Industrial Relations Commission of New South Wales CITATION: Horwood v NSW Department of Education [2007] NSWIRComm 1038 APPLICANT PARTIES: Peter Reginald Horwood RESPONDENT NSW Department of Education and Training FILE NUMBER(S): 3445 of 2006 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - teacher serving extended probation period - performance improvement program implemented - appointment annulled - valid substantive basis established - procedural defects not sufficient to displace substantive basis - application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 [NSW] CASES CITED: Mifsud & New South Wales Department of Education and Training [2001], NSWIRComm 1047 (25 July 2001), Connor C. HEARING DATES: 11, 12 & 13 April 2007, 16 May 2007 DATE OF JUDGMENT: 6 July 2007 APPLICANT self represented LEGAL REPRESENTATIVES: RESPONDENT Mr J Murphy, barrister, with Mr P Quinn from Department of Education & Training DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 6 July 2007 Matter No IRC 3445 of 2006 Peter Reginald Horwood v NSW Department of Education and Training Application by Peter Horwood re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2007] NSWIRComm 1038 1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 7 November 2006, by Peter Reginald Horwood, (the applicant). The application named the respondent employer as the NSW Department of Education and Training, (the employer). 2 The claim was the subject of unsuccessful attempted conciliation conducted before McLeay C. Subsequently the matter was reallocated to the Commission as currently constituted and has involved a Hearing covering three days of taking of evidence, 11, 12 and 13 April 2007 and a further day, 16 May 2007, when the Parties made submissions. BACKGROUND 3 The applicant is a male who was forty eight years of age at the time of his alleged unfair dismissal on 18 October 2006. At that time the applicant's probationary period of employment as a Secondary School Teacher was annulled by the employer. 4 The applicant had worked as a casual Teacher for a number of years before being provided with a letter of appointment to a position as a probationary Teacher at Doonside Technology High School. The applicant commenced work at the Doonside High School at the start of the 2004 school year. The applicant did not satisfactorily complete the probationary period of employment at Doonside High School, and in late 2004 it was decided that the applicant's period of probation would be extended. 5 After a very short placement at Blaxland High School, the applicant continued his extended probationary period of employment at the St Clair High School. During the applicant's employment at St Clair High School in 2005, a number of employment related issues arose. These issues led to the applicant being required to submit to a psychiatric assessment which he successfully completed. 6 After the psychiatric assessment the applicant was placed on a ten week formal improvement program. The formal improvement program was designed to identify particular areas of the applicant's teaching skills and professional conduct that required improvement. Part of the performance improvement program involved the applicant being observed during a number of classroom lessons that he conducted. These lesson observations were made by other Teachers who recorded specific assessments as to the applicants overall teaching performance during the particular lesson under observation. 7 The applicant was found to have been unsatisfactory in terms of his teaching standards in a substantial number of lessons under observation. Consequently the Principal of the St Clair High School considered that the applicant had failed to meet the necessary standards for successful completion of his (extended) probationary period of employment. The Principal recommended that the applicant's efficiency be determined as not satisfying the requirements for the position of Teacher. 8 The Principal of the St Clair High School provided a report which in effect, supported an annulment of the applicant's probationary engagement. The employer then undertook a procedure that reviewed the Principal's recommendation and provided the applicant with further opportunity to submit any material and argument against the recommended annulment. This procedure culminated in the confirmation of annulment as set out in correspondence dated 16 October 2006, from Jane Thorpe, Director, Employee Performance and Conduct. 9 The applicant has contested the annulment and by way of this unfair dismissal claim has sought re-instatement to his position as a Secondary School Teacher. THE EVIDENCE 10 There was a considerable amount of documentary evidence provided in this case. This was not surprising given that the applicant had been the subject of a two year period of probationary employment, first at Doonside Technology High School (2004), then St Clair High School (2005). Thereafter followed a further period until annulment in 2006, during which time the employer conducted a review process into the recommendation for annulment. 11 The reasonably extensive documentary material discloses a broadly uncontested chronology of relevant events relating to the primary performance issues which were ultimately the subject of the formal improvement program that was conducted between October 2005 and February 2006. Although the applicant has challenged much of the content of the Principal's report, the process that was followed to firstly, establish the report and then subsequently to have it reviewed by the employer's Staff Efficiency and Conduct Unit, was well documented and not the subject of any significant contest. 12 The evidence that attracted most attention concerned a number of incidents relating to the applicant's conduct. Although all of these conduct events do not need to be the subject of detailed examination as part of this Decision, at least one of these events involved contested evidence that at best, could be described as highly regrettable. The Assault Incident 13 At an early stage of proceedings the following evidence that was contained in the applicant's written statement became the subject of considerable analysis: "17. As a consequence of this clash with the Head Teacher, the Principal, Mr Garrard reacted angrily to my attempts to stand up for myself. He assaulted me when I attempted to leave the school and extended my probation in retaliation for reporting his appointee". Exhibit 1 @ paragraph 17. [emphasis added] 14 The incident of the alleged assault by the Principal of Doonside High School, Mr Garrard, upon the applicant, was expanded upon in the applicant's further witness statement filed in response to the employer's material, wherein the applicant further stated: "In his 16th point Garrard refers to my paragraph 17 and denies assaulting me. Again, he does not describe what he thinks happened, so my testimony remains unchallenged. To clarify what happened I stated that when I was attempting to leave the school, Mr Garrard angrily pursued me from his office to my staffroom where witnesses who at the very least, saw him, enter my workspace, slam my staff room door behind him, stand over me as I was seated at my desk, threaten me with a report to his superior, refuse to let me leave the school and yell and gesticulate. Ms Rai, my cooperating colleague was present in the staffroom and Ms Summer-Hayes was on the other side of the door. I saw she had overheard the exchange by the shocked look on her face as Mr Garrard left. I reported this incident by phone, to Leah Pollet, immediately. This I consider assault. He did not batter me...." Exhibit 2, applicant's statement in response to Garrard, page 5, @ paragraph 17. 15 Regrettably for the applicant, upon full hearing, the evidence regarding the alleged assault incident was overwhelmingly against him. The evidence provided by all those persons alleged to have been involved or a witness to the assault incident, compels a conclusion that there was no incident that could in any way be construed to have represented assault in any form, by Mr Garrard against the applicant. It was highly unfortunate and regrettable that the applicant might even carelessly, seek to provide a witness statement which included an obviously serious suggestion of highly inappropriate and unprofessional conduct on the part of the school Principal which in the course of proceedings and subject to proper scrutiny, was unable to be sustained even upon the most beneficial reading of the initial assertion made by the applicant. 16 This particularly regrettable deficiency in the evidence presented by the applicant, when combined with other incongruities, has meant that in general, the applicant's evidentiary case has had to be treated with great caution and unfortunately questions of credit have not been settled in the applicant's favour. 17 The applicant was the only witness called to give evidence in support of the claim. There were a total of six witnesses called to provide evidence on behalf of the employer. As the contested conduct issues were not the basis upon which the employer proceeded to annul the applicant's probationary employment, there is little purpose served in providing a detailed analysis of the performances of the respective witnesses. As might be extrapolated from the regrettable evidence of the applicant concerning the alleged assault by Mr Garrard, the Commission must record a compelling overall preference for the evidence provided by the witnesses for the employer wherever that differed from the applicant's testimony. THE CASE FOR THE APPLICANT 18 The applicant appeared unrepresented. The applicant made lengthy verbal submissions which regurgitated extensive parts of the earlier witness evidence. The applicant sought to discredit the testimony of the witnesses for the employer, in particular the evidence provided by Mr Jones, the Principal of the St Clair High School. 19 Mr Jones was the school Principal who provided the report at the completion of the applicant's formal improvement program and which, in effect, recommended the annulment of the applicant's probationary employment. The applicant submitted that Mr Jones had treated him unfairly, had not provided appropriate support or consideration for the applicant's particular circumstances, and had broadly pre-judged the outcome of the formal improvement program. 20 The applicant further submitted that Mr Jones had exaggerated a number of conduct issues which had been the subject of complaints made by students and other staff at the school. The applicant made detailed submissions challenging the testimony of Mr Jones. The applicant submitted that; "I might be the worst teacher in the world, but Mr Jones' testimony clearly lacks veracity." Transcript of proceedings (16/05/07) pages unnumbered, but @ circa page 37, line30. 21 The applicant also made the following submissions regarding the evidence from the Principal of the Doonside High School, Mr Garrard: "Mr Garrard's letter to Mr Higgins, they are so contemporaneous with other events at the school, they are so contemporaneous as to cast doubt on their veracity and their existence:" Transcript of proceedings (16/05/07) pages unnumbered, but @ circa page 37, line33. 22 The applicant's submissions criticised the involvement of the Principal of St Clair High School, Mr Jones, and other Teachers who supervised the formal improvement program: ... "it is almost an obsession by Mr Jones about me at St Clair High School, and Mr Jones and Ms Pyne were almost stalking every move I made at the school. There was many observations, as put in my witness statement. Everything I did came under the spotlight, ..." Transcript of proceedings (16/05/07) pages unnumbered, but @ circa page 38, line47. 23 The applicant also made submissions that criticised the evidence provided by witnesses that he described as the "summary witnesses". The employer called three witnesses who had not provided witness statements, all of whom gave evidence regarding the alleged assault incident to which I have referred earlier in this Decision. 24 The applicant submitted that the evidence provided by these witnesses "blew up in the respondent's face". The applicant submitted that although the evidence did not support the alleged assault incident as he had asserted, their evidence did assist his case in that at least two of the witnesses thought that he was a reasonable colleague. 25 The applicant made further detailed submissions which sought to rely upon a Decision of Connor C in the case of Mifsud & New South Wales Department of Education and Training (Mifsud) Mifsud & New South Wales Department of Education and Training , NSWIRComm 1047 (25 July 2001), Connor C.. The applicant submitted that the factual circumstances in the Mifsud case could in large part, be translated into the circumstances of his case. The applicant referred to Connor C's Decision in Mifsud in considerable detail. The applicant submitted that the Decision in Mifsud provided considerable support for success in his unfair dismissal claim. 26 The applicant further submitted that he was not given reasons for his dismissal. The applicant said that he did not receive sufficient support from his Head Teacher and further, that the Principal, Mr Jones acted unfairly in that he encouraged complaints, submitted an anonymous complaint, and was generally biased in his approach to the applicant. This bias was in particular, reflected in the report at the completion of the formal improvement program. The applicant submitted that in the circumstances the ultimate sanction of termination of employment was too severe a penalty and he sought to be reinstated with back pay. THE CASE FOR THE EMPLOYER 27 Mr J Murphy, barrister, appeared for the employer at the Hearing Mr Murphy commenced his submissions by dealing with the question of credit. Mr Murphy submitted that on the question of credit the applicant had suffered as a result of the evidence concerning the alleged assault by Mr Garrard upon the applicant. Mr Murphy said that this particular part of the evidence together with various other questions, created serious doubt about the credibility of the applicant. Mr Murphy submitted that wherever the applicant's evidence differed from that provided by the employer's witnesses, the Commission should prefer the latter. 28 Mr Murphy submitted that the essential aspect of the employer's case involved the documented improvement process which was the subject of the extensive documentary material. Mr Murphy said that the Department had made every effort to assist the applicant in reaching acceptable standards that could be established as necessary to be a Secondary School Teacher. Mr Murphy said that a considerable amount of money and time had been devoted to the employment of Teachers, and that the employer was not disposed to wasting such time and effort. Consequently, according to Mr Murphy, the detailed, documented performance improvement process was designed to try and have inefficient or under-performing Teachers improve to acceptable standards. Mr Murphy stressed that it was a program of ten weeks duration that involved a number of different people including the Principal, Mr Jones and other Teachers, including an external Teacher, a Ms Baghurst, who participated in the process although she was from another secondary school. 29 Mr Murphy submitted that the performance improvement process was one that provided both procedural and substantive fairness, and that it was clear that the program was completed, and that upon its completion the applicant was unable to demonstrate that he was capable of performing at a level required of a High School Teacher or indeed any Teacher in the New South Wales School system. 30 Mr Murphy submitted that the extensive, detailed and documented improvement program was designed to ensure that there were appropriate standards of teaching in the New South Wales education system. Mr Murphy submitted that the applicant was simply incapable of teaching at the level regarded as acceptable and that therefore, the Commission should not interfere in the employer's decision to annul the applicant's probationary employment. 31 Mr Murphy further submitted that despite the clear substantive basis upon which the employer moved to annul the applicant's employment, if there be any doubt, the applicant's conduct during the proceedings both with the presentation of his case and some of his outrageous advocacy, should leave no prospect for the applicant to be "inflicted upon New South Wales schools' students." 32 Mr Murphy strongly urged the Commission to reject the applicant's claim and dismiss the matter. CONSIDERATION 33 The most troubling aspect of this matter was the absence of any evidence from the person who made the decision to dismiss the applicant. The decision to annul the applicant's appointment was made by the Director, Employee Performance and Conduct, Ms Jane Thorpe. The Commission has not had the benefit of hearing from Ms Thorpe. Consequently it is difficult to determine exactly what matters were or were not included as part of her decision making process. Ordinarily the absence of the decision maker will create difficulties with the defence of an unfair dismissal claim. 34 Further, this aspect is compounded by the evidence that the decision maker, Ms Thorpe, at no time came face to face with the applicant. It would seem that almost as a matter of basic human dignity, the person that is making the decision to dismiss an employee should do so face to face unless there are compelling reasons to do otherwise. 35 The employer asserted that if the applicant had sought to have a face to face meeting with Thorpe, then arrangements would have been made for such a meeting to occur. Although this in some way does assist, given the protracted and detailed process that the employer utilises in respect to firstly the formal improvement program, and then the subsequent review of the Principal's recommendations following the completion of that program, it would seem that a small but important step could be included to clearly provide for face to face encounter between the decision maker and the employee. The absence of this small but important step in the procedure for dealing with dismissal of any employee for whatever reason can have significant ramifications. 36 Although it was not strongly argued in this instance, it is conceivable that in different circumstances the absence of a clearly determined meeting between the decision maker and the employee subject to potential dismissal, would offend the notions of natural justice. Particularly in cases where dismissal may be contemplated on the basis of conduct issues where there are matters of contested fact, the failure to provide for the direct hearing of the accused would result in his or her conviction absente reo. This would be a highly undesirable outcome, particularly where it could be avoided with little or no difficulty. 37 There is one particular aspect of the applicant's complaint which can be upheld. Amongst various complaints, the applicant took issue with what he asserted to be inadequate or inaccurate warning of alleged poor performance. The Principal's report provided by Mr Garrard at the end of the 2004 school year, (Exhibit 4), recommended that the applicant be granted an extension of his probationary period. The report, dated 21 December 2004, also records some satisfactory aspects of the applicant's performance and makes some positive suggestions for areas of improvement. That report can be contrasted with the letter dated 19 November 2004, that Mr Garrard sent to the School Education Director, Mt Druitt, (Exhibit 3 - Attachment 1). These two documents provide distinctly different assessments of the applicant, such that the applicant could justifiably contend that, at that time, he was not provided with unequivocal warning of his inadequacies. 38 It would seem that the Principal's report, (Exhibit 4), has been cast in very diplomatic terms while the letter to the School Education Director, (Exhibit 3 - Attachment 1), sets out a litany of very serious problems about which Mr Garrard concludes that the applicant is unsuitable to be a teacher. In this correspondence to the School Education Director, Mr Garrard variously described the applicant as; paranoid; intimidated by normal feed-back; believes there is a conspiracy against him; tends to ramble in communication; driven by his own emotions; fixated on issues that are relatively minor; has mood swings; is erratic and extreme in his reactions to people; calls students names and accuses students of things that are highly inappropriate; is unable to connect with students and understand the needs of teenagers; frequently makes statements that he later denies; appears to be depressed; appears unable to take responsibility for his own behaviour; is highly critical of anyone who tries to help him; unpredictable and irrational in his lessons and own behaviour; has alienated staff in his own staff room; appears to have very low self esteem. 39 Despite this very alarming ("private") assessment of the applicant, the ("official") Principal's report recommends a granting of an extension of the applicant's probationary period. Frankly, the two documents do not properly reconcile. 40 The various matters that Mr Garrard identified with the applicant as described as a "litany of issues" should have meant that there would have been no further classroom exposure of a person exhibiting such traits unless and until all of the identified issues had been satisfactorily redressed. It is a matter of considerable concern that a Principal might identify the performance, conduct and personality deficiencies that are set out in the letter to the School Education Director, and yet have a person displaying those alleged professional and personal characteristics continue in a classroom situation. 41 Added to this concern, during an earlier period of in excess of two years, the applicant was engaged on various short term casual appointments and therefore these professional, conduct and personality difficulties went apparently un-noticed during an extended period of casual engagements. It is most disconcerting to reflect upon what was an extended period during which many students would have been exposed to someone who is now firmly determined to have been an inadequate and unprofessional Teacher. There appears to be an alarming defect in a process that can permit extended periods of repeated casual engagements of a person who is subsequently found to be unfit to teach. 42 The applicant therefore had some legitimate basis for complaint about what was a failure to quickly and unequivocally advise of his performance and behavioural inadequacies. Unfortunately for the applicant, even if he had been given open and honest feed-back about his performance and conduct issues, it would have been unlikely that he would have experienced a more palatable outcome. It probably would have been better for the applicant, not to mention the students that were involved during his years of teaching, if his unsuitability for teaching was determined before rather than after many years had elapsed. 43 Although some aspects of the applicant's complaint about the process that led to his dismissal can be legitimised, the underlying substantive basis for his termination of employment was simply inescapable. Consequently the process issues give rise more for concern as to how it could have been that the applicant was able to teach for such an extended period, rather than provide some basis upon which to arrive at a different outcome. 44 The formal improvement program can be well summarised by just two of the multitude of documents that contribute to the overall program. Firstly, the summary of observation lessons document (Exhibit 5 -Attachment 10 - page 1), shows that the applicant was assessed as being satisfactory in only five out of the twenty lessons that were observed. In simple terms, five out of twenty represents a fail. 45 Secondly, if there be any concern about the objectivity of those involved in the lesson observations which included five different individuals, the class room observation report provided by Mrs Tanya Baghurst, an external observer, (Exhibit 5 - Attachment 10 - pages 211-215), dispels any doubt about the conclusions that emerged from the formal improvement program. 46 The applicant neatly encapsulated the position during his cross-examination of Mr Jones when he asked: "Q. Ms Baghurst's observations by an external person should have seemed to have just about sealed it, shouldn't it, that I'm an incompetent teacher as observed by your internal and now external assessors. Why didn't you make reference to it in your report? A. Well, it was part of the summative report and it certainly confirmed my view that you had not sustained improvement as required under the improvement program ." Transcript of proceedings , (13/04/07) @ pages 13-14. 47 The formal improvement program provided clear documentary basis to conclude that the applicant was unable to demonstrate that he possessed the necessary skills to be confirmed as a Teacher. In many respects it is a great pity that it took so long to arrive at that conclusion. 48 The process for identification of suitability for teaching requires urgent review particularly so as to ensure that plainly unsuitable persons are not inflicted upon students for extended periods. In addition, the process should be designed to avoid the ignominy of a protracted personality examination as the applicant was required to endure. Frankly, this was a case of being cruel by being kind. 49 The applicant has endured a detailed and protracted character examination including many recorded inadequacies. In fairness, it is clear that the applicant is not without capacities and skills as reflected in some, but not all, aspects of the presentation of his case before this Commission. The applicant is simply not suited to teaching. This unsuitability should not be broadly construed as abject failure as he would be likely to be competent in some other profession. CONCLUSION 50 The substantive basis upon which the employer determined to dismiss the applicant has been properly established. Although there were identified procedural deficiencies with the employer's handling of the matter, these deficiencies were not of a nature or magnitude that could displace the underlying substantive basis for dismissal. 51 Therefore the Commission determines that the applicant has not established that his dismissal was harsh, unreasonable or unjust. Consequently the Commission is not prepared to intervene in the employer's decision and the claim is accordingly dismissed and the proceedings are concluded. oooOOOooo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.