Sultan v Department of Education and Communities

Background and Chronology 13The following Background and Chronology has been taken from the evidence before the Commission (the statements as filed by the parties and the transcript of oral evidence) and the written submissions. 14Ms Sultan was employed by the Department of Education and Training under the Teaching Service Act 1980 and pursuant to the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009. 15Ms Sultan was 66 years of age as at the date of the hearing. She holds various tertiary qualifications, (including a Masters of Education, a Diploma of English, a Diploma of Spanish, Language and Linguistics and a Certificate in teaching Catholic Religion from various Australian and International Universities). Her first languages are Arabic and French and she also speaks, and has taught, Spanish. 16Ms Sultan was called to a vocation as a nun with the Order of the Sacred Heart in 1969, and was then located in convents across Europe. She was granted leave of absence from the Order when she was at the Convent of Kincoppal Rose Bay in 1986. Prior to leaving the Convent she taught French, Arabic, Religion and Social Science at a catholic Girls High School for approximately one and a half years from around 1984. 17Ms Sultan completed a Diploma of English (at Macquarie University around 1990) before commencing employment with the then Department of Education and Training in early 1991. She subsequently worked as a casual teacher, on a full time basis, at a number of High Schools teaching Arabic and French and at various Primary Schools teaching Arabic and English as a second language. 18Ms Sultan was made permanent in early August 1998 and commenced as a teacher at Fairfield High School specialising in English as a second language. In April 2009 she was transferred to Strathfield South High School. She taught English to Years 9, 11 and 12 and French to Year 8. 19Mr Daryl Currie is Principal of Strathfield South High School and had commenced in that position (having previously held positions of Head Teacher, Deputy Principal and Relieving Principal) in or around early October 2011. He had not worked previously with either Ms Sultan or Ms Pasalic. 20Ms Diana Pasalic is Head Teacher at Strathfield South High School and has held this substantive position since 2003. She had responsibility for supervising Ms Sultan in her position of English as a Second Language (ESL) Teacher during her period of employment. Ms Pasalic and Ms Sultan were located in the same staff room. 21In May 2010, Ms Sultan wrote to Mr John Falvo, the Head Teacher for Social Science and Languages, requesting that she be moved to his faculty (Exhibit 2-A) due to problems she maintained she was having with Ms Pasalic (see evidence below). However this request was not granted. 22In late 2010 Ms Sultan enrolled with the Board of Studies to do exam marking. On 17 October 2010, during the course of a familiarisation visit to the nominated location for such marking, Ms Sultan fell and fractured her right arm requiring the wearing of a cast; an absence from work of some six weeks; and a subsequent return to work wearing a lighter cast and retained restricted use of her right arm and hand. Ms Sultan was subsequently referred to the Pain Management Clinic at the Royal Prince Alfred Hospital (RPA), first attending in February 2011, and was prescribed various medication. She also consulted with a Psychiatrist. 23During Ms Sultan's absence a Casual teacher took over her teaching duties and was allocated Ms Sultan's regular classroom for such purpose. On her return to work Ms Sultan was allocated different classrooms around the school and across three levels in which to carry out her teaching duties (see evidence below). 24During 2011 Ms Sultan regularly attended the RPA Hand Clinic for physiotherapy on her arm, with such appointments taking place every Thursday afternoon as she had the last two periods free of teaching duties. 25After Mr Currie had taken up his duties as Principal of Strathfield South High School he was approached by Ms Pasalic who raised with him a number of concerns that she had with Ms Sultan about her performance, her completion of work, the time taken to complete work and her general classroom management. As a result of difficulties Ms Pasalic said she was having speaking to Ms Sultan about these issues, she intended to formally advise Ms Sultan to attend a meeting with her. 26On Tuesday 8 November 2011, Ms Sultan received a letter from Ms Pasalic, (which had been placed in her pigeon hole in the ESL staff room) and which read as follows (Exhibit 1-B): Dear Ms Fadia Sultan, I wish to have a meeting with you on Thursday 10th November, 2:12pm at Office 2 to discuss the following issues: The completion of assigned work. The rate at which work is completed. Observation and sighting of programs and registers. Classroom management. You are entitled to bring a support person to this meeting. The meeting will be confidential. I would remind you that the Department provides counselling support for staff and their family members under the Employee Assistance Program. You may want to consider this confidential service. The service coordinators in your area are ......(providers and contact numbers then detailed). In addition, the South West Sydney Region Occupational Health and Safety Manager is available to provide advice about regional support options. 27After reading this letter Ms Sultan then went to certain staff rooms and read the letter out aloud in an agitated manner. Ms Sultan then went and sought to discuss the issues with Ms Pasalic who was in the timetabling room. That an interaction took place between the two is not disputed but there is some dispute about what was said and the circumstances (see evidence below). 28Following this interaction Ms Sultan went out into the corridor continuing to read out aloud Ms Pasalic's letter. Students were at this time in the corridor. Ms Sultan then collapsed in the corridor in a distressed state, was assisted by some staff members and subsequently conveyed by ambulance to Royal Prince Alfred Hospital. Due to a pre-scheduled eye specialist's appointment Ms Sultan had for the next day, 9 November, she self-discharged from RPA on the evening of 8 November 2011. 29On arriving home Ms Sultan proceeded, between 7.03 pm and 8.48 pm, to leave some 21 voice messages on Mr Currie's telephone located in the Principal's Office. The messages were subsequently recorded by Mr Currie (Exhibit 8-A) and later transcribed by DEC, and three are reproduced in identical terms below (being a representative sample - the first, the tenth (being the approximate mid point) and the last): Transcript of Phone message 8/11/1-7:03pm Is that Darryl Curry? Yes, It's Fadia Sultan here speaking. Five weeks only you have been at school and this is your first failure and more to come later. This is what you decided with Diana Pasalic because you follow process, don't you? But remember, you and the whole world, if you gather together in order to harm me or drive me away, you won't be able. And you and the whole world together, if you join together, you won't benefit me anything. I do not have respect for you anymore, really. If you were aware all that and you let her give me a letter. I walked away from Fairfield High School on worker compensation claim for 11 months. 11 months. And I won the case. This is your first failure. A bad principal. Yes, and me in hospital. In the hospital, Darryl Curry. How did..... Why did you come to our school? I don't not know. I felt that. I felt. Goodbye, Darryl Curry. Goodbye Darryl Curry. Transcript of phone message 8/11/11-7.30 Yes, for people like you, the students are like that. They become like that. Stony heart. Stony hearted people. My god. Listen to the culture. Let them help to be with people. But they will get you. I know you will be careful looking after the student because the Department is telling you to look. Not from your heart. Because it is, it is, what do we call it? I forgot what is...duty. Duty of care. Look at this expression. Duty of care. Not that we care about one another. A duty of care. But you have got a long way to learn. A long way Darryl Curry. Darryl Curry, I do not like you and I do not want to be with you and I don't want to talk to you at all. You are excluded completely. Ring them and tell them to transfer me. If you want to, I will go but I will die at school because i want to be a martyr. A martyr at work in my mission. In my mission. I am a disciple, Darryl Curry. I am a disciple. Between you and I there was a big gap and between.....between [inaudible] and I, big gap. How could I work with you? I....To show you the way. To show the way. That is why I am at school, Darryl Curry. To show the way. To care about my students. To love them but you are here to oppress and condemn. Look at you, Darryl Curry. Darryl Curry. Transcript of phone message 8/11/11- 8.48pm Are no longer welcome to my classes, Darryl Curry. I thought you are a nice person when you came but I don't like terrorists. I don't like people who torture other people. I don't. And Diana Pasalic is not welcome either. So what are you going to do about it, Darryl Curry? You have got a problem now. Big one. You have to go to the SED. She is young like you isn't she? But she selected you for some reason, which it seems unknown to us but it is known to us as well. So you go to her. A woman. And we will see who will win. Go to her. Let her support you now. Mm. Yes, Darryl Curry, you are not welcome any more. Don't come near me. At all. I don't like to see you. Under your government and under your management and under your leadership, you do not know about what.... what constitutes a good leader. Bravery, openness, honesty, good decision making, people skills and vision. But you do not have a vision, unfortunately, you don't have. You will develop it. We will see. Yes. Yes. Heading for autocracy or autonomy. Yes, Darryl Curry. Yes. Develop and trans.. and transform. Leadership is a about the process of building and maintaining a sense of mission but you don't have one. 30It should be noted that following listening to the CD recording of these messages it is very clear to the Commission that the word that appears as "[inaudible]" in the above message (and in certain other messages) is in fact the word "Pasalic" and thus a reference to Ms Pasalic. 31When Mr Currie arrived at the School on the morning of 9 November 2011 (at around 6.30 am), he listened to the 21 voice messages, and made a record of them. He then contacted the Safety and Security Unit for advice and also contacted the Employee Performance and Conduct Directorate (EPAC). 32On Thursday 10 November 2012, Ms Pasalic advised Mr Currie by phone that Ms Sultan had attended the School that day but had not attended the meeting with her at 2:12pm. 33Ms Sultan continued to attend the School and undertook her usual teaching duties from 10 November up until 29 November 2011. 34On Friday 11 November, Mr Currie saw Ms Sultan near the front office and asked to speak with her in his office. During the conversation which ensued he attempted to give her a letter containing a written direction for her to meet with himself and Ms Pasalic the following Monday, 14 November. Ms Sultan took the letter and ripped it in half and said she would not attend the meeting, made certain other comments to Mr Currie, and Mr Currie issued a number of verbal directions to attend the meeting (see evidence below). 35Mr Currie's letter to Ms Sultan (Exhibit 8-B), which was headed PRIVATE AND CONFIDENTIAL, read as follows : Dear Ms Sultan I continue to be concerned about your compliance with departmental procedures. I am particular (sic) concerned with your refusal to meet with Ms Diana Pasalic to discuss issues in relation to the day-to-day running of the school including providing you with information in relation to your students. You will remember Ms Pasalic requested in writing to meet with you on Thursday 10 November 2011 at 2.12pm in Office 2. You did not attend this meeting. Your failure to meet with Ms Pasalic has meant that you could not be provided with information in relation to: Completion of your assigned work. The rate at which the work is completed. Observation of your lessons and sighting of your programs and registers. Issues relating to your classroom management. Pursuant to Clause 4.1(iii) of the Department of Education and Training Code of Conduct and Clause 5 of the Teaching Service Regulation 2007 I have the authority to issue directions, which together with official guidelines concerning the performance of your duty, you are required to adhere to, and comply with. Accordingly I hereby direct you to:- Follow reasonable instructions by me or your supervisor including but not limited to you attending meetings to be informed of issues that relate to students and school; I am directing you to meet with Ms Pasalic and me on Monday 14 November at 8.45am in the Principal's office to discuss issues relating to the progress of your students and the school. I have made arrangements for you to be relieved of both your roll call and your first period class (12EN6) so that you might attend this meeting. You may wish to have a support person with you at this meeting. These directions are effective immediately. I will be monitoring compliance with this direction. You should understand that if you can fail to comply with these directions, you may be liable to disciplinary action. However I expect that such action will not be necessary and that you will comply and participate actively in all the corporate interests of the School and the Department. 36As a result of his interaction with Ms Sultan, Mr Currie sent a detailed email to Ms Shane Sarantos, Employee Performance and Conduct Officer, and copied to Ms Kapsimali, School Education Director (SED), and Pat Archer, Injury Management Advisor, describing the incident with Ms Sultan and asking for advice on what should be his next step in the management of the situation with her (Exhibit 8-D). 37The email indicated inter alia the purpose for which Mr Currie had been speaking to Ms Sultan; his attempt to give her the letter; her action in sliding the letter back across the desk saying she would not take it; that she did not accept his authority; then her subsequent action in ripping it in half; that he issued verbal directions for her to attend the proposed meeting; she moved towards him, pointed a finger at him and repeated the word 'failure' approximately 10-15 times; he repeated the verbal direction; and reported that: "she responded by saying that it didn't mean anything that I kept saying that and just because I was tall did not mean I was god. Ms Sultan then said if Abraham, Moses, Jesus and Mohamed and God himself came down for the meeting she would not attend. She then repeated that I was a failure". 38Ms Sultan did not attend the meeting on 14 November 2011 as directed and did not provide any explanation for her failure to attend. 39On 15 November 2011, Mr Currie sent Ms Sultan a second written direction to attend a meeting with himself and Ms Pasalic on 17 November 2012 (Exhibit 8-E). The letter was given to Ms Sultan by the Deputy Principal, Mr Mansfield. The letter was in almost identical terms as the first letter except for the addition of the following second and concluding paragraphs: You will remember that I gave you a letter on Friday 11 November which directed you to attend a meeting with Ms Pasalic and myself at Monday 14 November at 8.45am in my office. You ripped this letter up at the meeting with me on Friday 11 November and I gave you several verbal directions to meet with me at 8.45 am on Monday 14 November in my office. I also made it clear to you on several occasions that your roll call and any classes that you had would be covered to facilitate this meeting. You did not attend this meeting. .......... Should you require advice and support at this time it is available from: Confidential counselling services are provided by the Employee Assistance Program Services. The service coordinators in your area are (details then provided). Welfare and other advice is also available from the Teacher's (sic) Federation. 40Ms Sultan did not attend the meeting on 17 November and did not provide any explanation for her failure to attend. 41Ms Kapsimali has held her substantive position of School Education Director, South Western Sydney Region since January 2011. She has responsibility for exercising under delegation the employer's functions in relation to the management of staff in the Region and is also responsible for providing support to Principals at schools within her area and advice to Principals regarding management issues at their schools. 42In November 2011 Ms Kapsimali received information from the Employee Performance and Conduct Directorate (EPAC) regarding concerns about Ms Sultan and her refusal to attend a meeting with her Principal, Mr Currie and her direct supervisor, Head Teacher Ms Pasalic, following the receipt of two written directions to attend such a meeting. 43By letter of 18 November 2011, Ms Kapsimali directed Ms Sultan to attend a meeting with Mr Currie and Ms Pasalic on 24 November 2011 (Exhibit 7-A). The letter read as follows: Dear Ms Sultan I refer to directions to you from your Principal, Mr Daryl Currie dated 11 and 15 November 2011 (copies attached) directing you to attend a meeting on Monday 14 November and Thursday 17 November, respectively. The purpose of the meeting was to discuss The completion of your assigned work. The rate at which your work is completed. Observation of your lessons and sighting of your programs and registers. Issues relating to your classroom management. I am advised that you did not attend the meetings and have therefore breached the directions. As you are aware failure to attend meetings effects (sic) the efficient administration of the school. You would also be aware you are required to comply with directions issued to you by your principal. Pursuant to section 4.1iii of the Department of Education and Training Code of Conduct 2010 and clause 5 of the Education Teaching Service Regulation 2007 (copies attached) I have the authority to issue reasonable and lawful directions, which together with official guidelines concerning the performance of your duties, you are required to adhere to and comply with. Accordingly I hereby direct you to attend a meeting with your principal Mr Currie on Thursday 24 November 2011, at 8:45am. Ms Diana Pasalic, Head teacher will also attend the meeting. You may bring a support person if you wish. I must emphasise the seriousness of a failure to this direction. Should you fail to comply with this direction you may be liable to disciplinary action. Should you require advice and support at this time it is available from: (then set out in identical terms to the last paragraph of Mr Currie's letter of 15 November 2011.) 44On the 21 November Ms Kapsimali attended Strathfield South High School and met with Ms Sultan, in her classroom, to hand her the letter and explain its purpose. During the course of the ensuing conversation Ms Sultan told her she would not be opening the letter and would not be attending the meeting. She also indicated that she had not opened "the other letters" and questioned why she should attend the meeting (see evidence below). 45Ms Sultan did not comply with the direction issued by Ms Kapsimali and did not attend the meeting on 24 November 2011. 46Ms Kapsimali drew the matter concerning Ms Sultan's conduct to the attention of the Regional Director, Tom Urry. Mr Urry then prepared a letter, dated 24 November 2011, which was given to Ms Kapsimali to deliver to Ms Sultan personally (Exhibit 7-B). The letter read as follows: Dear Ms Sultan I am writing to advise you of allegations regarding your conduct whilst employed at Strathfield South High School. The allegations relate to a failure to follow directions from your Principal, Daryl Currie and School Education Director, Veronica Kapsamali (sic). This matter has been referred to the Employee Performance and Conduct Directorate (EPAC) and is being managed in line with the Guidelines for Management of Conduct and Performance 2006. You can access the Guidelines on the Department's intranet. I am of the view that while an investigation into your conduct occurs, it is not appropriate for you to remain on duty at Strathfield South High School. As a result, I am directing you to undertake non-teaching alternative duties at Riverwood Education Office, as prescribed by, and under the supervision of Mr Rod Leonarder, School Education Director. Riverwood Area Office is located at Union Street Riverwood. You will remain on alternative duties observing school hours and teaching conditions, pending the outcome of the EPAC investigation until further notice. With respect to private employment or secondary employment with the Department (including TAFE) or the Board of Studies, any previous approvals are void and you must apply to me for approval before commencing or continuing such work. You will be advised of the specific allegations and given an opportunity to respond to them either orally or in writing as soon as possible. I have asked your School Education Director, Ms Veronica Kapsimali to give you this letter this letter, respond to any questions you have and also explain what support is available to you. If you would like assistance at any time during this process, advice and support is available from either of the Senior Councillors in EPAC Mr Francesco Lo Pizzo or Ms Karen Duncan, who may be contacted on (Phone Number Supplied) 47The letter went on to detail the counselling services available (including the OH&S Liaison Manager and advice from the NSW Teachers Federation) as well as a contact name and phone number for further information. 48Ms Sultan remained on non-teaching duties at firstly the Riverwood, and then the Bankstown office of DEC until her dismissal, which was effective from 4 April 2012. 49By letter of 6 December 2011, Ms Liway Johnson, R/Manager Staff Efficiency and Conduct Team EPAC, advised Ms Sultan that the Director of EPAC, Ms Jane Thorpe, had asked that an investigation and preparation of an Investigation Report be undertaken into allegations that Ms Sultan may have engaged in misconduct, and which were set out as follows (Exhibit 5): Specifically it has been alleged that you: 1.failed to comply with a written request provided to you by Ms Diana Pasalic, Head Teacher Administration, Strathfield High School on 8 November 2011 that you attend a meeting with Ms Pasalic on Thursday, 10 November 2011 at 2.12pm to discuss the following: The completion of assigned work. The rate at which work is completed. Observation and sighting of programs and registers. Classroom management. 2.failed to comply with a written lawful direction provided to you by Mr Daryl Currie, Principal, Strathfield High School on 11 November 2011 that you attend a meeting with him and Ms Pasalic on Monday, 14 November 2011 at 8.45am to discuss the following: The completion of assigned work. The rate at which work is completed. Observation and sighting of programs and registers. Classroom management. 3.failed to comply with a written lawful direction provided to you by Mr Daryl Currie, Principal, Strathfield High School on 15 November 2011 that you attend a meeting with him and Ms Pasalic on Thursday, 17 November 2011 at 8.45am to discuss the following: The completion of assigned work. The rate at which work is completed. Observation and sighting of programs and registers. Classroom management. 4.failed to comply with a written lawful direction provided to you by Ms Veronica Kapsimali, A/School Education Director, Strathfield Office on 18 November 2011 that you attend a meeting with your principal, Mr Daryl Currie on Monday 24 November 2011 at 8.45am to discuss the following: The completion of assigned work. The rate at which work is completed. Observation and sighting of programs and registers. Classroom management. 50Ms Sultan was advised that she had the opportunity of responding in writing within 14 days; that such response or information provided may be taken into account in deciding whether or not further action, including further investigation was required; and may be used if disciplinary action was taken against her. If no response was provided then it would be assumed that she had denied the allegations and a decision on whether to progress the matter further would be made on that basis. She was also advised as to the ability to seek advice (including legal advice) before responding and the availability of counselling services. 51Ms Johnson's letter was personally delivered to Ms Sultan by Mr Leonarder on 7 December 2011 in a confidential manner, as confirmed by facsimile to Ms Johnson on that date (Exhibit NOM1) 52Ms Sultan provided an detailed and extensive 24 page written response on the 21 December 2011, dated 14 December 2011 (and signed on 20 December at 2 pm as noted at the end of the letter)(Exhibit 1-C). 53The Investigation Report was signed off by Ms Lauralie Harwood, Employee Performance Officer, Mr Kevin Schipp, Manager Staff Efficiency & Conduct, and Ms Jane Thorpe, Director Employee Performance and Conduct Directorate on the 21, 22 and 23 February 2012, respectively (Exhibit 5). The Report indicated that during the course of the investigation the following documents were obtained and reviewed (and attached to the Report): Letter of allegation dated 6 December 2011 from Liway Johnson, R/Manager, Staff Efficiency and Conduct Team to Ms Sultan; Ms Sultan's response to the letter of allegation dated 6 December 2011; Statement from Teacher, Ms R Janzen; Statement from Teacher, Ms Tania Dixon-Highes; Statement from Teacher, Mrs Vicki Lodge; Statement from Head Teacher, Ms Diana Pasalic. Transcripts of voicemail messages left on Principal's answering machine; Letter from Ms Diana Pasalic, Head teacher Administration dated 8 November 2011, to Ms Sultan; Letter of direction from Mr Daryl Currie, Principal dated 11 November 2011, to Ms Sultan; Email from Mr Daryl Currie, Principal dated 11 November 2011, to EPO; Statement from Ms Sue Williams, School Administration Manager; Letter of direction from Mr Daryl Currie, Principal dated 15 November 2011, to Ms Sultan; Letter of direction from Ms Veronica Kapsimali, A/School Education Director dated 18 November 2011, to Ms Sultan; Letter of direction from Mr Tom Urry, Regional Director dated 24 November 2011, to Ms Sultan; Teachers Withdrawn from Schools Notification Form; and Ms Sultan's Leave Record. 54There were no interviews conducted with any of the above mentioned persons during the course of the investigation. 55The Report summarised the evidence relied on in relation to each of the four allegations and made the following findings: Allegation 1 In Ms Sultan's response she refers to not being emotionally prepared attend the meeting. However, there was no evidence to indicate that she spoke with her supervisors regarding her emotional state, nor that this is an appropriate reason to refuse to attend. It is considered that direction from a supervisor to teacher to attend a meeting to discuss performance is entirely appropriate and cannot be ignored by the teacher. It is submitted that there is sufficient evidence to sustain the allegation and that it amounts to misconduct. Allegations 2 and 3 It is submitted that there is sufficient evidence to sustain the allegations. It is submitted that Ms Sultan's failure to follow a lawful direction from her Principal is misconduct. Allegation 4 It is submitted that there is sufficient evidence to sustain the allegation. It is submitted that Ms Sultan's failure to follow a lawful direction from the School Education Director constitutes as misconduct. 56The Report then made the following Recommendation: In summary, concerns with Ms Sultan's performance were identified and attempts were made to meet to discuss these and support her. Ms Sultan refused to participate in the process. She failed to obey four lawful directions to attend meetings and has made admissions to this. In her lengthy response, Ms Sultan gives no reasonable or legitimate reason for refusing to comply. She indicates that the meeting would 'emotionally distress' her and that 'going to a meeting with two enemies is not a constructive process'. It is considered that Ms Sultan's reasons for refusing to comply are neither professional nor acceptable. It is recommended that: a)the decision maker finds that the allegations are substantiated. b)the decision maker finds that the substantiated allegations constitute misconduct in relation to all the allegations. 57On 29 February 2012, 'Additional Information for the Decision Maker When Considering Appropriate Action' was attached to the Report, with reference made to 'Previous Matters (see Ms Thorpe's letter of 29 February 2012 below) and the following noted: ISSUES IMPACTING ON DISCIPLINARY OR REMEDIAL ACTION It is noted that the Director has determined that the PSOA has engaged in misconduct. Is it (sic) submitted that, by her action, the PSOA has undermined the authority of the Principal and School Education Director and prevented the Department of Education and Community staff from carrying out their responsibility. It is submitted that penalty to be imposed should reflect the seriousness of this matter and be at the higher end of the disciplinary scale. 58By letter of 29 February 2012, Ms Thorpe advised Ms Sultan that the investigation into the allegations about her had been completed. The letter went on to state as follows (Exhibit 6-B): I have considered the Investigation Report, the evidence and your detailed response to the allegations. I note you have indicated that you had no intention of meeting with the Head Teacher or the Principal despite several directions to do so. A copy of the report and other attachments are provided with this letter. I find the allegations are sustained and constitute misconduct. As a member of the Teaching Service, you simply cannot refuse to attend meetings with executive staff to discuss completion of tasks and your performance as a teacher. It is an unworkable situation. I am now considering recommending disciplinary action. 59Ms Thorpe's letter then outlined the five possible disciplinary actions available ranging from a caution, or reprimand, to dismissal, and went on to state: In relation to this matter the most severe disciplinary action I am contemplating recommending to Mr Peter Riordan, Deputy Director-General, Workforce Management and Systems Improvement (the Decision Maker) is that you be directed to resign from the Teaching Service. 60Ms Sultan was advised that she had 14 days in which to make a submission and provide any additional information she considered the Decision Maker should take into account and that her submission could address such matters as Ms Thorpe's opinion that she had engaged in misconduct, the Investigation Report, or any extenuating or mitigating circumstances. She was also advised that before making a final decision on the appropriate disciplinary action Mr Riordan would consider the following: 1.The Investigation Report and the associated attachments, 2.Your submission if made, 3.The objectives of Part 4A of the Teaching Service Act 1980 which are as follows: a)to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, b)to protect and enhance the integrity and reputation of the Teaching Service, c)to ensure that the public interest is protected. 4.The fact that in 2000 you successfully completed a period of informal support after you were identified as experiencing difficulties with your teaching performance. In 2009 you were again identified as experiencing difficulties with your teaching performance but due to your ill health the principal did not take any action at that time. 61Ms Sultan was also advised that she had the opportunity to have an interview with Mr Riordan, with a support person present, before a final decision was made. 62Mr Riordan, together with Ms Thorpe subsequently met with Ms Sultan on the 7 March 2012. The meeting was recorded and Ms Sultan was subsequently provided with 2 CDs containing that record. The transcript of the meeting was also in evidence (Exhibit 3-A). 63By letter of 8 March 2012 Mr Riordan advised Ms Sultan as follows (Exhibit 6-C): .................... I have considered your written material as well as your detailed response at interview on 7 March 2012. I attach a recording of the interview with me which is copied onto two CDs. I note your remorse for some of your actions at the school and I thank you for your openness and honesty at interview. Teachers are, however, required to comply with reasonable directions and are required to participate in discussions about their performance. You refused a direction to meet on four occasions. I therefore agree with Ms Thorpe's findings. I sustain all four allegations and consider them to constitute misconduct. I have decided, as defined under Section 93B(1), to direct you to resign from the Teaching Service. You have 14 days from receipt of this letter to tender your resignation, otherwise you will be dismissed from the Teaching Service. ............. 64Ms Sultan subsequently forwarded a lengthy written submission to Mr Riordan dated 9 March 2012 in which she expressed contrition for her actions; repeated some issues/matters raised in her December letter; again acknowledged she had no intention of going to the meetings but for the first time qualified that by saying "only at that particular time"; explained her emotional state; indicated she was not gong to resign and "no matter how severe is the punishment such as returning back to the same school where I'll be humiliated and tortured psychologically", and sought a lesser penalty and suggested the other disciplinary options available (caution/reprimanded, pay a fine, demoted/lower salary) a fine (Exhibit 1-D). 65Mr Riordan did not see this submission and did not take it into account, (See evidence below) when he issued the subsequent dismissal letter. 66Ms Sultan did not tender her resignation as directed and was dismissed by letter from Mr Riordan of 28 March 2012 with effect from 4 April 2012 (Exhibit 6-D). 67By correspondence of 1 April 2012, Ms Karen Woodford R/Manager EPAC confirmed the agreement of Ms Kapsimali (with reference to a telephone conversation), to meet with Ms Sultan and provide her with Mr Riordan's letter of dismissal (which was enclosed in a sealed envelope). The letter also noted (Exhibit 5): ....... When you meet with Ms Sultan please hand her the letter and ensure she receives careful support and advice during this time. Please remind her of the availability of the Department's support services. Please suggest she call Francesco Lo Pizzo on (phone number provided) to discuss. Francesco is usually available Tuesday to Friday. Please confirm by return email when the confidential letter to Ms Sultan has been delivered and that it was delivered in a confidential manner giving the date and time of delivery. ....... 68Clause 5 of the Teaching Service Regulation 2007 provides as follows: 5 Compliance with directions 1)A member of the Teaching Service must immediately comply with a direction given by a person who has authority under this Act or the Regulation to give the direction. 2)A request for the review of the direction may be made by or on behalf of one or more members of the Teaching Service by means of a notice in writing given to the person who gave the direction. 3)The person to whom such a notice is given must immediately send it to the Director-General or to an officer authorised by the Director-General in writing for the purposes of this clause. 4)The making of a request for the review of the direction does not relieve a member of the Teaching Service of his or her obligation to comply with the direction as far as is reasonably practicable.

The Evidence 69There was extensive cross examination of all witnesses and generally reference has only been made to those matters considered relevant. 70Ms Sultan deposed that she had never been provided with any training in order to improve her computer skills, nor had she been provided with a laptop computer that had been offered by the Federal Government to all Year 9 teachers across the State. 71Ms Sultan stated that whilst at Strathfield South Public School she worked with, and had a good relationship with, Mr Mark Bentley, Head Teacher English and Mr John Falvo, Head Teacher Social Science and Languages. However her relationship with Ms Pasalic, Head Teacher Administration "was more strained". In cross examination Ms Sultan said that they "were kind to one another". "They treated each other kindly. They were never agitated, never argued and never said anything to each other". 72Ms Sultan stated that she had never been advised that the quality of her work was not good. She had prepared all the resources she used to teach topics and subjects, such as English, by hand, as the school had few resources. She considered that she was a thorough and meticulous teacher who was well liked and respected by the children she taught. She acknowledged that it took her longer to finish her work as she was "a perfectionist", had an arm injury and eye problems, but was hardly ever late completing work. 73Ms Sultan maintained that after she returned to work in 2010, following the breaking of her arm, Ms Pasalic directed her to write the reports for her Year 8 and Year 11 students even though she had not been teaching them for most of that particular unit and could not type with two hands because of the cast on her arm and the pain. She was also on painkillers. She was so distressed by this, and openly sobbing in the Social Science and Language staff room, that another teacher (Ms Rayner Janzen) offered to assist, sitting beside her and typing out the reports as Ms Sultan dictated what to write for each student. She denied that Ms Pasalic had ever offered to help her as she had asserted. 74Ms Sultan also denied telling Ms Pasalic that she would do her reports when she got to them and that she was too busy to modify the year 8 English program. She agreed that she said words to that effect and went on to explain, essentially, that Mr Bentley was Head Teacher for English and the English program catered for all levels because they were all ESL students at the School. 75She was also never asked about the programs for Years 8 and 11. She could not remember being asked about the scope and sequences and documents and a copy of the assessment tasks for each course, but Ms Pasalic did tell her she had a meeting with Mr Currie in two days time and she hadn't given her hers and Ms Sultan told her "tonight I will be until morning and tomorrow I bring it to you". She brought it to her the next day. She denied telling Ms Pasalic she was sorry she had not done it, didn't have time and had been too busy. She did give them to her the next day and Ms Pasalic did not tell her that she had not. 76Ms Sultan said that when she received the letter of 8 November from Ms Pasalic, which she found in her pigeon hole, she was "absolutely shocked and distressed" as Ms Pasalic had not raised any of these issues previously, nor provided any prior warning that she had concerns in relation to these matters. 77Ms Sultan denied that Ms Pasalic had attempted to engage in 'collegial discussions' with her over the previous twelve months as claimed by Ms Pasalic. She also denied becoming agitated, or arguing aggressively with Ms Pasalic as claimed and denied ever stating that she only answered to God and no-one else. 78Ms Sultan denied that issues about her teaching performance or failure to meet deadlines was documented or raised in staff meetings. These were held on a fortnightly basis. 79Ms Sultan generally denied refusing to comply with any directions issued by Ms Pasalic and said that (apart from specific issues referred to in her statement) she did everything Ms Pasalic asked her to do even though she had physical disabilities which hampered her work. She maintained she was always courteous and polite to Ms Pasalic and did not refuse to listen to her or accept what she asked her to do. 80Ms Sultan agreed that Ms Pasalic as Head Teacher could issue her with directions. 81Ms Sultan said that after she received the letter on 8 November, she then went to try and discuss these issues with Ms Pasalic but she would not discuss them; kept repeating only words to the following effect "I will see you in Office 2 at 2.12 pm"; continued to type on her computer and did not look at Ms Sultan. Ms Sultan asked her "What is this? What is classroom management? This is a lie." When Ms Pasalic would not respond to her requests to advise the basis for her concern, Ms Sultan responded "Evil evil evil. Are you keeping me anxious for two and a half days?". 82Ms Sultan denied that Ms Pasalic engaged in any conversation with her. Every time Ms Sultan sought an explanation, all she kept saying was "I will see you in the office (4 or office 2) at 2.12 pm". 83Ms Sultan denied that she was screaming during this exchange. She said that by "evil" she meant Ms Pasalic's "acts". She also denied waving the letter in front of Ms Pasalic's face saying that she was holding the letter and waving it around as she was walking away (and demonstrated this action from the witness box). 84Ms Sultan denied saying anything to Ms Pasalic about Bob Dunn from the Department, this had been a private conversation held at another time. There was no space between her desk and Ms Pasalic's and from time to time they joked and they laughed and they discussed private things. She told her a story about what happened at Fairfield and felt cheated when this was reported to the Department as this was private. 85She also denied sticking her fingers in her ears and putting her head on the desk (as asserted by Ms Pasalic) maintaining that during this conversation she was standing up and Ms Pasalic was typing at the computer. 86Ms Sultan agreed that she said she would not attend the meeting on Thursday and that she would not be going to a meeting with her or anyone else. 87Ms Sultan also agreed that she said "I hope God will take revenge on you and your family", which she did regret. She said that "maybe" she also said "You wait and see what will happen to you and your family." She agreed she said "I'll continue to pray for my and God's revenge on you and your family". She was sorry. 88Ms Sultan said that immediately after this discussion she left the room and read the letter out loud in the school corridor. She denied that she was screaming, she was reading the letter loudly. She was crying and then collapsed at school. She maintained that Ms Pasalic did not stay with her in the corridor as claimed by Ms Pasalic and she had read the statements of other teachers who were there and no-one had mentioned Ms Pasalic's name. An ambulance was called to the school and she was taken to Royal Prince Alfred Hospital, admitted into the emergency department and treated for an acute anxiety attack. They wanted her to stay in hospital, but she had an appointment with a specialist about her vision the next day that she did not want to miss as it could have been five months until she could have another appointment, so she left hospital on the evening of 8 November 2011. 89Ms Sultan had read the descriptions of her by other staff and while she did not clearly remember all of the accounts of her behaviour that morning, she had no reason to doubt them. She believed her intense reaction was because of a release of all of the tensions that had built up between herself and Ms Pasalic over the previous year. Ms Sultan felt that the letter was unjust, and although she had experienced and tolerated injustice before, in this case she reacted to the accumulation of feeling harshly treated over a long period of time. 90Ms Sultan said that based on what she was told by another teacher, Mr Currie did not stay with her until the ambulance came and no mention was made of Ms Pasalic so she did not believe she was there either. She agreed that she had no first hand knowledge of who was, or was not, there. 91Ms Sultan said that when she came home from hospital she felt "very depressed and anxious", even had suicidal thoughts, which was "very unusual" as she is a strong Catholic and suicide was abhorrent to her. It was in this "state of high distress" that she made a number of phone calls to the school and left messages for Mr Currie that evening. The process of leaving messages lessened her anxiety slightly and stopped her suicidal thoughts. 92Ms Sultan said that she was now ashamed of what she did, and what she said. She also regretted profoundly leaving those messages. She had seen the transcripts of the messages in the Department's Investigation Report, but had been unable to bring herself to read more than the first few. 93Ms Sultan explained that the reason she rang Mr Currie was because she believed that he suggested to Ms Pasalic that she put her concerns with her in writing and believed this because Mr Currie had only recently been promoted to the Principal's position at Strathfield South High School, and had been meeting with each of the Head Teachers individually. She believed that Mr Currie had suggested this course of action to Ms Pasalic "as a way of marking out his authority". Ms Pasalic had never put anything in a letter to her before. 94Ms Sultan considered that she was in "a state of crisis, or near-nervous breakdown" on the evening of 8 November 2011. Although this feeling improved slightly, she continued to be "deeply affected" over the next days and weeks. 95Ms Sultan said that she later went to Mr Currie's office twice to apologise for leaving the messages but both times he was in a meeting. 96She did attend work on 10 November but was feeling "very overwrought, stressed, anxious and depressed". Notwithstanding this she believed that she would have attended the meeting if Ms Pasalic had acted towards her "in a compassionate way". She saw Ms Pasalic during that day but she made no inquiry about her health or confirmed that any meeting was to be attended in the afternoon. Ms Sultan did not go to the meeting. 97She stated that she did not attend the meeting because she came out from hospital "traumatised, exhausted and feeling the animosity of Ms Pasalic. The physical and psychological pain were beyond belief" and that she was still was expected to attend a formal meeting which she said needed preparation of materials and readiness. 98She agreed that she did not tell Ms Pasalic that she was too ill to attend a meeting or seek to postpone the meeting because Ms Pasalic did not say "welcome back" or asked her if she was fit or how she was. 99She said that if Ms Pasalic had said, "Welcome back how are you? Can you attend the meeting?", she would have told her there was no way she could go to the meeting, could they postpone it a little bit later when she felt a little bit better. 100Ms Sultan said she provided a medical certificate but Ms Pasalic wasn't the one who collected them and the medical certificate didn't say she was unfit to attend the meeting because she didn't tell them she had a meeting. 101Ms Sultan denied that she was angry that morning, she was shocked. She agreed that she told Mr Riordan she was angry, but said she was also shocked. 102Whilst Ms Sultan agreed that she could have had a support person present at the meeting. She said that this was not the issue and went on to say: The issue was that the letter was out of the blue without any prior knowledge and it was unfair and just wasn't - she wouldn't explain to me what they were about. She could have said, Fadia, because you didn't provide that or this or this. The letter is a threatening letter, go to counselling, go to this support, that support. Somebody would like to have a meeting could say it. I am next table. She could say, Fadia I would like to see you, it is urgent because now we are at the end of the year and I would like to see this and that but she didn't. It was a threatening letter. 103Ms Sultan said felt that she had been set up by Ms Pasalic for a long time. She had been trying to find something to accuse her of and get her into trouble. She did not regret not going to the meeting because she was set up saying: "it was discrimination and against the law and I am a victim of this hurdle, a victim, yes." 104Ms Sultan acknowledged that she was subsequently able to attend school every day from 10 to 29 November but said that she "was dying really psychologically, physically, but I came for the kids. I'm able, relatively able. Depend if people are enemy or friend how they will look at it". 105Ms Sultan maintained that she and Ms Pasalic never fought and they were always very kind and courteous. But she agreed she might have used the word "battle" and said that it was a "cold war between two women". 106Ms Sultan said that the next day (11 November) when she entered the building Mr Currie asked her into his office and said words to the effect of "You need to come to a meeting with Ms Pasalic and myself. You will come at 8.45" . He did not say her name, ask how she was, inquire about her health, or say anything about her phone messages. He handed her an envelope with a letter in it that she tore into two pieces without reading it and gave back to him. 107She agreed that she did not tell Mr Currie why she had not attended the meeting with Ms Pasalic because he did not ask her, he just presented her with another letter. 108Ms Sultan acknowledged that she said to Mr Currie - "If Noah, Abraham, Moses, Jesus and Mohammed were to attend I am not going to the meeting." Mr Currie kept repeating "You will come at 8.45am." She did not attend the meeting. 109Ms Sultan denied moving towards Mr Currie and pointing at him with her finger, she did gesticulate with her hands as he was also gesticulating and pointing to the ground when he repeated that he would see her at 8.45 on the Monday. She was intimidated by him physically as he was standing over her and he is very tall. She also denied being aggressive, she was "determined and forceful". Mr Currie did not thank her as he claimed. 110Ms Sultan agreed that she repeatedly said the word "failure". She felt he had failed her by not being sensitive to her health after she collapsed and was taken to hospital. 111She said it wasn't Mr Currie's fault she ended up in hospital and went on to say: "but he is a failure that one of his staff ended in hospital after four weeks he was at the school. He could have asked me to come to his office and have a chat. Ask me, "What for, what happened, why Diana is upset? or whatever. But no he didn't. I don't know him, he doesn't know me at all. We didn't - I mean I saw him in the staff room, so he doesn't know anything about me. He is going to give me another letter after Diana's letter, two days after. Well a little bit of space, back off....." 112Ms Sultan denied saying that she did not accept his authority and that she did not need to follow his directions as she answered to God. 113Ms Sultan said that she did not open the further letter from Mr Currie that was given to her on 15 November by Mr Mansfield, Acting Deputy Principal. Mr Mansfield told her it was a letter about a meeting that Mr Currie gave to him. She did not open the letter and did not attend the scheduled meeting. 114Ms Sultan denied subsequently telling Ms Kapsimali that she threw "the letters" behind the cupboard. She had all her books there and she put the letter (the second letter from Mr Currie) on top and it fell down behind the cupboard. She didn't throw it and why would she? 115Ms Sultan maintained that she did not attend the meetings as she was distraught and emotional following the initial letter from Ms Pasalic. 116Ms Sultan said she also did not open the letter that Ms Kapsimali gave to her when she attended the school and gave her a letter directing her to attend a scheduled meeting with the Principal. She did not attend the meeting. 117Ms Sultan said that she deeply regretted not being able to comply Ms Kapsimali's direction but the flood of consecutive letters made her feel ill both "physically and psychologically" She felt she was not being given an opportunity to recover or think after the initial shock of the first letter from Ms Pasalic. She was also distressed that neither Ms Pasalic or Mr Currie enquired after her health or attempted to talk to her about her reaction to the first letter. She was also concerned that she might collapse again if she read the letters. 118Ms Sultan went on to explain that the main reason she did not attend these meetings was because she felt that she was being "set up" by Ms Pasalic as there had never been any performance concerns raised with her. She considered that the issues identified in Ms Pasalic's letter were lies and without any foundation and arose as a result of personal conflict between herself and Ms Pasalic. She felt "betrayed, humiliated and shocked' by the issues raised and the fact that they were without any foundation. 119She knew that it was not rational to not attend these meetings but was not able to act rationally as she was "so shocked and humiliated and ill", felt poorly equipped to defend herself in any such meeting, given how she was feeling, and the lack of care from Ms Pasalic and Mr Currie about her health, and ability to attend a meeting and properly discuss any issues raised with her. 120Ms Sultan confirmed that on 29 November in a meeting with Mr Currie and Ms Kapsimali, she was told she had to go the Riverwood office by 11am and that she was not allowed to go anywhere alone and they had to take her keys. Ms Kapsimali also told her she would be "investigated". 121Ms Kapsimali asked her why she didn't attend the meetings and she explained in reply: " She harassed me all the time. When I had the break (of my arm) I used to take Endone for pain and she messaged me and said "send your keys by post". I replied I can't send my keys by post. She took my classroom and gave it to the casual teacher. 122Ms Kapsimali also told her that Ms Pasalic didn't know about her eyes but she responded that she did know and saw her with a magnifier. 123Although Ms Sultan realised she might face some disciplinary action because she had not attended the meetings, she did not know that she could be removed from the school and required to work elsewhere whilst an investigation took place. She said that she was humiliated by being escorted from the school premises without an opportunity to speak to other staff, and deeply distressed that she would not be able to see her students or finish teaching them for the year. She felt that this was particularly harsh when she had done nothing wrong in relation to her teaching performance. 124Ms Sultan also said that taking the keys off her hurt her "deeply, immensely, beyond belief". Taking the keys was "symbolic", the keys were very significant. 125Ms Sultan said that when she subsequently read the letter from Mr Urry this was the first time she was aware that she might be terminated but did know, and acknowledged, that she might be disciplined for refusing to attend the meetings. 126Ms Sultan confirmed the subsequent events as set out in the Background and Chronology. 127In her written submission during the course of the investigation she indicated that she set out her state of mind in relation to the issues raised by Ms Pasalic in the first letter, the strained relationship between them and responded in detail to the substance of her allegations. She understood that the Department were not relying on any of those issues in terminating her employment. 128Ms Sultan said that when she attended the meeting with Mr Riordan in March this year she had been prepared by her solicitors. She was "nervous, apprehensive and anxious" at the time of the meeting but left the meeting with the understanding that she would be able to return to teaching and would not be dismissed. She felt better during this meeting after she understood she would be able to return to teaching. 129She agreed that the typed up copy of the transcript reflected her recollection of the meeting. She had not been told not to say things. She was not asked questions and they said they were not going to ask questions and that she should talk. She said it was a "good meeting". She maintained she was in control in the meeting but some times when she was talking the tears came to her eyes, this did not mean she was crying. 130When she was directed to resign in March 2012, she did not resign and instead wrote a letter with a lengthy response proposing as an alternative, paying a fine, demotion/lower salary and/or a reprimand. She also expressed genuine remorse and contrition for her actions, which she truly regretted. However she believed that she deserved to be treated with more compassion and more human dignity than was shown by Ms Pasalic and Mr Currie during the period 8-24 November 2011. She accepted that they were in positions of authority over her, but that did not allow them to treat her disrespectfully. 131Ms Sultan said that since being terminated she had not looked for other employment as she had undertaken a Certificate in Administration Level 2 in order to improve her administrative skills. This was training she had to pursue due to her age, and as a result of her broken arm in 2010 it was hard for her to type easily. She also had macular degeneration, retina damage, and cataracts which she believed would also make it hard to gain employment elsewhere. 132Ms Sultan expanded on the details of the TAFE course she was undertaking and that she attended full time for nine weeks but she couldn't cope. They referred her to "disability" because of her eyes and her fingers. There were keys on the keyboard she couldn't reach. She passed the theory but failed the practical computing work. At the time of the hearing she was still attending the course. In order to obtain the Level 2 Administration Certificate she had to pass three subjects. 133Ms Sultan acknowledged that she was no longer incapacitated to carry anything, but was slow because of her vision and her age. 134Ms Sultan said that her termination had been very hard on her and she often could not sleep at night, needed to take sleeping pills and pain medication as she was anxious about being out of work. She had a small mortgage, and had not paid it out as she needed to access the re-draw facilities for the costs of running this case, as well as ordinary living expenses. She was living off her savings of approximately $9,000. She had made enquiries about Centrelink payments when she was first terminated; advised she was not then eligible, but intended to make an application soon for Centrelink payments. She had not had any income since being terminated. She had moderate living expenses but was used to living on her teacher's wage, and had intended to keep working for as long as her health permitted - probably until 70. In addition to her living expenses she made regular donations to various causes (as itemised) and had also this year assisted with medical expenses for her niece who lives overseas. 135Ms Sultan also generally denied any claims made by Ms Pasalic in her evidence. 136She also maintained that her workload was more demanding than other teachers (and explained the reasons for such). Contrary to the claim of Ms Pasalic she said she had submitted a professional learning plan for 2010 and 2011 and maintained that Ms Pasalic was well aware that she had computer literacy problems which Ms Sultan had raised repeatedly. 137Ms Sultan was also taken to her letter of 14 December 2011 in response to the letter of allegations from EPAC and generally confirmed those sections where she was referring to Ms Pasalic even though she had not been specifically named. 138Ms Pasalic stated that the first time she met Ms Sultan was when she returned from maternity leave in April 2010. As Ms Sultan's supervisor she was responsible for reviewing her classroom programs, sighting registers, observing classroom management and following up on completion of assigned work. 139Ms Pasalic denied the allegations made by Ms Sultan regarding her behaviour towards her. In her supervisory role she had always treated Ms Sultan with all due respect accorded to all her professional colleagues. 140Ms Pasalic said she began to develop concerns about Ms Sultan's performance, particularly in relation to the completion of assigned work, the rate at which work was completed and her classroom management skills in 2010. She attempted to engage her in "collegial" discussions regarding these concerns over the year. However each discussion resulted in Ms Sultan becoming quite agitated and arguing aggressively to the point where it became impossible to engage in professional discourse. 141Ms Pasalic gave as an example an occasion in 2010 when she asked her to complete school reports by the designated schedule. Ms Sultan responded with words to the following effect: I will do my reports when I get to them. I can't promise anything. I only answer to God. Don't worry if they are late, if anyone has a problem they can talk to me about it. 142Ms Pasalic went on to say that it was not unusual in their discussions for Ms Sultan to state that she only answered to God and no one else. 143Ms Pasalic said that the request for Ms Sultan to complete the Term 3 Assessments, even though there had been a casual teacher during her 6 week absence, was as a result of the matter being raised with the Senior Executive, Mr Lucas, and he had instructed her that Ms Sultan should be writing the reports not the casual teacher. They were semeterised reports. She had told Ms Sultan that in an SMS. 144She could not recall whether Ms Sultan was right or left handed, agreed she broke her dominant arm and that it was in a cast. She asked Ms Sultan if she could handwrite them and maintained that she also asked her to dictate them to her and she would be happy to write the report. 145Ms Pasalic maintained that Ms Sultan's refusal to comply with her directions occurred on a number of occasions and that as her supervisor she had significant difficulties trying to manage Ms Sultan's performance issues as a result of her conduct. 146Ms Pasalic gave a further example of when she asked each member of the ESL faculty to review a different program in October 2010. Ms Sultan was asked to review the Year 8 English program and modify it to cater for the Year 8 ESL students. She refused to comply this direction saying she was too busy and didn't have time to complete the task and that there was a current English program. Ms Pasalic told her that she was teaching the ESL course and there needed to be a specific program for those students. Ms Pasalic was never provided with a modified program for Year 8 ESL students. 147She agreed that it was Ms Sultan's view that to develop a program of this sort required release from day to day classes but said that was not the case at Strathfield South High School. 148Ms Sultan did not agree that modified ESL programs had been developed for Years 9, 10, 11 and 12 by other teachers. These had been developed by a previous Head Teacher prior to 2009. She went on to say that programs were reviewed on an annual basis. 149Ms Pasalic denied that with the exception of Year 8 ESL she needed to obtain programs from Ms Sultan. Ms Sultan was teaching Year 11 English In Need, had been doing so for a year and there was no program for this particular course. It was delivered over periods 5 and 6 and not in lunch time with students allocated by various teachers to the course. She did not recall whether it was a new course. 150Ms Pasalic denied removing Ms Sultan from her regular classroom upon her return to work after breaking her arm. Her classroom had been managed by a casual in her absence. If there was any period of time upon her return when Ms Sultan was required to teach in other classrooms this would have been a temporary arrangement. She agreed the school was arranged over three levels with two flights of stairs, thought Ms Sultan had access to a lift but did not recall if that was immediately or after she had been back at the school for some time. She maintained Ms Sultan did not have to wheel books from room to room as she had access to the staffroom to leave books. 151Ms Pasalic said that when Mr Currie came to the school as Principal in October 2011, she made a general request to all the staff she supervised at a staff meeting, and by email, for them to provide her with a copy of the scope and sequence for each of the courses they taught, as well as a copy of an assessment task. Additionally she requested information as to where they were up to with programs and registers. She wanted to provide this information to Mr Currie so that he had an idea of the progress of each course. All staff complied with this request except Ms Sultan. When she again made that request of Ms Sultan she was told that she was sorry she had not done it, she did not have time and was too busy. 152This was denied by Ms Sultan who maintained she provided handwritten documentation to Ms Pasalic two days before her meeting with Mr Currie. 153For her part Ms Pasalic denied that she had ever seen the handwritten documents. She maintained she had to postpone the meeting with Mr Currie twice because Ms Sultan had not provided the information. She could not recall the relevant dates. 154Ms Pasalic said that as a result of Ms Sultan's refusal to comply with directions she had to postpone her scheduled meeting with Mr Currie. Further requests were made at subsequent faculty meetings, however Ms Sultan never provided the documents requested. 155Ms Pasalic also maintained that she had to correct mistakes made in Ms Sultan's student reports in 2010 and the first half of 2011. Ms Sultan said it was not her fault, she did not make the mistakes, it was the computer. 156Ms Pasalic said that sometime in November 2011 she spoke Mr Currie about her difficulties managing Ms Sultan and her concerns about her performance. She told him that she would need to issue Ms Sultan with a formal request to attend a meeting because she was unable to address the performance issues in a collegial informal manner without her becoming aggressive. She could not recall the date of this meeting. 157Ms Pasalic said that the meeting was scheduled for periods 5 and 6 on Thursday 10 November because Ms Sultan was off those periods. She did not know whether it was every Thursday that Ms Sultan went to the Hand Clinic, she did not make any enquiries about that. That was the time she was told by the Principal. She told Mr Currie that Ms Sultan had a pre-commitment but he said that was the most convenient time as they were both off. She denied not caring about whether or not Ms Sultan was deprived of attending the Hand Clinic that day. 158Ms Pasalic agreed that she had not previously written a formal letter to Ms Sultan requesting a meeting but she had refused to attend TARS conferencing meetings which was a process occurring throughout the year. She agreed that she sat next to Ms Sultan, had day to day discussions and had the capacity to raise that at any time with her. She maintained that it was raised, but Ms Sultan would not divulge any appointment times. It was raised at every faculty meeting and on a regular basis. She had not forgotten any such occasions when Ms Sultan had given her appointment times as she would have recorded that and made a note of that in her diary. As Head Teacher of Administration that ensured she must be efficient in her job. 159Ms Pasalic agreed that she was aware that Ms Sultan had sought to be moved from the ESL faculty to either English or Social Sciences in 2010. She said that she and the faculty members felt that it was in Ms Sultan's best interests to remain in the faculty as she was an ESL Teacher. 160On 8 November 2011, after Ms Pasalic had placed her confidential letter about the meeting in Ms Sultan's pigeon hole, Ms Pasalic deposed as to the following then taking place: 18. During period one on the same day Ms Sultan approached me in the timetable room in an agitated state. She was waving a piece of paper in my face and screaming words to the following effect: Sultan: I have been to the English, Maths, Social Science, History and Science staffrooms and I have read the letter to all the staff. I will read the letter to the rest of the teachers and to my students. 19. I understood Ms Sultan was holding the letter I had left in her pigeonhole. I pointed out the contents of the letter were confidential. Ms Sultan and I continued the discussion with words to the following effect: Sultan: How dare you put me on a program? Pasalic: I'm not placing you on a program Fadia, there are just issues we need to discuss and work collegially through to provide you with the appropriate support you need to perform your duties to a satisfactory standard. Sultan: You are an evil person. Evil, evil. Evil person. 20. I could see that Ms Sultan was becoming increasingly agitated and I was concerned about how quickly the discussion appeared to be escalating. I sought to discontinue the conversation and I said words to the following effect: Pasalic: I am sorry Fadia that you are upset. However I am extremely busy right now. We will talk about my concerns at our meeting. 21. Ms Sultan became even more agitated and screamed words to the following effect: Sultan: I am not attending any meeting with you. How dare you do this to me? You will talk about this right now. 22. I continued to try and end the conversation in an attempt to manage Ms Sultan's agitated response. I was particularly concerned as there were students outside, I said words to the following effect: Pasalic: I am sorry Fadia; I told you I don't have time to discuss this with you right now. I have organized a time for us to meet when we are both off classes on Thursday afternoon and we will discuss my concerns and how best I can support you. 23. Ms Sultan responded with words to the following effect: Sultan: Let me tell you I have been in a two hour meeting with Bob Dunn from the Department. I have done this before and I will do it again. 24. Ms Sultan then placed her fingers in her ears and put her head on the table. When I indicated that it was entirely up to Ms Sultan how she conducted herself at the meeting Ms Sultan responded with words to the following effect; Sultan: No I am not attending the meeting on Thursday. I will not be going to any meeting with you ever. You, you, you are evil, evil, evil. God and I will seek revenge on you and your family, now and in the future. You wait and see what will happen to you and your family. I will continue to pray for my and God's revenge on you and your family. 161Ms Pasalic stated that Ms Sultan never expressed a concern to her about being anxious for 2 1/2 days. 162Ms Pasalic said that at the time she was working on the next year's timetable (which she finished on the last day of Term 4), was very busy and was more than happy to discuss the issues at the meeting. Ms Sultan was very agitated and Ms Pasalic could not control her manner and the time had been set for the meeting. 163Ms Sultan generally denied Ms Pasalic's version of what was said and relied on her written and oral evidence. 164Ms Pasalic stated that Ms Sultan then left the room still screaming that she would tell everyone the contents of the letter and she continued to read the letter out loud in front of the students. Ms Pasalic was shocked at Ms Sultan's extreme and unprofessional behaviour. She did not follow and intervene as Ms Sultan was very agitated and Ms Pasalic was fearful for her own safety. 165Ms Pasalic then saw another staff member (Ms Janzen), who was walking by at the same time, attempt to clear away the students who had gathered around Ms Sultan. Ms Pasalic went outside of the room, saw Ms Sultan on the floor of the hallway and immediately went back into the timetable room to contact Mr Currie and to ask the switchboard to contact an ambulance. Ms Pasalic said she was very concerned about Ms Sultan's wellbeing and stayed with her until the paramedics arrived. 166Ms Pasalic maintained that while she did not stay with Ms Sultan the whole time, she did check on her on a number of occasions. She was very concerned about Ms Sultan, which was why she contacted Mr Currie and notified the front office to call an ambulance. 167Ms Pasalic stated that Ms Sultan attended the school on 10 November but did not attend the meeting as requested and she informed Mr Currie of this. 168Ms Pasalic denied "setting up" Ms Sultan and stated that each time she attempted to engage in professional discourse regarding the issues outlined in the letter Ms Sultan shut her down and threatened that she could not do anything about her as she had won a claim against the Department whilst at Fairfield High School. 169Ms Pasalic did not consider that Ms Sultan was poorly equipped to "defend" herself at the proposed meeting. As stated in the letter she was encouraged to have a support person present at the meeting. 170Ms Pasalic maintained that issues regarding Ms Sultan's teaching performance and inability to meet deadlines were documented and raised regularly at each faculty meeting, however Ms Sultan had asked that such matters not be minuted at these meetings. Ms Pasalic did not take the minutes, it was a general request made by Ms Sultan of all faculty members. 171Ms Pasalic stated that she found Ms Sultan's conduct to be both inappropriate and unprofessional. As her direct supervisor she found it impossible to deal with any performance concerns as a result of Ms Sultan's conduct whenever performance concerns were raised with her as she simply refused to listen or to accept what she was being asked to do. 172Ms Pasalic generally acknowledged that she did not refer in her 8 November letter to specific detail when taken to each of the four bullet points. She did not recall whether one of the specific issues Ms Sultan identified when she confronted her was wanting to know what these issues were all about. 173When asked if it was incumbent on her to give as much detail as possible about what was to be discussed to a staff member, she said they were going to be just raising those issues at the meeting. 174Ms Pasalic maintained that Ms Sultan had not handed in a Professional Development Plan for 2010 or 2011. They were normally handed in at the beginning of the year. She was on Maternity Leave at the beginning of 2010 and had asked her replacement if all teachers had handed one in and was told that Ms Sultan had not. The way she had followed this up was by asking requesting staff in faculty meetings to nominate appointment times for conferencing and professional development, but nothing eventuated with Ms Sultan. 175Ms Pasalic also responded in detail to the various issues/concerns raised by Ms Sultan in her written submission to Ms Johnson of 14 December in response to the allegation letter. Ms Sultan had traversed in some detail the four bullet points contained Ms Pasalic's letter of 8 November. Ms Pasalic generally refuted Ms Sultan's accusations and provided her explanation/version of certain issues as raised. 176The Commission does not consider it necessary or relevant to refer to these matters, either as raised by Ms Sultan or Ms Pasalic. This will be commented on further under 'Consideration' below. 177Mr Currie acknowledged that his appointment to the school in October 2011 was his first as a Principal; that he had a duty of care to his employees; that in discharging that obligation it involved giving procedural fairness; getting both sides of the story before proceeding to take action on a matter; and that he should not show favouritism. 178He confirmed that he had meetings with all Head Teachers in both Weeks 3 and 4 of that Term to discuss any issues with staff or faculties, and had asked for samples of programs/scope of sequence/assessments tasks so they could be discussed and he could get a feel of what the procedures and processes of the school were like. 179Mr Currie was also asked a number of questions about the teaching of ESL across the school. 180Mr Currie stated that when he was approached by Ms Pasalic regarding her concerns about Ms Sultan, she indicated to him that when she had tried to speak to her about the issues she became agitated and wouldn't listen. He understood that Ms Pasalic was becoming increasingly frustrated by Ms Sultan's conduct and as a result told him she was going to formally request her to attend a meeting to discuss her performance issues because she was would not discuss these issues reasonably when spoken to. 181He had suggested that Ms Pasalic should write a letter. He did not speak to Ms Sultan about those matters after that because he thought it would be inappropriate. 182He confirmed that this approach, and the ensuing events, had happened when he had only been at the school some 4 weeks and had not yet had the opportunity of meeting one-on-one with all staff, but had spoken with some including Ms Sultan. She had come to see him in about the second or third week, after school, it was an impromptu meeting and she talked to him for about an hour and a half regarding her issues with Year 8 classes and asking for support with regards to that, or guidance with regards to Year 8. He had not referred the meeting in his statement because he was only asked about the incidents from 8 November onwards. 183Mr Currie stated that he received a phone call from Ms Pasalic on the 8 November 2011 to advise that Ms Sultan had collapsed and required medical attention. He arrived at the scene and stayed with Ms Sultan until the paramedics arrived. He learnt that Ms Sultan's reaction followed a disagreement with Ms Pasalic regarding a written direction from Ms Pasalic for Ms Sultan to attend a meeting to discuss performance issues. 184He agreed that after Ms Sultan collapsed he immediately sought advice from other areas of DEC as to the appropriate way to handle the matter and was seeking guidance. He had experienced difficult situations with staff previously, both as a Deputy Principal and a Relieving Principal, but in terms of this situation, as a response to receiving a letter from a Head Teacher requesting a meeting, it was unusual and so he sought guidance. 185He had made notes in his diary and based on that information he confirmed that he had telephoned Safety and Security. They were required to contact Safety and Security on a range of issues regarding incidents concerning students and staff where ambulances had been called or the Police or Emergency Services. He was told he did not need to contact the SED but he phoned Ms Kapsimali anyway. He also made an injury management notification to the Injury Management Centre about Ms Sultan. 186He confirmed that he had also tried to contact RPA and speak to Ms Sultan (at 1.45pm) directly, but was told he was not allowed to have information because he was not a relative. 187When he arrived at the school the next day (9 November) at around 6.30 am, he discovered that Ms Sultan had contacted him the previous night and left 21 messages on his phone voice mail. He was extremely disturbed by the nature of the voice messages and genuinely concerned about his own safety. He made a record of the voice messages. He did not listen to all of the messages at once, he flipped through them because he couldn't believe there were 21 and he had wanted to establish that they were from the same person. There were other things he had to attend to, people who came to see him (including a meeting at 9 am concerning re-flooring of the school with no way to contact the person involved) and he listened to them all before he contacted anyone. He was also conscious that he could not listen to them with other people present as he did not think that was appropriate. There had to be a time when he could sequester himself and then listen to them and decide what he was going to do. He had listened to them all by 9.43 am. 188He again contacted Safety and Security and their advice was to report it to Police and make a complaint "if threats on site." He had not put that in his statement because he saw this as common practice and something that was just procedural in his mind. It was a procedural incident to call Safety and Security, just common practice. He also subsequently contacted Auburn Police Station 189Mr Currie acknowledged that he had Ms Sultan's mobile phone number. Safety and Security did not suggest that he contact Ms Sultan directly, and because it was obvious that she was agitated because of his perceived actions he did not think it was appropriate to phone her at that stage. It was not his custom, or that of any Principal he knew to contact somebody away on a sick day to actually find out why they were not in, that could be, or perceived to be, harassing them. He was not aware that Ms Sultan had a medical appointment on that day. Sick days were dealt with by the Head Teacher. He was aware she was on the absent sheet. 190He believed that the Police did not attend the school because otherwise he would have diarised that and they did not indicate to him they intended to do anything in relation to the self harm threats. They did tell him that they had reported her to the Croydon Mental Health Unit. He had not subsequently advised that to Ms Sultan as she never attended a meeting with him. He discussed the telephone conversation he had with Auburn Police with EPAC. 191In his conversation with EPAC they indicated that they would be contacting Pat Archer at the Well Being Unit. He was also told to phone the Serious Misconduct Investigation team because it could have been considered misconduct and they advised that they would not be involved because it would be examined by senior officers within EPAC. 192He was subsequently advised by Ms Pasalic that Ms Sultan had attended school that day although she did not attend the meeting with Ms Pasalic. He confirmed that he made no attempt to speak to Ms Sultan that day. He had spoken with Shane Sarantos from EPAC about the way forward. After speaking with Ms Pasalic it was decided to do a letter because Ms Sultan had refused to attend any sort of meeting. That was the information he received. 193Mr Currie said that a different approach was not considered as from the very beginning he had discussions with EPAC and this was the pathway decided upon. 194Mr Currie stated that on 11 November 2011 when he saw Ms Sultan he asked if he could speak to her in his office. He initially asked how was her health and she replied "I am fine". 195When he told her that he was aware she had not attended the meeting with Ms Pasalic the day before, she responded: "I will never attend a meeting with either you or Ms Pasalic." 196Mr Currie stated that he then produced an envelope and pushed it across the table towards Ms Sultan and told her he had written another letter for her. She slid the letter back towards him and told him she would not take the letter and they then had the following exchange: Sultan: I do not accept your authority to give me a letter. You can sack me if you want to. Currie: Fadia, this is a letter for you, in it there is a direction that you meet with Diana and me in my office at 8.45am on Monday 14 November. 197Ms Sultan stood up, took the letter and ripped it in half and then said: I will not attend the meeting. You are not my God. I do not need to follow your directions. I answer only to God. 198Mr Currie stated that he repeated the direction as Ms Sultan moved towards the door and the following exchange took place: Sultan: You should not be giving me a letter; you should have talked to me and not just believed Diana Pasalic. Currie: Fadia, Diana was only asking you to attend a meeting. 199Ms Sultan then moved towards him and stood quite close, looked up at his face, pointed a finger at him and then said the word 'failure' 10 to 15 times. Mr Currie repeated the direction that she attend a meeting with himself and Ms Pasalic. Ms Sultan responded: It doesn't mean anything if you keep saying that. Just because you are tall does not mean you are God. If Abraham, Moses Jesus, Mohamad and God himself came down for the meeting I would not attend. You are a failure. 200Mr Currie stated that he was concerned about the aggressive manner of Ms Sultan's conduct and sought to terminate the discussion, walking back to his desk. Ms Sultan followed him away from the door and stood across from his desk and continued to call him a failure. He again issued a verbal direction to attend a meeting on the following Monday at 8.45am. 201Mr Currie stated that Ms Sultan then said the following: You have blood on your hands, blood on your hands. 202Mr Currie stated that he was very disturbed by the incident. He asked Ms Sue Williams, the School Administrative Manager who was outside his office to write a statement describing the incident. He also showed her the letter that Ms Sultan tore in half. 203Mr Currie said he did not attempt to discuss the issues in Ms Pasalic's letter. It was intended just to touch base with Ms Sultan to ask her to a subsequent meeting. It was inappropriate for him as Principal to undercut the Head Teacher and ask for a meeting when the Head Teacher had been requesting a meeting or had put the process in place. 204Mr Currie had made contemporaneous notes of what had transpired and what Ms Sultan said and later that day sent an email to Ms Sarantos at EPAC (and copied to Ms Kapsimali and Pat Archer) concerning the incident with Ms Sultan, (as referred to in the Background and Chronology above). 205Mr Currie agreed that it was not a normal experience he had had for a teacher to rip up a letter. He had encountered "truculence" in an interview but never someone ripping up a letter, putting it on the table and saying they didn't accept authority for anyone to ask them to a meeting. 206Mr Currie stated that Ms Sultan did not attend the meeting on 15 November as directed, nor did she provide a reason for not attending. He sent her a subsequent letter directing her to attend a similar meeting on 17 November. She did not attend and did not provide an explanation for not attending. He agreed that he did not give her the second letter and that it was handed to her by the Relieving Deputy Principal. At that stage Ms Sultan had refused to acknowledge his existence so it he was unable to give her the letter. He had asked Mr Mansfield to give her the letter because she was still responding to him. The other Deputy had been involved in incidents with Ms Sultan in previous years so it was decided they would ask Mr Mansfield. 207Mr Currie stated that when he saw Ms Sultan in the School grounds on 17 November, he attempted to speak to her but she refused to acknowledge him, looked right through him when he stood in front of her and spoke to a colleague standing directly behind him as though he were not present. 208Mr Currie maintained that Ms Sultan's conduct was such that it would make it impracticable for her to be reinstated to Strathfield South High School. As a Principal he had every expectation that employees at the school would comply with directions when given. This was particularly important when that lawful direction enabled him to deal with the performance concerns of an employee. 209Ms Kapsimali had known Mr Currie, in both his previous position (but not to a significant extent), and as the Panel Convenor for his selection for the position at Strathfield South High School. She had not known Ms Sultan before she met her in November 2011. She detailed in a general way the contacts Mr Currie had with her, commencing on the date of the incident and her knowledge of the incident, and what subsequently followed. 210She had suggested to Mr Currie that he contact EPAC and the OH&S area of the Department because she was concerned that a letter was given to Ms Sultan regarding following reasonable directions, which was just a simple instruction to meet with Ms Pasalic, (she accepted that the letter was in a request form) and as a result the incident then occurred (as then summarised). The suggestion to inform EPAC was just to give them 'a heads up' in regard to a situation that occurred at the school concerning a staff member and that an ambulance had been called and also to make a report on their normal 24 hour Work Health and Safety line. 211She was also concerned that Ms Sultan's initial behaviour (walking around the school reading out the letter) might involve misconduct. 212Ms Kapsimali subsequently had daily contact with Mr Currie and she was definitely called the next day in regards to Ms Sultan's telephone messages. Her advice was to not delete them but to down load them and send them to EPAC and a copy was also sent to Ms Kapsimali. She listened to them at the time and was very concerned about Ms Sultan's psychological health and advised him to contact EPAC as well as OH&S. She leaned more to a concern for the psychological issue but said the 'misconduct stuff' was definitely there. 213She did not recall any advice she gave to Mr Currie about any steps he should take to ascertain Ms Sultan's state of health before she returned to teaching at the school but it would have been her standard advice. 214She was aware Ms Sultan had returned to teaching from emails she exchanged with Mr Currie. She did not have a copy of those emails. There was a request from EPAC that when a matter has been finalised all information relating to it was to be deleted from their system and any hard copies returned to EPAC. 215Ms Kapsimali did not give any advice to Mr Currie about his first letter and had no input into that letter. She did not give him any advice about his second letter, but he did discuss it with her, as well as the advice he got from Shane Sarantos from EPAC. He asked for her view and she told him to be careful how it was done, given how she took the first letter and to make it clear it was not meeting of punitive consequences but to discuss her normal duties as a teacher and what they would expect from any teacher in the school to meet with a supervisor to discuss teaching and learning programs. 216Ms Kapsimali was not aware that one of Ms Sultan's concerns was that Ms Pasalic had not raised any of these matters with her orally before giving her the letter. She never discussed with Ms Pasalic directly what discussion she had had with Ms Sultan. She asked Mr Currie whether he had established himself directly with Ms Pasalic that what she was saying was true and he said he was given enough evidence from her that many informal attempts had been made to meet with Ms Sultan with no result and that he had suggested sending a letter requesting a meeting. She understood he accepted Ms Pasalic's word. She did not suggest to him that he should ask Ms Sultan about those matters. 217Ms Kapsimali knew there would probably be a consequence from Ms Sultan's continued refusal, with the next step being a direction from herself. She had a discussion with EPAC about that. 218Ms Kapsimali accepted that in the letter she subsequently issued, matters were set out generally with no specific identification and with no timeframes attached. She said that "they were general things that any teacher and supervisor would be having in the course of discussions". She did not agree that examples of ways in which performance was deficient were identified. The purpose of the letter and the meeting was to actually meet to discuss teaching and learning. Whether there was an actual performance issue would be established later. It was just a meeting with a teacher regarding "her teaching and learning processes and resources and see that the curriculum is being taught. It's a form of accountability that we expect everyone to actually go through". She believed she attached a copy of the relevant extract of the Code and the Regulation as referred to in the letter. 219Ms Kapsimali acknowledged that Ms Sultan had been a teacher for 20 years and that there was a requirement under the Teaching Services Act to have an annual performance review. She had checked the list she had that every Principal had to submit and Ms Sultan was signed off in 2010 as satisfactory. 220It was Ms Kapsimali's evidence that the letter was not about performance management but simply about accountability in respect of teaching. She did not accept that it had a performance overtone. She considered it a standard letter and that a good letter should always include a reference to the EAP and having a support person. 221Ms Kapsimali deposed that when she went to Strathfield South High School on 21 November to meet with Ms Sultan, she told her she had a letter that she had to give her and asked whether she would like a support person present, that she was entitled to a support person present (such as a Teachers' Federation member or staff member), or whether there was anyone else Ms Kapsimali could call for her. Ms Sultan replied: "What for? I do not need anyone. God is my support". 222Ms Kapsimali deposed that after she gave Ms Sultan the letter she responded: "Thank you for the letter. I will not be opening the letter and I will not be attending the meeting". 223Ms Kapsimali told her that was important for her to attend the meeting. It would be in her best interests to attend the meeting and if she did not attend the meeting there could be "consequences". Ms Sultan responded: "Respectfully Ms Kapsimali, I will not be attending the meeting". 224Ms Kapsimali deposed that during their conversation Ms Sultan indicated to her that she had not read the other letters given to her by Mr Currie and Ms Pasaliac saying: "I have not opened the other letters and I have thrown them behind the cupboards". As she said those words she gestured to the cupboards at the front of the classroom. Ms Kapsimali understood Ms Sultan's reference to "the other letters" to mean the letters she had received from Ms Pasalic and Mr Currie. She maintained that she heard the word "letters", Ms Sultan gestured towards the cupboard, and she heard the word "threw". She was surprised by the fact that she said she threw them. She did not make notes of this conversation. 225Ms Sultan also asked her why she needed to attend those meetings and Ms Kapsimali deposed that she told her that she was required to comply with reasonable directions issued to her to attend meetings with her supervisor or Principal and that as teachers they had a responsibility and duty of care to their students to review and update their teaching practices and resources so they could effectively teach and support their students. Ms Kapsimali told her that this review took place in meetings between Ms Sultan and her supervisor. She also said that there could be consequences for her if she continued to not comply and Ms Kapsimali would not like to see that happen. 226Ms Kapsimali deposed that when Ms Sultan when asked her what they were going to do if she did not attend the meeting, Ms Kapsimali told her there would be "consequences, to which Ms Sultan responded: "If they fire me they will fire me. I will be a martyr. I will rise like the phoenix". 227Ms Kapsimali deposed as to the events that then took place (see Background and Chronology above). When she went to the School on 29 November to provide her with Mr Urry's letter they met in Mr Currie's office. She explained the purpose of the letter and the alternative non-teaching duties Ms Sultan was to take up and told her she should open the letter. 228Ms Sultan then apologised for her behaviour responding: "I am sorry for my behaviour. I did not understand what the purpose of the meeting was. Why did it have to be so formal? Why did Diana not just come and talk to me. It got out of control." 229Ms Kapsimali told her that Ms Pasalic tried to talk to her but she refused and that was why she wrote her a letter and that the purpose of the meetings was to discuss her lesson plans and programs and provide her with support in her teaching. 230Ms Kapsimali also thought she would have had a similar conversation when she first met Ms Sultan but could not recall, had not mentioned it in her witness statement, but did not agree that was because it had not formed part of her conversation or she would have remembered it. She maintained that there was a whole lot of conversation she had not put it and that they had a quite long conversation. 231Ms Kapsimali understood that Mr Currie was going to assist Ms Sultan in gathering her resources and personal belongings. Ms Kapsimlai also told her that if there was anything she left behind to contact her and it would be arranged for Mr Currie to send it to her at Riverwood. 232Ms Kapsimali denied being "short and sharp" with Ms Sultan during this meeting or that she told her she would be "investigated". She did not refer to any investigation and was careful about the words she used as she did not want to alarm Ms Sultan, who was already visibly distressed. She denied telling Ms Sultan that she could not go anywhere alone and that they must take her keys off her. She said she calmly explained that she would need to return any school property before she left the premises. 233Ms Kapsimali also denied telling Ms Sultan "you are never to come back here". She explained that she was not to return to the school until further notice. 234Ms Kapsimali also denied that Ms Sultan was treated in a manner that was distressing or humiliating and that she was treated with respect at all times. Mr Currie escorted Ms Sultan in case she became upset at the directions she had been given, and in the light of how she had responded when she had received Ms Pasalic's letter. 235Ms Kapsimali accepted that Ms Sultan's reaction that she was distressed and humiliated was a normal human reaction no matter how well the process was handled. 236Ms Kapsimali deposed that as School Education Director she expected that an employee would comply with reasonable and lawful directions when given. This was particularly important when that lawful direction related to performance concerns of an employee. Failure to comply with such directions affected the efficient administration of the school and the education that could be provided to students. 237Ms Kapsimali deposed that in all her years as an educator she had never had the experience of dealing with an employee who refused to comply with a written direction to attend a meeting. Ms Sultan's conduct was such that it was not appropriate for her to remain on duty as a teacher at Strathfield South High School. The reason for her removal was straight non-compliance which would have impacted on the efficiency of the school when you had a teacher who was not complying with the reasonable directions of her supervisor and the Principal. 238Ms Kapsimali was not aware of any other non-compliance issues during this period of time. 239Mr Riordan deposed as to his involvement with the dismissal of Ms Sultan as the decision maker and confirmed and clarified his delegation as the decision maker. He had received a brief submission, and the Investigation Report which found the allegations proven, as well as the letter of Ms Thorpe to Ms Sultan and Ms Sultan's response. He had no knowledge of any issue involving Ms Sultan prior to his involvement in late February 2012. 240He then met with Ms Sultan on 7 March 2012. Ms Sultan showed some remorse at the meeting and said words to the following effect: I am very sorry about what happened at Strathfield South High School. I was under a lot of stress at the time. 241Mr Riordan stated that he subsequently considered Ms Sultan's responses and the contents of the Investigation Report and the recommendation made by Ms Thorpe, the interview with Ms Sultan and then made his decision. 242Mr Riordan said that he could not recall seeing a further letter from Ms Sultan dated 9 March and did not take it into account in coming to his decision. Since becoming aware of the letter he had not asked either Ms Thorpe or Mr Schipp why they had not provided the letter to him. It did not concern him as he made his decision on the 8 March and was not aware of when EPAC received it and was only aware of the letter recently. It would not have changed his mind. He made his decision on the material available to him on 8 March. 243 He found the four allegations fair and reasonable and in accordance with the Department's requirements. He found them to be proven on the basis of the admissions and responses of Ms Sultan. He was satisfied that Ms Sultan failed to comply with a number of written directions contrary to the Code of Conduct and the expectations of their employees. He considered that the directions were reasonable and necessary for the effective management and maintenance of the running of the school. 244Mr Riordan stated that in refusing to comply with reasonable directions Ms Sultan engaged in conduct which was in breach of the Department's Code of Conduct procedures and that conduct constituted misconduct for those purposes. Her conduct continued to frustrate attempts to engage her in a process to address concerns regarding her work performance. Students at Strathfield South High School and at all government schools throughout NSW had a right to be taught by competent teachers. Ms Sultan failed to follow lawful and reasonable directions to attend meetings with the school executive and School Education Director. He did not consider it unusual for a Principal or a Head Teacher to issue a direction and the form of such direction would depend on the circumstances. 245Mr Riordan was satisfied that Mr Currie was authorised to issue a direction based on the Code of Conduct which empowered Mr Currie as Principal to issue directions and as per clause 5 of the Teaching Service Regulation 2007. He agreed that clause 5 referred to the requirement to comply with a direction but did not establish the authority of the person to issue a direction. He said that the Code of Conduct set out the expectations of employees and all employees were expected to be familiar with the Code. He did not believe that it was necessary for the Investigator to establish the source of the authority to give the direction and the reasonableness of the direction. 246Mr Riordan did not know if Ms Sultan was advised of her right to seek a review of the direction issued as provided for in clause 5. He was aware that Ms Kapsimali in her letter to Ms Sultan had referred to attaching a copy of the Code of Conduct and the Regulation, but was not aware if those documents were attached. 247Mr Riordan accepted that in relation to an assertion concerning failure to comply with a direction that the direction had to be lawful and reasonable. 248Mr Riordan could not point to where in the Departmental documents there was a requirement to comply with "a request". He thought that the Code of Conduct made clear that teachers were expected to behave in a certain way. Whether a refusal to comply with a request was misconduct would depend on the nature of the request and the circumstances. 249He acknowledged that the wording in 'Allegation One' concerning the first letter (Ms Pasalic's request to attend the meeting), was exactly the same as the wording in the wording in the other three allegations. 250Mr Riordan maintained it was not his role to determine whether misconduct had been sustained, Ms Thorpe had found all four allegations sustained. His role as the decision maker was to determine the appropriate penalty. He did not have to accept Ms Thorpe's findings, but relied on them. He was not sure if he had the capacity, authority, function, or any other power, not to accept or follow those findings. 251Mr Riordan generally confirmed the obligations on a workplace manager such as a Head Teacher in the management of performance issues with staff. 252He accepted that, depending on the circumstances, writing a letter was more formal way of approaching a performance issue than raising the matter orally. He considered that Ms Pasalic's letter fell within the Department's Performance Guidelines. He did not consider that the letter raised anything unusual, had seen this type of letter before and it was more common than not. 253Mr Riordan indicated the differences between the formal processes and the informal processes within the guidelines. The formal processes resulted in a formal Improvement Plan being put into place with detailed targets for a teacher to meet and detailed plans about the support to be provided. The informal plan was more about understanding there was an issue with the teacher's performance and a school would then work with the teacher to address those issues, prior to a need for a formal plan to be put in place. 254Mr Riordan said that for him the issue of reasonableness was whether Ms Sultan was in a position to comply with the request and the directions she was given. There was nothing unlawful about it, it was consistent with their Guidelines and the Act. 255He accepted that Ms Pasalic was also required to act within those Guidelines. He was not aware of whether she had raised performance issues with Ms Sultan as soon as they were identified. He did not accept that in failing to give references to examples in the letter that Ms Pasalic was not complying with the Guidelines. 256Mr Riordan agreed that he understood from Ms Sultan's responses to him (and to DEC generally) that she did not understand what the issues were from Ms Pasalic's letter. He did not take that into account in assessing her ability to comply with the request because it was his understanding that once a discussion occurred (the meeting) that was the opportunity for those issues to be put forward on an informal basis. 257In dealing with the matter Mr Riordan said that he did pay regard to Ms Sultan's reaction, that she had a difficulty with meeting with Ms Pasalic, her hospitalisation (and agreed that it was a significant event for an ambulance to be called) and the way the matter was dealt with by the school after 8 November. 258He had seen the transcript of the telephone messages but did not listen to recordings and said that they were "strong, very strongly worded". He agreed there was a reference to suicide (that she would not commit suicide) and that there was nothing in Mr Currie's report that indicated that he felt threatened by those messages. 259He did not directly turn his mind at all as to whether there were valid questions to be asked about Ms Sultan's medical condition after 8 November. He understood she was back at the school without restriction, and did not enquire about any medical clearance. He was not aware of any actions Mr Currie had taken following her hospitalisation. He considered her psychological fitness to be directed to attend further meetings was a judgement made by the school at the time. The issue of the reasonableness of the directions were matters for the people issuing them. He did not issue them. He could not recall any medical certificates being provided by Ms Sultan as to her psychological fitness. 260During his interview with Ms Sultan he did not ask her about the extent to which Ms Pasalic had previously raised these issues with her, it was not his role to do that. He believed the steps taken in the on-going process of the letters of direction to attend a meeting were reasonable steps for the Principal and School Education Director to take. The process for managing performance was just that, and it required teachers to participate in the process. He did not accept that in giving Ms Sultan three further letters, in the light of her obvious distress, she was being set up to fail. He considered the issuing of the further letters was reasonable because from his perspective she was able to comply with the directions. 261Mr Riordan had no role in Ms Sultan's removal from the school on 29 November 2011. He confirmed that there was nothing in the Investigation Report indicating any concerns with her work between the 10 and 29 November 2011. 262Mr Riordan stated that he did not believe that other forms of disciplinary action, or remedial action, were sufficient to deal with the underlying issue of Ms Sultan's failure to attend meetings so that she could be supported with her teaching performance. 263He also indicated that he could impose a lower penalty than that recommended by Ms Thorpe. He accepted that a direction to resign necessarily contemplated the possibility of termination of employment if an employee didn't resign. 264Mr Riordan indicated that in relation to his direction to Ms Sultan to resign, such a direction provided an employee with the opportunity to leave the Department's service in a manner which may not impact upon the employee's future employment prospects. The decision to direct Ms Sultan to resign took into consideration the facts in the matter and Ms Sultan's response to the allegations. 265Prior to meeting with Ms Sultan on 7 March, Mr Riordan did not discuss with Ms Thorpe the possibility that a lesser penalty than directing her to resign might be imposed. He had brief discussions with Ms Thorpe to clarify in his mind the timeframes that were involved in the letters (the chronology) but had no discussion about penalty. He was not surprised when Ms Thorpe, towards the end of the interview, raised with Ms Sultan the possibility of Ms Sultan returning to the School and attending a meeting to discuss whatever concerns the School had. He accepted that in this context Ms Thorpe was raising the possibility of her return to the School. He accepted that whilst it was unclear at the time, that for the remainder of the discussions, Ms Sultan was indicating that she accepted that she would have to attend a meeting. 266Mr Riordan agreed he was actively considering at that time whether there was the possibility of a lesser penalty than a direction to resign. He was trying to find whether he could get Ms Sultan to a point where he could be satisfied that she would in future obey directions given to her.

Submissions on behalf of the Applicant 267Ms Lowson on behalf of Ms Sultan outlined in detailed written submissions the relevant background and chronology and also referred the Commission to relevant evidence relied upon in support of the submissions. Those submissions are summarised below. 268Ms Sultan's employment had been terminated by DEC, not because of any defect in teaching performance, nor otherwise in relation to any matter that would normally fall within the parameters of misconduct, but solely for her failure to comply with a request, and then three directions, to attend a meeting firstly with her Head Teacher, and then with her Head Teacher and Principal. The purpose of the meeting (as alleged by DEC) was to discuss four areas relating to Ms Sultan's work as described by in the letter from her Head Teacher, Ms Pasalic. 269Although it was not apparent precisely what any of these four issues related to, it was apparent that they were not sufficiently serious, in and of themselves, to have warranted the termination of Ms Sultan's employment. It was inconceivable in those circumstances that it could be fair to terminate a person's employment for their failure to attend a meeting to discuss matters that had not been characterised by DEC as conduct or performance issues, let alone conduct or performance issues that went to the heart of the employment relationship. 270There was also uncertainty about the nature of the meeting between Ms Sultan and Ms Pasalic. DEC's own witnesses could not agree as to whether the meeting was one being conducted under the performance guidelines or simply an informal approach of some uncharacterised nature to discuss issues involving Ms Sultan. 271It was accepted that Ms Sultan as the applicant bore the onus of demonstrating that the dismissal was unfair, however DEC as the respondent bore the onus of establishing that the misconduct occurred. In this case, DEC must firstly establish that the directions to Ms Sultan were both lawful and reasonable. It was submitted that DEC had failed to do so and on that ground alone, the dismissal must be found to be unfair. 272 It was submitted in relation to remedy that there could be no doubt that Ms Sultan was entitled to return to the teaching environment and make her own decision as to when she was going to leave work, on her own terms and in her own timeframe, and not suffer the ignominy of ending her career by being dismissed from her job and her vocation of teaching.

First letter of 8 November 2011 (from Ms Pasalic) 273Ms Pasalic's letter to Ms Sultan, its content and the events following Ms Sultan's receipt of the letter were detailed and it was submitted that this letter did not comprise a direction, but rather a request to Ms Sultan to attend a meeting. 274The Commission would be satisfied that, prior to this letter being provided to Ms Sultan there had been no, or no meaningful, attempt to discuss any of these issues with her, and there was no basis for any assertion that she had refused or failed to discuss these matters with Ms Pasalic. To the extent that there was any evidence supporting the assertion that discussions had been held, the suggested discussions occurred a long time prior to the issue of the letter. As such, they could not support a decision to issue the letter. 275The Commission would also be satisfied, in accordance with Mr Riordan's evidence, that it would have been appropriate for the employer to have identified in the disciplinary process in what way the refusal to comply with a request amounted to misconduct. DEC would be unable to operate if it treated as misconduct every occasion when a teacher refused to comply with a request. The Investigation Report simply did not address this issue. Ms Sultan's primary submission was that given her genuine and severe emotional response to being provided with the letter, there was adequate explanation for her failure to attend the meeting on 10 November as requested in the 8 November letter. 276Ms Pasalic had provided limited evidence as to the occasions on which she had supposedly raised with Ms Sultan the issues in the letter. That evidence was then summarised and it was submitted that it was weak in the extreme. This was relevant because in order to establish that Ms Sultan had committed misconduct by refusing to comply with a request, DEC must prove that the request made was reasonable. From Ms Sultan's reaction to the request, it was clear that she did not view the request as being reasonable, and indeed she suffered a significant emotional and physical reaction to the matter being reduced to writing, together with Ms Pasalic's refusal to discuss the letter with Ms Sultan, or identify the basis for the alleged concerns. DEC had failed to establish that there were in fact any issues in respect to Ms Sultan's preparedness to enter into discussions with Ms Pasalic about her supposed concerns, and accordingly had not established that Ms Sultan's non-attendance at the meeting on 10 November amounted to misconduct. 277In all the circumstances, the 8 November letter was premature and was almost bound to inflame the relationship between Ms Pasalic and Ms Sultan. The letter was written at Mr Currie's suggestion, in circumstances where he accepted at face value Ms Pasalic's account that she had tried to discuss the four issues with Ms Sultan, but Ms Sultan had refused to engage in those discussions. Mr Currie apparently was prepared to take Ms Pasalic's word for this, and did not attempt to ascertain when the alleged attempts were made, or what precisely was allegedly discussed with Ms Sultan. Had he made those enquiries it might have become apparent then, rather than in the Commission proceedings, that there was significant doubt over whether Ms Sultan had in fact refused to discuss issues with Ms Pasalic. 278Further the letter was prepared outside the parameters of the procedural guidelines, and ultimately Ms Sultan was justified in not attending the meeting on 10 November 2011. There were also serious deficiencies in the way in which Ms Sultan was treated on that day. There was uncontroverted evidence that neither Ms Pasalic nor Mr Currie made any enquiries as to her health, notwithstanding the messages that she had left for Mr Currie on the telephone message system. The Commission should accept Ms Sultan's evidence that, had an enquiry been made, she would simply have asked for the meeting to be postponed in order to enable her to recuperate from the shock of receiving the letter. The fact that this was not done makes the further letters provided to Ms Sultan unreasonable.

Second letter of 11 November 2011 (from Mr Currie) 279DEC bore the onus of establishing that the letters of direction issued by Mr Currie were lawful directions but had failed to discharge this onus as it had failed to put on any evidence to demonstrate in what capacity, or pursuant to what code or statutory provision, Mr Currie was entitled to give a direction to Ms Sultan in circumstances where the consequences for her could be so severe. Further, there were such procedural deficiencies in relation to the communications in the letter to Ms Sultan that they vitiated any lawfulness that might have existed. It was also not reasonable for Mr Currie to issue the 11 November letter in all the circumstances. 280The wording of the letter was contentious as there was no evidence of Mr Currie previously communicating any concerns to Ms Sultan as expressed. There was also no relationship between Mr Currie's assertions and the issues raised in Ms Pasalic's letter. Further although the letter went on to assert his authority to issue directions, at no time did he provide Ms Sultan with either the Code of Conduct or Regulation to which he referred 281Mr Riordan accepted that clause 5 of the Teaching Service Regulation 2007 did not in fact provide the authority asserted and the Code of Conduct was not in evidence before the Commission. The Commission was referred to relevant terms of Clause 5 of the Regulation (see Background and Chronology above). 282There was no obvious connection between Mr Currie's direction and the four issues raised in Ms Pasalic's letter and it was entirely unclear how those that those issues were matters that went to the progress either of Ms Sultan's students or the progress of the school. This was particularly so given the lack of detailed information about the matters that Ms Pasalic allegedly had difficulty in discussing with Ms Sultan. 283Additionally, although reference was made to the ability to have a support person attend the meeting there was no reference to the EAP, nor to the OH&S Manager. The Commission was referred to Ms Kapsimali's evidence that inclusion of such in correspondence to a teacher was good practice, and there was no evidence at all why these matters were omitted from Mr Currie's letter. 284Mr Curries' reference to 'monitoring' was an escalation when compared with Ms Pasalic's letter and his final words clearly introduced threats of some sort if Ms Sultan failed to comply with the direction. Further, the failure by Mr Currie to ascertain Ms Sultan's capacity to attend such a meeting arguably involved a lapse of duty of care by Mr Currie. 285In all of the circumstances it was not reasonable to direct Ms Sultan to attend another meeting, and she was justified in refusing to do so. Further, DEC had not established the lawfulness of the Principal issuing a letter of direction to Ms Sultan, and in particular where the possible consequence of non-compliance with the direction in the letter was termination of her employment. 286Additionally, no evidence was called from anyone at EPAC (who advised Mr Currie to send the letter) to establish any of the following: the source of alleged authority for Mr Currie to send the letter, the intended outcome of giving a direction to Ms Sultan (particularly given her reaction to Ms Pasalic's letter), whether termination of employment was already in contemplation at the time of sending this letter, what consideration, if any, was given to managing Ms Sultan's health issues, and what, if any, other strategies were considered for dealing with the issue. 287It was submitted that in all the circumstances DEC had not established the lawfulness or reasonableness of the letter, with the consequence that Ms Sultan's non-attendance at the meeting was not misconduct.

Third Letter of 15 November 2012 (from Mr Currie) 288The differences between the second and third letter were referred to (see Background and Chronology above). 289It was pointed out that throughout this period of time, neither Ms Pasalic nor Mr Currie attempted to raise with Ms Sultan directly the four issues referred to in the 8 November letter. Mr Currie had no contact with Ms Sultan about her non-attendance at the previous meeting. The letter was provided to her by a Deputy Principal, Mr Mansfield. While Mr Currie was prepared to give to this Deputy Principal the responsibility of giving this letter Ms Sultan (given what had happened in relation to the second letter), he was not prepared to delegate to the same Deputy Principal responsibility for dealing with new flooring to be installed in one of the halls at the school on 9 November. 290Ms Sultan did not open the letter but put it on a shelf from where it fell down the back of the cupboard, and for her, this letter was another step in heaping insult upon injury. The poor way in which she had been treated on 8 November continued with each attempt by DEC to enforce its will on her. DEC had set its face against Ms Sultan and her genuine concerns about the way in which she was being treated, and instead reacted with disproportionate force to crush her perceived obstinacy. 291DEC had not established why, other than to prove the right of its employees to assert authority over more junior employees, it was so essential to the running of the school that Ms Sultan attend a meeting to discuss the issues in the 8 November letter. In any workplace there will be differences in approach between employees on the question of compliance with authority. A good employer will manage all of those employees equally and fairly. In this matter the only apparent response to Ms Sultan asserting a right to be treated with respect was to set up a situation in which she was bound to fall foul of the respondent's "rules" and was bound to fail. This was not a fair basis upon which to base the termination of employment of a 67 year old and her livelihood. 292In all of the above circumstances, and for similar reasons as to the first letter from Mr Currie, issuing another letter was neither reasonable nor lawful, and Ms Sultan was entitled to decide not to attend a meeting. Her non-attendance did not amount to misconduct.

Fourth letter of 18 November 2011 (from Ms Kapsimali) 293The circumstances of the letter and general content was referred to and it was pointed out that while the letter purported to attach copies of the Code of Conduct and the Regulation, there was no evidence that such copies were in fact attached. Ms Kapsimali asserted that Ms Sultan was required to comply with directions issued to her by the Principal but did not establish the basis of her authority. DEC had failed to establish the lawfulness of the direction from Ms Kapsimali. 294Further, the letter made no attempt to assess the reasonableness of the directions given to Ms Sultan and instead proceeded to give a similar direction to attend a meeting with Mr Currie and Ms Pasalic. Although the letter emphasised the seriousness of the failure to follow the direction with similar wording as used by Mr Currie (namely that Ms Sultan may be liable to disciplinary action), the Commission would accept Ms Sultan's evidence that at this time she had no inkling that a possible outcome of her non-attendance at these meetings might be the termination of her employment. 295Ms Sultan was not put on notice of termination as a possible outcome until she was provided with Ms Thorpe's letter of 29 February 2012 in which it was indicated that the most severe disciplinary action she was contemplating was recommending to Mr Riordan that Ms Sultan be directed to resign from the Teaching Service. The letter did not identify that if Ms Sultan did not resign the next step would be the termination of her employment. 296In summary it was submitted that DEC had failed to establish the lawfulness of the directions in the three letters requiring Ms Sultan to attend a meeting with Mr Currie and Ms Pasalic, or that any of the four letters were reasonable on the following grounds: Ms Pasalic's evidence did not establish that Ms Sultan had in fact refused to discuss specific issues as set out in her 8 November letter. It was prima facie unreasonable to address issues for the first time by writing a letter requesting someone to attend a meeting, including references to the support person, the EAP and OH&S management without first addressing those matters informally and orally. The letter was defective in failing to properly identify with reference to dates and details the matters about which it was alleged Ms Sultan had refused to engage with Ms Pasalic. In light of Ms Sultan's emotional and physical collapse upon receipt of the letter, it was simply unacceptable and certainly unreasonable to continue to deal with these matters by way of letters directing her to attend a meeting. This was particularly so in circumstances where nobody took any steps to informally enquire after Ms Sultan's health or, more particularly, took any steps to establish in fact her mental and physical capacity to be provided with further letters of direction. Neither Mr Currie nor Ms Kapsimali, and more generally the Respondent, have established the lawful source of their authority to direct Ms Sultan to attend a meeting. The letters from Mr Currie were unreasonable as they failed to establish the same details that Ms Pasalic failed to identify in her letter. The decision by Mr Currie to issue a further letter and have that letter delivered by the Deputy Principal in circumstances of continued failure to make the enquiries referred to above rendered that letter unreasonable. For the same reasons, Ms Kapsimali's letter was also unreasonable, and Ms Sultan was justified in not attending the final meeting for the same reasons already to above. 297The Commission would therefore find that DEC had failed to establish that Ms Sultan engaged in misconduct when she did not attend a meeting with her superiors in November 2011. 298The process adopted by Mr Currie, Ms Pasalic, then by Mr Currie in consultation with EPAC and other parts of DEC, was attended by significant defects that disadvantaged Ms Sultan and hampered her ability to understand all matters relevant to the process, and her ability to contribute to that process in a way that protected her interests. The following examples were then highlighted: Ms Pasalic's evidence was that she had told staff that she needed certain programmes and other documents to meet with Mr Currie, however it appeared that staff were not made aware that Mr Currie had two purposes for meeting with HTs - discussing programmes, and discussing staff performance and staff management issues - It appears likely that Ms Pasalic went to the meeting: Knowing that staff performance was "on the agenda" intending to raise with Mr Currie her "concerns" with Ms Sultan - and yet this was not raised with Ms Sultan prior to the meeting nor did Ms Pasalic raise orally with Ms Sultan that if she did not address certain matters, Ms Pasalic would have to raise this as a performance issue with Mr Currie. at the meeting Mr Currie clearly accepted Ms Pasalic's version of events, apparently without ascertaining the details of when the alleged refusals had occurred, instead advising her to write a letter, without taking the time to discuss these matters with Ms Sultan directly. He effectively "took sides" with Ms Pasalic when, as a newly appointed Principal, he could and should have spent more time getting to know the staff - and staff relationships - before rushing to judgment. Mr Currie's oral evidence that if Ms Sultan attended the meeting on 15 November as directed he intended to discuss, not only the matters identified in Ms Pasalic's letter, but also Ms Sultan's conduct between 8 and 11 November e.g, reading of the letter out loud to students and staff, leaving messages on the night of 8 November, and her health . EPAC had characterised the last matter as possibly involving serous misconduct. Yet none of these further matters were identified in the 11 November letter. Had Ms Sultan attended the 15 November meeting it would have resulted in manifest unfairness and prejudice to her, in having issues relating to her behaviours and health raised without notice and without warning. Mr Currie's intention in this regard is also another reason why the direction to attend that (and subsequent) meetings was unlawful - in not meeting the requirements of procedural fairness - and unreasonable. 299The disciplinary process was also attended by procedural unfairness on a number of grounds, which were then summarised as follows: 1.Failing to properly identify the steps in the process of giving a direction and the possibility of termination, including failing to make clear how the three letters of direction were lawful and reasonable. 2.If the 8 November letter was sent pursuant to the procedural guidelines then it would have been fair to provide the procedural guidelines to the applicant. 3.The lack of clarity about whether the meeting with Ms Sultan was, or was not, being conducted in accordance with the performance and conduct guidelines. Ms Sultan was entitled to be clearly on notice of the nature of the meeting. 4.Failing to warn Ms Sultan explicitly that termination of employment was a potential outcome if she failed to attend the meetings as directed. 5.Failing to advise Ms Sultan of the provisions of Clause 5 of the Teaching Service Regulation 2007, pursuant to which she was entitled to seek a review of the direction to attend the meeting/s. 6.The apparent failure to take into consideration Ms Sultan's submission to the Investigators providing details as to why she did not think it was reasonable for her to be required to attend the meeting. No effort was made to ascertain whether Ms Sultan's assertions that Ms Pasalic had not tried to discuss the four issues with her was true. Ms Pasalic was not interviewed as part of the Investigation process, which was decided on the papers. 7.Failure of the Investigators to interview Ms Sultan as part of the Investigation Process. 8.Mr Riordan decision to terminate Ms Sultan's employment without taking her extensive written submissions into account. 9.Ms Sultan not being told until hearing Mr Riordan's oral evidence that her extensive written submissions had formed no part of his decision making process. 10.Mr Riordan proceeding to terminate Ms Sultan when she had been given notice only of a direction to resign, and not of the consequences if she failed to resign as directed. 11.Mr Riordan's evident uncertainty as to whether or not he could decide, independently of Ms Thorpe, whether or not the alleged misconduct had in fact occurred. 12.The failure of the Investigation Report to address the question of how Ms Sultan's refusal to agree with a request to attend the first meeting amounted to misconduct 13.The failure of the Investigation Report to address the question of the lawfulness and reasonableness of the subsequent directions to the applicant to attend a meeting. 300Ms Lowson, on behalf of Ms Sultan, also raised a serious concern about the evidence of Ms Kapsimali that DEC had a policy requiring documents relating to an Investigation to be destroyed or deleted. It was not possible to know what other evidence existed that might have assisted Ms Sultan in the conduct of this case that had not been produced in answer to Summonses issued by her Solicitors because it no longer existed. This obviously exacerbated the unfairness faced by Ms Sultan throughout the process. 301Even if the Commission were to find that Ms Sultan's conduct in not attending a meeting did amount to a refusal to obey both a lawful and reasonable direction, it was not conduct that was so serious that, when balanced against the procedural unfairness, the Commission could not intervene in the decision to dismiss. Any misconduct found against Ms Sultan contrary to the primary submissions on her behalf, did not support termination when weighted against the injustices manifested upon Ms Sultan throughout the handling of this matter by DEC. It was unfair for Ms Sultan to bear the consequences of the badly handled process. 302The failure to comply with a lawful and reasonable direction was still only a basis for dismissal if that refusal went to the heart of the employment contract and manifested an attitude on behalf of the employee to not being bound by the terms of that employment contract. In circumstances where Ms Sultan had valid reasons for not attending the first meeting with Ms Pasalic, and in circumstances where no one throughout the process enquired into, or assessed, the merits of those reasons, there had been a failure by DEC to consider the reasonableness or otherwise of her actions in continuing to direct her to attend the meeting. 303Further, even if the directions were lawful and reasonable, and even if the request had a proper basis, there was little doubt that the way in which the matter was handled was designed to achieve the result of Ms Sultan being removed from the school and losing her job. There was no proper assessment of her length of service, the lack of performance issues in relation to her capacity as a teacher, and the absence of any prior disciplinary action having been taken against her. 304In addition, none of the misconduct, if proven, represented a serious breach that went to the heart of the employment relationship (see Adami v Maison de Luxe Ltd (1924) 35 CLR 143). The issue related to a very confined matter over a period of two to three weeks where Ms Sultan justifiably felt strongly aggrieved by the way in which the matter was handled, and which set the scene for what then occurred. It was ultimately the responsibility of the Head Teacher and the Principal to develop a strategy to break the impasse that they had created, but instead a process was adopted which entirely ignored Ms Sultan's concerns. It should also be noted that throughout this time period, (from 10 November until her removal from the school), Ms Sultan continued to perform her teaching duties without complaint, and on her evidence was struggling to find the strength to keep going, but did so for the sake of the students. 305Submissions were also made about misconduct justifying dismissal with reliance placed on relevant extracts from the following decisions: Clouston and Co Ltd v Corry [1906] AC 122 (at 129); Laws v London Chronicle (Indicator) Newspapers (Ltd) [1959] 1 WLR 698; Pastrycooks Employees v Gartrell White (No 3),(at 74); and Blyth v Bushnell (1933) 49 CLR 66. It was submitted that Ms Sultan's conduct was far from being at the level of seriousness as set out in Blyth. 306In the alternative it was submitted that if the Commission made an adverse finding in relation to Ms Sultan's non-attendance at a meeting, it was clear that the penalty of dismissal was at the very least harsh ( see Electricity Commission of NSW (Pacific Power) v Crump [1993] NSWIRComm 30) having regard to matters such as her length of service with DEC Department, her age and her physical infirmities, and the unlikelihood of her obtaining alternative employment in all of those circumstances. Further, Ms Sultan had already suffered a sufficient penalty for her conduct in being removed from the school before the end of term and sent to perform administrative tasks, and then in being dismissed and having to bring legal proceedings which were of themselves stressful for her to experience, including listening to the tape recordings of the messages that she left on the evening of 8 November 2011. 307It was emphasised that reinstatement was not impractical. The evidence concerning difficulties with Ms Pasalic and Mr Currie working with Ms Sultan in the future was insufficient to prevent her being reinstated to her position at Strathfield South High School. There was no evidence suggesting that Ms Sultan's performance - including in the areas identified by Ms Pasalic - was in any way impugned in the two other faculties in which she performed work. If the relationship with Ms Pasalic had so wholly broken down that Ms Sultan could no longer work with her, there was no reason why Ms Sultan could not be reinstated to the school and directed to work with one of the other two Head Teachers, given her apparent good relationship with the English and Social Studies faculties. 308Further, the Commission would not be persuaded to isolate Ms Sultan from Strathfield South High School in circumstances where both Mr Currie and Ms Pasalic demonstrated a degree of immature prejudice towards Ms Sultan. For example, Mr Currie, in defending why he had not informed Ms Sultan that she had been reported by the Police to the Croydon Mental Health Unit (a fact that became apparent only when Mr Currie's diary notes were summonsed) said that Ms Sultan had never attended a meeting a meeting with for him to be able to tell her anything. This was denied. Ms Sultan had willingly entered Mr Currie's office on the morning of 11 November, and thereafter Mr Currie made no attempts to seek her out. 309It was also pointed out that Ms Pasalic took every opportunity to criticise Ms Sultan and gave non-responsive answers during cross-examination, she was also defensive, and generally the Commission was invited to accept Ms Sultan's evidence where there was a conflict with any of the evidence of DEC's witnesses. Reference was then made to various examples of Ms Pasalic's evidence. 310As far as Mr Currie was concerned if the Commission were to make findings in Ms Sultan's favour, then it would simply be up to Mr Currie to accept that on this occasion the actions that he took were incorrect but he could take heart from his inexperience as a Principal together with his reliance on advice from EPAC in relation to conduct of the matter. It was submitted that it was otherwise difficult to see why a mature Principal would find it so difficult to deal with a reinstated employee, particularly in circumstances where he had very limited opportunity to get to know Ms Sultan in relation to her teaching and service more generally. 311In conclusion it was submitted that the primary remedy sought by Ms Sultan was reinstatement with full continuity of service and without loss of any entitlements, including salary and associated payments since the date of her dismissal. Strictly in the alternative, Ms Sultan sought an order for re-employment to a position that otherwise fell within suitable geographical parameters from Ms Sultan's home address, again with full continuity of service and payment of entitlements. 312Finally, and again strictly in the alternative, if the Commission formed the view that Ms Sultan was unfairly dismissed, but that there was an insurmountable difficulty in her being re-instated or re-employed, then she sought payment of six months salary for a small and incomplete compensation for the distress she suffered throughout this process. However this submission was made strictly in the alternative to the primary submissions that, if unfairness is found there is no genuine impediment to Ms Sultan returning to the workplace. The only adequate remedy for the unfairness was reinstatement, or alternatively re-employment, to enable her to continue and complete her career on her own terms. 313Ms Lowson, on behalf of Ms Sultan, reserved the position in relation to the question of costs of the proceedings.

Submissions on behalf of the Respondent 314Mr Britt on behalf of DEC in detailed written submissions referred the Commission to relevant evidence in support of those submissions as set out below. 315It was submitted that this was a relatively simple case, from both a legal perspective and a factual perspective, with most of the relevant facts concerning Ms Sultan's failure to abide by directions as directed by DEC through its more senior employees being admitted by her. Ms Sultan had not simply failed to obey a single instruction on a single occasion but deliberately engaged in a course of conduct in breach of DEC's directions and policies for a period of approximately two weeks. The evidence demonstrated that her conduct was made knowingly and deliberately and that she had no intention of ever obeying a direction to meet with her Head Teacher to discuss her performance or attend any meeting with the Principal and Head Teacher (despite her claim in March 2012 that it was an objection to the timing of the meetings). 316It was submitted that given Ms Sultan's open defiance in engaging in such a course of conduct, DEC had little choice but to take disciplinary action which was a direction that she resign, and then when she failed to resign, to terminate her employment. 317It could not be seriously suggested that in order for a Head Teacher to meet with a teacher to discuss concerns with the teacher's performance (and not in the context of a formal or even informal support program) the Head Teacher was required to justify to a teacher's satisfaction that there was a need for such a meeting and that the matters sought to be discussed had to be justified by the Head Teacher. Further, there was no evidence that the attendance at such a meeting was part of any formal improvement program. 318It was conceded that, given the circumstances, DEC bore the onus of establishing that misconduct occurred, (see NSW Nurses Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service (2007) 164 IR 225; Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No.3) (1990) 35 IR 70 at p83-84; Wang v Crestell Industries Pty Limited (1997) 73 IR 454 at p463-464; Budlong v NCR Australia [2006] NSWIRComm 288 at [86] - [87] and [100]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) 128 IR 37 at [86]; National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [35] and Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [16]). 319The allegations against Ms Sultan were referred to and summarised (as set out in the Background and Chronology above) and it was pointed out that Ms Sultan did not seek to deny that she failed to abide by the requests/directions. Once DEC had established the basis for the misconduct, Ms Sultan had the onus of establishing that the dismissal was unfair for the purposes of s.84 of the Act. 320The relevant evidence relied on by DEC, as set out in the written and oral evidence of the DEC witnesses and the reports of the teachers at the school as contained in the Investigation Report, was referred to and summarised in some detail, and included the background of the various concerns about Ms Sultan as raised by Ms Pasalic in her evidence, the events leading up to, during, and following, the issuing of the letter of 8 November from Ms Pasalic to Ms Sultan, the events of 9 and 10, 11 November and subsequent events in relation to the issuing of the further two letters to Ms Sultan, the investigative processes followed, the outcome of the Investigation Report and the actions of the decision maker Mr Riordan. (That evidence was largely as set out in the Background and Chronology above). 321It was submitted that Ms Sultan's conduct was such that it would make it impracticable for her to be reinstated at the school. Mr Currie's evidence was that he had an expectation that employees at the school will comply with directions when given, especially where that lawful direction enables the Principal to deal with performance concerns of an employee. Ms Kapsimali as School Education Director also expected that an employee will comply with reasonable and lawful directions when given. This was particularly important when that lawful direction related to the performance concerns of an employee. Failure to comply with such directions affected the efficient administration of the school and the education that could be provided to students. 322It was submitted that Ms Sultan's written and oral evidence demonstrated the following: She was aware that Ms Pasalic could give her directions; She was aware that a failure to follow a direction could lead to disciplinary action; She was angry after receiving the first letter from Ms Pasalic; She had no intention of ever meeting with Ms Pasalic; She had no regrets about not attending the meeting with Ms Pasalic; She told Ms Pasalic on 8 November 2011 that she hoped that "God will take revenge for me on you, your family" and 'You wait and see what will happen to you and your family"; She did not inform Ms Pasalic that she would not attend a meeting on 10 November or that she was too ill to attend such a meeting when she returned on 10 November 2011, or seek to postpone the meeting; In October 2010 Ms Pasalic did ask her to review the Year 8 English programme and she told Ms Pasalic she was too busy and did not have time; In the second half of 2011 Ms Pasalic had asked her to make changes to the reports she had prepared on several occasions; She did not complete a TARS programme in 2009 or 2010 but this had not been discussed with Ms Pasalic; For the first time in her correspondence of 9 March 2012 Ms Sultan raised the issue that her refusal to meet with Mr Currie was a refusal to meet at a particular time; She thought it was appropriate to rip up Mr Currie's letter in front of him and that it was appropriate for her to call Mr Currie a failure. 323It was submitted that the Commission was required to consider both the terms of the Act as well as the following relevant provisions of the Teaching Services Act 1980 and the Teaching Services Regulation 2007.

• Section 5A: 1.The protection of children is to be the paramount consideration: a)in taking any action with respect to an officer or temporary employee under this Act, and b)in dealing with any appeal against, or determining any claim arising from or in relation to, that action. 2.This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law.
• Part 4A - s93A. The objects of this Part are as follows: 1)to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, 2)to protect and enhance the integrity and reputation of the Teaching Service, 3)to ensure that the public interest is protected.
• Regulation 5 1)A member of the Teaching Service must immediately comply with any lawful direction given by a person who has authority under the Act or this Regulation to give the direction. 2)A request for the review of a direction may be made by or on behalf of one or more members of the Teaching Service by means of a notice in writing given to the person who gave the direction. 3)The person to whom such a notice is given must immediately send it to the Director-General or to an officer authorised by the Director-General in writing for the purposes of this clause. 4)The making of a request for the review of a direction does not relieve a member of the Teaching Service of his or her obligation to comply with the direction as far as is reasonably practicable. 324It was submitted that pursuant to Regulation 6, Ms Sultan was under an obligation to undertake other duties as maybe assigned by the person in charge of the school e.g. Mr Currie. Such duties would include attendance at a meeting and failure to abide by this direction to attend meetings was a breach of Regulation 5 since it was a breach of a lawful direction given by a person who has authority under the Regulation to give the direction. 325The requirement that Ms Sultan attend meetings were lawful directions (see Harvey v Department of Education and Training of New South Wales [2009] NSWIRComm 1076 at [45]) and were given to her by Mr Currie and Ms Kapismali. In such circumstances Ms Sultan had an obligation to comply with the above instructions pursuant to Regulation 5(a) of the Teaching Service Regulation 2007 (as well as the common law per Harvey). The evidence clearly demonstrated that Ms Sultan had not complied with the instructions as issued. 326S93C (1) (a) and(b) of the Teaching Service Act defined the term "misconduct" to include, but was not limited to, a contravention of any provision of this Act or the regulations, or engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action. 327It was submitted that Ms Sultan's conduct and failure to follow directions was misconduct firstly because it was a breach of Regulation 5(a) and secondly, it was also conduct that justified the taking of disciplinary action as being misconduct at common law. However, even in the absence of Regulation 5, Ms Sultan had an obligation to obey directions which were lawful and reasonable (see R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan (1938) 60 CLR 601 at 621; Australian Telecommunications Commission v Hart (1982) 43 ALR 165 at p170 and 182; Harrison v P & T Tube Mills Proprietary Limited [2009] FCA 220 at [279-280]; McManus v Scott-Charlton (1996) 70 FCR 16 at p21 and Byrnes v Treloar & Ors [1997] NSWSC 629. See also Woolworths Ltd v Brown (2005) 145 IR 285 at p293-297 and McManus v Robin Scott-Charlton [1996] FCA 904. 328It was submitted that there could be little doubt that the instructions issued by Mr Currie and Ms Kapsimali were lawful directions (see Harvey, and R v Darling Island Stevedoring and Lighterage Co. Limited at p621). 329The issue for consideration then became whether such directions were reasonable, with reliance placed on the judgement of Dixon J in R v Darling Island Stevedoring and Lighterage Company Limited at p.622. What constituted 'reasonableness' could also be viewed against what the ordinary objective bystander might consider to be reasonable in all the circumstances (see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v New South Wales Roads and Traffic Authority [2007] NSWIRComm 309 at [34]). A direction to attend a meeting with a supervisor was a reasonable order (see Unilever Australia Ltd v Food Preservers Union of Australia (1992) 45 IR 12 at p14). 330It was submitted that the initial request from Ms Pasalic for Ms Sultan to meet with her to discuss performance issue was a reasonable request and that even if she took issue with the matters in Ms Pasalic's correspondence, the appropriate time for her to raise those issues was in the meeting with Ms Pasalic. When Ms Sultan refused to meet with Ms Pasalic (in the absence of her seeking to request the meeting take place at another time) it was reasonable for the Principal to direct her to attend such a meeting with Ms Pasalic and himself. Upon the failure of Ms Sultan to attend this meeting, without a proper reason, it was reasonable to issue further directions to attend meetings. 331It was submitted that the Director General of DEC may, from time to time, issue guidelines for the purposes of dealing with allegations of misconduct (see s93D of the Teaching Service Act). These guidelines must then comply with s93D(2) and (3). Section 93F of the Teaching Services Act provides in part: 1)If an allegation is made to the Director General that an officer may have engaged in any misconduct, the Director General may do either or both of the following: a)deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, b)take remedial action with respect to the officer. 2)After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Director -General may, if the Director-General is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. 3)Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Director-General is considering taking. 332Disciplinary action was defined in s93B of the Teaching Service Act to include dismissal or a direction to resign. Ms Sultan was initially directed to resign, and when she failed to do so, her employment was terminated by DEC. 333It was submitted that the evidence that had been referred to on behalf of DEC demonstrated that Ms Sultan had engaged in misconduct as alleged. 334The relevant provisions of the Industrial Relations Act were referred to, with the Commission required to determine firstly, whether Ms Sultans' dismissal was "harsh, unreasonable and unjust" pursuant to s.84(1) (see Macleay Valley Health Service v Jeffree (1994) 58 IR 187 at p192) and if so, to determine secondly, whether re-instatement, re-employment or monetary compensation was the appropriate remedy, with preference being given to re-instatement or re-employment (see Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11). 335It was now well established that a dismissal may be harsh, but not unreasonable or unjust; unreasonable but not harsh or unjust; or unjust but not unreasonable or harsh. It followed that one, two or all three adjectives might be able to be applied to a particular termination of employment. Bankstown City Council v Paris (1999) 93 IR 209, emphasized the importance of the Commission making "a positive and specific finding" on each of the words in the expression "harsh, unreasonable and unjust". In reaching its determination the Commission was entitled to take into account those matters set out in s.88 of the Act. 336It was submitted that, on the evidence, DEC satisfied each of the matters set out in s.88. Ms Sultan was given a reason for her dismissal and that reason was based on fact namely her conduct in breaching directions given to her by DEC in a course of conduct that was not one-off but deliberate. 337It was submitted that in considering whether termination was justified there was an imperative on the Commission to ensure the protection of children pursuant to s5A of the Teaching Service Act (see New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32 Sams DP at [172]). The term "protection of children" extended to the protection of children from teachers (see NSW Department of Education and Training v Cassis [2007] NSWIRComm 158 at [88]). 338It was submitted that Ms Sultan's conduct was wilful and constituted a fundamental breach of her obligations in the employment relationship and that DEC had a reasonable basis for terminating her employment on the grounds of misconduct both pursuant to the Teaching Service Act but also at common law. Ms Sultan had no proper reason for her conduct and at no time prior to her dismissal sought to rely on any illness or stress for her failure to attend meetings. At its highest, prior to her dismissal she thought the matters to be without foundation, or she was being set up, and this was her basis for not attending. In oral evidence she said she did not attend since it was part of a big battle between two women. 339The evidence demonstrated that Ms Sultan's conduct was repudiatory in nature. That is, by her deeds she evinced an intention not to be bound by the contract through disregard of its essential terms ( see Laws v London Chronicle (Indicator Newspapers) Ltd (1959) 1 WLR 698 and Adami v Maison De Luxe Ltd (1924) 35 CLR 143 per Gavan Duffy and Starke JJ at 155). The relevant principles applicable in this area of misconduct have been succinctly summarised by the High Court in Concut Pty Ltd v Worrell [2000] HCA 64. 340The evidence demonstrated that Ms Sultan had an opportunity to respond to each of the allegations, and make out a defence, and did in fact respond. She was also provided an opportunity to respond on the question of penalty, as well as being provided with an opportunity to have a meeting with Mr Riordan, which she took up. 341It was submitted that there was no evidence before the Commission that would convince the Commission (assuming the reason for termination was made out DEC) that in all of the circumstances, the dismissal was harsh, unjust or unreasonable. The evidence demonstrated that Ms Sultan: failed to comply with lawful directions; failed to provide any legitimate basis for her failure to act as directed prior to her dismissal; there was no evidence that she was an exemplary employee; and had no special circumstances that warrant any mitigation of the penalty of dismissal. 342In conclusion it was submitted that the Commission should dismiss Ms Sultan's application. 343In response to the submissions made on behalf of Ms Sultan DEC relied upon the submissions above. 344However, in response, it was pointed out that the matter that went to the heart of the employment relationship was Ms Sultan's failure to attend meetings as directed. It would be farcical that an employee could resist attending any meetings with their employer because the matters to be discussed would not justify the termination of their employment. 345Further, the assertion for the alleged failure by Ms Sultan to attend the meetings as directed was contrary to her own evidence for her failure to attend. If lack of more specific detail about the issues raised in Ms Pasalic's letter were a concern to Ms Sultan they could have been raised by her if she had attended the meeting with Ms Pasalic as directed. The submission on her behalf proceeded on the basis that DEC needed to justify that a meeting should have taken place in order for her to be required to attend. No legal authority was relied upon to support such a proposition. 346Ms Sultan's reaction to the request to attend a meeting was not evidence that the request was unreasonable. As to her preparedness to discuss matters with Ms Pasalic, DEC relied upon the evidence referred to concerning Ms Sultan's refusal to meet with Ms Pasalic. 347The submission that Ms Pasalic's letter was prepared outside the parameters of the procedural guidelines and therefore she was ultimately justified in not attending the meeting was rejected on the basis that there was no evidence to support this proposition. The suggestion that Ms Sultan would have subsequently attended a meeting with Ms Pasalic and Mr Currie if it had been postponed was not supported by Ms Sultan's evidence. 348On the issue of the lawfulness of Mr Currie's directions, this was not a matter of evidence and reliance was placed on DEC's earlier submissions. 349In respect of the wording of Mr Currie's 11 November letter, he could continue to be concerned about Ms Sultan's conduct without communicating that concern to her. The matters raised by Ms Pasalic in her correspondence went directly to the "day to day running of the school". Mr Currie and Ms Pasalic were trying to meet with Ms Sultan to discuss matters and she refused to attend such meetings. 350The issue of who handed the letter of 15 November to Ms Sultan was irrelevant. 351The submission that the way in which the matter concerning Ms Sultan was handled was designed to effect the result of her being removed from the school and losing her job was also rejected on the basis that there was no evidence support this submission. 352Mr Britt submitted that in the alternative, and in the event that DEC was unsuccessful in defending Ms Sultan's s84 application, then she would be entitled to a remedy under the Act. 353It was submitted that reinstatement was the primary remedy under s89 of the Act (see Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [105]; Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125]). Other remedies may only be ordered if reinstatement was considered to be impracticable (see Little at [88] and Riley at [94]). That required the Commission to give active consideration to the practicability of reinstatement (see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 as applied in Hollingsworth v Commissioner of Police (1999) 88 IR 282). 354It was submitted that reinstatement was impracticable given the following (with relevant transcript references provided): The severity of Ms Sultan's failure to meet the expected standards; Ms Sultan did not appreciate the gravity of her unsatisfactory conduct; The potential effect of Ms Sultan's conduct on students; The breakdown in the relationship now between Ms Sultan and the key stakeholders at her former school and the strained relationship that she has with the Principal, Mr Currie, and Head Teacher, Ms Pasalic; Ms Sultan's comments in her correspondence and in the messages left for the Principal, Mr Currie, raised issues of her ability to return as a class room teacher; The fact she saw herself in "a battle" with Ms Pasalic (albeit this was inconsistent with the her subsequent evidence) that it was more of "a cold war"; Ms Sultan did not really wish to return to work and actually work, but in order to resign; and Ms Sultan believed that Ms Pasalic had being trying to "set her up" for a long time (albeit this was inconsistent with her earlier oral evidence). 355Further, the Commission could not be satisfied that Ms Sultan was likely to abide by any further directions from DEC Respondent to attend meetings given her conduct. 356It was submitted that once the Commission determined that reinstatement was impracticable then the provisions of s.89(2) of the Act must be considered. 357While s.89(2) authorised the Commission to make an order for re-employment "in another position that the employer has available", the Commission needed to identify "another position" which DEC employer had "available" and about which the Commission had formed the opinion that it was "suitable" (see Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 at [20-21]). There was no evidence of any other positions being "available" for Ms Sultan in accordance with the requirements of s89(2). 358In the submission made on her behalf it was asserted that Ms Sultan could be reinstated as a teacher in another faculty at the school. This was not a matter sought by her, and there was no evidence that such an arrangement was feasible, especially given the failure any evidence to be lead on behalf of Ms Sultan on this issue, or any cross examination of DEC's witnesses on such a proposed arrangement. Ms Sultan had sought to work in another faculty at the school previously but this had been rejected. Ms Sultan's evidence was that she wanted to work under the supervision of Ms Pasalic which would not occur in another faculty. 359Further, Ms Lowson's submissions in respect to Mr Currie would make it impracticable for Ms Sultan to be reinstated at Strathfield South High School in any capacity. 360It was submitted that for the same reasons outlined with respect to reinstatement, re-employment was also not practicable. 361It was submitted that in these circumstances the appropriate remedy was compensation pursuant to s.89(5) and s.89(6). The evidence was that Ms Sultan had not sought to find alternative employment and did not want compensation and had not sought to mitigate her loss so therefore no compensation should be awarded.

Submissions in reply on behalf of the Applicant 362Ms Lowson filed extensive and detailed written submissions in reply which generally rejected the submissions made on behalf of DEC and reiterated or reinforced the submissions made on behalf of Ms Sultan. 363It was submitted that it was incorrect for DEC to submit that Ms Sultan "had no intention of ever obeying a direction to meet with her Head Teacher..." (emphasis added by Ms Lowson). She merely had a reasonable expectation of being properly advised, prior to such a meeting, of the matters that were to be discussed at the meeting. The evidence was also unclear as to whether the proposed meeting was informal or formal in nature, by reference to DEC's policies. DEC failed to recognise that a request to attend a meeting indicated an escalation of matters from informal to more formal, whether or not the meeting was intended to be in accordance with procedures. Further the evidence from Mr Currie demonstrated that EPAC was involved in the letter writing and giving of directions from 8 November onwards, indicating a level of formality of which Ms Sultan was entirely - and unfairly - unaware. 364It was submitted that the submissions of DEC also ignored the fact that there was a whole year between the matters complained of by Ms Pasalic (October 2010) and her raising the matters with Mr Currie (in October 2011). This delay made it unreasonable for Ms Pasalic to rely on these events as supporting a need to write a letter, rather than raising the matters less formally with Ms Sultan. Although Ms Pasalic claimed to be an excellent administrator, who took diary notes of relevant matters, she adduced no evidence of notes taken concerning attempts to address matters informally with Ms Sultan. 365It was submitted that Ms Sultan had made it clear to Ms Pasalic on 8 November that she wanted to be told what the issues were that were to be discussed, but she refused to provide that information, advising that she was "too busy" to discuss it then. There was no suggestion that Ms Pasalic advised Mr Currie of this at the time. There was also no evidence that Mr Currie asked Ms Sultan why she did not attend the 10 November meeting when he met with her on 11 November. 366It was also submitted that the onus was on the person organising the meeting, who was Ms Sultan's supervisor, to postpone the meeting, in light of Ms Sultan's reaction to the letter - not on Ms Sultan. Ms Pasalic did not give evidence that had Ms Sultan requested the meeting be adjourned, such a request would have been agreed to and it was difficult to believe that that this would have been the attitude adopted by Ms Pasalic. 367Ms Sultan also indicated in her 14 December written response that, essentially, due to the emotional condition she found herself in etc., she was poorly equipped to discuss and resolve the problem. Additionally, in cross examination she indicated that she wasn't intending to go to the meeting as she "wasn't fit to go to any meeting I was traumatised". 368Criticism was directed at DEC's representation of Mr Currie's sending of the second letter by an emissary, on the basis that plainly he made no attempt to discuss with Ms Sultan the reasons for her non-attendance, in circumstances where - given her reaction to the first letter - this represented a significant issue for her. 369It was submitted that DEC had effectively conceded that Ms Sultan did give reasons for her non-attendance at the meetings. 370Ms Lowson rejected the reliance placed on Harvey and the other cases cited in DEC's submissions on the basis generally that they could be distinguished by the significant differences in the factual circumstances of each case (with a brief exposition provided as to such) and that in short, none of the authorities cited assisted the Commission to determine the matters relevant to these proceedings. It was submitted that the facts of Harvey (informal meetings held, the meeting being the first step of a performance improvement plan etc) in fact assisted Ms Sultan's case. 371It was also submitted that the authorities cited did not address Ms Sultan's challenge to the lawfulness of the directions given to Ms Sultan, in circumstances where DEC had not put in evidence one document said to be the source of that authority, and where the other document, Clause 5 of the Teaching Service Regulation, plainly did not do what DEC said it did. 372It was submitted that the expansive interpretation of contract of service advanced by DEC arising from reliance on McManus assisted Ms Sultan, as it was in this context that the Commission was invited to consider all of the surrounding circumstances that were ignored by the investigator and decision maker - including, crucially, Ms Sultan's state of health after receiving the first letter. 373It was also submitted that the provision of s.84(1)(b) of the Act were not complied with by DEC as Ms Sultan's submissions of 9 March 2012 were not considered by the decision maker. Further the letters issued to Ms Sultan vaguely warned of the possibility of disciplinary action if she did not attend the meetings but Ms Sultan's unchallenged evidence was that she did not anticipate, and was not warned, that her conduct, based primarily on the unreasonableness of the request and directions, could lead to her dismissal. 374It was submitted that DEC did not dismiss Ms Sultan summarily, and it could not now be suggested that her non-attendance at the meetings amounted to a repudiation of her employment contract. The employer wrongfully ignored Ms Sultan's views as to the unreasonableness of the request and directions, but those views existed. Her non-attendance at the meetings was not wilfully aimed at the employer, it represented her concerns in relation to the way in which the matter was handled. Even if, against this primary submission, the Commission did not uphold Ms Sultan's assessment that the directions were unreasonable, the fact that Ms Sultan held the view militated against her conduct being of the nature that involved repudiation of a contract. 375Ms Lowson rejected DEC's reliance on the comments in her correspondence and messages left for the Principal as a reason for considering reinstatement impractical as this was a matter about which DEC had not sought to adduce evidence. If there were concerns about the Ms Sultan's health, including her psychological health, it had not acted on those concerns to date; had not raised those concerns in the proceedings so as to put her on notice of the need to address such concerns. Further DEC might have an opportunity to act on those concerns if they were genuinely held - when Ms Sultan was returned to employment. 376It was also submitted that Ms Sultan had never disavowed her desire for reinstatement or re-employment and it was not for the Commission to venture into the area of post-reinstatement issues - (see Kirby J in Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 53 at [34]). 377It was also reiterated that at the meeting of 7 March 2012, Ms Sultan indicated that she would abide by a direction to attend a meeting. 378In response to DEC submissions concerning re-employment, and if the Commission found that reinstatement was impracticable and was considering re-employment, then leave was sought leave to adduce further evidence, if required, in relation to alternative positions. This was a step that was most appropriately done only if re-employment was being considered, as this was the relevant time to establish whether or not an appropriate position was available. 379On the issue of compensation, this was sought by Ms Sultan. Whether or not she "wants" compensation, the Commission had jurisdiction to award compensation. It was also incorrect to submit that she had not attempted to mitigate her loss, given her extensive evidence concerning her attempts to obtain further qualifications.

Consideration 380I have very carefully considered all of the relevant evidence (including listening several times to the CD of the 21 voicemail messages Ms Sultan left on Principal Currie's phone), together with the extensive and detailed written submissions of the parties and the cases cited. 381Mr Britt has referred to the relevant authorities which establish that while the onus is on a respondent to establish that misconduct on the part of an dismissed applicant did occur, the onus moves back to an applicant to establish that a dismissal based on the grounds of misconduct, if proven, was either harsh, unjust or unreasonable, or any combination thereof. Clearly if misconduct cannot be established then that would generally render a dismissal on such grounds as harsh, unjust and unreasonable. 382The expression "harsh, unjust or unreasonable", was considered in Byrne & Frew v Australian Airlines (1995) 62 IR 32 with the principle further discussed in Outboard World v Muir (1993) 51 IR 167. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one, or any, or all, of those three. 383As also rightly identified by Mr Britt, Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether a termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 384This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, with the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms wide, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 385Mr Britt essentially indicated in his submissions that this matter concerns fairly basic and straightforward issues, I agree with that assessment, despite attempts to portray the matter otherwise. Ms Sultan was dismissed for refusing to comply with firstly, a written request to attend a meeting with Head Teacher Ms Pasalic, her direct supervisor, and then subsequently, refusing to comply with three written directions to attend a meeting with Ms Pasalic and the Principal, Mr Currie. The meetings were all scheduled in an endeavour to discuss four broad issues of concern to Ms Pasalic about Ms Sultan's work. 386It was contended on the part of DEC, but rejected by Ms Sultan, that the request and directions issued were both reasonable and lawful. It was further contended by DEC that Ms Sultan was under both a statutory and common law obligation to follow such reasonable and lawful request/directions. 387At the outset I should indicate that having carefully considered all the relevant evidence and the cases cited, I have to say I concur completely with the submissions made on behalf of DEC. 388In April 2010, after Ms Pasalic returned from a period of maternity leave (during which leave Ms Sultan had been transferred to the school in 2009), she evidently developed concerns, as her supervisor, about aspects of Ms Sultan's work performance. She maintained that she had made informal attempts to address those issues directly with Ms Sultan but to no avail, or with no satisfactory outcome. 389Having had the opportunity of observing Ms Sultan in the witness box and reading the various documents she has written, I can readily accept and understand that broaching any issue with her, and with which she held a contrary view, would not necessarily be an easy task. Ms Sultan presented as a highly emotional, somewhat idiosyncratic and difficult person of very decided views and strongly held opinions. 390After Ms Pasalic had spoken to the newly appointed Principal, Mr Currie, about her difficulties with approaching Ms Sultan, she followed his suggestion of writing a formal letter on 8 November 2011 requesting a meeting with her to discuss those concerns under four broad headings. I consider that it was a very civil, polite and entirely appropriate letter. 391The letter made no allegations whatsoever about Ms Sultan's teaching (contrary to the view held by Ms Sultan). The letter simply raised four areas of concern that were to form the basis of discussion at the proposed meeting. 392I also consider that the broad headings outlined therein were sufficient to advise Ms Sultan of the purpose and subject matter of the meeting. 393However, having said that, Ms Sultan would have been perfectly entitled to have conveyed back to Ms Pasalic in an equally civil, polite and appropriate manner (for example by way of a letter in response) that she needed to be provided with more precise detail, in writing, in relation to those four broad areas in order to properly prepare for the meeting. Similarly, if Ms Sultan thought she needed more time to prepare for the meeting and sought a later date, then that too would have been an appropriate and reasonable request to make. Further, if the meeting was being held at a time that clashed with her regular appointment at RPA's Hand Clinic then a request that the meeting be re-scheduled to a more convenient time could also have been raised in an appropriate manner. Any refusal or rejection by Ms Pasalic of any of the above requests (provided they were made in an appropriate way) without proper explanation, would not have been reasonable, and Ms Sultan would then have been entitled to pursue the issue with the Principal (or possibly at first instance the Deputy Principal). 394However, Ms Sultan raised none of these issues at any time, either in response to the request, or the subsequent directions issued, prior to her raising issues for the first time in her December written response to the formal allegations. In her written response she indicated that "I had no intention to meet with her" going on to expand on the following reasons; she had been "ignored, dishonoured and her dignity humiliated"; disputed the issues raised by Ms Pasalic; was not given an explanation of the issues when she approached Ms Pasalic; her hospitalisation; she was on medication when she returned; she was not welcomed back, and her emotional state. 395I should also note that whilst there was cross examination of Ms Pasalic on the issue of her knowledge of Ms Sultan's medical appointment commitment on Thursday afternoons, which seemed designed to portray Ms Pasalic as an uncaring and inflexible supervisor, there was no actual evidence from Ms Sultan to indicate that she did in fact have an appointment that particular Thursday, and no evidence that she did in fact leave the school on Thursday 10 November in order to keep such an appointment. She certainly attended the school that day and did not attend the meeting with Ms Pasalic and that is as far as the evidence went. 396Ms Sultan's reaction to the entirely reasonable, but albeit unexpected letter from Ms Pasalic, was however entirely unreasonable, irrational, immature and totally unprofessional. 397Ms Sultan went to certain staff rooms, interrupting conversations, and read the letter (which Ms Janzen observed was 'confidential') out loud. The Incident Report and Statement, respectively, of teachers Ms Janzen and Mrs Lodge both indicated, variously, that Ms Sultan was reading the letter in "a raised and agitated voice", was "increasingly agitated", had already read the letter in the English staff room, to another Head Teacher, and intended to read the letter to all staff and students. 398It was Ms Janzen who wisely and sensibly suggested to Ms Sultan that the best way to respond to the letter was to go to the meeting with the suggested documentation that was being asked for (Ms Janzen seemed to understand what was to be discussed from the content of the letter), and even offered to be her support person. 399It should be indicated at this stage that the reference in the letter to a support person and also EAP is also considered to be entirely appropriate and certainly very much a standard inclusion in countless such letters that I have seen issued to employees across the public sector where an employer has sought to raise an issue of concern or seek clarification/explanation about a particular incident (it is not a practice just restricted to letters issued in the context of a disciplinary process). Such letters are also usually couched in general, rather than very specific and detailed terms (e.g to discuss absenteeism/lateness over a given period etc). It is always essential for an employee to be given the opportunity of having a support person present. That is not just for the purpose of providing emotional support, or a friendly presence, but to also provide a witness to proceedings who can verify later what was said, if necessary, and that such a meeting was conducted fairly etc. A wise employer will also have a witness present for abundant caution. 400Certainly if general issues raised and discussed in such a meeting lead to a more formal consideration, then a detailed specification of issues (dates/times etc) is required and would be contained, for example, in letters setting out allegations against an employee (as was the case in the subsequent allegation letter to Ms Sultan of 6 December 2011). 401Ms Janzen also reported that Ms Sultan "agreed that she was angry about receiving the letter, but calm and not worried about the meeting, however she felt it was important that all staff and students know about the contents of the letter and her immediate task was to inform all". Mrs Lodge also indicated that she "stated emphatically that she was not in the least upset by the letter rather she was angry". 402Rather than following the sensible advice of Ms Janzen, Ms Sultan left the staffroom and engaged in a "raised and aggressive verbal attack" on Deputy Principal Mr Malatros alleging that he also had some involvement in the letter and was responsible for it (again taken from Ms Janzen's Incident Report). 403Ms Sultan then sought out Ms Pasalic and proceeded to loudly and angrily challenge her for issuing the letter. Ms Sultan was not only angry and becoming increasingly emotional, but clearly highly affronted at being given the letter in the first place when she evidently considered there was no justification for such a letter. 404The accounts of what was said and what transpired between the two women was contested by each as against the other. What is certain is that more was clearly said than Ms Sultan indicated in her written evidence, but possibly (and I only say possibly) less than Ms Pasalic indicated in hers. I do doubt that it was during that encounter that Ms Sultan raised the issue in full about what had occurred with Mr Bob Dunn at a previous school, which may have been during an earlier conversation between the two, but may well have again been referred to in some way during this exchange. That it would possibly have been in her mind, and thus some mention made to Ms Pasalic, would be in accord with her reference in the ninth phone message she left for Mr Currie later that night (at 7.27 pm) where she indicated "these letters will be in the bin as I did before for a code of conduct in the rubbish bin and I won it and never, the principal received anything". 405I accept that Ms Sultan sought information about what Ms Pasalic meant by the four bullet points she had listed, but in a very general way and that may not have been in the words expressed by her in her statement. What is beyond doubt however is that Ms Sultan (even on her own admission) said "evil, evil, evil". I accept Ms Pasalic's evidence that what was said was, "you are an evil person, evil, evil evil person". I also accept (again as largely acknowledged by her) that Ms Sultan also said "I hope God will take revenge on you and your family, " and, "you wait and see what will happen to you and your family," and further, "I'll continue to pray for my and God's revenge on you and your family". 406These were quite outrageous and dreadful things to say and could not be justified in any way. Whilst Ms Sultan expressed contrition during the hearing, it is no wonder that at the time of these things being said Ms Pasalic was concerned for her own safety (and no doubt that of her family), and also no wonder that when Ms Sultan returned to the school on Friday 10 November Ms Pasalic did not seek her out in any way to welcome her back as Ms Sultan expected her to do and was upset/offended that this did not happen (as expressed in her 14 December written response). What should have occurred is that Ms Sultan should have sought Ms Pasalic out at some stage or written a note offered an apology to her for those unwarranted and uncalled for threats, for threats were just what they were in my view. 407What is also beyond doubt is that Ms Sultan was shouting and screaming, and that is consistent with other accounts of Ms Sultan's behaviour that morning (Ms Janzen and Ms Dixon-Hughes) 408I also accept that Ms Pasalic was engaged on an important task (the next year's timetabling) that I am aware from other matters that have come before me over the years does take considerable time and effort on the part of those teachers involved at that time of the year. 409I also consider that in the light of Ms Sultan's demeanour and the way, and manner, in which she was communicating with (or rather at) Ms Pasalic that it would have also been quite impracticable at that time to attempt respond to Ms Sultan in any calm and detailed way, and also just not the appropriate time and manner in which to go into any concerns Ms Sultan had about the letter. Frankly I consider all that would have ensued would have been an even more fraught and emotional confrontation that would have been in no-one's interests, particularly that of Ms Sultan. 410Ms Sultan then went out into the corridor and continued to read the contents of the letter in a loud voice to passing students, and on Ms Janzen's account (who had followed her in an attempt to calm her down and tell her that what she was doing was not appropriate), the "students were both amused and bewildered". This did not reflect well on Ms Sultan's image as a professional teacher. 411Ms Sultan then seems to have become "hysterical and 'rant' " according to Ms Janzen, and essentially worked herself up into an emotional collapse into Ms Janzen's arms. Ms Janzen, Mrs Lodge and Ms Dixon-Hughes refer to subsequent "writhing" and "thrashing around" and the necessity of holding onto Ms Sultan's legs, and efforts to calm her down. Ms Janzen indicated that at no time did she lose consciousness. 412The only reason this detail is referred to is that it is quite apparent to me that Ms Sultan's state was self-inflicted and in no way can either Ms Pasalic or Mr Currie be held responsible, as suggested in Ms Sultan's subsequent phone messages. 413I also note she self-discharged from RPA, attended her scheduled eye appointment the next day, did report for duty on Friday 10 November and every subsequent school day until her removal on 29 November 2011, and at no stage presented any medical certificate to indicate any condition such as stress/depression or emotional upset that would have resulted in any consideration of an inability to attend a meeting with either Ms Pasalic or Ms Pasalic and Mr Currie. Whilst Ms Sultan referred to being affected by medication on her return on Thursday 10 November (in her 14 December letter to Ms Thorpe) this was apparently the medication she had been on for some time arising from her fractured arm and hand problems, and not as a result of any additional medication arising from her hospitalisation on Tuesday 8 November. There was no evidence of taking any additional amounts of such medication as a result of her hospitalisation. 414Ms Sultan also mentions in her subsequent written responses her shock, emotional distress and inability to be able to meet with Ms Sultan or engage in any subsequent meetings and her rejection of the basis for the meeting and the concerns raised by Ms Pasalic. None of these reasons were raised in period after she received the letter of 8 November. 415I do not consider that it is necessary to delve into the actual merit or otherwise of the four concerns listed in the 8 November letter. Such evidence as there was from Ms Pasalic and Ms Sultan was quite diametrically opposed, with Ms Sultan either denying much, if not all, of what was claimed by Ms Pasalic (and vice versa), or indicating the justification/reason for certain events/actions which would serve to obviate that issue having any credible basis. 416I have no doubt that there were issues raised by Ms Pasalic that could well have been appropriately explained/justified by Ms Sultan and which would have been possible of clarification/explanation, or resulted in appropriate support being given in the future to address such issues. Similarly, I have no doubt that Ms Pasalic was more that justified in raising some of those issues (and had attempted to do so in a "collegial way") and whether or not they dated back twelve months was irrelevant in my view. They were issues which could generally come up each academic year on an ongoing basis (such as the "rate at which work is completed"). 417I also note from Mr Currie's oral evidence (elicited in cross examination) that Ms Sultan had actually approached him after school hours (and prior to 8 November) and in a lengthy meeting (the only issue challenged with him being the length of the meeting) raised with him concerns about difficulties with management of a Year 8 class. This would also seem to tie in with the last bullet point raised in Ms Pasalic's letter of " Classroom management". 418The fundamental issue is that Ms Pasalic, as Ms Sultan's supervisor, had every right to raise issues of concern with Ms Sultan in an appropriate way (which she did) and seek to have a meeting to discuss and resolve those issues. 419As Mr Britt rightly pointed out it was not, and is not, necessary for an employer to provide justification for the necessity to issue such a letter requesting a meeting with an employee at any time and on any issue of concern related to the work of an employee, before such a meeting can go ahead. What is necessary is for an employer to give appropriate notice, advise generally what the meeting is about, allow a support person, conduct the meeting in a fair manner allowing the employee full opportunity to respond etc., and keep proper notes/record of the meeting and any outcome achieved should be reduced to writing for both sides. These would be the basic requirements. 420I also have no doubt whatsoever that Ms Pasalic had endeavoured to raise those concerns over the previous twelve months in a "collegial" way but to no avail and with no result or with argument on the part of Ms Sultan. I also have no doubt, having observed her demeanour and responses in the witness box and her written documentation, that she would have been an extremely difficult person to deal with, and broach any subject/issue not welcomed or accepted by her. 421It is also relevant to observe at this point that the single most disputed issue between employers and employees that I have encountered in unfair dismissals over the years has been that employees will consistently maintain, and often be genuinely of the belief, that they have never been spoken to on an informal basis by a supervisor/employer or had an employer's concerns expressed to them in some way. In contrast, an employer will maintain that the employee has been spoken to on numerous occasions prior to the issue(s) having to be raised in a more formal way. How a matter is raised is critical and there should be sufficient formality or indication from an employer that this is a matter of concern that needs to be addressed. 422After Ms Sultan was conveyed to hospital on Tuesday 8 November Mr Currie did contact RPA to enquire about her condition but understandably, as he was not a relative, he was not given any information. I do not consider that it would have been appropriate to directly contact her by mobile phone nor to pick her up from hospital (as she seemed to have thought he should have done and was critical of him for this failure). Mr Currie did not know Ms Sultan very well, had not been at the school for long, and given her emotional state earlier that day this may not have been appropriate. In any event he was hardly in a position to know that she would self-discharge later that day. 423That brings me to consideration of the 21 voice messages left by Ms Sultan on Mr Currie's phone on the evening of 8 November after she self-discharged from RPA. 424I have listened to those messages several times, apart from reading the typed version, and they are relevant as, in my view, they would clearly have impacted on, and affected the course of action subsequently followed by Mr Currie and those from DEC giving advice to Mr Currie. 425I have to say that on any consideration they were quite extraordinary messages, the like of which I have never encountered. I appreciate the context in which they were made but nevertheless I can only imagine the impact they would have had on Mr Currie when he listened to them. 426I accept that Ms Sultan has since expressed remorse and shame for the messages and their content and indicated she has not been able to read more than the first few. Indeed when Ms Lowson sought to have them played at the commencement of the hearing Ms Sultan could be observed in some distress with her hands over her ears and bent forward and the tape was discontinued, due to her distress, after only the first 3 or 4 messages were played. 427However, while Ms Sultan has not been able to bring herself to hear/read them (which is understandable), Mr Currie and those at DEC were not so fortunate. 428While Ms Sultan sounds tearful towards the end of the first 2 messages, she subsequently moves through anger, derision and scorn and defiance as she derides, lectures and harangues Mr Currie for being a failure, lacking leadership, having no vision, having a lot to learn, should return to being a teacher, being uncaring, merely following bureaucratic processes, being an oppressor, a terrorist, not stopping the aggression, being in league with Ms Pasalic and behind the letter, and generally declaiming against him, Ms Pasalic and the Department (as a bureaucratic, uncaring institution) generally. She was quite calm and collected and generally coherent (apart from the frequent repetition of "Daryl Curry" that was almost a chant in numerous messages). She also indicated on two occasions an intention to come to the School to inform the staff and students about Mr Currie's management and failure. She also said she would never attend a meeting with Ms Pasalic and expressed in very strong terms that Mr Currie was not welcome in her classes and she did not want to have anything to do with him. There were some mild threats expressed against the school. She also indicated she wanted to be a "martyr" and was on a mission to teach and was a "disciple". There were also various religious references (as there were in her subsequent letters to DEC). 429While there were some initial references to self harm I consider that overall, once all messages were listened to, it is clear there was no such intention on the part of Ms Sultan, and generally the messages were venting anger, scorn and condemnation. 430I accept that in addition to subsequently expressing remorse and shame for those messages Ms Sultan also apologised to Mr Currie in the meeting with Ms Kapsimali on 29 November when she was given Mr Urry's letter instructing her to report for non-teaching duties at the Riverwood office. 431Having heard those messages I consider that it was entirely appropriate for Mr Currie to seek advice from both DEC Safety and Security, and the other DEC sections he referred to in his evidence, and on advice received report the matter to Auburn Police. In the circumstances of the negative views expressed about him by Ms Sultan it would have been even more inappropriate for him to seek to make any direct contact with her on 9 November. The matter had been reported to the Police and they evidently, in turn, contacted the Concord Hospital Mental Health Unit, although here was no evidence as to any follow up by either body. 432The only other course of action may have been considered by DEC may have been to direct that Ms Pasalic attend some sort of medical assessment as to her fitness on a psychological/psychiatric basis. There was no evidence about that issue. 433In any event, Mr Currie then sought to issue a direction to Ms Sultan to attend a meeting with himself and Ms Pasalic once he had been advised that she had not attended the meeting, and in the light of her avowing on the phone not to attend such a meeting. 434I consider that the issues raised by Ms Pasalic still needed to be addressed, and swiftly, in the light of Ms Sultan's announced intention that she would not attend the meeting and also her threat to come to the school and declaim against Mr Currie's management, particularly evidently as it concerned herself and the circumstances of the letter and her hospitalisation. Any such meeting would have given Ms Sultan the appropriate opportunity in the presence of Mr Currie to raise her concerns about not only the detail, but the substance, of the four concerns. 435I also do not consider that it would have been at all appropriate for Mr Currie to have approached Ms Sultan directly when the issues of concern were originally raised with him by Ms Pasalic as that would have been an undermining of Ms Pasalic's authority. I would also have thought that it would be an unusual step for a Principal to take anyway, particularly a Principal who had only been at the school for some 3 to 4 weeks (at that stage). If he had been at the school longer and knew Ms Sultan well, then that might have been a different matter and might have been viewed as interceding on Ms Pasalic's behalf as an intermediary to facilitate some sort of engagement between the two, but I still consider a formal meeting would have resulted. 436Clause 5(1) of the Teaching Service Regulation makes it plain that "a member of the Teaching Service must comply with a direction given by a person who has authority under this Act or the Regulation to give the authority." There is provision for a written request to be made for a review of such a direction per 5(2), but such request "does not relieve a member of the Teaching Service of his or her obligation to comply with the direction as far as is reasonably practicable". 437I consider that Mr Currie as Principal of Strathfield South High School undoubtedly had the authority to issue a direction to Ms Sultan as a teacher on his staff to attend a meeting with himself and her Head Teacher. Frankly to suggest otherwise, or that Mr Currie had to first establish such authority to Ms Sultan, and that DEC had to prove his authority in some way to this Commission, is in my considered opinion frankly ludicrous. Schools simply could not function if that was the case. 438One may as well suggest that any employer's supervisor/manager first has to prove they have the authority to issue a direction to one of their employees before they can to so, on anything ranging from a simple and basic direction concerning the carrying out of a task in conformity with a job description, to attending a meeting to discuss work performance. That is also patently ludicrous. 439In any event the reference in Clause 5(1) clearly indicates that there is a relevant provision giving such authority under either the Teaching Service Act 1980 or the Teaching Service Regulation 2007. I do not consider that provision needs to be spelt out each time such authority needs to be exercised. 440Alternatively, if such were really necessary then surely Authority Cards similar to the Right of Entry Permit issued to union officials pursuant to s.299 of the Industrial Relations Act would, of necessity, have become a feature of public sector workplaces (an indeed private sector workplaces). 441In Harvey, reliance was not only placed on Clause 5 (1) of the Regulation but also on the common law obligation of a teacher to follow reasonable and lawful directions. As Connor C observed [at 45]: Any employment contract involves mutual obligations by both employers and employees. School teachers are no exception to that requirement. It is the obligation of the employee to conform with all reasonable directions given by the employer, or its delegate. In that respect, Mr Britt referred in his written submissions to Reg 5(1) of the 2007 Teaching Service Regulation, viz": (with the Regulation then quoted). 442I consider that Ms Sultan had an obligation as a DEC employee, and a teacher under the authority of Mr Currie, the Principal of South Strathfield High School to follow the lawful and reasonable directions of her employer and that included attending a meeting as directed. As Ritchie C also observed in Salat v NSW Police Force [2011] NSWIRComm 1040: It is settled law that an employee has a general obligation to follow the lawful and reasonable directions of their employer and a failure to do so may justify summary dismissal (see Adami v Maison de Luxe Ltd (1924)35 CLR 143 and Byrnes v Treloar & Ors.[1997] NSW SC629. In Varas v Fairfield City Council [2008] FMCA 996, the Federal Magistrate's Court also observed : 103. Similar issues arose in Thompson v IGT (Australia) Pty Limited [2008] FCA 994. The applicant in that case objected to seeing a psychiatrist when called upon to do so by his employer. At[38] Goldberg J noted that the applicant was not a doctor and whether it was appropriate or necessary for the applicant to have a psychiatric assessment or to have a meeting with a psychiatrist was a matter ultimately for the doctors to determine. Having regard to the applicant's history in that matter, Goldberg J did not consider the employer's request to be unreasonable. At [48]-[52] his Honour said: The following principles are well established. An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer. In McManus v Scott-Charlton 919960 70FCR16, Finn J said at 21: The accepted view in this Court is that the common law obligation of an employee is to obey the lawful and reasonable commands or directions of the employer: see Australian Telecommunications Commission v Hart (1982) 65ALR 41; Bayley Osborne (1984)4 FCR141. 443I accept that the two letters Mr Currie issued to Ms Sultan and the letter issued by Ms Kapsimali only referred to Clause 5 of the Regulation and did not set it out in full, however it is a moot point that the failure to do so somehow prejudiced Ms Sultan given firstly, that she did not open any of those three letters, and secondly, at no stage during either the period encompassing the issuing of the three letters, or during the investigative/disciplinary process has Ms Sultan raised that there was no authority to issue such directions, and as such they were not lawful. 444I accept that in her subsequent written responses to DEC she raises generally issues of what could be considered reasonableness as to the basis of credibility of the four concerns raised, and also her emotional state arising as a consequence of the letter. 445I also note that had she been prepared to open the third letter of direction from Ms Kapsimali then she would have found attached the relevant extract of both the Regulation and the Code of Conduct. I accept Ms Kapsimali's evidence that having referred in her letter to those extracts being attached, then they would have been so attached. That cannot be disproved as Ms Sultan did not open the letter at all, nor was the original in evidence. 446When Mr Currie attempted to give Ms Sultan the envelope containing the letter of direction on Friday 11 November she did not just refuse to accept it, but took the extreme action of tearing it in half. She also clearly told him that she did not accept his authority (not that he did not have the authority mind), would not attend any such meeting (even if various religious figures that she named were to come down to attend) and generally acted in a quite defiant and aggressive way and repeatedly called him a failure. Mr Currie made detailed contemporaneous notes which formed the basis of his email to Ms Sarantos at DEC. I accept his evidence as to what was said, and what occurred, during this interaction. I also note encountering Ms Sultan at the time did not appear to be planned as he saw her in the foyer and called her into his office. There was no evidence about how he had intended to convey the letter to her that day. 447While Ms Sultan does not deny tearing the envelope in half, there are other aspects of the interaction that she denies. However given that it is apparent that she views events at that time through a very subjective emotional prism, the evidence of Mr Currie (as other DEC witnesses) is accepted as a more objective and factual account of events. I accept however that Ms Pasalic did not necessarily (but somewhat understandably) display quite the same degree of objectivity in her evidence. 448I consider that it was entirely appropriate, and indeed very prudent, for Mr Currie to arrange for Deputy Principal Mansfield to hand Ms Sultan his second letter of direction, given not only Ms Sultan's reaction to being given his first letter, but also the extremely negative views she expressed about him in her phone messages, including that she didn't want him to approach her. 449However while she did take the letter, she did not open it, instead throwing it on the cupboard where it apparently fell behind the cupboard. In any event she did not comply with the direction to attend the further scheduled meeting with Mr Currie and Ms Pasalic on 17 November. 450This lead to Ms Kapsimali's third letter of direction to attend a meeting on 24 November and again Ms Sultan refused to open the letter (but did so "regretfully"), and again refused to attend the meeting, this despite Ms Kapsimali spending some time in discussion with her in her class room having personally delivered the letter. 451I accept that Ms Kapsimali had authority to issue the letter on the same basis as set out above in relation to the Principal Mr Currie. 452It should be noted that at no stage did Ms Sultan ever put forward any explanation for her refusal to attend these meetings, or seek to have them postponed on the basis of needing more time to prepare, or because she wanted more information, indeed she did not know precisely what was in the letters of direction (apart from them generally being letters directing her attendance at meetings with Mr Currie and Ms Pasalic), as she never opened them so she could hardly complain about this. Nor did she raise any inability to attend due to any shock or emotional distress, or any medical condition, or proffer any other basis, (or indeed any basis at all), for her refusal to comply with the directions issued. At the same time she was able to attend for duty on each day and there was no evidence of there being any inability or difficulty about the carrying out of her teaching duties being reported to anyone at the school. 453Indeed I note that on more that one occasion (her phone messages, her 14 December letter of response) she had indicated that she had no intention of attending such a meeting. I reject the submissions of Ms Lowson that she did not mean this to be not "ever" attending such a meeting. 454I acknowledge that in the interview with Ms Thorpe and Mr Riordan where the disciplinary options were canvassed including that if she was not directed to resign but returned to the school she would still have to attend a meeting to discuss the original issues raised with her. She did seem to accept this, although she expressed the view that staying at the school was a bigger punishment and would like to pay a fine. It was made clear there was no job for her at Bankstown (where she evidently now was rather than at the Riverwood office). However nothing definite was indicated to her as to this being the course that would be followed and it was made clear that Mr Riordan still had to make his final decision. Indeed it was only couched initially as a query from Ms Thorpe about the fact that if she was "retained" she would still have to attend a meeting. A lengthy exchange then took place with lengthy responses by Ms Sultan where she indicated that this "troubled" her. It was Mr Riordan's evidence that this possibility had not been raised with him by Ms Thorpe prior to the meeting. 455In relation to the consequences that flowed from her refusal to comply with the directions to attend the meetings, I consider that in the face of her open and deliberate defiance and flouting of the authority of Mr Currie and Ms Kapsimali and in the absence of any explanation whatsoever, that DEC were left with no option but to remove Ms Sultan from the school and commence an appropriate investigation into the allegations issued to her in the 6 December letter from Ms Liway at EPAC. 456DEC as an employer could not just stand back and do nothing in the face of such conduct, that would have had broader implications for the negative and adverse example it would set for other staff as well as the adverse and negative example it would set for students at the School. 457I agree entirely with the observations of Ms Thorpe in her letter to Ms Sultan of 29 February 2012 : ......As a member of the Teaching Service, you simply cannot refuse to attend meetings with executive staff to discuss completion of tasks and your performance as a teacher. It is an unworkable situation. 458I agree that while the first allegation, as referred to by both Ms Liway (6 December) and Ms Thorpe (29 February), clearly indicated a "request" and the following three allegations a "direction," that Mr Riordan in his letter of 8 March referred to four directions to attend meetings and this was not correct in relation to the first allegation. This mistake was acknowledged by him in oral evidence. I do not consider this mistake such a flaw as to vitiate the process or the penalty imposed however. 459Having carefully considered all of the evidence, including the documentation contained in Investigation Report, I consider that all four allegations (as originally set out) have been sustained. Ms Sultan refused to comply with three reasonable and lawful directions and this constituted misconduct on any consideration. 460I have carefully considered the relevant cases cited by Ms Lowson and Mr Britt in their respective written submissions and I accept the distinguishing facts that can be discerned in those cases relied on by Mr Britt in relation to misconduct. However there can be no doubt in my view that a deliberate refusal to follow a reasonable and lawful direction of an employer to attend a meeting to discuss work concerns (and not once but three times) constituted misconduct on the part of Ms Sultan. Therefore DEC has discharged the requisite onus on it, as per the relevant cases cited. 461I further consider that the misconduct was so serious and did strike at a such a basic and fundamental element of the contract of employment that the penalty imposed by the decision maker, Mr Riordan of a direction to resign, was in all the circumstances entirely reasonable and appropriate. Ms Sultan's failure to comply with that direction resulted, as foreshadowed in Mr Riordan's 8 March letter, in her subsequent dismissal. 462Ms Sultan might rail against bureaucratic processes as essentially assuming primacy over caring/educating children but the harsh reality is that all workplaces have rules and regulations (as does the society in which we live) and without that bureaucracy an organisation as large and complex as the Department of Education and Communities (or any government or community organisation) simply could not function and could not then deliver the services and carry out the purpose for which it existed. Fundamental to that process would be compliance by employees with reasonable and lawful directions of those in authority. 463I also note that DEC were not wholly insensitive to Ms Sultan's position (although in the absence of any explanation initially that was understandable) given that Ms Kapsimali went to the school to give her the third letter of direction as referred to above; was again personally involved on 29 November when ms Sultan was advised of her removal from non-teaching duties, and finally was requested to convey the letter of dismissal to her and ensure she received "careful support and advice during this time". It is clear that at all times Ms Sultan was treated with respect and dignity. This is only to be expected of an employer and only referred to because of Ms Sultan's belief expressed on occasions that the employer and various persons (Mr Currie, etc) generally were uncaring and did not treat her respectfully. 464I find that in all the circumstances given the gravity of the misconduct committed and the deliberate and intentional actions of Ms Sultan in committing that misconduct, and in the absence of any reasonable explanation being given to her employer, the dismissal of Ms Sultan was not unreasonable. 465A dismissal can be both substantively and procedurally unfair, with the case usually quoted in this regard being the High Court Judgment in Byrne. In relation to procedural fairness that decision has also been relied on in numerous decisions of this Commission, and in this matter reference has also been made in particular to Wang v Crestell and Antonakopoulos. 466However just because misconduct is found, that does not mean that there cannot also be such procedural unfairness so as to warrant the intervention of the Commission on the basis that that the decision was unjust (and therefore also probably harsh and unreasonable). 467Having said that, even where there are held to be procedural flaws and/or defects in a process, that does not necessarily mean that it is fatal to the eventual outcome. There have been numerous cases dealing with procedural fairness issues in formal arbitral proceedings. The decision in D & R Flood Commercial Pty Ltd and Flood [2002] NSWIRComm 88 traversed the various authorities in that context (and in particular where there had been reference/reliance by the decision maker below on a matter raised/referred to in conciliation) and the Full Bench indicated at para 53 as follows: A convenient statement of the appropriate general approach is that set out in the judgment of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141, where the Court, having referred to the "general principle ... well expressed by the English Court of Appeal" in Jones v National Coal Board [1957] 2 QB 55 at 67 that "everyone ... is entitled [to] a fair trial at which he can put his case properly", observed at 145 - 146: That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. .................. 468I consider that the general principles enunciated above are equally applicable to a disciplinary process. The crucial question to be asked is whether the alleged flaw/defect in procedural fairness would have affected the outcome. 469Ms Lowson has raised a number of procedural flaws which are asserted to have attended the disciplinary process and hence establish that the dismissal was unfair. 470Certain of those issues have already been addressed. As indicated above I do not consider it necessary that the four concerns raised in the 8 November letter required greater particularisation, nor did Ms Pasalic need to justify the basis for issuing the letter and requesting that Ms Sultan attend a meeting with her to discuss those concerns. 471Similarly, I consider it is of no consequence that there has not been specific clarification about whether the letter and the meeting were being conducted in accordance with the performance and conduct guidelines. I consider that there was sufficient clarity about the letter concerning the issues to be discussed and at that stage it was clearly not part of the formal Teacher Improvement Program. Although it seems reasonably obvious to me that that may well have been an option pursued in the future, depending on the outcome of any meeting with Ms Pasalic or Ms Pasalic and Mr Currie. 472I do not consider that it was either necessary or indeed appropriate for either Mr Currie or Ms Kapsimali to indicate that disciplinary action might also contemplate dismissal. That was not their role, or decision to make. In any event it was far too early to make such an assumption, and would have been rightly regarded as an excessive overreaction. That was the same position at the time of the allegation letter of 6 December. However once findings had been made, then it was entirely appropriate for Ms Thorpe to advise Ms Sultan of both the range of disciplinary options available, and the penalty which she was recommending to the decision maker, Mr Riordan. 473I again reiterate that in any event even if failure to specify the ultimate form that the disciplinary action could take was a procedural flaw, Ms Sultan chose not open any of the three letters of direction and read their contents. 474That same consideration applies to any suggestion that there was a failure to specifically inform Ms Sultan of the relevant wording of either the Code of Conduct or Regulation extracts referred to in the three letters. Again, as referred to above, if Ms Sultan had opened Ms Kapsimali's letter she would have found those extracts attached to the letter. 475There was also specific mention of the failure to advise Ms Sultan of her ability to have the direction reviewed per Clause 5(2). However under Clause 5(4) there still remained the obligation to comply with the direction. Again, in any event this is a moot point as Ms Sultan never opened the letters and read them and never challenged their contents (apart from the general rejection of the original four concerns and the basis for having a meeting). 476I also consider that no significant procedural issue is raised by a failure on the part of Ms Thorpe to spell out that the consequences of a failure to comply with a direction to resign would mean that dismissal would follow. I would not have thought that necessary to spell out. It would surely follow that if an employee was directed to resign and failed to do so then the employer would not just sit back and say effectively "okay, they have refused we'll accept that". Of course the next step would be dismissal. That is an ingenuous argument. The consequences of a failure to resign as directed were also made clear to Ms Sultan in the interview of 7 March. 477Contrary to Ms Lowson's submissions I do not consider that Mr Riordan was uncertain as to whether he could come to a different finding as to misconduct than Ms Thorpe, that does not appear to have been an issue that exercised his mind at the time of making his decision and I do not consider that whatever seeds of uncertainty were sown in his mind during cross examination are of sufficient concern to raise an issue of procedural fairness. 478I do not consider that failure to interview Ms Sultan during the investigative process raises any procedural issue either. No-one was interviewed, the investigation was conducted on the available documentation, including Ms Sultans' extensive and detailed 14 December written submission. Further, given that she made clear admissions of having no intention of attending the meeting (either with Ms Pasalic or with Mr Currie and Ms Pasalic) I cannot see that she was disadvantaged by not being interviewed. She gave her reasons for her stance in that written submission in a very fulsome and detailed way and ultimately they were found to be unreasonable and unacceptable. In any event she did have the opportunity of having a meeting with the decision maker prior to the making of the decision to dismiss consequent upon her failure to resign as directed. 479The only issue that has given me pause for thought has been that the final written submission of 9 March 2012 made by Ms Sultan, in which she sought an alternate penalty, sought a return to the school and acknowledged that she would have to attend a meeting was not taken into consideration by the decision maker. 480Ms Sultan's letter was handwritten (as was her previous written response of 14 December 2011) and evidently commenced on 9 March 2012, more was written on 13 March, including a detailed critique of the various reports of the staff members at the school concerning the 8 November incident (and in particular that of Ms Pasalic with numerous negative/repudiatory comments and underlinings). Ms Sultan also rejected the "allegations" about her teaching/work she maintained constituted the 8 November letter. She also responded in some detail to the additional issues Ms Thorpe had referred to (in 2000 and 2009) as generally being "lies" etc. However at the very end of the letter there is reference to the letter being "due tomorrow" (presumably a reference to the 14 days within which she was to respond to Mr Riordan's 8 March Letter which would make that 22 March) but that "Rod wasn't here to email it to you" (a reference to Rod Leonarder who had been supervising her non-teaching duties). This letter if received may therefore have arrived at DEC after the 14 days had elapsed and steps had already been taken to effect the 28 March letter of dismissal from Mr Riordan. 481Mr Riordan indicated in evidence that he did not see this letter, and was unaware of its existence until shortly before the hearing. There was no evidence as to when, or by whom it was received at EPAC. In any event Mr Riordan was very firm in his evidence that he had made up his mind based on the documentation before him as at the 8 March and following the extensive meeting with Ms Sultan on 7 March 2012. Whilst Ms Thorpe may have left her with the impression that an alternative to resignation could be considered that was not firmly put by Mr Riordan and there was no follow up correspondence that would have confirmed such an intention. 482I also consider that such any undertaking from Ms Sultan to attend a meeting if she was returned to the school frankly came too late as was her acknowledgement that she had made an error of judgement. 483I do not consider that the further written submissions of Ms Sultan would have changed the final outcome and the decision of Mr Riordan to direct her to resign and subsequently dismiss her. Indeed, given the content of those submission I do not consider they would not have assisted Ms Sultan's cause in any way. 484Therefore, in summary, I do not find that there was procedural unfairness in relation to the dismissal of Ms Sultan and as such, given the gravity of the misconduct, I do not find that Ms Sultan's dismissal was either unjust or unreasonable in the circumstances. 485However, that still leaves me with the task of determining whether or not in all of the relevant circumstances dismissal was too harsh a penalty to have been imposed. 486The issue of harshness and the task required to be undertaken in assessing whether a dismissal was too harsh a penalty, notwithstanding a finding of misconduct, was considered by the Full Bench in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 as follows: 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 487Ms Sultan was a teacher with some 20 years service. Lengthy unblemished service is a factor that should be taken into consideration in determining an appropriate penalty once misconduct has been found,. However such lengthy service is also a two edged sword and as I have often observed (see Cockayne v Hurstville City Council [2009] NSWIRComm 1013), with lengthy service comes the not unreasonable expectation by an employer that an employee will be aware of the relevant Code of Conduct and the rules and policies applicable to a workplace and what may reasonably be expected of an employee and comply with such. That must particularly be the case, I would have thought, with a teacher who would be well aware of the hierarchy within the school system and the inherent authority of a principal, deputy principal and head teacher in relation to teachers, administrative and support staff and students. 488I am fully aware of the consequences of a dismissal from the public service for an older worker, and a worker with little or no computer skills. Ms Sultan was 66 years of age as at the time of the hearing, (see D'Sousa v NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042. However after carefully considering all of the relevant circumstances of this matter I do not consider that it is either appropriate to reinstate Ms Sultan or re-employ her in the teaching service. (the authorities are well established and do not need repeating they have been cited in submissions). I do not consider that any kind of appropriate relationship could be re-established between Ms Sultan and Ms Pasalic or indeed with Mr Currie. Ms Sultan gave somewhat conflicting evidence of her relationship with Ms Pasalic referring to the fact that they were always kind and courteous to each other yet on the other hand has vilified her in her written responses, and her oral and written evidence would suggest a relationship poisoned beyond redemption. I also do not have confidence that if any issues with her work performance or conduct were sought to be raised with her in the future by anyone in authority that she would respond in a reasonable way. 489I am not unsympathetic to Ms Sultan's position. She is undoubtedly a woman who is exceptionally dedicated and committed to her chosen "mission" of teaching and obviously cares deeply for the welfare of children and their needs. She has also clearly devoted considerable time and effort to developing the resources she used whilst at Strathfield South High School. I am also mindful of her medical conditions (conditions which do not appear to have been fully realised or understood by the school but may have been able to be raised in the meeting requested by Ms Pasalic or any subsequent meeting with Ms Pasalic and Mr Currie). It is also clear that she is a deeply religious person (as evident by her frequent references in her written submissions). I also have noted her impressive academic qualifications and that she is endeavouring to address her computer literacy problems (albeit with some difficulty) through further training. This is essential and can only assist her in the future. I have taken all these matters into account in arriving at this decision. 490I note that there was no evidence that Ms Sultan had been placed on a 'Not To Be Employed' list and therefore would be able to seek casual work with DEC. She would also not be precluded from seeking employment in either the Catholic School or Independent School systems and the high level of her qualifications would stand her in good stead. Her teaching experience has not just been restricted to teaching English as a Second Language, she has also taught French and Arabic. I do not consider that she has no employment prospects in her chosen field. I again acknowledge her very exceptionally strong commitment to teaching as being very much her mission in life. I stress that at the end of the day there have been no adverse findings made about her teaching ability. 491Having carefully considered all the evidence and submissions in this matter, as well as the appropriate authorities, I do not consider that the termination of Ms Sultan was either harsh, or unreasonable. I come to this conclusion based on the seriousness of the misconduct which occurred, the deliberate refusal to comply with a reasonable and lawful direction, the circumstances of the misconduct, and Ms Sultan's ongoing intransigence in relation to following reasonable and lawful directions (the second and third refusal) and her acknowledgement during the investigative process that she had no intention of attending a meeting. I can also find no procedural unfairness of sufficient consequence to render her termination unjust. 492I also find that the decision of DEC to dismiss Ms Sultan from her employment as a teacher, in all of the circumstances, was appropriate and the Commission does not intend to intervene in that decision. 493The application of Ms Sultan (IRC 533 of 2012) is therefore dismissed. Elizabeth Bishop Commissioner

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