Industrial Relations Commission New South Wales Medium Neutral Citation: Brown v Secretary, Department of Education [2022] NSWIRComm 1095 Hearing dates: 12, 13 October 2021; 5, 23, 24 November 2021; last submissions filed 4 February 2022 Date of orders: 28 October 2022 Decision date: 28 October 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Application dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – teacher did not attend meetings as directed – consideration of whether direction to attend meetings was lawful –teacher can be placed on a teacher improvement plan any time after a review finds underperformance – teacher breached direction to work collaboratively with supervisors and other colleagues and treat colleagues with respect - whether conduct was misconduct warranting termination of employment – dismissal not harsh, unreasonable, or unjust Legislation Cited: Industrial Relations Act 1996 (NSW) ss 84, 88 Interpretation Act 1987 (NSW) s 49 Teaching Service Regulation 2017 Reg 5 Teaching Service Act 1987 (NSW) ss 5A, 6, 93A, 93D, 93G, 93H, 93J Cases Cited: Bostik (Aust) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 Briginshaw v Briginshaw (1938) 60 CLR 336 Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Davis v Secretary, NSW Department of Education [2017] NSWIRComm 1003 Department of Health v Kaplan [2010] NSWIRComm 65 Hamlin v City of Sydney Council [2021] NSWIRComm 1010 Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 in Williams v Secretary, Department of Education [2022] NSWIRComm 1007 Jones v Wrotham Park Settled Estates [1980] AC 74 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 McManus v Scott-Charlton (1996) 70 FCR 16 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 New South Wales Nurses' Association v Sydney Local Health District [2013] NSWIRComm 28 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531 Thompson v Goold & Co [1910] AC 409 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Texts Cited: Online Oxford Dictionary Category: Principal judgment Parties: Rosemary Ann Brown (applicant) Secretary, Department of Education (respondent) Representation: Counsel: J McDonald (for the respondent) Solicitors: Moin Morris Schaefer Lawyers (for the applicant) Minter Ellison (for the respondent) File Number(s): 2020/295112 Publication restriction: Nil decision 1. Before the Commission is an application made by Rosemary Ann Brown ("applicant") pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act") ("application"). 2. The applicant had been employed as an Itinerant Teacher Support – Hearing ("ITSH"), by the respondent from 2006, although she had previously worked as a teacher and in various other educational and hearing support capacities since 1976. Her first role with the respondent was in 1990. 3. On 17 September 2020 the applicant's employment was terminated by the Department of Education ("respondent") by letter from Mr David Wright-Smith, Acting Executive Director, Employee Performance and Conduct ("EPAC") of the Department of Education ("Termination Letter"). 4. The reasons provided by the respondent for the termination of the applicant's employment were as follows: 1. In 2019 and 2020, the applicant repeatedly breached her Principal's written direction dated 16 September 2019 to: "Comply with lawful directions and reasonable instructions given by a supervisor" and to "Work collaboratively with supervisors and other colleagues, even if you disagree with them" and to "treat colleagues with respect"; 2. In 2019 and 2020, the applicant failed to participate in the Teacher Improvement Plan ("TIP"), including by not attending TIP and other meetings on 30 January 2020, 4 February 2020, 17 February 2020, 27 February 2020, 28 February 2020, refusing to sign TIP documentation on 25 February 2020, in breach of formal directions to do so; and 3. The applicant failed to comply with a lawful and reasonable direction of the Principal given on 14 February 2020 to adhere to professional and respectful correspondence. 1. The applicant claims that her dismissal was unfair for the following five separate reasons (in summary): 1. The dismissal was unjust, because the direction to engage in a TIP under section 93H of the Teaching Service Act 1987 (NSW) ("TS Act") was not a lawful direction, and in those circumstances the remainder of the reasons for dismissal were insufficient to justify dismissal. 2. Further and in the alternative, the dismissal was unjust, because the "real" reasons for the disciplinary action against the applicant which directly led to her dismissal, were arbitrary and unfair. 3. The dismissal was unreasonable, because of the respondent's manifest failure to follow its own policies in relation to performance management and procedural fairness. 4. The dismissal was also unreasonable, because the decision maker failed to consider a number of considerations that were relevant to the decision. 5. The dismissal (and the manner in which it was carried out) was harsh, and disproportionate to the alleged conduct, when consideration is given to the personal circumstances of the applicant. 1. I have decided for the reasons contained in this decision to dismiss the application. Background 1. As set at [2], the applicant was employed as an ITSH teacher with the respondent at the time of her dismissal. In 2017, she was transferred to Armidale City Public School ("ACPS") as her base school, which required her to attend a number of different schools in the region to provide itinerant hearing support, as her caseload would require from time to time. 2. When the applicant was transferred to the ACPS in 2017, she worked under the ACPS principal, Mr Matthew Hobbs. Mr Hobbs was replaced by a new principal, Ms Deborah Nay, who commenced in that role in Term 2 of 2018. There is no evidence of any issues raised with respect to the applicant's performance or conduct prior to this time. 3. It has been necessary to set out the background of the matters leading up to the termination of the applicant's employment in some detail. To the extent that it reflects the version of events provided by the respondent's witnesses, that is because I have preferred their evidence for the reasons I have set out below at [99]-[104] and [110]-[115]. 4. In evidence was an email trail between the applicant and Ms Tamara Doyle, Relief, Assistant Principal - Itinerant Support Teacher (Hearing) copying two colleagues towards the end of Term 3, 2018 relating to a new timetable and itinerary for the work to be undertaken by the applicant in Term 4: Court Book ("CB") at pp 809-819. In summary, by email dated 26 September 2020, the applicant sought a meeting with her supervisor and three others with an impartial person to take notes to discuss various issues, including consultation, the needs of children not being met by the current proposals and the process of collaboration with students' teams: CB at p 819. Ms Doyle indicated she was unavailable on the occasion nominated by the applicant and invited her to have discussions with a colleague, Sue with respect to a particular student, whom I will refer to as Student M. Among other things the applicant's response to Ms Doyle stated (CB 817): "None of us will be seeing [Student M] on the first Wednesday of Term 4, so I plan to still go to Martins Gully Public School to see him on the first Monday, and to continue to do so until the meeting we need can be held, and a satisfactory resolution worked out." 1. On 28 September 2018, Ms Doyle responded to the applicant stating that she could not make time for a meeting that would suit all participants, but that "once we resume we will speak further." She went on to state: "…. As for you visits with [Student M], I am happy for you to see him on the first Monday. However after that he will be having additional time with Sue, and your time will be needed elsewhere. Please submit your Travel Itinerary accordingly, along with your revised draft timetable. …" 1. The applicant replied to this email at 10:43 pm on Saturday, 29 September 2018 raising a number of concerns with respect to the itineraries, including time allocated for travel, and the allocation of Relief from Face to Face ("RFF"). In her lengthy response, the applicant states to Ms Doyle, among other things: "It appears to me that hidden agendas exist, of which Sue and I are unaware. Perhaps this is how it has to be, however, it makes from great difficulties in the current climate. …. It is impossible for me to visualise what is in your mind, although it does seem that "Travel 2 hours" has been typed in glibly, without due attention to reality. … Although there may be some ways to "compress" activities, in this world, it is impossible to "compress" time itself – the earth continues on with its consistent rotation! ….." 1. Ms Doyle responded to the email on 12 October 2018 denying that there was a hidden agenda and addressing a number of matters raised in the applicant's email. The applicant again replied, at 1:05 am on Saturday, 13 October 2018. The applicant continued to raise concerns with respect to the itinerary and Ms Doyle's interpretation of the requirements for travel. The applicant adopted a rambling, sarcastic and aggressive tone in her response. By way of example the applicant states: "As I mentioned below, from my understanding, a full-time Itinerant Support Teacher's (Hearing or Vision) 'teaching load' consists of 21.75 hours (including travel), plus 2 hour RFF per week, making a total of 23.75 hours per week, and that some of the travel could be done in the 30 minutes prior to the start of morning classes. [Whoever worked this out probably also considered the time it takes to move from one vehicle to another, to be patient with road works and slow drivers who share the road, to stop at the petrol station for refuelling, to stop and sign on and off at schools, etc., etc.] Is this correct or have I been mistaken from the last 12 years, by the approximately 12 different AP Hearing personnel with whom I have worker?" 1. The applicant sent another email on 17 October 2018 at 10:15 pm after meeting with Ms Doyle in Inverell, attaching a reworked Itinerary. In the email, the applicant continued to advocate for the inclusion of Student M in her Itinerary. The applicant addresses her concerns with respect to the time allocation in Ms Doyle's Itinerary as follows: "Now, in relation to the timetables you sent, from my perspective, a mathematician would come up with quite different figures than you have listed below the table or, at least, I cannot work out exactly how you calculated those figures. I am open to being enlightened about these things." 1. The applicant reasserts her request for the meeting she originally requested and states that in the meantime, "I am prepared to follow the timetables I have suggested/reworked, until an appropriate meeting is held, matters are discussed, and there is movement towards resolution." 2. On 19 October 2018 Ms Doyle responded that the "decisions made, have been made at the executive level and it is anticipated that you will support your allocated students." 3. Ms Nay gave evidence that she began taking a more active role and then directly supervising the applicant from about this time in October 2018 after she was informed of concerns relating to the conduct and performance of the applicant by Ms Kay McLaurin, Assistant Principal, Hearing and Ms Doyle: Ex R4 at [15]; [24]. 4. On 29 October 2018, the applicant and Ms Nay met ("29 October 2018 meeting"). Ms Nay gave evidence that during this meeting, she raised concerns with respect of the applicant's behaviour including that: 1. The applicant's emails were often emotive and read as demanding, disrespectful and excessive in number, even if that wasn't intended; and 2. The applicant had refused to follow instructions from her supervisor, Ms Doyle. 1. Ms Nay gave evidence that during this meeting, the applicant was provided with an example of her refusing to follow instructions on 28 September 2018, when she informed Ms Doyle that she intended to continue attending Martins Gully Public School to see Student M, despite being instructed not to do so: see Ex R4 at [24]-[25]. 2. Ms Nay gave evidence that during the meeting she informed the applicant of her expectations, reading out sections of the Department's Code of Conduct, and advised her, among other things, that she was required to follow reasonable instructions from her superiors, refrain from writing and sending emails when emotional and follow line management: Ex R4 at [25]. 3. In her evidence in reply, the applicant questioned the accuracy of Ms Nay's account of the meeting. The applicant gave evidence that the purpose of the 29 October 2018 meeting was to seek suggestions for mediation to overcome issues she was having with the caseload being proposed by Ms Doyle, her timetable and travel and the lack of appropriate consultation. The applicant complained that at no time prior to the meeting did she understand that it would become a disciplinary matter: see Ex A4 at [33]-[40]. 4. At the beginning of Term 1 2019, on 27 February 2019, the applicant forwarded her draft performance and development process plan (draft PD Plan) pursuant to the "Performance and Development Framework for Principals, Executives and Teachers in NSW Public Schools" ("PD Framework Policy") to Ms McLaurin. After several failed attempts to find a suitable time for the applicant and Ms McLaurin to meet in May 2019 to finalise the PD Plan, the applicant sent a scanned copy of her Self-Assessment against the draft PD Plan on 2 June 2019. 5. Ms Nay gave evidence that on 5 August 2019, the Principal of Guyra Primary School, Ms Michelle Nicholson, raised with her that the applicant had sent her an email wherein she indicated that she had declined to attend an observation of a lesson with Ms McLaurin: see CB at p 29. In addition, the applicant also stated in the email that she did not wish to have any face-to-face contact with Ms McLaurin, that she had raised this issue with her principal, Ms Tania Nichols and was unsure what the next step or outcome might be and that she was sorry that her "Duty of Care towards myself" created difficulty for others. The applicant copied two teachers into the email, Ms Wendy Wilson and Ms Emma Vidler. 6. On 5 August 2019, Ms Nay sent an email to the applicant stating that she needed to see her "as soon as possible this afternoon or tomorrow to discuss some concerns raised in relation to attending Guyra Central school". The applicant responded to this request by email at 11:10 pm on 5 August 2019 including by stating: "You may feel you "need to see [me] as soon as possible." My need, at this moment, is to be not engaged in such a "discussion" (whatever that may mean), and also not to be dealing with Kay (Mc Laurin) in any face-to-face interaction." (emphasis in the original) 1. On 6 August 2019, Ms Nay responded to the applicant, stating that her presence was required at the meeting that afternoon. 2. At about 2:50 pm on 6 August 2019, Ms Nay met with the applicant where she raised concerns with respect to her behaviour including: 1. The applicant's refusal to meet with her supervisor; 2. The applicant not following the approved itinerary or timetable; and 3. The applicant's inappropriate use of email including copying in teachers into the email above at [23]. 1. Ms Nay gave evidence that during the meeting she specifically stated words to the effect that: 1. Teachers cannot refuse to meet with a supervisor or manager unless there are valid reasons; and 2. It is important that you follow the itinerary as approved as this provides protection in relation to injury. 1. The applicant gave evidence that Ms Nay's handwritten notes of the meeting do not set out the concerns she raised about the way she felt bullied by Ms McLaurin and her failure to follow long standing departmental policies: Ex A4 at [44]. 2. On 11 September 2019, the applicant met with her support person, Ian MacGregor, Ms Nay and Ms McLaurin where performance and behaviour concerns were raised with her including those relating to lesson plans, collaboration with colleagues, inappropriate use of email, failure to follow directions of supervisors, and speaking negatively about colleagues. (see CB at pp 833 -844). 3. Ms Nay indicated during the meeting that she intended to review the applicant's PD Plan and proposed to monitor her progress against it moving forward in consultation sessions between her and her direct supervisor, with a check-in meeting arranged for 25 September 2019. 4. On 11 September 2019, (Week 7 of Term 3) Ms McLaurin emailed a copy of the applicant's PD Plan to her with amendments she stated were suggested by Ms Nay: CB at p 1347. 5. On 16 September 2016, the applicant was issued with a written direction that provided, in summary, that the applicant (CB at p 823): 1. Comply with lawful directions and reasonable instructions given by a supervisor. 2. Work collaboratively with other colleagues, even if she disagrees with them. 3. Treat your colleagues with respect and use emails in a professional manner. This included specific reference to avoiding exhausting others with excess and/or evening emails and copying staff into emails where this is inappropriate. 4. Follow line of management, including with emails, and not email CC Mark Scott with concerns. 5. Must comply with the Code of Conduct 2014, in particular, sections: 4.1, 4.2, 5.1 (i), (ii), (vi), (vii), (ix). 1. On 25 September 2019, the applicant attended a meeting with Ms Nay and Ms McLaurin: Ex R4 at [40]. 2. On 22 October 2019, Ms McLaurin requested the applicant provide her with her reflection sheets and her program as provided for in the PD Plan. The applicant did not provide these documents. 3. The applicant did not attend the scheduled meeting on 29 October 2019 with Ms McLaurin. In her evidence, the applicant stated that she did not attend the meeting due to technical difficulties but instead "used email": Ex A4 at [59]. 4. On 5 November 2019, Ms Nay and Ms McLaurin met with the applicant to discuss new concerns relating to her conduct and performance including: 1. Emails they believed to be inappropriate and unprofessional. 2. The timing of the emails sent. 3. The lack of programming and pre-planning of lessons. 4. The applicant's failure to produce her program and reflections on professional learning to Ms McLaurin when requested to do so. 5. The applicant's failure to attend the meeting of 29 October 2019. 1. During the meeting, the applicant was also advised that she was continuing to breach the reasonable instruction of a supervisor by failing to participate in fortnightly meetings and provide reflection sheets in breach of the direction issued to her on 16 September 2019. 2. Following this, Ms Nay scheduled a follow up meeting for 19 November 2019. 3. At 8:07 pm on Sunday, 10 November 2019, the applicant emailed Ms Nay, copying Ms McLaurin and Mr Pat Cavanagh, Director, Education Leadership. In the email, titled "This current process needs to stop", the applicant stated, among other things: "This current process needs to stop right now. From the verbal information I received at the meeting on Tuesday, and the written information you gave me, in addition to several other matters, what you and Kay have been doing is not in line with procedure. It may be that some other process will become appropriate in the future, however, what is happening at the moment is not appropriate. Firstly, the document you gave me ("Improving the Quality of Teaching") says that if there are performance concerns, the next process (on from the Performance and Development Cycle) is one of "Clarify, Communicate, and Support", as was mentioned in the meeting. The Document clearly states that this process is "Led by Supervisor and Teacher, supported by Principal". This is not what has happened up to this point in time, and what has been done has not been done in a supportive manner. [I have also recently received, from the NSW Teachers' Federation, the Information Sheet, "Relationship between Teacher Performance and Development and Teacher Improvement Processes", although I don't recall receiving a copy of this from you, which reiterates that statement, and provides more detail.] ….. Thirdly, in regards to Teaching Standard 3: Plan for and Implement Effective Teaching and Learning, I have not been able to read the word "written" anywhere there. Nor can I see any indication that any planning needs to be prepared and documented beforehand, for any specific duration or time, prior to the learning event. …." (Emphasis in the original) 1. In subsequent emails sent on 11 and 16 November 2019, the applicant reiterated that she did not feel supported by the process, was not consulted properly, and felt that Ms Nay was not supporting her (in summary). During this time the applicant failed to attend a further meeting with Ms Nay and Ms McLaurin on 19 November. 2. On 22 November 2019, a further meeting took place between the applicant, Ms Nay and McLaurin where the applicant's conduct and performance was discussed, including the applicant refusal to allow Ms McLaurin to observe her teaching. During this meeting, the applicant again expressed her view that the process being undertaken was not appropriate. 3. On 25 November 2019, the applicant was hand delivered a letter from Ms Nay. The letter related to the applicant's failure to attend the meetings of 29 October and 12 November 2019 and directed that she attends meetings with Ms McLaurin to discuss her teaching performance and supports to develop her practice in the future. 4. On 26 November 2019, the applicant did not attend the meeting with Ms McLaurin as scheduled. There was evidence that suggests this was a consequence of some technical issues. 5. On 9 December 2019, Ms Nay wrote to the applicant asking to meet with her to discuss "current support that has been provided." The applicant emailed Ms Nay in response, making clear she did not intend to participate in the meeting, stating: "Unfortunately it seems that the English you use is not the same as I find in general conversation, and in the English Dictionaries I have accessed. … I don't know how I can possibly make myself any clearer, unless it means I need to commence my own list of – to use your own word – "allegations" against you and Kay. When I start seeing that my supervisors are communicating and acting in line with the values and expressed culture and procedures of the NSW Department of Education, that may perhaps open upon some positive interaction." 1. In response, Ms Nay reiterated that she still wanted to meet with the applicant and reminded her of her letter of 25 November 2019 and indicated she could bring a support person: CB at pp 890-891. 2. The applicant met with Ms Nay on 10 December 2019 where she raised concerns about particular statements she made in her emails of the previous day. Ms Nay indicated that she would consider current and future support to be provided to the applicant during the school holidays. 3. On 13 December 2019, Ms Nay sent a lengthy email to the applicant addressing how the process being undertaken with the applicant conformed with the "Clarify, Communicate and Support" requirements of the respondent's Improving Quality of Performance Policy and explaining her involvement in that process as the applicant's supervisor and principal. 4. The applicant's response at 9:21 pm on Saturday, 14 December 2019 was as follows: "Thank you for your recent emails which appear to be attempts to justify your actions. I cannot yet decide whether you have genuinely missed pertinent points of current issues, or whether you have chosen to disregard aspects that have been clearly expressed in English phrases, for example in information related to policies and procedures". 1. Shortly after this communication, the applicant commenced leave for the Christmas/New Year break. 2. Upon resumption of Term 1, 2020, Ms Nay took steps towards placing the applicant on a TIP. 3. On 28 January 2020 Ms Nay had a meeting with the applicant where she advised her that she had decided to place her on a TIP. Ms Nay attempted to give the applicant a letter which invited her to attend a meeting on 30 January 2020 to discuss the TIP, however the applicant refused to take a copy of the letter and the meeting concluded. Ms Nay later emailed the letter and TIP to the applicant. 4. On 28 January 2020 and 29 January 2020, the applicant responded to Ms Nay's email. In regard to the invitation to attend a meeting to discuss the TIP, the applicant stated "at this point in time, my reply is an 'inability to accept'." 5. On 29 January 2020, Ms Nay responded to the applicant and advised her that she was required to attend the meeting. 6. The applicant responded to this email stating "[i]t appears that none of you realise the seriousness of these issues, or really understand the local situation", and again reiterated that she was unable to accept the invitation to attend the meeting. 7. On 30 January 2020, the applicant did not attend the TIP meeting. 8. On 30 January 2020, Ms Nay sent a letter to the applicant by email and rescheduled the meeting to 4 February 2020. 9. On 30 January 2020, at about 9.45pm, the applicant responded to the letter and email, stating: "This reply is to inform you that, as things stand at the moment, I will not be meeting with you until a reasonable, sensible, collaborative type in-person meeting is held with a number of agreed key personnel who will be prepared to discuss, in a collegial manner, the concerns I have, including those I have already referred to, and which I have begun to write in a book." 1. The applicant did not attend the re-scheduled TIP meeting on 4 February 2020. 2. On 5 February 2020, at about 2.23 pm, Ms Nay hand delivered a letter to the applicant. In this letter, among other things, Ms Nay outlined that the applicant's ongoing refusal to follow directions of her supervisor and principal, and refusal to follow instructions or the timetable provided, was inconsistent with her professional responsibilities as an employee of the respondent. In this letter Ms Nay also issued a further written direction to the applicant, stating: "I direct you to comply with the Code of Conduct and attend scheduled meetings. You are further directed to follow instructions given and timetables provided by your supervisor and principal." 1. On 5 February 2020, the applicant sent an email to Ms Nay stating: "Thanks for your email, although I am finding it very difficult to believe that you have up to date information. I also find it difficult to accept that your timetable (which is not even accurate for this week, as I have already referred to) could possibly be appropriate for my role for the entire Term. Today, I will not go to Walcha, and I will contact the school to let them know. I am currently at the Armidale Office, and will plan to return to Armidale City Public School for the rest of the day, and probably until some appropriate communication occurs." 1. On 6 February 2020, the applicant attended a meeting with Mr Cavanagh. On the same day, Mr Cavanagh emailed the applicant stating three things that he believed "would lead to a positive outcome for you." These were (CB at p 261): "1. follow the timetable as set. I offered to check with all principals that they are happy with timeslots, days, etc., but am satisfied that travel times are appropriate; 2. engage positively with the Teacher Improvement Program. I offered to be present at tomorrow's meeting, and to be an observer of your practice during the process; 3. respectfully accepting the role or supervisors within the Department." 1. In the email, Mr Cavanagh also acknowledged that the applicant did not agree with these points, but strongly urged her to implement them, warning that if she does not comply, "other disciplinary action may eventuate." 2. The applicant responded with a lengthy email on the same day, again reiterating her view that she should not be on a TIP, and making other complaints, including in respect of her timetable, implying Mr Cavanagh was not able to behave impartially, reiterating the inappropriateness of the letters of direction given to her, and requesting a "time-out" on any improvement plan. 3. On 10 February 2020, Mr Cavanagh wrote to the applicant addressing those matters raised in the applicant's email of 6 February 2020. In the letter, Ms Cavanagh stated he was responding "as per the Department's Staff Complaints Procedure". In the letter, Mr Cavanagh made three recommendations, including: "Recommendation: Mrs McLaurin will collate your timetable and your itineraries should align to this. Any changes to the timetable should be discussed with Mrs McLaurin in a timely manner, and should only be made due to unforeseen circumstances. Ms Nay has authority to ensure the timetable is followed. As discussed in our meeting of 6 February, it is my expectation that the timetable is followed. …. Recommendation: I find that the support provided as a part of the performance and management process was reasonable, allowed you many opportunities to participate and provide input, and provided strategies to assist you to improve your skills in regard to the Australian Professional Standards for Teachers. I am aware that you have not shown the required improvement in regard to the expected areas of concern therefore the principal's decision to move to a formal improvement program is appropriate. …… Recommendation: I find that the issuing of letters of direction was within policy. I further find no reason for the Improvement Program to be delayed significantly and, indeed, it is my belief that such a delay would unnecessarily prolong what has already been a lengthy process." 1. The letter provided a link to the NSW Department of Education Staff Complaint Procedure ("Staff Complaint Procedure") and stated: "you may request a review of my decision and you can give reasons why the complaint outcome was incorrect or how the complaint handling process was unfair. Requests should be made in writing within ten working days from receipt of the outcome, unless there are special circumstances. Requests should give the reasons for the review request and identify which particular part of the complaint is the subject of the review request." 1. The applicant responded with a lengthy email where she cavilled with the recommendations of Mr Cavanagh. The email, titled "The Congruence Dilemma Continues…" did not directly request a review of the recommendations of Mr Cavanagh pursuant to the Staff Complaints Procedure, although it did state, "Perhaps I should be now contacting the Deputy Secretary." 2. On 13 February 2020, Ms Nay wrote to the applicant informing her that she had organised a further meeting to discuss her TIP on 17 February 2020. The letter also included a further written direction to the applicant as follows: "I refer to my previous letters of direction issued to you dated 16 September 2019, 25 November 2019 and 5 February 2020... You have failed to comply with these directions. I have organised a further meeting to be held in my office on Monday, 17 February 2020 at 8.40am in line with the improvement program procedures. I remind you of the previous directions and further direct you to: * attend the initial meeting * participate in the support provided through the teacher improvement program * comply with lawful directions and reasonable instructions given by a supervisor 1. On 13 February 2020, at about 10.08 pm, Ms Nay received an email from the applicant in response to the letter of the same date. The subject line of this email was 'I do not know what low you are prepared to go to'. In this email, the applicant included a link to the dictionary definition of 'low', and referring to the letter, said that '[f]rom my perspective, what happened today is at an extremely low level.' The applicant also stated that she was totally unable to put any sort of trust in Ms Nay and reiterated that she would not attend any meetings with her. 2. On 14 February 2020, Ms Nay replied to the applicant's email. In this email, Ms Nay reminded the applicant of her written direction of 16 September 2019 requiring her to be professional and respectful in email correspondence and informed her that her email of 13 February 2020 was inconsistent with her professional responsibilities. 3. On 17 February 2020, the applicant failed to attend the scheduled TIP meeting. 4. On 19 February 2020, Ms McLaurin emailed the applicant twice instructing her to attend a Zoom meeting at 11:30 am that day to discuss her itineraries. The applicant did not attend the Zoom meeting. 5. On 19 February 2020, the applicant sent an email to Ms McLaurin likening her behaviour to a "spoilt child who just wants to get their own way." 6. On 21 February 2020, Mr Malcolm Barnett, Director of EPAC (then called Child Protection Investigations or CPI) notified the applicant that she was the subject of an EPAC Investigation and directed her to attend a TIP meeting on 25 February 2020. 7. On 25 February 2020, the applicant attended the TIP meeting. This meeting was also attended by Ms McLaurin, Julie Myhill as minute taker and Cathie Horneman as the applicant's support person. 8. At the conclusion of this meeting, the applicant was asked to sign a copy of the meeting documentation, including the checklist and the meeting minutes. The applicant chose not to sign any of the documentation and left prior to the minutes being provided for her to sign. 9. On 25 February 2020, after the initial TIP meeting, Ms Nay emailed a copy of the checklist, minutes, another copy of the draft TIP, and the TIP schedule including details of the subsequent TIP meetings to the applicant. 10. On 25 February 2020, at about 11.42 pm, the applicant responded to Ms Nay's email. In this email, the applicant stated, among other things: "Thank you for your email and attachments. They are further proof to me that you do not understand my role or the rapport I have with staff and students in schools and within their families, with supportive interactions that are vital aspects of the position for which I am employed in the NSW Department of Education ... What you have presented today, and indeed over the past months, is not a valid reflection of what is involved in supporting students with hearing loss. In fact, the schedule you have outlined for Week 6 is another example of departmental failure to meet the needs of students with disability, through the Assistant Principal Hearing, Kay McLaurin, refusing to allow me to provide support in appropriate ways, such as attending [Student S's] MAPping in Tamworth on Thursday 5 March 2020." 1. The applicant also stated in the email: "Further, when I read policies and procedures, as well as the Code of Conduct, etc., etc., I continually find words such as 'collaboration', 'communication', and 'consultation', and the desire that employees 'feel proud and happy' to work in this place. The behaviour and actions I have experienced in regards to you and Kay over these last years have not aligned with this 'letter' or 'spirit' of the Department. In addition, there has been a gross lack of transparency, and a failure to seek out, and convey, the truth of many matters. Departmental policies and guidelines continually mention 'Procedural Fairness'. However, to date, I have not been able to see this in action in any meaningful manner in my dealings with departmental supervisors and 'leaders', including you and Kay... At this point in time, the schedule you have attached is completely inappropriate, which also includes the meeting you have proposed for Thursday." 1. On 27 February 2020, the applicant did not attend the scheduled TIP meeting. 2. On 27 February 2020, Ms Nay sent an email to the applicant, requesting her to provide any comments in relation to the TIP and schedule by 2 March 2020 and reminding her that the TIP schedule begins on 28 February 2020. 3. On 28 February 2020, the applicant responded to Ms Nay's email of 27 February 2020 stating that because she was waiting on information from the NSW Teachers' Federation, she would not be following the TIP schedule. 4. In a letter dated 28 February 2020 (although sent on 5 March 2020), Mr Barnett issued a further written direction to the applicant which provided: "I have now been informed that you failed to attend a subsequent meeting with Ms Nay on Thursday 27 February 2020. Let me be clear and remind you of your obligations under the Department's policy document Teacher Improvement Program: Implementation document for the management of conduct and performance policy 2019. In particular I draw your attention to Section 5 Implementing a TIP (p. 7) which states: It is the principal who determines if a teacher is to be placed on a TIP. While there will be opportunity for the teacher to have input into the development of the TIP plan and schedule, the teacher is obliged to make every effort to participate in the TIP as a condition of employment. I also draw your attention to Appendix 1, Summary of Roles 1.1 Teachers which states in part: In performing their duties efficiently and competently, teachers have a responsibility to: .. participate in a TIP, where required by the principal, to assist them to improve and overcome any difficulties in their teaching performance Consequently, I now direct you to attend all meetings required of you by your principal and to participate meaningfully in the TIP process." 1. On 6 March 2020, the applicant confirmed receipt of this letter and responded by outlining a number of issues she had with Mr Barnett's direction. In this letter, the applicant indicated that she would not attend TIP meetings, and questioned Mr Barnett's prerogative in issuing directions to her. 2. The applicant did not attend any TIP meetings after the initial TIP meeting on 25 February 2020. 3. On 9 March 2020, Ms Jane Thorpe, Executive Director EPAC, sent the applicant a letter informing her she had decided to suspend her without pay on the basis of the applicant's advice that she did not intend to meet with her supervisors or participate in the TIP. 4. On 12 March 2020, the applicant sent a letter to Ms Thorpe alleging, among other things, a denial of procedural fairness and bullying. 5. On 17 March 2020, Ms Thorpe sent the applicant a letter stating that she would now be placed on alternative duties with pay. 6. On 20 March 2020, Ms Julie Smith, Investigator wrote to the applicant setting out the allegations about her conduct that she was investigating, and providing her with an opportunity to respond. 7. On 11 April 2020, the applicant responded to Ms Smith's letter of 20 March 2020. 8. On 23 July 2020, Ms Smith finalised her investigation into allegations of misconduct against the applicant. The applicant was notified about this on 25 August 2020. 9. On 25 August 2020, Ms Thorpe wrote to the applicant, informing her of the findings of the investigation, attaching a copy of the investigation report, and indicating that she was considering disciplinary action up to and including terminating the applicant's employment. Ms Thorpe invited the applicant to provide submissions in response to her findings of misconduct and proposed disciplinary action. 10. On 11 September 2020, the applicant provided a response to Ms Thorpe's letter of 25 August 2020. 11. At this time, Mr David Wright-Smith was the Acting Executive Director of the Professional and Ethical Standards Directorate. 12. On 17 September 2020, Ms Wright-Smith sent the applicant a Termination Letter in which he notified her that he had decided to terminate her employment with the respondent. The applicant's evidence and submissions 1. The applicant relied upon two statements filed in the proceedings dated 19 January 2020 (Ex A1) and in reply to the respondent's evidence dated 16 March 2021 (Ex A4). The applicant first statement attached more than 700 pages in exhibits (Ex A2). 2. The applicant was cross examined by counsel for the respondent, Ms McDonald (as she was then) over three days. 3. After the hearing, the applicant filed an outline of closing submission on 21 December 2021 ("AS") and an outline of closing submission in reply on 4 February 2022 ("ASR"). 4. The applicant argued that her dismissal was unfair for the reasons summarised above at [5]. I have considered the applicant's case in greater detail in this decision below. 5. The applicant was an unimpressive witness. She often answered questions from counsel with her own questions and the Commission was required to remind her of her obligations when giving evidence on more than one occasion. The applicant was argumentative and raised her voice while giving evidence. She quibbled on issues such as the definition of words and at one stage wished to qualify or change the terms of the affirmation she gave to tell the truth in the proceedings, seemingly because she was not able to give additional evidence as she pleased while under cross-examination to clarify her evidence: Tcpt, 13 October 2021, pp 8-9. Despite this, she often gave longwinded answers to questions that were not responsive to those directed at her. 6. Fundamentally, the applicant did not believe that she was required to produce any plans for the children she taught ahead of their lessons, at least not in writing. During the proceedings, she stated that she did not have a problem with planning, but that she did have a problem with writing it down prior to the learning. This was in contrast to the views of those who supervised her, for whom she showed little respect. The applicant stated that she did not believe that Ms Nay, whom she accused of bullying, and being morally reprehensible, knows what she is doing. She also stated that others within the Department do not understand her role including those working within EPAC. 7. The applicant also claimed that she had a duty of care to students that prevented her from participating in the TIP. The applicant explained that she was concerned that in complying with the TIP, students would be isolated from participating in the classroom curriculum and this would not be consistent with the relevant Department protocols. Accordingly, she did not view the direction to attend the meetings relating to the TIP as lawful. She also complained that she was not given a chance to lead the process. 8. A consistent theme in the applicant's evidence was that she was not being listened to in respect of various matters, including her concerns about Ms McLaurin and the travel arrangements for the role. Indeed, she gave evidence that she was not being heard by the Commission: Tcpt 5 November 2021, pp 64-67. She gave evidence that the observations of her practice were not being conducted in a supportive and collaborative manner and that the meetings she attended with her line management were not supportive. When giving evidence about why the process was not supportive the applicant responded that she was forced to do things that were not within her position description as provided for the in the "1998 ISTH Model" as contained in the "Special Education Handbook for Schools", such as programming ahead of time. 9. The applicant took great offence at a booklet referred to as an "information booklet" for ISTH authored by Ms McLaurin or her predecessor, setting out information relevant to the ISTH role, and needed to be directed to answer questions about the document: see for example, Tcpt, 13 October 2021, p 35 (30)-(44). 10. The applicant also gave evidence that she found it humorous that people found her emails exhausting: Tcpt, 13 October 2021, at p 35 (30)-(44). 11. I have considered the applicant's submission and evidence in greater details below. The respondent's evidence and submissions 1. The respondent relied upon the following witness evidence in the proceedings: 1. Witness statement of Ms Deborah Nay dated 3 March 2021. Ms Nay is the Principal of Armidale City Primary School (Ex R4); 2. Witness statement of Mr David Wright-Smith dated 3 March 2021; and 3. Witness statement of Ms Michele Ann Cutrupi dated 3 March 2021:(Ex R3). 1. In addition, the respondent relied upon a tender bundle of documents. 2. Each of the respondent's witnesses was cross-examined by the applicant's representative. 3. At the conclusion of the hearing, the respondent filed closing submission on 28 January 2022 ("RS") which included an Appendix addressing aspects of the applicant's submissions. 4. Ms Cutrupi was a in impressive and independent witness with extensive experience in the delivery of education services to children. At the time she gave her evidence, she was the Complex Support Sensory Advisor for the respondent. Ms Cutrupi was forthright and did not seek to anticipate the direction of the questions. Ms Cutrupi gave evidence about the role and function of Itinerant Support Teachers ("IST") including that they are required to support the student, the school and the families and have as their goal to improve learning and life-long outcomes of the students. She gave evidence that the objective of IST is to facilitate inclusion of people with a disability and that the curriculum is the same for all students with adjustments as required to the disabilities of a particular child. 5. With respect to the planning and programming process, Ms Cutrupi gave evidence that ISTH teaches plan ahead and they would do so by collaborating with the classroom teacher for the student. She gave an example, that the ISTH might plan some pre-teaching for a student or one-on-one with the student to ensure that they are able to participate in the curriculum. She described the relationship between the Itinerant teacher and the classroom teacher as working as a team and that the itinerant teacher would or should know what is going on week to week in the classroom. She gave clear evidence that an itinerant teacher would be planning ahead of class. 6. Ms Cutrupi stated that the 1998 ISTH Model is a guideline for the role, that the "information booklet" developed was not one that she had seen before but that it looked to be a good resource and there was nothing "illegal" about it. Ms Cutrupi gave evidence that the programming that an Itinerant teacher would give is aligned to the classroom teacher and the curriculum and could include a range of matters including language, vocabulary, concept and resources required by way of example. She gave clear evidence that programming is required for all teachers under the professional standards. Ms Cutrupi stated that the teacher needs to know what they are going to do, for example, so they knew what resource they may bring to the class on a particular day. 7. Ms Nay answered the questions as they were asked and came across as a truthful witness. She was asked directly under cross-examination if the steps that she had taken with respect to the applicant's performance and conduct were done because of her complaint about the Department's interpretation of the travel arrangements. Ms Nay remained firm that the reason for the issues being raised, including concern that the applicant may be breaching the Code of Conduct and the performance issues, did not relate to her raising the issues she had with respect to the travel arrangements. 8. Mr Wright-Smith, the decision-maker, was also clear and consistent in the evidence he gave before the Commission. He gave evidence without hesitation even where it may have been perceived as not assisting the respondent's case. Mr Wright-Smith gave evidence under cross examination that he was acting in the role of Executive Director for only 7 days when he made the decision to terminate the applicant's employment. He conceded that the disrespectful comments of the applicant were at the lower end of the scale in their terms, although he clarified that what made the conduct more significant was that it occurred in circumstances where the applicant had been warned about the need to be respectful in her communications. He gave evidence that: 1. he did not give consideration to the Performance Development program when forming his decision. 2. the principal doesn't have power to implement a TIP if not in accordance with the relevant guidelines, although a slip in the process would not mean that the delegation is invalid; 3. managers should be able to tolerate criticism but this is in the context of employees needing to behave in a manner that is respectful and courteous. 1. Although unwilling to attribute a percentage to the different types of conduct in terms of the extent to which they informed his decision, he gave evidence that the most serious of the allegations was the failure of the applicant to participate in the TIP process and that if the TIP was not lawfully implemented, the decision to dismiss the application would not have been made by him. Legislation and legal principles relating to unfair dismissal application 1. Under s 84 of the Act, if an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission to have the claim be dealt with. 2. Section 88 of the Act provides the following: "88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account— (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 1. It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration and these words are to be given their ordinary meaning: Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [21]; Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000. 2. In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at p 183, the Full Bench observed: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made." 1. To be entitled to any remedy under the Act the onus is on the applicant to prove that her dismissal was harsh, unreasonable, or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 2. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Tredinnick v Commissioner of Police [2016] NSWIRComm 14; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at p 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at pp 83-84. 3. The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the respondent to make out its case "in a convincing way": NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29]. Consideration 1. The reasons for the dismissal were articulated in the Termination Letter issued to the applicant and are set out above at [4]. As already stated, the applicant has the onus to prove the misconduct occurred. 2. The applicant's submissions did not address in any detail the allegations of misconduct contained in respect of the first and third allegations, other than to reference the concession of Mr Wright-Smith that absent the conduct alleged in respect of the failure to comply with the TIP, these alone would not have been a sufficient basis upon which to dismiss the applicant. For ease of reference, allegation 1 and 3 were: 1. In 2019 and 2020, the applicant repeatedly breached her Principal's written direction dated 16 September 2019 to: "Comply with lawful directions and reasonable instructions given by a supervisor" and to "Work collaboratively with supervisors and other colleagues, even if you disagree with them" and to "treat colleagues with respect"; and 2. The applicant failed to comply with a lawful and reasonable direction of the Principal given on 14 February 2020 to adhere to professional and respectful correspondence. 1. I find on the evidence before the Commission, allegations one and three have a basis in fact and constituted misconduct. In respect of allegation one, the allegation is established with respect to the applicant's failure to attend the scheduled meetings with her supervisors on 29 October, 12 November and 19 November 2019. 2. In respect of allegation three, there was a significant amount of evidence that supports the conclusion that the applicant did to comply with the lawful and reasonable direction to adhere to professional and respectful correspondence as set out in the background to this decision. The applicant's use of emails in this matter was particularly concerning. These were often unnecessarily lengthy, argumentative, sent at unsociable times, contained sarcastic remarks, threats and allegations, and derogatory content about her work colleagues. The applicant's approach to addressing her issues and concerns continued along the same lines, even after she was directed to cease this behaviour. The applicant also persistently and inappropriately challenged the instructions of her supervisors and at times chose not to follow them. Given the applicant's lack of contrition or remorse in these proceedings, even if I decided the dismissal was unfair, it would be impracticable to return her to a position as a teacher because of the work, health, and safety risk she poses to others in the workplace by her conduct. 3. The applicant's submissions focused on five reasons why her termination was unfair. These include arguments relevant to allegation two relating to the applicant's failure to participate in the TIP process. I will consider the applicant's argument in turn. Was the direction to engage in a TIP under s 93H of the TS Act a lawful direction? 1. The applicant's submissions in respect of this ground come down to three propositions, namely that: 1. in effecting the termination of the applicant's employment, the respondent manifestly failed to comply with its own policies in relation to performance management and procedural fairness; 2. in failing to comply with those procedures, Ms Nay acted outside of her delegation and the direction to participate in the TIP was therefore unlawful; and/or 3. also in failing to comply with those procedures, the respondent terminated the applicant in circumstances where it was unreasonable to do so. 1. I have first considered the applicant's argument that the directions given pursuant to s 93H of the TS Act were unlawful. 2. The applicant argued that there were inadequacies in the respondent's application of the PD Framework Policy, leaving the applicant without a reasonable opportunity to improve her performance, prior to the decision being made to implement the TIP, "only a question of one and a half terms later": AS at [118]. The applicant argued that: 1. the annual review relied upon by Ms Nay in the implementation of the TIP was not conducted in accordance with the PD Framework Policy; 2. a TIP can only be introduced after the performance development process demonstrates unsatisfactory performance, which has not been shown to have occurred by the respondent, given the inadequacies of the application of the PD Framework Policy; 3. some of the issues raised with respect to the applicant were aged, noting the importance within the PD Framework Policy of employees who are not meeting the required standards having those issues addressed as soon as possible; and 4. Ms Nay did not take into account relevant matters, such as the concerns raised by the applicant with respect to Ms McLaurin, which she argued were never addressed. 1. The applicant submitted that if the TIP was unlawfully implemented, there was no requirement for her to attend the scheduled meetings and participate in the process and the other basis relied upon by the respondent were insufficient to warrant the termination of her employment. In this regard the applicant referred to the concessions made by Mr Wright-Smith in cross examination that absent the allegation that the applicant did not participate in the TIP the other conduct complaint of by the respondent did not warrant termination. 2. For an employee to be required to comply with a direction given by his or her employer, that direction must be both lawful and reasonable. In R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 (Darling Island Stevadoring & Ligherage) at pp 621-622, Dixon J said: "If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable." 1. Finn J in McManus v Scott-Charlton (1996) 70 FCR 16 at p 21 explained the significance of these limitations on directions in the following terms: "Questions of illegality and reasonableness apart, the alternate formulations of lawfulness proposed by Dixon J are that the command 'relates to the subject matter of the employment' or falls 'within the scope of the contract of service'. It is clear that these were intended to be synonymous in the limitation they expressed. The need for some such limitation is patent: employment does not entail the total subordination of an employee's autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees' Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42: 'A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker's singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.' There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case." 1. Reasonableness is "a question of fact having regard to all the circumstances": Darling Island Stevedoring & Lighterage at p 616 and pp 623- 624; NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [208] and [214]. Whether a particular direction is reasonable cannot be determined in a vacuum and requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship: Darling Island Stevedoring & Lighterage at p 622. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis: Mc Manus v Scott-Charlton (1996) 70 FCR 16 at p 30. 2. It is necessary to consider the legislative context within which the decision was made to implement the TIP, along with the relevant frameworks and policies that applied to the employment relationship. As a teacher, the applicant's employment was subject to the TS Act. 3. Section 5A of the TS Act is entitled "Protection of children to be paramount consideration" and is in the following terms: (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. Part 4A of the TS Act provides for the "Management of Conduct and Performance". 2. The Object of Part 4A are provided for by s 93A as follows: 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 93D provides for the "Issuing of Procedural Guidelines." Pursuant to s 93D, the respondent issued "The Guidelines for the Management of Conduct and Performance" ("Guidelines"). 2. Division 3 of Part 4A is entitled "Performance management for officers." Relevantly, it provides: 93G Performance reviews for officers (1) An officer's performance must be reviewed, at least annually, by the Secretary. (2) The Secretary may review the performance of an officer on such other occasions as the Secretary considers appropriate. (3) The review of an officer's performance is to have regard to any performance criteria determined by the Secretary and such other matters as the Secretary considers relevant. 93H Performance improvement programs (1) If, following completion of the review of an officer's performance, the Secretary is of the opinion that the officer is not performing his or her duties in a satisfactory manner, the Secretary may implement a performance improvement program for the officer. (2) The officer must participate in any such performance improvement program in the manner required by the program. (3) A performance improvement program is to be on such terms, and is to be implemented for such period, as the Secretary considers appropriate. ….. 93J Dealing with unsatisfactory performance—officers other than school principals … (4) However, the Secretary may take disciplinary action with respect to an officer under this section only if: (a) the officer has been placed on a performance improvement plan in accordance with the procedural guidelines and been given a reasonable opportunity to improve his or her performance, and (b) the Secretary is of the opinion that the officer's performance is still unsatisfactory. 1. The direction given by Ms Nay for the applicant to participate in a TIP was made pursuant to s 93H of the TS Act. 2. The powers of the Secretary under ss 93G and 93H of the TS Act were exercised by Ms Nay pursuant to delegations given by the Secretary pursuant to s 8 of the TS Act: Ex R2 at TSD 5.5 at p 23. The relevant delegations, effective from 1 April 2019 were in evidence in a document titled "Delegations of Authority under the Teaching Service Act 1980" ("Delegations Document"). The Delegations Document stipulates that: "Pursuant to section 8 of the Teaching Service Act 1980, I Mark Scott, Secretary of the Department of Education, hereby delegate the powers and functions set out in column 2 of the respective delegates set out in column 3 of the following delegations." 1. Directly underneath this statement, the Delegations Document includes "Instructions to delegates" providing that: "… 3. The functions and powers that may be exercised by a delegate are subject to any conditions specified in column 2 and column 3 of that delegation Instrument. Where a delegation instrument does not provide conditions or limitation on the function and powers that may be exercised by a delegate, the delegate may exercise all of the functions and powers described in the delegation Instrument. 4. Delegates are required to read and consider any notes contained in an Instrument of delegation prior to exercising the functions and powers therein." 1. Delegation TSD 5.2 titled "Management of Conduct and Performance – Performance Reviews", Column 2, states: "To exercise all powers under Part 4A Division 3 Section 93G with regard to performance reviews. Links and notes: This delegation is to be exercised in accordance with the Guidelines for the Management of Conduct and performance." 1. Similarly, delegation TSD5.3, titled "Management of Conduct and Performance – Performance Improvement Programs", Column 2 states: "To exercise all powers under Part 4A Division 3 Section 93H with regard to performance improvement programs. Links and notes: This delegation is to be exercised in accordance with the Guidelines for the Management of Conduct and performance." 1. The applicant argues that the words "the review" in s 93H are a reference to the type of review contemplated by s 93G. However, she submitted that the two types of review contemplated by the sub-sections of s 93G are not expressed as alternatives arguing that subs 93G (1) provides that an annual review is required, while subs 93G (2) provides that the Secretary (or delegate) may review the performance of the officer at "such other occasions" as considered appropriate. 2. The applicant advanced her case on the basis that the plain meaning of s 93G, is that the annual review is mandatory, and the "other" review is permitted. Extrapolating from this, the applicant argued that "the clear reference to "the review" in section 93H is a reference to "the review" in section 93G", and therefore a direction for a teacher to participate in a TIP must follow "at least" the mandatory annual review finding of unsatisfactory performance. 3. The applicant also submitted that the mandatory annual review referred to subs 93G (1) must be done in accordance with the respondent's PD Framework Policy. 4. The applicant also argued that the absence of separate and different "procedural requirements" from section 93H, does not mean these do not exist, the exercise of this statutory power is somehow "unfettered", not subject to the terms of the delegation, or the other broader principles of administrative law. In this regard, the applicant submitted that the words "the review" as they appear in the TS Act should be interpreted in the context of the whole of the statute, its statutory purpose, and surrounding circumstances and urged the Commission to consider power conferred by the legislation to implement a TIP is a matter of discretion that must be exercised with attention to the scope and purpose of the provision, and its real object. She contended that in adopting this approach, the Commission will conclude that the reference to "the review" in section 93H, is not "any review" that the delegate considered appropriate, but rather the provided for by the PD Framework Policy, this being supported by the explicit reference to the Guidelines contained in the delegation, which she argued limited the scope of Ms Nay's powers and functions. 5. Central to this contention was the applicant's submission that the various policies of the respondent have explicit relationships and are interrelated with the Guidelines, including the "Teacher Improvement Program: Implementation Document for the Management of conduct and performance policy" ("TIP Implementation Policy") and the PD Framework Policy. 6. The respondent submitted, that while it has the onus to establish the applicant engaged in misconduct to the requisite standard enunciated in Briginshaw, it is for the applicant to prove that Ms Nay did not exercise the power given the presumption of regularity provided for in subs 49(5) of the Interpretation Act 1987 (NSW) and the relevant authorities: Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7; New South Wales Nurses' Association v Sydney Local Health District [2013] NSWIRComm 28: RS at [27]-[28]. 7. The respondent argued that the word "review" in subs 93H(1), is a clear reference to a review of the kind stipulated in the preceding section, s 93G; and such a reference may be to a mandatory annual review (subs 93G (1)) or any review conducted "on such other occasions as the Secretary considers appropriate". The respondent submitted that as s 93G does not refer to the PD Framework Policy or the Guidelines, there is no requirement to comply with these: RS at [24]. 8. The respondent also argued that the applicant was seeking to imply the various policies of the respondent into the statute which is simply not required to make them operate effectively and the references to the PD Framework Policy within the Guidelines and the TIP Implementation Policy did not support the implication into s 93H that compliance with the PD Framework Policy is a legal prerequisite to the implementation of a TIP: see for example, Thompson v Goold & Co [1910] AC 409 at p 420; Jones v Wrotham Park Settled Estates [1980] AC 74; Taylor v Owners-Strata Plan No 11564 (2014) 253 CLR 531. 9. Although the respondent submitted that compliance with the PD Framework Policy is not a legal prerequisite to the implementation of a TIP in accordance withs subs 93H(1), it was put that "at best, compliance with the PD Framework Policy is a matter to which the Commission may have regard in determining whether the ultimate dismissal for failure to comply with the TIP was harsh, unreasonable, or unjust." 10. I observe that the Commission in now determining whether Ms Nay's direction to the applicant to participate in the TIP was "unlawful" as argued by the applicant. This is a separate question to whether the respondent's policies were complied with and whether this had an impact upon the fairness of the termination of the applicant's employment. In determining this question, the Commission is not being asked to undertake an administrative review of Ms Nay's decision to determine whether the discretion exercised by her was wrong. 11. The Commission is being asked to embark upon a process of statutory construction. I have had due regard to the principles of statutory interpretation as set out in the authorities including Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378. These principles were recently summarised by the Full Bench of the Commission in Williams v Secretary, Department of Education [2022] NSWIRComm 1007 at [33]-[37] and I have found it unnecessary to set them out again here. 12. Putting aside the issue of whether the Secretary was able to delegate the relevant powers and functions on a conditional basis, in my view, it is clear on the terms of the Delegation Document that in respect of the powers and functions provided for in ss 93G and 93H, the delegations made by the Secretary is unfettered. Through the "Instructions to delegates", the Secretary requires the delegate to "read and consider" any notes. Although the notes provide that the delegation be exercised, "in accordance with the Guidelines…", had it been intended that the exercise of the functions and powers by delegates be subject to following that direction, it would not have been included under the heading "Links and notes" in the Delegation Document. 13. The only pre-requisites stipulated in s 93H for the implementation of a TIP is a "review" of the officer's performance and an opinion formed (by the delegate of the Secretary) that the officer is not performing his or her duties in a satisfactory manner. Although the word "review" is not defined in the TS Act, the use of the definitive article "the" in subs 93H(1), is a clear reference to a review of the kind stipulated in the preceding section, s 93G. This is consistent with the principles of statutory interpretation which provide words of a statute should be considered in context. 14. Subsection 93G(1) specifically provides that a review must occur at least annually. In addition subs 93G(2) states that this may occur on "such other occasions as the Secretary considers appropriate". In my view, the cumulative effect of subss 93(1) and (2) is that the Secretary (or her delegate) can review the performance of a teacher as many times as he or she "considers appropriate", but no less than once per year. Further, the Secretary (or delegate) in reviewing the performance of the teacher is able "to have regard to any performance criteria determined by the Secretary" and "such other matters as the Secretary considers relevant." 15. The term "review" in s 93G is not defined and there is no reference to it being connected to any policy of the respondent. The Online Oxford Dictionary defines "review" relevantly within the context of interpreting the statute, to "look back upon; view retrospectively." There is no need for the Commission to read into the provision that the "review" must be conducted in accordance with a particular policy for it to operate effectively and consistent with the purpose of the statute. Indeed, s 93G gives a broad discretion to the Secretary (or delegate) to determine the performance criteria to apply in conducting the review. 16. There is also no reason to read into subs 93H (1) that the reference "the review" is only a reference to a particular "annual review". This would have the effect of delaying the opportunity for the Secretary (or delegate) to implement a TIP, even where they had formed the opinion (through a review) that the officer is not performing his or her duties in a satisfactory manner. This restrictive reading would be contrary to the intention of the TS Act and Part 4A which includes "to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service" and "to protect and enhance the integrity and reputation of the Teaching Service". 17. There is no reference to, or requirement to comply with the Guidelines or the PD Framework in s 93H. There is a reference to "procedural guidelines" in subs 93J (4) of the TS Act, however, this relates to disciplinary action taken following the completion of a TIP. The applicant was not terminated pursuant to s 93J following the completion of a TIP. Her employment was terminated for reasons including her failure to comply with lawful and reasonable directions, including directions to participate in a TIP. 18. For these reasons, I am not persuaded by the applicant's arguments that the direction to engage in a TIP under s 93H was given unlawfully. I also reject the applicants "alternative submission" that the decision was "unreasonable and therefore ultra vires". Even if this was a basis upon which the Commission could find the direction to be unlawful, the evidence of the applicant's conduct and performance supports the conclusion that it was not unreasonable to introduce the TIP. Accordingly, I reject the applicant's argument that the dismissal was unjust on that basis. The dismissal was unreasonable, because of the respondent's failure to follow its own policies in relation to performance management and procedural fairness? 1. For the reasons set out above the directions given by Ms Nay pursuant to s 93H were lawful. The submissions that the dismissal was unreasonable because of the respondent's failure to comply with its policies, guidelines and procedures requires further consideration. 2. The applicant's submissions identify the following policies, guidelines, and procedures as relevant to this argument: 1. PD Framework Policy; 2. The Guidelines; 3. The TIP Implementation Policy; and 4. The Staff Complaint Procedure. 1. The applicant submitted at [178]-[183] of AS (footnotes omitted): "The dismissal was unreasonable, because of the Respondent's manifest failure to follow its own policies in relation to performance management and procedural fairness. Where an employer has laid down procedures by administrative action, failure to apply or properly apply those procedures may in and of itself support a finding that the dismissal was harsh, unreasonable or unjust. Thus, any procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under section 84. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. The Applicant was entitled to rely upon the Guidelines, the PDP Framework Policy, the TIP Implementation Policy, the Complaints Procedure, as well as regulation 5 of the TS Regs being followed properly in the way her employment and performance management was determined by her supervisors and senior officers. Each of the Respondent's witnesses acknowledged that rights and obligations under the Respondent's policies were reciprocal in nature, and that employees should be able to rely upon the policies being followed. The Applicant submits that had the flaws in the policies set out in paragraphs 108 to 127 above not been present, then she would not have ultimately been placed onto a TIP, and eventually dismissed." 1. The applicant argued that the respondent failed to follow the PD Framework Policy with respect to the applicant in relation to the planning phase of the PD Plan, the Observations of the applicant's teaching practice, and the provision of Feedback. 2. The applicant had completed a draft Plan early in Term 1 and had followed up on the finalisation of this proposed plan on several occasions with Ms McLaurin. The PD Plan was finalised in the 11 September 2019 meeting that was, as Ms Nay conceded, disciplinary in nature: see [29] above. The contemporaneous notes from the meeting, signed by the applicant, demonstrate that specific issues were raised with respect to the applicant's conduct and performance during the meeting with reference to examples. 3. Among the applicant's complaints about the meeting of 11 September 2019, was that the examples provided were "historical", relating to June and July 2019 and in one case 2018. In my view, these examples could not be considered historical in nature, and it was entirely appropriate that they were raised with the applicant to assist her in understanding the respondent's concerns about her performance and provide context to the development needs identified by Ms Nay. There is no evidence to suggest that Ms Nay did not act promptly upon receiving information that caused concern with respect to the applicant's performance and conduct. 4. The notes of the meetings, signed by the applicant and her support person, document that the applicant was informed that support would be provided to her moving forward including (CB at p 836): 1. Weekly meetings with her supervisor, 2. Fortnightly observations, 3. Professional learning opportunities, 4. Observation of teachers of appropriate grades at particular schools with reflections to be completed and discussed with her supervisor; and 5. Team meeting monthly via Skype and in person once a term. 1. The minutes also set out that when asked what other supports she felt she may require to which she responded, "No – I don't know." 2. These are precisely the types of matters that should be raised in the context of a planning meeting within the performance development cycle. Further, there is no unfairness in the respondent amending the draft PD Plan submitted by the applicant to address the issues of concern observed by her supervisors, and documenting the supports designed to assist the applicant in addressing those issues. The inclusions of the respondent were reasonable, requiring the applicant to amend her proposed PD Plan to include goals to: 1. Develop and implement quality teaching and learning programs to meet the needs of students. 2. Develop and implement teaching strategies that are responsive to learning strengths and needs of student to meet physical, communication and social development of students. 3. Develop and implement programs using knowledge of curriculum to support the teachers and students on caseload. 1. The fact that the applicant would not accept these proposed changes to her goals in the meeting is telling of her incapacity to engage with her managers constructively about her development needs and performance. The goals represent fundamental competencies for any teacher and should not have been controversial. 2. I agree with the applicant that ideally the PD Planning process would have been completed earlier in 2019. However, it is important to observe that the PD Plan and the PD Framework Policy is a means to an end, not an end within themselves. Objectively, the steps Ms Nay took to recraft the goals in the PD Plan and the meeting on 11 September 2019 had the effect of providing clarity to the applicant with respect to her expectations and gave her an opportunity to gain support to meet those. Rather than creating procedural unfairness, the process adopted by the respondent provided the applicant with optimal opportunity to understand her development needs and have an open conversation about the support she needed to address these. However, the evidence demonstrates that the applicant would not accept the constructive feedback being given to her and co-operatively engage in and through the PD Framework Policy to relieve the respondent of their concerns. 3. The applicant also submitted that the process by which her teaching practice was observed both prior to the implementation of the PD Plan in August 2019 and afterwards, were inconsistent with the PD Framework Policy: see AS at [111]- [113]. 4. The applicant was observed seven times from August to December 2019. The applicant submitted this was "manifestly in excess" of the minimum of two per year provided for by the PD Framework Policy and did not correlate with what could be expected with over 30 years' experience. She complained that she was not given an opportunity to negotiate who would perform the observations or when they would take place; the observations were not collegial or supportive; were conducted by a person (Ms McLaurin) about who she had raised concerns with Ms Nay; and that there was no evidence that she received feedback in relation to the observations or that the observations were documented. 5. In respect of observations, the PD Framework Policy relevantly provides: The direct observation of classroom practice is an important component of the process, and is an essential element of the Australian Teacher Performance and Development Framework. The observation should be negotiated, linked to the teacher's goals and the appropriate Standards, and undertaken in a collegial and supportive manner. Observation processes are to be negotiated in a collegial, mutually agreeable manner, undertaken by an agreed colleague and documented. The level of experience of the teacher will inform the number of observations of teaching practice. There needs to be a minimum of two documented observations per year. In the context of a supportive culture, additional peer observations can be a valuable part of a quality professional learning plan. 1. In response to the issues raised about the observations the respondent submitted (at [53] of RS): 1. neither the PD Framework Policy nor the Guidelines limit the number of observations that may take place; 2. observations were conducted by Ms McLaurin on 21 and 22 August 2019, prior to the meeting of 11 September 2019, and it may readily be inferred, those observations were conducted so that Ms McLaurin could make an informed contribution to the planning and finalisation of the applicant's PD Plan. Further, as Ms Nay gave evidence that observations may occur in respect of the ISTH's students, so that the specific needs of the case-load children could be observed and one or more were observations of Ms McLaurin were for that purpose, as well as to observe the applicant; 3. as Ms Nay explained, in cross examination, the observations after the 11 September 2019 meeting were not observations conducted under the PD process, but as part of the "supervisory process" or "TAA process" - that is, because concerns had been raised as to whether the applicant was meeting the Teaching Standards and supports were necessary, consistent with Part 8 of the Guidelines; 4. in any event the evidence clearly establishes that the applicant was given an opportunity to negotiate when the observations occurred and that save for objecting to Ms McLaurin conducting the observations, for reasons that are not clear or justifiable, she suggested no other suitable alternative; and 5. the evidence also clearly establishes that the applicant was given feedback in respect of the observations. 1. The respondent referred also to the penultimate page of the PD Framework Policy, where it is stated: "Where a teacher's efficiency is causing concern, the relevant Departmental procedures should be implemented as soon as possible to ensure the provision of ongoing quality teaching to students. Implementation of teacher efficiency procedures should be managed separately from implementation of performance and development processes and action should not be postponed until the end of a performance and development cycle. The following procedures should be used where a principal, manager or supervisor identifies that a teacher is experiencing difficulty with his or her performance." 1. The respondent submitted that this statement in the PD Framework Policy is consistent with Part 8 of the Guidelines, in particular that: "It is important that employees who are not meeting the required standards have those issued addressed as soon as performance difficulties are identified." 1. The applicant submits that if the observations of her were to be characterised as 'TAA observations' (that is, observations required due to concerns being raised as to her proficiency as measured against the Teaching Standards), then she did not undergo the minimum number of PD Plan observations required by the framework (two per year). The respondent countered that there was no requirement to conduct two "PDP observations" before implementing a teacher efficiency procedure; and whether the observations were part of the PD Plan process or the "TAA process", they complied with the PD Framework Policy. 2. I agree with the applicant that the observations were not conducted in accordance with the PD Framework Policy, for reasons including that the person observing was not negotiated. While I accept the respondent had raised concerns with respect to the applicant's employment at least from the meeting of 11 September 2019, from the notes of that meeting, the fortnightly observations were in place as a "support" to the applicant to meet the goals of the PD Plan. If, as was contended by Ms Nay, they were actually in place as a part of the "TAA process" or for Ms McLaurin to understand the needs of the relevant children, it would have been appropriate that this was made clear to the applicant. 3. I accept the evidence of the applicant that the observations made her feel "on edge" and she did not feel supported by them. However, given the concerns raised about the applicant's performance and conduct, and her resistance to accepting feedback about those matters, beyond the requirements of the PD Framework Policy, Ms Nay and the respondent were duty bound to put in place measures to enable the monitoring of the applicant's teaching performance in the interests of the children she was teaching. It is difficult to understand how that end would have been achieved had the PD Framework Policy in respect of observations been adhered to and the applicant was able to negotiate someone other than her manager to undertake the observations. 4. The applicant also submitted the respondent failed to address her complaints, contrary to the Staff Complaints Procedure. The applicant made various accusations and complaints about her manager, Ms McLaurin and Ms Nay, including of bullying and other unfair treatment. However, those concerns were not formalised or stated to be made pursuant to the Complaints Procedure. Moreover, the basis of the applicant's complaints was not clearly particularised. The tone and manner by which the applicant made the complaints was not courteous or respectful. Despite the significant volume of material fielded by the applicant in the proceedings, there remains no clear articulation of the conduct that she alleges constituted inappropriate conduct on the part of Ms McLaurin and or Ms Nay. 5. However, the applicant had escalated her concerns to Mr Cavanagh, meeting with him on 6 February 2020 and addressing her complaints in his letter of 10 February 2022 as set out above at [61]-[66]. Mr Cavanagh responded to the applicant's concerns in accordance with the Staff Complaints Procedure and provided express instruction on how the applicant was able to seek a further review of his decisions and recommendations. Although the applicant expressed her disagreement with Mr Cavanagh's decisions, there is no evidence to suggest that she was seeking a review in accordance with the Staff Complaints Procedure. 6. Related to the applicant's argument that the respondent did not comply with the Staff Complaints Procedure was the position she advanced that the respondent had not complied with Regulation 5 of the Teaching Service Regulation 2017 ("TS Regulation") which is in the following terms: 5 Compliance with directions and review (1) A member of the Teaching Service must immediately comply with any lawful direction given by a person who has authority under the Act or this Regulation to give the direction. (2) A request for the review of a direction may be made by or on behalf of one or more members of the Teaching Service by means of a notice in writing given to the person who gave the direction. (3) The person to whom the notice is given must immediately send it to the Secretary or to an officer authorised by the Secretary in writing for the purposes of this clause. (4) The making of a request for the review of a direction does not relieve a member of the Teaching Service of the member's obligation to comply with the direction as far as is reasonably practicable. 1. The applicant argued that the respondent was obliged to action complaints from the applicant which she sought to characterise as a request for a review of the direction from Ms Nay pursuant to Reg 5(2) of the TS Regulation on 29 January 2020 and 30 January 2020: see [52]-[57]. This submission was without substance. Even if the correspondence referred to could be characterised as a request for review of a decision pursuant to Reg 5, the applicant was not entitled to refuse to comply with the direction as Reg 5(4) of the TS Regulation makes clear. In any event the applicant's complaints and concerns were considered by Mr Cavanagh and addressed in his correspondence of 10 February 2020. 2. I am also unable to agree with the applicant that she was given insufficient feedback prior to the implementation of the TIP. The evidence demonstrates feedback was provided to the applicant on 11 September 2019 and thereafter on 18 September 2019 (following an observation by Ms McLaurin), on 25 September 2019 and 22 October 2019 (following observation by Ms McLaurin and at meeting with Ms McLaurin and Ms Crompton). It is also important to observe that the applicant did not attend a meeting on 29 October 2019 with Ms McLaurin where additional feedback could have been provided. 3. A failure on the part of an employer to follow its own policies and procedures can lead to a conclusion that the process resulting in a dismissal was unfair. Prima facie, it is reasonable to expect that both parties to the employment relationship will follow the policies and procedures that are in place. While these matters may be relevant to the determination of an application for unfair dismissal, a breach of policy will not necessarily be determinative. In determining the unfair dismissal application, the provisions of the legislation and in particular Part 6 of the Act sets the basis upon which the matter is to be decided. Ultimately the question to be addressed is whether the dismissal was harsh, unreasonable, or unjust. The policy and procedures the applicant complained have been breached are administrative guides to the application of the legislation, including the TS Act. Moreover, these documents themselves do not demonstrate a clear intention by their terms that they be followed slavishly or that they are not subservient the broader legislative obligations of the respondent, including those provided for in s 5A, and s 6 of the TS Act which provides that the Secretary is responsible to the Minister for the general conduct and the efficient, effective, and economical management of the functions and activities of the Teaching Service. 4. The respondent referred the Commission to the decision of Commissioner Murphy in Davis v Secretary, NSW Department of Education [2017] NSWIRComm 1003 (Davis), where the Commissioner considered an appeal from a decision of the respondent to direct the appellant to resign on the basis that her performance remained unsatisfactory following the completion of a TIP. At [80] of Davis, the Commissioner stated: "The Guidelines are no more than they purport to be, that is a guide to assist the Department and its teachers in dealing with cases of unsatisfactory performance. The Guidelines require a cooperative approach. from all parties to ensure a successful outcome. The approach contended for on behalf of the appellant, which pedantically nit-picks over every word and phrase in the document, runs entirely contrary to the underlying purpose of the Guidelines, which is to assist underperforming teachers to improve their teaching. The Guidelines are not a straightjacket on the Department. In order to be effective, the Guidelines need to be applied with a level of cooperation between the parties and a degree flexibility and common sense, not in the rigid, formulaic manner as has been proposed on behalf of the appellant in this matter. " 1. I agree with those remarks and note that those observations apply equally to the policy, procedures and guidelines referred to by the applicant in this matter. Further, I agree with the comments made by Commissioner Murphy in the matter rejecting the argument that the Guidelines should be interpreted in such a way that an employee could avoid the consequences of failing to improve their performance under a TIP by frustrating the processes it provides for. As stated by Commission Murphy at [75] in Davis: "The proposition put on behalf of the appellant appears to be that an underperforming teacher can avoid being placed on a TIP by frustrating the preliminary steps set out in Guidelines, such as those provisions set out at paragraph 73 above, by resisting any attempt by the Principal to provide the teacher with the development plans. The evidence of Mr Belleville was that this is effectively what happened with the appellant in this case. Then, the follow-on proposition is that, as the Guidelines have not been complied with, it would be unlawful to place the teacher on a TIP. Thus, a recalcitrant underperforming teacher could avoid being placed on a TIP by simply frustrating the preliminary steps that should be taken under the Guidelines in that teacher's own professional interests. If that is the contention put on behalf of the appellant, and I apprehend that it is, then I reject it." 1. Commissioner Murphy's remarks are, as the respondent submitted, equally apposite to this case. Ultimately, the Commission is required to consider whether the process adopted by the respondent was fair and reasonable. 2. The applicant was given many opportunities to understand and engage constructively with the feedback she had received from both Ms McLaurin and Ms Nay with respect to their concerns relating to her performance and conduct before consideration was given to placing her on a TIP. A consistent theme in her submissions was that the way in which those matters were raised with her were not collaborative and supportive. However, it is difficult to see how Ms Nay or Ms McLaurin could be more supportive and collaborative faced with the applicant's refusal to accept feedback and follow reasonable instructions. Put simply, the applicant made it impossible for the process to be collaborative yet complained that it was not. In this regard I note and accept the evidence of Mr Nay (Ex R4 at [130]-[132]): "Since October 2018, I have spent a considerable amount of time in managing Ms Brown's performance and conduct. Commonly, I would spend hours doing so each week. Ms Brown is one of only two teachers I have put on a TIP (and that other teacher's temporary contract was ceased). Ms Brown is the most difficult person I have had to manage in my career." 1. Although there were aspects of the processes in seeking to address the conduct and performance concerns relating to the applicant by the respondent may have been improved, overall, I have concluded that they were fair and reasonable and implemented in trying circumstances created by the applicant's own lack of cooperation and poor conduct. Importantly, the applicant was given a fair opportunity to understand those concerns and address them, albeit she chose not to accept that feedback. Accordingly, I do not accept the applicant's submission that the dismissal was unreasonable because of the applicant's failure to follow its own policies, procedures or guidelines or the TS Regulation. Was the dismissal unjust, because the 'real' reasons for the disciplinary action against the applicant which directly led to her dismissal, were arbitrary and unfair? 1. As an "alternative submission" the applicant alleged that "the dismissal was unjust, because the disciplinary and performance management activity engaged in by Ms Nay, which led directly to the Applicant's dismissal, was entered into without any proper basis, and with unlawful and unfair motivations. These processes were a direct response to the Applicant validly exercising workplace rights, including complaints about her travel arrangements, working hours and her relationship with her supervisor": see AS at [170]-[177]. 2. In support of this submission the applicant argues that classroom performance concerns were not raised until 9 September 2019, "which appears to be in direct response to the escalation of concerns from 4 August 2019 onwards". The applicant also alleges that despite evidence that Ms Nay and Ms McLaurin raised concerns about the applicant's classroom performance, there is a "complete absence of any evidence before the Commission of any unsatisfactory performance". 3. I accept the evidence of Ms Nay that the reasons she took the steps she did was because of her concern about the applicant's conduct and performance. There was an abundance of evidence to support that Ms Nay's concerns were well founded, including in respect of the applicant's performance. This included the applicant's email correspondence, much of which could not be described as respectful and courteous, her failure and refusal to create lesson plans for her students and follow directions from her supervisors. 4. As submitted by the respondent, it may well have been that the way the applicant chose to voice concerns she had about her timetable, travel claims and a perceived lack of consultation, caused Ms Nay to become "more acquainted" with the applicant, the evidence demonstrates that she acted upon information provided to her that the applicant's performance was lacking. In my view, having been appraised on those concerns, Ms Nay was required and did take steps to address the issues by implementing supervisory and development discussions and supports. 5. Although the applicant perceived these interventions as "supervisory harassment" (see AS at [177]) the evidence shows that Ms Nay undertook a respectful and reasonable process to try to engage the applicant to correct her performance and understand and address her various concerns. 6. For these reasons, I reject the applicant's submission that the applicant's employment was ultimately terminated for reasons other than those that were provided and as set out above at [4]. Was the dismissal unreasonable, because the decision maker failed to consider a number of considerations that were relevant to the decision? 1. The applicant submitted that the decision-maker Mr Wright-Smith did not consider all matters that were relevant to the decision including ([194] of AS): 1. He did not consider whether or not the PDP Framework Policy had been followed; 2. That the meetings that the applicant was alleged not to have attended were not considered as being part of the PDP Framework; 3. No direct consideration was given to the complaint that the applicant had made in the early stages of the process; 4. No direct consideration was given to whether or not the Guideline was followed prior to the implementation of the TIP; 5. He did not consider the 'background' to the directions for the applicant to follow the Code of Conduct, or consider why those directions had been given; 6. He did not consider whether or not the applicant was being bullied or harassed (despite the allegation) and was not aware whether this allegation had been considered by anyone else, other than to say it had not been referred back to EPAC. 1. It is important to note that the Commission is not engaged in a process of administrative review of the decision of Mr Wright-Smith, but a determination of whether the dismissal was unfair based on the facts and circumstances of the case presented to the Commission. However, the applicant did not explain in her submissions how, if the applicant established that Mr Wright-Smith was bound to consider the matters set out above and did not, the evidence would have improved the applicant's case and changed the decision of Mr Wright-Smith. 2. Put simply, the applicant was terminated for reasons including that she was put on a TIP for not complying with the Teaching Standards, she refused to accept that those Teaching Standards applied to her both before her dismissal and afterwards. Indeed, the applicant maintained that the requirements placed upon her were unreasonable and did not apply to her before the Commission. To the extent that Mr Wright-Smith was not aware of the various other matters raised by the applicant in these proceedings, I am of the view that this would not have changed his decision. 3. I reject the applicant's submission that if the personal difficulties the applicant was having with her immediate supervisors was " given greater attention and appreciation, it was possible that other forms of conciliation and facilitated conference, would have resulted in a situation where the Applicant could have far more easily participated in a manner that would have prevented her dismissal": See AS at [208]. This would have required the applicant to conduct herself in a respectful and courteous manner and engage reasonably in any such process. On balance, the evidence before this Commission does not support a conclusion that the applicant was willing and or capable of engaging in such a way, even had the approach she suggested been adopted. Was the decision to terminate the applicant's employment harsh? 1. The applicant submitted that the dismissal (and the way in which it was carried out) was harsh, and disproportionate to the alleged conduct, when consideration is given to her personal circumstances: see [200]-[209] of AS. 2. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at 156 McColl JA observed that: "... in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances" ... including length of prior employment, the employment record and favourable character considerations'." 1. The applicant is a long serving employee of the respondent, and the dismissal has had a significant and detrimental impact on her. The applicant will likely find it difficult to find alternative employment given the specialised nature of her skills. Although the applicant has been able to access her superannuation entitlements, she had intended to continue working for some time. She may not be able to secure any further work, especially as she has been placed on the respondent's "Not to be re-employed list" and this will mean the dismissal has effectively sent her into an early retirement. I also note that the applicant attributed the dismissal to the break-down in her marriage. 2. The applicant also submitted that the manner of her dismissal is also relevant, referring to the initial decision to suspend her without pay (although a decision reversed just over a week later). I acknowledge the initial decision to suspend her may be viewed as heavy-handed and would have caused the applicant stress, although it must be noted she was offered alternative duties shortly thereafter. 3. The question is whether the applicant's mitigating personal circumstances, including her length of service and the effects the dismissal has had on her, and the manner of her dismissal, outweigh the nature and gravity of her misconduct, taking into account such matters as the remorse and contrition of the applicant and her level of insight into her conduct: see Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410; Bostik (Aust) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at p 20; Department of Health v Kaplan [2010] NSWIRComm 65; Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at p 233; Hamlin v City of Sydney Council [2021] NSWIRComm 1010. 4. In this matter, I am also required to consider that the paramount consideration is the protection of children: s 5A of the TS Act. In Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 at [22], Newall C observed: [23]... The degree of protection to be afforded to children is against anything less than competent teaching. It is to be remembered that the department and the school system only exist for children, not for any other reason, and that is fundamental matter. But there are a range of other matters that must also be considered in determining the future of a teacher and perhaps it might be said that is more so when one is considering a teacher who has given effectively a lifetime's service to the department. … [27] Let me make it quite clear, principals are not obliged to go out of their way to accommodate the resistant or truculent or inflexible teacher in relation to a TIP or professional assistance at large; that is not the case..." 1. The evidence in this case establishes that considerable efforts were made by Ms Nay to accommodate the applicant - to explain to her what was required of her as an ISTH teacher and to help her meet those requirements. The applicant was and remains resistant to the idea that her performance needed any improvement. She has also shown no remorse in respect of the tone and language used in her email correspondence and failure to turn up to meeting in accordance with reasonable and lawful directions. While the applicant is entitled to disagree with the practices and processes of the respondent, the employment relationship cannot be effectively sustained if she refuses to follow her managers instructions. 2. Although the dismissal of the applicant's employment was an unfortunate way for her to career to have ended, she was given every opportunity to divert the course of events which led to it. Unfortunately, she refused all support and placed the respondent in a situation where, consistent with its statutory obligation under s 5A of the TS Act, it had to dismiss her. In all the circumstances, the applicant's dismissal was not harsh. Conclusion 1. Ultimately, I have decided that the applicant's dismissal was not harsh, unreasonable, or unjust. The allegations of the respondent have a basis in fact and the nature of the applicant's sustained misconduct in refusing to follow reasonable and lawful instructions, combined with her lack of cooperation and disrespectful conduct is inconsistent with a functional employment relationship with the respondent. There is no proper basis to conclude that the applicant could work effectively with the respondent in the future. 2. I have had regard to the nature of the applicant's work and in particular the requirements of s 5A or the TS Act which provides that the paramount consideration is these proceedings is the protection of children. The respondent must be able to identify and provide feedback to its teachers and be able to assist and support them to improve their teaching practices if they identify deficiencies. This is fundamental to being able to satisfy the obligations of the respondent to protect children from poor teaching practices. While this is important in every context of the respondent's delivery of service, the need to be able to effectively performance manage teachers delivering services to children with complex needs is even more obvious. 3. Although in retrospect, there may have been aspects of the respondent's processes that could have been improved, I am satisfied the applicant was given a fair and reasonable opportunity to understand and address the respondent's concerns. The applicant was not denied procedural fairness in the process. The applicant's intransigence has led directly to her dismissal. 4. For these reasons, I dismiss the application. Orders 1. I make the following order: 1. The application in 2020/95112 is dismissed. Janine Webster COMMISSIONER ********** 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: 28 October 2022