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