Cross v Secretary of the Department of Education (No 3) [2024] NSWIRComm 1035

Industrial Relations Commission New South Wales Medium Neutral Citation: Cross v Secretary of the Department of Education (No 3) [2024] NSWIRComm 1035 Hearing dates: 17, 18, 19 and 20 July 2023, 30 and 31 October 2023, 1, 2 and 3 November 2023 and 26 February 2024. Last evidence and submissions received 28 May 2024 Date of orders: 14 June 2024 Decision date: 14 June 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – teacher dismissed after performance found to be unsatisfactory following an Executive Teacher Improvement Program – whether there was a proper basis to place teacher on Program – whether process impacted by bias or discrimination – whether dismissal otherwise unreasonable or unjust – whether dismissal harsh Legislation Cited: Anti-Discrimination Act 1977 ss 49B, 49D Industrial Relations Act 1996 ss 84, 88, 89 Teacher Accreditation Act 2004 s 42B Teaching Service Act 1980 ss 5A, 7, 8, 44, Pt 4A ss 93A, 93B, 93D, 93H, 93J Cases Cited: Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Craig v Silverbrook [2013] NSWSC 1687 Cross v Secretary of the Department of Education [2022] NSWIRComm 1096 Davidson v Commissioner of Police (No 3) (2022) 320 IR 150; [2022] NSWIRComm 1102 Evans v Braddock [2015] NSWSC 249 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 IMM v The Queen (2016) 257 CLR 300 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 MacKenzie v The Queen (1996) 190 CLR 348 NBM v The Queen [2021] SASCA 105 R v Dickson [1983] 1 VR 227 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Williams v Secretary of the Department of Education [2023] NSWIRComm 1032 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Texts Cited: None Category: Principal judgment Parties: Heather Cross (Applicant) Secretary of the Department of Education (Respondent) Representation: Counsel: K Edwards (Applicant) A Britt (Respondent) Solicitors: WMD Law (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2022/00183049 Publication restriction: 1. Pursuant to s 164A(1)(a) of the Industrial Relations Act 1996, each of the following is prohibited: a. the disclosure, sharing or publication of any information or material (including but not limited to a name, address or image) that identifies, or may lead to the identification of, a student of Bega Valley Public School or another School; b. the doing of any other thing that identifies, or may lead to the identification of, a student of the Bega Valley Public School or another School. 2. Pursuant to s 164A(1)(c) of the Industrial Relations Act 1996, access to the Commission file in the matter of Heather Cross v Secretary New South Wales Department of Education (file no. 2022/00183049) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access. 3. These orders remain in force for 30 years unless varied or revoked sooner.