McMullen and New South Wales Department of Education and Training [2009] NSWIRComm 83

Industrial Relations Commission of New South Wales

CITATION: McMullen and New South Wales Department of Education and Training [2009] NSWIRComm 83

APPLICANT Jane Frances McMullen PARTIES: RESPONDENT New South Wales Department of Education and Training

FILE NUMBER(S): IRC 2055 of 2007

CORAM: Sams DP

TERMINATION OF EMPLOYMENT - unfair dismissal application - primary school teacher - concerns with teacher's performance after long absence from teaching - mentoring and informal support offered - allegations of bullying, harassment, intimidation, violence and homophobia by supervisor - allegations referred to Principal - supervisor continues supervision - allegations against Principal and Deputy Principal - allegations referred to senior officer - performance of teacher still of concern - claims of biased and unfair process - request for compassionate transfer - proposal to implement Teacher Improvement Program (TIP) - allegations investigated and found to be unsubstantiated - involvement of Teachers' Federation - TIP to continue - request for compassionate transfer refused - applicant's stress and illness - workers' compensation claim - medical evidence - further claims of biased and unfair process - independent assessor - 11 of 16 classroom observations deemed unsatisfactory -allegations against independent assessor - Principal's Report - opportunity to respond - recommendation that teaching performance unsatisfactory - proposal to transfer to another school with a second TIP - referred to Regional Director - referred to independent reviewers - confirmation that process fair and support offered - 'show cause' notice - meeting with Regional Director and further submissions - conflict of evidence - decision to dismiss applicant - notice of placement on Not to be Employed List (NTBE list) - conduct of proceedings - procedural and substantive unfairness - whether dismissal harsh, unreasonable or unjust - reinstatement sought. CATCHWORDS: APPREHENDED BIAS - principles considered - Held; primacy given to protection of children - not realistic to ignore serious allegations - allegations crucial to applicant's case of apprehended bias and unfairness - scandalous and defamatory allegations - conflict of evidence must be resolved - applicant argumentative and unsatisfactory witness - respondent's evidence preferred - inherent unlikelihood of allegations occurring - balance of probabilities - allegations not supported or corroborated - applicant knew allegations to be untrue - allegations designed to avoid discussion of her performance - unreasonable refusal to co-operate in professional dialogue - support and assistance offered - medical evidence unhelpful - applicant's criticisms of Federation rejected - applicant would do anything to scuttle TIP process - no basis to claims of actual or apprehended bias - supervisors acted in restrained and professional manner at all times - applicant discredited by false claims of conversations - tampering with documents found - no unfairness in TIP process - six senior officers conclude applicant's performance unsatisfactory - all reviewers knew of applicant's complaints and allegations - decision to dismiss not harsh, unreasonable or unjust - application dismissed - recommendation concerning NTBE list.