Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thomas v NSW Education Standards Authority [2021] NSWCATOD 125 Hearing dates: 20 May 2021, 6 June 2021 Date of orders: 08 September 2021 Decision date: 08 September 2021 Jurisdiction: Occupational Division Before: D Dinnen, Senior Member Decision: The Respondent's reviewable decision is set aside and in substitution, the Applicant's accreditation is reinstated in accordance with these reasons for decision Catchwords: ADMINISTRATIVE REVIEW – teacher accreditation – suspension – NTBE list - professional standards – allegations of misconduct – criteria for suspension Legislation Cited: Administrative Decisions Review Tribunal Act 2013 Education Standards Authority Act 2013 Government Sector Employment Act 2013 Teacher Accreditation Act 2004 Teaching Service Act 1980 Cases Cited: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474, 493 Category: Principal judgment Parties: Michael Thomas (Applicant) NSW Education Standards Authority (Respondent) Representation: Counsel: D Fuller (Respondent) Solicitors: Applicant (Self-represented) Lander & Rogers (Respondent) File Number(s): 2021/00070721 Publication restriction: Nil reasons for decision Background 1. Michael Thomas (the Applicant) was a teacher at Moree Public School on a temporary teaching contract in the first half of 2020. Performance issues were raised with him in March 2020, following which he took leave. He eventually returned to work full time on a return to work plan on 25 May 2020 and was placed on a performance improvement plan on 15 June 2020. He resigned shortly before that plan concluded in July 2020. Between March 2020 and his resignation in July 2020 he made various and multiple complaints of bullying, harassment and discrimination on the grounds of sexuality to the NSW Department of Education ('the Department'), SafeWork NSW, and the NSW Anti-Discrimination Board in relation to his performance management by Moree Public School and the conduct of the Department towards him. He also threatened to take his complaints to the media on 17 June 2020. 2. On 22 June 2020 the Applicant emailed various email addresses at The Australian and news.com.au with his complaint, titled "Secretary of NSW Dept Education Allows Discrimination & Bullying to Occur Under His Watch". A journalist from The Australian contacted him on 13 July 2020 and the Applicant was interviewed by him some time later. On 24 July 2020 the Applicant texted the journalist, stating "After significant further consideration about the ramifications on my reputation in proceeding with the story, I am letting you know I no longer wish to proceed with the story", but he apparently changed his mind after speaking further with the journalist. On 12 August 2020 the Applicant texted the journalist "I have just been offered a job as a solicitor. I ask that you do not run the story any more. Thank you for all your help, Sorry for the inconvenience." 3. Nevertheless, on 13 August 2020 The Australian published the article. It was quite unfavourable to the Applicant, referring to historical criminal charges against him relating to child pornography, and was titled "School hired sacked child porn teacher". That same day, the Department wrote to the Applicant requiring him to show cause why his casual teaching approval should not be withdrawn and his name placed on the Department's confidential list of persons not to be employed ('NTBE list'). 4. On 21 August 2020 the Department decided that the Applicant's unsatisfactory performance justified the withdrawal of his conditional casual teacher approval, and pursuant to s 7(1)(e) of the Teaching Service Act 1980 ('TS Act') placed the Applicant on the NTBE list for a period of two years, having regard to s 5A and s 93A of the TS Act: Given your demonstrated breach of confidentiality and attempts to damage the integrity and reputation of the Department by airing your grievances in the media; your inability to objectively self-reflect and assess your performance and accept feedback by supervisors (Standards 6.1, 6.3, 7.1, 7.2); and above all, your failure to protect children by not ensuring a well managed and engaging classroom for all students, I have determined to place your name on the NTBE list for two years. 1. On 13 January 2021 the NSW Education Standards Authority ('NESA' / 'the Respondent') made a decision to suspend the Applicant's teacher accreditation pursuant to s 24A(1)(a) of the Teacher Accreditation Act 2004 ('the Act'). The Applicant sought internal review of that decision and the Respondent affirmed its decision on 24 February 2021 ('the Reviewable Decision'). In its Reviewable Decision, the Respondent determined that the Applicant's inclusion on the Department's NTBE list was for misconduct which would adversely reflect on his professional standing, integrity and suitability to teach, and that it was appropriate to suspend his accreditation having regard to the criteria at s 24B of the Act. 2. Both the Department and the Respondent measured the Applicant's conduct against the requirements contained in the Australian Professional Standards for Teachers ('the Standards'). The Respondent additionally relied on the Department's Code of Conduct and the ethical framework for the government sector established under Part 2 of the Government Sector Employment Act 2013 (NSW) ('Ethical Framework'). 3. By application dated 4 March 2021 the Applicant sought review of the Reviewable Decision in this Tribunal. The grounds for application were stated as: NESA have decided to suspend my teaching accreditation in NSW following a decision of the NSW Department of Education to place me on the NTBE list. The Department have now settled a homosexual discrimination complaint that has been lodged in NCAT therefore I submit there is a change of circumstances requiring a review of the decision. I also submit that NESA failed to adequately take into account that the newspaper article that triggured [sic] involvement of the Department and NESA has now been removed from the internet therefore is another change of circumstances that allows for a review of this matter to be undertaken. 1. The hearing was conducted on 20 May 2021 and 6 June 2021. The Applicant gave oral evidence at the hearing and both parties made detailed oral submissions. The Respondent chose not to cross-examine the Applicant. In addition to the material filed by the Respondent pursuant to s 58 of the Administrative Decisions Review Tribunal Act 2013 ('ADR Act'), which included copies of the Standards, the Department's Code of Conduct and the Ethical Framework, the Respondent provided the Tribunal with a copy of the Department's Complaints Handling Policy. The Applicant provided the Tribunal with extensive copies of his correspondence and supporting documentation involving his communications with Moree Public School and the Department regarding his performance management and his allegations of bullying, harassment and discrimination; communications with The Australian journalist in relation to the article published on 13 August 2020; and complaints made by him to the Australian Press Council, the Department, the Respondent, SafeWork NSW, the Anti-Discrimination Board, and associated correspondence. Legislative context 1. The Respondent is a statutory corporation constituted under the Education Standards Authority Act 2013 (NSW) (NESA Act). Its principal objectives include to ensure that teaching quality and professional standards under the Act and other education and teaching legislation are developed, applied and monitored in a way that improves student learning while maintaining flexibility across the entire school education and teaching sector: NESA Act, s 11(1). Its functions include the accreditation of teachers and the development, content and application of professional teaching standards: NESA Act, s 12(2)(c), 12(2)(h). 2. Pursuant to s 4(1A) of the Act, the Respondent is the authority with the power to accredit teachers in NSW. Pursuant to s 28 of the Act, a person must be accredited under the Act to teach in a school or early childhood centre. 3. According to ss 30 – 32 of the Act, there are three categories of teacher accreditation: provisional, conditional, and proficient teacher level. The requirements for accreditation are set out in the Standards which are approved under s 19(1) of the Act. 4. The Respondent has the authority to revoke or suspend a person's teacher accreditation on specified grounds pursuant to ss 24 and 24A of the Act. Section 24 provides: 24 REVOCATION OF ACCREDITATION (1) The Authority may revoke the accreditation of a person on any of the following grounds: (a) the Authority is satisfied that the person is a disqualified person within the meaning of the Child Protection (Working with Children) Act 2012 , (b) the person is found guilty of an offence punishable by imprisonment for 12 months or more, (c) the person is found guilty of an offence under this Act, (d) the person is found guilty more than once during the period of 5 years immediately before the revocation of any other type of offence that, in the opinion of the Authority, involves an act or conduct that is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach, (e) the person has: (i) been dismissed from employment as a teacher (whether on a permanent, temporary, part-time or casual basis) or has resigned from such employment before being dismissed, or (ii) been included in the list of persons maintained by the Secretary under section 7 (1) (e) of the Teaching Service Act 1980 as a person who is not to be employed in the Teaching Service, because of any misconduct that, in the opinion of the Authority, is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach, (f) the Authority is satisfied that the person has failed to comply with any condition to which the person's accreditation is subject, (g) the Authority is satisfied that the person has failed to comply with any of the requirements of the professional teaching standards that apply to the person. 1. Section 24A provides for suspension of accreditation, and review of suspensions: Suspension of accreditation 24A SUSPENSION OF ACCREDITATION (1) The Authority may suspend the accreditation of a person: (a) on any ground on which the Authority may revoke the person's accreditation, or (b) if disciplinary proceedings against the person are pending in relation to alleged misconduct, or (c) if proceedings against the person for an offence are pending and, were the person to be found guilty of the offence, the Authority would have grounds to revoke the accreditation. (2) The Authority must review the Authority's suspension of a person's accreditation at least every 3 months and must remove the suspension in the following circumstances: (a) if the suspension was imposed because of pending disciplinary proceedings and those proceedings have been finalised with no finding that the person has engaged in misconduct, (b) if the suspension was imposed because of pending proceedings for an offence and the person has been found not guilty of the offence or the proceedings have been withdrawn or dismissed, (c) if the suspension was imposed on a ground referred to in subsection (1) (b) or (c) and a finding that the person has engaged in misconduct has been made against the person in the relevant disciplinary proceedings, or a finding of guilt has been made against the person in the relevant proceedings for an offence, but the Authority has not taken action to revoke the person's accreditation within a reasonable period having regard to the circumstances of the case. (4) A person's accreditation is not in force during any period for which it is suspended whether under this or any other section of this Act. 1. In exercising its discretion to revoke or suspend a person's teacher accreditation, pursuant to s 24B: 24B CRITERIA FOR DETERMINING REVOCATION OR SUSPENSION OF ACCREDITATION ON GENERAL GROUNDS The Authority is to take account of the following matters (where appropriate) when determining whether to revoke a person's accreditation under section 24 or suspend a person's accreditation under section 24A or 25 (4): (a) the nature and seriousness of the conduct concerned, (b) the frequency of the conduct concerned, (c) the recency of the conduct concerned, (d) any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(c)). Relevant professional standards and conduct 1. Section 20 of the Act provides for the making of professional teaching standards: 20 MATTERS TO BE DEALT WITH BY PROFESSIONAL TEACHING STANDARDS (1) The professional teaching standards may deal with, and make provision for or with respect to, the following matters: (a) the skills, qualifications, experience and knowledge required for teaching at each level of accreditation, (b) the conditions and criteria for continuing accreditation, including requirements in relation to professional development, (c) the procedures and guidelines to be followed by teacher accreditation authorities in relation to the accreditation of persons under this Part and by the Authority in relation to the suspension or revocation of any such accreditation, (d) the approval by the Authority of initial and continuing teacher education courses or programs that are relevant to the accreditation of persons under this Part, (e) the approval by the Authority of those persons or bodies who may provide professional development, (f) ethical conduct of teachers, (g) any other matter relating to teaching standards. (2) Any procedures or guidelines under the professional teaching standards in relation to the suspension or revocation by the Authority of the accreditation of persons: (a) must be consistent with the rules of procedural fairness, and (b) are subject to section 24C. (3) Any approval by the Authority under the professional teaching standards of a teacher education course or program or of the persons or bodies who may provide professional development: (a) is subject to such conditions as the Authority thinks fit to impose (including while the approval is in force), and (b) may be suspended or revoked at any time by the Authority. 1. The Standards are 'a public statement of what constitutes teacher quality', by 'mak[ing] clear the knowledge, practice and professional engagement required across teachers' careers': The Standards comprise seven Standards which outline what teachers should know and be able to do. The Standards are interconnected, interdependent and overlapping. The Standards are grouped into three domains of teaching; Professional Knowledge, Professional Practice and Professional Engagement. In practice, teaching draws on aspects of all three domains. Within each Standard focus areas provide further illustration of teaching knowledge, practice and professional engagement. These are then separated into descriptors at four professional career stages: Graduate, Proficient, Highly Accomplished and Lead. 1. The seven Standards are: Standard 1: Know students and how they learn Standard 2: Know the content and how to teach it Standard 3: Plan for and implement effective teaching and learning Standard 4: Create and maintain supportive and safe learning environments Standard 5: Assess, provide feedback and report on student learning Standard 6: Engage in professional learning Standard 7: Engage professionally with colleagues, parents/carers and the community 1. Relevantly, the Standards specify the following for Standard 7 across the various levels of teaching: STANDARD 7 ENGAGE PROFESSIONALLY WITH COLLEAGUES, PARENTS/CARERS AND THE COMMUNITY FOCUS GRADUATE PROFICIENT HIGHLY ACCOMPLISHED LEAD Meet professional ethics and responsibilities 7.1.1 Understand and apply the key principles described in codes of ethics and conduct for the teaching profession. 7.1.2 7.1.3 7.1.4 Meet codes of ethics and conduct established by regulatory authorities, systems and schools. Maintain high ethical standards and support colleagues to interpret codes of ethics and exercise sound judgement in all schools and community contexts. Model exemplary ethical behaviour and exercise informed judgements in all professional dealings with students, colleagues and the community. Comply with legislative, administrative and organisational requirements 7.2.1 Understand the relevant legislative, administrative and organisational policies and processes required for teachers according to school stage. 7.2.2 Understand the implications of and comply with relevant legislative, administrative, organisational and professional requirements, policies and processes. 7.2.3 7.2.4 Support colleagues to review and interpret legislative, administrative and organisational requirements, policies and processes. Initiate, develop and implement relevant policies and processes to support colleagues' compliance with and understanding of existing and new legislative, administrative, organisational and professional responsibilities 1. The procedures and guidelines in the professional teaching standards include the Interim Revocation, Suspension and Voluntary Cancellation of Accreditation Policy ('the Policy'). The TS Act 1. Section 7(1)(e) of the TS Act provides that the Secretary of the Department has the function "to prepare and maintain a list of persons who the Secretary determines are not to be employed in the Teaching Service". 2. Section 5A of the TS Act provides: 5A PROTECTION OF CHILDREN TO BE PARAMOUNT CONSIDERATION (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. 1. Section 93A provides that the objects of Part 4A of the TS Act, being "Management of Conduct and Performance", are: 93A OBJECTS OF PART The objects of this Part 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. 1. Section 94A of the TS Act defines misconduct: 93C MEANING OF "MISCONDUCT" (1) For the purposes of this Part, "misconduct" includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (d) taking any action against a person that is substantially in reprisal for an internal disclosure made by that person. (2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the officer concerned was not on duty, or (b) before the officer was appointed to his or her position. (3) In this section, "internal disclosure" means a disclosure made in good faith by a person regarding the alleged misconduct of another person. Legal principles 1. The Tribunal has jurisdiction to review a decision to suspend a person's teacher accreditation pursuant to s 27(1)(b) of the Act. The task of the Tribunal on administrative review is stated in s 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. Section 63(1) of the ADR Act requires the Tribunal to determine the correct and preferable decision, based on an assessment of the material before the Tribunal at the time of the Tribunal's review, including any relevant factual material and any applicable written or unwritten law. This may include material not before the primary decision-maker. 2. The Tribunal is not bound by the rules of evidence in these proceedings but it 'must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined': Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474, 493 at [79]. The standard of proof is the civil standard on the balance of probabilities. The applicable principles are those discussed by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, namely, that the strength of evidence needed to establish a fact or facts may vary according to the nature of what it is sought to prove, particularly where as the allegations are serious, and the consequences if those allegations are found to be established are serious. 3. When conducting a merits review of an administrative decision, there is no onus of proof on either party: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 (Woodward J). Rather, the Tribunal "stands in the shoes" of the decision maker and is able to inform itself on any matter in such manner as it thinks fit: ADT Act, s 73(2). 4. The Tribunal may have regard to any policy applied by an administrator except to the extent it is contrary to a 'Government policy' or law or it produces an unjust outcome in the circumstances of the case: ADR Act, s 64(4). Consideration The Applicant's evidence and submissions 1. The Applicant's evidence and submissions largely traversed matters outside the Tribunal's jurisdiction, including the appropriateness and reasonableness of his performance management by Moree Public School, the conduct of his colleagues at Moree Public School, the complaints he made to the Department, SafeWork NSW, the Australian Press Council, and the Respondent, and the handling of those complaints. That material, and the evidence the Applicant included about his discrimination complaints and defamation proceedings, is not relevant to the Tribunal's determination. 2. I accept the Applicant's evidence that he attempted to withdraw his consent to the publication of the 13 August 2020 article by The Australian and to have the article removed from the internet. However I don't consider this particularly relevant in circumstances where the Applicant's reasons for withdrawing his consent were expressed by him as the effect publication would have on his personal reputation and his ability to practice as a solicitor, rather than the effect publication would have on his professional standing as a teacher, or the effect publication would have on the teaching profession, his employer, or the Department. 3. The Applicant gave various explanations for why he approached The Australian. These included his concerns that the School Principal's 'relentless bullying, harassment, discrimination and intimidation have fallen on deaf ears, so I felt I had no other option but to reach out to the media for assistance'; he was experiencing 'mental health concerns ... due to COVID-19, in that I had no job or career prospects, no reliable source of income and grave concerns for my future'; he was 'under extreme duress and felt I had no other way to get my story out there'; to draw attention to 'discrimination I had experienced': This is why I went to the media. I had been through so much at the school and despite putting in the homosexual discrimination complaint and complaint to Safe Work NSW nothing was being done to assist me. The other reason I went to the media was because of the mental health concerns I was experiencing due to COVID-19, in that I had no job or career prospects, no reliable source of income and grave concerns for my future. I was worried about all the increasing levels of uncertainty regarding the economy and my chances of securing work with the deepening economic climate deteriorating. It is my submission that if you pay any attention to the literature regarding mental health that is being circulated around because of COVID-19, issues regarding ongoing lockdowns and a lack of certainty regarding travel and border closures, this is causing significantly higher levels of mental health distress among the community. Whilst I am not seeking to use COVID-19 as a justification for my actions, it does in my respectful submission go to party explaining why I did what I did after I had experienced what I did at Moree Public School. This is coupled with my increased vulnerability for mental health distress during the COVID-19 pandemic as evidenced by my mental heath admission to Banksia in March 2020 because of bullying. In essence it is my submission that I have a predisposition to increased levels of anxiety and depression throughout the Pandemic because of my previous history of mental health issues. 1. The Applicant provided extensive written submissions of matters which he considered relevant to the Tribunal's determination in relation to the appropriateness of his suspension. Parts of those submissions seemed to be addressed to his suitability for roles in the Royal Australian Air Force Cadets, Duke of Edinburgh Awards, and the Department of Defence, including as an "adult supervisor and COO of cadets" and "parading at a Squadron". He reproduced extensively from the submissions and sentencing remarks made in his Local Court criminal proceedings, his appeal to the NSW Office of the Children's Guardian in relation to his working with children check, and his application to the Law Society for a practicing certificate. Additionally, he included the following: 1. A positive work report from the Relieving Principal of Alstonville Public School dated 12 December 2019 in relation to his enthusiasm, teaching methods, engagement with students, colleagues, and parents, and professional conduct; 2. Character references from 2013; 3. References to his history of learning difficulties from various school and medical reports; 4. Psychiatric reports opining on his risk of reoffending (in relation to his criminal charges) and suitability for registration as a teacher. 1. The Applicant sent emails to the Respondent on 17 January 2021 and 4 February 2021 stating that he would be informing the media of their actions unless certain requests were met, including that the Respondent "lift the suspension on my accreditation as a matter of urgency" and that they "grant a further extension" to him in making submissions for the internal review. These were relied on by the Respondent to demonstrate that the Applicant's inappropriate threats of approach to the media as recourse were not isolated to his conduct which was the subject of the accreditation suspension. The Applicant explained that he had sent the emails in the context of trauma he was suffering after the death of a close friend and "I have learnt my lesson with regards to going to the media, and learnt that the media cannot be trusted under any circumstances". The Applicant provided contextual evidence for his conduct in approaching the media in July 2020: I had been admitted to a mental health facility, was on borderline committing suicide and had been through a very traumatic experience at Moree and was one step from killing myself. I was reaching out the media in sheer desperation because of what I had experienced at Moree and before leaving my permanent job as a solicitor where I had been working for over two years, I had then went to Moree and was then unemployed. So after having no job and the prospects of being unemployed for an unknown period of time, I contacted the media not realising the significant legal, financial and reputational consequences. 1. The Applicant submitted that the Tribunal should also take into account the following: 1. The fact that he taught in Wilcannia and Moree, which he submitted were both geographically isolated, biased and negative towards homosexual people, and he did this to make a difference to the lives of Aboriginal children; 2. That his Working with Children Clearance was not revoked following publication of the article on 13 August 2021; 3. That the Department did not commence separate disciplinary proceedings against him for breaches of the Code of Conduct; 4. That he was extremely unwell in the period leading up to his resignation from Moree Pubic School. 1. Considering the Respondent's decision not to cross-examine the Applicant, I accept the Applicant's evidence. The question is what weight the Tribunal should afford that evidence, and what effect, if any, this has on the Tribunal's determination. The Respondent's submissions 1. The Respondent made clear at the hearing and in its submissions that it does not rely on the Applicant's historical criminal charges as providing or supporting any basis for suspending the Applicant's teacher accreditation, and also does not rely on the Department's underlying concerns about the Applicant's performance. The Respondent submitted that the Applicant's approach to The Australian to express a grievance about an internal management decision relating to his employment was in breach of professional and ethical standards that applied to him, and that suspension was appropriate to maintain public confidence in the integrity of those standards, and to protect against future non-compliance by the Applicant and other teachers. The Respondent submitted that the Applicant's actions were contrary to Standards 7.1 and 7.2 and breached the following clauses of the Code of Conduct: (a) going to the media with his allegations of discriminatory treatment, rather than reporting that behaviour to his supervisor or director (contrary to cl 4.3); (b) using information and communication technologies to engage in behaviour that could reasonably be considered to have a negative impact on another person, being the Principal, Deputy Principal and teaching colleagues at the School, as well as the Secretary of the Department (contrary to cl 4.4); (c) being discourteous to those colleagues (contrary to cl 5.1 (vi)); (d) engaging in conduct having the potential to damage the reputation of the Department, even if it is in a private capacity, this could lead to disciplinary action (contrary to cl 5.1 (ix)); (e) disclosing or using information he was told was confidential (about the performance improvement process discussed at his meeting with the School) without appropriate approval (contrary to cl 11.1 and 11.2); (f) making comments that cast doubt on the School's capacity to implement departmental policies and guidelines objectively, identifying himself as an employee of the Department and the School and making comments that were critical of the Department with the knowledge that they would be published, and intentionally misrepresenting the Department's position regarding the purpose of the performance improvement process (contrary to cl 13.5(i), (iii) and (vi)). 1. The Respondent submitted that the Applicant's conduct was contrary to values of integrity, trust and accountability in the Ethical Framework and was therefore also contrary to the Public Service Commission's Code of Ethics and Conduct for NSW government sector employees.The Respondent relied upon the ground in s 24(e)(ii) of the Act (incorrectly referred to as s 24(e)(i) in the Reviewable Decision) which is a ground of suspension pursuant to s 24A(1)(a): that the Applicant's name had been "included in the NTBE list because of misconduct that is of a nature that would reflect adversely on the Applicant's professional standing, integrity or suitability to teach". 2. The Respondent submitted that the reasons for the Applicant's inclusion on the NTBE list as provided by the Department on 21 August 2020 were the Applicant's 'demonstrated breaches of confidentiality and attempts to damage the integrity and reputation of the Department by airing your grievances in the media', and that this was properly characterised as 'misconduct' within the meaning of s 24(e) of the Act. The Respondent submitted: The nature of the Applicant's misconduct was, in summary: (a) The Applicant contacted a major national newspaper, while he was still employed as a teacher in the Department, with what he described as a 'tip off'. (b) In his 'tip off' he identified himself as a teacher in the Department, and subsequently named the school where he worked (c) The context in which his 'tip off' was made was that, one week earlier, he had been placed on a performance improvement plan because of concerns within the School about his performance. He had been told that the meeting where he was notified of that decision was confidential and that it would be a breach of the Code of Conduct if he discussed it with other staff. (d) His 'tip off included allegations that: (i) he had been subject to 'homosexual discrimination and bullying' since the start of 2020; (ii) he was subject to a 'pattern of bullying' at the School, a 'pre-planned' disposition to terminate his employment, and a 'vindictive, disgusting attitude'; (iii) the performance improvement plan was 'merely a witch-hunt and evidence collection exercise' and he 'totally disagree[d]' with the School's position in relation to it; and (iv) he had raised concerns about these matters with the Secretary of the Department and 'nothing whatsoever has been done to stop it from occurring'. (e) The Applicant spoke with the journalist from The Australian for 'over an hour' in relation to his grievances and engaged in email and text message correspondence with the journalist over approximately two months. In one email he repeated his allegation that the performance improvement plan was 'an evidence gathering exercise to get rid of me because of my sexuality'. (f) His emails with the journalist included specific allegations against the Principal and Deputy Principal of the School, and sought to blame another teacher at the School for some of the performance concerns that had been raised. Issues for Determination 1. The Tribunal must be satisfied in these proceedings of two matters: first, that one of the grounds in s 24A(1) of the Act is made out, and second, that it is appropriate to suspend the Applicant's accreditation having regard to the matters in s 24B of the Act. 2. In determining the appropriateness of the suspension, the Tribunal should take into account the objectives and functions of the regulatory framework under which the decision was made, as referred to above at [9], and the relevant Policy which requires the protection of children to be taken into account as a paramount consideration. Any decision should be made for a protective, rather than punitive purpose. 3. It is not in dispute that the Applicant's name has been included in the Department's NTBE list and remained on the NTBE list. Whether his inclusion on the NTBE list was for "misconduct that is of a nature that would reflect adversely on the Applicant's professional standing, integrity or suitability to teach" was disputed by the Applicant, as was the appropriateness of his accreditation suspension. Misconduct 1. I disagree with the Respondent's submission that the Applicant's conduct constitutes 'misconduct' within the meaning of s 24(e) of the Act. 2. Misconduct is not defined in the Act. At s 24 'misconduct' is referred to in the context of the NTBE list from the TS Act, and the only other references to 'misconduct' in the Act, which are at s 24A, are in the context of disciplinary proceedings. 3. The Act is part of the regulatory framework for teachers, which also includes the TS Act. The conduct and performance of teachers is regulated by Part 4A of the TS Act. Misconduct is defined at s 93C of Part 4A of the TS Act. 4. There is no evidence before the Tribunal that the Department conducted an investigation into allegations of breaches of the Code of Conduct by the Applicant, that disciplinary proceedings were initiated in accordance with the TS Act and departmental policies, or that findings of misconduct were made pursuant to s 93C of the TS Act. 5. Misconduct referred to in s 24 of the Act is not the same as non-compliance with the Standards. I accept that the Applicant's conduct as described at [38] above was "conduct of such a nature as to reflect adversely on the Applicant's professional standing", but that is not the same thing as misconduct under the Act or the TS Act. 6. The Applicant's conduct was inappropriate and could very well have breached the Department's Code of Conduct in various respects, but that is a matter for the Department to determine, not the Respondent, and the Department did not do so. It is unreasonable for the Respondent to make allegations of breaches of the Code of Conduct as a basis for finding 'misconduct' pursuant to s 24(e)(ii) of the Act in those circumstances. Nor is there any evidentiary or statutory basis for the Respondent to refer to allegations that the Applicant breached the Ethical Framework as supporting his accreditation suspension. 7. It is clear on the evidence before me, including the letter of 21 August 2020, that the Applicant was not placed on the NTBE list by the Department for misconduct or because of any disciplinary proceedings as defined under the TS Act. 8. Bearing in mind the serious impact the suspension of the Applicant's accreditation has on his ability to work in his chosen profession, I find that there is insufficient evidence for the Tribunal to make a finding that the Applicant has engaged in misconduct within the meaning of s 24(e) of the Act. 9. The Respondent did not rely on s 24(g) to support its decision, and in those circumstances I make no findings in relation to the Applicant's compliance with the requirements of his professional teaching standards as a basis for his accreditation suspension. Section 24B 1. The Act provides for suspension and revocation of accreditation in particular circumstances, which are not met in this matter. Having found that the Respondent did not make out the ground relied upon in s 24A, there would be no need for the Tribunal to consider the criteria upon which the decision to suspend or revoke is based pursuant to s 24B. However in the event that the Tribunal is wrong in determining that the basis for suspension is not made out, it serves to consider those factors on the material made available to the Tribunal for those purposes. 2. The Respondent submitted that although the Applicant's conduct occurred only once, it was fairly recent, and although it did not impact directly upon the welfare of children, maintaining public confidence in the integrity and standards of the teaching profession is essential to the effective operation of the NSW school system, which is in the interests of the children who participate in that system. The Respondent further submitted that the 'other discretionary considerations', which the Tribunal takes to be referring to s 24B(d) of the Act incorporating the Standards made under s 20 of the Act and the Policy, support a conclusion that suspending the Applicant's accreditation is appropriate to maintain public confidence in the standards of the teaching profession, and to achieve specific and general deterrence. 3. The Respondent submitted: …the Tribunal cannot be satisfied that the Applicant fully appreciates the seriousness of his misconduct, or is genuinely remorseful for it, or fully understands or accepts the legitimacy of the standards that would apply to him if he were allowed to re-join the Teaching Service. Members of the public could not have confidence that the Applicant would uphold the high standards of the teaching profession if he were allowed to re-enter it. 1. Whilst inappropriate, I do not consider the Applicant's conduct to be serious for the purposes of s 24B(a). As discussed above, there was no misconduct within the meaning of the regulatory framework for teachers. In consideration of s 24B(b), the conduct occurred once. Both of those factors would mitigate against a decision to suspend or revoke accreditation. The conduct was recent, which I consider is a factor in favour of suspension for the purpose of s 24B(c). In considering the criteria at s 24B(d), being 'any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(c))', I take into account the Policy and the Applicant's evidence and submissions. 2. I consider that the Applicant's evidence at [31], [33] and [34] above is relevant to the Tribunal's consideration of the appropriateness of suspending the Applicant's accreditation. The Applicant made numerous attempts to raise his concerns and grievances with the Department through its internal complaints handling processes about his perceptions of being bullied and discriminated against by his colleagues and supervisors at Moree Public School. The Applicant's approach to the media to air his complaints regarding how those matters were handled by the Department was inappropriate and unjustified, but it was understandably borne out of his frustrations in resolving those complaints, in the context of significant mental health difficulties which were serious enough to result in his hospitalisation. I accept the Applicant's evidence that his approaches to the media in July 2020 which culminated in the article of 13 August 2020 being published, and his threats on 17 January 2021 and 4 February 2021 to again approach the media with his complaints, were similarly influenced by his mental health issues, exacerbated by the death of a close friend and mentor in December 2020 and the stress he was under. 3. It is not the Respondent's role to discipline the Applicant or make findings of misconduct in circumstances where the Department has not done so. In my view the Applicant has demonstrated some insight into the inappropriateness of his conduct and on the evidence before me is aware of the Standards and how they apply to him, despite his conduct being clouded at various times by the impact of his mental health issues. 4. The Policy provides that the Respondent has a range of options available to it to manage a teacher's accreditation in circumstances where there are concerns they are not reaching the relevant Standards, including (but not limited to) the imposition of conditions on accreditation pursuant to s 20 of the TA Act. There is no evidence before the Tribunal of the suitability of those alternative options being considered by the Respondent. 5. In my view the decision to suspend the Applicant's accreditation is disproportionate to the Applicant's conduct and the circumstances in which it occurred. In making that finding it is important to acknowledge that the Respondent did not rely on the Applicant's historical criminal charges as providing or supporting any basis for suspending the Applicant's teacher accreditation, and also did not rely on the Department's underlying concerns about the Applicant's performance. There were no relevant concerns for child welfare relied upon by the Respondent, and the Tribunal notes that the Department's only concerns for child welfare were expressed as a "failure to protect children by not ensuring a well-managed and engaging classroom for all students", which seems to conflate teaching performance with child safety concerns. 6. In the circumstances the correct and preferable decision is for the Tribunal to set aside the Respondent's decision to suspend the Applicant's accreditation, the result being that the Applicant's accreditation should be reinstated. Orders 1. The Respondent's reviewable decision is set aside and in substitution, the Applicant's accreditation is reinstated in accordance with these reasons for decision. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 23 December 2021 - Pursuant s63 of Civil and Administrative Tribunal Act, following an Administrative error of uploading an incorrect version of this decision (subsequently restricted on 13/9/21), the correct version has now been published. Of particular note is that a discussion of the Respondents submissions as well as a discussion of Misconduct have now been included. 23 December 2021 - Date of Orders/Date of Decision corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2021