New South Wales Department of Education and Training and New South Wales Teachers' Federation (on behalf of Debra Balsters) [2008] NSWIRComm 151

Industrial Relations Commission of New South Wales

CITATION: New South Wales Department of Education and Training and New South Wales Teachers' Federation (on behalf of Debra Balsters) [2008] NSWIRComm 151

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

FILE NUMBER(S): IRC 310 of 2008

CORAM: Walton J Acting President; Haylen J; Tabbaa C

CATCHWORDS: Unfair dismissal - Industrial Relations Act 1996 (NSW), Ch 2, Pt 6 - application for leave to appeal and to appeal order re-instating teacher - teacher with 16 years unblemished record - allegation that teacher unable to maintain effective management of class and provide safe and effective learning environment - dismissal follows placement on Teachers' Improvement Programme - number of difficult students in one class - class contains two students suffering Tourette's Syndrome and other disabilities - insufficient consideration given to lengthy history of satisfactory service and unusual mix of difficult students - decision to re-instate reasonably open on evidence - no error demonstrated - leave to appeal granted - appeal dismissed - recommendation made concerning training to be provided on reinstatement after significant absence from teaching duties

LEGISLATION CITED: Industrial Relations Act 1996 (NSW) Ch 2 Pt 6 Teaching Service Act 1980 s 93B(1)

Commissioner of Police v Raymond Sewell [2008] NSWIRComm 147 at [5] Nsiah v Department of Education and Training [2006] NSWIRComm 351 CASES CITED: NSW Department of Education and Training v Cassis [2007] NSWIRComm 158 at [88] Pitcher v Langford (1991) 23 NSWLR 142 at 149A Port of Melbourne Authority v Anshun Pty Ltd (1981) 140 CLR 589 at 610 WorkCover Authority v Lucon (2002) 112 IR at 349