Cross v Secretary of the Department of Education (No 3) [2024] NSWIRComm 1035
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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.
DECISION
1. Heather Cross was employed as an Assistant Principal at the Bega Valley Public School ("School"). Her employment was terminated on 1 July 2022 after her performance was found to be unsatisfactory following her completion of an Executive Teacher Improvement Program ("ETIP").
2. Ms Cross commenced proceedings against the Secretary of the Department of Education ("Secretary") pursuant to s 84 of the Industrial Relations Act 1996. She sought an order that she be re-employed in the Teaching Service (within the meaning of s 44 of the Teaching Service Act 1980) with back pay. The Secretary opposed the application.
Determination
1. I have determined to dismiss the application. My reasons follow.
Overview of the evidence before the Commission
The evidence adduced by the parties
1. Ms Cross read two affidavits that she had sworn, and also tendered into evidence a statement that she had made. The affidavits had exhibited to them a large volume of documents.
2. Ms Cross's written evidence in chief outlined her history in the Teaching Service and her role at the School. It exhaustively traversed events from 2019 until the termination of her employment. Her evidence in reply responded in detail to the Secretary's evidence. In her statement, Ms Cross deposed as to the attempts that she had made since the termination of her employment to secure alternative employment, and the earnings she had received as a consequence.
3. Ms Cross also read an affidavit of Gina Barnes, a former Assistant Principal at the School. Mrs Barnes gave evidence that she had been asked by Ms Cross to be her support person during the ETIP. Her affidavit traversed, amongst other things, her observations of the ETIP and surrounding events.
4. Ms Cross tendered into evidence a number of additional documents. These included documents which had been produced under summons by her treating practitioner, Dr Shauna Cheah.
5. The Secretary read affidavits of the following witnesses:
1. Carolyn Nugent, who was the Principal of the School from January 2015 until October 2020. Ms Nugent gave evidence that she had identified concerns with Ms Cross's performance in 2019 and described the steps that she took to address them throughout 2019 and 2020;
2. Melissa O'Meara, [1] Principal of the School from 12 October 2020 (the start of Term 4), first in a relief capacity and on a permanent basis from May 2021. Ms O'Meara gave evidence of concerns she held in relation to Ms Cross's performance and the steps she took to address them in 2020 and 2021, culminating in her decision to place Ms Cross on the ETIP in May 2021; the establishment of the ETIP; her involvement in managing the ETIP process and in observing and providing feedback on Ms Cross's performance during the ETIP; and her conclusions regarding Ms Cross's performance following the completion of the ETIP;
3. Safija Bristina, Principal Employee Performance Management and Improvement at the Department of Education ("Department"). Ms Bristina deposed that she provided Ms O'Meara with guidance and advice on the process to address Ms O'Meara's concerns with Ms Cross's performance, including through the implementation and conduct of the ETIP. Ms Bristina also deposed as to her involvement in observing and providing feedback on Ms Cross's performance during the ETIP;
4. Catriona Warne, Assistant Principal, Curriculum and Instruction at the School. Ms Warne deposed as to her involvement in observing and providing feedback on Ms Cross's performance during the ETIP. She also gave evidence of her relationship with Ms Cross more generally;
5. Graham Roberts, who worked in the position of Assistant Principal at the School from 27 January 2019 until 23 September 2022. Mr Roberts gave evidence of "informal support" that he had provided to Ms Cross at the request of Ms Nugent. He also deposed as to his involvement in observing and providing feedback on Ms Cross's performance during the ETIP;
6. Leah Martin, Principal at Pambula Public School, who deposed as to her involvement in observing and providing feedback on Ms Cross's performance during the ETIP;
7. Kerry Wood, Principal, Employee Management and Improvement at the Department, who deposed as to having conducted an independent review of Ms Cross's ETIP; and
8. Mark Anderson, Acting Director Employee Performance, Professional and Ethical Standards in the Department. Mr Anderson took the decision which had the effect of terminating Ms Cross's employment. He described the Department's Performance and Development Framework, including the procedures around the conduct of ETIPs. He outlined the standards and criteria against which teachers' performance is assessed. He explained the process by which he had come to decide to bring Ms Cross's employment in the Teaching Service to an end, and how that was effected.
1. The Secretary also tendered into evidence a number of documents described in the proceedings as the "ETIP Bundle". These are the documents created for and throughout the ETIP undertaken by Ms Cross.
Observations regarding the witnesses
1. The evidence led by the parties, and in particular by Ms Cross, traversed in detail events from 2019 until the termination of Ms Cross's employment. There were a great many factual controversies between the parties.
2. The existence of those factual controversies calls for a consideration of the credibility or reliability of the evidence presented. As the Secretary submitted, "[in] cases such as this where the Commission is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the Commission's assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance".
3. With the exception of Ms Martin, all of the witnesses who had sworn or affirmed affidavits in the proceedings were required for cross-examination. Dr Cheah was also called to give evidence.
4. Ms Cross called into question the credibility of Ms Nugent, Ms O'Meara, Ms Warne and Ms Bristina. There was no challenge to Mr Roberts' credibility, with Ms Cross submitting that his evidence "was frankly given but subject to his recall, which was poor in some instances". She submitted that the evidence of Ms Wood and Mr Anderson was "frank" but needed to be viewed from the perspective that it was "entirely predicated on the accuracy of the information provided by Ms O'Meara".
5. The Secretary submitted that the Commission "should not place a great deal of reliability" on Ms Cross's evidence. He contended that Ms Cross should be found "to lack credit and therefore be regarded as an unreliable witness".
6. The parties' closing submissions explored at length the bases for their respective positions.
7. The Secretary's closing submissions summarised the principles to apply in considering the credibility or reliability of evidence. Ms Cross agreed "in broad terms" with those submissions. Without repeating the Secretary's submissions exhaustively, the relevant principles include the following:
1. at common law, a distinction is drawn between credibility and reliability. The credibility of a witness goes to the "truthfulness" of a witness: whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, refers to the ability of the witness accurately to discern and relay the truth as to an event, including the witness's ability to observe and remember facts: IMM v The Queen (2016) 257 CLR 300 at [114] (Nettle and Gordon JJ);
2. in cases where the where the credibility and reliability of a witness are directly in issue, it is important that the Commission draws the distinction between credibility and reliability and does not simply assume the latter because of a belief in the former. The converse is also true: NBM v The Queen [2021] SASCA 105 at [36], citing R v Dickson [1983] 1 VR 227 at 231 and MacKenzie v The Queen (1996) 190 CLR 348 at 374;
3. a finding that a witness is not credible is not one that will be made lightly: Williams v Secretary of the Department of Education [2023] NSWIRComm 1032 at [32];
4. whilst a Commissioner is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology, the defects of which have been exposed on numerous occasions: Craig v Silverbrook [2013] NSWSC 1687 at [140];
5. there is a danger in too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31]; and
6. the credibility of a witness and their veracity may be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to their motives, and to the overall probabilities: Evans v Braddock [2015] NSWSC 249 at [73].
Ms Cross
1. Ms Cross was not an impressive witness. Even allowing for the fact that she is the applicant in proceedings in which she alleges that she was the victim of a flawed and unfair, even discriminatory, process, she came across as a difficult, and at times belligerent, witness. Her answers to questions in cross-examination were frequently non-responsive or coupled with self-serving asides or editorial comments.
2. Consistent with these observations, Ms Cross on many occasions paused before answering a question. This did not appear so much as taking care to ensure the accuracy of her response, as to allow her time to frame her response in a way that was best suited to her needs. Any concessions that may have been adverse to her case were made begrudgingly.
3. Over the course of her cross-examination, Ms Cross began increasingly to respond to questions by answering "I don't recall". In her closing written submissions, Ms Cross contended that this was "an indication of the great stress that she was under in the witness box and not anything going to the veracity of her evidence" and that "those answers she gave were clearly the result of exhaustion and cannot be said to go to the credibility of her evidence". I do not accept those submissions.
4. As to whether Ms Cross's evidence "was clearly the result of exhaustion", I acknowledge that the cross-examination of Ms Cross extended across four days of the hearing. I was made aware that on one occasion she had spent some hours overnight collating information in response to a call for documents from the Secretary. However, at no time was it suggested that Ms Cross was exhausted to the point that it may impact on her evidence, or that she be allowed time to rest. In any event, I did not observe Ms Cross to be "exhausted". In my observation she was at all times able to understand the questions put to her and to respond carefully.
5. As to the veracity or credibility of the evidence, I formed the view that often Ms Cross's response of "I don't recall" was not the honest expression of a failure of memory. This was primarily for two reasons.
6. First, on several occasions Ms Cross's professed incapacity to recall a particular matter was at odds with her own evidence. For example, in her first affidavit Ms Cross deposed as to a meeting she had with Ms O'Meara on 30 March 2021. In respect of that meeting she stated:
"274. …I had to defend myself against a verbal attack on my abilities to teach from someone who never observed me in the classroom. I felt intimidated at this meeting…"
1. However, under cross-examination she had the following exchange with counsel for the Secretary:
"Q. During this meeting Ms [O'Meara] spoke calmly?
A. I don't recall.
Q. You thought you were under a verbal attack?
A. I don't recall.
Q. You thought that it was a verbal attack on your abilities?
A. I don't recall.
Q. You were concerned this was coming from someone who had never observed you in the classroom?
A. Correct.
Q. You say you felt intimidated - or do you say you felt intimidated?
A. I don't recall."
1. Leaving aside the inconsistency between her written and oral testimony, there is an obvious incongruity in Ms Cross's answer of "Correct" in light of a conversation she professed no longer to recall.
2. As a further example, in her first affidavit Ms Cross deposed:
"547. It was not acknowledged that some of the tasks that I was asked to do for the ETIP were tasks that I had not done before and I was doing the task for the first time during the ETIP."
1. Under cross-examination, she gave the following evidence:
"Q. And in relation to paragraph 547, the principal task that you're asked during the ETIP that you say that you hadn't done before was to provide lesson plans?
A. No.
Q. That's not the principal one?
A. Some of the tasks that I was asked to do were tasks that I had not done before.
Q. Which tasks were those other than lesson plans?
A. I had done lesson plans before but not‑‑
Q. Sorry, can I just stop you there. You had done lesson plans before?
A. If I was allowed‑‑
Q. So you had done lesson plans before, is that right?
A. Yes.
Q. So, to the extent you've told us previously you've done lesson plans [sic], that was not right?
A. I hadn't done lesson plans for 30 years.
Q. Thank you, can you answer my question. To the extent that you've already told us you've never done lesson plans that answer wasn't right?
A. No.
Q. So, what are these other tasks that you say you hadn't done before and you are now doing for the very first time during the ETIP?
A. I had taught a demonstration lesson for a beginning teacher under observation.
Q. That's not a - the fact that it's under observation is not a task, is it?
A. That just demonstrates your lack of understanding of the task, but, okay.
Q. But your task was to teach a demonstration lesson to a teacher, correct?
A. Correct.
Q. Are you saying to the Commission you'd never done a demonstration lesson for a teacher?
A. That's not what I said.
Q. Had, prior to being on the ETIP, had you done a demonstration lesson for a teacher?
A. Yes.
Q. What other task, if any, do you say you hadn't done before and you are now doing for the first time during the ETIP?
A. I don't recall.
Q. If you don't recall, why is 547 in your affidavit?
A. I don't recall."
1. Finally in this regard, I note the following exchange during Ms Cross's cross-examination:
"Q. And you take issue with the statement that Ms [O'Meara] writes in that email, that many of these areas you were provided support with through the focus of executive selection areas 1, 3 and 4 at the end of the year?
A. Yes.
Q. But you did in fact receive support at the end of 2020?
A. I received some support at the end of 2020, yes.
Q. And you didn't ask for any more as we've discussed this morning?
A. I did not.
Q. Do you concede that you received support at the end of 2020 in relation to your programming?
A. Yes.
Q. And in relation to the executive selection criteria 1, 3 and 4?
A. No.
Q. That that support was provided by Ms Barnes in her observations of you?
A. Of programming?
Q. No. Executive selection criteria 1, 3 and 4?
A. I don't recall.
Q. So when you say, 'I did not receive any support in relation to areas 3 or 4,' you don't know whether that's true or not because you can't recall?
A. That's right.
Q. And then you said, 'all that happened in 2020 was that I was observed in those areas.' That's not true is it?
A. In what respect?
Q. It's not true is it, all that happened was you were observed in those areas?
A. I was observed in those areas, yes.
Q. That's not all that happened was it?
A. Lots of other things happened during that term.
Q. I'm not asking you about the term, madam, I'm asking you about in relation to the support and assistance provided by Ms Barnes, she did more than observe, did she not?
A. She did, she provided feedback.
Q. So when you wrote, 'all that happened was that I was observed in those areas,' that's wrong?
A. Feedback is part of the observation.
Q. That's wrong, isn't it, madam?
A. I don't recall.
Q. What, sitting here in the witness [box], you're unable to recall what's right or wrong?
A. Correct."
1. As counsel for Ms Cross submitted during the course of the cross-examination, giving oral testimony is "not a memory test". However, Ms Cross's repeated statements of being unable to recall factual matters put to her by the Secretary, particularly when it was referred to in her own written evidence, was in stark contrast to the exhaustive detail contained within that written evidence.
2. Second, it was my observation that on a number of occasions Ms Cross responded "I don't recall" to shut down a line of enquiry or to avoid responding to questions which may have been contrary to her interests. In the context, her responses of "I don't recall" were not credible.
3. This can be seen in the following exchanges during Ms Cross's cross-examination:
"Q. And do you say that there wasn't an ongoing performance issue in relation to you?
A. That's very broad, I don't recall.
Q. I'm not asking whether you recall. Sitting here in the witness box, do you say there was ongoing performance issues with you?
A. That is what they said, yes.
Q. And that's what they said because that, in fact, is the case, correct?
A. I don't recall.
Q. You don't recall there being programming issues as far back as 2019?
A. I recall receiving feedback, correct.
Q. And the feedback was about issues in relation to your programming?
A. I received feedback on my programs, yes.
Q. And that feedback set out various issues or concerns about your programming?
A. Yes.
Q. So, in relation to programming, do you concede there were in fact ongoing performance issues?
A. I continued to receive feedback from my programming--
Q. Did I ask that question?
A. If you'd let me finish.
Q. Just answer my question?
A. I don't recall.
And:
"Q. I want to suggest that the discussion you've set out in paragraph 117(a) with Ms [O'Meara] never took place?
A. It did. The people in the corridor would have heard it.
Q. None of whom are being called by you?
A. I didn't know if there was anybody in the corridor. The door was shut.
Q. You just said, 'The people in the corridor would have heard it'?
A. And if there were people in the corridor--
Q. You didn't say 'And if there were people in the corridor'. You said--
A. I withdraw--
Q. Sorry, madam, you said, 'The people in the [corridor] would have heard it', correct?
A. I don't recall.
Q. You don't recall saying that, madam?
A. I regret speaking."
1. The Secretary raised another matter that he contended went to Ms Cross's credibility. In her written evidence, Ms Cross deposed that during the ETIP she attended weekly meetings with Ms O'Meara. This was consistent with the evidence of Mrs Barnes, who accompanied Ms Cross as a support person during a number of the meetings, and that of Ms O'Meara. It is also reflected in the parties' documentary evidence.
2. However, under cross-examination Mr Cross gave the following evidence:
"Q. When did you tell Ms [O'Meara] that you had submitted documents to the observers?
A. When we went through the schedule at review meetings.
Q. So, to the extent that you told Ms [O'Meara] that you had provided additional documents to the observers, that'll be set out in the minutes of those review meetings?
A. I don't believe every single word was recorded in the review meeting minutes. We also had a second meeting each week."
1. Ms Cross went on to depose that Mrs Barnes had attended the "second meetings" after week 4 of the ETIP. Ms Cross insisted that such meetings had taken place, despite being challenged in cross-examination that they had not.
2. There is no evidence that "second meetings" were ever conducted. None of Ms Cross, Mrs Barnes or Ms O'Meara reference such meetings in their written evidence. It is not a matter about which Ms O'Meara was cross-examined.
3. As I have already observed, Ms Cross's written evidence was detailed and comprehensive. I have difficulty accepting that she would inadvertently have failed to record such meetings in her written evidence, had they occurred. I was left with the strong impression that the evidence of "second meetings" was an invention.
4. For all of these reasons, I formed the view that Ms Cross was not a credible witness.
Ms Cross's challenges to the Secretary's witnesses
1. There are two arguments which Ms Cross consistently put when challenging the credibility or reliability of the Secretary's witnesses. The first was that if a witness, in answer to a question under cross-examination, gave evidence which was not contained in their affidavit, they were to be criticised for providing "new evidence".
2. Counsel for Ms Cross generally commenced her cross-examination of each of the Secretary's witnesses by asking questions to confirm that, as far as the witness was concerned, their affidavit was accurate and complete. For example, at the commencement of Ms O'Meara's cross-examination, there was the following exchange:
"Q. You've sworn one affidavit in relation to this matter, haven't you, and that's the one dated 2 May 2023, starting at page 1613?
A. Correct.
Q. And am I correct in saying you prepared that affidavit?
A. Correct.
Q. And would you agree that you told the truth in that affidavit?
A. Correct.
Q. And you understand telling the truth means not just telling the part of the truth that suits you, but all of the truth, don't you?
A. Absolutely.
Q. And you've done that in your affidavit, have you?
A. Yes.
Q. And you understand that telling the truth means being accurate, don't you?
A. Yes.
Q. And would you agree you took care to be accurate in your affidavit?
A. Yes.
Q. And you agree that you took the making of your affidavit seriously at the time you made it?
A. Absolutely.
Q. And you took care not to make allegations in your affidavit that were incorrect; is that right?
A. Correct.
Q. And would you agree that taking care means making sure facts are correct and that means not overstating facts?
A. Yes.
Q. And it also means not understating facts, doesn't it?
A. Yes.
Q. Because if you overstate or understate, you're not being accurate, are you?
A. Correct.
Q. And you didn't overstate matters in your affidavit?
A. No.
Q. And you didn't understate matters in your affidavit?
A. No.
Q. And that was because you understood if you did either of those things, you would be misleading the Commission, isn't it?
A. Correct.
Q. And I would be correct in saying, would I, that it was because you were satisfied with the truth and accuracy of your affidavit that you gave instructions to file it?
A. Yes."
1. It was not uncommon during the cross-examination of the Secretary's witnesses that they answered a question by reference to facts that were not in their affidavits. When this occurred they were confronted with having provided "new evidence", or giving that evidence "for the first time" in a tone suggesting criticism or censure. This was reflected also in Ms Cross's closing written submissions. Ms Cross seemed to suggest that providing such evidence was inconsistent with the witnesses' testimony that their affidavits were truthful, calling into question their credibility or reliability.
2. I am not persuaded by those submissions. A witness cannot be expected to provide an affidavit which is encyclopaedic and complete in every respect. They also cannot be expected to anticipate every question which might be put to them in cross examination. Of itself, the fact that a witness in answer to a question in cross-examination provides evidence in addition to that in their affidavit is not enough to call their reliability, much less credibility, into question.
3. The second argument on which Ms Cross relied to challenges the reliability of the Secretary's witnesses relates to their apparent failure to interrogate, and to produce documents from, the Department's records in support of their testimony. This included records held on a system known as "Sentral", the School's communication platform. In this regard, there were some curiosities in the way in which the Secretary presented his case.
4. For example, in her affidavit, Ms O'Meara responded to Ms Cross's affidavit in chief. Under cross-examination she stated that she had not seen the documents which had been exhibited to Ms Cross's affidavit (comprising some 534 pages), despite those documents being referred to in the copy of the affidavit with which she had been provided. She said that she was simply following the advice of the Secretary's legal team, and that she did not request the documents and did not know that she could or should.
5. Ms Nugent gave evidence to a similar effect. In her affidavit, she deposed that she was "unable to access" Sentral messages as a result of no longer working at the School. Under cross-examination, she stated that she was not aware that she could have requested, or needed, such access, and so did not make such a request. However, she stated that she wished that she had done so.
6. It is incongruous that Ms Nugent would flag in her affidavit that there were limitations on her access to information, and yet no steps appear to have been taken by her or anyone else to overcome them. It is reasonable to infer that this was a forensic decision made by the Secretary or his legal advisers.
7. The apparent failure by the Secretary's witnesses to interrogate the Department's records in the course of preparing their affidavits is a matter to which I have had regard. At the same time, the onus is on Ms Cross in these proceedings. If she considered that there were documents in the Secretary's which could assist in her case, it was open for her to seek access to those documents through a summons.
Ms O'Meara
1. Ms O'Meara was not a compelling witness. She did not appear to be as prepared or as across the detail of the matter as might have been expected. Under cross-examination she often asked to be taken to relevant parts of her written evidence so that she could refresh her memory before answering questions. Even then, Ms O'Meara sometimes struggled to provide direct answers to questions, but rather sought to provide a narrative of circumstances around the facts the subject of the question.
2. It was clear that Ms O'Meara did not always have a clear and independent recollection of events. There were many occasions on which she professed to "not recalling" something put to her in cross-examination. She often conceded that as she had no independent recollection, an alternative version of events offered by counsel for Ms Cross was "possible". Such concessions were frequently inconsistent with her written testimony. This undermined some of the more robust evidence that she had put in her affidavit.
3. Consistent with my concerns as to how well prepared Ms O'Meara was to give evidence, I had reservations as to how deeply she had looked into the matter when preparing her affidavit. As already stated, she provided a response to Ms Cross's affidavit without having been provided with the exhibits to which that affidavit referred. She does not appear personally to have interrogated her own records or those of the Department when preparing her affidavit. The impression I formed was that Ms O'Meara had been passive in the preparation of her affidavit, and in preparing for the hearing.
4. That impression is consistent with some of her evidence. When challenged as to the adequacy of the steps that she had taken to address her concerns with Ms Cross's performance, and in subsequently developing and implementing the ETIP, she repeatedly deposed that she had followed the advice of the Professional and Ethical Standards directorate ("PES") in the Department. For example, the following exchange took place during Ms O'Meara's cross-examination:
"Q. You're relying on the advice of PES, are you?
A. Throughout this process. Yes.
Q. Did you make your own independent assessment of things at any given time?
A. I always relied on the advice of PES throughout the process. I had my own independent thoughts but PES was [sic] the experts in the field and I relied on them to guide me through this process.
Q. So, if you took steps and there were problems with them, it was because PES told you to do it?
A. I relied on the experts in this situation."
1. Ms Cross challenged Ms O'Meara on the basis that her affidavit only included matters critical of Ms Cross, and did not refer to occasions on which she had provided positive feedback to her. Ms Cross also drew my attention to errors in Ms O'Meara's evidence. For example:
1. Ms O'Meara deposed that Ms Cross had refused to attend a meeting with her between 18 October 2020 and 13 November 2020, when the evidence revealed that a meeting had taken place on 27 October 2020;
2. Ms O'Meara deposed that Ms Cross was late in submitting the budget for the creative and performing arts program, when the evidence revealed that the due date for submission of that budget had been pushed back several weeks;
3. Ms O'Meara stated that during the ETIP a document had been submitted "late", when there had been a change to the ETIP schedule and the document had been submitted in accordance with that change; and
4. in her affidavit Ms O'Meara referred to minutes of a meeting she had with Ms Cross on 26 May 2021, without clarifying (until under cross-examination) that they erroneously stated that the support provided to Ms Cross had included teaching observations, and further suggested criticism of Ms Cross for not completing a "PDP" for a staff member, when Ms O'Meara had taken on that responsibility herself.
1. However, I did not form the view that Ms O'Meara was intending to obfuscate or to mislead the Commission, as much as some of her evidence may have had that effect. Her evidence may have been inaccurate and unpersuasive in some respects, but I do not consider it to have been deliberately false.
2. On balance, I found Ms O'Meara to be an unreliable witness. I did not consider that she lacked credibility.
Ms Nugent
1. Despite Ms Cross's submissions to the contrary, I do not accept that Ms Nugent was a witness who lacked credibility. At the commencement of her cross-examination, she was direct in answering questions put to her. I observed, however, that as the cross-examination progressed she began avoiding directly answering questions and offering commentary or a description of surrounding circumstances in which to frame her answer. She was not necessarily being evasive, in my assessment, so much as adopting more the role of an advocate and trying to second-guess the direction of the cross-examination.
2. I accept, as Ms Cross submitted, that evidence given by Ms Nugent under cross-examination was inconsistent in part with her written evidence. I did not consider this to be anything more than reflective of the fallibility of human memory. To that extent, there is some cause to question the reliability of her recollection. I do not consider that there is any basis on which to find that she lacked credibility.
Ms Warne
1. Ms Cross submitted that the evidence of Ms Warne "must be treated with caution". She placed significant weight on the fact that each of Ms Warne and Ms O'Meara had described themselves as having "a close working relationship" and friendship; that Ms Warne had made complaints about Ms Cross to Ms Nugent and Ms O'Meara that "had never been properly addressed"; and, that Ms Warne "routinely went over Ms Cross's head to complain to the Principal". In her affidavit in reply, Ms Cross contended that the contents of Ms Warne's affidavit "confirmed" Ms Warne's "pre-existing bias" towards her.
2. I acknowledge that these matters were relied on by Ms Cross more on the question as to the suitability of Ms Warne to have been involved in assessing her performance during the ETIP and the objectivity of her conclusions (a matter to which I will return). However, they also seemed to be directed to calling into question her reliability or credibility.
3. In her affidavit, Ms Warne stated candidly that she found Ms Cross "to be a difficult teacher to work with and a teacher who was not very effective". Under cross-examination, however, Ms Warne denied that in 2019 she had formed the view that Ms Cross "was no good at her job". She also disagreed with the suggestion that at the time of the ETIP she did not have a good relationship with Ms Cross, and seemed quite put out that the suggestion had been made.
4. I am mindful that there is arguably some inconsistency in Ms Warne's evidence. My view is that her affidavit is most reflective of her opinion of Ms Cross at the time of the ETIP. I have taken that into account in assessing the reliability of her evidence as to her dealings with Ms Cross, including through the ETIP. However, to the extent that Ms Warne's affidavit reveals a state of mind, it is hardly covert.
5. I had some reservations as to the reliability Ms Warne's independent recollection of events. Under cross-examination she asked frequently to be taken to the relevant parts of her affidavit, rather than trying to recount what she could recall of particular incidents.
6. In my observation, Ms Warne was demonstrably nervous when testifying. She hesitated in answering questions and at times became confused. In my view, her demeanour in the witness box was the result of nervousness, rather than an attempt to mislead the Commission.
7. Ms Cross submitted that there were assertions in Ms Warne's affidavit that were shown under cross-examination to have been wrong. I accept that this was the case. For example, Ms Warne stated in her affidavit that in 2019 she had a lot of difficulty trying to get into Mr Cross's classroom to co-teach spelling lessons, when she accepted under cross-examination that she did not teach in Ms Cross's class in 2019. However, I was not satisfied that such errors were intentional.
8. For these reasons, I have reservations as to the reliability of Ms Warne's evidence, but I do not consider that her credibility is in question. I have approached her evidence accordingly.
Ms Bristina
1. Ms Cross described Ms Bristina as having demonstrated "brittle inflexibility". I do not accept that characterisation. Ms Bristina presented as a confident witness who was sure of her position, albeit one who was often confused by questions that were put to her. To the extent that there were inconsistencies between her written and oral testimony, it becomes a question of reliability rather than credibility.
Conclusions
1. Having regard to the matters canvassed above, I accept the Secretary's submission that the Commission would be reluctant to give Ms Cross's evidence greater weight that any of the Secretary's witnesses. I also accept the following assertions in the Secretary's closing written submissions:
"37. In the light of these considerations, the best approach for the Commission to adopt in the hearing of a case like this is to place less reliance on witnesses' recollections of what was said in meetings and conversations in the witness box and to base factual findings on inferences drawn from the documentary evidence and known or probable facts, or where matters are generally remembered by a number of witnesses. This does not mean that oral testimony serves no useful purpose, but its value lies largely in the opportunity which cross-examination affords to subject the documentary record or the general recollections to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events."
(Footnote omitted)
Background facts in outline
1. Ms Cross commenced permanent employment in the Teaching Service on 2 February 1987. She worked in a variety of positions before being appointed as an Assistant Principal at the School in January 2012. This was an executive teaching position.
2. Ms Cross was required to meet the Australian Professional Standards for Teachers ("Teaching Standards"). She was accredited at the level of "proficient" in respect of those standards. Ms Cross was also expected to demonstrate "the capacity to provide successful educational leadership" through meeting the "General Selection Criteria for Executives" ("Executive Criteria").
3. In Term 1 of 2019, Ms Nugent raised concerns with Ms Cross as to her performance. From that time, measures were taken by Ms Nugent to assist Ms Cross to address those concerns. Ms O'Meara took over the management of this process from Term 4 of 2020 when she was appointed Principal of the School, initially on a relieving basis.
4. There is significant controversy as to whether there was a proper basis for Ms Cross's performance to have been called into question, how effectively the alleged performance concerns were communicated to Ms Cross, and how much of the support that Ms Nugent and Ms O'Meara described as having been arranged had in fact been provided to her. These are matters to which I will return.
5. In the event, Ms O'Meara decided to place Ms Cross on an ETIP. A document promulgated by the Department, titled "Executive Teacher Improvement Program: Implementation document for the management of conduct and performance policy" ("ETIP Procedures"), sets out the rationale for ETIPs and the steps involved in conducting them. In summary, the ETIP Procedures provide as follows:
1. The purpose of the ETIP is to provide support to executive teachers to make satisfactory and sustained improvement in accordance with the Executive Criteria and Teaching Standards.
2. An ETIP should not be implemented unless concerns have been addressed through the performance and development cycle. Before an ETIP can commence, the principal is to ensure that performance concerns have been clarified with and communicated to the teacher, followed by the provision of support to address the identified concerns.
3. It is the principal who determines if an executive teacher is to be placed on an ETIP. While the teacher will have the opportunity to have input into the development of the ETIP plan and schedule, the teacher is obliged to make every effort to participate in the ETIP as a condition of employment.
4. The principal is to develop an improvement program plan and schedule, in consultation with PES.
5. An ETIP consists of five school weeks of support, guidance and assessment, with a further five weeks available if required to meet all identified areas for improvement. That is, the maximum duration of an ETIP is ten weeks, which must be completed within a maximum timeframe of twelve school weeks from the initial meeting.
6. The teacher is to be invited to a meeting with the principal, at which time they are to be provided with a copy of the draft ETIP plan. A meeting is to be scheduled to finalise the ETIP plan. The ETIP is taken to have commenced from the date of this meeting.
7. A further meeting is to be held to finalise the ETIP plan.
8. Throughout the ETIP, review meetings should be held weekly. The main purpose of these meetings is to provide feedback to the teacher on their progress, the opportunity for the teacher to provide feedback on support received and to raise any issues, and for any adjustments to be made to the ETIP plan by the principal in consultation with the teacher.
9. At five weeks, the principal determines if sufficient improvement has been demonstrated. If so, the ETIP ceases. Otherwise, it continues.
10. At ten weeks, the program of support, guidance and performance assessment concludes.
11. The principal is to consider the evidence arising from the ETIP and prepare a "principal's report".
12. A final meeting between the principal and the teacher is to be conducted, at which the teacher is to be provided with a copy of the principal's report and copies of "all program documentation".
13. If the principal makes a recommendation in the principal's report that the teacher has not demonstrated the required level of improvement, the teacher is to be informed that they may provide PES with a written response to the principal's report. The teacher will be assigned to alternative duties pending a decision being made regarding their ongoing employment in the Teaching Service.
1. Ms O'Meara determined that the ETIP would address Teaching Standard 3 and Executive Criteria 1, 3 and 4. Teaching Standard 3 requires a teacher to "plan for and implement effective teaching and learning". In his affidavit, Mr Anderson deposed:
"32. At the Proficient level, the following is required to meet Teaching Standard 3 (Plan for and implement effective teaching and learning):
a. Set explicit, challenging and achievable learning goals for all students;
b. Plan and implement well-structured learning and teaching programs or lesson sequences that engage students and promote learning;
c. Select and use relevant teaching strategies to develop knowledge, skills, problemsolving, and critical and creative thinking;
d. Select and/or create and use a range of resources, including ICT, to engage students in their learning;
e. Use effective verbal and non-verbal communication strategies to support student understanding, participation, engagement and achievement;
f. Evaluate personal teaching and learning programs using evidence, including feedback from students and student assessment data, to inform planning; and
g. Plan for appropriate and contextually relevant opportunities for parents/carers to be involved in their children's learning."
1. The Executive Criteria which were the subject of the ETIP are as follows:
"1. Successful teaching experience with capacity to initiate improvement in teaching, learning and classroom practice
…
3. Educational leadership skills to build the capacity and manage the performance of individuals and teams
4. Well developed communication and interpersonal skills with the capacity to build relationships and engage students, staff and parents"
1. The ETIP commenced on 31 May 2021 and continued for 10 weeks. The ETIP was paused for a period as a consequence of disruptions caused by the COVID-19 pandemic ("COVID").
2. Ms Cross's performance was the subject of 27 observations conducted during the ETIP by Ms O'Meara, Mr Roberts, Ms Martin, Ms Bristina and Ms Warne. Ms Cross was assessed as satisfactory on six occasions.
3. Following the conclusion of the ETIP, Ms O'Meara prepared a principal's report dated 5 October 2021 summarising the background to, and outcome of, the ETIP ("Principal's Report"). In that report, Ms O'Meara made the following recommendation:
"It is recommended that Ms Cross has not made sufficient improvement to meet the standard of performance required for the position of an Executive Teacher."
1. The Principal's Report was provided to Ms Cross in a meeting with Ms O'Meara on 5 October 2021. At the same meeting, Ms O'Meara handed Ms Cross a letter addressed to her from Veronica Kapsimali, the Director of PES, directing her to report to Cobargo Public School from 6 October 2021 where she would "perform alternative duties", pending the outcome of the review process.
2. On approximately 24 October 2021, Ms Cross submitted what she described as a "lengthy submission in response" to the Principal's Report.
3. On 4 November 2021, Ms O'Meara provided PES with a written reply to Ms Cross's response.
4. Ms Wood was appointed as the "independent reviewer" for the ETIP undertaken by Ms Cross. In her affidavit, Ms Wood deposed:
"9. The role of the Independent Reviewer is to consider the procedural fairness, implementation and outcome of a completed IP [sic – Improvement Program] against the requirements of the Executive Teacher Improvement Program Implementation Document for the Management of Conduct and Performance Policy…and to then provide advice to the decision maker to assist them in the making [of] the best possible decision, ensuring objectivity, fairness and transparency. An Independent Reviewer needs to have access to all relevant information, know it thoroughly and consider it carefully before making a recommendation. An Independent Reviewer draws on their expert knowledge and experience to identify issues, analyse information and assess the completeness of evidence. The Independent Reviewer conducts robust and impartial reviews of the IP, applying knowledge of current education policies and procedures, including improvement procedures and guidelines, and applying their understanding of procedural fairness principles. Professional opinions are based on and refer to the evidence available. The review is structured so that the information forms a sound and logical basis for the recommendation, that is, the content of the brief clearly leads to the conclusion and the recommendation.
10. The role of Independent Reviewer is an important role to ensure that the IP has been fairly implemented in accordance with relevant policies and that the recommendation of the Principal can be substantiated from the evidence provided. This independent review process occurs for every TIP and ETIP and is part of the process that has been developed by the Department in consultation with the NSW Teachers' Federation."
1. On 24 January 2022, Ms Wood completed a report following her review. That report included the following:
"A. Recommendation
After consideration and review of the available documentation, I find that executive teacher Ms Heather Cross has been afforded procedural fairness in the implementation of the Executive Teacher Improvement Program (ETIP) that has been provided. The principal's recommendation that the teacher's performance is unsatisfactory and does not meet the standard required for the position of classroom teacher or the leadership criteria for an assistant principal is supported by the documentation and should be upheld.
…
J. Conclusions
Ms Cross has been provided with significant and quality support for the duration of the ETIP in order to improve her practice in accordance with the identified Standard and Executive General Selection Criteria. Ms Cross was aware of the performance concerns and was afforded procedural fairness. The principal acted rightfully and within their responsibility as the principal to address the executive teacher's continuing underperformance through the ETIP process. The principal considered the evidence collected by themselves and other observers to find that the teacher had not met the level of teaching and leadership performance required to meet the Standard and Criteria at proficiency."
1. The relevant documentation was provided to Mr Anderson, for his review, on 3 February 2022. On 4 February 2022 Mr Anderson wrote to Ms Cross informing her that, as a consequence of the outcome of the ETIP, he was considering dismissing her from the Teaching Service and placing her name on the list of persons not to be employed in NSW government schools (which is required to be maintained by the Secretary pursuant to s 7(1)(e) of the Teaching Service Act) ("NTBE list"). Mr Anderson invited Ms Cross to make a submission and to provide any additional information which she wanted him to consider prior to making his final decision.
2. Ms Cross responded to Mr Anderson's letter on or about 9 March 2022, in a document titled "Submission to Determination" dated 4 March 2022.
3. On 17 March 2022 Mr Anderson wrote to Ms Cross, informing her that he had decided to take disciplinary action against her pursuant to s 93J of the Teaching Service Act. Ms Cross was directed to resign by 25 March 2022, failing which she would be dismissed from the Teaching Service. Mr Anderson stated that he had decided not to place Ms Cross's name on the NTBE list, but she was not permitted to apply for employment with the Department in a Teaching Service role.
4. Correspondence between Ms Cross and Mr Anderson and the Department ensued. The result was that Ms Cross submitted a resignation, with her last day of employment with the Teaching Service being 1 July 2022.
5. The Commission has previously determined that despite having tendered her resignation, Ms Cross was dismissed from her employment, and that the date of that dismissal was 1 July 2022: Cross v Secretary of the Department of Education [2022] NSWIRComm 1096 at [38] and [60].
Overview of the parties' cases
1. The written evidence in this matter exceeded 2,000 pages of material. As already observed, there were a great many factual controversies between the parties arising from their written evidence. The minutiae of those contests were exhaustively explored in the cross-examination of the witnesses over nine hearing days (resulting in nearly 1,000 pages of transcript). The parties' closing written submissions, which including annexures exceeded 250 pages, traversed the controversies in detail.
2. I do not propose to identify, much less seek to resolve, every factual difference between the parties. Similarly, I will not attempt to address every contention made in their submissions. To do so would be to write a book.
3. The question for determination in these proceedings is whether Ms Cross's dismissal from the Teaching Service was harsh, unreasonable or unjust within the meaning of s 84 of the Industrial Relations Act. In determining that question, I have read and had regard to all of the evidence and submissions before me. In this decision, I will address the evidence and submissions only to the extent necessary to explain the determination that I have made.
The case presented by Ms Cross
1. Distilled to its essence, Ms Cross's case may be summarised as follows:
1. In 2019 Ms Nugent began to raise with Ms Cross concerns with her performance. However, there had been no change in the level of Ms Cross's performance. The only thing that was "out of the ordinary" was the fact that Ms Cross took a significant amount of sick leave that year.
2. It was Ms Cross's utilisation of sick leave, and not her performance, which was Ms Nugent's primary concern. Ms Nugent determined to put Ms Cross "out to pasture". Any steps that Ms Nugent took from Term 1 in 2019 were directed towards achieving that outcome.
3. This amounted to unlawful discrimination on the basis of disability, in contravention of the Anti-Discrimination Act 1977. That discrimination set up an unfairness in the process that infected all that followed, including the ETIP.
4. Ms Nugent held Ms Cross to a higher standard than other teachers at the School, in particular by expecting Ms Cross to demonstrate performance against the Standards and the Executive Criteria at the "highly accomplished", as opposed to the "proficient", level. To the extent that Ms Nugent raised performance concerns with Ms Cross, it was not in a manner that enabled Ms Cross to understand precisely the nature of the concern or what she was expected to do to address it. Further, Ms Nugent did not provide Ms Cross with any, or any adequate, support to meet the standards expected of her.
5. Ms Nugent's antipathy towards Ms Cross was evidenced by the fact that she failed to address complaints which had been made against Ms Cross in accordance with the applicable policy, the "Staff Complaint Procedure".
6. In anticipation of Ms Nugent leaving the School, and Ms O'Meara taking over as acting Principal, the two had numerous conversations regarding Ms Cross's performance. Ms O'Meara, who until that time had limited opportunity to observe Ms Cross's performance, accepted at face value what Ms Nugent told her. Ms O'Meara's views as to Ms Cross's performance were infected by the same inappropriate, discriminatory considerations which were motivating Ms Nugent.
7. Further, Ms O'Meara had an incentive to ingratiate herself with Ms Nugent. As she was initially appointed to the position of Principal on an acting basis, she was keen to secure Ms Nugent's support in her aspirations for permanent appointment to the position. Ms O'Meara would otherwise wish to remain in Ms Nugent's favour, in the event that Ms Nugent returned to the School as Principal.
8. Whatever her motivation, Ms O'Meara came to accept, through blind acceptance of what Ms Nugent told her, that Ms Cross should be removed from the Teaching Service.
9. All that occurred from the time Ms O'Meara was appointed as acting Principal of the School was designed to ensure that outcome.
10. To the extent that Ms O'Meara raised performance concerns with Ms Cross, she did so in a manner which made it difficult for Ms Cross to address them. In particular, Ms Cross was not provided with sufficient detail of the concerns with "concrete examples", or given clear and express instructions as to what was required of her to meet the expected standards.
11. In a manner similar to Ms Nugent, Ms O'Meara also failed to address complaints against Ms Cross in accordance with the Staff Complaint Procedure. Rather, Ms O'Meara took the complaints at face value and accepted as correct the assertions that were made against Ms Cross. This demonstrated her bias against Ms Cross.
12. In short, Ms O'Meara sought to orchestrate an outcome that would see Ms Cross placed on an ETIP.
13. Once that was achieved, the ETIP was designed and conducted in a manner calculated to ensure that Ms Cross failed to meet the requisite standards. The shortcomings, if not bias, in the design and implementation of the ETIP included the following:
1. The appointment by Ms O'Meara of people to conduct observations of Ms Cross's work during the ETIP who were biased against her, or had prejudged her capabilities. These people included, in particular, Ms Warne, one of the staff members who had made a complaint about Ms Cross which had not been resolved in accordance with the Staff Complaint Procedure, and Ms Bristina, who had been providing guidance to Ms O'Meara as to how to address Ms Cross's alleged underperformance, directly and indirectly, for some months.
2. Ms O'Meara discussing her concerns about Ms Cross with those conducting the observations during the ETIP, in a manner designed to "poison the well".
3. Ms O'Meara creating documents during the ETIP, in particular the notes of her weekly meetings with Ms Cross, which were one-sided and reflected only criticism of Ms Cross. The documents were not an accurate portrayal of the meetings to which they referred.
4. Consistent with the process which had preceded it, the ETIP was marked by a failure to clearly articulate to Ms Cross how it was that her performance required improvement. It was not made clear to her, in advance of her performing a particular task, what was expected of her and what the observer was looking for. To the extent that she received feedback during the ETIP, it was inadequate.
5. In short, Ms Cross was being set up to fail.
1. Ms Cross's performance during the ETIP was, in any event, adversely impacted by circumstances outside her control. These included, in particular, the distraction and dislocation caused by COVID and personal health issues from which Ms Cross suffered throughout the relevant period.
2. The assessments conducted throughout the ETIP were directed towards the Executive Criteria. Ms Cross was not properly assessed by reference to Teaching Standard 3.
3. It followed that the ultimate conclusion from the ETIP, that Ms Cross's performance had not been demonstrated as being satisfactory, was unwarranted and unfair. In particular, given the tasks that she had been required to perform during the ETIP, and having regard to the fact that her performance against the Teaching Standards was not assessed, it was singularly unfair to conclude that she was not qualified to work as a teacher at all.
4. Ms O'Meara continued to demonstrate her bias against Ms Cross in the Principal's Report, which was one-sided and which contained false allegations against Ms Cross. The Principal's Report was designed to ensure that the decision-maker (Mr Anderson) accepted her recommendation and made the decision to remove Ms Cross from the Teaching Service.
5. The independent review of the ETIP conducted by Ms Wood, and the review of the ETIP documents by Mr Anderson prior to making his decision, were both determined on the documents provided to them. The documents reflected an unfair and partisan ETIP process, and to the extent that they were created by Ms O'Meara, were coloured by her prejudice. The documents led Ms Wood and Mr Anderson into error.
1. In her closing written submissions, Ms Cross summarised her case in these terms:
"4. In short summary the dismissal was:
a. Harsh because of:
i. the Applicant's long service to the Department,
ii. the difficulty she has, and will continue to have, in obtaining alternative employment in a regional area of NSW,
iii. the impact of her age on obtaining alternative employment, and
iv. the financial impact on her of the termination, noting the focus of the termination was on her leadership, not teaching and she could have been offered a lesser role in the school, but that was never considered; and
b. unreasonable and unjust because:
i. the acts and omissions of the Department taken prior to the ETIP:
1. were contrary to the Respondent's own policies,
2. demonstrated a lack of reasonable training and support to improve prior to putting the Applicant on the ETIP,
3. showed there was no clear advice as to what the issues were with her performance and what she needed to do to improve,
4. indicate one of the reasons was she took too much leave, noting it is uncontested evidence that leave was due to her ill health from 2020 onwards,
ii. the ETIP itself was:
1. contrary to the Respondent's own policies,
2. without reasonable training and support to improve,
3. without clear advice as to what the issues were with her performance and what she needed to do to improve,
4. characterised by an approach:
a. of moving the goal posts,
b. treating the Applicant less favourably than other staff,
c. inconsistency between how the Applicant was treated compared to other staff,
d. inconsistency how the Applicant's work had been assessed in the past, and
e. taking into account complaints made by others which were never squarely put to the Applicant and so she was also not given procedural fairness in respect of those matters,
5. without regard to the Applicant's health,
6. conducted in a way that required significant work over and above her existing responsibilities,
7. conducted in a way that indicated her age was one of the reasons for determining she was no longer fit to be an Executive Teacher, and
8. conduct [sic] in a way that indicated her leave record, which was due to her ill health, was one of the reasons for determining she was no longer fit to be an Executive Teacher."
(Footnote omitted)
1. Ms Cross sought an order that she be re-employed in the Teaching Service in an executive teacher position at a school other than the School. In the alternative, she sought an order that she be re-employed in the Teaching Service as a teacher.
The case presented by the Secretary
1. In overview, the case presented by the Secretary may be summarised as follows:
1. This is an unfair dismissal case. The question of whether Ms Cross's dismissal was harsh, unreasonable or unjust hinges on a single issue, that being whether she demonstrated the standards expected from her in her role during the ETIP. Ms Cross seeks to obfuscate the matter, and distract from the significant evidence demonstrating the deficiencies in her performance, by going into the minutiae of the events that led to her dismissal, or by putting into issue matters that that are either irrelevant, or of limited relevance.
2. Concerns with Ms Cross's performance were first raised with her in Term 1, 2019, and over the following two years, by Ms Nugent and subsequently Ms O'Meara. Those concerns related both to the standard of her teaching and her performance as an executive teacher. Ms Cross was provided with sufficient information and feedback to understand the nature of the concerns. Moreover, she was supplied with, or given access to, support arranged by Ms Nugent or Ms O'Meara to allow her to address those concerns.
3. Ms Cross refused to accept that that her performance was in any way deficient. As a result, she did not engage properly with the process or seek out all of the support that was available to her.
4. Ms Cross was provided with adequate individualised support and given a fair and proper opportunity to improve and address the concerns regarding her performance, and as such the Secretary complied with the ETIP Procedures. As Ms Cross failed to improve to the requisite standard, there was nothing untoward or unfair about her being placed on the ETIP.
5. Ms Cross did not believe that she ought to have been placed on the ETIP, and "strongly resented that placement". This led to her demonstrating "an unwillingness to conform to the standards of conduct and performance expected of her".
6. The ETIP was conducted fairly and in accordance with the ETIP Procedures, recognising that "[no] TIP or ETIP will be perfect". Throughout the ETIP, Ms Cross was provided with considerable support and assistance. Her performance was assessed by five people with "expertise in teaching and leadership which the Commission does not have". There is no proper basis on which to argue that any of the assessors were biased against Ms Cross. On each occasion that Ms Cross's performance was assessed, the relevant observer prepared a feedback report providing detailed feedback to explain the assessment. These reports were provided to and discussed with Ms Cross at the weekly review meetings that she had with Ms O'Meara throughout the course of the ETIP.
7. Over the course of the ETIP:
1. there were three observations of Ms Cross's lessons, all of which were determined to be unsatisfactory;
2. there were 13 scheduled observations of teaching documents prepared by Ms Cross, 11 of which were determined to be unsatisfactory, one of which was not submitted by Ms Cross and one of which was determined to be satisfactory;
3. there were 10 scheduled observations of Ms Cross's leadership practice, three of which were determined to be unsatisfactory, three of which did not occur, and four of which were determined to be satisfactory; and
4. there were six scheduled observations of leadership documents prepared by Ms Cross, four of which were determined to be unsatisfactory, one of which was not submitted by Ms Cross, and one of which was determined to be satisfactory.
1. Ms Cross's underperformance during the ETIP was underscored by her repeated failure to adhere to timeframes in the ETIP schedule.
2. Given these matters, the reason for Ms Cross's dismissal had a basis in fact.
3. Ms Cross was given multiple opportunities to make out a defence or give an explanation for her unsatisfactory performance. These included:
1. at meetings she attended with Ms Nugent and/or Ms O'Meara between 2019 and 2021;
2. during the weekly ETIP meetings;
3. in providing her written response to the Principal's Report; and
4. in providing her submissions dated 4 March 2022 in response to the letter from Mr Anderson of 4 February 2022.
1. Ms Cross consistently refused to accept or acknowledge, over a lengthy period, that she was in any way at fault or deficient in her performance, conduct or behaviour. She failed, culpably, to recognise her shortcomings and, therefore, took insufficient corrective action. The Secretary should not be obliged to continue to accommodate a teacher who is unable to accept advice or criticism and is not able to attain consistently a reasonable standard of performance.
2. Having regard to the evidence overall, and being mindful of s 5A of the Teaching Service Act, the Commission should conclude that Ms Cross is unsuitable to continue as a teacher and the application ought to be dismissed.
3. In the alternative, were the Commission to find that the dismissal was harsh, unreasonable or unjust, it would be impracticable for Ms Cross to be re-employed in the Teaching Service. To the extent that an order for compensation was to be considered, it should be "significantly reduced" due to the fact that Ms Cross "failed to properly attempt to mitigate her loss".
1. In response to Ms Cross's submissions reproduced at [89] above, in his closing written submissions the Secretary contended:
"252. Adopting the same lettering and numbering from paragraph 4 of the Applicant's Closing Submissions, the Respondent responds as follows to that paragraph:
(a) The dismissal was not harsh.
i. The Applicant did have long service and as an experienced employee she should have been able to demonstrate the standards expected of her but failed to do so. Long service is not a basis for continuing to employ a teacher who is not competent.
ii. There is no evidence to support the submission that the Applicant has and will continue to have difficulty in obtaining alternative employment in a regional area of NSW.
iii. There is no evidence to support the submission as to the impact of the Applicant's age on obtaining alternative employment.
iv. Part of the reason for the dismissal of the Applicant was a failure to meeting Teaching Standard 3, which is why the Applicant was not offered a teaching role at the School. Further, the Respondent accepts any decision to terminate an employee will have a financial impact on an employee but this could not make a dismissal harsh or all terminations would be harsh. In the Applicant's circumstances it is her unsatisfactory performance that has damaged her career and impacted on her financially, not the decision by the Respondent to terminate. In all the circumstances, there is no reason to treat the Applicant differently from any other employee if the Commission finds the reasons for his [sic] dismissal to amount to a valid reason. At no time in her correspondence to Mr Anderson prior to his findings did the Applicant suggest a demotion back to being a teacher, nor did the Applicant suggest to Ms O'Meara in 2021 that she wanted to be employed as a classroom teacher only. Further, given her refusal to accept or acknowledge, over a lengthy period, that she was in any way at fault or deficient in her performance, conduct or behaviour it was not possible to engage the Applicant as a teacher.
(b) The dismissal was not unjust or unreasonable.
i. In relation to matters arising prior to the ETIP:
1. The Respondent did not act contrary to its policies prior to the ETIP. No specific breach of policies is identified by the Applicant.
2. The evidence demonstrates that the Applicant was provided with considerable training and support prior to the ETIP.
3. The evidence demonstrates that the Applicant was provided advice on where she needed to improve her performance. The issue was that the Applicant refused to accept she need [sic] to follow that advice.
4. There is no evidence to support that the Applicant was placed on the ETIP due to the level of her sick leave.
ii. In relation to matters arising during the ETIP:
1. The Respondent also did not act contrary to its policies during the ETIP. Again, no specific breach of policies is identified by the Applicant.
2. The evidence demonstrates that the Applicant was provided with considerable training and support during the ETIP.
3. The evidence demonstrates that the Respondent clearly identified to the Applicant the standards/criteria which she was being examined on and provided her with considerable advice on what she needed to improve on.
4. The goal posts did not move despite the Applicant's assertion to the contrary. There is no foundation to the submissions with respect to inconsistent or differential treatment. There is no evidence of how any other teacher on a TIP or ETIP was treated, or with respect to how the Applicant's work had been assessed in the past. Any 'complaints' about the Applicant were not the basis of her termination or the findings she failed the ETIP.
5. The meeting notes demonstrate that Ms O'Meara regularly asked the Applicant about her health, made clear that she could take sick leave, and identified what other services were available to her. It was the Applicant who elected to continue to work in full knowledge that if she was at work the ETIP would continue.
6. All ETIPs and TIPs involve different work. The Applicant was provided additional relief from face-to-face teaching to address the work needed to perform on the ETIP and was offered even more relief that she initially rejected, but subsequently accepted. The Applicant was given relief on Wednesday afternoon, all day Thursday and all day Friday. Many of the documents required from the Applicant during the ETIP (except lesson plans), such as programs and assessments, were documents that the Applicant had to prepare whether or not she was on an ETIP. Further, if this made an ETIP unreasonable or unjust, then all dismissals following ETIPs or TIPs would be unjust, which is contrary to numerous decisions of the Commission.
7. There is no evidence to support that the Applicant's age was one of the reasons for determining she was no longer fit to be an executive teacher. The Applicant was dismissed because she failed the ETIP not because of her age.
8. There is no evidence to support that the ETIP was conducted in a way that indicated her leave record was one of the reasons for determining that she was no longer fit to be an executive teacher. The Applicant was dismissed because she failed the ETIP not because of her age [sic]."
(Footnotes omitted)
Principles to apply in determining the Application
Industrial Relations Act
1. The question for determination in this case is whether Ms Cross's dismissal from the Teaching Service was harsh, unreasonable or unjust. That is the only basis on which applications under s 84 of the Industrial Relations Act can be determined, there is no other: Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 ("Buchanan") at [6].
2. It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61:
"21. …It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne:
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
1. While my consideration of this matter is informed by the above passage, I find the following observations of Commissioner Newall in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 to be instructive:
"6. The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465."
1. To be entitled to any remedy under the Industrial Relations Act, the onus is on Ms Cross to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
2. Section 88 of the Industrial Relations Act sets out matters which the Commission may, in determining a claim, take into account. It is not necessary that the provision be reproduced. I observe that the section is not couched in mandatory terms. It suffices to say that I have considered the cases advanced by the parties in light of the terms of the section, but I do not propose to address seriatim the matters to which it refers.
Teaching Service Act
1. Ms Cross was employed in the Teaching Service, within the meaning of s 44 of the Teaching Service Act. The provisions of that Act are relevant in the consideration of the application.
2. Part 4A of the Teaching Service Act is titled "Management of conduct and performance". The objects of that Part are set out in s 93A: "to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service", "to protect and enhance the integrity and reputation of the Teaching Service" and "to ensure that the public interest is protected".
3. Section 93D(1)(b) of the Teaching Service Act empowers the Secretary to issue guidelines for the purposes of "the taking of disciplinary action with respect to officers under this Part, including disciplinary action in relation to unsatisfactory performance". The term "disciplinary action" is defined in s 93B(1) to include dismissal from the Teaching Service or "directing the officer to resign, or to be allowed to resign, from the Teaching Service within a specified time."
4. Sections 93H and 93J of the Teaching Service Act are in the following terms:
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
(1) This section applies to officers other than school principals.
(2) If the Secretary is of the opinion that an officer's performance is still unsatisfactory following the completion of a performance improvement program for the officer or following the officer's failure to participate in, or to satisfactorily complete, such a program, the Secretary may do either or both of the following:
(a) take remedial action with respect to the officer,
(b) take disciplinary action with respect to the officer.
(3) To avoid any doubt, remedial action with respect to an officer is not required to be taken before disciplinary action is taken under this section with respect to the officer.
(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. Section 8 of the Teaching Service Act provides that the Secretary may delegate any of her functions under that Act, with limited exceptions. There was no controversy that Ms O'Meara, as Principal of the School, had the delegation to act as the Secretary for the purposes of s 93H and that Mr Anderson held the delegation to take disciplinary action pursuant to s 93J(2)(b).
2. Section 5A of the Teaching Service Act is of particular importance. It relevantly provides that the protection of children is to be the paramount consideration in taking any action with respect to an officer under that Act, despite anything in the Industrial Relations Act or any other Act or law.
3. In Buchanan, Commissioner Newall observed:
"19. The matter of course does not end there. What we have in my view is a teacher who did not satisfy a TIP. It is not mandatory to dismiss such a teacher although a dismissal on the basis of a perceived lack of competence may well arise from failure successfully to complete a TIP. Indeed such a failure might well, in the usual the case, be a sound basis for dismissal. Again I note here that the applicant was invited to resign rather than suffer the stigma of dismissal in the first instance but she declined, which of course was her right. And although it may well be usual, and indeed it may well generally be justified, to dismiss a teacher who has not been able to demonstrate competence through the mechanism of a TIP, the decision to dismiss a teacher for lack of competence does not necessarily and ineluctably follow from an unsuccessful TIP.
20. It must be considered that teachers are generally vocationally committed to teaching and invest, in many cases, their lives into it; Mrs Buchanan is no exception to that. Any such determination of the future of a teacher has to go further than a simple assessment of whether or not a TIP has been successfully completed. It has to have regard to all of the facts and the circumstances including the career history of the teacher and including the circumstances under which the TIP was in fact carried out.
21. Included of course in those matters if not at the head of those matters is s 5A of the Teaching Service Act 1980. There is an imperative on this Commission as well as on the department, the respondent, to ensure the protection of children under s 5A of the Teaching Service Act.
22. That has been held in a number of cases: New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32, which was upheld on appeal, it is one, and Cassis v NSW Department of Education and Training [2006] NSWIRComm 164 is another. In Balsters, Sams DP held: 'the term "protection of children" extends to the protection of children from teachers whose unsatisfactory performance arises from an inability to demonstrate effective classroom management or an inability to provide a safe and challenging learning environment. To put it bluntly, the Teaching Service Act requires the Department to ensure that children are protected from incompetent, ineffective, hopeless or indolent teachers.'
23. Those are a flourish of words used by the learned Deputy President, and they ought not be seen to be definitive about the degree of protection to be afforded. 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 a 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."
(Italics and underlining in original)
The questions for determination
1. There are two matters for determination in these proceedings: first, whether the dismissal harsh, unreasonable or unjust within the meaning of s 84 of the Industrial Relations Act; and second, if so, whether the Commission should make an order under s 89 of that Act to remedy any unfairness in the dismissal.
2. Ms Cross levelled criticism at the conduct or motivations of a number of people. She also led evidence of the broader factual context against which she said her performance throughout the relevant period, and in particular during the ETIP, ought to be viewed. These matters can only be relevant if they have a bearing on the matters for determination that I have identified. My consideration of the matters raised by the parties is confined to those questions. I do not propose to conduct an enquiry more broadly into the management of the School or its human resources practices.
Was the dismissal unreasonable or unjust?
The impact of COVID
1. In her closing written submissions, Ms Cross submitted:
"35. There is no doubt, and it is a matter about which the Commission may take judicial notice, COVID impacted everyday life in very significant ways, including the spectre of lockdowns. Further, it may have regard to the restrictions in place as a result of COVID. The effects of COVID in schools went beyond lockdowns in that parents were not allowed on site and this changed the level of casual interaction between parents and teachers. Ms O'Meara agreed that COVID increased some of the difficulties associated with running the ETIP due to the impact on the school, by reference to: work from home orders and restrictions on the number of teachers allowed in the school.
36. Ms O'Meara agreed that Ms Cross worked at the school on weekends, corroborating Ms Cross's evidence that she worked on weekends. She did not agree that Ms Cross attended 'routinely', but in later evidence said it was 'not unusual'. It was Ms Cross's evidence that she did so because she lived with her parents and had poor internet connection at home. COVID thus made Ms Cross's work as a teacher more difficult during the relevant period from that perspective alone. …
37. Ms O'Meara also agreed that staff at the school were stressed 'at times' due to the impact of stay at home orders. She accepted that COVID effected [sic] everyone differently with regard to the vulnerability of employees or their family members. She also accepted that COVID resulted in significant changes in the way in which teachers did their work, including teachers:
a. had to shift to electronic modes of delivering education instead of face to face;
b. had to deal with issues arising from students' lack of access to technology, causing stress for students and staff;
c. had to assist parents to make the shift where students were learning from home;
d. finding it more difficult to keep up with school attendance and welfare issues, causing added stress for teachers who had children with welfare issues (noting the Applicant taught several students who had welfare issues);
e. and the school community not knowing how long it was going to last, also causing stress to the school community.
38. In large part, Ms O'Meara's evidence corroborated that of Ms Cross, but also the research by Newcastle University as to the impact on COVID on staff and students of New South Wales schools."
(Footnotes omitted)
1. The "research by Newcastle University" to which these submissions refer was contained in a report authored by Laureate Professor Jenny Gore, Dr Leanne Fray, Dr Drew Miller and Associate Professor Jess Harris, with Mrs Wendy Taggart, titled "2020 Report to the NSW Department of Education – Evaluating the Impact of COVID-19 on NSW Schools" dated December 2020.
2. I can and do take notice of the significant disruption caused by COVID. I accept the statement by Ms Cross in her second affidavit that "[t]he impact [of COVID] on teachers was extraordinary". I note the evidence of Ms Nugent in cross-examination that COVID led to "an unprecedented interruption to the provision of education" and her acceptance that the first months of 2020 was "one of the most difficult [periods] for all teachers in New South Wales in education history".
3. The Secretary submitted that Ms Cross's suggestion that COVID had an impact on her performance was "revisionist history", given that she did not raise it as a consideration in her submission to Mr Anderson of 4 March 2022. I do not need to go that far. The failure of Ms Cross previously to assert COVID as a possible excuse for unsatisfactory performance has a bearing on the weight to be attached to this aspect of Ms Cross's case. Of more significance in this regard is her reliance on COVID as such an excuse, while at the same time disputing that there was ever any basis for calling her performance into question.
4. There are two further observations to be made, having regard to the matters requiring determination in these proceedings. First, the evidence as to the impact of COVID on the ETIP (conducted between May and September 2021) is less clear than the evidence of the disruptions caused in 2020. Over the period of the ETIP, there was a period of home learning, for a part of which the ETIP was paused. Under cross-examination, Ms Cross accepted that to the extent that COVID had an impact on the ETIP, it was in the last week of the program.
5. Second, Ms Cross did not explain how COVID prevented her from performing to the standards expected of her whilst under the ETIP. Her case in this regard is largely assertion; that is, that if there were deficiencies in her performance, these are to be ascribed – at least in part – to the existence of COVID. Ms Cross did not "close the loop" between the presence of COVID and the outcomes of the observations under the ETIP.
6. Considering the arguments advanced by the parties on this question, and having regard to the matters canvassed elsewhere in this decision, I accept the following contentions in the Secretary's closing written submissions:
"201. While the Respondent does not dispute that COVID-19 impacted everyday life and would have affected ways of working at the School, the Respondent submits that COVID-19 did not impact the correctness or fairness of the performance process or the finding that the Applicant's performance was unsatisfactory. There are a number of reasons for this.
202. First, Ms Nugent's evidence indicates that there were issues with the Applicant's performance from the start of 2019, around a year before a pandemic was declared. The performance issues that Ms Nugent was concerned about are consistent with the performance issues that the Applicant demonstrated in 2020 and 2021, including during the ETIP. That is, it is not the case that the performance issues arose as a result of COVID-19; they arose before the pandemic and persisted after it.
203. Second, a government imposed COVID-19 [sic] affected only a very small proportion of the overall ETIP. This occurred when New South Wales went into a government imposed COVID-19 lockdown on 14 August 2021 at the end of Week 9 of the ETIP, with only about one week left in the ETIP. Notwithstanding this, to address the fact that teaching practices were significantly affected during the lockdown period the ETIP was paused between 15 August 2021 and 9 September 2021. Before the ETIP recommenced, Ms O'Meara made adjustments to the relevant five-week schedule for the ETIP to account for COVID-19 related disruptions. There was only one scheduled activity that could not occur because of the COVID-19 related disruption to the ETIP.
204. Third, there is no evidence or suggestion that the tasks on which the Applicant was assessed during the ETIP were not ordinary teaching and leadership tasks. The ETIP tasks involved lessons, lesson plans, programs, agendas, data analysis etc. There is no good reason that COVID-19 should have impacted the Applicant's performance on these tasks such as to affect the outcome of the assessments of her performance."
Events prior to the ETIP
1. There was a significant emphasis in Ms Cross's evidence and submissions on the events preceding the ETIP. She contended that the evidence revealed that Ms Nugent and Ms O'Meara were prejudiced against her, and were resolved to see her removed from the Teaching Service. As a consequence, or in any event, any support provided to Ms Cross in respect of her performance was inadequate. That is, had proper and impartial support been provided, the ETIP would never have been required. As Ms Cross submitted in her closing written submissions, "there was no proper basis for putting her on an ETIP as she had never really been properly supported to address any issues identified".
2. The Secretary contended that Ms Cross was seeking to distract from the real question for determination in this case, which was whether her dismissal was harsh, unreasonable or unjust. He argued that that this was the necessary test, "not whether the dismissal was unlawful or entirely consistent with the [Secretary's] policies and procedures with respect to an ETIP".
3. In Buchanan, Commissioner Newall observed:
"12. An employed teacher does not have the ability to reject a principal's view of whether or not he or she needs improvement. If it is determined that a TIP is necessary, that can be canvassed by, for example, a teacher's representative union and there is an ability to negotiate the content of a programme, but if a view is formed that a TIP is to be done, then it is to be done."
1. I respectfully agree with these observations. However, if the "principal's view" is affected by bias, discrimination or other improper motives, it is a matter which might have a bearing on the Commission's assessment as to the fairness or otherwise of the ETIP process itself, and any dismissal which results from it. Accordingly, it is proper to consider the case advanced by Ms Cross in that regard.
Ms Nugent's involvement
1. Ms Cross placed significant emphasis on Ms Nugent's conduct, and in many respects painted her as the instigator or architect of the process culminating in Ms Cross's dismissal. Ms Nugent was said to be prejudiced against Ms Cross for reasons amounting to disability discrimination and, to a lesser extent, age discrimination. Examples of the ways in which this prejudice was allegedly manifested are Ms Nugent:
1. holding Ms Cross to a higher standard than that to which she held other teachers, and beyond that required by the Department. This related in part to a document created by Ms Nugent in Term 1 of 2019, in which she stated that she expected Ms Cross "to be meeting Highly Accomplished standards", when she should only have been assessed against at the "Proficient" level;
2. failing to handle complaints against Ms Cross in accordance with the Staff Complaint Procedure;
3. reducing Ms Cross's "opportunities for leadership" within the School, including removing Ms Cross from the Maths KLA Planning Team and not inviting Ms Cross to speak at team meetings;
4. raising allegations of poor performance against Ms Cross without a proper basis;
5. failing to consider the impact of COVID on Ms Cross's performance; and
6. failing to provide Ms Cross with the necessary support to address the performance concerns that had been raised, ensuring that Ms Cross would fail.
1. There is no evidence that Ms Nugent had any involvement with or regarding Ms Cross after Ms Nugent left the School in October 2020. It was not her decision to place Ms Cross on the ETIP, and she played no role in assessing Ms Cross's performance under the ETIP.
2. It follows that the evidence of the interactions between Ms Cross and Ms Nugent between 2019 and 2020 is of limited relevance unless I could be satisfied that Ms Nugent's alleged malfeasance was of such gravity that it infected all that later transpired. I am not so satisfied.
3. The fundamental premise of Ms Cross's position was that there was a linear and causal connection between Ms Nugent raising concerns with Ms Cross and her ultimate dismissal. This included Ms O'Meara being inveigled into Ms Nugent's scheme to see Ms Cross dismissed from the Teaching Service, either as a result of Ms O'Meara willingly becoming Ms Nugent's accomplice or unwittingly becoming her stooge.
4. I have already made observations as to the reliability of Ms O'Meara's evidence. In her oral evidence, when challenged as to what she did or did not do, she repeatedly stated that she had simply followed the advice of PES. There is some cause to suggest that she might indeed have uncritically accepted what Ms Nugent put to her or, as Ms Cross stated in her closing written submissions, "simply adopted what Ms Nugent said as the truth without any independent thought or investigation". However, in light of all of the evidence I do not accept that proposition.
5. Ms O'Meara acknowledged in her evidence that in anticipation of taking up the position of Acting Principal of the School she had a number of conversations with Ms Nugent concerning Ms Cross. She stated that at that time she accepted what Ms Nugent told her without making further enquiries. She similarly accepted as accurate the documents provided to her by Ms Nugent. However, there was no reason why should have acted otherwise.
6. Ms O'Meara was directly responsible for managing Ms Cross from 12 October 2020, from which time she said she "regularly engaged with PES to obtain information and guidance about how best to manage the concerns about Ms Cross's performance". Ms Bristina deposed that she was one of those who provided "guidance and advice" to Ms O'Meara. The evidence of the steps taken by Ms O'Meara and others from October 2020 until the commencement of the ETIP on 31 May 2021 suggests that Ms O'Meara did more than blindly follow the path laid down by Ms Nugent.
7. Further, Ms O'Meara denied under cross-examination that she held the view at the time the ETIP commenced that Ms Cross ought to be removed from the Teaching Service. Ms Bristina gave evidence under cross-examination that it was not her understanding that Ms O'Meara thought that Ms Cross would not succeed on the ETIP, but that Ms O'Meara's intention was to help Ms Cross succeed. Ms Nugent denied under cross-examination that she encouraged Ms O'Meara to place Ms Cross on an ETIP.
8. On all of the evidence I am not persuaded that, even had Ms Nugent been acting on an improper basis, that motivation should be imputed to Ms O'Meara such as to call into question the probity of the process that resulted in a dismissal nearly two years later. It follows that the evidence of what Ms Nugent is alleged to have done, or not done, or her motivations, are of little assistance in determining the matter currently before the Commission.
9. That said, I do not accept that Ms Nugent's conduct can be impugned on the basis alleged by Ms Cross. Given the conclusion I have reached immediately above, my reasons for forming this view can be stated relatively briefly.
No discrimination
1. I am not persuaded that Ms Cross was the subject of unlawful discrimination which rendered her dismissal unfair. It is appropriate to emphasise those words. To the extent that the Commission is empowered to consider whether the Secretary breached the Anti-Discrimination Act, it can only be for the purpose of determining whether Ms Cross's dismissal was harsh, unreasonable or unjust within the meaning of s 84 of the Industrial Relations Act: see Davidson v Commissioner of Police (No 3) (2022) 320 IR 150; [2022] NSWIRComm 1102 at [30]-[31].
2. Ms Cross alleged that she had been subjected to discrimination on the basis of disability, as defined in s 49B of the Anti-Discrimination Act, in breach of s 49D of that Act. To the extent that Ms Nugent is alleged to have engaged in discrimination, it was said to have been the result of Ms Cross having taken periods of sick leave in 2019. The discrimination was said to have been evidenced in four ways.
3. First, Ms Cross relied on the coincidence of timing between her taking sick leave and Ms Nugent raising performance concerns. As Ms Cross contended in her closing written submissions in reply:
"The Commission must in this case, make sense of why a long serving employee whom other staff, including Mr Roberts during the ETIP process, considered her a quality teacher, suddenly became a poor performer at a time that happened to coincide with her becoming unwell."
(Footnote omitted)
1. The suggestion that there was a coincidence between Ms Cross taking sick leave and Ms Nugent raising performance-related concerns is not borne out of the evidence. Ms Nugent's concerns arose prior to Ms Cross taking sick leave. In her affidavit, Ms Nugent deposed that she first started to have concerns in relation to Ms Cross's performance and conduct in Term 1, 2019. She also stated that "around this time" she was "not seeing clear evidence of Ms Cross' educational leadership skills". Under cross-examination, Ms Nugent stated that there had been a "build-up" of these concerns prior to 2019.
2. Second, Ms Cross deposed that Ms Nugent was critical of her taking sick leave. In her second affidavit she stated:
"30. During 2019 I took periods of personal leave when I was unwell.
31. Ms Nugent was not happy when I took leave and when I returned, she would tell me how the other non-teaching Executives were inconvenienced because they had to attend my class for multiple issues. After one period of leave, Ms Nugent told me that she would no longer employ casuals to take my class when I was on leave and that my class would be split between the other classes if I had to take leave, and the other teachers would know that I was the reason for inconveniencing them."
1. Ms Nugent denied the matters alleged in par 31 of that extract. She also denied that her concerns with Ms Cross had more to do with the amount of sick leave being taken than her performance. She admitted, however, to having concerns with "negative impacts on the students in her class due to inconsistency of teaching and teachers available to work with that class". I accept Ms Nugent's evidence in relation to these matters.
2. Third, Ms Cross deposed that her pay had been "docked" as a result of her absences. This appears to have been the result of previously authorised sick leave being found to be unauthorised. Ms Cross failed to establish to my satisfaction that this was the fault or responsibility of Ms Nugent.
3. Fourth, Ms Cross relied on an email sent by Ms Nugent to Charles Gauci of the Department's Teacher Performance Management and Improvement ("TPMI") project team on 22 August 2019, which included the following:
"Heather does take an unusual amount of leave, unexplained, possibly mental health concerns."
1. This email was said to evidence "Ms Nugent's dissatisfaction about Ms Cross's absences from school".
2. In her affidavit, Ms Nugent stated that her email to Mr Gauci was a request for assistance from TPMI to support her and Ms Cross achieve the desired improvements in Ms Cross's performance. The email opened with the following:
"Following our phone conversation I am emailing you the details of an Exec [sic] member I have performance concerns about, some context as well as previous support interventions offered."
1. In context, there was nothing untoward in Ms Nugent raising the fact that Ms Cross was taking "an unusual amount of leave". It was a matter that might have a bearing on the advice that Mr Gauci would provide as to the support to be offered to Ms Cross. It was not the case, as was suggested to Ms Nugent in cross-examination and which she denied, that Ms Nugent was "effectively raising a disability as a problem as if it was performance-related".
2. Ms Cross also contended that she had been the victim of age discrimination. The primary basis of the assertion is a statement made by Ms Nugent during a meeting with Ms Cross and Ms O'Meara on 23 September 2020 that an approach to teaching proposed by Ms Cross was "an old-fashioned way of teaching". Ms Cross also suggested that Ms Nugent was "annoyed" at the fact that, in response to an earlier query from Ms Nugent, Ms Cross had stated that she had no aspirations to become the principal of a school.
3. Ms Nugent denied that she drew any negative conclusions from Ms Cross's lack of ambition to be a principal. She stated, credibly, that she asks all executive teachers of their aspirations so as to ensure that she could support the leadership directions that they were working towards. Under cross-examination she denied that in using the term "old-fashioned" she intended to denigrate Ms Cross due to her age or that she considered that Ms Cross "should be put out to pasture". She observed that she and Ms Cross are "both of the same vintage". I accept Ms Nugent's evidence on these matters. I am not persuaded that Ms Cross was subjected to age discrimination by Ms Nugent.
No differential treatment
1. I am similarly not persuaded that Ms Nugent subjected Ms Cross to differential treatment, in the sense of holding her to a different and higher standard than she expected of other executive teachers.
2. Ms Cross placed significant emphasis on the fact that in a document titled "Professional Program/Documentation" prepared by Ms Nugent for Term 1 2019, Ms Nugent, in a comment addressed to Ms Cross, stated "As an Assistant Principal I do expect you to be meeting Highly Accomplished standards". It was common ground that all relevant times Ms Cross was only required to meet the Teaching Standards at the "proficient" level, not at the level of "highly accomplished". That is a particular level of accreditation for which teacher must apply and qualify. Ms Cross had not done so.
3. Ms Nugent stated under cross-examination that she used the "highly accomplished" level as a framework that a teacher in a leadership role might aspire to. She accepted that she should not have expected Ms Cross to meet a "highly accomplished" level of performance. She said that her understanding in this regard had been "corrected" when she sought assistance from TPMI. This "correction" is evidenced in an email Ms Nugent sent to Ms Cross on 16 September 2019, in which she described one of the purposes of an upcoming meeting to be "Addressing the Australian Professional Standards for Teachers at proficient – areas for discussion/further development".
4. I am satisfied that Ms Nugent made a mistake, and for a period had been acting under a misapprehension. The evidence does not rise to the point of establishing that Ms Cross had been singled out for differential treatment, and certainly not for ulterior purposes. In any event, I do not consider that this issue has any bearing on the matters requiring determination in these proceedings.
5. Ms Cross's performance was never assessed at the "highly accomplished" level. Further, with Ms Nugent's misapprehension having been corrected by TPMI, I fail to see how it has any relevance on Ms O'Meara's decision to place Ms Cross on the ETIP or, more particularly, the assessment of Ms Cross's performance during the ETIP.
Whether performance management was required and, if so, properly conducted
1. In her opening written submissions, Ms Cross contended:
"10. In short the Commission cannot be satisfied that there were any grounds for having concerns about Ms Cross's performance in 2019 as asserted by Ms Nugent. To the extent that Ms Nugent clearly asserts that now, it is a retrospective assertion aimed at bolstering her actions in undermining Ms Cross's relationship with Ms [O'Meara], the new Principal from Term 4 2020 and falsely asserting there were issues with Ms Cross's performance at around the time Ms [O'Meara] took over the Principal role. ..."
1. For the reasons set out above, I do not accept that Ms Nugent was motivated by animus towards Ms Cross. It follows that there is no substance to the suggestion that she would deliberately have sought to undermine the relationship between Ms Cross and Ms O'Meara.
2. Ms Cross's contention that there were no grounds for her performance to be called into question in 2019 is consistent with her approach to these proceedings generally, but is inconsistent with the evidence. The suggestion that Ms Nugent's evidence in this regard is recent invention is inconsistent with contemporaneous records and must be rejected.
3. Ms Nugent's affidavit described in detail her attempts throughout 2019 and 2020 to identify and address the concerns that she had with Ms Cross's performance. These attempts are evidenced in part in contemporaneous documents exhibited to the affidavit. In her oral evidence, Ms Nugent referred to having had "regular discussions" with Ms Cross regarding her performance, although she conceded that these were not all reflected in her affidavit.
4. I have already referred to the email that Ms Nugent sent to Mr Gauci of TPMI on 22 August 2019. That email evidences both Ms Nugent's concerns with Ms Cross's performance, and that support had been offered to her.
5. Ms Cross disputed that she had received all of the support suggested in the documents created by Ms Nugent in 2019 and 2020. However, the support certainly included at least meetings that Ms Nugent arranged between Ms Cross and Mr Roberts and Mrs Barnes to assist her with programming. She also made arrangements for Michelle Scott, the Assistant Principal, Learning and Support at the School, to assist Ms Cross with preparing individualised student learning and behaviour plans, although Ms Cross did not avail herself of that opportunity. This support is further evidence of the fact that Ms Nugent had concerns with Ms Cross's performance and had sought to address them.
6. Having said that, Ms Nugent conceded that there were shortcomings in the approach that she adopted. In her cross-examination she had the following exchanges with counsel for Ms Cross:
"Q. I want to put a general proposition to you. The true state of affairs in 2019 was not that you had put in place any informal program aimed at improving Ms Cross' performance, was it?
A. That is incorrect.
Q. That is something you have constructed retrospectively, isn't it?
A. No. And, the evidence proves there, my connection with TPMI, who their specific purpose is to support the informal implementation of support in schools. It was a new unit within the department.
Q. Would you agree with me that in order to maximise the benefit of any such program, the person, the subject of the program, ought be made aware about the precise issues you have with their performance?
A. I absolutely agree.
Q. That you should tell them exactly how you think their performance is lacking by reference to clear examples.
A. Yeah, I agree.
Q. And, you never did that.
A. I was instructed not to. That was the process.
Q. And, did you turn your own mind to that yourself?
A. No.
Q. You - you just followed advice, did you?
A. Correct. To - with the TPMI. I met with them to generate the direction we would take. They provided mentoring."
And later:
"Q. When you are engaged in an informal process aimed at addressing concerns you have with a person's performance, would you agree with me, it is very important to be very clear about what your concerns are?
A. Now, I absolutely do. Yes. I agree with you.
Q. You would accept that you weren't at this time, is that correct?
A. I was advised by the TPMI team to not directly inform Ms Cross or anyone if they were on an informal support for concerns around work health and safety. That process did get changed at the end of 2019, as the document states, in the reviewed policy."
1. While Ms Nugent may have accepted that there were shortcomings in the approach that she adopted, it does not follow that there was no basis for the concerns she had raised. In any event, I am not persuaded that any such shortcomings in 2019 and 2020 call into question whether Ms Cross ought to have been placed on an ETIP in May 2021, much less assist in determining how Ms Cross performed on the ETIP.
Ms O'Meara's involvement
Ms O'Meara's motivations
1. I have already addressed, in large part, Ms Cross's contention that Ms O'Meara did little more than follow the path laid out for her by Ms Nugent to secure Ms Cross's removal from the Teaching Service. I do not accept that was the case.
2. I also do not accept Ms Cross's contentions that Ms O'Meara subjected her to unlawful discrimination. On the question of disability discrimination, Ms O'Meara gave evidence that although she was aware that Ms Cross had taken five weeks of leave between July and August 2020, she did not know at the time that it had been sick leave. She stated that Ms Nugent never told her that fact. Although Ms Cross submitted that I ought not to accept that evidence, I see no reason why I should not. Absent knowledge of Ms Cross's sick leave, there is no basis to suggest that Ms O'Meara would have commenced her oversight of the performance management process with discriminatory motives. That is not to suggest, however, that such knowledge in and of itself would suffice to establish discrimination.
3. To the extent that Ms O'Meara is alleged to have engaged in age discrimination, it suffices to say that Ms Cross's case does not rise higher than assertion.
4. As to the allegation that Ms O'Meara was otherwise biased against her, Ms Cross submitted that the bias was evidenced in a number of actions taken by Ms O'Meara in 2020 and 2021, including:
1. removing Ms Cross from the position of Stage Leader without consultation;
2. engaging with Ms Cross in an aggressive and unfairly critical manner during a conversation they had following a break-in at the School on 18 October 2024; and
3. failing to handle complaints against Ms Cross in accordance with the Staff Complaint Procedure, but rather accepting them at face value.
1. In her closing oral submissions, Ms Cross contended:
"94. Despite Ms O'Meara failing to recall much of this meeting in relation to the discussion of Ms Cross's preference for a role in the school in the new year, Ms O'Meara agreed that it was not Ms Cross's preference to be removed as leader of stage meetings and she was not given an off class role as part of the COVID intensive learning support program. It also appears clear that this was likely Ms O'Meara's decision, although she said (as she did for many questions) she did not recall. This is important because it shows that way before the ETIP was commenced, Ms Cross was already being removed from the role she preferred, her preferences for a role in leading a COVID intensive learning support program equivalent (which was subsequently funded) was ignored and she was given a role that she had never asked for and that effectively took away significant leadership opportunities. This indicates that Ms Nugent and Ms O'Meara had already made up their minds about Ms Cross's long term prospects of ongoing employment and that even if they were not, at that stage, consciously seeking to terminate her, they were certainly making her life at work more uncomfortable. That approach is also reflected in the refusal to properly deal with purported complaints about Ms Cross, while dealing with her as if they had been properly addressed and she had been found wanting (discussed further below)."
(Footnotes omitted)
1. It was clear on the evidence, written and oral, that Ms O'Meara considered Ms Cross to be a difficult person to manage, and indeed found her frustrating. It was also apparent that the relationship between Ms O'Meara and Ms Cross was fractious, but this is not something for which I consider Ms O'Meara should bear sole responsibility. In any event, it does not follow that Ms O'Meara was biased against Ms Cross to the point that she was orchestrating a process that would see Ms Cross placed on and fail an ETIP. She steadfastly denied under cross-examination that this had been her purpose.
2. It is relevant to observe that Ms O'Meara conducted three of the six observations in which Ms Cross's performance was rated as satisfactory.
Ms O'Meara's performance management of Ms Cross
1. Ms O'Meara gave evidence of her attempts to address her concerns with Ms Cross's performance after becoming Acting Principal of the School from Term 4 2020 and through to Term 2 2021. This included arranging for Ms Cross to be provided with informal and individualised support. For example, Ms O'Meara arranged for mentoring to be provided to Ms Cross by Mrs Barnes, in the form of observing Ms Cross's leadership skills and programming.
2. This evidence is corroborated by Ms Bristina, who deposed in her affidavit:
"10. I contacted Ms Melissa [O'Meara] (Relieving Principal of Bega Valley Public School) by either phone or Microsoft Teams (I cannot recall) at the end of Term 1 2021 and introduced myself as the Field Advisor replacing Ms Jen Hoy (who was returning to her substantive position in a school the following term). As the PEPMI, I was aware that Ms [O'Meara] had performance concerns about Ms Cross as I am responsible for delegating cases to EPMI Field Advisors. In addition, I was aware that Ms [O'Meara] was implementing informal and individualised support for Ms Cross. As the PEPMI engaged to assist Ms [O'Meara], I guided Ms [O'Meara] through this process of informal and individualised support and ensured that she was aware of the proper process to follow and that Ms Cross was being supported and provided with an opportunity to improve her performance."
1. Contemporaneous documents created by Ms O'Meara and Mrs Barnes reflect the concerns held by Ms O'Meara and the support that had been provided or offered to Ms Cross. These include the minutes of a "performance meeting" conducted on 27 November 2020, attended by Ms O'Meara, Ms Cross and Mrs Barnes; a document titled "Program Guidelines and Content" in respect of Term 4 2020, signed by Ms O'Meara; a "schedule of support"; a document recording a leadership observation conducted by Ms O'Meara on 3 December 2020; a document titled "Program Guidelines and Content" in respect of Term 1 2021, signed by Ms O'Meara; an email from Ms O'Meara to Ms Cross of 1 April 2021 titled "Feedback for term 1 and meeting request"; and, the minutes of a meeting between Ms O'Meara and Ms Cross on 26 May 2021, at which Ms Cross was informed that she was to be placed on the ETIP.
2. Ms Cross disputed the extent to which the concerns described by Ms O'Meara in her evidence had been raised with her, properly or at all. Ms O'Meara was challenged several times in cross-examination as to whether Ms Cross had been provided with "concrete examples" of the deficiencies in her performance and how she ought to address them. It was put to her that Ms Cross had been subject to an "amorphous process". The level of support provided to Ms Cross was also brought into question.
3. In this regard, it is noteworthy that the minutes of a "performance meeting" conducted on 27 November 2020, attended by Ms O'Meara, Ms Cross and Mrs Barnes, include the following:
"When asked if there was anything else [that] could be provided that would be beneficial in terms of supporting Heather to improve her practice she replied 'no'."
1. As was the case with Ms Nugent, there is reason to question whether all of Ms O'Meara's concerns were put to Ms Cross in a manner optimally designed to result in improvement. There is also some doubt as to whether the support offered to Ms Cross was as extensive as Ms O'Meara recalls. However, the evidence reveals that Ms O'Meara had concerns with Ms Cross's performance; that she sought to address those concerns, including through enlisting the support of PES; that some level of informal and individualised support was provided to Ms Cross; and that Ms Cross's performance did not improve to the standard expected of her.
Staff Complaints
1. I will address separately a claim that was made by Ms Cross in respect of both Ms Nugent and Ms O'Meara, namely that they failed to address staff complaints against Ms Cross in accordance with the Staff Complaint Procedure. Instead, it was said that they accepted the complaints at face value as demonstrating that Ms Cross had in the relevant incidents acted inappropriately. This conduct was said to demonstrate the bias of Ms Nugent and Ms O'Meara against Ms Cross. This was exacerbated in the case of Ms O'Meara as the existence of the complaints was one of the reasons she had given as to why she had decided to place Ms Cross on the ETIP.
2. There was some controversy between the parties as to whether the matters that had been raised with Ms Nugent and Ms O'Meara were "formal complaints" or "concerns". The category into which they fell would have a bearing on how they were to be addressed under the Staff Complaint Policy. For the reasons which follow, it is not necessary that I resolve this controversy. I observe only that in some of the documents in evidence each of Ms Nugent and Ms O'Meara appear to have described the complaints as "formal complaints", although it is unclear whether this was done with particular reference to the Staff Complaint Procedure.
3. Ms O'Meara conceded that she accepted the complaints she received as accurate, that she did not put the complaints to Ms Cross at the time they were made and that she did not commence an investigation into them. There is equally no evidence of Ms Nugent putting the staff complaints to Ms Cross or investigating them.
4. Whether or not the complaints were "formal complaints" calling for investigation under the Staff Complaint Policy, it is apparent that the failure to properly address them with Ms Cross at the time leaves a lot to be desired. Ms O'Meara accepted under cross-examination that she "would do differently next time".
5. However, as previously observed, the task of the Commission is not to conduct a review into the management of the School. The question as to whether the complaints were properly handled is only relevant if it goes to the fairness or otherwise of Ms Cross's dismissal. I am not satisfied that it does. It may suggest mismanagement, but I am not persuaded that it demonstrates bias or predetermination as Ms Cross submitted.
Conclusions
1. I am not satisfied that either Ms Nugent or Ms O'Meara discriminated against Ms Cross, whether on the basis of disability or age. I do not accept Ms Cross's contention that Ms Nugent, and subsequently Ms O'Meara, were biased against her and embarked on a process calculated to ensure that she was placed on, and would fail, an ETIP, so as to secure her removal from the Teaching Service. To the extent that Ms Cross alleges that her dismissal can be impugned on that basis, I reject her arguments.
2. I am satisfied on the evidence, and in particular the contemporaneous or near-contemporaneous documents that are in evidence, that Ms Nugent and Ms O'Meara raised concerns with Ms Cross regarding her performance from 2019 onwards. I accept that the level of support given to Ms Cross was less than that described in the evidence of Ms Nugent and Ms O'Meara, but the fact remains that some support was offered. Ms Nugent conceded that the process she adopted could have been better, and I consider that taken by Ms O'Meara also left something to be desired. However, it cannot be said that the performance improvement process prior to the implementation of the ETIP was entirely lacking in substance or fairness.
3. The insistence by Ms Cross that she needed to be provided with more precise details and "concrete examples" of deficiencies and clear instructions as to how to improve to the requisite standards has to be seen in light of a lack of evidence that she sought such clarification. The same can be said for her complaints as to the lack of support with which she was provided (or which was offered to her), noting that on at least one occasion she stated that she needed no such support.
4. Ultimately, it was Ms Cross's position that she ought never have been put on the ETIP. She said as much in her oral testimony under cross-examination. Further, in her closing written submissions, Ms Cross relied on the concessions made by Ms Nugent as to the shortcomings in the approach she took to manage her performance (see [152] above) to contend:
"88. This was an admission that Ms Nugent considers the way she treated Ms Cross was wrong. The fact that her evidence about what she was supposed to tell Ms Cross was largely consistent with what Ms O'Meara says, means that approach was continued and that it was also wrong. This evidence alone counts very heavily in favour of a finding in favour of the Applicant because this means there was no proper basis for putting her on an ETIP as she had never really been properly supported to address any issues identified."
1. To my mind, this submission falls into the category of "rejecting the Principal's view that she needed improvement", to paraphrase the language of Commissioner Newall in Buchanan at [12]. As much as Ms Cross may have disagreed, and continues to disagree, with Ms O'Meara's decision to place her on the ETIP, there is no basis to find that when making that decision Ms O'Meara was acting with ulterior or improper purposes. I am satisfied that Ms O'Meara held concerns with Ms Cross's performance and conduct which she genuinely believed needed to be addressed through an ETIP.
2. Having regard to all of these matters, I accept the following submissions in the Secretary's closing written submissions:
"144. In a primary school context, the support provided to the Applicant by Ms Nugent and Ms O'Meara, who are not human resource professionals (although they obtained advice and guidance, appropriately, from the TPMI team), was clearly adequate.
145. When the Applicant was asked by Ms O'Meara on 27 November 2020 whether there was anything else could be provided that would be beneficial in terms of supporting her to improve her practice, she responded in the negative. This is instructive and the Commission would take notice of it.
146. To the extent that the Commission may find that additional support, or an additional type of support, should appropriately have been provided to the Applicant before she was placed on the ETIP (which is denied by the Respondent), this would not weigh heavily against the Respondent in circumstances where, on any view, individualised support was provided on a number of occasions, and this all occurred prior to the ETIP during which further support was provided to the Applicant.
147. It is also difficult to understand how the Applicant argues that there was no clear advice to her prior to the ETIP regarding what the issues were with her performance and what she needed to do to improve. Both Ms Nugent and Ms O'Meara provided information to the Applicant about the APST and Executive Criteria (including by specifically identifying Teaching Standard 3 and Executive Criteria 1, 3 and 4), as well as specific feedback regarding her programming and leadership. This occurred on a number of occasions, both in in-person discussions and in writing. The Commission would accept that the Applicant was clearly on notice about the concerns regarding her performance and what the standards were expected of her to address those concerns and the fact that she does not concede this demonstrates she has a lack of insight into her own performance and the concerns that were being raised."
(Footnotes omitted)
The ETIP
Allegations regarding Ms O'Meara's motivations around the establishment and conduct of the ETIP
1. Ms Cross's challenges to Ms O'Meara's motivations continued in the form of allegations as to the way in which she established and conducted the ETIP, and in her treatment of Ms Cross during the period of the ETIP. There were three key allegations in this regard: first, that Ms O'Meara ensured that those appointed to observe Ms Cross's performance during the ETIP were predisposed towards making adverse findings against her; second, that Ms O'Meara took action to undermine Ms Cross's standing with other staff at the School; and, third, Ms O'Meara created documents which presented a one-sided and misleading perspective as to Ms Cross's performance.
2. Through her conduct, Ms O'Meara was said to have undermined the relationship of trust which was required in order for the ETIP to result in a fair outcome.
Appointment of observers
1. Ms O'Meara was responsible for appointing the teachers who were to observe and assess Ms Cross's performance during the ETIP. Ms Cross took issue with Ms O'Meara appointing Ms Warne and Ms Bristina, both of whom were said to have lacked independence. In Ms Warne's case, this was due to her having made a complaint about Ms Cross which had not been investigated or resolved. Ms Bristina was said to lack independence as a result of her having been providing Ms O'Meara with advice as to how to manage Ms Cross's performance for some time prior to the ETIP. Under cross-examination, Ms O'Meara conceded that she did not turn her mind to the question of how to determine the independence of the observers.
2. Ms Warne made at least one complaint against Ms Cross. I do not consider that this fact alone should disqualify her from being an observer of Ms Cross's performance under the ETIP, although I am mindful that Ms O'Meara conceded under cross-examination that this created a "perception of bias, possibly".
3. At [57]-[58] above I considered some of the evidence as to the relationship between Ms Warne and Ms Cross, noting in particular the statement in Ms Warne's affidavit that she "found Ms Cross to be a difficult teacher to work with and a teacher who was not very effective". While Ms Warne's opinion of Ms Cross at the time she affirmed her affidavit may have been reasonably poor, it does not necessarily follow that she entered the ETIP process with a prejudiced outlook. If anything, her candour in admitting her opinion lends to the credibility of her evidence regarding her observations during the ETIP. Further, under cross-examination, Ms Warne denied that during the ETIP she had failed to adopt an approach to support Ms Cross improve her teaching.
4. It is relevant that in her oral testimony, Ms Cross deposed that she "discovered" Ms Warne's alleged "bias" when she read Ms Warne's affidavit in these proceedings. She ostensibly had no concerns of her own with her relationship with Ms Warne until that time.
5. In her oral evidence, Ms O'Meara disputed that there was in fact bias on the part of Ms Warne. She stated that she had "no reason to believe [Ms Warne] wasn't independent". She stated that Ms Warne was selected to be an observer as she was a Deputy Principal of the School, and it was necessary to appoint someone above the level of Assistant Principal (Ms Cross's position).
6. For her part, in her oral evidence Ms Bristina denied the suggestions that she was "not starting from the position of an open-minded observer" or that "the person tasked with supporting a principal to conduct an ETIP has a conflict in putting themselves in the position of providing direct support to a teacher undergoing an ETIP". She specifically denied that there was any such conflict in her being involved in Ms Cross's ETIP. She stated:
"There is no conflict. It's part of my role to do both tasks. …I'm impartial. I provide support. I can do a dual role. There's multiple facets to the role."
1. I accept that at first glance, having regard to the broader context, the involvement of Ms Warne and Ms Bristina in the ETIP is problematic. However, I am not persuaded that they harboured actual bias towards Ms Cross. There may be an apprehension of bias, but this is not enough of itself to call into question their assessments of Ms Cross's performance during the ETIP.
2. I observe that Ms Warne and Ms Bristina each provided one of the six "satisfactory" outcomes during the ETIP.
Attempts to influence observers
1. A further allegation made by Ms Cross was that Ms O'Meara sought to influence others involved in the ETIP process by telling them that in her view Ms Cross was "not up to the job". In particular, it was alleged that Ms O'Meara sought to "poison the well" with Mr Roberts, by sending him an email attaching her own initial (negative) feedback to Ms Cross as part of the ETIP. Under cross-examination, Ms O'Meara denied these allegations.
2. Ultimately, these matters are of little significance to the matters requiring determination. Apart from Ms O'Meara, Ms Warne and Ms Bristina, the only people involved in observing Ms Cross during the ETIP were Ms Martin and Mr Roberts. Ms Martin was not required for cross-examination, so there can be no question that her assessments are the subject of challenge. Mr Roberts was accepted by Ms Cross as a witness of truth, albeit subject to a sometimes poor recollection, and Ms Cross placed reliance on his testimony that during the ETIP he considered Ms Cross to be a "quality practitioner". There is nothing to suggest that Mr Roberts had been "swayed" by Ms O'Meara, so as to call into question the objectivity of his observations of Ms Cross during the ETIP.
Attempts to undermine Ms Cross during the ETIP
1. It was put to Ms O'Meara that she sought to undermine Ms Cross's reputation at the School during the ETIP in a number of ways, including by:
1. directing her not to attend Stage 2 meetings. This was said to deny Ms Cross the benefit of the information made available to teachers in those meetings, making it harder for her to successfully complete the ETIP; and
2. removing her responsibility for preparing a Risk Assessment for a Stage 2 excursion.
1. Ms O'Meara denied giving the direction regarding Ms Cross's attendance at Stage 2 meetings, and stated that it was a matter for Ms Cross to decide when the meetings were held and whether she attended them. I accept that evidence. As to the Risk Assessment, even on Ms Cross's evidence there is doubt as to whether this was a responsibility that she had (or even was aware of), so I do not consider that it can have been "removed" from her.
The documents created by Ms O'Meara during the ETIP
1. Every week during the ETIP, Ms O'Meara and Ms Cross took part in a review meeting. From week 5 of the ETIP, at the request of Ms Cross, Mrs Barnes attended those meetings as Ms Cross's support person. After each meeting, Ms O'Meara prepared minutes, which were provided to Ms Cross for consideration, comment and correction.
2. Ms Cross challenged the accuracy of those minutes, suggesting that Ms O'Meara painted a deliberately negative picture of Ms Cross's performance. I do not accept that submission.
3. Ms Cross was given the opportunity to review and make comment on the minutes. If she considered at the time that the minutes were inaccurate or misleading, she had a chance to raise that. She accepted under cross-examination that she could have sought to have the minutes amended if she believed there was an error in them. On a number of occasions, she made handwritten notations to correct or to add context to an entry. On all but one occasion, she signed the minutes.
4. In her affidavit, Mrs Barnes stated that Ms Cross "was not given time to review and respond to the minutes of the meeting before she was required to sign the minutes". Under cross-examination, she stated that at a review meeting she would be presented with the minutes from the previous one and be expected to sign them.
5. This evidence is not supported by the documents themselves. In eight out of ten occasions, Ms Cross signed and dated the minutes several days before the next scheduled review meeting. (There is no date given for the date on which Ms Cross signed the minutes of the review meeting of 10 August 2021, and she appears not to have signed the minutes of the meeting on 17 September 2021, although she did not deny receiving them.) I also note that there is no evidence that at the time Ms Cross asked for more time to consider and respond to any of the minutes.
6. For these reasons, I accept the minutes as accurately reflecting the meetings to which they refer.
Support provided during the ETIP
1. To assist her to meet the requirements of the ETIP, Ms Cross received an additional one day per week of "relief (or release) from face-to-face teaching" ("RFF") to that which she already had as an executive teacher. At the weekly review meeting on 20 July 2021, Ms Cross was offered but declined additional RFF time. The minutes state that she did so as she did not wish to spend any more time away from her class. At the weekly review meeting on 10 August 2021, the offer of additional RFF time was repeated, and this time was accepted by Ms Cross.
2. Other support offered to Ms Cross is reflected in the minutes of the "initial meeting" on 31 May 2021 and in the minutes of the weekly review meetings. Having regard to those documents, I accept the following summary contained in the Secretary's closing written submissions:
"160. A range of other support was offered to the Applicant during the ETIP, as outlined in the five-week schedules that were part of the ETIP plan and generally updated by Ms O'Meara on a weekly basis following weekly review meetings with the Applicant. The support included verbal and written feedback on work, discussion at weekly review meetings with Ms O'Meara, ongoing professional learning, additional RFF time to work with an executive colleague on planning, programming, assessment and reporting practices, referrals to the Respondent's Employee Assistance Program and the NSW Teachers Federation, and offers and encouragement to have a support present at all relevant meetings."
1. It is noteworthy that the minutes of the weekly review meetings reveal that the offers of support were generally initiated by Ms O'Meara. There is little evidence that Ms Cross proactively sought additional support, and some suggestion that she did not engage with the support that had been offered to her. In this latter respect, the minutes of the meeting on 21 June 2021 note "[c]oncerns that Heather is not engaging with all the support offered".
Criticisms of the ETIP process
1. Consistent with her arguments as to the deficiencies of the process which preceded the ETIP, Ms Cross levelled a number of criticisms at the process by which the ETIP was conducted. These included:
1. being provided with inadequate information in advance as to precisely what she was expected to demonstrate in each task or assessment required under the ETIP, particularly when she was asked to perform tasks that she had previously not done. Ms Cross once again contended that she needed to be provided with "concrete examples" as to how she was not performing to the requisite standard;
2. receiving inadequate feedback from the observers, which prevented her from understanding the areas in which she needed to improve and how she might demonstrate such improvement;
3. inconsistent feedback from one assessment to the next, amounting to a "shifting of the goalposts"; and
4. being provided with insufficient time to prepare for or complete tasks.
1. For the following reasons, I do not consider that these criticisms have substance, or sufficient substance to have a bearing on the questions requiring determination in these proceedings.
2. It appeared to me that Ms Cross sought to argue that that it was incumbent on the Department not only to identify with specificity the problems with her performance, but also to explain precisely by way of clear instructions what she needed to do on a task-by-task basis in order to meet the Department's expectations. For instance, the following exchanges occurred during Ms O'Meara's cross-examination:
"Q. There are varying approaches? Well, let me just ask you the general question. There are just varying approaches to the way in which teachers put together lesson plans, aren't there?
A. There are. Yeah.
Q. Yes. And, you never sat down with Ms Cross and said, 'When you put this lesson plan together I will expect to see X, Y and Z,' did you?
A. No.
Q. So, she was not in a position to understand how you were going to assess her lesson plan, was she?
A. No."
And later:
"Q. Thank you. Not a lot of detail in those minutes, is there, Ms O'Meara?
A. No. There's not.
Q. It certainly doesn't tell this Commission that you told Ms Cross exactly how she would be assessed in relation to that demonstration lesson does it?
A. No.
Q. Or, in relation to any other task in the ETIP does it?
A. No.
Q. That ETIP was supposed to be about supporting Ms Cross to improve, wasn't it?
A. Yes.
Q. You can only improve if you know what's expected? Do you agree with that?
A. Correct.
Q. Ms Cross did tell you before she undertook that lesson that she didn't know what she was being assessed upon, didn't she?
A. I don't recall the conversation.
Q. You've agreed it's possible?
A. It's possible.
Q. Would you agree that you haven't given evidence anywhere that you did tell her what to expect, did you?
A. I agree."
1. I find it unconvincing that Ms Cross would need to be told to show "X, Y or Z" in a lesson plan or be told "exactly how she would be assessed" when delivering a lesson. She had considerable experience as a teacher, including as an executive teacher. The onus was on her to demonstrate her proficiency in respect of Teaching Standard 3 and Executive Criteria 1, 3 and 4.
2. In this regard, I am mindful that in her first affidavit, Ms Cross deposed as follows:
"547. It was not acknowledged that some of the tasks that I was asked to do for the ETIP were tasks that I had not done before and I was doing the task for the first time during the ETIP."
1. As observed at [25]-[26] above, under cross-examination, Ms Cross could not recall what tasks she had been expected to do for the first time under the ETIP, or even why par 547 had been included in her affidavit. I am mindful that the minutes of the weekly review meetings record Ms Cross raising concerns at never having conducted a demonstration lesson for a beginner teacher. However, on balance I have afforded Ms Cross's arguments in this regard little weight.
2. Further, the matters in respect of which Ms Cross's performance was to be assessed were set out in a schedule that was developed at the commencement of the ETIP and subject to review and frequent adjustments at the weekly review meetings. There is some reference in the minutes of those meetings of Ms Cross expressing concerns that she did not know what was expected of her in some respects. However, the concerns as raised at the time do not appear to have been as wide-ranging as those presented in these proceedings.
3. The feedback that Ms Cross received during the ETIP came in a number guises. Most relevantly for present purposes are the written feedback reports provided to Ms Cross after each observation by the relevant observer. The feedback reports are contained in the ETIP Bundle. They were the primary focus of Ms Cross's criticisms as to the adequacy or consistency of the feedback she received. I also observe that in a number of instances Ms Cross was provided with verbal feedback, in advance of her receiving the relevant feedback report. Additional feedback was provided in the weekly review meetings.
4. Ms Cross's criticisms of the feedback she received fell very much into the category of asking the Commission to look at the trees but not the forest. This was reflected, for example, in the following passage from the cross-examination of Ms O'Meara, who was taken to a feedback report prepared by Ms Martin (who was not herself required for cross-examination) relating to an observation of a lesson conducted by Ms Cross which Ms Martin had found to be unsatisfactory:
"Q. You know that Ms Martin gave her an unsatisfactory result don't you?
A. Yes.
Q. I want to ask you a general question about your understanding of the reason for that based on your reading of those documents.
A. Sure.
Q. You understood Ms Martin said that because she believed Ms Cross was avoiding teaching Science.
A. No. I believe there was a comment that was said to Ms Martin around not liking Science. I'd have to read the quote. I can't remember it specifically but there was a comment around--
Q. Yes. Ms Martin made an assertion about something Ms Cross said to her, didn't she?
A. I think she - she had a computer with her, to my understanding, because she always provided her feedback directly to me after the lesson, so she--
Q. Did I ask you that?
A. You're asking about the words, so I'm not saying that she - I'm saying how she recorded the information from her observations.
Q. You understood from that assessment that Ms Martin, one of the reasons that she made that assessment was she believed Ms Cross was avoiding teaching Science. You understood that, didn't you?
A. There was a quote around Science but I'd have to see, read it again. So, you can read it back if you like.
Q. I'm not asking you to read it. I'm asking about your understanding, having read that document, as to one of the reasons why that decision was made, that it was unsatisfactory.
A. No. I believe it's about nine pages of feedback there about why it was unsatisfactory. That wasn't determined on one comment. There was none [sic – nine] pages of feedback that came to the reasons why that was an unsatisfactory observation."
1. Similarly, and again by way of example, in cross-examination Ms O'Meara was taken to a feedback report which she had prepared following her review and assessment of a lesson plan on 2 June 2021. Ms O'Meara was challenged at length on the words that she had included in a box on the feedback report, which she described as a summary of the feedback. The preceding two pages of the feedback report contained reasonably detailed feedback on the observation.
2. That feedback report is relevant for another reason. Ms Cross signed the document on 7 June 2021, and added observations in a box allowing for "optional comment". Ms Cross made no observation to the effect that she did not understand the feedback or that she required greater clarity as to what was expected of her. The same can generally be said for all of the feedback reports. That said, I note that the minutes of the weekly review meetings reflect Ms Cross occasionally making comment as to particular feedback she had received.
3. A number of the challenges that Ms Cross levelled at the feedback reports were premised on the broad contention that the observer had simply indicated a preference as to how a particular task might have been undertaken, when other approaches might be taken by an executive teacher which would have been equally satisfactory. The Secretary's witnesses generally accepted under cross-examination that there was no "one way" for Ms Cross to complete any of the tasks that were the subject of assessment under the ETIP and that alternative approaches to those suggested by the observers may have been equally valid.
4. However, it would seem to me to be fundamental to the ETIP process that the role of the independent observer is to bring their own judgement to the assessment. The fact that there may have been "another way" for Ms Cross to have undertaken the task than that proposed by the observer, does not overcome the fact that in the vast majority of cases the observers found that the approach taken by Ms Cross was not "the right way".
5. I do not consider that the evidence establishes that there was any "shifting of the goalposts" during the ETIP. The assertion relied principally on the fact that an observer, having conducted observations of a task, provided feedback in respect of later, similar one which was not provided in respect of the first. For example, on 26 June 2021 Ms Bristina assessed a lesson plan prepared by Ms Cross for a demonstration reading lesson. She found it to be unsatisfactory. On 4 August 2001 Ms Bristina assessed a lesson plan prepared by Ms Cross for a demonstration writing lesson, which she again found to be unsatisfactory. The following exchange took place during Ms Bristina's cross examination:
"Q. I want to ask you some questions about your subsequent assessment of Ms Cross' next lesson plan, and that starts at 1066. That's the document, isn't it?
A. Yes.
Q. I want to ask you these questions by reference to your earlier feedback on her lesson plan, which is at 972 to 973. Would you agree that you were also assessing a lesson plan for demonstration again? So it's a similar thing to what‑‑
A. Yes.
Q. ‑‑the first one was?
A. Yes.
Q. Would you agree with me that you were assessing against exactly the same criteria?
A. Yes.
Q. Would you agree with me that there are - you changed the goal posts between this document and the last one?
A. No.
Q. You make a concrete suggestion about creating an agenda that allows the teacher to observe the focus on significant components of the lesson, don't you?
A. Whereabouts?
Q. That's in the second - third paragraph, 1067, in the middle of that paragraph.
A. Yes, I can see that. Yep.
Q. You don't make that suggestion in the first one, do you?
A. No, but I would have said, 'What resources are you giving pre and post?'
Q. You could have made that suggestion in the first one, couldn't you?
A. Suggestions are a guide.
Q. Well, you could have made that suggestion in the first one.
A. I did, but in - in different words.
Q. You also made a suggestion about including pre and - pre lesson activity and post lesson activity, don't you?
A. Yes.
Q. Again, that is activity outside of what you were asked to observe, wasn't it?
A. No.
Q. At 1068, in relation to criteria 4, you provide completely new advice in relation to parents, don't you?
A. I give additional advice. Yes.
Q. You could have provided that advice in the first - in relation to the first lesson plan, couldn't you?
A. Well, advice is a guide and‑‑
Q. You were assessing Ms Cross' lesson plans as inadequate because she didn't do these kinds of things, weren't you?
A. If it was void, then I would make a suggestion of something that could have taken place.
Q. You didn't say anything about parents in the first lesson plan, did you?
A. No, I didn't.
Q. So you were changing the goal posts, weren't you?
A. No. The criteria was always there.
Q. The criteria was always there but your interpretation of it shifted and changed, didn't it?
A. I don't think so.
Q. It absolutely did, and it did with regard to the suggestions that are different, that you made in relation to the second lesson plan that you didn't make in relation to the first. Do you agree with that?
A. I make a suggestion as a guide. If it's not taken, I'll make a different suggestion to help someone get better."
1. I do not accept that simply by offering different feedback on similar tasks amounts to a shifting of the goalposts, such as to call into question the outcome of the assessment or, even less, the motivations of the observer. To suggest that feedback in respect of similar tasks must be consistent is akin to suggesting that there is a single or preferable way in which such tasks are to be performed. This is a contention which Ms Cross was at pains to refute.
2. There is similarly little substance to Ms Cross's suggestion that she had insufficient time to complete the tasks required of her under the ETIP. As I have already observed, Ms Cross was provided with additional RFF to enable her to complete the requirements of the ETIP. The tasks she was required to complete were identified in the schedule which was determined at the commencement of the ETIP and adjusted at the weekly review meetings.
3. These variations to the schedule were the cause of it becoming "crowded". This apparently resulted in the following entry in the minutes of the review meeting on 10 August 2021: "No more amendments on the schedule – stressed the need feedback in a timely manner and prevent overcrowding of the schedule [sic]."
4. Under cross-examination, Ms Cross appeared to accept that she bore at least some responsibility for the fact that the schedule became "crowded", as demonstrated in the following exchange:
"Q. It's true that your ETIP's schedule became crowded, correct?
A. Correct.
Q. And it became crowded because you required more time to hand work in?
A. On some occasions, yes.
Q. And, that is, you weren't handing work in on time?
A. Or I asked for it to be rescheduled, yes.
Q. You weren't handing work in on time, correct?
A. Correct.
Q. And you asked for more time so that matters would be rescheduled?
A. That was one of the reasons, yes.
Q. What are the other reasons that led to the crowding of your ETIP schedule?
A. As mentioned above, the waiting for the computer access that I had no access to proofread my team's reports. I was writing 29 reports for my class. I continued with the rest of my teaching and executive duties and the ETIP tasks.
Q. But I want to suggest to you the primary reason your ETIP tasks built up was you weren't doing them on time and they needed to be rescheduled?
A. Correct."
Outcomes of the ETIP
1. In his closing written submissions, the Secretary summarised the outcomes of the ETIP as follows:
"170. The Applicant's performance was assessed on a number of occasions throughout the ETIP by independent observers. The outcomes of those assessments-were-as follows:
(a) On 3 June 2021 Ms O'Meara assessed a writing lesson plan prepared by the Applicant as unsatisfactory.
(b) On 4 June 2021 Ms O'Meara assessed a writing lesson delivered by the Applicant as unsatisfactory.
(c) On 12 June 2021 Mr Roberts assessed an agenda for a team meeting prepared by the Applicant as unsatisfactory.
(d) On 15 June 2021 Mr Roberts assessed an observation of a team meeting run by the Applicant as satisfactory.
(e) On 19 June 2021 Ms Martin assessed a Science lesson plan prepared by the Applicant as unsatisfactory.
(f) On 22 June 2021 Ms Martin assessed a Science lesson taught by the Applicant as unsatisfactory.
(g) On 23 June 2021 Ms Safija Bristina, Principal School Leadership, Performance assessed a lesson plan prepared by the Applicant as unsatisfactory.
(h) On 25 June 2021 Ms Bristina assessed a demonstration reading lesson in class 3/4C delivered by the Applicant as unsatisfactory.
(i) On 25 June 2021 Ms Warne assessed a Science program and assessment task schedule prepared by the Applicant as unsatisfactory.
(j) On 31 July 2021 Ms Martin assessed a Mathematics lesson plan prepared by the Applicant as unsatisfactory.
(k) On 2 August 2021 Ms O'Meara assessed a Term 2 English and Mathematics program prepared by the Applicant as unsatisfactory.
(l) On 2 August 2021 Ms O'Meara assessed a data analysis for Year 4 students in class 3/4C as unsatisfactory.
(m) On 2 August 2021 Ms Martin assessed a Mathematics lesson taught by the Applicant as unsatisfactory.
(n) On 6 August 2021 Ms Bristina assessed a lesson plan for a class demonstration writing lesson prepared by the Applicant as unsatisfactory.
(o) On 6 August 2021 Ms Warne assessed a Term 3 Science program prepared by the Applicant as unsatisfactory.
(p) On 11 August 2021 Ms Warne assessed Term 2 writing assessment data prepared by the Applicant as unsatisfactory.
(q) On 12 August 2021 Ms Warne assessed a data analysis for Year 4 check-ins in numeracy prepared by the Applicant as unsatisfactory.
(r) On 13 August 2021 Ms O'Meara assessed a Physical Exercise lesson taught by the Applicant as satisfactory.
(s) On 11 August 2021 Ms Bristina assessed a class demonstration writing lesson delivered by the Applicant as unsatisfactory.
(t) On 17 August 2021 Ms O'Meara assessed a team meeting presentation on Quality Teaching Practical Learning delivered by the Applicant as unsatisfactory.
(u) On 19 August 2021 Ms Warne assessed a Geography lesson plan prepared by the Applicant as unsatisfactory.
(v) On 16 September 2021 Ms O'Meara assessed a CAPA team meeting conducted by the Applicant as satisfactory.
(w) On 17 September [2021] Ms Martin assessed Individual Education Programs and Personal Learning Pathways and related evidence prepared by the Applicant as unsatisfactory.
(x) On 17 September 2021 Ms O'Meara assessed written feedback on another teacher's Term 3 teaching and learning program prepared by the Applicant as unsatisfactory.
(y) On 17 September 2021 Ms O'Meara assessed a Term 3 Mathematics program and assessment data prepared by the Applicant as unsatisfactory."
(Footnotes omitted)
1. Further to these assessments, on two occasions Ms Cross did not submit work for assessment, as she was required to do under the ETIP schedule.
2. Under cross-examination Ms Cross was asked whether, while she was on the ETIP, she met the requirements of Teaching Standard 3 and Executive Criteria 1, 3 and 4. Ms Cross prevaricated in her answers, saying that she met the requirements "to the best of her ability". Not a lot turns on this evidence in the context of the entirety of the case put by Ms Cross, but I found her equivocation on these matters curious.
Excuses offered for poor performance
1. Ms Cross offered a number of reasons why her performance under the ETIP may not have been satisfactory, or why matters outside her control prevented her from demonstrating the necessary proficiency. There is some tension between Ms Cross relying on such matters, when at the same time disputing that there was any basis on which to call her performance into question. That said, I will address the matters on which Ms Cross relies (in addition to COVID, which I have considered at [107]-[113] above).
Ms Cross's health
1. Ms Cross led evidence that prior to and during the ETIP she had been suffering from issues with her health. For example, her first affidavit includes the following:
"290. On or around 26 May 2021, at around 3:20pm, I attended a meeting with Ms [O'Meara]. I did not bring a support person. I informed Ms [O'Meara] during this meeting that I had some health issues but wanted to be back in class for my students. …
…
300. During the meeting on 31 May 2021, I informed Ms [O'Meara] that I was still unwell and had further upcoming doctors appointments. I informed her that I was trialling some new medication that was making me unwell. Ms [O'Meara] responded 'If you are at school, you are fit for duty and fit for the ETIP.' This made me feel really conflicted because I wanted to be at school to teach and support my class. I was concerned that they had already been adversely impacted as a result of the 4 weeks sick leave that I had from my chest infection during the first 4 weeks of Term 2 (and from which I had I returned [sic] on 17 May 2021).
…
368. On 22 June 2021, I was unwell. I was on new medication and it was giving me headaches and making me nauseous. However, I still attended school that day as I wanted to be there for my class and I had a scheduled science lesson observation with an external observer, Ms Martin, as part of the ETIP.
…
374. On 22 June 2021, I was required to submit 'A leadership observation, scheduled lesson plan for a reading lesson observation with a beginning teacher on 25 June 2021.' I was not well on 22 June 2021 and was pre-occupied with the lesson observation and Mrs McVeity's PDP that I didn't submit the document on that day. I submitted it the following day on 23 June 2021. …
…
486. Throughout the ETIP, I was unwell and under considerable stress. I was overwhelmed by the process whilst also taking my class and doing my duties as an Executive. At all times through the ETIP, I put the needs of my class first.
…
509. … As time went on through the ETIP, my health improved."
(Italics in original)
1. In her affidavit, Mrs Barnes deposed:
"20. Over the many years that I worked with Heather, I observed that she was a very private person and did not like talking about her health. …During Terms 1 and 2 of 2021, Heather and I would have some Release from Face to Face Teaching (RFF) time off together where we would both be in the computer room in the staff room at the same time. During this time, Heather gradually confided in me that she had been diagnosed with diabetes and was trialling different drugs, which were affecting her and making her feel unwell. She informed me that her doctor had advised her that she had to persevere with the drugs as they needed time to get into her system. She told me that the doctor said it was not good for her health to be under stress at this time. She also told me that she had a cancer scare and had explorative surgery."
(Emphasis in original)
1. Ms O'Meara denied that Ms Cross told her on 26 May 2021 that she "had some health issues" or that on 31 May 2021 she was "still unwell". She disputed that Ms Cross told her that she was seeing specialists or that her medication was making her unwell. This is consistent with the documents created at the time, which also reveal that, to the extent that Ms Cross may have been suffering from ill health, she did not inform Ms O'Meara of the details of her condition. I note the following in particular:
1. The minutes of the meeting of 26 May 2021 contain the following entry:
"Heather raised that she was waiting on the results of blood tests from her doctor but was fit for duty on the day of the meeting. She stated that she had further appointments coming up possibly next week. No personal issues were raised as having an effect on performance."
1. The minutes of the meeting of 31 May 2021 include the following entry:
"Discussed health from term 2 – Heather strongly emphasised the need for confidentiality. Still some ongoing changed [sic] to medication – further doctors appointments possibly this week.
Explain to Heather that when you are at school you are deemed fit for duty and also fit to participate in the Teacher Improvement Program."
1. The minutes of the weekly review meeting on 7 June 2021 contain he following entry:
"Heather was asked about health – responded 'not discussing because I don't want it put in the minutes'
1. The minutes of the weekly review meeting on 16 June 2021 contain a note stating that Ms Cross was "encouraged to continue to seek advice from GP regarding her health".
2. The minutes of the weekly review meeting on 21 June 2021 contain the following entry:
"Heather did not want to comment on any health or personal issues affecting her performance. She was encouraged to contact EAP and Teacher's Federation for support. She was also reminded to consult with a GP if there were changes to her health."
1. There were entries to a similar effect in the subsequent weekly review meetings.
1. In short, there is little to indicate that during the ETIP Ms Cross raised health issues as a reason for any inadequacy in her performance. Ms Cross conceded in cross-examination that she did not tell Ms Martin that she was unwell on the day of the lesson observation on 22 June 2021. Further, although she signed the feedback report prepared by Ms Martin after that observation, Ms Cross did not add any note to the effect that her health may have had an impact on the assessment.
2. That said, Ms O'Meara cannot have been completely oblivious to the fact that Ms Cross had some health issues before and during the ETIP. There would be no reason otherwise for her to have repeatedly "reminded" Ms Cross to speak to her general practitioner if she had any health issues, or to observe that if Ms Cross was fit to attend for work, she would be regarded as being fit to be on the ETIP. It is apparent on the evidence, though, that Ms Cross did not provide Ms O'Meara with the details of any health issues she may have been experiencing at the time.
3. There is nothing untoward in Ms O'Meara taking the position that if Ms Cross attended for work, she would be regarded as being fit to undergo the ETIP. Ms Cross provided her with nothing to suggest the contrary. In this regard, I note the following exchanges during Ms Cross's cross-examination:
"Q. And Ms [O'Meara] explained to you if you were fit for duty you were also fit to participate in the teacher improvement program?
A. She did.
Q. And you understood that from 31 May if you were fit to attend for work, you are fit to be on a TIP or ETIP?
A. Yes.
Q. And you understood from 31 May, that if you were unwell you could provide [a] medical certificate and not attend for work?
A. Yes.
Q. And throughout the ETIP, on a number of occasions you were unwell and provided medical certificates?
A. I did."
And later:
"Q. In relation to paragraph 517, you're aware that at the review meetings Ms [O'Meara] regularly asked whether you were unwell or whether you had health issues?
A. She did.
Q. You refused to discuss them with her?
A. I did not respond each time, no. I also had conversations with her outside of the meetings.
Q. And you were well aware if you're unwell you could provide a medical certificate that you're unwell?
A. I did - I was aware. If I was absent from school I was required to have a doctor's certificate during the ETIP.
Q. And you were aware that if you were unwell you could access your sick leave?
A. I was aware of that, yes.
Q. And you did so on some occasions?
A. I did.
Q. And you understood if you were at school and well enough to teach you were well enough to participate in the ETIP?
A. Ms [O'Meara] informed me that on multiple occasions.
Q. And you were aware of that?
A. Yes because Ms [O'Meara] informed me.
Q. And you didn't provide Ms [O'Meara] with any medical certificate or medical report that stated you were unwell - you were unfit to be on the ETIP?
A. I only provided medical certificates when I was absent from school, correct.
Q. That wasn't my question.
A. I did not provide Ms [O'Meara] with any medical certificates other than when I was absent.
…
Q. …You didn't provide Ms [O'Meara] with any medical report that set out you were so unwell you could not participate in the ETIP?
A. I did not."
1. To the extent that Ms Cross was suffering from any ill health during the ETIP, she cannot properly criticise the Department for failing to take that factor into account. She did not at that time provide Ms O'Meara or anyone else with information that warranted a different approach to that which was taken.
2. Further, apart from asserting that she had health issues, Ms Cross did not explain how they compromised her performance or impacted on the assessments conducted during the ETIP. For example, she stated that she was "unwell" during the demonstration lesson observed by Ms Martin on 22 June 2021, but did not state how this had a bearing on the way in which she conducted the lesson.
3. Similarly, in her response to the Principal's Report Ms Cross stated:
"In hindsight, I needed time to take care of my health. I returned too soon. I did not fully comprehend the effect this would have on my ability to deal with the stress of the additional and new expectations of the program. My priority was my class and I did not manage as well as I should."
1. In her submission to Mr Anderson of 4 March 2022, Ms Cross wrote:
"At the start of the program – My ability to fully comprehend my role and responsibilities by seeking support within 2 days at the beginning of the ETIP was impaired by
• My illness in Term 2 Weeks 1-4 Dates
• My reactions to medication which delayed my recovery
• New medication started in Term 2 week 4 accompanied by nausea for many weeks
• My doctor advised that this would make it difficult to return to work
By the end of Term 2 Week 4 of the ETIP
• I attended medical appointments and was in hospital for several days in the holidays for tests."
1. Neither of these documents explain how the health issues asserted by Ms Cross affected her ability to deal with the stresses of the ETIP, or how they manifested themselves in ways which impaired her ability to perform to the standards expected of her. This is perhaps the consequence of her maintaining that her performance was at all times satisfactory. It does, though, lead to a question as to whether Ms Cross's case in this respect goes much further than criticising the Department for failing to infer a connection between her health and her performance, in the absence of any clear statement by Ms Cross at the time, supported by evidence, that such a connection existed.
2. The same observation can be made as to the case advanced by Ms Cross in these proceedings. That is, she seeks to have the Commission draw the same inference without explaining precisely how her health impacted on her performance. Her case does not rise much higher than asking the Commission to accept that because she was unwell it must necessarily have had an impact on her ability to perform to the standards expected of her. The evidence does not allow for such a conclusion to be drawn.
3. In any event, there is room for doubt as to whether Ms Cross was as affected by ill health during the course of the ETIP as she claimed to be. On the basis of the documents produced under summons by Dr Cheah, and Dr Cheah's oral evidence, the only evidence of Ms Cross suffering from an adverse reaction to medication was in respect of antibiotics that she had been prescribed for a sinus infection. This occurred in April 2021 and, as Ms Cross confirmed in cross-examination, it was fixed within a few days of her changing medication. The documents also demonstrate that in about late April 2021 Ms Cross was first diagnosed with Type 2 diabetes, for which she was consequently prescribed medication. There is no evidence that Ms Cross suffered an adverse reaction to that medication.
4. There is also no evidence that over the relevant period Ms Cross consulted Dr Cheah in relation to workplace or other stress.
5. I digress to observe that the matters to which I have referred support my conclusion there was no substance to Ms Cross's submissions that over the course of the ETIP Ms O'Meara discriminated against her on the basis of disability. I am not persuaded that from 31 May 2021 Ms O'Meara can have been sufficiently aware of any health issues being suffered by Ms Cross to have allowed her to form the view that Ms Cross was suffering from a disability. To the contrary, Ms Cross was representing, both by her conduct and in her statements to Ms O'Meara, that there were no reasons why she should not be at work.
Other matters
1. There were a number of other matters raised by Ms Cross which she contended placed her performance into context. I will deal with some of these, albeit briefly, as follows:
1. In her affidavit, Ms Cross stated that Ms O'Meara "did not acknowledge the huge workload I had with my class and executive duties during the ETIP". Ms O'Meara stated in her affidavit that Ms Cross had a normal workload for an Assistant Principal, a position she maintained under cross-examination. Further, Ms Cross was granted RFF time, beyond which she already had as an executive teacher, to assist her to meet the requirements of the ETIP. Further RFF time was later offered to her, at Ms O'Meara's initiative.
2. On 15 June 2021, Ms Cross was required to lead a specialist teacher team meeting and be observed by Mr Roberts. She deposed that she had organised her presentation on the electronic smartboard in her classroom. However, after temporarily leaving the room, she returned to find "the IT manager…running software updates on [her] smartboard", which prevented her using her presentation during the class. As it transpired, this was ultimately of little consequence as Mr Roberts assessed the observation as "satisfactory". What is relevant for present purposes is that Ms Cross conceded that she did not mention the smartboard issues to Mr Roberts at the time. Despite having added comments to the feedback report later prepared by Mr Roberts, Ms Cross said nothing about the smartboard.
3. For the lesson observation conducted by Ms Martin on 22 June 2021 (which Ms Martin found to be unsatisfactory), Ms Cross was required to conduct an experiment requiring hot water. She had been unable to obtain boiling water but had to "make do" with warm water. In her affidavit, Ms Martin gave the following uncontested evidence:
"51. …I saw Ms Cross approaching from the opposite direction carrying an electric jug. I recall that she mentioned words to the effect of 'the hot water isn't working so warm will have to do'. The jug was an electric one so I thought Ms Cross might have plugged it in once in the classroom to boil the water, but she did not. …"
1. On 25 June 2021, Ms Cross conducted a demonstration reading lesson, observed by Ms Bristina (which was found to be unsatisfactory). Ms Cross deposed that it was the last day of school, with students "in mufti…and expecting games and a barbecue". I took this evidence to suggest that the students may have been excited and distracted, affecting the lesson. However, Ms Cross conceded that she did not raise this matter with Ms Bristina at the time, and added no comments about it on the feedback report Ms Bristina subsequently prepared.
2. On 6 August 2021, Ms Cross was due to submit to Ms O'Meara via email written feedback on a particular program. She did not do so until 16 September 2021. In her affidavit, Ms Cross stated that the teacher had experienced technological problems in sending the program to her for feedback, which explained (in part) the delay. Ms Cross conceded that she did not raise this matter with Ms O'Meara at the time, and added no comments about it on the feedback report Ms O'Meara subsequently prepared.
1. I am not persuaded that such matters have a great bearing on the validity of the observations of Ms Cross's performance conducted during the ETIP. Further, their force in the current proceedings must, in my view, reflect the fact that they were apparently not considered by Ms Cross to be of such significance as to warrant raising them at the relevant time.
Teaching Standard 3
1. Ms Cross contended that the Secretary's reliance on her asserted failure to meet the requirements of Teaching Standard 3 to justify her dismissal was "unfounded". The basis of the contention is summarised in her closing written submissions in reply as follows:
"33. Ms Cross…otherwise says she could not be properly assessed with regard to her teaching given the evidence of Ms Wood under Cross [sic] examination that that [sic] if teaching was being assessed (under a TIP) there would likely be between 10 to 20 observations of teaching. Noting there was only three in this case this was clearly not enough for the Respondent to Rely on the ETIP to say Ms Cross is unable to teach."
(Footnote omitted)
1. The Secretary submitted in his closing written submissions:
"178. In addition to the issue of the Applicant's performance being assessed as unsatisfactory on a significant number of occasions, the Applicant's continual and unjustifiable failures to complete work tasks by required times during the ETIP further confirmed the Applicant's unsatisfactory performance because those failures are relevant to Teaching Standard 3 (which requires a teacher to plan for an implement effective teaching and learning).
…
230. As reflected in the Principal's Report, throughout the ETIP:
(a) There were 3 observations of the Applicant's lessons, all of which were determined to be unsatisfactory.
(b) There were 13 scheduled observations of teaching documents prepared by the Applicant, 11 of which were determined to be unsatisfactory, 1 of which was not handed in by the Applicant, and 1 of which was determined to be satisfactory.
…"
(Footnotes omitted)
1. Having regard to totality of the ETIP, I am satisfied that there was a proper basis for the finding that Ms Cross failed to meet the requirements of Teaching Standard 3. The fact that more observations of Ms Cross's teaching might have been undertaken, or might have been expected for a teacher under a Teacher Improvement Plan, does not obviate the fact that the observations of Ms Cross in respect of Teaching Standard 3 during the ETIP were in all but one instance determined to be unsatisfactory.
2. The onus is on Ms Cross in these proceedings. She effectively asks the Commission to draw the inference that, had additional lesson observations been conducted, she would have demonstrated a satisfactory level of performance. The evidence does not warrant such an inference being drawn.
Conclusions
1. Overall, I am satisfied that the ETIP was conducted appropriately and fairly. I find that the ETIP was not affected by bias or predetermination.
2. Ms Cross received sufficient feedback and support during the ETIP to demonstrate proficiency. To the extent that she now claims that it was inadequate, there is little evidence that she raised these concerns at the time.
3. I add that the written feedback provided to Ms Cross in the feedback reports was extensive. The reasons for each assessment were clearly stated, and usually at length. Other than in a few instances in which Ms Cross called into question aspects of a feedback report (which did not necessarily call into question the validity of a feedback report as a whole), the documents were balanced and measured. While the majority of observations were determined to be "unsatisfactory", the feedback reports were not wholly negative. Some offered positive comments on aspects of Ms Cross's performance, for example, acknowledging instances in which she had demonstrated that she had taken on board and sought to apply feedback which had been offered previously.
4. While Ms Cross identified some shortcomings in the way in which the ETIP was conducted, and demonstrated that some of the documents created in the process raise concerns, I found this to be very much "playing at the margins". Ms Cross did not provide a sufficient basis on which to impugn the outcomes of the ETIP or to displace the overwhelming evidence that she was found by five observers not to be performing to standard. Ms Cross did not help herself in the way in which she conducted herself during the ETIP, including by being late in handing in work or not completing tasks at all.
Events after the ETIP
Final meeting on 5 October 2021
1. On 5 October 2021, following the conclusion of the ETIP, Ms Cross was called to a meeting with Ms O'Meara. Mrs Barnes attended as her support person. This was the "final meeting" as required by the ETIP Procedures. Each of Ms Cross and Mrs Barnes deposed that Ms O'Meara opened the meeting by describing it as a "termination meeting". Ms O'Meara stated that she described it as a "determination meeting".
2. In her closing written submissions, Ms Cross contended:
"193. Ms O'Meara disagreed that at the meeting held on 5 October 2021, she called it a 'termination meeting'. The problem with that is that both Ms Cross and Ms Barnes heard differently. While nothing turns on this from an employment law perspective as it was not her decision to make, it is evidence that this was her preference and her view at that point in time as to where the matter was headed."
1. I agree that nothing turns on this controversy, for the reason given by Ms Cross. However, as much of Ms Cross's case turns on Ms O'Meara's motivations and conduct, it is necessary to address briefly the assertion in the above passage as to Ms O'Meara's "preference". In my view, the submission draws a long bow.
2. The minutes of the review meeting conducted as part of the ETIP on 17 September 2021 contain the entry "Next meeting on 5/10/21 will be the determination meeting at 9:15am". The minutes of the meeting on 5 October 2021, which are signed by Ms Cross, are titled "Minutes of Determination Meeting". In her affidavit, Mrs Barnes stated that on 5 October 2021 she "attended the determination meeting with Ms [O'Meara] and Heather".
3. Given the evidence of Ms Cross and Mrs Barnes as to what they heard, I accept that it is more likely that Ms O'Meara said "termination meeting". However, even so, the better inference on all of the evidence is that she misspoke, rather than gave voice to her preferred outcome. This further attempt to impugn the motivations of Ms O'Meara is to "clutch at straws".
The Principal's Report
1. Ms Cross challenged the Principal's Report at length. In her first affidavit, she made what she described as "general statements about some of the matters raised in the Principal's Report and [her] Response", which traversed some six pages. In broad overview, it was alleged that the Principal's Report was replete with inaccuracies or exaggerations, which had the effect (and were intended to have the effect) of creating a false and unfairly negative impression as to Ms Cross's conduct and performance, before and during the ETIP.
2. This in turn was said to have prejudiced the independent review conducted by Ms Wood and the decision ultimately made by Mr Anderson to dismiss Ms Cross. Both gave evidence under cross-examination that they relied on the accuracy of the information provided to them. Ms Cross argued that if the Principal's Report was inaccurate and misleading, any decisions based on that document must be called into question.
3. In some respects, the Principal's Report was inaccurate. For instance, Ms O'Meara conceded that a statement in the documents that in the first four weeks of the ETIP "Ms Cross declined to have an independent person present to take meeting notes" was not correct and was misleading (although she denied that was her intention).
4. However, not all of Ms Cross's criticisms of the Principal's Report can be sustained. For example, Ms Cross took issue with a statement in the document that "Science was omitted completely from the Term 1 program". Ms Cross gave evidence and made submissions to the effect that she taught an integrated English/Science unit called "Living Things" which covered life cycles, food chains and webs, environmental factors, and involved collecting information from a variety of courses. Collating that information, Ms Cross chose to do this with frogs and a fiction book about frogs which encounter environmental changes.
5. In cross-examination, Mr Roberts agreed that it was possible to teach both Science and English as long as the concepts set out in the syllabus were covered. However, Ms Cross did not demonstrate to my satisfaction that she did so. When the issue was put to Ms O'Meara in cross-examination, she stated that "the science unit for that term was earth and space and changes to the earth's environment and the unit on frog [sic] does not match that scope and sequence". To my mind, Ms Cross did not successfully challenge that evidence.
6. Ultimately, however, I do not consider that the question of whether there were shortcomings in the Principal's Report is of particular significance in determining whether the dismissal was harsh, unreasonable or unjust. This is for several reasons.
7. First, I do not accept that Ms O'Meara intentionally sought to "poison the well" by creating a false document. Consistent with my findings as to her reliability as a witness, there was a lack of care and attention to detail in the Principal's Report, but I am not satisfied that it was created with ulterior or discriminatory motives.
8. Second, the Principal's Report was not the only document to which Ms Wood and Mr Anderson had regard. Ms Wood deposed that she had received and reviewed almost all of the ETIP Bundle. She had also requested and received additional documents to assist her to conduct her independent review of the ETIP. Mr Anderson stated that he had received and reviewed the entire ETIP Bundle.
9. Further in relation to Ms Wood, I note her description of the role of the independent observer reproduced at [78] above. Her unchallenged evidence was that an independent reviewer "draws on their expert knowledge and experience to identify issues, analyse information and assess the completeness of evidence" and "conducts robust and impartial reviews of the IP, applying knowledge of current education policies and procedures, including improvement procedures and guidelines, and applying their understanding of procedural fairness principles". This does not suggest that an independent review is a blinkered approach, bound by the confines of a principal's report.
10. Significantly, each of Ms Wood and Mr Anderson stated that they considered Ms Cross's response to the Principal's Report. Ms Cross herself described this as a "lengthy submission". There was the following exchange during her cross-examination:
"Q. And in this response you set out everything you wanted to say in respect to the principal's report?
A. I responded to the allegations to the principal's report to the best of my ability at that time."
1. Mr Anderson's consideration went further. In his letter of 4 February 2022, he put Ms Cross on notice that he was considering dismissing her from the Teaching Service and placing her name on the NTBE list. He invited Ms Cross to make a submission and to provide any additional information which she wanted him to consider prior to making his final decision. Ms Cross did so in her submission dated 4 March 2022, sent to Mr Anderson on 9 March 2022. There was no evidence that Ms Cross was in any way constrained in preparing that submission, such that she was unable to raise with Mr Anderson any matter she considered relevant to his decision.
2. There is no suggestion that Mr Anderson did not have proper regard to Ms Cross's submission. I observe, in any event, that Mr Anderson ultimately did not place Ms Cross's name on the NTBE list, which suggests that Ms Cross's submissions were taken into account.
Opportunity to respond
1. The foregoing discussion makes it apparent that Ms Cross was made aware of the grounds on which the Secretary proposed to dismiss her from the Teaching Service, and was given a proper opportunity to make out a defence to those grounds.
Finding
1. For the reasons canvassed above, I find that the dismissal was not unreasonable or unjust.
Was the dismissal harsh?
1. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed:
"156. I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, 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'."
(Footnotes omitted)
1. In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 ("Fraser") the Full Bench observed:
"35. Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent."
1. In my view, one of the matters to be "weighed in the balance" is the obligation imposed on the Commission by s 5A of the Teaching Service Act to ensure the protection of children is the paramount consideration in dealing with this matter.
Ms Cross's personal circumstances
1. Ms Cross is 60 years of age. At the time of her dismissal, she had more than 34 years' experience as a teacher.
2. In her first affidavit, Ms Cross deposed that she resides in Bega, and must continue to do so as she lives with and provides assistance to her elderly parents. She stated that her dismissal has had, and will continue to have, "a huge effect on [her] financial position". She stated that she has "looked for" but has been unable to locate "other roles that [she is] qualified to do that [pay] the same or similar to the role that [she] was undertaking as a teacher", with the result that she had taken some "casual hospitality jobs".
3. In her statement, Ms Cross stated that she had been monitoring job vacancies advertised in or within 100 kilometres of Bega. However, she had made no written applications for any work.
4. I accept that Ms Cross had a long period of service with the Department. There is no evidence that prior to 2019 there had been issues with her performance and conduct. This weighs in her favour. However, I accept the Secretary's submission that long service is not of itself enough to warrant the continuing employment of a teacher who is not competent. Further, in my view, Ms Cross's length of service "cuts both ways". As a long-serving teacher in a leadership position, she can be taken to have been aware of what was expected of her and to have engaged properly and meaningfully in the ETIP process. I am not satisfied that she did so.
5. I have had regard to Ms Cross's age and regional location, and to the fact that they may make it more difficult for her to obtain alternative employment. The weight that I have attached to these considerations is reduced by the fact that there is little evidence that her age and location have in fact impacted on Ms Cross finding another job. At the time she made her statement she had not applied for any roles apart from two casual hospitality positions.
6. There is no controversy that Ms Cross may have suffered a financial impact as a result of her dismissal. This is likely to be the result of many dismissals. A financial loss does not, of itself, support a finding that a dismissal was harsh.
Whether Ms Cross could have continued in a non-executive role
1. Ms Cross submitted that that the dismissal was harsh as it precluded her from continuing employment at the School in a non-executive role. The premise of this contention was that the ETIP was aimed more at assessing her leadership capabilities by reference to the Executive Criteria than her competency against the Teaching Standards, with the result that there was no basis to determine that she could not continue to be a teacher, albeit not an executive teacher, in the Teaching Service.
2. I have addressed those contentions at [240]-[243] above. For the reasons set out in those paragraphs, I am not satisfied that the dismissal was harsh on this basis.
Department's notification to NESA
1. After I had received the parties' evidence and submissions, I granted an application for Ms Cross to re-open her case so as to tender and make submissions in respect of a letter she had received from the NSW Education Standards Authority ("NESA") dated 19 March 2024. In that letter, NESA informed Ms Cross that on 24 August 2023, it had been notified by the Department that she had been directed to resign and that she was not permitted to seek employment with the Department in a teaching role. Ms Cross was informed that NESA intended to suspend her teacher accreditation, pending the outcome of these proceedings. Ms Cross was invited to submit a written response about that decision, after which a "final decision" would be made.
2. I subsequently granted Ms Cross leave to file a further letter she had received from NESA dated 11 April 2024. That letter referred to a "written response" that Ms Cross had provided to NESA on 2 April 2024, but that document is not in evidence. The letter informed Ms Cross that the decision had been made to suspend her teacher accreditation in New South Wales, although the suspension would be reviewed "when the matter before the IRC is concluded".
3. Ms Cross advanced written submissions on re-opening (including in response to those of the Secretary), which included the following contentions:
1. the Department failed to inform Ms Cross of its notification to NESA, which deprived her of the opportunity to cross-examine the Secretary's witnesses in relation to this issue. This resulted in an unfairness to Ms Cross which was "palpable";
2. the Department's notice to NESA is not in evidence and "there is now no possibility of obtaining that evidence as the Applicant no longer has the resources to pursue it";
3. the Secretary had an obligation to put the matter before the Commission but did not, leaving Ms Cross "at a significant disadvantage regarding another matter going to the unfairness of the termination";
4. the Secretary's conduct was "highly problematic given [his] obligations as a model litigant";
5. the Secretary's decision to dismiss Ms Cross, including the grounds on which he did so, will likely determine NESA's decision. That is, there is no evidence that NESA makes an independent assessment; it appears simply to accept that of the Department; and
6. although Ms Cross was not put on the NTBE list, she was subject to conditions that amounted to the same thing. The evidence led by the Secretary on re-opening appears to identify that a number of staff who had failed to demonstrate that they could satisfy Teaching Standard 3 were not placed on the NTBE list, which "shows that there was a prima facie victimisation claim under s 210 [of the Industrial Relations Act]".
1. In response, the Secretary led evidence which included the notification which had been made to NESA. This appears to have occurred on 30 August 2023, not 24 August 2023 as stated in the letter from NESA to Ms Cross. I am unable to resolve the anomaly. In any event, the evidence led by the Secretary also provided context as to why the notification to NESA had not occurred until August 2023.
2. The Secretary submitted that the notification to NESA was required by s 42B of the Teacher Accreditation Act 2004. He argued that the additional evidence he had led demonstrated that there was no substance to Ms Cross's suggestion that there was some malfeasance on his part in not having raised the matter during the course of the hearing. He submitted that he had no obligation to put the notification into evidence, "given that notification occurs by requirement of law". There was consequently no basis, the Secretary contended, for the assertion that he had breached his obligations as a model litigant.
3. The Secretary further submitted that there was no evidence to support the assertions made by Ms Cross as to how NESA will decide the matter of her ongoing accreditation and what information will be important to it.
4. The Secretary took particular issue with Ms Cross's contention that she had been subjected to conditions that amounted to the same thing as being on the NTBE list. He observed that Ms Cross could "seek and apply for employment in permanent or temporary non-Teaching Service roles, such [as] the role of School Learning Support Officer". It followed, in the Secretary's submission, that to the extent that Ms Cross's contentions were premised on her having been placed on the NTBE list, or on conditions akin to it, including whether she had been subjected to victimisation, they ought to be rejected.
5. I accept the Secretary's submissions. I cannot see that there was any obligation on the part of the Secretary to inform Ms Cross of the notification to NESA, much less seek leave from the Commission to lead further evidence in that regard. Further, even had the Secretary borne such obligations, I do not understand how that can be said to be a matter "going to the unfairness of the termination".
6. Ms Cross's submissions on re-opening contain many assertions, which are reliant on inferences being drawn from the additional documents tendered by the parties. In particular in this regard, Ms Cross offered only a tenuous connection with the evidence to assert, in effect, that NESA would do no more than blindly follow the lead of the Department.
7. It is not possible for me to make a determination as to whether the inferences which Ms Cross would have me draw from the evidence are sound without that evidence having properly been tested. The fact that Ms Cross may no longer have the resources to pursue the proceedings does not require me simply to accept, in the absence of more definite proof, that her assertions have substance.
8. I do not accept that the conditions that Mr Anderson attached to Ms Cross's dismissal "amounted to the same thing" as being placed on the NTBE list, for the reasons advanced by the Secretary. Indeed, to my mind, in deciding not to place Ms Cross on the NTBE list, as he had foreshadowed as a possibility in his letter to Ms Cross of 4 February 2022, Mr Anderson ameliorated the harshness of the dismissal.
9. Further in this regard, Ms Cross did not suggest to Mr Anderson, in her submission of 4 March 2022, that as an alternative to dismissal from the Teaching Service she be removed from her executive position and continue employment as a non-executive teacher.
Section 5A
1. Section 5A of the Teaching Service Act is relevant in considering the harshness of the dismissal, particularly in light of my finding that the dismissal was not unreasonable or unjust. As observed in Buchanan at [23], the protection of children extends to protecting them from less than competent teaching. Ms Cross accepted under cross-examination that a teacher must meet the Teaching Standards and that if, having received support to do so, they are unable to demonstrate that competency, "they shouldn't be there". She also accepted that a failure by a teacher to meet the relevant standards has an impact on students, other teachers, parents, the broader school community and the reputation of the school.
2. The overwhelming impression from the evidence is that Ms Cross took umbrage at being placed on the ETIP, considered it unnecessary and as a consequence did not properly engage with it. In the Principal's Report, Ms O'Meara stated:
"Towards the end of the program Ms Cross attempted to implement some advice and strategies that were suggested and engage with the professional learning opportunities provided." (my emphasis)
1. I accept that under cross-examination, Ms O'Meara agreed that Ms Cross was "willing to work on feedback", but this evidence was subject to the caveats that the feedback be in respect of an area that Ms Cross "wanted to work on" and that the feedback "clearly told her what she could do to improve".
2. In her closing written submissions in reply, Ms Cross did not dispute the Secretary's submission that she failed to properly engage with the ETIP. Rather, she submitted that this was "explained by the context in which it occurred including the lack of trust between Ms Cross and Ms O'Meara". Ms Cross did not give evidence to that effect. There is also no evidence that she raised concerns around the time of the ETIP, to Mr Anderson or anyone else, that the ETIP was negatively impacted by a lack of trust.
3. As the Secretary submitted in his closing oral submissions, "[t]he issue isn't whether Ms Cross felt like she was being set up to fail but whether she was being set up to fail". For the reasons canvassed earlier in this decision, I do not accept that Ms Cross was being "set up to fail". Having regard to all of the evidence, and having observed the main protagonists in the matter give evidence, I accept the following contentions in the Secretary's closing written submissions:
"264. It is clear that the Applicant did not believe she should be placed on the ETIP and strongly resented that placement.
…
267. The Applicant consistently refused to accept or acknowledge, over a lengthy period, that she was in any way at fault or deficient in her performance, conduct or behaviour. The Applicant failed, culpably, to recognise her shortcomings and, therefore, took insufficient corrective action."
1. These considerations argue against the dismissal being harsh.
Finding
1. Ms Cross's personal circumstances and career history "illicit some hesitance in finding that the dismissal…was not harsh", to adopt the language of the Full Bench in Fraser at [47]. However, on balance, I am not persuaded that Ms Cross has met her onus to demonstrate that the dismissal was harsh. I find accordingly.
Conclusion
1. Having found that Ms Cross's dismissal was not harsh, unreasonable or unjust, the only appropriate order is that the application be dismissed.
Order
1. The application is dismissed.
Damian Sloan
Commissioner
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Endnote
1. At the time of the events giving rise to these proceedings, Ms O'Meara went by the name "Melissa Fay". That name appears in many of the documents in evidence. To avoid any confusion, where "Fay" was contained in any of the extracts from the evidence or submissions that I have reproduced, I have replaced it with "[O'Meara]".
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Decision last updated: 14 June 2024