New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32

Industrial Relations Commission of New South Wales

CITATION: New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32

APPLICANT New South Wales Teachers' Federation PARTIES: RESPONDENT New South Wales Department of Education and Training

FILE NUMBER(S): IRC 925 of 2007

CORAM: Sams DP

Termination of employment - dismissal of primary school teacher - provisions of Teaching Service Act 1980 - primacy given to protection of children - concerns with high incidence of misbehaviour reports - informal support - applicant put on Teacher Improvement Program (TIP) - support during TIP - whether TIP negotiated with applicant - role of support person - mix of composite class - students removed from class - two students with Tourette's Syndrome and other disorders - one student not known to have Tourette's Syndrome - whether applicant given appropriate support - majority of lessons observed as unsatisfactory - review meetings - no complaint by applicant of reviews or progress of TIP - TIP extended - applicant found to be unable to maintain effective classroom management and safe and effective learning environment - recommendation applicant be dismissed - independent review - final decision maker - applicant's 16 years of unblemished service - letters of support and commendation for applicant by colleagues and parents - final decision to dismiss - reinstatement sought. CATCHWORDS: Held; primacy given to protection of children - legislative provisions considered - protection of children extends to protection from inefficient or incompetent teachers - procedural unfairness issues not substantiated - applicant received informal support - concern with failure to give additional three week informal support - applicant knew of terms of TIP and what was expected - no criticism of classroom observation until much later - no criticism of TIP or classroom observations at the time - applicant co-operated with TIP - outside disturbances - mismatch of students - applicant offered no training in dealing with Tourette's Syndrome children or students with violent behaviours - students' misbehaviours more frequent after applicant leaves School resulting in suspensions - various support given to class - still the class found to have a negative attitude to themselves and learning - failure to give sufficient weight to confluence of unfortunate and unrelated circumstances - finding that applicant a competent and dedicated teacher - unblemished 16 years service not given sufficient weight- failure to give sufficient weight to views of colleagues and parents - finding that dismissal of applicant was harsh and unreasonable - finding that reinstatement would not be impractical - orders for reinstatement - terms to be agreed - orders for lost remuneration and continuity of service - liberty to apply.