Industrial Relations Commission of New South Wales CITATION: Rapone v NSW Department of Education and Training [2007] NSWIRComm 1024 APPLICANT Lina Rapone PARTIES: RESPONDENT New South Wales Department of Education and Training FILE NUMBER(S): 2325 of 2006 CORAM: Tabbaa C CATCHWORDS: Unfair dismissal - conviction for criminal activity - procedural unfairness Crimes Act 1900 Crimes (Local Courts Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Education Teaching Service Regulation 2001 Freedom of Information Act Industrial Relations Act 1996 Teaching Service Act 1980 Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award CASES CITED: Rogers v R (1994) 181 CLR 251 Wang and Ors v Crestell Industries Pty Ltd and Anor (1997) 73 IR 454 HEARING DATES: 27/02/2007, 28/02/2007 DATE OF JUDGMENT: 15 May 2007 APPLICANT M Stubbs, Counsel Ms A Wilson, Solicitor LEGAL REPRESENTATIVES: RESPONDENT P Newall, Counsel DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER TABBAA 15 May 2007 Matter No IRC 2325 of 2006 Lina Rapone and New South Wales Department of Education and Training Application by Lina Rapone re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 JUDGMENT [2007] NSWIRComm 1024 1 Ms Lina Rapone, (the "Applicant") filed a claim pursuant to s. 84 of the Industrial Relations Act 1996 on 10 May 2006 seeking relief for her alleged unfair dismissal by the Director-General of the Department of Education and Training (DET). The Applicant commenced employment with the Respondent on 28 January, 1978. At the time of her dismissal, 20 April, 2006, the Applicant was engaged as a Primary School Principal, Grade 3, pursuant to the provisions of the Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award. 2 Conciliation attempts before Murphy C failed and the matter was allocated to the Commission as currently constituted for hearing on 27 and 28 February 2007. 3 Ms M Stubbs of Counsel, with Ms A Wilson assisting, appeared on behalf of the Applicant, and called evidence from: Ms Lina Rapone Applicant Ms Nell Zandberg Clinical & Consultative Psychologist 4 Mr Tim Watson-Munro Consultant Forensic Psychologist. 5 Mr P Newall of Counsel appeared on behalf of the Respondent and called evidence from: Mr Kevin Schipp Manager, Staff Efficiency & Conduct, EPAC BACKGROUND 6 The Applicant tendered an affidavit in the proceedings in which she provided a detailed and impressive record of her qualifications and experience in the field of education. 7 She commenced as Principal of Warrawee Public School in January 2002. 19 July 2004 was a pupil-free day and that first day of term was scheduled to be utilised for staff training, part of which was to be a joint session with staff at Gordon East Public School. She described herself as being under a great deal of stress on that particular day. After locking up and setting the alarm at the school, she had to go back into the staff room to collect some material she had left behind. She noticed an open handbag on a table in the staff room. She picked up the handbag and returned to her car. 8 During the drive to Gordon East Public School, she received a telephone call from a teacher advising that another teacher's handbag had been stolen. The Applicant did not disclose that she had picked up a handbag from the staff room. Whilst at Gordon East Public School, a teacher peeked into Ms Rapone's parked car, noticed the strap of the handbag protruding from beneath the front passenger seat floor mat and called the Police. The Applicant was interviewed by the Police and subsequently charged with theft on 23 August 2004. On 17 December 2004, the Applicant was convicted of larceny and on 03 February 2005 the Magistrate made a finding of guilt but declined to enter a conviction conditional upon Ms Rapone entering into a good behaviour bond for a period of two years. 9 In the meantime, the Applicant had been on separate periods of sick leave, long service leave and leave without pay. As required, she had attended for HealthQuest assessments. 10 The Applicant was provided with an opportunity to make a submission to the Department as to why disciplinary measures should not be taken against her. The Applicant provided a detailed response. The Applicant was asked to resign or be terminated from her employment. The Applicant sought, and was granted, extensions of time in order to pursue an appeal/annulment against her sentence. 11 On 16 March 2006 the Director-General wrote to solicitors for Ms Rapone informing them that the Department would not progress the matter in accordance with their request and that Ms Rapone would be suspended without pay pending the outcome of her appeal. Up until that date she had been on full pay. 12 In the absence of a resignation from the Applicant, the Respondent dismissed her by correspondence dated 20 April 2006, effective from the same day. 13 Ms Rapone gave evidence that she had planned to work with the Department until the retirement age of 55 years and then continue working in the field of education and training in other capacities and roles, including the provision of consulting work to the Department and other educational and training institutions involving particularly disadvantaged children and young people. She had also hoped to contribute to the community by participating on the Boards of not-for-profit charitable organizations. 14 She believed that, considering the discretions vested in the Department in terms of the range of options available to it where an employee is convicted of a criminal offence, the Department, in the current circumstances, acted in a manner which was harsh, unjust and unfair to her. 15 She is seeking the remedy of reinstatement, re-employment or compensation, including payment of wages and benefits in the period out of employment pointing out that she is prepared to go to any location, and work in any capacity the Department may require of her if her employment was to be reinstated. 16 The Department argued that the matter of Ms Rapone's guilt of deliberately taking a subordinate's handbag with a view to permanently depriving her of it has been permanently determined, and determined beyond reasonable doubt, by a court equipped to make that decision. The Respondent relied on the fundamental principle embodied in the maxim res judicata pro veritate accipitur which expresses the need for determinations which have not been set aside or quashed to be accepted as incontrovertibly correct: Rogers v R (1994) 181 CLR 251 at 273 per Deane and Gaudron JJ. 17 On that basis, the Applicant, it was submitted, cannot advance any argument in her s. 84 claim which has the effect of attacking or contradicting the finding of guilt. However, she can advance an argument to the Commission that the decision to dismiss her was harsh or unjust or unreasonable in the circumstances where she was guilty of that larceny. Nevertheless, The Respondent held the view that a school principal who intentionally steals a subordinate's handbag, containing money and other things, is not a person who should continue to work for the Department as a principal or in any other capacity. MEDICAL ASSESSMENTS 18 It is a departmental policy that prior to disciplinary action being commenced against an officer, the Department determines, via a HealthQuest examination, whether there is a link between the officer's actions and a medical condition. 19 In August 2004, during a period of sick leave, Ms Rapone was referred to HealthQuest for assessment. 20 Ms Rapone was psychiatrically assessed by Dr K Walker, Consultant Psychiatrist on 15 September 2004. In correspondence from HealthQuest dated 29 September 2004 regarding that assessment, it was recommended that Ms Rapone not resume duties as a School Principal until further psychometric assessment was carried out in order to either clarify the nature and severity of any cognitive deficits that may be present or to exclude them. Once that was carried out, it would then be possible to make a more definitive recommendation regarding her fitness to continue. 21 Ms Rapone was further assessed by Dr H. Stambouliah, Consultant Psychiatrist, on 19 October 2004. In its report, dated 02 February 2005, HealthQuest raised some concerns about her psychological and cognitive functions. The report stated that Ms Rapone "did not report any major problems at school with her staff, students or their parents. She added that she was not under stress in her social or personal life." The report further went on to state that Ms Rapone had admitted that she had felt nervous and uncomfortable when examined by Dr Walker and further admitted that she had denied any depressed mood when he interviewed her. Dr Stambouliah reported that "She was initially guarded and denied any problems or depressed mood. However, she gradually became more relaxed and expressed some tears when she talked about her pressures at work...". HealthQuest recommended that "Ms Rapone should be provided with alternate duties (eg Project Work at Regional Office) and be given access to the EAP services for use in case of any distress. She should be monitored by her employer for any changes in behaviour and referred back to HealthQuest for reassessment in 6 months." 22 There was a further assessment by Dr H Stambouliah, Consultant Psychiatrist, on 26 April 2005. On 17 May 2005, HealthQuest provided a written report in which it was stated that Ms Rapone did not complain of any psychosocial problems or cognitive difficulties. She had demonstrated improvements in various cognitive and memory functions. It was recommended that, "Ms Rapone undergo a trial return to work period at a school other than Warrawee Public School, where her performance could be monitored for at least six months. Should any further concerns about her behaviour, performance or cognitive functioning arise, she should be reviewed at HealthQuest. She should also be provided with access to the EAP services to assist her in the management of any future distress." 23 Correspondence dated 14 June 2005 was forwarded from DET to HealthQuest indicating that it would be impossible to implement a trial return to work. The Respondent sought a referral of the Applicant to Dr Walker for final review to determine Ms Rapone's fitness to continue as a Principal. THE APPLICANT'S EVIDENCE 24 Ms Rapone tendered an affidavit in the proceedings in which she provided a detailed and impressive record of her qualifications and experience in the field of education. That evidence was not contested. The work history is summarised below. Background to Engagement at Warrawee Public School 25 The Applicant gave evidence that her previous appointment with the Department was a tenured contract position at Stewart House for a 3-year term from January 1999. 26 During the period from about mid-2001 until January 2002, the Applicant was employed as a full time Principal and Chief Executive Officer at Stewart House, a charity which relies predominantly on funding and other support from NSW public schools for its operating budget. As she shared on-call responsibilities with the Deputy Principal 24 hours a day, 7 days a week, it was necessary for her to live on campus with her partner. 27 During that time and up until mid-April 2002, the Applicant was involved in a fundraising project for Stewart House. The project, the "Stewart House Revue", was scheduled for performance in about April 2002 at St Ives High School Hall and involved 2 evening rehearsals per week commencing from January 2002. She had developed the program, obtained maximum exposure for it and rallied support for it from teaching colleagues both at Warrawee and in other public schools. In addition to the above, she had enlisted the help of her partner in costume design, set design and sewing for the Revue. The Applicant recalled spending approximately one day each weekend during that period assisting with costuming, sewing and set design. 28 During 2001, she became eligible for a transfer to another school at the same promotional level as the position she occupied at Stewart House. On or about June 2001, she recalled receiving a telephone call from Ms Mariane Craig and being advised of her transfer to Warrawee Public School, Turramurra. During that conversation, she was advised that not only was it the only available position but it was an offer she could not decline without providing a very good reason. 29 The Applicant stated that she was aware that the transfer would result in a huge cultural shift for her considering that the vast majority of her teaching experience had been with educationally disadvantaged children who had special learning needs arising out of disability or behavioural problems, or in areas of juvenile justice and mental health. Nevertheless, she had not lodged a formal objection to the pending transfer. 30 Ms Rapone stated that most of the staff at Warrawee had notched up very long service at the school - in some instances over two decades - and two previous principals, more senior in age than the applicant, had completed their teaching career and retired whilst at that School. 31 Ms Rapone stated that she got off on a bad start at that school months before her appointment as Principal took effect. Soon after being advised of her appointment, she received a call from Mr Peter Haig, then Superintendent of Ryde Districts Schools, who instructed her to arrange a "meet and greet" visit to Warrawee Public School. She attended the School in late June 1991 only to discover that the School had not been advised of her appointment. The Acting Principal and other staff, it seemed, had anticipated that the Acting Principal would be promoted to that position. She recalled that she had been met with expressions of surprise during that visit and particularly recalled three brief conversations. Firstly, Mrs Julie Taylor said to her words to the effect that both her appointment as Principal and the visit had taken the staff by surprise as they had no prior knowledge of either. Secondly, Ms Prue Wright, who appeared to the Applicant to be angry and flushed, advised her that she had been appointed as Acting Principal for terms 3 and 4 in 2001 and was concerned about how the Applicant's appointment was going to affect her. Finally, an executive staff member, said to her words to the effect that "Prue [Wright] is going to be upset. She was appointed to be Acting Principal and it is her first day in that position and she was hoping to get appointed Principal on merit at the end of the year". 32 Appointment to the position of Principal may be made by nominated transfer or by "merit' on application. The Applicant, in the belief that Mrs Wright's appointment would have raised a reasonable expectation of permanent appointment under a merits review at the end of term 4, said that she recalled feeling embarrassed at the timing of her visit to the school, uncomfortable for the position in which Mrs Wright had been placed and a little concerned that their first meeting had begun with an awkward start bearing in mind Mrs Wright was to remain at the School as her Assistant Principal. 33 Her commitments at Stewart House were such that the Applicant had very little available time to herself or to be away from campus. Consequently, despite receiving the Warrawee Public School newsletters and invitations to attend various school functions and activities toward the end of the school year, she had elected to decline for two reasons. Firstly, the functions co-incided with the busiest period at Stewart House and, secondly, bearing in mind the tense atmosphere at their first meeting, she considered that it was desirable to allow Mrs Wright to complete her term as Acting Principal without interference from her. Relationship between the Applicant and the School Community 34 She commenced her fifth position as Principal of a public school at Warrawee at the beginning of Term 1 in 2002. Ms Rapone described her attitude to work at the time of her commencement at Warrawee Public School as being that of a determined, driven and forthright leader who was a strong advocate for renewal and change in the workplace in an effort to improve both learning outcomes and the learning environment for students. 35 She had been set priorities by the Department - To improve educational outcomes for all students; to increase enrolment levels; and to work to increase student retention rates, particularly at the ends of the Years 2 and 4. By mid-2004, Ms Rapone had embarked on a series of wide-ranging changes which have been described in a chronology provided at the hearing. 36 Consistent with her personal belief that one's private life should be kept divorced from one's work life, the Applicant had shared knowledge of her sexual orientation and the relationship with her partner with a select group of family, friends and work colleagues. 37 The chronology listed a number of difficulties which she had encountered during the period of her employment at Warrawee - with the Treasurer of the P & C Association (early 2002), with staff as a result of the appointment of a General Assistant (mid 2002) mounting tension with staff and other stressful incidents (2003) and the defacement of her Reserved Parking sign (2004). 38 Shortly after commencement at Warrawee, Mrs Lyndall McCulloch, an Assistant Principal, informed her that the school community (parents and teachers) had formed the impression that she was not going to take up the appointment because they perceived her failure to attend school activities prior to her appointment to be a lack of interest on her part. Ms Rapone was further advised that she had been referred to as the "phantom principal". Ms Rapone had provided the reasons for her non-attendance adding that she would have offered assistance if she had become aware of any significant issues. 39 At about that time, the Applicant had a conversation with Mrs Wright, who was then the Assistant Principal at Warrawee Public School. Mrs Wright expressed anger and disappointment at being denied the ability to apply for the position of Principal as she believed she would have been appointed on the basis of merit. The Applicant explained that she had no choice in the matter as it was a nominated transfer. 40 Shortly after her appointment as Principal of that School, she observed certain behaviour that did not auger well with the priorities that she had been set. For example, the administrative staff answered the telephone by saying "Warrawee School" not Warrawee Public School; the school letterhead did not have the word "Public" on it but was simply "Warrawee School": the Warrawee Public School newsletter accepted advertising from private schools; very little, if any, interaction with other local State High Schools; nil participation in curriculum or social linkage programs operating between other State Primary and High Schools in the district; and students from Warrawee Public School used many facilities of a sporting and educational nature from nearby private schools and attended performances at nearby private schools. She recalled receiving criticism from Principals of other public schools (for example, Boronia Park and Lane Cove West) about her school's apparent preference for association with private schools. 41 Enrolment and exit data for that school had disclosed that there was a significant and increasing exit of students to surrounding private schools except for those students who gained entry to a Selective High School. The exodus of students to private schools directly and negatively impacted on staff numbers, funding and other resources of the school. 42 Ms Rapone stated that throughout her engagement at Warrawee, she had embarked on a course of changes which were within her scope of authority as principal, were in the best interests of the students and teachers and were consistent with the policy and procedure of both the Department of Education and Training, and/or Primary Principals Association, as well as the Principal's Priorities. The Applicant detailed examples of some of those changes and the adverse comments she recalled receiving from some members of staff who opposed those changes. 43 Ms Rapone was aware that both the parents and some teachers at the school were irritated and upset that she did not encourage a connection between local private schools and Warrawee Public School. She recalled being advised, during a staff meeting, that there was a great deal of dissatisfaction among the staff and parents about her refusal to allow the school, in the absence of those resources, to use the facilities of private schools. A complaint was made to her that she was changing the nature of the school and its relationship with its neighbouring private schools. The Applicant stated that she had explained that their role was to promote the differences between private and public schools thereby curbing the exodus of students to the former. She had further explained that her aim was to attract students because they were being offered better academic and social outcomes than private schools and not just those who simply cannot afford to be in private schools. 44 One of the changes she had implemented included the adoption in 2002 of the Primary Principals Association policy not to provide a written reference for a student leaving the public system to enrol in a private school. She recalled that its introduction had caused a high level of anxiety and dissatisfaction among parents, at least 20 of whom had insisted that the enrolling schools required those references and pointed out to her that it had not been an issue for the previous 2 principals. She also became aware that many of her teachers had provided those references on a private basis, including her Assistant Principal. She was aware that all her teachers, bar one, who had school age children, had enrolled them in private schools. 45 In the belief that there was little community service involved in the practice, the Applicant had discouraged the practice of private school students attending Warrawee Public School for the community service component of the Duke of Edinburgh Awards program. 46 The Applicant had instructed staff that whenever Warrawee Public School required space or other resources for its school bands or awards ceremonies, they were no longer to use the facilities of private schools for such activities. Instead, they were required to improvise or contact local primary and high schools and arrange to use their resources. 47 Warrawee Public School had a split campus. Kindergarten to Year 2 (the Infant campus) was located on one side of the public road and was administered by a clerical officer, Mrs Lawrence, who occupied a very significant position at the school because she had managed, over her 20 or so years employment, to develop close relationships with the teaching staff and many of the parents. Years 3 - 6 (the Senior campus) was located on the other side of the road together with the Principal's office. The Applicant formed the view that there was a perception, even amongst the staff, that the campuses were autonomous and parents saw the graduation from Year 2 as a convenient point to move their children out to other schools. 48 Ms Rapone formed the view that because the Principal's office was located within the Senior campus, it was an inefficient use of school resources bearing in mind that the infant's division was the most important campus in terms of the opportunities to form relationships with the students and their families. She made the decision during 2002 to switch locations with Mrs Lawrence. 49 In term 3 of the 2003 school year, the Applicant tabled a plan for the relocation. The plan further proposed that the Senior Clerical Assistant, who was located in the Senior campus would assume direct supervision of the Clerical Assistant, Mrs Lawrence, and manage the allocation of clerical work. The staff were invited to join a Committee, chaired by Assistant Principal, Mrs Kathy Ash, which was specifically set up to discuss the plan over two school terms. The staff were informed that any concerns expressed to the Committee would be addressed by her at a staff meeting at the end of the last term of 2003. 50 Ms Rapone stated at the conclusion of the staff meeting she had called to discuss the relocation plan, she had left in a very distressed and unsettled state because of the degree of aggression directed towards her. Mrs Evans, a Year 2 teacher, had shouted at her, calling her management style authoritarian and accused her of failing to listen to anybody's concerns. The silence maintained by the other staff in the face of Mrs Evan's tirade had further destabilized her because she was unsure whether it was a result of their embarrassment at, or acquiescence with, that teacher's conduct. 51 The Applicant formed the view that Mrs Lawrence was very hostile to the relocation proposal. During another such meeting, Mrs Lawrence had expressed the view that the Applicant's actions were a direct attack on her authority. She recalled that Mrs Lawrence had written a letter outlining the importance of the Clerical Assistant's role and highlighting her concerns arising from the proposed relocation of the Clerical Assistant's office. 52 Ms Rapone had weighed up the competing views and considered the recommendations of the Committee prior to advising staff of her decision to proceed with the relocation on a trial basis. 53 From then on, she noticed a significant change in Mrs Lawrence's behaviour towards her which both upset and destabilised the Applicant. For example, Mrs Lawrence refused an instruction to provide teaching staff with access to the security code for the photocopier and on every occasion she released it to the staff, Mrs Lawrence would change the code without consultation with her. In addition, she estimated that Mrs Lawrence had challenged at least 70 per cent of her requests to perform administrative work. Further, Mrs Lawrence had refused her request to print additional awards for presentation to the students at assembly because she believed that to issue any more would simply devalue the impact of the ones already handed out. The relationship between Ms Rapone and Mrs Lawrence deteriorated further to the point where the latter refused to even exchange pleasantries with the Applicant and demanded, in early 2004, that there be no further verbal communications between them. Despite Ms Rapone's protests, Mrs Lawrence had communicated with her henceforth through a 3rd party or in writing. 54 From early 2003 onwards, she had worried and stressed about her relationship with other staff members. She believed that the deliberate and sustained course of mischievous conduct she had been subjected to was designed to irritate and unsettle her. Conversations ceased when she entered the staff room; notices, stickers and posters she had placed on School Notice Boards disappeared; an autographed photograph of Bob Hawke she had found in a storeroom and placed among other photographs of politicians and prominent people in a locked display cabinet in the foyer of the School was found, almost on a daily basis, to have been moved and placed face down in the cabinet. 55 As a result of the relocation, Ms Rapone did not have a designated parking spot in the staff only car park in the Infant campus. Therefore, if her commitments as Principal resulted in her arriving at work later than other teaching staff, she experienced difficulty in obtaining parking. Without any prompting from the Applicant, the General Assistant marked and signposted a parking spot in the Infant's campus car park marked "Principal Parking Only". Ms Rapone stated that she had felt upset and humiliated when the sign was defaced on several occasions. Words such as "Why? She is never here?" were written on it. She formed the view that a staff member or members was/were responsible for the defacement as the language used was far too sophisticated for a child in the Infant Campus. On each occasion, she had observed teaching staff watching her scrub the graffiti off the sign although no-one offered to assist her and no-one mentioned the matter to her. 56 Upon the retirement of the one day per fortnight General Assistant in mid-2002, the Applicant consulted the Principal of Pymble West Public School for his recommendation as to a suitable replacement handyman. He suggested that they share his school's part-time General Assistant, Jose, as he was a good worker. The only drawback was his lack of fluency in the English language. That was not a problem for the Applicant as she was able to communicate with him in his native Spanish supplemented by Italian. That appointment seemed to further increase the tension and unhappiness of the teaching staff at Warrawee. Ms Rapone observed their irritability and resentfulness over the fact that Jose publicly stated that he would only comply with instructions issued to him by "Miss Lina" (the Applicant). Mrs McCulloch, the Assistant Principal, had conveyed to her the unhappiness of the staff at what was perceived to be another example of her controlling nature - getting rid of an Australian in favour of a General Assistant who would not comply with their instructions unless they were made through the Principal. Ms Rapone had explained to her on whose recommendation Jose was employed and the fact that Jose, unlike his predecessor who was paid from the school's global budget, was financed by the Department. She had undertaken to set up a maintenance log for the teachers to record precisely what work they needed Jose to carry out. 57 Ms Rapone, from approximately mid-2002 onwards, was heavily involved in consultation with the Linkages Consultant at the Ryde District Office of the Department. The latter was working with Warrawee and 5 other local public primary schools to develop programs to facilitate the transition of Year 6 students into high school in the state school system in order to curb the exodus to the private school system. As a result, two programs were developed involving high school students attending the primary schools to provide mentoring and academic support on the study programs. She recalled receiving negative feedback from both Mrs Lyons and Mrs McCulloch claiming that she was wasting her time with the local high schools as most of their students were expected to go on to private schools. 58 During Term 1 of 2002, at the request of the school staff and in the belief that it was the most appropriate allocation of resources, she had changed the Warrawee Public School Newsletter from a weekly to a fortnightly publication. At their request, she met with the parents of a Year 2 student to discuss that decision - the mother was a local public school Assistant Principal and the father was the treasurer of the PCA at Warrawee. They considered the move to signify an intention on her part to limit communication with the School community because of her continued involvement, in terms of time and money, with Stewart House. They were angry and questioning of both her professional and personal style and her intentions. The criticism about her "personal" style was interpreted by her to be a reference to her sexual orientation. It was entirely unexpected and quite distressing, considering how early that attack came in her first year of occupying the position of Principal. Later, during discussions with her partner, the Applicant emphasised the importance of divorcing her work from her personal life following a comment from her partner that the school community would be unlikely to support their lifestyle. 59 The literacy and numeracy statistics which were available from the Department in 2003 revealed that Warrawee Public School was falling behind the District averages in literacy and numeracy, particularly girls numeracy. Ms Rapone formed the view, following an examination of the curriculum, that it was too crowded and decided that Drama, one of the three extra subjects which were funded by the school community, would be dropped and the resources deployed on literature resources. She believed that she had the support of the teaching staff in relation to that initiative. However, she received criticism from a parent who complained that she was introducing too many changes too quickly thereby changing the nature of the school. 60 Ms Rapone stated that she received a request in 2003 from Ms Christine Moulds, the Special Education Consultant for the Department, to accommodate extra students in the two additional special education classes required in the District. The School would be provided with additional resources in the form of a Teacher's Aide in the special education class, another Assistant Principal and an increase in funding to purchase resources. Ms Rapone was aware that there was ample evidence that children with special needs and the mainstream children mutually benefit from supported integration and therefore supported the scheme. The effect of her agreement was not only to double the special education resources available at the school but to transition some of the older students who had been in Special Education classes prior to the availability of the new resources into mainstream classes because of the support of the teacher's aide. The introduction of the additional special education classes was the subject of unfavourable comment at staff meetings. It was generally felt that the School was not an appropriate vehicle for expansion of special education; that it would impact negatively on the educational reputation of the school because of its large numbers of special education students; that the program would take up too much of her time which could be better spent elsewhere; and that the parents were not happy with the increase in special education students into mainstream classes and the resultant lowering of the standard of teaching available to their children. In addition, a parent had accused her of turning Warrawee into a special education school and he did not want his children mixing with them. The response to her initiative was a further reflection of the of the clear divergence of educational values between herself and some of the staff members, as well as herself and the broader Warrawee Public School community of parents. 61 In about late 2003, two events occurred which, the Applicant stated, caused her considerable distress and left her emotionally drained. Firstly, she had counselled for at least 6 months a 10-year old student with moderate to severe intellectual disabilities who was severely traumatized because his father committed suicide by hanging in the family home. The close relationship she had developed with that child had been abruptly ended by her removal from the School. Shortly after, Mrs Lawrence's husband had committed suicide in the garage of their home. She had felt impotent and depressed because, despite all her efforts, Mrs Lawrence had rejected all her attempts to provide her with support or assistance. 62 The Applicant stated that in addition to all the above stresses, she had personal issues to contend with. She became aware that her partner's mother, who lived in Cairns, was due to retire and could no longer afford secure accommodation. She had volunteered to buy her a unit if it was within her budget. By May 2004 they had settled on a unit in a suburb of Cairns. Alleged Stressors affecting the Applicant on 19 July 2004 63 The Applicant provided details of the stress conditions she was under on 19 July 2004 involving urgent domestic and work issues which had left her feeling very "distracted" and "frazzled". 64 Firstly, a hitch arose in relation to the conveyance of the property in Cairns. Her partner's mother was extremely distressed because it appeared that the settlement date on the unit and the date she was required to vacate the rented premises would not co-incide leaving her with nowhere to live for a short time and the prospect of having to pay for short term accommodation and storage. Her partner was also distressed and crying. If the matter could not be ironed out either Ms Rapone or her partner would have had to travel to Cairns to assist her partner's mother in making alternative arrangements. The Applicant was worried about the emotional state of both women. The Applicant estimated that she had made at least 16 calls during the morning to her partner, her partner's mother, and the real estate agent and Solicitor involved in the conveyance. 65 Secondly, she needed to prepare for the professional development program prior to leaving Warrawee at 12 noon for a 12.30 pm start at Gordon East Public School. 66 Thirdly, she was Chairperson of the Owner's Corporation and there was a meeting scheduled at 5.30 pm on that day between the Corporation and the Local Council. She had several conversations with a resident in her block of units that morning and was under pressure to deal with the issues he raised in that conversation and to organize the information that she was to put on behalf of the owners at that meeting. The Incident on 19 July 2004 67 19 July 2004 was the commencement of a new school term. It was a pupil-free day and it was to be used to provide training for the staff. The day's program involved a meeting of Executive Staff between 11.30 am and 12 noon at Warrawee Public School and a teaching workshop commencing at 12.30 pm with staff at Gordon East Public School. Ms Rapone arranged with Mrs McCallum and Mrs Tracy Darby, Assistant Principals, to travel in a convoy with her, as she did not have directions to get to Gordon. 68 Ms Rapone stated that at about 12.00 noon she organised the documents she required for the development program. Her mind, she stated, was so preoccupied with the issues described above that she had locked up the building and turned on the alarm, oblivious to the fact that there may have been teachers still within the building. Her actions were indicative of how distracted she was that morning. She had forgotten that there were teaching staff remaining in the Infant's campus, as well as clerical and other support staff in the Senior campus who may have required access to the premises as well. 69 After she got into her car. she stated that she realised that she had left several documents borrowed from the State Office of DET in the staffroom of the Infant's campus. As she needed those documents for the afternoon's workshop, she alighted from her car, walked over to Mrs McCallum's car and advised her that she needed to return to the staffroom. 70 She explained that as she was in a hurry, she had not disengaged the alarm when she re-entered the school building. As she retrieved the documents from the coffee table in the staffroom, she noticed what she described as a small backpack style bag near the documents. She did not know who the bag belonged to other than it must have belonged to a member of the teaching staff as both the Infants and Primary teaching staff had been in the Infant's staff room for the meeting. Still thinking that she was the last person to leave the building, she decided to pick the bag up and take it over to Gordon East Public School. She returned to her car with the documents and the bag. 71 There was conflicting evidence from the Applicant as to when she looked into the bag and discovered the identity of the owner. 72 On the way to Gordon East Public School, the Applicant received a telephone call on her mobile telephone from the Senior Clerical Assistant regarding a storage issue. 73 That was followed by a telephone call from a teacher, Ms Laura Wigham, who advised her that a handbag belonging to a staff member, Ms Liz Raynor, had been stolen. The Applicant explained that she had not advised Ms Wigham that she had picked up a handbag in the staff room because "I was at the time I received the telephone call from Ms Wigham feeling quite besieged and distracted". Some discussion ensued about alerting the Police. There was conflicting evidence as to which one of them undertook the responsibility for calling the Police. Suffice to say the Police were not called by either woman. 74 When the teachers arrived at Gordon East Public School, they met over lunch. The Applicant could not recall any conversations with her staff regarding the theft of the bag nor making any sympathetic comments in regards to it. 75 The Applicant stated that she had intended to return the handbag to where she found it early the following morning prior to staff arriving at the school. 76 At 2.10 pm the Police attended and escorted the Applicant to her car when the handbag was retrieved. At 2.20 pm she was apprehended on a charge of stealing, interviewed and released later that afternoon. The Criminal Proceedings against the Applicant 77 Ms Rapone was rearrested and released on 12 August 2004 on suspicion of stealing. 78 Finally, on 23 August 2004 Ms Rapone was charged with larceny of a value less than $2000 - to wit a Nokia Mobile phone valued at $150.00, a woman's purse containing $96.05, a brown suede handbag valued at $30.00, a set of house keys and a set of keys for a new car that were the property of Elizabeth Ann Raynor. 79 During the period 08 September 2004 until 03 February 2005, Ms Rapone attended the Hornsby Local Court on five occasions. The hearing on 17 December 2004 before Magistrate Lawson was particularly traumatic. Her relationship with her partner was aired in the presence of parents and staff and their partners from Warrawee Public School. Ms Rapone contended that she heard sniggers and laughter coming from the public gallery throughout the proceedings and also comments such as "it serves her right", "she's such a bitch", and "it's about time". 80 During the period commencing from 21 December 2004 until 04 February 2005, the matter received press coverage with an article being written for the Manly Daily and the North Shore Times. The local press coverage of the Local Court proceedings, including particulars of the offence charged and the exposure of her lesbian relationship, the Applicant stated, created considerable emotional and psychological difficulties for her and her partner, as they both lived and worked in the local area. 81 The Applicant deposed that, to the best of her recollection, no evidence was placed before the Local Court in relation to the circumstances and difficulties she had experienced at Warrawee Public School, nor their impact on her psychological wellbeing, or her psychological state at the time of the incident which led to the criminal charges. 82 On 17 January 2005, the charge of larceny in a sum under $2000 was found to be proven. The Applicant was convicted of larceny pursuant to s 117 of the Crimes Act 1900. Honour found stood the matter over for sentencing on 27 January 2005 and later extended it to 03 February 2006 to allow the Applicant an opportunity to put submissions before the Court as to the likely consequences on her career of any sentence which might be imposed. 83 On 03 February 2005 Magistrate Lawson dealt with the matter pursuant to s. 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by making a finding of guilt but declining to enter a conviction conditional upon Ms Rapone entering into a Good Behaviour Bond for a period of two years. 84 Ms Rapone lodged a Notice of Appeal in the District Court against the guilty finding on 04 February 2005, however decided to withdraw it citing extreme emotional and psychological stress as her reason. The Magistrate's original orders were thus confirmed by Judge Berman on 03 March 2005. 85 An attempt by the Applicant, by Notice of Motion dated 09 March 2006, to re-instate her Appeal to the District Court was unsuccessful because the Notice of Motion was by then time barred from proceeding. 86 The Applicant further attempted, on 12 April and hand-delivered on 18 April 2006, to make an Application for Annulment to the Attorney-General. That application was refused because Lina Rapone was legally represented at the time and had to stand by the decision her counsel made on her behalf not to put her mental state in issue at the hearing. The Respondent's Handling of the Matter 87 Ms Rapone stated that her immediate Supervisor, the School Education Director-Ryde, Mr Maurice Brunning, contacted her at her home on 16 September 2004. The Applicant was requested to submit a transfer form as soon as possible in order that the Principal's position at Warrawee would not be vacant at the commencement of the 2005 school year. The Applicant further stated that she had made it clear to him that she was prepared to work in any capacity, anywhere in the State. She had added that she would like to shadow a fellow principal while awaiting her substantive appointment and pointed out that the Principal of Arndell Special School had indicated a willingness for that to happen, subject to departmental approval. Ms Rapone contended that Mr Brunning had promised to investigate whether it would be possible for her to do so. 88 On 17 September 2004, the Applicant received correspondence from Mr Brunning advising that her request for an appointment anywhere in the State as principal or in an appropriate executive position in schools or a non school based education teaching service position appropriate to her skills would be progress upon completion of a satisfactory HealthQuest assessment. In the interim, her status would be that of an unattached Primary Principal 3. 89 The Applicant contended that the she completed and returned the transfer form attached to which was a letter which stated words to the effect "I am prepared to work anywhere in the State in a school based or non school based position." 90 The Applicant stated that, having received no further communication from the Department, she wrote to Mr Brunning on 18 January 2005 repeating her verbal request for a transfer to her substantive position or placement in a school shadowing a Principal while awaiting such appointment. In doing so, the Applicant had apologised unreservedly for any embarrassment or difficulty she may have caused the Department. She offered an explanation for her preference for work in the metropolitan area but indicated that if the only option was to re-locate then she would do so. She also asked for her request to be forwarded to (Mr Schipp's predecessor) Mr. Jim Ironside, Manager of the Conduct and Efficiency Unit, at the Department , for his advice. 91 An emailed response was received on 19 January 2005 in which Mr Brunning advised the Applicant that he had forwarded her letter dated 18 January 2005 to both "EP&C and School Staffing". 92 The Applicant stated that the Department had not provided any information in terms of how it intended to deal with her circumstances nor was any explanation or submission sought from her prior to a determination being made in relation to her continued employment. The correspondence received by her Solicitor from Mr K. Schipp, R/Manager, Staff Efficiency and Conduct Unit, dated 02 February 2005, merely referred her to the relevant disciplinary provisions outlined in Teaching Services Act 1980 (NSW) and the Education Teaching Service Regulation 2001. 93 Ms Rapone stated that there had not been any communication to her from the Department from the date of her sentencing, 03 February 2005 until 14 November 2005 except what was initiated by herself. There had not been any indication given to her of what action the Department intended to take, if any. There had not been any request made of her to provide any explanation for the handbag incident. 94 Finally, on 24 November 2005 the Applicant received correspondence from Mr Schipp dated 14 November 2005 (it had been forwarded to her previous address). He confirmed the finding of guilt, referred to sections in the Teaching Service Act 1980 as to punishment and penalty, sought an explanation regarding the handbag incident and invited her to provide a written submission as to why a punishment should not be imposed. Ms Rapone acknowledged receipt of that letter on 25 November 2005 and sought an extension of time in which to respond. 95 On 05 December 2005 the Applicant provided a 9-page written submission with explanation receipt of which was formally acknowledged by Mr Schipp on 20 December 2005. 96 Mr Schipp, in a submission to the Director-General of DEAT, dated 16 February 2006, recommended that the Applicant be given the option to resign voluntarily or be terminated from her employment. That recommendation was adopted. 97 Ms Rapone was contacted by her district office and asked to go to Ryde District Office where she was handed correspondence dated 17 February 2006 from Mr Andrew Cappie-Wood, Director-General of the Department of Education and Training, seeking her resignation within 14 days or her employment would be terminated. 98 Legal advice and discussions with representatives from the Respondent Department during the period 17 February 2006 to 18 April 2006 confirmed to the Applicant that failure to resign would result in her dismissal. She requested, through correspondence from her Solicitors dated 28 February 2006, an extension by 10 days of the time period provided for her termination in order to investigate means by which she could clear her name. The response from Mr Cappie-Wood, dated 01 March 2006, granted the extension and pointed out that failure to provide her resignation within 10 days from that date would result in her dismissal become effective from the end date of the extension. 99 On 09 March 2006, the Applicant filed a Notice of Motion and an Affidavit in support of the Motion in the District Court of New South Wales seeking that the Appeal be reinstated. 100 Ms Rapone stated that her Solicitor advised her that the Motion was dismissed on 21 March 2006. The 3-month limitation period applied to the filing of her Appeal and hence she was time barred from pursuing it. 101 The Applicant pointed out that she had provided long and dedicated service to the Department. She has had a long term commitment to the needs of disadvantaged and disabled students. She had no prospects of obtaining any work with the Department or as a consultant with any organization that provides services to the Department having been terminated by the Department and placed on the Departmental "blacklist". It was her belief that such a "blacklisting" would also preclude her from serving on Boards of not-for-profit charitable organizations providing educational services. 102 The Applicant referred to second paragraph of the HealthQuest Report dated 29 September 2004 under the heading "Document Review". She categorically stated that other than the incident on 19 July 2004 she had never been charged with the theft of any item either during the course of her employment or otherwise. She further stated that no member of staff at Warrawee Public School had ever raised any of the issues or allegations of theft with her in any way whatsoever or at any time during her employment at Warrawee Public School. In addition, no-one from the Department had ever raised any of those allegations with her. She emphatically denied that she had taken any items whatsoever that did not belong to her from Warrawee Public School or any school she had been employed in during the course of her employment by the Department. She had never been provided by the Department with an opportunity to respond to any of the allegations contained in the HealthQuest Report dated 29 September 2004. Expert Evidence on behalf of the Applicant 103 Mr Timothy Matrell Watson-Munro, consultant forensic psychologist, gave an account of certain facts and circumstances in his report drawn from what he had been told, particularly by Ms Rapone. 104 During cross-examination, he agreed that it would be common in making a report of that kind that he would rely primarily upon what he was told by the person consulting him of the facts that led to the particular circumstance he was required to look into. He stated, however, that he had also relied on copies of correspondence he had been supplied with, the transcript of the Local Court proceedings and the psychological report of Ms Zanberg amongst other things. 105 He stated that during the course of his conferences with Ms Rapone, she recognised her wrongdoing, she recognised that what she had done was inappropriate and she was very sorry for that. 106 In his report, he stated that notwithstanding the conviction, there was nothing from his detailed assessment to suggest that individuals innately are predisposed towards criminal activity. He then went on to say that advisedly based on what he was able to say and know, including her prior career, there was no indication of criminal matters in her past, she seemed to be an extremely dedicated teacher who took on an enormous amount of responsibility in terms of her career and her care for others. He agreed, during cross-examination, that he had relied upon her making full disclosure to him in forming a view of that kind. 107 She had disclosed to him, and it was also in the documentation, the fact that there had been allegations, which did not result in any charges, of her having taken property (a camera and some wine glasses) belonging to other teachers from her school. He had also taken that into account in forming the view he formed. 108 Ms Nell Zanberg, a clinical and consultative psychologist, who used to be a working colleague of the Applicant at one stage, tendered a report dated 30 April 2006 which had been prepared for the purposes of an application to the Attorney-General for the annulment of the conviction of Ms Rapone in the Local Court in relation to a larceny matter. 109 Ms Zanberg stated that prior to preparing her report, she had held some conferences with Ms Rapone and with Ms Rapone's Solicitors. She had also been provided with a document written by Ms Rapone and the Manly Daily articles on the Local Court proceedings. 110 She explained that in her report she had endeavoured to lay down a psychological context for the incident post the event. She agreed that she had not tried to analyse why the Applicant took the handbag because her report was prepared for the purpose of attaching it to the Applicant's comprehensive annulment application to the Attorney-General and that application had detailed everything that had preceded the incident. THE RESPONDENT'S EVIDENCE 111 Mr Schipp stated that he was appointed Manager, Staff Efficiency and Conduct, Employee Performance and Conduct (EPAC) with the NSW Department of Education and Training in April 2005, having acted in that position since January 2005. He previously held positions of classroom teacher and Deputy Principal. 112 The Staff Efficiency and Conduct (SEC) team manages conduct and efficiency matters in relation to staff employed by DET. 113 Mr Schipp gave evidence that the Department has approximately 120,000 persons on its payroll of whom approximately 55,000 were permanent teachers and 1000 were engaged in a policy capacity. 114 In the performance of his current role, Mr Schipp has access to the Department's records and has drawn on those records in making his statement. 115 Mr Schipp acknowledged that there were four HealthQuest reports albeit he had only seen two at the time he prepared his submission and recommendation to the Director-General - the assessments undertaken by Dr Walker dated 29 September 2004 and Dr Stambouliah dated 17 May 2005. He pointed out that he could not detect any comment in either of the two assessments he had read that indicated that Ms Rapone's action on that day was related to a medical condition. If there had been such a link, it may well have altered the recommendation he made to the Director-General. 116 Whilst Mr Schipp was in agreement that teaching in the environment described by the Applicant could give rise to highly stressful circumstances, he pointed out that prior to the incident of 19 July 2004, there had not been a scintilla of a suggestion that there had been any difficulties on Ms Rapone's part in coping with those senior and demanding jobs within the Department. 117 As Mr Schipp had not seen the second assessment, dated 02 February 2005, undertaken by Dr Stambouliah on 19 October 2004, its contents did not form part of the material he had given consideration to in terms of preparing his submissions to the Director-General. He admitted that he had never been aware of that specific recommendation regarding provision of alternative duties and therefore had not forwarded that information to the Director-General. He agreed, during cross-examination, that the task required that all material that could fairly and properly have been expected to influence the decision maker should have been put before the decision maker. He agreed that his role was one of objectivity in relation to the preparation of his submissions. He pointed out, however, that the Director-General would have been aware of the recommendation in that report as a copy had been included in Ms Rapone's submission to him. 118 The HealthQuest Report dated 17 May 2005 recommended that a trial return to work. During cross-examination, Mr Schipp stated that the responsible officer for implementing or rejecting that recommendation would have been the Regional Director upon advisement by himself. The Department's view was that, considering the seriousness of the charges against her, it would not be appropriate to accept that recommendation. He denied that the conviction for theft was the sole determinant regarding her future with the Department, albeit he considered it would be inappropriate to return her to a school having regard to the nature of the offence: "I found it difficult to believe that a principal of 32 years experience, whose stressful day included the fact she was having a meeting that afternoon and that her partner's mother was having trouble arranging rental accommodation, that that was the cause of such stress that she stole a colleague's handbag... They were the issues that she raised on the day of the 19th in her response to me.... I found it implausible that that was the cause of the reason for her stealing of a purse..... Can I say to you that's the reason I gave the recommendation to resign. I believe there has been irretrievable breakdown in the relationship... I think she's had an irretrievable breakdown with the staff of her school, I think she's had an irretrievable breakdown with the Department in the sense of our expectation of a principal." 119 Mr Schipp accepted that the recommendation from Dr Stambouliah had not specified a return to work in any particular capacity. However, he disagreed with the proposition that it was open, on any reasonable interpretation of that recommendation, to consider work as a teacher, or in an administrative capacity. He rejected the proposition that consideration could have been given to returning her to work as a teacher under supervision pointing out that the recommendation had gone on to add that her performance could be monitored for at least six months. He questioned the feasibility of monitoring a principal who has been returned to a school as a classroom teacher. His interpretation of the recommendation would be a return to work in the person's substantive position. For that reason, the Respondent sought a final review of Ms Rapone by Dr Walker to determine her fitness to continue employment as a Principal. 120 Mr Schipp had included in his submission to the Director-General the HealthQuest recommendation of 17 May 2005 that she be returned to work on a trial basis at a school other than Warrawee. He agreed, however, that he had not indicated that the recommendation had not been implemented. He was of the view that such matter was irrelevant to the decision the Director-General had to make. 121 Although he had mentioned in his submissions to the Director-General that Ms Rapone was to be provided with further testing as there were serious concerns about her health, he agreed that he had not: · referred to the fact that there were psychiatric or psychological issues identified in relation to the Applicant; nor · annexed any of the HealthQuest reports to his submissions; nor · indicated that the HealthQuest assessment he referred to of 15 September 2004 was prepared by a psychiatrist, nor · drawn attention to the fact that Dr Walker had identified errors in cognitive testing; had referred to her unblemished teaching record, or his conclusion that her recent behaviour was out of character and defied logical explanation. He held the view that those matters were not relevant to the decision that had to be made. 122 Mr Schipp stated that attempts had been made to gather all relevant information concerning Ms Rapone prior to a recommendation being made to the Director-General: · His Department had written to the Registrar of the Local Court about the status of the matter and received a response dated 04 November 2005 advising that an appeal had been lodged to the District Court and subsequently withdrawn; · On 10 January 2006, his Department had requested copies of any pre-sentence reports and transcripts of the proceedings from the Registrar of the Local Court. A delay was experienced as, ultimately, those documents had to be obtained from the District Court; and · A request was made, on 15 February 2006, pursuant to the Freedom of Information Act, for a copy of the Police Brief of Evidence in the matter. A determination was made by NSW Police Legal Services on 26 April 2006 to decline that request. 123 He conceded, however, that no contact had been made with Ms Rapone in order to discuss the issues with her but explained that he did not consider it appropriate to address the matter of the court proceedings with her while she was, firstly, unfit for duty, and secondly, on approved leave. 124 He also conceded that up until 16 February 2006 when he made his recommendation to the Director-General, he had made no attempts to contact Ryde Regional Office to request any relevant material held in relation to Ms Rapone. Therefore, as a result of an administrative oversight, he had not been provided with a copy of Dr Stambuliah's report of 02 February 2005 in relation to the October 2004 assessment. 125 Mr Schipp pointed out, on his own behalf, that he had neither expressly included nor deliberately excluded any matters raised in the HealthQuest Reports from his submission to the Director-General. He had read those reports and merely summarised them for the Director-General: "... Both of the HealthQuest determinations that I've read, in my opinion, one of the things we may well have been looking for in those was a link between her conduct and some medical condition. My view of the matter was that after reading both those HealthQuest determinations in detail, neither of them gave a link between her actions in July of stealing the handbag of a staff member and the information which was availed in that HealthQuest determination. Now, if we had received in those HealthQuest determinations, for example, clear links between her conduct and a medical condition, then we may well have been looking at medical retirement. However, the final HealthQuest determination which I received in May 2005 - and I'm aware now that there was one after that - clearly indicated that she was fit to resume duty now.... there's no statement in there that those conditions were prevailing or not prevailing at the time of the offence." 126 Mr Schipp further conceded that, until he was shown a copy during cross-examination, had not been aware of the letter from the Applicant to Maurice Brunning dated 18 January 2005, in which the Applicant had stated: "I have mentioned to you before that apart from willing to be placed almost anywhere, I am also prepared to accept some sort of probationary status if that is warranted. I'm prepared to be under direct supervision of any other colleague. Whatever the Department deems appropriate, I am prepared to comply with in order to return to work." 127 It was pointed out to Mr Schipp that, in his report to the Director-General, he had, immediately upon advising that Ms Rapone had been found guilty of stealing a handbag, went on to make reference to the fact that, "There had been other instances of staff members possessions being taken". He disagreed with the suggestion that that he was attempting to convey a very clear inference that Ms Rapone had been guilty of taking other staff members' possessions as well. Mr Schipp confirmed that the Applicant had not been charged in relation to any other matter. He further confirmed that the Department had never raised with her any other allegations of theft attributed to her and hence she was never given any opportunity to respond to any such allegations. He accepted that, once he had adverted to the other thefts, the proper and necessary course would have been to have drawn to the Director-General's attention that no charges had been made in relation to those matters, that she had vigorously denied any such allegations and that they had not been raised with her by the Department. 128 Mr Schipp agreed that Ms Rapone's work history with the department is a material matter when considering the exercise of the discretions pursuant to ss 85 and 86 of the Act. He pointed out that he was familiar with Ms Rapone's work history with the department but that he had not considered her educational background in great detail. He agreed with the proposition that, in relation to her professional teaching career, her academic qualifications and the seniority of the positions she has held, she was quite clearly a person of very senior level qualifications and experience in the Department. 129 Mr Schipp stated that he had considered Ms Rapone's extended and good service to the Department. If it had not been for that, his recommendation would have been that she be dismissed. Directing Ms Rapone to resign was intended to permit her to leave the Department with dignity. 130 Mr Schipp explained, during cross-examination, that the reasons why Ms Rapone could not be returned to work were the fact that, firstly, there was no vacancy for a principal and, secondly, she had been found guilty of a highly serious matter. 131 Mr Schipp stated his submission to the Director-General of DET recommended that the appropriate punishment under s 85 of the Act would be for her to be directed to resign under s 85 (1)(b)(i). Her name would be placed on the list of persons not to be employed in any capacity in NSW government schools and colleges without reference to the Director of Staffing Services. 132 In coming to the view that it was the appropriate course to recommend to the Director-General, he had regard to Section 86 of the Teaching Service Act; the seriousness of the charge of which she had been found guilty; the position of trust in which employees, particularly senior employees, hold in the Department; the Department's principles on leadership; and its duty of care to employees and students. 133 On 27 March 2006 solicitors for Ms Rapone wrote to the Director-General informing him that the appeal in the District Court had been unsuccessful but that Ms Rapone would be making an application for annulment to the Attorney-General in respect of the matter. 134 Mr Schipp stated that a recommendation was issued from his Department, on 03 April 2006 to the Director-General that notwithstanding the proposed application to the Attorney-General, Ms Rapone should be required to resign within 7 days. The Director-General wrote to solicitors for Ms Rapone in those terms on 05 April 2006. 135 A response dated 12 April 2006 was received from solicitors for Mr Rapone addressed to the Director-General seeking a further extension of time on the basis that Ms Rapone was applying to the Attorney-General pursuant to s 5 of the Crimes (Local Courts Appeal and Review) Act 2001 for an annulment of her conviction. A copy of the Applicant's application to the Attorney-General for annulment was forwarded to the Director-General on 18 April 2006. 136 Mr Schipp's department wrote to the Director-General on 19 April 2006 recommending action under s 85 (3) of the TSA following Ms Rapone's failure to submit her resignation following direction to do so. 137 The Director-General exercised his power under the Teaching Service Act 1980 to dismiss Ms Rapone in correspondence dated 20 April, 2006. Rejection of the request for an extension of time and confirmation of her dismissal was forwarded to the solicitors for the Applicant on the same day by the General Manager, Industrial Relations and Employment Services for the Department. Mr Schipp subsequently became aware that the Attorney-General's Department had declined Ms Rapone's request for an annulment of her conviction. 138 Mr Schipp concluded in his statement that, in his view, the actions of the Director-General were reasonable and appropriate, taking into account the expectations required of Principals as outlined in various the Departmental manuals - the Code of Conduct, Leading and Managing the School, School Leadership Capability Framework and Values in NSW Public Schools: March 2004. Submissions 139 The submission on behalf of the Applicant is summarised below. 140 The dismissal of the Applicant was patently clearly harsh, unreasonable and unjust. 141 A great deal of the material in the Applicant's substantial affidavit had not been factually contested and therefore there was not a great deal of contested evidence in this matter. 142 Regard must be had to the contribution that the Applicant can continue to make to some very disadvantaged students who are deprived of the advantages routinely available in ordinary schools. The Applicant has devoted approximately 30 years of her life to establishing a very successful career as a teacher. In particular, attention was drawn to what can be described as more than a substantial contribution and personal commitment to the educational needs of very disadvantaged and very dysfunctional young people in New South Wales. In that regard, she has not only obtained two post graduate qualifications and overseas experience in that field, she has held very high level and responsible positions in both educational institutions, institutions for persons from disadvantaged backgrounds who have been through the criminal justice system (for example, Minda and Yasmar), in educational facilities designed specifically to cater for the educational needs of disadvantaged students, and in the high level management roles (for example, as CEO of Stewart House). 143 One of the issues the Director-General was asked to consider in determining an appropriate penalty was the likelihood of a recurrence of the conduct on 19 July 2004. It was submitted that a proper foundation for that conclusion in terms of the matters that were positive towards Ms Rapone was not made. 144 It was submitted that a highly relevant consideration in that regard is the concession made by Mr Schipp during cross-examination that her role as Principal in such establishments had been both challenging and stressful having regard to the type of students whose needs were being catered for. On that basis, it must be concluded that, across the entirety of her career, except for one day in July 2004, there was never a scintilla of problem in relation to her ability to deal with the stresses involved in her role as Principal. That material fact, it was emphasised, had not been drawn to his attention. 145 Mr Schipp agreed that his role was to put relevant material to the Director-General that was reasonably and objectively capable of affecting the approach he took to where the matter should fall in terms of the disciplinary spectrum that was available to him. It was submitted that the evidence before the Commission compels the conclusion that Mr Schipp's submission put to the Director-General excluded some of that material - namely, in relation to her general wellbeing, the positive aspects of the criminal proceedings before the Magistrate, and her contribution to the Department. 146 In relation to her general wellbeing, there was no identification in the report to the Director-General of the existence of mental and psychological problems at the time. Firstly, two HealthQuest reports indicated a cognitive dysfunction on the applicant's behalf. There was no evidence that there was any limitation in time in relation to them. The first Report of Mr Stambouliah indicated a mild but significant cognitive impairment, significant difficulties in attention, concentration, memory and organisation. Mr Schipp conceded, under cross- examination, that there was nothing in the material that he looked at that allowed any conclusion that those cognitive deficits were not prevalent at the time the offence was committed. The failure to identify or draw to attention to those reports in the submission to the Director-General, or identify that they were prepared by a psychologist or psychiatrist or even indicate those findings to him was therefore inexplicable and entirely unfair to the Applicant. It was concluded that such failure fundamentally procedurally flawed the process that occurred. It fundamentally and must necessarily have impaired the approach of the decision maker to place this matter on the spectrum or the range of disciplinary measures that were available. 147 Secondly, in her correspondence to Mr Schipp dated 05 December 2005, Ms Rapone had detailed the stressors she had experienced on 19 July 2005 and clearly linked them with a detailed history of the difficulties she had been experiencing as Principal at Warrawee Public School. She explained that she had been upset and emotional on that day and was not acting rationally. Dr Walker had noted that her conduct defied logical explanation and that she had been distracted on 19 July. Further, Dr Stambouliah had identified difficulties in memory, concentration, organisation and attention. The press clippings vouch for the fact that she had been subjected to enormous pressure and stress, apart from what one would ordinarily expect to be experienced when one is a defendant in criminal proceedings. It was submitted that Ms Rapone presented as a highly credible and truthful witness despite slight inconsistencies between her evidence in these proceedings and the police reports which were understandable in the circumstances described above. 148 Thirdly, it was pointed out that there was little challenge made to the conclusions drawn by both Nell Zanberg and Tim Watson-Munro that the Applicant was suffering from a depressive illness. Attention was drawn to the Ms Zanberg's conclusions, "It is my professional opinion after reviewing the documents, that her level of stress increased steadily over the 2.5 years, causing her to become clinically depressed. It is this depression and related anxiety state that accounted for her inability to relate the reasons for taking the purse". In a more substantive assessment, specifically prepared for these proceedings, Mr Watson-Munro stated that "Ms Rapone expressed profound regret for what occurred", and diagnosed her as "suffering a severe anxiety disorder with strong features of intermittent depression and anxiety according to DSM4 criteria". He strongly suspected that her out-of character series of behaviours and actions on the day of the offence were because she had experienced a psychological decompensation with associated features of panic. 149 In relation to the proceedings before the Magistrate, it was submitted that if the Director-General's attention was to be drawn to the adverse aspects of the Magistrate's decision, then it follows that attention would also be drawn to any positive comments that may have been made. Although Mr Schipp gave evidence that he had read those positive comments, he had failed to either draw attention to the magistrate's view that the offence was not of a serious nature; or drawn attention to the fact that the case had received special consideration from the norm and for that reason a section 10 conviction had been entered; or captured the nature of her commitment to the Department by the provision of a proper and fair presentation of her work history. 150 In relation to her commitment to the Department, the submission to the Director-General contained no identification of her long and successful history of dealing with stressful school environments. 151 The Applicant did not accept that Mr Schipp, in his submission to the Director-General, did not intend any inference to arise from the manner in which he had identified the conviction and then proceeded to refer to other instances of theft occurring at the school. It was submitted that the logical, sensible construction of that paragraph leads inexorably to the conclusion that there was an ongoing pattern of theft and only the Applicant was implicated in it. In conclusion, it was submitted that Mr Schipp had taken a negative view of the applicant's actions and to that end, he omitted to take any opportunity to put any material favourable to Ms Rapone's circumstances or put extenuating circumstances to the Director-General. Instead, he selected material that supported his view and presented it in such a form that there was really little discretion available to the Director-General. 152 It was submitted on behalf of the Applicant that the circumstances warrant a clear and unequivocal finding that her dismissal was harsh, unjust and unfair and she ought to have her job back and she ought to be compensated for the time she has been out of work. Ms Rapone's gave evidence she would accept any position in a teaching or non-teaching role, as principal, as teacher, subject to any level of supervision and in any part of the State. There is no impediment to reinstatement other than the incident on 19 July 2004. She has a great deal to contribute, particularly to disadvantaged students. It was submitted that the Act provides the scope to accommodate her request. 153 In the alternative, she is entitled to compensation for the dismissal on the grounds that it was unfair. 154 The submission on behalf of the Respondent is summarised below. 155 The onus is entirely upon the Applicant to persuade the Commission to intervene in the dismissal. 156 The starting point for the Commission's assessment of the fairness or otherwise of the dismissal was the matrix upon which the Department based its decision to terminate the applicant. The Department considered the contractual obligations placed upon teachers in . Firstly, in a statement of key accountabilities for Principals titled "Leading and Managing of the School"; secondly, in the Department's Code of Conduct; and, thirdly, the Teaching Service Act all of which capture exactly the sort of conduct which is the subject of these proceedings. 157 It was noted that the Commission was assured by Ms Rapone that she was very familiar with those materials. She was a role model and was obliged to demonstrate probity and leadership standards. 158 It was pointed out that the Department owed a duty of care to all of its students as well its employees, including Liz Raynor, whose handbag Ms Rapone had stolen. 159 It was not in dispute that the Director-General has a range of disciplinary measures available to him pursuant to the Teaching Service Act, including a power to dismiss employees in circumstances where they commit criminal conduct. The mere fact that there is a range of disciplinary measures available does not detract from the statutory obligation to dismiss an employee in certain circumstances. 160 Nevertheless, in view of her long-standing record and service to the Department, and in order to provide her with an opportunity to depart with dignity and a clean record, the Applicant was given an opportunity, which she declined, to resign her employment. 161 Procedural fairness had been afforded the Applicant in that she was given an opportunity to make submissions about the offence and the penalty. 162 Mr Schipp had provided, as was required of him, an objective, balanced submission to the Director-General in which he made some broad but balanced statements. He had attached to his submission Ms Rapone's 20-page document in which the Applicant had advanced her own interest commencing with the following preamble, "I deliberated over every word to ensure my response is considered, measured and appropriate". 163 The HealthQuest Reports, it was suggested, had no bearing on the criminal action taken by the Applicant nor do their contents suggest any link between the criminal action and any kind of condition that she exhibited. It therefore did not matter whether copies of those reports were or were not forwarded to the Director-General. Mr Schipp gave evidence that if any of the Doctors had suggested there was such a link, then he would have considered the matter in a different light and there might have been a different outcome. 164 The Commission has before it a School Principal, in a position of high trust, who intentionally stole the personal handbag of a fellow teacher and kept it with the intention of depriving the owner of it. The Department was required to consider how it can accommodate within its duty of care to staff and students, the maintenance within the system of a person who, in grave breach of the trust placed in her as a senior employee, stoles another person's handbag. The Department considered that her action warranted termination. Nevertheless, she was offered the opportunity to resign or ultimately be terminated. 165 Ms Rapone had a fundamental problem in that on the one hand she wanted to cavil with the Respondent's decision to dismiss her and, on the other hand, she had not, at any time, openly accepted that she had intentionally stolen Ms Raynor's handbag. Despite the Court's ruling, she refused to concede it during consultations with Mr Watson-Munro, Ms Zanberg and while giving oral evidence in these proceedings. 166 Her refusal to concede that it was a theft and that it was intentional, it was submitted, has two effects. Firstly, there was no contrition for her wrongdoing. Secondly the Applicant shifted the blame for the theft on to stress. Whilst it was conceded that the role of a School Principal would be stressful, it was pointed out that the role of every policy maker would also be stressful. It was concluded that if stress leads to thievery then that person is not suited for employment as either a School Teacher or a School Principal. In addition, the Applicant, when questioned as to whether she could guarantee that she would not re-offend, responded that she could not answer that question. 167 In conclusion, the legislation requires the Director-General to exercise his discretion in disciplinary matters and the Respondent was of the belief that the discretion was correctly exercised and, even if it has not, the Applicant cannot be returned to employment in light of the above. 168 The Responded cited Wang and Ors v. Crestell Industries Pty Ltd and ano. (Cahill VP, Hill J and French C) as authority in support of its contention that the seriousness of Ms Rapone's misconduct far outweighed any lack of procedural fairness which may have been involved in her dismissal and therefore the latter did not render her dismissal harsh, unreasonable or unjust. In Ms Rapone's case, she had not been completely deprived of the opportunity to put a case to the Director-General. 169 If, however, the Commission was to find that, notwithstanding all of the above, the dismissal was harsh, unreasonable or unjust, then in determining what remedy to award consideration should be given to a number of factors. Firstly, the demeanour of the Applicant who was not contrite about the actual theft either at the point of dismissal or in proceedings before the Commission. She refused to admit that it occurred, told the Local Court that she hid the handbag from view of the public to protect it from theft yet told the Police that she hid it until she could sneak it back unnoticed into the School. Secondly, it would not be possible to restore her to the workplace in the absence of trust. It was theft that caused the employment relationship to be severed and the Applicant cannot say that such a thing would not recur. It was submitted that the neither the Department nor her colleagues can trust her. Even the Applicant had no answer to give when her Counsel asked her how she would deal with a situation where she was restored to the workplace with the taint of being guilty. Thirdly, whilst not discounting the Applicant's contribution towards disadvantaged students and whilst the Department did not make the decision to part with an experienced and valued teacher lightly, it took into account its obligations towards both staff and students, including disadvantaged students, in arriving at its decision to terminate the Applicant. The Department has other staff with similar skills and there is no evidence that the students are being disadvantaged as a result of that decision. 170 If the Commission was minded to award compensation, then it is obliged to have regard to mitigation and the modest rewards the Applicant's new business venture has had. 171 In summary, it was emphasised that the Applicant, who was in a high position of trust, breached that trust by an act that struck at the heart of the contractual relationship between the parties. She stole a subordinate employee's handbag which contained property of a kind that would put that person in a state of fear. The explanation she provided for an act that warrants dismissal was unsatisfactory. Nevertheless, because of her good record, she was given an opportunity to resign which she spurned. The decision to dismiss her was thus carried fairly and properly and the Commission ought not intervene to alter it. 172 In reply, it was submitted on behalf of the Applicant that the HealthQuest reports were specifically addressing her fitness to return to work. None of the HealthQuest reports were requested to identify any link or were prepared for any apparent forensic purpose. 173 Finally, it was submitted that the Industrial Commission in a section 84 claim is performing a different task to a Local Court in a criminal proceeding. The Commission is entitled to form its own view of the seriousness of the offence and of any mitigating or extenuating circumstances. CONSIDERATION 174 The starting point for consideration of the matter is the fact that, on the criminal standard applied in the Local Court, Ms Rapone was found to be guilty of larceny. 175 A person convicted of larceny would, pursuant to the provisions of s 117 of the Crimes Act 1900, ordinarily expect to be imprisoned for five years. 176 In response to a request for the Court to exercise its discretion and make an order for dismissal pursuant to s 10, his Honour pointed out that it would have been a conventional and totally predictable outcome had Ms Rapone pleaded guilty to the offence. He further pointed out that its use was inappropriate in a case where there has been a plea of not guilty and where the evidence given by the accused on a contest on the facts has not been accepted. 177 Nevertheless, notwithstanding the general rule, his Honour noted that the section was "clearly intended to be used to intervene in cases where a penalty disproportionate to the offence would be visited on an accused through the fact of conviction". 178 Therefore, in considering what sentence to impose on the applicant, Magistrate Lawson sought information as to the likely ramifications of a conviction on her continued employment: "....The offence the accused has been convicted of was a not insignificant offence, but it was far from what could be called serious . The consequences for the accused have I am convinced been very serious indeed, some of them have been referred to in Court today. They have included a degree of publicity, the loss of her position at Warrawee Public School and it seems unlikely that that position will be regained, the uncertainty of her career in the public teaching profession in the future, and clear difficulty with obtaining comparable or even substantially downgraded employment in teaching otherwise. These are severe consequences. I think in the circumstances it would be not appropriate that they should be added to by the recording of a conviction in the present case..." [emphasis added] 179 It is obvious from the above, that his Honour had taken into account the fact that she had lost her position at Warrawee Public School and the uncertainty of her future within the public teaching profession in deciding to exercise the discretion to apply s. 10 notwithstanding the Applicant's not guilty plea. 180 I accept the explanation advanced by the Applicant for withdrawing her appeal to the District Court. 181 It is interesting to note that there is absolutely no evidence that the Applicant had complained to anyone or sought assistance from the Department in relation to the problems she had experienced at Warrawee Public School from commencement there in January 2002 until her first HealthQuest assessment on 15 September 2004. 182 It is equally interesting to note that despite the emotions and the stressors she had described, which it is fair to say, would have been exacerbated by the Police apprehending her in front of staff on 19 July 2004, re-arresting her the following month and charging her with larceny, Ms Rapone did not seek any assistance, medical or otherwise. It was at the behest of the Department that she completed a sick leave application form and it was also at the behest of the Department that she consulted HealthQuest. 183 No attempt was made to tender any of the available HealthQuest Reports to the Local Court. I accept the submission of the Respondent that the HealthQuest reports do not address the incident on 19 July 2004. 184 The HealthQuest Reports, as well as the Applicant's expert witnesses, can only attest to what the Applicant has divulged during private consultation. 185 There was no evidence whatsoever before the Commission that the Applicant's sexual preference had anything to do with the problems she encountered in the two years leading up to the incident or on the day of the incident. 186 The Applicant stated that she was aware of the Department's expectations placed on Principals as stipulated in the document, "Leading and Managing a School", a statement of key accountabilities for Principals, which states: The principal occupies the pivotal position in the school and is accountable for leadership and management consistent with relevant State legislation and the policies and priorities of the NSW Government. The task is complex and requires the principal to be the leading learner in the school, and a role model to staff and the community. 187 She also confirmed that she was aware of the Department's Code of Conduct which states, inter alia, that: 4.1 The Department is committed to the highest standards of conduct in public education, training and administration. To meet this commitment, the Department has issued this single Code of Conduct to cover all departmental sectors and to more closely align staff conduct with the organisational values and ethics which underpin the Department's policies and procedures. 16.9 Staff should be aware that unlawful or unprofessional conduct, even in a private capacity, which damages the reputation of the Department, may require disciplinary action by the Department. 188 In relation to a ministerial statement issued in March 2004 titled, "Values in NSW Public Schools", setting out some core values which the Minister deemed to be core values for the operation of the Department and those within it, Ms Rapone stated that she was very familiar with those core values as they reflected her sentiments exactly. She accepted being judged and assessed against those values and those responsibilities. 189 She agreed that principals are expected to be role models within schools and within the community and that leaders are required to "maintain commitment to ethical values and professional practice at all times". 190 She further agreed that to intentionally steal a subordinate teacher's personal handbag is completely and utterly at variance with those values and those responsibilities. She accepted that the Department has always had an entitlement to require her to abide by its Code of Conduct and if she were to be reinstated or re-employed in any capacity she would still be bound to abide by that Code. 191 Mr Newall referred to lack of contrition by the Applicant. The Applicant, throughout the current proceedings laid the blame directly on the stressful situation she found herself in on 19 July 2004. There was only one mention of the fact that the Applicant had shown remorse and that was in the interview with Mr Watson-Munro. 192 Having said all that, the Applicant, it cannot be denied, has a remarkable and distinguished career in the teaching field. Her energy appears to be boundless in relation to her need for learning as well as the need to assist in the area of the disadvantaged. One cannot cavil with Mr Schipp's evidence that there are other staff within the Teaching Department that have similar qualifications and experience but I doubt very much if there would be a very high percentage of staff in that group. 193 I accept that in normal circumstances one would feel inclined to pick up the handbag for the purpose of safekeeping if they are the last to leave the premises. However, notwithstanding medical assessments by HealthQuest and two hearings (one on the criminal standard and another on the civil standard), the enigma remains unresolved - why did the Applicant not divulge to anyone that she had the handbag? What would prompt a teacher to snoop around Ms Rapone's car until she detected the bag? 194 Notwithstanding that, the Commission has grave concerns about the submission made to the Director-General. The onus is on the Department to put processes in place to ensure that all relevant documentation is available to it when preparing a submission such as this. It is not enough to say that the Applicant had provided a 20-page submission herself which he is likely to read. 195 In addition to that, both positive and negative aspects need to be put to the Director-General so that the submission may be objective. I accept that it is a very difficult task indeed for someone to adopt an objective approach in a case involving someone from their own Department but justice has to be done. There were many positive features to the Applicant's case which were not suitably presented. 196 Of particular concern was the manner in which other alleged thefts were mentioned but not clarified leading the Director-General or anyone else reading the submission to make certain negative inferences about the Applicant. 197 Having regard to all of the above, I find that the dismissal of the Applicant was harsh as another lesser penalty could have been imposed. 198 Having said that, it is of grave concern to me and unfortunate for the Applicant that she was unable to provide a more positive response to a direct question from Mr Newall about her future behaviour: Newall: Q. Under similar stresses of course, that could happen again, couldn't it? You have no way of saying otherwise, have you? Rapone: A. I have no way of answering that question, yes. 199 There was a similar vague response in relation to a return to work and how she would interact with other staff. 200 If the Commission was to accept stress was the ultimate cause of her problem, it is noted that the Applicant agreed during cross-examination that being a teacher is a very stressful job and being a school principal is an even more stressful job. She also agreed that there is a significant degree of responsibility on classroom teachers and a greater degree of responsibility on school leadership position holders. Those stresses are the same today, if not more, than were present on 19 July 2004. 201 As the Applicant cannot guarantee to the Commission that similar behaviour would not occur if she were returned to work, the only relief is compensation. I note that the Applicant has commenced a small business enterprise and details of that were provided on the record. I further note that she was off work with pay for various reasons until a short time prior to her termination. On that basis, the Applicant is awarded compensation of six weeks' pay calculated on the weekly rate she received averaged over the last six months she was in employment. 202 The Applicant has completed her two year good behaviour bond without, it would seem any mishap. She has done her penance. I would strongly recommend to the Respondent that, if at some future date, the Applicant is able to provide medical or other evidence to the effect that she is fit to resume duties as a teacher, that strong consideration be given to utilising her skills and devotion within the public teaching system. ORDER 203 The Respondent is to pay to the Applicant a sum equivalent to six weeks' pay calculated at the weekly rate of pay averaged over the last six months of her employment; 204 The payment is to be made within 21 days of today's date. 205 These proceedings are hereby concluded. 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