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. Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Teaching Service Act 1980 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Electricity Commission of New South Wales t/a Pacific Power v Nieass and Ors (1995) 81 IR 46 CASES CITED: Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2002] NSWIRComm 225 Johnson Nsiah v Department of Education and Training [2006] NSWIRComm 351 New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 NSW Department of Education and Training v Nabil Cassis [2007] NSWIRComm 158 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 HEARING DATES: 22 October 2007; 24 October 2007; 15 November 2007; 16 November 2007; 23 November 2007 DATE OF JUDGMENT: 25 February 2008 APPLICANT Mr N Dawson of Counsel MacMahon Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S Benson of Counsel Assisted by: Mr S Oom New South Wales Department of Education and Training JUDGMENT: - 60 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 25 February, 2008 Matter No IRC07/925 New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training Application by New South Wales Teachers' Federation on behalf of its member Debra Balsters re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 32 1 Mrs Debra Balsters ('the applicant') had been a teacher employed by the Department of Education and Training ('the respondent') for 16 years. Her last teaching appointment was at Lake Munmorah Public School ('the School') where she had been a primary teacher since 1992. On 7 September 2006, the applicant was removed from the school and directed to perform non-teaching duties at the respondent's Swansea District Office. This transfer had arisen following a 12 week Teacher Improvement Program (TIP) and review of the applicant's performance during 2006, after which the School Principal, Ms Alison Miller, determined that the applicant had failed to demonstrate the standards required for a classroom teacher. 2 As a result, in February 2007, the applicant was informed that the respondent was considering disciplinary action against her. The applicant and her Union, the New South Wales Teachers' Federation ('the Federation') made formal representations defending her position and the allegations made against her. However, she was advised by letter of 9 May 2007, from Mr John Mather, Regional Director, that he had decided, pursuant to s 93B(1) of the Teaching Service Act 1980, to dismiss her effective from that date. 3 On 30 May 2007, the Federation filed an application on the applicant's behalf, pursuant to Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act') seeking the applicant's reinstatement as a classroom teacher. Attempts at conciliating the applicant's claim were undertaken, but proved unsuccessful. Accordingly, the Commission made a finding pursuant to s 87 of the Act, and set the matter for arbitration. 4 For the purposes of this judgement, where reference is made to particular students in the School, the names of the students will be replaced by pseudonyms. THE EVIDENCE For the applicant 5 The applicant completed her teacher training in infants/primary teaching in 1988. She has also taught secondary mathematics (1990 to 1991) and from 1992 had taught at Lake Munmorah Primary School, primarily at Years Five/Six level. The applicant deposed that from 1992 to 2006 she had never received any criticism of her teaching ability or classroom management and since 2003, (when teachers have been annually reviewed), none of her reviews had been critical of her performance. The annual reviews are known as Teacher Assessment and Review Schedule (TARS). 6 In 2006, the applicant was allocated a composite Year Five/Six class with 27 students (comprising 10 Year Six students and 19 Year Five students). In March 2006, the Year Six students were placed in other Year Six classes following complaints from the students and parents about the composite class and as a measure to assist the applicant's perceived teaching difficulties. On 23 March, another child ('S') was added to her class who displayed significant behavioural problems and was later diagnosed with Obsessive Compulsive Disorder and Tourette's Syndrome. The applicant said she had received no training in dealing with Tourette's Syndrome children and was offered no extra support until 31 August. 7 On 19 May, the Principal, Ms Miller, informed the applicant that there had been student and parent complaints about her and she was to be placed on a TIP. The applicant said she was never shown copies of the complaints or informed of their substance. She was told that two parents had rung three months earlier to complain that their children disliked school. She said she was never told of these complaints nor the children involved. The applicant deposed that she was shocked by this criticism and believed she was being treated unfairly by being put on the TIP. 8 On 22 May, a meeting was held with the applicant, Ms Miller, Ms McNamara (Deputy Principal), Ms Van Egmond (Assistant Principal) and the applicant's support person, Ms Mascord, at which the applicant was told she needed to improve elements four and five of the Professional Teaching Standards. These were requirements that: · Teachers communicate effectively with their students. · Teachers create and maintain safe and challenging learning environment through the use of classroom management skills. 9 The TIP involved other teachers observing her classroom lessons and reporting on her attainment of these standards. However, the applicant said that the teachers who observed her class were unaware of the special needs and learning difficulties of her students. She said the School did not provide a teacher's aide until Term Two, even though funding for the position was available. The applicant said that no account was taken of the growing discipline problems in the School and that there had been a complete disregard of her good teaching record. 10 The applicant believed that the contents of the TIP was poor. Observers gave contradictory advice, feedback was unhelpful, observation times were changed so that prepared lessons were not observed and students became disruptive and angry by the program. 11 In oral evidence, the applicant agreed she had been trained to manage students with varying degrees of capability and behavioural problems and that she was expected to effectively manage a composite Year Five/Six class. The applicant was questioned on the School's Student Welfare Policy, introduced in 2005, which provided that "it is essential that teachers anticipate problems, take quick action and are consistent, fair and firm". She agreed that teachers must be reasonable and fair otherwise students would develop a sense of grievance and conduct themselves inappropriately. The applicant said that part of this policy dealt with a Discipline Flow Line. She explained the various steps in the process. A final step in the process was "time out" where the student was sent to a member of the Executive (Principal, Deputy Principal, or Supervisor) and further action would be taken. 12 The applicant accepted that in 2006 there were a number of "unhappy" students in her class. She agreed that there had to be effective strategies in place to maintain classroom discipline and to ensure students receive instruction at the appropriate level of their capability. She said however, that this may be affected by a non-school related incident. A student who is not focussed on the learning task, may engage in inappropriate behaviour. The applicant accepted that the smaller the class, the easier it was for the teacher to observe inappropriate behaviour, build a rapport with students and develop individual education plans. She accepted that building students' self esteem requires establishing a rapport and investigating why a student is behaving inappropriately. She agreed it is important to treat students fairly and that teachers have a duty of care for the safety and welfare of the students in their class. 13 The applicant said that at the end of 2005, she had been asked to send literacy rankings to the Executive in order to formulate the composite classes in 2006. She agreed that a number of her Year Six students had wished to be in a straight Year Six class. Four of the 10 Year Six students had been sent to "buddy class" for misbehaviour on a number of occasions from February to March 2006. On 9 March, in a meeting with Ms Miller and Ms McNamara, the applicant said she had been told the Year Six students would be taken out of her class. At this meeting, she had also been told of complaints about the way she had spoken to students. She denied having trouble managing the class and denied the complaints. On one complaint, she had actually spoken to the boy's mother on a couple of occasions. It was later said that there were 11 documented parent complaints and 21 documented student complaints. The applicant said she had only become aware of this detail in May 2006. The applicant said that after the 9 March meeting, she was quite distressed and proceeded on a week's sick leave. When she returned she sent cards of appreciation to Ms Miller, Ms McNamara and Ms Van Egmond for sending flowers to her while she was off on sick leave. 14 After now having 19 students, the applicant agreed it gave her more opportunity to observe the class and develop individual education plans. However, she conceded that she continued to experience difficulty in managing the class. 15 The applicant could not recall a meeting with her supervisor, Ms Van Egmond on 5 May 2006, where Ms Van Egmond had suggested a thorough investigation of misbehaviour incidents, so as to get both sides of the story. She said the meeting concerned a student, 'T', who was not completing his work, was continually disruptive and always out of his seat. Ms Van Egmond suggested using a negotiated reward system with 'T'. It had also been reported to Ms Van Egmond that five students 'M', 'T', 'J', 'JD' and 'B' had complained that the applicant had "picked on them". The applicant said that this was the students' "perceptions". Ms Van Egmond had found that they felt a sense of injustice, because others were equally at fault. 16 While the applicant denied receiving informal support from Ms Miller, Ms McNamara and Ms Van Egmond at this time, she accepted that the Deputy Principal dropped into her class once or twice a week, students were counselled after referral from her, all staff were provided with a review of the Discipline Code and she had been encouraged to use different strategies to address classroom management issues. The applicant agreed that at her TARS meeting on 22 March, Ms Miller had suggested strategies which she tried and had worked. 17 The applicant said that prior to the TIP meeting on 22 May, she had received a copy of the Procedures for Managing Teachers who are Experiencing Difficulties with their Teaching Performance, and had read through them. She understood she had a responsibility to enhance her performance and seek assistance. She could have a support person at all times and consult the Federation. She did not understand that the TIP was to be negotiated or that she could discuss it with her support person. The applicant said that at the meeting she denied having any difficulties or any issues with classroom management. She wanted details of the complaints. (She received further details the following week.) 18 The applicant was asked if she had said she was going to "fight the program" (TIP). In further questioning, she said she had meant she was going to fight to keep her job. She had been upset and was crying at the time. She said in cross-examination she had been misunderstood and was always intending to do the TIP. She agreed that when she left the meeting she warned staff in the staffroom of the fact she was on a TIP. 19 At a further meeting on 30 May, the applicant said she had not accepted a real problem existed, but she had been willing to improve and had co-operated with the TIP. The applicant insisted that there was no negotiation of the TIP; rather, it was simply read to her by Ms McNamara. She did not ask for a copy of it and had not seen it until February 2007. The applicant conceded that she had not raised the terms of the TIP with Ms Miller, because she did not want to interfere and said that "they would do what they liked anyway". The applicant agreed there had been 21 observed lessons, review meetings and opportunities for her to observe lessons at the School and other schools (Budgewoi Public). 20 The applicant accepted that after completion of the TIP and the Principal's decision there was an independent review and that she had an interview with the reviewers. In further cross-examination, the applicant accepted that during the 12 week TIP, there were regular review meetings which she had attended with her support person. Minutes were taken and provided to her. She agreed she could ask questions, but she claimed there was limited discussion. On 15 June, she had received consultant support for 'T'. The applicant accepted that Ms McNamara had prepared a separate plan for 'T' if he became disengaged from the class. On 11 August, the applicant attended a day's Behaviour Management Course. The applicant felt she did not get much out of the course. The applicant agreed that of the 21 observed lessons, 15 were assessed as unsatisfactory. While she had an opportunity to make comment on the observations, she had not done so until after the end of the program as "after thoughts". She accepted that she could have been more constructive in her feedback after the observations, but had chosen not to. 21 The applicant said that students continued to be sent to the Executive during the TIP in accordance with the School policy. She denied that she hadn't given adequate explanations for referring students, particularly ones where safety concerns were an issue. She agreed the classroom was unsafe by some behaviours, such as students climbing through windows, leaving the room, throwing chairs or pens or hitting other students. However, she said that this was why she referred the students to the Executive. The applicant conceded that it was her responsibility to try and make sure these incidents didn't happen. She said the poor relationships were between the students, not between her and the students. She said everyone had tried to change the students' behaviour, including the Deputy Principal, Assistant Principal and their parents. 22 The applicant agreed there were a number of students involved in the misbehaviours, and that there was an extensive list of incidents (around 50) where students were referred to the "buddy class" level of discipline. The applicant agreed that by week seven (of the TIP) there had been no improvement in the students' behaviour. She said new strategies were not working. 23 The applicant said that she was upset when 'T' was removed from her class, as no student had ever been removed from her class before. She had said on 26 July, that she was "doing everything alright now but will try to improve". However, the applicant felt her professional judgment was being disregarded and she just had to do what she was told to do. 24 The applicant agreed that at a meeting on 17 August, she was told that Ms Miller still had concerns over her performance and she had impressed on her that she was in charge of the class. The applicant did not believe she had lost control, but was simply following the School policy. Ms Miller had also stressed the importance of the welfare, learning outcomes and safety of her students. 25 The applicant was questioned on a number of comments by observers of her class. She said an outside teacher, Ms Park, did not know her class. The applicant did not accept Ms Van Egmond's observation of inconsistent interaction when 'J' threw a pen at her. She said she was "surprised" that her lessons were unsatisfactory. She said she had not written comments on some of the observed lessons, because she did not think it would achieve anything and might prejudice her position. Her "after thoughts" were written after her final assessment was found to be unsatisfactory. 26 The applicant claimed there was no consultation at her review meetings. The Principal just had a script and she felt to argue would create further problems. It was usually half an hour of saying how terrible she was, with no positive feedback. On 5 September, when Ms McNamara observed a reading lesson, the applicant said she did not know how Ms McNamara came to a conclusion that the majority of the students had no understanding of the concepts in the lesson. She had not monitored their progress, because she intended to do so in the next lesson. The applicant explained that when she had said she "had not wanted a small class because she couldn't 'hide' them with others", she had meant that she could put students between others and with fewer students its easier for students to see the misbehaviours of others and be distracted. 27 The applicant agreed that there was a review of the Principal's decision by the Employee Performance and Conduct Unit (EPAC) and that she had written a submission defending her position. Similarly, when the final decision maker, Mr Mather, was considering the matter, she had put submissions to him. Finally, the applicant said that no one had been injured in her class, she was aware of her responsibilities and reported everything concerned with safety. 28 In re-examination, the applicant claimed that she had not seen a number of documents before February 2007. They were the 5B "buddy class" referrals; the minutes of the initial meeting; the overview from Ms Van Egmond of 23 May; and the draft TIP. 29 The applicant said that she had taught 'J' in 2006 only, and had not been told he suffered from Attention Deficit Hyperactivity Disorder (ADHD) and Tourette's Syndrome. She had no knowledge or training on how to deal with these behaviours, nor was she offered extra support. She was not told that 'S' had Tourette's Syndrome, Obsessive Compulsive Disorder and Mixed Conduct and Emotion Disorder prior to teaching him. Tourette's Syndrome was diagnosed in Term Two. The applicant deposed that she had heard that 'S' had said that "every teacher I've ever had has left because of me. I got rid of them". 30 The applicant was referred to the full extract of the minutes of the initial TIP meeting in which Ms Miller said she believed the applicant was a committed teacher. She (the applicant) had voiced her love for teaching and it was that love for teaching that was the reason why she was going to fight the program. 31 The applicant said she had not been given any opportunity to observe a class with a Tourette's Syndrome student. She added that she had not been given any assistance or training in controlling violent children. 32 The applicant said that the observations of teachers from other schools were put in her pigeon hole and she wasn't given any opportunity to discuss their observations with them. 33 Ms Christine Knight is the School's librarian / teacher and has worked with the applicant for 14 years. She has every class in the school at least once a week involving 570 students. Ms Knight deposed that the applicant was always organised, thoroughly prepared, used library resources effectively and efficiently and usually spent her breaks in her classroom. She described the applicant as a quietly supportive colleague who did not frequent the staff room socially. Ms Knight had observed that the applicant stuck consistently to the Discipline Flow Line and followed the School's policy closely to ensure consistency. 34 Ms Knight referred to a particular week when she had taken 5B and described it as the worst five days of her career. At the start of the day two boys ('M' and 'E') had a verbal argument, 'M' overturned his desk, a girl 'K' was crying because someone had taken her book and 'J' was loudly teasing other children. She said this had set the scene for the day. 35 It was Ms Knight's opinion that 5B was a mismatch of personalities with not enough role models. The children seemed to realise they had a degree of power. She believed the tone of the class changed after the Year Six boys were moved out in March 2006, without consultation with the applicant. Ms Knight believed that the physical position of 5B meant the class and the applicant were isolated from the rest of Year Five. 36 Ms Knight could not recall the applicant experiencing any particular teaching difficulty and she had always passed her TARS. She had developed a warm relationship with her students and was known for using positive rewards. There were never any concerns that her students did not meet student outcomes or achieve poor basic skills results. 37 As the librarian, Ms Knight described how the applicant was always well prepared with any research task and followed up on each task and any particular discipline issue. The applicant was always punctual in collecting her class from the library. 38 Ms Knight observed that individually most of the 5B children appeared friendly and co-operative. However, as a group they were difficult. 'T' was particularly disruptive and a number of children continued poor behaviour into Year Six. 'S' had continued his appalling behaviour and had suspensions, negotiated attendances and restricted playground access in 2007. 39 Ms Knight deposed that when the applicant was removed from the school, a very tight control was engaged on 5B. The Deputy Principal took the class and Ms Knight had observed a constant trail of support from the Principal, Deputy Principal and teachers' aides. This support continued throughout the year, but had not been earlier provided to the applicant. 40 Ms Knight said the applicant worked hard on her TIP and used the library to secure resources. Ms Knight said that in all the years as a colleague the applicant demonstrated interest and concern for the students' welfare and academic achievement and worked tirelessly to ensure all students achieved their outcomes. She had concern for the wellbeing of the students and colleagues and constantly demonstrated empathy and compassion in practical ways. 41 In further examination in chief, Ms Knight who had also acted as Principal at the School, said that her observations came from having involvement in the school assemblies, delivering resources, running the choir and students using the library. In her acting position on the Executive up to the end of 2005 and early 2006, Ms Knight had never heard any criticism of the applicant. 42 Ms Knight was referred to an incident report on 15 March 2006 involving 'S', in which she described his disruptive behaviours - swearing, answering her back and crawling under the table. Nevertheless, he was regarded as the best reader in the school. The teaching staff were informed at the start of 2007 that 'S' was diagnosed with Tourette's Syndrome. They had talked about his other disorders. Ms Knight said she had never been trained on how to handle Tourette's Syndrome children until later in 2006. 43 In cross-examination, Ms Knight agreed that the essence of school training is to learn how to manage the behaviour of students. Ms Knight said her observation of the applicant involved her preparation and researching for lessons. She said that the applicant was always in her room and ready to start after breaks, whereas most other teachers, including herself, spent time going from the staff room to their rooms. 44 Ms Knight accepted that generally a smaller class was more manageable than a larger one. She conceded she had not been involved in the applicant's 2006 TIP preparation or the TIP process itself. Ms Knight said that when the applicant discussed her problems in the class, she had offered her informal support. 45 Ms Knight agreed that the 2007 school captain, a prefect and two house captains were in 5B during 2006. She said they had sporting leadership, but were not work role models. She agreed there was only one student in 5B who had identified behavioural problems. Ms Knight accepted that seeking collegial support involved the applicant asking for it. She agreed it was only her observation, that the applicant appeared not to have been given much support. 46 Ms Tracey Caban has been a teacher at the school for 13 years. She gave evidence concerning a letter she wrote to Mr Mather on 18 September 2006, concerning the behavioural problems of six students in the applicant's class. Ms Caban had previously taught some of these students, in particular students 'S' and 'T'. 47 Ms Caban was asked to identify a number of incident reports concerning 'S', who she had taught in 2005 and 2007. On one occasion (15 March 2007) she said he was non-compliant, swearing at her and acting very defiantly. As a result, Ms Caban said he was suspended for three days - a decision made by the Executive. In fact, he was suspended on more than one occasion. Ms Caban had been involved with the Learning Support Team meetings concerning 'S'. Ms Caban became aware in 2007 that 'S' suffered from Tourette's Syndrome, but she had not been aware of his condition in 2005. There had been a meeting of teachers with the Tourette's Association in early 2007. Ms Caban said she had received teacher's aide support for 'S' in 2007, but not in 2005. 48 In cross-examination, Ms Caban said that in 2006, the applicant had asked her about problems with children in her class and she had given her some informal advice. Some of these strategies had worked, but others had not. 49 Ms Caban said she had not been asked by anyone to prepare the letter to Mr Mather. The teachers at the School had been talking and she felt someone needed to know that the children in combination in 5B were quite difficult to teach. She was surprised to learn that there was no record of Mr Mather receiving her letter. She conceded she had not provided a copy to the School's Executive or raised it's contents with the Principal or her supervisor. 50 Ms Caban conceded that in 2005 'S' had not displayed the type of behavioural problems he had later in 2006. Ms Caban accepted that she had not identified any of the students she referred to in her letter to Mr Mather as having behavioural problems in her end of year report in 2005. Only one student identified in 2004 ('E') was the only asterisked student in 2005. 51 Ms Caban denied that there had been role models in the class, despite the class having the present school captain ('B'), a prefect ('M') and class captain ('MF'). Ms Caban said she had not found 'M' and 'B' to be strong in leading other children. Ms Caban said that while the captains and vice-captains were voted by the students, this practice was now being reviewed to ensure that the student leaders were real role models. 52 Ms Caban described the methods she uses to change student behaviour and recognise good behaviour. Rewards systems work for some children. While consistency is important, different children need different standards. This is achieved though a Discipline Flow Line. Ms Caban agreed that in most cases, a misbehaving student will be asked for an explanation of their behaviour. The teacher would always endeavour to ensure fairness to all concerned. 53 Ms Caban said that student 'J' had major issues with other children at various times. However, she hadn't seen the need to recommend separating him from other children after she experienced his behaviour in 2005. Ms Caban was asked about a number of other difficult children she had in her class in 2006. She agreed that this mix would be true of any number of classes which teachers are required to manage. For the respondent 54 Ms Alison Miller has been employed as a teacher since 1972 and has been a Principal of four public schools since 1996. She was appointed to the School in January 2005. Ms Miller said she always had a cordial and professional relationship with the applicant. Ms Miller said that in 2005, the applicant had asked for support in dealing with student behavioural issues. However, Ms Miller did not consider these problems as requiring detailed support. In early 2006, however, Ms Miller said she had concerns with the high incidence of behavioural problems being referred by the applicant to the Executive, particularly from her Year Six students. As a consequence, Ms Miller removed all Year Six students from her class, leaving 19 Year Five students. In reply, the applicant said that this restructuring was not due to discipline problems, but the Year Six children's desire to be in a straight Year Six class. She said that only once in her career had a student been removed from her class. 55 Ms Miller deposed that ordinarily a smaller class was more manageable, allowing the teacher greater opportunity for individual student attention. Ms Miller believed that the mix in 5B during 2006 was no more challenging than the other two Year Five classes. She rejected the assertion that the class had been poorly selected. 56 Ms Miller said that the decision to include 'S' in the applicant's class was made in consultation with her. It did not have a cumulative effect with the other Tourette's Syndrome student ('J'). The applicant responded that 'S' had been suspended a few times in 2006 and 2007, and 'J' was now medicated and has regular Teacher Assistant Support (TAS). 57 Ms Miller said that teachers' aides are not specifically funded for a particular student and were allocated at the Principal's discretion. The applicant did have support from a teacher's aide in Term Two during her TIP. However, the applicant said this support was only sporadic. 58 Ms Miller denied the School had growing discipline problems and she further denied that members of the Executive had the same management problems as the applicant. Ms Miller questioned that if the applicant had been an effective and efficient teacher prior to 2006, why was she unable to address the areas of concern in her teaching performance? 59 Ms Miller denied that the TIP was "poor". The applicant was given a great deal of support and assistance and Ms Miller had been disappointed that she was unable to demonstrate improvement. Ms Miller said the formulation and implementation of a TIP is a consultative process. At no time did the applicant complain about observers of her class, changes in the TIP or not being provided with paperwork. Ms Miller referred to specific assistance given to the applicant from Ms Lori Gibson, Assistant Principal, Behaviour. The applicant said Ms Gibson's strategies did not manage the class effectively. 60 Ms Miller believed that the applicant was in self-denial in that she had a serious teaching deficiency that needed to be addressed. Ms Miller felt she was simply going through the motions (of the TIP). Minutes of review meetings had confirmed that the applicant believed she was doing everything right. The applicant denied these claims and noted Ms Miller's own comments about her that she would arrive early, had tried hard to demonstrate efficiency and improvement had been noted. 61 Ms Miller said that prior to May 2006, she had made the applicant aware of oral and written complaints from students and parents and had given her the names of the parents. A number of children said they were unhappy in her class, they did not want to come to school and their attitude had changed. In reply, the applicant said the complaints concerned the composite class and not her teaching performance. Ms Miller said she had given the applicant all appropriate documentation and nothing further had been requested by her. 62 Ms Miller had prepared a report on 24 May 2006 about her concerns with the applicant's standard of teaching performance. She regretted that the applicant felt she was being treated unfairly, but as the Principal of the School she had specific responsibilities which she could not ignore. 63 Ms Miller deposed that at various stages in the TIP the applicant had an opportunity to comment and seek particular support. However she had given only limited comments and Ms Miller was surprised that after she had left the School, the applicant had provided "after thoughts" about the lesson observations which were generally a denial of what had transpired. Ms Miller believed all the observers of the applicant's class were aware of the needs of her students. The applicant denied that she had not sought support. The suggested strategies did not seem to work. 64 Ms Miller said it was a great personal disappointment to her that she had come to the conclusion that the applicant's performance was so deficient that she could not support her continuing as a teacher. The applicant said that Ms Miller had not taken account of the needs of the children in her class, outside disruptions, her own stress, a lack of information and support and she was provided no training about Tourette's Syndrome students. She noted that only a two week extension was allowed for the TIP. 65 In further evidence in chief, Ms Miller referred to the draft TIP which she said was negotiated with the applicant and a copy given to her. The role of the support person was discussed at the meeting, but Ms Miller was unsure if a document was given to her and the support person. Ms Miller said that the implications of having a Tourette's Syndrome student in her class was not considered in the lead up to the TIP, nor was it known that there was another student in the class with the same disorder. 66 In cross-examination, Ms Miller agreed that she had familiarised herself with the applicant's yearly appraisals from 2001 to 2004 and had herself attested to the 2005 appraisal. 67 Ms Miller said that before putting the applicant on the TIP, she had a discussion with staff at the EPAC. Ms Miller agreed that Ms Mary Ellen Jackman, from the Unit, had suggested to her that the applicant be provided with a further three weeks of informal support before the TIP, to demonstrate procedural fairness and goodwill. Ms Miller had not accepted this recommendation and had advised Ms Jackman that an extensive period of support had already been provided and the guidelines didn't provide for such a period of informal support. In a letter to the EPAC Ms Miller had added "I believe that my credibility as the Principal of this school may be brought into question if I choose to disband the program at this point". Ms Miller said the EPAC's advice was not a recommendation. She denied the suggestion that her refusing the advice was about her own credibility. 68 Ms Miller deposed that throughout 2005 (her first year at the School) she had familiarised herself with students in the School with special needs and undertook specific reviews. Any child with a diagnosed disability has an action file which is separate to the School Counsellor's files. Ms Miller said that a student identified as Special Needs is not automatically put in a special behaviour class. Funding is available for additional support for such students in mainstream classes. Support Teacher Learning Assistance (STLA) is available for students with academic needs, not behavioural problems. She added that all support is at the Principal's discretion. 69 Ms Miller said she knew 'J' had a long history of ADHD, Tourette's Syndrome and Obsessive Compulsive Disorder. This would have been taken into account when he was placed in a class. 'J' had received STLA support in 2002 for learning difficulties. 'J's' condition had not qualified him as severe enough for a support class, which contains eight students. Other support such as special units for parts of the week was not considered necessary. Ms Miller understood that Tourette's Syndrome is characterised by involuntary movements and uncontrollable vocal sounds. Ms Miller deposed that she had taught children with Tourette's Syndrome, but not two in the same class. 70 Ms Miller agreed that she had not advised the applicant that she might avail herself of outside support with behaviour management issues and no outside support or teacher's aide support was offered to the applicant before she was put on the TIP. Ms Miller said that teacher's aide support had been delegated to Ms McNamara. Ms Miller believed the applicant needed to come to her to request assistance. Ms Miller said she had not been aware that 10 out of the 18 students in the applicant's class had been referred to the Counsellor. 71 Ms Miller agreed that 'J's' poor behaviour continued after the applicant had left, but, she said he was not out of control. She agreed that all of 'J's' basic skills improved between Years Three and Five. Ms Miller wrote to 'J's' father in May 2006, to identify his inappropriate behaviour and foreshadowed that he may be suspended. She agreed that his behaviour could have been as a result of his Tourette's Syndrome. However, she had not sought further advice. She said that when 'J's' anxiety increased, he was removed to calm him down. Ms Miller had made a decision not to send him for further professional assistance. 72 Ms Miller said she was aware of 'S's' behavioural problems arising from Tourette's Syndrome, Excessive Compulsive Disorder, and Mixed Conduct and Emotion Disorder. 'S' had been considered eligible for ED (emotionally disturbed) integration assistance and she had been in contact with 'S's' parents, who had not wanted him in the unit in 2006. 'S' displayed disruptive and dangerous behaviour such as throwing chairs, self injury, fighting, absconding and loss of temper. However, Ms Miller agreed she had not offered the applicant training in non-violent crisis management. The school was required to accept these students and manage them in class. Ms Miller said that after the applicant left the School, Ms McNamara took the class for a few weeks, then Ms Emerson and in Term Four, Ms Giovani. Ms Miller could not recall if Ms Giovani had reported to her that 'S' had said he had got rid of every teacher that had ever taught him. She conceded she would have been concerned if she had been aware of this conversation. 73 Ms Miller confirmed that 'S' had been suspended in October 2006, in March 2007 and April 2007, even though some of his behaviour may have been related to his Tourette's Syndrome condition. Ms Miller believed that all of the suspensions were reasonable. After each suspension, there would be a meeting to re-emphasise the requirement for appropriate behaviour and identify strategies for the student. 'S' required an individual discipline plan. This included keeping him at home if a casual teacher was required to take his class. Ms Miller conceded that even after the applicant had left the School, 'S' continued to be a very difficult student to manage. He had received funding assistance. The school had discussed a special placement for 'S' after his suspensions, but it was not considered appropriate. His parents really wanted him in the mainstream system. Ms Miller could not say if there were minutes of learning support meetings where 'S' had been discussed. 74 Ms Miller deposed that when she wrote her final report on the applicant, she had taken into account that 'S' and another undiagnosed Tourette's Syndrome student had been in her class. When asked why there was no reference to these students in the report, Ms Miller said that she was reporting on the applicant's ability to manage the class, with all sorts of children in it. She said it was departmental policy that teachers must manage all forms of behaviour, no matter how bad. Ms Miller added that students are placed in classes to ensure a balance with the resources available. 75 Further, in cross-examination, Ms Miller was shown a November 2006 report from Ms Giovani, (and which she had signed off), in which it was said that, at the time, the whole class (5B) had a very negative attitude to themselves and to learning. Ms Miller accepted that Ms Gibson was not asked to give assistance to the applicant until after the TIP had commenced. However, she said that experienced teachers at the school had provided support to the applicant prior to the TIP. Ms Miller agreed that the applicant had complained about not receiving teacher's aide support prior to the TIP. 76 Ms Miller agreed that none of her staff had been formally trained about the use of TIPs . She noted that the guidelines had changed in 2006. However, both she and Ms McNamara had regular contact throughout the TIP with the EPAC. Ms Miller explained that the applicant's TIP was kept in draft, because it was "fluid" and subject to change. Ms Miller said that the TIP was negotiated with the applicant and that she was given feedback throughout the program. Ms Miller agreed she wasn't involved in the negotiation (of the TIP) because Ms McNamara was the supervisor and she had negotiated it. Ms Miller conceded that feedback didn't change the program. Ms Miller believed that the applicant had been given the draft TIP. Ms Miller understood what the specific indicators were that she was looking for when she observed the applicant's class. In re-examination, Ms Miller said that the applicant had never complained about not receiving the TIP or not knowing its contents or its expectations. 77 Ms Miller agreed that while the 11 documented parent complaints had been subpoenaed, they were not able to be located. Ms Miller acknowledged that Mr Potter, School Education Director, had mentioned to her that he had received letters of support for the applicant from parents and staff. Ms Miller had never spoken to Mr Mather about the matter. 78 Ms Miller agreed that the applicant had always worked hard, including during the TIP. Review Minutes recorded "improvement demonstrated". Nevertheless, Ms Miller maintained that the applicant was just "going through the motions". Ms Miller said she had tried to encourage her, be supportive and constructive. Ms Miller accepted the applicant knew how to prepare lessons. She agreed the applicant's students had not suffered in the basic skills test results. 79 Ms Miller could not recall if she had told the applicant that her Year Six students had complained of not doing appropriate level work and were bored. Ms Miller now accepted that she had not told the applicant the names of the parents who had made complaints about her. Ms Miller also accepted that there was no consultation with the applicant when her Year Six students were removed from her class and that the applicant had told her that she was concerned that all the older role models were removed. Ms Miller also agreed there was considerable outside disruption in early 2006. 80 Ms Miller agreed that TIP review meetings were formal meetings and that comments had been prepared and written down before each meeting. Ms Miller did not think it was appropriate to have discussions with the applicant outside the formal reviews. 81 Ms Susan Maree McNamara is currently Principal at Speers Point Public School and was Deputy Principal at the School between 2001 and March 2007. Ms McNamara deposed that the applicant was a teacher who required more support than others and her dependency on outside support to manage class behavioural problems escalated in 2005 and came to a head in early 2006. Ms McNamara said she became aware at the end of 2005 that there were an inordinate number of referrals of students by the applicant to the "buddy class". This was the third stage of the Disciplinary Flow Line where a student would be referred to another class for "time out" and to reflect on their behaviour. The applicant insisted that all her referrals to the "buddy class" were appropriate. In late May 2006, Ms McNamara prepared a list of the applicant's "buddy class" referrals at the applicant's request, after the initial TIP meeting. The applicant said she had only asked for examples of where she was said to be having difficulty (with her teaching). 82 Ms McNamara deposed that in early 2006, the School Executive initiated a number of actions to assist the applicant. On 9 March 2006, it was explained to her that the Year Six students were to be transferred out of her class in order to alleviate her teaching load. She had also been told that there had been complaints that she had called students "fat" (which she vehemently denied). Ms McNamara said that at this meeting the applicant was distressed and crying and it was suggested she go home and seek medical advice. When she returned, the applicant had sent cards of appreciation to Ms McNamara, Ms Miller and Ms Van Egmond thanking them for their support. The applicant denied having difficulty with Year Six students and believed she had effective control of the class. She said it was the parents who did not like composite classes. The applicant believed that the removal of the Year Six students had the opposite effect than what was intended. It upset the class and her own programming and organisation. 83 Ms McNamara said that in March and April 2006, members of the Executive had provided informal support to the applicant. Ms McNamara had regularly dropped into her room to assist with discipline. 84 Ms McNamara referred to the child added to the applicant's class on 23 March 2006 - 'S', and said he had not been displaying significant behaviour problems at the time. It was only later in the year that the student was diagnosed with Obsessive Compulsive Disorder and Tourette's Syndrome and, at that time, the applicant applied for behavioural support. 85 Ms McNamara had attended the initial TIP meeting with the applicant and Ms Miller and she agreed with Ms Miller that the applicant was experiencing difficulties with her teaching performance. She had hoped the TIP would assist her and was surprised when the applicant said she believed she was not experiencing any difficulties, nor were there any issues of classroom management. 86 Ms McNamara said she had prepared a report of the complaints against the applicant and had given her a copy, at her request, on 30 May 2006 (the 11 documented parent complaints and 21 documented student complaints). These were raised with her at the 9 March meeting. The applicant believed Ms McNamara's report was misleading and contained many errors. The applicant said she had only seen two documented complaints from parents which she had disproved. All the other issues, (such as students throwing pens or once she jokingly told a student to "shut up"), were trivialities not requiring a TIP. 87 Ms McNamara denied that the applicant was treated unfairly by being placed on the TIP. It would have been a disservice to the students not to have taken action. In reply, the applicant noted that the poor student behaviour continued after she had left. 88 Ms McNamara said she had a very keen appreciation of the student mix in 5B and their needs and she described the process for selecting classes at the end of each year based on ability, using rankings of A,B,C and D. Students with special needs or behaviour problems are noted by asterisks. Ms McNamara disagreed that 5B was "poorly selected". 5B was allocated category B students, while the other two Year Five classes had a greater mix of students with challenging behaviours. Teachers are expected to have the skills to teach a range of students. The Tourette's Syndrome student had been in the school since kindergarten and had been effectively managed. In reply, the applicant responded and said that the asterisk system to split students only came into effect in December 2006, and she now understood that her problem children had been split in 2007. 89 Ms McNamara emphasised that there was informal support provided to the applicant before the TIP, even though the applicant might not have recognised it. Ms McNamara denied she had apologised to the applicant for the problems caused by her students and further denied any growing discipline problems in the School, apart from those in the applicant's class. 90 Ms McNamara stressed that the TIP was a result of a consultative process. At no time did the applicant say the program was poor, nor did she seek any changes. It was only after she completed the TIP that she provided "after thoughts" on lesson observations. Ms McNamara added that the applicant made no complaints about the feedback after the classes. She had not complained about changes of lesson observations or not having relevant paperwork. 91 Ms McNamara believed that the applicant had a personal resistance to the acceptance of her teaching problems. She had been given a substantial amount of support which was applied in a constructive manner. In reply, the applicant denied that she was resistant to change. She had felt sick and "targeted" and Ms Miller had noted that she was "really trying hard". 92 In cross-examination, Ms McNamara deposed that the document about the role of the support person had come from the EPAC and was given to the applicant in her presence. 93 Ms McNamara said that from early 2006, at Ms Miller's request, she had been collecting and collating everything related to the applicant. All the material was be kept in one place. 94 Ms McNamara described the initial meeting of 9 March between herself, the applicant and Ms Miller as an informal meeting, even though serious issues were being raised. The applicant was not given an opportunity to have a support person present. 95 Ms McNamara agreed that the applicant had asked for details of the complaints against her. Ms McNamara had prepared a report, but had not given the applicant the primary source of the complaints. Ms McNamara said that when she kept notes of documented parent and student complaints, she later put them in the individual student files. She said most of the complaints were oral, and her record was the documented records. She believed these were her notes. Ms McNamara said the notes were not given to the Principal or the applicant but the issues were discussed with her. Ms McNamara accepted that she had not told the applicant the names of the parents or students who had complained about her. 96 In cross-examination, Ms McNamara said she had spent two days preparing the draft TIP. Ms Miller had sought her views on whether the applicant should be put on a program. She had been told of the EPAC's advice to provide a further three weeks of informal support. Ms McNamara believed she had actually provided informal support and resources to the applicant and had told her to stick to the Discipline Flow Line. Ms McNamara agreed the Discipline Flow Line was not an effective control for 'J' and 'S', and that 'S' had a number of suspensions. Ms McNamara deposed that the applicant did not complain about not getting teacher's aide support until after the TIP. When she had complained, support was increased from Ms Gibson. 97 Ms McNamara acknowledged that the applicant was not consulted about removing the Year Six students from her class. However, it was done in the best interests of the students and the applicant. The applicant had actually thanked the Executive for this support. Ms McNamara understood that the applicant later complained about losing the students, because she believed she could effectively separate the troublesome ones. 98 Ms McNamara agreed that 'S's' behaviour escalated throughout 2006 and into 2007. There had been meetings in 2006 of the Learning Support Group in respect to 'S'. Ms McNamara understood that Tourette's Syndrome students call out, swear and are unable to control their behaviour. However, she believed a teacher can offer a range of strategies to manage such behaviour. Ms McNamara believed that Ms Giovani did not lose control of the class, despite 'S' being suspended and 'J' continuing to misbehave. Ms McNamara conceded that when Ms Giovani took over 5B, the Executive had consulted Ms Giovani about 'S' and 'J's' ongoing behaviour. 99 Ms McNamara agreed that in an October 2006 report, Ms Giovani indicated that 'S's' anxiety levels had increased and he presented as an unhappy boy, that 5B had had a difficult year with changes of staff and that the whole class had a "very negative attitude to themselves and learning". 100 Ms McNamara agreed it would be rare to have two students with these conditions in the same class. 'S' had been approved for integration assistance just before the applicant left the School. Ms McNamara said that she, Ms Miller, the School Counsellor and 'S's' mother had decided to keep him in the class. The applicant had not been involved in that decision. 101 During the TIP, Ms McNamara conceded that the applicant was trying very hard, but did not come up to the required standard. Ms McNamara did not know why this observation was left out of her statement. 102 Ms McNamara said it was she and Ms Van Egmond who drafted the TIP. She said it remained a draft all the way through so that changes could be made. She said the strategies were negotiable, not the teaching standards. Two standards had been chosen. These were the two standards considered in the classroom observations. Ms McNamara agreed she had not given the applicant her notes of the classroom observations. 103 Finally, Ms McNamara deposed that she had been aware that 'S' had told Ms Giovani that "every teacher I've had left because of me. I have got rid of them. The only one I haven't got rid of is Ms Caban and that's because she had cancer". She had spoken to his mother about it. However, she could not recall any conversation about Ms Caban having cancer. 104 In her oral evidence, Ms Annette Van Egmond could not recall which members of the Executive initially raised concerns with the applicant's performance or if the discussion included offering the applicant support. Ms Van Egmond said that if a teacher sent a student to the Executive under the Discipline Flow Line, it was expected the teacher would have had some investigation of the misbehaviour. Ms Van Egmond said she had discussed with the applicant the need to investigate both sides of an incident. Ms Van Egmond said that prior to the TIP she had told the applicant she needed to listen to all students involved in the incident and make a decision based on all the information, including from witnesses. Ms Van Egmond believed that discipline was issued to some students who did not deserve it and sometimes what the applicant said had happened, had not happened at all. 105 Ms Van Egmond agreed that she had been involved in the decision to transfer Year Six students out of the applicant's class; some of whom went into her class. She said removing the Year Six students was to assist the applicant. She accepted that the other Year Five teachers, except for the applicant, were consulted about their class sizes. 106 Ms Van Egmond believed that the behaviour of some of the applicant's students was unacceptable under her management and it was her job to improve her teaching in order to support the students. 107 Ms Van Egmond said that she and Ms McNamara were given time to prepare the draft TIP and the applicant was also given time to consider it. Ms Van Egmond acknowledged that she had not received any training on TIPs and the applicant's TIP was the first she had been involved with. Observed lessons were to focus on effective communication and classroom management. However, Ms Van Egmond agreed that the specific performance indicators were not negotiable. Observation times were negotiable. There was discussion in the review meetings. Ms Van Egmond believed that the process was followed correctly and that the program had been negotiated with the applicant. 108 Ms Van Egmond said she was made aware of 'J' and 'S's' medical conditions. She understood the symptoms of Tourette's Syndrome was calling out or shouting. She said 'J's' twin brother also had Tourette's Syndrome. She agreed two of the three Tourette's Syndrome students had been in 5B for part of the year. Ms Van Egmond agreed that the applicant's class was not typical because it contained two Tourette's Syndrome students. 109 In re-examination, Ms Van Egmond said most classes have challenging behaviours, including children with Autism and Asperger's Syndrome. She believed that the applicant's class was no more challenging than any other in the school. 110 Ms Van Egmond deposed that the applicant had never complained that she did not have a copy of the TIP or that she did not know about the content of the program. 111 Ms Lori June Gibson is the Assistant Principal, Behaviour, for the North Lake Team which embraces 18 public schools. She has a post graduate diploma in special education and has been employed by the Department since 1974. Her principal function is to supervise a team of itinerant specialist support teachers. The team provides support and training for parents and staff in relation to students with behavioural or disability problems. 112 Ms Gibson was asked to provide assistance to the applicant at the beginning of Term Two 2006; initially to focus on strategies in relation to one student 'T', and to give guidance on broader strategies for managing other students. In reply, the applicant said Ms Gibson was called in after the TIP had commenced and she was not advised that she could have accessed Ms Gibson earlier. 113 Ms Gibson observed three lessons of the Year Five students and concluded that the lessons were disjointed. The applicant appeared to have difficulty in getting her students to settle down and to remain on task. She observed the applicant using the discipline policy inconsistently which created resentment and there was a lack of positive reinforcement. In reply, the applicant claimed the students were unsettled by Ms Gibson's presence. Ms Gibson said she had then developed classroom strategies and modified rules for discipline. Ms Gibson said that initially the applicant appeared receptive to the guidance, but she was later disappointed with the effectiveness of the implementation of the agreed intervention. 114 Ms Gibson believed there had been a keen local recognition of the particular problems in the applicant's class. 'T' was a specific referral (he was subsequently removed) and 'J' was known as having Tourette's Syndrome. However, Ms Gibson said most of the referral problems related to Year Six students. 115 Ms Gibson said that while she appreciated that some of the applicant's students presented behavioural problems, an effective teacher ought to be able to exercise effective classroom management to ensure an effective learning experience. The applicant replied that she did have effective classroom management, as the students' basic skills results confirm. 116 Ms Gibson said she observed two lessons during the TIP. She felt that the applicant failed to provide positive rewards and spent too much time addressing playground issues, which meant the bulk of the class were not on task. Ms Gibson had earlier recommended separate contracted work for 'T' and 'J' but they were off task and upsetting others. The applicant said that 'T' and 'J' had found the contracted work boring. She believed 'J's' father was happy with his son's progress. 117 Ms Gibson said the next observed lesson on 25 August was rated satisfactory, but with some shortcomings. The applicant could have been more proactive in keeping the students on task and by encouraging more student participation. 118 Ms Gibson rejected the applicant's assertion that the teachers who observed her lessons had no idea of the special needs and learning difficulties of the students in her class. Ms Gibson was unaware of growing discipline problems in the School. Ms Gibson said she had assisted Ms Giovani in restoring an effective learning environment, with the exception of 'S'; although his behaviour did not spread to the remainder of the class. 119 Ms Gibson said that, at no time during the TIP, did the applicant offer any criticism of the program or complain about the advice and support given to her. 120 In cross-examination, Ms Gibson agreed that her team was spread fairly thinly across the 18 schools of responsibility. Referrals to her team came through the Principal from a school's learning support team. Ms Gibson said she had received requests from the School in the past. 121 Ms Gibson was not aware when she first came to assist the applicant, that she was to be placed on a TIP. In fact, the applicant was already on the TIP when she first arrived. Ms Gibson said that she had no specific training in TIPs, but she had received a copy of the applicant's TIP. 122 Ms Gibson said that initially she was not told of 'J's' Tourette's Syndrome, but she was aware of 'T's' problems. Ms Gibson did not agree it was necessarily important to know of particular students' problems. It was the behaviour which is exhibited which is important to know how to respond to. Diagnosis was not so important, and behaviour that is unacceptable can be managed. Ms Gibson was asked about the manifestation of Tourette's Syndrome and agreed that when highly anxious students are uncontrollable, they might squeal or swear. 123 Ms Gibson said that she was told another child in the class was suffering from Tourette's Syndrome and Anxiety Disorder and perhaps Obsessive Compulsive Disorder. However, she had not seen a letter from the child's psychologist. Ms Gibson said she was told in August 2006 that 'S' had Tourette's Syndrome, Obsessive Compulsive Disorder and Mixed Conduct and Emotion Disorder. She had been involved in further behaviour management plans for 'S' and was aware he had been suspended. Ms Gibson said she was not asked to do anything about 'S' in 2007. She said there could be a range of factors for his behaviour. Ms Gibson accepted that 'S' was an unhappy boy and that 5B had a difficult year with changes of staff. 124 Ms Gibson did not believe that Ms Giovani received more support than the applicant. Ms Gibson said there was a range of support available through the learning support team and additional funding. In 'S's' case, he had received funding support for social competence and safety. 125 Mr John Mather has been the respondent's Regional Director, Hunter/Central Coast since February 2005. Mr Mather has 15 years senior management experience with the New Zealand Ministry of Education. His working life has involved education as a Head Teacher and a co-ordinator of curriculum development. Mr Mather has the delegated function of finally determining the future of teachers who have been assessed as unsatisfactory by their Principal and an Independent Review. In this role, Mr Mather can seek advice from staff in the EPAC and he did so in respect to the applicant. 126 Mr Mather said he received a referral from the EPAC on 8 December 2006, regarding the action to be taken to determine the applicant's unsatisfactory performance and efficiency. He reviewed the briefing and associated documents of the TIP and the Independent Review and its findings of unsatisfactory performance. 127 Mr Mather then wrote to the applicant on 15 February 2007, advising her that he was of the opinion her performance was unsatisfactory. He provided her with the following documents: a) the material generated during the TIP; b) the Independent Review Report; and c) relevant sections of the Teaching Service Act 1980; 128 On 26 February, Mr Mather wrote again to the applicant indicating he was considering making a decision in relation to her efficiency and any disciplinary action having regard to: (a) The protection of children; (b) The objectives of Part 4A of the Teaching Service Act 1980: (i) to maintain appropriate standards of conduct and work related performance for officers in the Teaching Service, (ii) to protect and enhance the integrity and reputation of the Teaching Service, (iii) to ensure the public interest is protected. He invited her to make a submission and have an interview. The interview was held on 14 March with an Organiser from the Federation present. The applicant provided Mr Mather with letters regarding students in her class and seven letters from parents in support of her teaching capacity. 129 Mr Mather said he then reviewed all the material, including the applicant's statements that: (a) her classroom difficulties were exacerbated by a student with challenging behaviours; (b) she was not responsible for the behaviour of her students; (c) a student with Tourette's Syndrome had not received funding support; and (d) allegations that she called students "fat" and "idiot" had impacted on her ability to respond at the first meeting about a class change. 130 While Mr Mather considered that the differences in relation to the statements of the applicant and the Principal were minor, he sought further advice from the Principal. In reply, the applicant believed Ms Miller's further advice was misleading and she had sought to cover her actions. 131 On 23 March 2007, Mr Mather sought advice from Ms Miller as to three allegations made by the applicant: (a) A student who should have been in receipt of additional support and was being funded, did not have the support until Term 2; (b) Issues that precipitated the Teacher Improvement Program related to a difficult class with an extraordinary number of students with challenging behaviours and this was not recognised adequately by the School Executive; (c) Her 2005 Teacher Assessment and Review Schedule did not identify performance issues and that no informal suggestions of a Teacher Improvement Program were provided prior to it being initiated. The Principal responded on 30 March and Mr Mather noted: (a) Comments that Ms Balsters did not take responsibility for classroom management and often referred these issues to the School Executive; (b) An "abnormal" number of referrals for classroom misdemeanours by Ms Balsters; (c) An inability by Ms Balsters to implement support strategies that were recommended to her to assist with classroom management; (d) The need for the Teacher Improvement Program became apparent to the Principal during 2005, the Principal's first year as Principal of Lake Munmorah Public School; (e) Prior to the Teacher Improvement Program being implemented on 22 May 2006, Ms Balsters was observed as having difficulties managing her class. In addition, as part of her Teacher Assessment and Review Schedule on 23 March 2006, concerns about Ms Balsters' capacity to maintain student attention were raised. In Term 2, 2006, the District Assistant Principal - Behaviour, was engaged to support Ms Balsters through the development of a management plan. 132 These conclusions were sent to the applicant via her Union Organiser and she contested Mr Mather's conclusions. 133 On 2 May 2007, Mr Mather sought further advice from the EPAC and he was advised that in terms of procedural fairness, he was required to determine whether the applicant was given a reasonable opportunity to show she was an efficient teacher. In reply, the applicant claimed Mr Mather refused to see a "bag of evidence" she had brought to the interview. 134 Mr Mather finally determined that the applicant was inefficient and had a very limited self awareness of the core responsibilities of a teacher in relation to the management of students. In reply, the applicant believed this decision was based on a biased report that did not include her strengths or support from teachers and parents. 135 Mr Mather said he gave consideration and weight to the following: (a) The Principal's recommendation at the end of the Improvement Program, and the endorsement of this recommendation by the Independent Review Panel; (b) Ms Balsters inability to take up recommendations and support to improve classroom management and her demonstrated poor judgement in not accepting responsibility for student behaviour; and (c) Her propensity to blame the students for her inability to manage the classroom. Relating to students and managing their behaviour is a key responsibility for a teacher. Ms Balsters does not seem to have acquired or be able to consistently demonstrate this core attribute. In making my final decision I also gave weight to the right of students to have quality teaching and learning experiences and the integrity of public school system in respect to teachers with an awareness of their core accountabilities in respect of quality teaching. 136 In further examination in chief, Mr Mather confirmed that he had never received the letter from Ms Caban dated 18 September 2006, concerning the behavioural problems of students in 5B. 137 In cross-examination, Mr Mather agreed he had received some 12 letters of support for the applicant from parents and teachers. He had responded to each by noting their concerns. He was also aware of six supporting letters to Mr Frank Potter, School Education Director and said he had discussed the issues raised in the letters with Mr Potter. 138 In re-examination, Mr Mather said he did not find the letters of support surprising because he believed they did not deal with the substantive issues that the applicant faced when she was put on the TIP. SUBMISSIONS 139 Counsel for both parties provided helpful written submissions which they further developed in oral submissions. 140 Mr N Dawson, of Counsel for the applicant, provided a background to the matter and, in particular, referred to the applicant's last five TARS reports (2001 to 2005) which certified the applicant as having demonstrated "continuing efficiency in teaching practice, satisfactory performance and professional growth". He also referred to, and relied on, the bundle of letters of support sent to Mr Mather and Mr Potter from work colleagues, parents and teachers. He noted direct supportive evidence was provided by Ms Knight, Ms Caban and even Ms Miller acknowledged that the applicant was a dedicated teacher, who prepared her lessons. 141 Mr Dawson said that the applicant was not consulted when the School Executive removed her Year Six students in March 2006. She was distressed with the decision and had not wanted a smaller class. She had said that the smaller class allowed the students to interact inappropriately and Ms Knight agreed with this observation. The reason the Year Six students were removed was because some of the parents and students did not want a composite class. Mr Dawson submitted that even after the Year Six students were removed, the class remained mismatched and difficult. It was acknowledged in October 2006 that "the whole class has a very negative attitude to themselves and to learning". Ms McNamara agreed with this view and Ms Knight had said that the class was a "mismatch" and "did not gel". 142 Mr Dawson noted that Ms Caban's letter to Mr Mather revealed that, in her view, the combination of children in 5B made them difficult to manage and Ms McNamara agreed that it was rare to have two Tourette's Syndrome students in one class ('J' and 'S'). Ms McNamara accepted that 'S' and 'J's' behaviours may well have been uncontrollable and that she had done nothing to seek expert advice regarding their behaviours. The applicant was totally ignored when 'S's' diagnosis was discussed with his mother, Ms Miller, Ms McNamara and the School Counsellor. 143 Prior to the TIP, Mr Dawson submitted that the applicant was not made aware of the material being collated about her and not provided with details of the alleged complaints against her. She was offered very little informal support before the TIP. The EPAC had, in fact, recommended a further three weeks informal support which Ms Miller rejected because her credibility might be called into question. He said it was not about the students. There were other distractions affecting classroom management, such as termite eradication, noise from the removal of a tree and concrete cutting. 144 Mr Dawson put that on the respondent's own evidence it was unlikely the applicant or her support person ever received the document outlining the role of the support person. 145 Mr Dawson maintained that the TIP was not negotiated with the applicant and she did not receive a copy of it until February 2007. He said that while the document was said to be "fluid" it was not, because the standards and strategies were not open to negotiation. There was no negotiation with the applicant about what specific performance indicators were to be observed in lessons. Mr Dawson noted that neither Ms Miller nor Ms McNamara took the draft TIP with them to observed lessons. 146 Mr Dawson submitted that when the applicant spoke of "fighting the program", she really meant she was fighting to keep her job. She had co-operated fully with the TIP and provided detailed replies and submissions to Mr Mather and Ms Jackman. 147 Mr Dawson said that the evidence makes clear that there was no discussion at the weekly review meetings. Ms Miller, Ms McNamara and Ms Van Egmond merely read from prepared notes. The applicant sought to co-operate with the program by not writing comments on the lessons. Her consultation and input were simply not required. Ms Miller had in fact said that "Deb always worked hard" contrary to what she had said about her "going through the motions". 148 Mr Dawson submitted that whilst it was acknowledged that there was support available for students with special needs, the applicant had received no such support prior to being put on the TIP. Ms Miller and Ms McNamara had decided that the applicant was just so incompetent that her input would be worthless and she was ignored. The applicant had specifically raised the issue of support for 'J', but was not told of the combination of disorders he suffered from and not provided with any extra support. Ms Caban gave evidence of the problems with 'J', and Ms McNamara acknowledged he needed behaviour support, but did nothing about it until the applicant was placed on the TIP. Ms Miller simply regarded him as a "naughty boy" and had suspended him, notwithstanding she knew his behaviour was uncontrollable. 149 Mr Dawson dealt with the behavioural problems associated with 'S's' mix of disorders. Neither the applicant, nor Ms Caban (who had taught 'S' in 2005), were given any support to deal with 'S'. It was well known that 'S' had anger issues - he was aggressive, swore at staff, had thrown furniture, self harmed, absconded from school, had fights and could not control his temper. While 'S' was never suspended during the applicant's time teaching him, he had a sting of suspensions after she had left, continuing into 2007. Ms Caban and Ms Knight described how difficult he could be. Ms Miller thought it was reasonable to suspend 'S', even knowing that his behaviours were uncontrollable. Neither the applicant, nor Ms Caban, had been trained in controlling violent behaviour. Mr Dawson said that 'S's' behaviour escalated after the applicant had left. He was a student who qualified for a special ED (emotional disorder) class. In her final report, Ms Miller did not put anything in it concerning the two very difficult special needs students in the applicant's class. Ms Miller had a view that a teacher was required to manage the students, no matter how bad the behaviour. Mr Dawson stressed that Ms Miller's view simply cannot be the respondent's view, given its obligations under the Occupational Health and Safety Act 2000. 150 Mr Dawson submitted that while the applicant received no support or training to deal with these difficult students, there was a trail of support to 5B after she had left. Mr Dawson speculated that if the support had been given to the applicant in March 2006, the outcome might have been quite different. 151 Mr Dawson concluded that the applicant's dismissal was harsh and too severe given the circumstances of the class and the applicant's otherwise unblemished career. He said that this case was remarkable in that other teachers have effectively given evidence against the respondent and their own Principal. It was remarkable to have the written letters of support from teachers and parents which Mr Mather simply brushed aside as irrelevant. This was a hard working, dedicated, competent and caring teacher. 152 The respondent had failed to follow its own procedures, failed to provide appropriate and available support and blamed the applicant for her students' disabilities. The applicant was denied procedural fairness. Mr Dawson referred to, and relied on Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2002] NSWIRComm 225; Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385; and Electricity Commission of New South Wales t/a Pacific Power v Nieass and Ors (1995) 81 IR 46. 153 Mr Dawson sought the applicant's reinstatement, although he recognised that it may not be to Lake Munmorah Public School. He said however, that the evidence was that Ms McNamara and Ms Van Egmond were no longer at the School. 154 Mr S Benson, of Counsel for the respondent, also outlined the background to the matter and the applicant's teaching career. Mr Benson traced the emerging appreciation (in 2005) of the applicant's inability to effectively manage classroom behaviour and her dependency on outside support to manage behaviour in the classroom. He said that this came to a head in early 2006 when the Principal expressed concern about the high incidence of behaviour problems being referred by the applicant to the School Executive. Mr Benson noted that while Ms Miller only had experience with the applicant since 2005, Ms McNamara had been at the school for many years. 155 Mr Benson submitted that the applicant's focus on problems with just two Year Five students, ignored her difficulties with a number of Year Six students. Ms Miller decided to transfer Year Six students to mainstream Year Six classes to reduce the applicant's workload and stress. Ms McNamara and Ms Van Egmond agreed with this course. This left 19 Year Five students making the class more manageable and enabling her to give greater attention to individual students' needs. Mr Benson said that up to this point, problems with Year Five students were minimal. When the applicant was informed of the decision, she was also told of complaints against her by parents and students; which she strongly denied. The applicant became distressed and was sent home. Upon her return the applicant sent cards of appreciation to Ms Miller, Ms McNamara and Ms Van Egmond. 156 Mr Benson said there were two areas of concern: classroom communication and the applicant's ability to maintain a safe and challenging learning environment. There had been 21 observed lessons which disclosed a clear pattern of a teacher not engaging the students in a participative way. A smaller class would have assisted the process of engagement. Mr Benson acknowledged that not all presentations were negative and lesson preparation was not the subject of criticism. 157 Mr Benson said that prior to the TIP, the applicant was provided with a range of informal support. This was not required by the TIP itself. This assistance included: a. Assistance to set up individual reward systems to address concerns of children in the past who were unhappy at school; b. Transfer of year 6 students to other classes; c. Revision of a discipline code and procedures to follow when children in the class were misbehaving; d. The encouragement to use a differentiated program for a student with learning needs; e. The counselling of students by members of the executive who had been referred for discipline by the applicant. 158 Unfortunately, and notwithstanding this informal support, Ms Miller formed the view that the applicant was experiencing difficulties which required placing her on a TIP. Ms McNamara and Ms Van Egmond had agreed, and Ms Miller also consulted the EPAC. Mr Benson rejected the submission that Ms Miller was only concerned with her credibility when she rejected the EPAC's advice to offer a further three weeks informal support. 159 Mr Benson referred to Johnson Nsiah v Department of Education and Training [2006] NSWIRComm 351, which identified the key principles underpinning the Department's commitment to teacher efficiency, notably: a) Students have a right to be taught by competent teachers; and b) Teachers are responsible for performing their duties efficiently and competently. 160 Mr Benson submitted that the applicant was provided with a copy of the relevant procedures, an initial meeting was held on 22 May 2006 involving the applicant, Ms Miller, Ms McNamara, Ms Van Egmond and the applicant's support person, the role of the support person was explained and the two elements of concern were outlined (see par 8). Mr Benson said that the applicant was extremely resistant to the proposition that she was experiencing difficulty. A further meeting was held on 30 May, at which the negotiation of the TIP commenced. The applicant was invited to raise any questions, but declined to do so. Mr Benson said that the evidence was that the applicant was given a copy of the draft TIP. At no time did she complain that she did not have a copy or was unaware of its contents. She did not invoke the disputes procedure in the guidelines and had consulted the Union. 161 Mr Benson detailed the implementation of the TIP. There were regular meetings between 30 May and 6 September 2006, with detailed agendas, minutes and reviews were undertaken. The applicant appeared not to accept responsibility for effectively managing her class. To further assist her, a particularly difficult student ('T') was taken out of her class. Issues of safety were also identified and Ms Van Egmond gave the applicant three specific suggestions to help her. Some improvement was noted at the next meeting, but on 17 August, two lessons had been reported as unsatisfactory. An extension of two weeks was given. 162 Mr Benson referred to comments from the 21 lessons observed over 12 weeks; of which only five were considered satisfactory. Ms Miller observed three lessons; Ms McNamara four; Ms Van Egmond five and Ms Gibson one. These observations were not challenged. It was noted that Ms Knight and Ms Caban were not involved with the TIP and could not comment on the applicant's classroom management. From these observations Mr Benson said it was clear that the applicant failed to create a challenging learning environment and this nurtured inappropriate behaviour. Mr Benson said that if a particular student was a problem this would have emerged, but it did not. 163 Mr Benson detailed the range of support offered to the applicant during the TIP: a. Opportunities to observe other teachers present lessons (including at other schools). b. Consultancy support from the Assistant Principal, Behaviour (Ms L Gibson) to develop a classroom management program. c. Observations and feedback from teaching staff from other schools and from Lake Munmorah Public School. d. The opportunity to team teach with Ms McNamara to model effective management structures. e. An individual contract formulated for 'T'. f. Attendance at a whole day behaviour management course. g. Transfer of a difficult student to another class ('J' with effect from 27 July 2006). h. Extra teacher's aide special support. i. Regular review meeting including feedback on progress and suggestions. 164 Mr Benson said that the Commission would have been impressed by the professional approach of Ms Gibson and, in particular, to her view that while a student's medical condition might not always be known, it is the behaviour itself which the teacher is required to manage. 165 Mr Benson said that following Ms Miller's unfavourable report, the applicant had an opportunity to meet with the final decision maker, Mr Mather. 166 Mr Benson referred to the legal issues to be faced in this case. He said that superimposed over the Commission's obligations under Pt 6 Ch 2 of the Act are the provisions of the Teaching Service Act 1980 and relevantly s 5A(1) of that Act, in which primacy is given to the protection of children; protecting them from incompetent or ineffective teachers: See NSW Department of Education and Training v Nabil Cassis [2007] NSWIRComm 158. 167 Mr Benson answered the applicant's defence of her position. He rejected the applicant's claim that the mix of her class was mismatched. A formal process had been undertaken at the end of 2005 with Year Four teachers ranking students and identifying students with behavioural problems. Mr Benson put that it was an extraordinary proposition that a smaller class produced greater challenges. 168 Mr Benson rejected the focus on the two Tourette's Syndrome students in 5B as being the cause of her difficulties. No student entering 5B at the start of 2006 had been identified with significant behavioural problems. 'T's' behaviour had been manageable. 'S's' behaviour had not been identified. In any event, Ms Gibson's evidence was that complete diagnosis was not necessary, as the focus is on behaviour, not the condition. 169 Mr Benson said the evidence was that the applicant was provided with extensive support, both before and during the TIP; but, in reality, the applicant did not accept she had a problem. Further, the applicant did know the contents of the TIP, knew what was expected of her and never complained about the process. She had effectively acquiesced to the program. 170 Finally, Mr Benson said that the applicant's dismissal was not harsh, unreasonable or unjust. However, if the Commission found against his primary submissions, the applicant should not be reinstated to a school at which Ms Miller was Principal. 171 In reply, Mr Dawson noted that Ms Miller may shortly be retired. Mr Dawson said that Ms Caban's assessment of the 5B class mix was never challenged. He said that the behaviours of the two students 'T' and 'S' were symptoms of their mental health disorder. Mr Dawson said that despite all the criticism of the applicant, the students' learning had not suffered as their basic skills test attested. Even so, the behaviour of 'S' escalated after the applicant had left, but she had been punished by the loss of her career for being unable to manage her students. CONSIDERATION 172 There is no doubt, as Mr Benson correctly submitted, and Mr Dawson accepted, that the imperative on the Commission when determining this matter is to ensure the protection of children. This imperative arises from the 2006 amendments to the Teaching Service Act 1980 which relevantly provide as follows: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 173 When introducing the above amendments to the Teaching Service Act, (No 24 of 2006), the Minister for Education and Training, the Hon. C Tebbutt, MLC said: As agencies responsible for the care and welfare of students the Department of Education and Training and TAFE have an obligation to protect the children and young people in their care from sexual, physical and emotional abuse and neglect and from other inappropriate conduct... For the first time express provision is made in these Acts for paramount consideration to be given to the importance of protecting children when dealing with staff disciplinary matters. Departmental decision-makers will need to give paramount consideration to the need to protect children when deciding how to deal with teachers and other staff who are subject to disciplinary action for misconduct or unsatisfactory performance. Courts reviewing disciplinary outcomes for TAFE teachers, school teachers and other people who work in schools, will also be required to give paramount consideration to the need to protect children when dealing with an appeal or other court action taken by an employee against any decision made by the department or TAFE in the disciplinary context. 174 Thus, I have no difficulty at all with the proposition, (again not contested by Mr Dawson), that 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. 175 This approach was endorsed by a Full Bench of the Commission in NSW Department of Education and Training v Cassis when it said at par 88: There can be no doubt that the welfare (and protection) of children is the paramount consideration in proceedings such as the present. This must be determined objectively with the assistance of the employment screening result. It is necessary to take all other factors into account. 176 That said, I respectfully agree with his Honour, Grayson DP, when he said in Nsiah that "I think as a general proposition, that incompetence and/or ineffectiveness on the part of the teacher has the potential to adversely affect the educational outcome of the student". While Mr Benson relied on his Honour's conclusions in Nsiah, I believe a clear distinction can be made to the circumstances of this case, in that there was no evidence that the educational outcomes of students in 5B in 2006 were adversely affected. In fact, the undisputed evidence is that they were not. Notwithstanding this significant distinguishing observation, there are a range of other factors which I have taken into account when determining this application. 177 Firstly, I would wish to dispense with matters which were raised by Mr Dawson in support of the applicant's case, but which I believe have little bearing on the final outcome. They fall essentially under the broad head of procedural unfairness allegations. 178 In my view, the majority of the issues of alleged procedural unfairness were either, not substantiated, or of such little moment as to be inconsequential, and certainly not decisive of whether the applicant's dismissal was harsh, unreasonable or unjust. As I understand it, the focus of these matters went to the establishment and conduct of the TIP. (I shall say more about the issues raised concerning the level of informal support before the TIP shortly). The applicant complained that: (a) she and her support person had not received the document setting out the role of the support person; (b) she had not participated in the negotiation of the TIP; (c) she had not received a copy of the draft TIP; (d) she did not know what was expected of her during the TIP; (e) she had not received paperwork in a timely manner; (f) the reviews of her observed lessons were unfair; (g) teachers who had reviewed her lessons had no knowledge of her class mix or the needs of her students; (h) she had received little, or no feedback from the lesson observations; and (i) her review meetings were scripted with little scope for her involvement. 179 These allegations may be answered by reference to the evidence of Ms Miller, Ms McNamara, Ms Van Egmond and Ms Gibson, which was not seriously contested. The evidence was that, at no relevant time, did the applicant complain about the TIP, its contents, the lessons observed, the role of her support person or the lack of support and feedback. At the time, she had access to the disputes procedure under the program and to her Union. However, it was not until many weeks later that these issues featured in her defence and manifested themselves in what she wrote down as "after thoughts" of her lesson observations. I do not accept the applicant's explanation for the "after thoughts" was that she was reluctant to interfere with the process for fear of it being used against her. Such an explanation does not sit comfortably with her initial response to "fight the program"; although I accept that what she meant was that she would fight to keep her job. On the other hand, there was no evidence that the applicant actively resisted the program and I accept she was co-operative throughout. I accept, as Ms Miller did, that she was "trying hard". That said, in my view, the applicant knew full well what the TIP was designed to achieve and how the program was being progressed. It was self evident that the teaching standards she was required to meet were fundamental and not subject to negotiation. 180 However, there was one matter relating to procedural fairness which I found puzzling. That concerned Ms Miller's refusal to accept the EPAC's view that the applicant be afforded a further three weeks of informal support before commencement of the TIP. Of course, whether an additional three weeks would have made any difference to the TIP is highly problematic. Yet, it seems to me, that there was little for Ms Miller to lose if she accepted the advice of the very experts she had consulted throughout the process. Perhaps there is a grain of truth to the suggestion by Mr Dawson that it (the rejection of the EPAC advice) was more about Ms Miller's credibility than about ensuring adherence to fair process. Was the applicant's dismissal unfair? 181 It seems to me that a matter of critical importance in this case is the fact that the applicant had two student's in her class who exhibited challenging and uncontrollable behaviour arising from their mix of various mental disorders. In one case, the child's diagnosis was unknown and the evidence was that it was rare to have two students in a class with Tourette's Syndrome. In my opinion, the uncontrolled behaviour of 'J' and 'S' was such that it would have been the same irrespective of who the teacher was. This proposition can be demonstrated by the level of support and assistance that the class received after the applicant had left the school and yet, Ms Miller still had cause to suspend 'S' in late 2006 and twice in 2007. It is noted that, at no time during the applicant's time as 5B's teacher, was there deemed cause to suspend 'S', notwithstanding his behaviour was essentially the same. That said, I do not accept Ms Miller's contention that a teacher is expected to manage a child's behaviour; no matter how bad or by inference, how likely that behaviour might risk compromising the safety of the child, other students or the teacher. Mr Dawson quite correctly observed that the Department has an obligation to ensure the health and safety of its staff and the students. While I accept Ms Gibson's thoughtful and incisive evidence that it is the behaviour which should be the teacher's focus, not the cause, it would seem to me to be somewhat artificial not to have regard to known diagnoses of students, particularly when viewed in combination. The fact that there was a belated attempt to train teachers in Tourette's Syndrome, I think, demonstrates this point. In the unfortunate circumstances faced by the applicant in 2006, particularly as one of the students had undiagnosed Tourette's Syndrome, I do not consider that the charge against the applicant of her inability to control her class was a reasonable attack on her teaching competence. This must be particularly so when the evidence was that the applicant had had no training in the management of Tourette's Syndrome children or in the handling of violent student behaviour. 182 In one sense, the applicant might well be criticised for a rather enthusiastic and strict resort to the School's Disciplinary Time Line. Indeed, it was this frequent incident reporting which gave rise to Ms Miller's early concerns for the applicant's teaching ability. However, on another view, when the problem seemed to escalate in early 2006, the frequent reporting of student's misbehaviours was perfectly understandable in the context of her class mix - certain Year Six students were unhappy with being in a composite class and wanted out and two students had Tourette's Syndrome. One effect of her frequent reporting was the apparent large number of complaints from parents and students, although I should say that I believe these complaints were largely overestimated, or of little moment. The fact that no actual written complaints were produced in evidence, but turned out to be notes made by the teacher who received the complaint was, I believe, a legitimate criticism made by Mr Dawson. 183 In my view, there was a confluence of unfortunate and unrelated circumstances, (including extraneous factors, see para 143) which put an unfavourable spotlight on the applicant's class and focussed the School Executive on the need to establish the cause of the discontent. In my assessment, the focus on the applicant alone was misdirected and, ultimately unfair. Moreover, I do not accept the proposition that it was only one or two students who displayed challenging behaviours and with appropriate strategies the applicant would have been able to ensure proper classroom management. The statement of Ms Giovani at the end of October 2006, reveals a much wider and more profound problem than simply one or two troublemakers (notwithstanding their medical conditions). In a report on 'S', countersigned by Ms Miller and Ms Gibson, Ms Giovani had said "the whole class has a very negative attitude to themselves and learning". In my opinion, had the respondent been fully cognisant of the implications of this very telling observation, the applicant's defence of her position would have been understood in a more sympathetic and understanding light. It was a great pity that it was not. 184 Again, to put the matter in the relevant legislative and policy setting; there was no evidence that the students' learning outcomes were adversely affected by their experience in the applicant's class. Rather, the evidence is to the contrary. 185 A large part of the applicant's case focussed on an allegation that there was little or no support provided to the applicant before she was placed on the TIP. I do not consider that the evidence bears out such an allegation. Whether such support was sufficient, or properly directed, is entirely a different matter. In my opinion, the School Executive was not motivated by any malice or antipathy towards the applicant. They were sympathetic and offered her support such as: · removing Year Six students from the class (although I make no findings on the conflicting educational outcomes of this decision); · the Deputy Principal dropped into her class once or twice a week; · students were counselled and disciplined according to the School's Discipline Time Line; and · the applicant was encouraged to adopt different strategies. 186 While there may be some justification for criticism of the level of support in comparison to that which was offered after the applicant left the School, it was clear that the support prior to the TIP was insufficient in the context of the students who were in the applicant's class. This approach ultimately produced a flawed outcome and unfair result for the applicant. It seems to me that the applicant's explanation and Mr Dawson's submissions on her behalf, sit comfortably with a teacher who, up to this point, had had a 16 year unblemished record. It is difficult to comprehend that if the applicant's competence and effectiveness was seriously embedded in her teaching style, why such classroom misbehaviours would not have manifested themselves much earlier in her teaching career. Moreover, her experience and capacity were well known amongst her peers and the community in the 14 years she had been at the School. 187 I turn now to the evidence of Mr Mather. I do not think Mr Mather's pre-peremptory disregard for the letters of support from parents was appropriate or reflective of the proper regard he should have had for their views. These letters included some of the following parent comments: 'S's' mother wrote: I was surprised to learn that she was removed from teaching and her teaching skills have been questioned. I believe that any teacher would have found it difficult to teach that particular class, as there were many children with behavioural problems and support was not readily available. ... I spoke to Debbie during a parent teacher interview after 'S's' diagnosis and I found that Debbie was very concerned for 'S' and had taken the time to gather information relating to 'S's' conditions. 'J's' father wrote: 'J' has special needs and I am satisfied with his progress during his year five class last year. His learning was helped by Mrs Balsters' commitment to address 'J's' needs and to encourage development. ... Previously, Mrs Balsters' efficient teaching was also demonstrated in educating other children of mine. I have appreciated the teaching of Mrs Balsters. Students enjoy her good teaching. Mrs Tracey Dunn who had two daughters taught by the applicant wrote: Debbie Balsters is an example of what a teacher should be - she is a mother herself, and a wife, and is completely in tune with the joys and frustrations of family life. She is sympathetic to the strains of work, schooling, homework, sporting activities and children who have difficulties with their understanding in particular areas of the curriculum. She has always made herself an accessible teacher; not one which requires an appointment to consult. ... Apart from her dedication to classroom lessons, Mrs Balsters was a very keen supporter of all sporting carnivals, always there to organise, judge and encourage the children in her enthusiastic manner. She was a friendly and familiar face in a sea of pupils, parents and teachers. She was, and remains a favourite teacher in mine and so many other children's memories. Mrs Leanne Bennett wrote: Mrs Balsters is a very caring teacher who is always willing to help her students in whatever way is needed. My other daughter who is in Year 9 at Lake Munmorah High School said to her sister when she knew that she was having Mrs Balsters "If you need help or need to talk to a teacher, she is the one, because she listens". And Mrs Kelly Roach wrote about her daughter's experience in 5B: Holly developed a close and trusting bond with Mrs Bolster (sic) during this year. Her grades had improved tremulously and I also noticed that her self confidence within herself was starting to develop. Holly spoke very highly of Mrs Bolster & went as far to comment on how wonderful of a teacher Mrs Bolster is. It wasn't until Holly came home from school one day crying & very concerned about Mrs Bolster, because of the way some of the boys where (sic) behaving that I started to become alarmed. Unfortunately this behaviour continued... I tried to reassure Holly that the school Principal would punish these boys for their out of control behaviour and that Mrs Bolster would be just fine. Holly mentioned several times about how bad the boys where (sic) becoming & that their behaviour was starting to take its toll on Mrs Bolster because she cried at school. Holly said that the boys would verbal (sic) insult Mrs Bolster because they where (sic) refusing to behave & do their school work. They also threw chairs and tables across the room on a regular basis at Mrs Bohlster (sic). Along with their school books and just about anything else that was within their reach. 188 It is accepted, of course, that the supportive persons had not observed the areas of the applicant's teaching which were found to be deficient. But surely, the ultimate test of a competent, efficient and caring teacher is reflected in the favourable feedback from many persons who had experienced firsthand, the results of the applicant's teaching over a long period. 189 In this regard, I have given particular weight to the evidence of the applicant's colleagues, Ms Knight and Ms Caban, who had worked with her for 14 years and 13 years respectively. I would offer the following observation. The School community is usually a closeknit, homogenous group in which the staff operate most effectively as an integrated team. Any teacher not performing or pulling their weight will be very quickly identified. It seems incomprehensible to me that if a teacher is as bad as the applicant here is said to be, that two of her colleagues of 13 and 14 years standing would provide such glowing assessments of her teaching abilities, her concern for her students' wellbeing and educational outcomes and provide a spirited defence for the problems she encountered in 2006. To do so, in effect, in opposition to their own employer and Principal is, as Mr Dawson noted, quite remarkable. 190 For example, Ms Knight deposed that: In all Debra's time at Lake Munmorah I do not recall her experiencing any particular teaching difficulty and she always passed her TARS requirements. She has always developed a warm relationship with her students and was known for using positive rewards like popcorn afternoons, sausage sizzles and always pancake cooking on Pancake Tuesday, all at her own expense. There were never any concerns that students in Debra's classes didn't meet student outcomes or achieve poor basic skills results. ... During Debra's improvement program she worked hard on preparing lessons for the different supervising teachers. She came to the library seeking appropriate resources for each lesson and tried hard to cater for each child's varied needs. This added to Debra's extreme stress during the whole process as well as still having to cope with the daily trials and demands of her class. In the years I have taught with Debra, she has always demonstrated interest and concern for her students' welfare and academic achievements, working tirelessly to ensure all students achieved their stage outcomes. Her concern for the well being of her students and colleagues were a hallmark of her character and she constantly demonstrated her empathy and compassion in practical ways. 191 In Ms Caban's letter to Mr Mather detailing the behavioural problems of some of the applicant's students in 5B she said: Debbie Balsters has approached me on several occasions as to the best teaching / management strategies to cater for several students in her class. As I had taught many of these students in the previous year she was keen to know what worked and what didn't. She always tried any suggestions (to a varying degree of success). Many of the students in her class had many behavioural problems and the combination of children in the class was, I feel, a major contributing factor in their behaviour. There were very few Role Models in the class and many children who reacted inappropriately to others' behaviour. ... The combination of these children makes it difficult to manage a classroom as efficiently as one would like. I found last year one of the most challenging (and least enjoyable) years I have had since beginning teaching in 1987. I found I could not do group work due to the lack of inter personal skills of many of the children. For the first time ever I found I could not sit children in groups I had to revert to rows with no seating plan ever being totally effective. I hope that this profile of the children in Debbie Balsters' class this year helps you understand the immense challenge that Debbie faced every day. 192 It is curious that Mr Mather said he never received this letter. While giving him the benefit of the doubt, I am left to speculate whether his final decision would have been different if he had known of Ms Caban's direct experiences. 193 For the foregoing reasons, I find that the applicant's dismissal was 'harsh and unreasonable' within the meaning of Pt 6 Ch 2 of the Act. I consider the applicant's dismissal was harsh having regard for the personal and economic effect it had on her and her family and in light of her 16 years of otherwise unblemished and dedicated service. The decision to dismiss the applicant was unreasonable because it did not take sufficient account of the various factors influencing the applicant's unsatisfactory performance leading up to and during the TIP, and the decision makers giving little weight to the applicant's unblemished service and support from her colleagues and parents: See Byrne v Australian Airlines Ltd (1995) 185 CLR 410. In so finding, I have had particular regard to the imperative of the protection of children from incompetent teachers as required by the Teaching Service Act and would conclude that the protection of children would not be placed at risk by reinstating the applicant to her position as a primary school teacher. I do not consider her to be an incompetent or inefficient teacher. I see no reason not to order the reinstatement of the applicant in circumstances where she has been found to have been unfairly dismissed and given that the primary remedy in such circumstances is reinstatement: See Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288; New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 and Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282. 194 Notwithstanding Ms Miller's role in the applicant's dismissal, I do not consider it would be impractical to return the applicant to Lake Munmorah Public School. I reaffirm what the Full Bench of the Federal Court said in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 and which was endorsed by a Full Bench of this Commission in Hollingsworth: It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 195 In reinstating the applicant I am conscious of the dislocation it might cause at this time of the school term. I would wish to avoid any adverse educational outcomes for any student. Accordingly, I propose to order the applicant's reinstatement at Lake Munmorah Public School, or such other school, and at such time as may be agreed between the parties having regard for the relevant Departmental policy. ORDERS 196 Pursuant to s 89 of the Industrial Relations Act 1996, the Industrial Relations Commission of New South Wales orders that: 1. The respondent, the Department of Education and Training shall reinstate the applicant, Mrs Debra Balsters, to the position of Primary School Teacher at Lake Munmorah Primary School, or such other school, and at such time as may be agreed between the parties. 2. The respondent, the Department of Education and Training shall pay to the applicant, Mrs Debra Balsters, an amount equivalent to that which she would have otherwise received had she not been dismissed on 9 May 2007. The amount so ordered shall be less any remuneration earned by the applicant since being dismissed and until reinstatement. 3. The applicant's period of employment shall be taken not to have been broken by her dismissal on 9 May 2007. 4. The amount in order two shall be payable within 21 days. 5. Any disagreement about the terms of these orders or the conditions pertaining thereto, shall be referred to the Commission. Liberty to apply is available to both parties in this regard. 6. These orders shall take effect on and from 25 February 2008. Peter J Sams, AM Deputy President 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.