing in February how this parent had apologised to my face, for her exaggerated accusations that I had yelled in this situation. Her mother was trying to manipulate the situation so her daughter could be moved to a class to be with a friend in that class. The Commissioner erred to consider that it is a common strategy to project or blame the classroom teacher for events and or the outcome of learning and or for student's misbehaviour or bad choices in the learning environment, for parental or student agendas and or to shift the blame making the termination of me unfair, harsh, and unreasonable."
"[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."
1. there was an allegation that Ms Porche yelled regularly;
2. there was an allegation that there were concerns about a student's "lack of learning extension";
3. Ms Salazar raised the complaints with Ms Porche who was dismissive.
"29. At 109 the Commissioner erred to consider Mr Coghlan's verbal response cannot be validated as solid evidence as Mr Coghlan was physically removed from the situation so he does not understand the breaches to my human rights that occurred in the daily interactions that went unrecorded and are ridiculously hard to explain and recalled upon to prove in the court setting and he does not understand that there is significant information on websites as presented in my submissions and affidavit that support my submissions that these underperforming processes do not work, they overload the teacher, forcing the teacher to crack, fail and or go crazy under the pressure of excess scrutiny, excess justification and excessively having to defend everything they do, say and write in excessive meetings, paperwork and administration procedures (as presented in my written submissions and arguments, extension of arguments, form 20 affidavits and certificates of exhibits). Mr Coghlan and the Commissioner fail to understand that a strategy of the principals is to manage the fact that they gave very badly dynamically designed classes to teach by placing them on a "veiled support plan" and or once on the process as occurred to me, when you are moved to a new school, you are exploited further by been giving another badly dynamically designed class. The Commissioner and Mr Coghlan erred to consider that this is a strategy to silence the teacher into working above and beyond while simultaneously protecting administration on the event that the teacher burns out on this process and assertively communicates their awareness that the overload of work means they cannot realistically pass the process with ease and that they are being exploited because of this and this awareness results in them taking Education Queensland to court as I did. The Commissioner erred to consider the research I presented to her in my written submissions and the fact the Bullied Teachers Networks and Groups have formed because of teachers being unreasonably treated like this on 'veiled performance management processes, making her determination to terminate me biased, harsh, unjust and unreasonable. She also has no substantiated physical evidence to prove that what I am saying is not true. The Commissioner erred to consider that Mr Coghlan has no grounds to make valid judgements of my competency in teaching, as he was not physically part of the process so his decision to terminate me cannot be considered as valid and in turn her judgement to terminate me was harsh, unjust, and unfair."
"[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."
"30. At 110 and 111 the Commissioner made an error in judgment and misunderstood the facts of the case as she erred to understand that there was no substantiated evidence from both schools to indicate that the substance of each issue was raised with me at the time they occurred let alone ever. As presented in my written submissions, each one of them were not raised with specific examples of the allegations allowing the me the ability to justify how many of the facts of the allegations were twisted and not entirely truthful and the matter was not addressed with all parties and the issue of twisted accusations was not dealt with at the time the accusations were made. The Commissioner erred to consider that as presented in my written submission it was not until after my termination that I have read many of these allegations against my conduct. The Commissioner erred to consider that this deems the process as being procedurally flawed and breached administrations duty of care to me on the process and my rights to feel supported in the workplace and have a sense of job security, making the termination harsh, unjust, and unreasonable."
"31. At paragraph 112, the Commissioner has erred to confuse my verbal submissions and the facts of the case relying too heavily on hearsay verbal explanations that cleaners (being more than one clearner) were refusing to clean the room. There was no evidence that more than one cleaner refused to clean the room as no cleaner ever approached me and said this at the time and the rooms were never left in such a bad state as the rooms could not be cleaned. If there were records of this Administration exaggerated this to cover their backsides and support their case. The Commissioner again has misunderstood that most issues were not raised on a timely basis throughout the process like she tried to justify, and I only read about many of them after I had been terminated from the job. The Commissioner has failed to consider that perhaps administration were not being honest about the rolls to protect themselves on the event that I further complained about their management like I have and she is naive to think that this isn't a possibility that they may have tampered with them and the Commissioner has also erred to understand the minimal mistakes on the roll were made in many situations by replacement teachers who administration had placed in my room when I was removed for process orientated meetings and or PCL's or PBL meetings. The Commissioner has erred to understand how these things have been blown out of proportion, and as mentioned earlier in my submissions and not consider that it is unfair and biased to crucify me for these things, when competent teachers are humans and make these mistakes regularly in the classroom environment and some openly admit this and particularly when their employment is being threatened through being exposed to the deliberate fault finding and often twisted fault finding in the workplace making it a very stressful work environment when you have to defend and justify everything. It is for these reasons that the Commissioner has erred in her decision to terminate my employment as this decision was too harsh, unjust, and unreasonable. The Commissioner appears to misunderstand that any form of oppression where someone must ongoingly defend themselves is a form of abuse."
"[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."
4. that Ms Salazar had raised with her an issue that the cleaners were refusing to clean the classroom.
"Yes. So Annie Arthur was the business services manager at Coomera; is that right?---Yep.
Okay. And it's the case, isn't it, that she had to - you may not remember the particular date, but would you agree with the proposition that she had a conversation with you about two things: one was marking your roll, and the other one was concerns about the cleaners?---Once again, I can't remember the details, but yes, there were possible conversations around those things. I've always take - taken marking - obviously marking the roll is extremely important. If there was ever concerns I was on total information overload from the start, because I wasn't supplied with the appropriate technology, and I was behind from the start. Obviously I was very anxious about this because of the way Cherie was scrutinising every little thing that I did and from the word go I was being pushed into fight or flight response.
So, do you accept that there were occasions on which you did not mark the roll?---I accept that there were occasions, like all teachers do, I've made mistakes, I'm human."[89] (emphasis added)
"Do you accept that there were occasions in 2015 where, to your knowledge, the cleaners refused to clean your classroom because of the untidy state in which it was left?---I don't accept that because I've always put in a massive effort to make any room, you know, beautiful and in the event that it was left in a mess due to the black and white time limits and excessive administration procedures and workload and meetings, I do not recall there's been ever a time when they've refused to clean the room.
Do you recall, however, it being raised with you by Ms Salazar that your classroom was untidy, making it difficult to clean?---Yes, but that's, you know, that's - you're working with children, there will be days when you have excess people coming into the room and I have so many people coming into the room which was the abuse of process because that was supposed to be support but it was actual hinderance because it was more conversations then doing, so yep. So - as what - what we learnt at university, all you can do is the best you can do and that's all I ever tried to do, but I've been placed in a situation where that wasn't good enough, it always had to be above and beyond."[90] (emphasis added)
1. that Ms Porche's classroom was untidy on occasions; and
2. that Ms Salazar had raised with her the issue that the cleaners were refusing to clean the classroom.
"32. At paragraph 114,115 and 116, the Commissioner erred to consider that the exaggerations and therefore untruthfulness in the respondent's submission that I did not have a respectful collaborative relationship with parents and carers were used and have been used for the purpose of administration 'covering their backside so to speak". In many circumstances I did have respectful collaborative relationships with parents as I have been able to have for the last 18 years of teaching and my employment at Coomera State School only ceased because I was burnt to the ground from bending over backwards to meet the extra requirements of the process as well as the ongoing needs of students and their parents and I had sought the opinion of a medical expert. This highlights my point of the badly dynamically designed classes that I was given whilst on these processes as a strategy for administration to manage the fact that the classes were ridiculously hard to teach due to the badly designed dynamics and poor curriculum resources and badly designed C2C units. These things are organisational problems that exist within the institution of Education Queensland. They are manageable when not being exposed to a MUP process however the cracks of these systematic problems are exposed when a teacher is being held accountable to a performance process and is being forced to defend and justify ongoingly the problems that arise largely from systematic problems that exist within the organisation and structure of the Education System within Education Queensland. In this way the process heightens and exposes these cracks and it therefore it is a breach of procedural fairness and a form of abuse to try to hold me the classroom teacher singularly accountable for these problems and force me to constantly justify this along the course of the MUP and now in the court system. The Commissioner appeared to miss these points presented in my submissions and the most obvious point that it is highly reflective of administrations procedurally flawed and oppressive management of me, that suddenly after 18 years of collaborative teaching and respectful relationships with peers I (apparently) do not have the skills to maintain respectful and collaborative relationships with my peers. I was only at Coombabah for a very limited time due to being managed out for reasons beyond collaborative relationships, so the Commissioner had erred to consider that I wasn't there long enough to both develop and enhance my collaborative relationship with parents and carer and this is particularly the case when administration where managing me in a way that supported and gave parents the power to question everything a I did and supported that they should receive instance feedback and gratification if they do this. In not considering these things the Commissioner's failed to understand how this was an abuse of process as it is not a situation that teachers are managed into normally and the Commissioner failed to understand and consider how this situation accumulated to more than what a reasonable person or teacher, could, should or would withstand making her determination to terminate my employment was harsh, unreasonable, and unjust."
"[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."
"33. At paragraphs 124-125 the Commissioner has no grounds to devalue my verbal submissions as well as my written submissions including my submitted extension of arguments and form 20 affidavit with certificates of exhibits, as being sufficient evidence to prove and argue that my personal experience whilst being subject to the process was that the process was not supportive and it was therefore inflexible and non-employee focused and I was not given every opportunity to succeed as administration were not being honest about their ridiculous rules that I had to work to such as I had to present weekly assessment items at the team PLC and the rules for this were the teacher was not allowed to grade a student as an E, yet the teacher could not scribe for the student in the test and the teacher could not come to the meeting without all assessment items completed and regardless of what went on in the school week, it would be considered underperforming if you came to the weekly meeting without the assessment done and marked. The Commissioner failed to understand the implications of this in the workplace and how it placed excessive pressure on me to meet these standards regardless of that fact that I had children with toilet issues and a variety of behavioural and learning issues in my class and this makes the teaching and learning in this situation much more challenging, when it is so inflexible, unrealistic, and unreasonable to account for these interruptions in the day. As the Commissioner has not given detailed consideration and justification to each argument that I presented in both my verbal and written submissions, she has failed to understand my perspective and verbal evidence of what really went on in the reality of the workplace situation as compared to what is justified on paper and how Chris tried to untruthfully, verbally justify that he gave me every opportunity to succeed in this process. In using this to justify her judgement, the Commissioner erred to understand that Chris himself failed and refused to understand and accept my communications of how the processes was failing me, that Chris failed to be honest that in the meetings he was refusing to sign me off on things that I was doing in the classroom, that the Student Engagement Coach was not being honest about her inability to manage the children any better that me, and write honest reports of this, that rules of what have to do each day and in what time each day, weren't supportive and consistent to my right and my need to manage my class to achieve a relaxed learning environment. The Commissioner failed to understand that her perception of what she considers as extensive support is a misjudgement based on her inexperience in the classroom as, she failed to understand these were processes that administration were using ineffectively and the Commissioner has no grounds to devalue my explanations in writing and written submissions, as well as submissions in my form 20 affidavit and attached certificate of exhibits and websites that include other teachers experiences on these processes and how they simply do no provide a supportive environment. The Commissioner failed to understand how what she considered to be extensive support amounted to an extensive increased workload as it meant more time talking before doing and more time justifying what you do and the implications that arise from talking to more and different people who have different interpretations and different perspectives in the work environment. What the Commissioner erred to understand is that although she states there is no evidence that anyone in the process wanted the applicant to fail there is no sufficient evidence that Chris, Shiree, Murray, Tina and any of the administration involved were listening to my communications on what works for me and what does not and made alterations to their processes to support my achievement of it. The Commissioner fails to understand that administration did not work to meet my complaints and request to provide me with quality and consistent SEP support that I needed, so they have no evidence that they were supporting me to succeed. The Commissioner failed to understand how at Coombabah the Literacy and CAFE Reading Coach was giving me confused instructions of how to run reading assessment tasks and the school didn't provide the resources needed when under scrutiny to the point that I had to print readers out and make them instead of being able to access them in the library and it was demanded by the Literacy Coach that I did this immediately even though I had the same demands on me from Murray and Tina regarding all the other curriculum subjects all at once when being placed on a new grade. The Commissioner fails to understand that I was subject to written recordings of the fault finding of me and how that is not conducive to a supportive work environment as clearly explained in my submitted arguments. The Commissioner fails to understand how it is impossible to communicate and provide all the evidence to support that the process was not working in my favour and exposed me to an excessive workload and administration procedures, unfairly. In failing to understand and consider all these considerations presented, the Commissioner judgement was harsh, unjust, and unreasonable."
"[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."
1. Before the Industrial Commissioner, she alleged that the respondent predetermined the MUP process. She said that she was clearly set up to fail.
2. Primarily, that was because the process was onerous for a number of reasons.
3. Evidence and submissions were made by Ms Porche to the Industrial Commissioner to support the assertion that the outcome was predetermined.
4. The Industrial Commissioner decided that part of the case without proper consideration of Ms Porche's evidence and submissions.
1. he has received complaints from teachers about Ms Porche;
2. she has ignored sections of the Code of Conduct;
3. she has displayed unethical behaviour and she has lied;
4. she seems to misunderstand the role of a teacher;
5. she shows an unwillingness to accept responsibility for her own behaviour.
"34. As at paragraph, 126, The Commissioner fails to understand that Desmond Kluck had agreed in my conversation with him prior to commencing the new school year, that I should never have been placed on the support process as the performance concern was manipulated due to the badly dynamically designed class and therefore, I would not be subject to a MUP at the new school. The Commissioner fails to understand that Desmond Kluck lied under oath in court when I cross examined him regarding this conversation as he denied saying it and he denied admitting that I was mistreated in the workplace at Coomera. So, the Commissioner fails to understand that because of this conversation, when I first attended Coomera, I discussed with Murray how Desmond agreed to this and therefore there was no MUP in place and no official settling in period. So, the Commissioner failed to understand that there was no conversation that the 20-day settling period was a period to determine if the MUP should succeed and the Commissioner failed to understand that this email was not just drafted but it was in fact before 28 days as in Murray Gleadhill's letter, he writes." I have provided you with a list of behaviours that we have observed and that have been directed towards us over the past 4 weeks. 4 weeks equals 28 days, so this was a lie. If Murray was to lie about this, then he was to twist all the other facts of the allegations of my conduct he put forward. It is bias behaviour for the Commissioner not to hold him accountable for every single word and every single accusation as she is trying to do with me in the workplace. There was no proper test or investigation or finding to prove that all these allegations were true making the process one big abuse of process and this again being a procedural flaw that the Commissioner appears to talk around and misunderstand in her written justifications of not reinstating me. What the Commissioner also failed to understand and that I put forward to her in my verbal submissions and my written submissions and arguments was that in this letter Murray untruthfully also wrote, "They want nothing to do with her" when talking about my colleagues. This again was a twist of the truth and showed his preconceived intent as I had not been there long enough for my peers to have developed enough of a working relationship to make this judgement of me independently of his view of me, and it proves his preconceived intent as well as his believed lack of ability to follow through his duty of care to provide me with a supportive and positive work environment. As the Commissioner as not considered all these important considerations and have misunderstood and has not held Murray accountable for everything he says and does in the workplace, the Commissioner's determination to not reinstate me was harsh, unjust, and unreasonable."
"[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."
"[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 predetermined 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."
"36. As at paragraphs 127-129, the Commissioner is acting biasedly in her decisions by not holding all members of the department personally accountable for every word they say or write as she is trying to do to me in this situation by supporting that the whole situation I was exposed to was not procedurally flawed and abuse through an abuse of process to me as an employee in the work environment. To be specific the Commissioner erred to be reasonable and fair in her belief of what the email was intended to say, as compared to what it did say when, Shayne Gait's[94] email was presented to her in court, and I cross examined Desmond Kluck regarding his interpretation of this. To be more specific the Commissioner misunderstood that the letter meant what it said, "It said, "only to have her raise this at the board of review stage" and this means that this was not a supportive process intending to support me to achieve success in my teaching" it was a punitive process as it says in writing., "only to be raised, at the board of review stage" in this email. This is definite as the Commissioner is misunderstanding that it is biased, unreasonable, and unjust in a court situation where my employment is being questioned for her to try implying what she and Desmond Kluck thought was intended to be said, over the real factual evidence in writing as to what Shayne Ghalt did in fact say to say. Again, this is a procedural flaw as the department had a duty of care to expose me to a supportive process that was not procedurally flawed. The Commissioner erred to understand this email was a procedural flaw and by not considering all these considerations presented, her judgement to terminate by employment was harsh, unjust, and unreasonable."
"[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...
[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."
1. Mr Galt (and probably Ms Salazar) have predetermined that Ms Porche's employment should be terminated;
2. in order to make sure that the termination survives review, the department should investigate any health concerns.
"Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principles gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle."[98]
"37. At paragraphs 128- 129 the Commissioner erred to understand that both Desmond Kluck and Mark Angel both lied under oath about what they said to me in one-to-one conversations on the separate occasions evidenced in my verbal submissions and written submissions. The Commissioner erred to understand that Mark Anghel explained to me the process was designed to overload me out of my employment and the principals were just covering their backsides in paperwork by overloading me and there was nothing I could do about it etc., etc.... and how this did not constitute valid paid legal advice deeming this part of the process a breach to my right to have valid, impartial legal union representation. The Commissioner failed to consider that Desmond Kluck agreed that I was manipulated onto the support plan and onto theMUP and therefore it should not have been continued from one school to another and this was a breach of process that it did. As I would not dare lie under oath, it is biased for the Commissioner to accept their lies under oath over my verbal submission of what they said. Mark Angel has therefore failed my right to valid legal union support by supporting a process that he knew was not fair and just as he communicated to me and not acting impartially by standing up for me at the Board of Review, supporting my medical experts' recommendations and arguing the procedural flaws that occurred including how no one from administration would come to my room directly upon me notifying them that a child had run from my classroom. It is evident that Mark Anghel did not know the intricate details to my case so he could not argue them at the board of Review Stage denying me my right to procedural fairness. Instead, he biasedly supported that the process was carried out correctly and there was no external person to oversee this. The Commissioner has no evidence to prove that Mark's verbal submission that on occasions when he found a deficit in the process at the Board of Review stage, he has been involved Robust conversations and has advocated the matter is sent back to ensure any disciplinary process undertaken is procedurally fair, was not due to his personal like of the teacher whose competence was being questioned over mine. Mark Anghel's professionalism needs to be questioned due to his ability to lie under oath. As the Commissioner did not consider that Mark lied, her judgement to justify that the process was procedurallv fair is inaccurate making her judgement to terminate my employment harsh, unreasonable, and unjust."
"38. As at paragraphs 130-136, and as for reasons already justified in previous paragraphs, the Commissioner has misunderstood, invalidated and or not referred to each argument that I present in my affidavit 20 with attached exhibits, all my written submissions and extensions of arguments and each verbal submission made so her determination of judgement made in these paragraphs are unjust, harsh, and unreasonable. One specific misunderstanding of the Commissioner and therefore a procedural flaw to this process at paragraph 136, is the Commissioners justification of the concept of practical injustice and how it relates to my case. the Commissioner had no practical experience observing my performance in the classroom setting as well as no practical life experience in a modern teaching situation to base her judgement on and has therefore relied too heavily on the submissions that have occurred externally to the practically implemented process, and therefore it is unreasonable to say that I have not suffered any practical injustice. In not considering this, the Commissioner has failed to understand that the entire situation was "practical injustice" as it was and continues to me more than a reasonable person and competent teacher, should, could or would withstand making her devaluing of this in her rulings, harsh, unjust, and unreasonable."
"[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:
[135] In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam,[101] 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."
"39. As at paragraph 138, the Commissioner erred to understand that she has no solid factual and proven truthful evidence to justify her statement that she is "satisfied that the substance of the performance issues raised over the extensive period were put to the Applicant on a regular basis ensuring that there were no genuine procedural deficiencies that impacted on the final determinations of the applications employment. Again, the Commissioner has failed to consider, all my verbal and written arguments and the affidavits and exhibits submitted, that state otherwise and need to be given equal weight of validity as the departments non- tested submissions and verbal and written submissons."
"[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."
"40. As at paragraph 139-140 the Commissioner erred to understand that all teachers are required to access the C2C units and deliver them and as evidenced in my cross examination of Tina Flesser, I was downloading and implementing the C2C units when on the MUP. The Commissioner erred to understand that Tina and Murray were critiquing the C2C units in their critiquing of my lessons, failing to realise that it's exploitation and an abuse of process for administration to try to hold me personally accountable for the poor lesson design of the C2C units and forcing further excess of workload and my employment vulnerability to use the strategy of victimisation through their ongoing threat of refusing to sign me off if I don't please them and marking and grading the delivery of my lessons untruthfully and harshly. The Commissioner failed to understand how this is an abuse of process and it gave all the principals, deputies, and external principals too much power over my employment and was abusive to a teacher of my experience and a threat to my job security and unfair at a time I had the right to balance being a mother and being employed. This was an abuse of process and a procedural flaw as it was harsh, unreasonable, and unjust to not hold all teachers across Queensland as equally, personably accountable for the flaws in the C2C units, forcing them to go home like I had to and spend money and time on improving the resources or they will not pass teacher competency. As verbal and written submissions are evidence, the Commissioner is not giving weight to my evidence of the excessiveness of this situation, and biasedly giving more weight to the departments and administrations, verbal, and written submissions on this judgment. The Commissioner misunderstood my arguments by inaccurately stating that I "saw the lessons plans as an unnecessary addition to my job, rather than tools to assist her to perform her usual job to a satisfactory standard" as this is not what I have been arguing at all throughout my submissions. The Commissioner also needs to consider at paragraph 140 she has no evidence or no formal measure or no life experience in the modern classroom to validate her statement that what I experienced "could not be reasonably considered as excessive workload." As the Commissioner did not consider these important considerations, her determination not to reinstate me was harsh, unjust, and unreasonable."
"[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."
"41. At paragraph 141, the Commissioner erred to understand that she had no physical evidence to prove that the cleaners' allegations of the room being so consistently messy, was in fact true and not another exaggeration forcing me into oppression through having to defend the truthfulness of the allegations. Again, the Commissioner failed to give solid evidence that the culmination of single incidents were true and accurate accounts of the incidents and not twisted and exaggerated for the purpose of exploiting me whilst on the MUP. The Commissioner erred to understand that this whole situation was an abuse of process as it put me in a vulnerable situation, as I am not a lawyer and do not have the training to stand up for myself with ease, making my workload again more excessive and she failed to understand that I had to pay a lawyer to respond to the show cause process due to this reason, so her statement that I responded to the show cause process was untruthful as it was my paid lawyer responding as this was a process beyond my teacher training, again highlighting an abuse of process. As the Commissioner did not consider these important considerations, her judgement was too harsh, unreasonable, and unjust."
"[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."
"42. As at paragraph 142, the Commissioner again erred to consider that she has no experience in the modern day teaching environment and she was not physically present when I was being mistreated on the process, so she has no work experience to justify her decision to devalue and invalidate my submissions, that what I was experiencing was exaggerations of the truth in the form of nit-picking and the whole process was used as strategy to create a culmination of data on me to silence my original reporting to the union and administration, that I did not feel a sense of job security due to the level of students who exercise unsafe behaviours , which made up the dynamics of my class across both schools. The Commissioner failed to understand that she was projecting her own lack of insight of the situation onto me by her comment "that I showed limited insight into the cumulative impact that these failures have on student's safety and learning", as she failed to understand that it was a strategy for administration to give me exceptionally badly dynamically designed classes whilst being exposed to this process, as a means to make it easier for them to cover their backsides on paper on the event the ongoing scrutinization drove me to burnout and a court process to stand up for my breached rights. The Commissioner erred to understand that this is a real-life strategy administration implement and her misunderstanding of this led to her inability be realistic on the impact that these implications have on me in the work environment, and all of this takes away from the students taking ownership that if they choose to misbehaviour or not act safely at the end of the day that is a choice they made and it started with the thoughts in their head. As the Commissioner failed to understand and consider all these things due to her lack of experience and insight into what goes on in the modern teaching environment as compared to what is presented on paper, she made a judgement that was too harsh, unjust, and unreasonable."
"[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."
"43. As at 151, the Commissioner erred to understand from my all my submissions, affidavits, exhibits, and written arguments and extensions of arguments, that I did work very hard to meaningfully engage with all the processes however, due to my 19 years of experience I was aware of the strategies the principals were using, which were unfairly pushing me into hypervigilance to milk me on this process for as long as they did and as long as they could. In not considering this the Commissioner has erred to understand and has no grounds to invalidate my verbal submission as genuine evidence that what I had experienced was more that what a reasonable person could withstand and there was no way possible to meet all the expectations of the principals on any of these processes due to the excesses and overload of work. In failing to have solid justifiable evidence, that the Commissioner does not in fact have reason to devalue all of my submissions and doing this she is failing to understand that this is abuse in itself as she has no grounds to tell me what I experienced I didn't experience when being subject to this process and this is a form of abusive gaslighting to try to justify this in her explanations and force me along this process to continue to defend myself in writing and hearings. As the Commissioner failed to consider all these important considerations her decision to terminate me was unjust, harsh, and unreasonable and this situation is more that what a reasonable person can, should or would withstand."
"[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."
1. the workload upon her was beyond reasonable expectations;
2. the Industrial Commissioner did not consider all evidence and arguments relevant to this issue.
"44. At paragraphs, 150 and 151 the Commissioner has based her justifications again on this misunderstanding that I did not engage with the process to improve my performance and maintain my employment assuming that it was possible to engage in the process without being driven to illness due to the excessive abuse of process through the implementation of strategies which were oppressing me on the process as well as my exposure to excess. In failing to understand this, the Commissioner fails her duty of care, to take ownership for the serious impact on my personal life and my ability to service my financial obligations that her decision has had and continues to have. At paragraph 160, the Commissioner further failed her duty to provide me justice in the court setting, by her unjustified support of Mr Coughlan's statement that I performed all my duties carelessly, incompetently, or inefficiently, because she has not proven that I was managed in a way that it was possible to perform all these duties successfully in the work environment. Again, the Commissioner has no grounds to dismiss my verbal submissions and written arguments and exhibits as sufficient evidence to prove that what I experienced was not an abuse of process and she has no modern life experience as a teacher or was not physically present at the school at the time I was exposed to this process to make her judgement valid and justifiable. As the Commissioner has not considered all these critical points, it appears that her determination to dismiss my application for reinstatement was harsh, unjust, and unreasonable."
"[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."
"45. I will skip to paragraphs 150-160, to conclude my appeal as I am at my mental capacity as this situation is continuing to be more than what a reasonable person can withstand, is continual and ongoing abuse to me as abuse is the act of forcing someone into oppression and the ongoing stress in continuing to make me anxious and unhappy in my life. I am writing this on jobseeker, so my financial security is not being met while I write it and I do not have formal legal training to write this appeal well to ensure success at this stage which is further abuse of process considering I need to work and earn a living for survival. The Commissioner needs to understand that due to mental capacity and the stress of the situation, I have not been able to respond to each paragraph that she wrote to justify each judgement. It is for this reason she needs to understand it is extremely hard for me to write this appeal and respond to each judgement in paper and for this reason she needs to consider that her judgements to date have been harsh, unjust, and unreasonable."
[1] Porche v State of Queensland (Department of Education) [2021] QIRC 131.
[3] The present appeal is brought pursuant to s 557.
[4] A reference to the Industrial Court of Queensland.
[5] OneSchool is the Respondent's software suite that schools use to run reporting and administrative processes.
[6] Porche v State of Queensland (Department of Education) [2021] QIRC 131 at [12].
[11] Whose full name was Shiree Louise Salazar-Mandez.
[12] See generally hearing T1-3 to 1-4.
[13] Porche v State of Queensland (Department of Education) [2021] QIRC 131 at [4]- [6].
[19] "Proceeding with the show cause process despite contrary medical advice", paragraphs [98]-[103]' "Not allowing [Ms Porche] to test the validity of each individual complaint", paragraphs [104]-[116]; "The Board of Review Process", paragraphs [117]-[123]; "The MUP process being predetermined", paragraphs [124]-[132].
[24] Industrial Relations (Tribunals) Rules 2011, r 139(2)(c).
[25] Paragraphs 24 and 25 of the grounds.
[26] Paragraphs 1, 2, 3, 13, 18 of the grounds.
[27] Paragraphs 8, 9, 11, 14 of the ground.
[28] Paragraphs 2, 4, 16, 17, 18, 20 of the grounds.
[29] Paragraphs 21, 24, 26, 29, 34, 36, 37 and 40 of the grounds.
[30] Paragraphs 5, 7, 10 and 44 of the grounds.
[31] Paragraphs 6, 12, 15, 17, 19, 20, 21 of the grounds.
[32] Transcript of the hearing of the appeal 1-17.
[33] See Fox v Percy (2003) 214 CLR 118 at [29] following Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842 at 844 and Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[34] The emphasis in bold in the various grounds of appeal is emphasis added by Ms Porche. The grounds are reproduced faithfully and there has been no attempt to correct typographical errors.
[36] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 following Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280 at 287.
[38] Concluding with paragraph [162].
[45] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518.
[47] House v The King (1936) 55 CLR 499.
[48] Paragraphs [63]-[70] of these reasons.
[49] [137]-[162]; see also the analysis of ground 5, paragraphs [79]-[83] of these reasons.
[51] Paragraphs [71]-[78] of these reasons.
[52] Paragraphs [71]-[78] of these reasons.
[58] Paragraphs [12] and [13] of the reasons.
[59] Paragraphs [63]-[70] of these reasons.
[62] Practical experience would qualify them to judge standards of teacher behaviour and competence; see generally R v Bassi [2021] QCA 250; see [51]-[54].
[63] Reasons, paragraphs [141]-[151] and [154]-[162].
[64] The child's name has been anonymised.
[67] And ultimately dealt with by the MUP.
[69] See paragraphs [63]-[70] of these reasons.
[76] Paragraph 17 of the Industrial Commissioner's reasons is set out at paragraph 138 of these reasons.
[78] SmithKline Beecham (Australia) Pty Ltd v Chipman [2003] FCA 796; (2003) 131 FCR 500 at [31]- [34], following FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33.
[79] Reasons, paragraphs [99]-[103].
[81] Paragraph [159] of these reasons.
[83] Paragraph [159] of these reasons.
[84] See the heading before paragraph [98].
[85] See paragraph [159] of these reasons.
[86] Paragraph [53] of these reasons.
[88] See the heading to paragraph [104].
[91] Based on Briginshaw principles: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[93] Paragraph [130], set out at paragraph [230] of these reasons.
[94] Should be a reference to Shayne Galt.
[95] Reasons, paragraphs [128] and [129].
[99] Set out at paragraph [230] of these reasons.
[101] [2003] HCA 6 [37].
[102] Paragraphs [248]-[253] of these reasons.
[103] Paragraph [270] of these reasons.
[104] Paragraphs [270] and [275] of these reasons.
[106] Paragraphs [51] and [52] of these reasons.
Porche
State of Queensland
(1996) 185 CLR 259
(1986) 161 CLR 513
(2003) 214 CLR 1
(1938) 60 CLR 336
(1985) 59 ALJR 842
(1986) 7 NSWLR 1
(1993) 43 FCR 280
(2000) 205 CLR 337
(2003) 214 CLR 118
(1936) 55 CLR 499
(2003) 131 FCR 500