Singh v Secretary, Department of Education

Relevant legal principles

1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust".
2. It is not in dispute that despite having resigned pursuant to a direction that he do so, Mr Singh was "dismissed" for the purposes of the Act. For completeness I observe that I consider this to be the case, having regard to the reasoning in Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012.
3. It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
4. To be entitled to any remedy under the Act the onus is on Mr Singh to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
5. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Tredinnick v Commissioner of Police [2016] NSWIRComm 14; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84.
6. The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the Department to make out its case "in a convincing way": NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29].
7. Mr Singh's employment was regulated in part by the Teaching Service Act 1980 (NSW). Part 4A of the Teaching Service Act contains provisions informing the process by which conduct and performance in the Teaching Service is to be managed. Relevantly for present purposes, the Teaching Service Act provides as follows: 1. "misconduct" is defined as including an employee "engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action": s 93C(1)(b); 2. "disciplinary action" is defined as follows: 93B Definitions (1) In this Part: disciplinary action, in relation to an officer, means any one or more of the following: (a) dismissal from the Teaching Service, (b) directing the officer to resign, or to be allowed to resign, from the Teaching Service within a specified time, (c) reduction of the officer's salary or demotion to a lower position in the Teaching Service, (d) the imposition of a fine, (e) a caution or reprimand. 1. the Secretary of the Department may issue guidelines for the purposes of, amongst other things, dealing with allegations of misconduct against officers as a disciplinary matter: s 93D(1); 2. if an allegation is made that an officer may have engaged in any misconduct, the Secretary may either deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, take remedial action, or both: s 93F(1); 3. after dealing with an allegation of misconduct as a disciplinary matter in accordance with Pt 4A and the procedural guidelines, if the Secretary is of the opinion that the officer has engaged in any misconduct, the Secretary may decide to take disciplinary action with respect to the officer: s 93F(2).
8. An allegation of misconduct under the Teaching Service Act requires assessment of the conduct concerned against the provisions of that Act, not against the common law definition of misconduct: Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000.
9. Pursuant to s 93D of the Teaching Service Act the Department has promulgated a document titled "Guidelines for the Management of Conduct and Performance" ("Procedural Guidelines").

Consideration

1. Before considering the particular allegations that were made against Mr Singh, it is necessary to emphasise one point. As explained by Ms Ranieri in the passages reproduced at [6] above, the process adopted by the Department to fill vacant teaching positions essentially involves matching teachers to vacancies through the use of Staffing Codes. A school will determine the Staffing Codes to be applied to a particular vacancy.
2. Staffing Codes attached to a position are given a numerical value, with the total of all of the codes giving a "Perfect Match Score". The Department's system essentially ranks teachers on the database according to the numerical value of their qualifications as compared to the Perfect Match Score.
3. The greater the number of codes attached to a position, the smaller will be the pool of teachers qualified for the vacancy. Conversely, the more Staffing Codes a teacher has on their personnel profile the greater their chances of being matched to a vacancy.
4. Mr Singh did not dispute that he had entered Staffing Codes to Ms Kundan's and Ms Sonni's personnel profiles as alleged. He also accepted that this conferred an advantage on them by improving their prospects of being matched to vacant positions. As will be seen, each of Ms Kundan and Ms Sonni were able to benefit from this competitive advantage.

Allegations 1 and 2

1. Allegations 1 and 2 relate to Mr Singh's conduct in adding six skills codes to Ms Kundan's personnel profile on 4 June 2007.

Allegation 1

1. Allegation 1 alleges that in entering the skills codes on Ms Kundan's personnel profile Mr Singh failed to identify and/or disclose a conflict of interest. The Department relied on several iterations of a "Code of Conduct" that it said applied to Mr Singh during his employment, which contained particular provisions relating to the identification and avoidance of conflicts of interest. Mr Singh disputed that he had received training on the Code of Conduct. There is no evidence on which I could properly find that the documents were ever provided to Mr Singh.
2. It is not, however, necessary to explore the extent to which Mr Singh was aware of, and should be regarded as bound by, the Code of Conduct. During the hearing Mr Singh ultimately accepted that he had placed himself in a position of conflict by entering codes on the profiles of Ms Kundan and Ms Sonni. [1]
3. Even without that admission I would have had no hesitation in finding that Mr Singh had a conflict of interest in accessing and amending his wife's and sister's profile. I consider that he would have known this even if he was unaware of the Code of Conduct. Mr Singh had worked in Teacher Recruitment since 2006. Throughout these proceedings he demonstrated an in-depth knowledge of the processes that he was required to follow and administer in his role. Mr Singh would have known that by his conduct he may have been, or be seen to be conferring a benefit on his wife and sister in the form of enhanced employment or transfer opportunities.
4. This is borne out by his acceptance under cross-examination that, to use the term adopted by Ms Thorpe during the meeting on 5 March 2020, amending Ms Kundan's and Ms Sonni's profiles "looked dodgy". [2]
5. For these reasons, I find that allegation 1 is made out.

Allegation 2

1. Allegation 2 alleges that Mr Singh entered the skills codes onto Ms Kundan's personnel profile without either a formal request or approval to do so. Mr Singh claimed that he was acting on a written request that had come from MGHS, at which Ms Kundan worked, to update the codes on her profile.
2. Ms Cluff called into question whether such a request was ever made. In summary, she deposed as follows: 1. Ms Kundan was approved to teach in Biology, Chemistry and Science from approximately 1 December 2006. 2. Ms Kundan commenced employment as a temporary teacher at MGHS on 5 February 2007. 3. Eligibility for new Staffing Codes generally requires a teacher to demonstrate a few years of the corresponding skills or experience, yet Ms Kundan apparently managed to qualify for the additional six skills codes within four months of commencing employment. 4. There is no record of Ms Kundan holding any qualifications, performing any duties or demonstrating any skills during the period February to June 2007 that would make her eligible for the skills codes added to her profile by Mr Singh on 4 June 2007. 5. There is no record at MGHS of Ms Kundan ever applying for or providing evidence of her eligibility for the additional codes. Further, there is no record of MGHS considering or approving an application by Ms Kundan for the codes.
3. Specifically in relation to the addition on the AGR (Agriculture) code to Ms Kundan's profile, Mr Singh stated that it had been on his wife's profile since she was first approved to teach, although under the heading "willing to teach". He stated that on 4 June 2007 he did not "add" Agriculture but simply "reconfirmed" it.
4. There is no evidence that Ms Kundan's profile contained Agriculture prior to June 2007. Rather, in a letter to Ms Kundan from the Department dated 24 August 2005, which was included in Mr Singh's evidence, Ms Kundan appears to have been advised that her approval to teach Agriculture was subject to her undertaking additional studies. There is no evidence that she did so. Further, in an email to Mr Rex sent on 28 June 2019 Ms Kundan made reference to the code needing to be added, allegedly following a suggestion to this effect from her head teacher.
5. Further, Ms Cluff deposed that she could not locate any record of Ms Kundan teaching or assisting in teaching Agriculture in 2007. The teaching timetables from MGHS in 2007 are inconsistent with Ms Kundan having been involved in teaching Agriculture.
6. Ms Kundan was not called to give evidence. There was nothing to suggest that Ms Kundan was not available to give evidence if required.
7. I am not satisfied that in entering the new codes on Ms Kundan's profile on 4 June 2007 Mr Singh was acting in accordance with the request that he had received from the MGHS. To the contrary, I find that he did so without a formal request or approval to do so. Further, there is no evidence that there was a proper basis on which Mr Singh should have added the codes to Ms Kundan's profile. Allegation 2 is made out.

Allegation 3

1. Allegation 3 relates to Mr Singh's conduct in matching Ms Kundan to a permanent teaching position at MGHS on or about 3 October 2007, without identifying and/or disclosing a conflict of interest in doing so.
2. As already observed, in 2007 Ms Kundan was employed in a temporary position. Mr Singh accepted in his oral testimony that he was aware at the relevant times that Ms Kundan, like many other temporary teachers, was hoping to secure a permanent position.
3. For further context I note the following facts: 1. On 19 June 2007 and 10 September 2007 Mr Singh ran a matching search through the Department's system for position number 65897 at MGHS, being a permanent Science teacher position ("Position"). 2. On 13 September 2007 MGHS declared the Position to be vacant. 3. Mr Singh ran a matching search for the Position on 25 September 2007. 4. Also on 25 September 2007 Mr Singh placed a call to Greg Hickey, the Relieving Principle of the MGHS. For reasons which remain unexplained, Mr Hickey decided to add Agriculture to the skills required for the Position. I digress to observe that Mr Hickey could not be called to give evidence due to illness. Mr Singh's evidence regarding this conversation was opaque. 5. Mr Singh ran a further matching search for the Position which resulted in Ms Kundan, Ms Sonni and one other teacher achieving a Perfect Match Score. 6. On the same day Mr Singh took the paperwork to Ms Liz Hall, then the Assistant Director, Staffing Services. He claimed that he declared to Ms Hall his relationship with Ms Kundan and that she asked him to leave the paperwork with her. The documentation was subsequently returned to him by Ms Margaret Adebiyi, who was then relieving as Manager, Staffing Services (Teacher Recruitment). Ms Adebiyi approved the appointment of Ms Kundan to the Position. Mr Singh deposed that Ms Adebiyi was already aware of his relationship with Ms Kundan. 7. Ms Kundan was appointed to the Position with effect from 29 January 2008.
4. At the outset, and consistent with the observations at [36]-[37] above, it is impossible to avoid the conclusion that Mr Singh had a conflict when recruiting for a position that not only would his wife would be interested in, but was at the school at which she worked. The extent to which Mr Singh was aware that his position was compromised is borne out by his admission in oral evidence that he did not let Mr Hickey know that his wife was one of the teachers who might qualify for the Position because he did not want to influence the outcome - either by prejudicing his wife's application or placing any pressure on Mr Hickey to appoint his wife to the role. To my mind this shows an awareness of Mr Singh to the fact that there was a conflict and that his position was compromised.
5. Mr Singh could not recall why he had conducted searches for the Position on 19 June and 10 September 2007. He said it could only have been to look for a position for a scholarship order, for a case managed placement or to respond to Ministerial correspondence. He denied that he did so simply of his own volition. However, in circumstances where Mr Singh accepted that he was aware that the Position (being permanent) was one that his wife would want, a conclusion that Ms Singh was "keeping an eye on things" for the benefit of his wife is difficult to resist.
6. Ms Ranieri deposed that if Mr Singh had not altered Ms Kundan's profile on 4 June 2007 she would not have been considered for the permanent position at MGHS.
7. I accept that Mr Singh disclosed to Ms Hall that the preferred candidate for the Position was his wife and that Ms Adebiyi, who approved the appointment, was aware of that relationship. However, what he did not disclose was that he was aware of the vacancy at MGHS and that his wife was interested in the Position; that his wife's profile included Agriculture as a result of changes he had made on 4 June 2007; that he had placed a call to Mr Hickey, which resulted in Agriculture being added to the skills required for the Position (this is despite the fact that the timetables for MGHS in 2007 and 2008 do not disclose any need for the teacher appointed to the Position to hold Agriculture qualifications); and, that he had not disclosed to Mr Hickey that one of the potential candidates for the Position was his wife.
8. In the circumstances it is not enough for Mr Singh to rely on the fact that he disclosed his relationship when presenting the results of the matching search to Ms Hall. The result was itself tainted by conflict.
9. In all of the circumstances, Mr Singh should have removed himself from the recruitment for the Position altogether. At the very least he should have disclosed the conflict before taking any steps to run matching searches for the Position. Waiting until the results were in, after having apparently played a part in influencing those results, does not meet Mr Singh's obligations.
10. For completeness in relation to this allegation I observe that Mr Singh relied on an email that he had sent to a manager in the Department in 2005 in which he had disclosed his relationship with Ms Kundan. That evidence does not take Mr Singh very far. It could not properly be said that notifying a single manager of his marital relationship at a particular point in time obviated the need to disclose it as and when required during the course of his employment.
11. I am satisfied that allegation 3 has been made out.

Allegations 5, 6, 7 and 8

1. All of these allegations really come down to the same thing: that Mr Singh improperly entered skills codes onto the profiles of Ms Kundan and Ms Sonni, in the absence of a formal request or approval from their Principals, or Mr Singh's supervisor, to do so.
2. The Department led uncontroverted evidence from Ms Cluff and Deborah Blackwell, the Principal of JPPS from 2008 to 2018, that teachers seeking to add Staffing Codes to their profiles must obtain the approval of their Principal. This would require the teacher to demonstrate that they had acquired the skills or expertise necessary to become eligible for the additional Staffing Code.
3. There was no suggestion that either Ms Cluff or Ms Blackwell had requested or approved the addition of the Staffing Codes referred to in allegations 5, 6, 7 and 8 to the profiles of Ms Kundan or Ms Sonni respectively. Rather, Mr Singh accepted that he had acted of his own volition.
4. Mr Singh defended his conduct on the basis that in entering the codes he was merely effecting a translation from an old system to the current one. That is, there was a previous system which did not refer to Staffing Codes but to "Areas of Expertise". The Department went through a process of translating teachers' skills and expertise from the former Areas of Expertise to the current Staffing Codes. Mr Singh had done this for a number of teachers. He decided of his own volition to update the profiles for his wife and sister. He stated that he did not add any skills or expertise to their profiles that they did not already possess.
5. Ms Ranieri gave evidence that the migration of codes from the previous system to the current one was done on a Department-wide basis, rather than teacher-by-teacher. Mr Singh drew my attention to an instance from November 2016 where he had amended the codes for an individual teacher to align them with the new system. On balance I consider it more likely that the translation to the new system would have been dealt with "across the board", recognising that there might have been instances where individuals needed to be dealt with on an exceptions basis.
6. Even if I were to accept that Mr Singh was acting on a genuinely held but mistaken belief that he was simply updating the profiles for his wife and sister in order to comply with the new code structure and to make the profiles more accurate, it does not adequately explain why he did so when he has acknowledged in these proceedings that it placed him in a position of conflict of interest. As observed at [35] above, Mr Singh ultimately accepted in these proceedings that he had placed himself in a position of conflict by entering codes on his wife's and sister's profiles. However, he was unwilling to acknowledge that he should not have accessed the profiles of his wife and sister, but rather have forwarded any changes to somebody else to attend to.

Allegation 5

1. Allegation 5 refers to Mr Singh having entered the skills codes DAN (Dance), DRM (Drama), CCO (Computer Coordinator), SPO (Sport) and VIA (Visual Arts) on Ms Sonni's personnel profile on 14 October 2011.
2. On 13 October 2011, the day before, the JPPS had declared a vacancy for a permanent teaching position. The Staffing Codes for that position included DAN and DRM. This coincidence of events calls into question the veracity of the explanation offered by Mr Singh for his conduct.
3. When a matching search was conducted on 6 December 2011, Ms Sonni was the only candidate with a Perfect Match Score. Ms Ranieri deposed that had Mr Singh not entered the DAN and DRM Staffing Codes to Ms Sonni's profile, she would have been disregarded as a candidate for the position.
4. I am satisfied that allegation 5 has been substantiated.

Allegations 6, 7 and 8

1. Allegations 6 and 8 refer to Mr Singh having added codes to his wife's and sister's profiles on 29 February 2016. On the evidence they should refer to 29 January 2016. Nothing turns on this as Mr Singh did not dispute that he had entered the codes referred to in each of the allegations.
2. Allegation 6 refers to the skills codes GAT (Gifted and Talented), ICT (Information Communication Technology), MMA (Multimedia) and XSC (Sports Coaching) being added to Ms Kundan's profile. Ms Cluff has been the principal of MGHS since 2010. She deposed that: 1. Ms Kundan had not applied for any Staffing Codes at any time after 2010. Ms Cluff had never received or approved any application by Ms Kundan for the codes added to her profile on 29 January 2016; and 2. in any event, she did not consider that Ms Kundan was eligible for those codes and would not have approved any application by Ms Kundan for them.
3. The only concession that Mr Singh was prepared to make in relation to this evidence is that Ms Kundan was not qualified to have been assigned the skills code XSC (Sports Coaching) and that he should not have added that code to her profile. Even so, Mr Singh's concession seemed more about the technical requirements of the code rather than accepting that there was any impropriety in what he had done.
4. Mr Singh contended that because Ms Kundan was not going for a job at the time he added codes to her profile in 2016, she was not advantaged. This does not bear scrutiny. Mr Singh accepted that the more skills a teacher has on their profile the more competitive they will be when a vacancy arises. In particular, he conceded that sending a request to add codes to his wife's profile "improves [her] employability in the department system". [3] That is the advantage that Ms Kundan derived in and after 2016.
5. Allegation 7 refers to the skills code CIR (Choir) being added to Ms Sonni's profile on 17 August 2015. Allegation 8 refers to the skills codes ICT (Information Communication Technology) and MUS (Music) being added to her profile on 29 January 2016.
6. Ms Blackwell deposed that: 1. between 2008 and 2018 she was the sole person responsible for approving Staffing Codes at JPPS; 2. she has no recollection of discussing with Ms Sonni or approving any application by her for the CIR, ICT and MUS Staffing Codes; 3. had Ms Sonni applied for the CIR Staffing Code in or around August 2015, Ms Blackwell would likely have considered her to be eligible; and 4. during Ms Blackwell's time at JPPS Ms Sonni did not demonstrate the requisite level of skill or experience required to be eligible for the ICT and MUS Staffing Codes.
7. Ms Sonni was not called to give evidence. There was nothing to suggest that she was not available to give evidence if required.
8. In light of all of the evidence, I do not accept Mr Singh's contention that he did not add any skills or expertise to the profiles of Ms Kundan or Ms Sonni that they did not already possess. For this reason, and in the absence of any request or approval from the relevant Principal for additional Staffing Codes to be added to those profiles, I find that allegations 6, 7 and 8 have been substantiated.

Procedural fairness

1. Other than as set out below, Mr Singh did not suggest that there was any procedural deficiency in the process that resulted in his dismissal. It seems clear that he was given every opportunity to respond to the allegations against him, noting that he had the benefit of PSA representation throughout the investigation. There is no basis on which it could be said that the Department failed to comply with the Procedural Guidelines.
2. Mr Singh did, however, take issue with the length of time it took for the investigation to be completed. He was notified of the commencement of the investigation on 19 October 2017 and was only informed of the outcome on 10 March 2020. This is a legitimate criticism. I have difficulty conceiving of any situation in which an investigation of more than two years would be required, but it is certainly not this case. That said, in the circumstances of this case, I do not consider that the period over which the investigation was conducted results in the dismissal being harsh, unreasonable or unjust.
3. Mr Singh also took issue with the fact that he was not notified that he was to be placed on the "Not to be Employed list" until after he had received notice of termination. As noted at [19] above, Ms Thorpe acknowledged this oversight in her letter to Mr Singh of 23 April 2020. I do not consider that this results in the dismissal being harsh, unreasonable or unjust.

Further considerations

1. In considering Mr Singh's conduct, it is difficult to avoid the conclusion that he was acting to advance his wife and sister in their employment with the Department. Were it not for his actions, neither Ms Kundan nor Ms Sonni would have been considered for, much less obtained, the positions they each now hold. It stretches credibility to argue that the timing of his actions and the recruitment for the relevant positions was purely coincidental. This is compounded by the fact that Mr Singh has added Staffing Codes to Ms Kundan's and Ms Sonni's personnel profiles for which they were not eligible.
2. Despite this, Mr Singh has shown very little appreciation that he has done anything wrong. His concession that he was in a position of conflict when entering codes to his wife's and sister's personnel profiles came very late in the proceedings. He did not accept that he had acted inappropriately in his dealings with Mr Hickey, other than to say that he might do things differently in future.
3. Mr Singh alleged that the Department's Employee Performance and Conduct unit had breached its own guidelines. He had applied for another position in the Department and was apparently successful until the hiring manager was informed of the investigation. He claimed that the Employee Performance and Conduct unit had divulged this information. Ms Thorpe explained under cross-examination that it is standard practice in the Department for the fact of investigations, but not the details of the matters being investigated, to be made available to hiring managers as part of probity checking. I do not consider that the Department has engaged in any conduct in this regard that would render the dismissal harsh, unreasonable or unjust.

Conclusions

1. I am satisfied that the Department has established that Mr Singh engaged in the conduct referred to in the allegations against him and that such conduct amounted to misconduct within the meaning of s 93C(1) of the Teaching Service Act. That misconduct provided a proper basis for the taking of disciplinary action against him under s 93B, including the direction made by Ms Thorpe that he resign from his employment.
2. Having regard to Mr Singh's circumstances, and in particular his length of service, I do not consider that his dismissal was either disproportionate to his misconduct or otherwise harsh. The dismissal was not affected by any procedural defects.
3. It follows that I find that the dismissal was not harsh, unreasonable or unjust.

Order

1. I order that the Application be dismissed. Damian Sloan Commissioner

Endnotes

1. Tcpt, 4 September 2020, p 23(46-50)
2. Tcpt, 3 September 2020, p 70(25-27)
3. Tcpt, 3 September 2020 p 44(22-24)

Amendments 12 May 2021 - Paragraph 26 deleted the word "ISLHD" to read "Department" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2021