Industrial Relations Commission New South Wales Medium Neutral Citation: Richard Scott Balcomb and Director- General of Education and Communities [2013] NSWIRComm 1011 Hearing dates: 05 October 2012; Written Submissions 23.11.2012 Decision date: 26 August 2013 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Matter dismissed for want of jurisdiction; Alternatively, matter dismissed for want of prosecution; Leave reserved to Respondent to pursue its application for costs. Catchwords: Unfair Dismissal application; Jurisdictional issue - applicant must satisfy the Commission that, at the time he filed his application, he had been dismissed or was under threat of dismissal; Applicant derelict in pursuing the claim; Legislation Cited: Industrial Relations Act 1996 Industrial Relations Commission Rules 2009 Public Service Employment and Management Act 2002 Teaching Service Act 1980 Civil Procedure Act NSW (2005) Education Legislation Amendment (Staff) Act 2006 Cases Cited: Hill v Director-General of Education (1998) 85 IR 201; Baker v Australian Workers' Union [2005] NSWIRComm 1225); Lucic v Nolan (1982) 45 ALR 411; Aon Risk Services Australia Ltd Australian National University [2009] HCA 27; (2009) 258 ALR 14 Category: Principal judgment Parties: Richard Scott Balcomb, unrepresented Representation: Ms E James (Respondent) File Number(s): IRC 2025 of 2009 DECISION Background 1Mr Richard Scott Balcomb (the Applicant) commenced full-time employment with the Respondent, the Department of Education and Communities (DEC) as a Primary School Teacher in 1991 at Tuggerah Public School teaching English. His employment was regulated by the provisions of the Teaching Service Act 1980 (the "TS Act"). 2In 2001, the Applicant transferred to Brooke Avenue Public School (BAPS) and he remained employed at that School until his termination. 3On 12 August 2009, the Principal of BAPS, Ms Wellham, identified problems with the Applicant's work performance. A meeting was held between the Principal and the Applicant and his support person during which the Applicant was invited to participate in an informal support program for a period of four weeks. 4The Applicant declined to participate and sought an independent review. The review urged the Applicant to participate in the informal program. Once again he declined the offer. 5The Principal resolved that the Applicant would be required to participate in a formal Teacher Improvement Program (TIP). The Applicant was invited to attend a meeting to discuss the program. He refused to attend despite the meeting being rescheduled on a number of occasions. 6He was put on notice that his failure to participate may lead to disciplinary action being taken against him. 7In the interim, the issues became further complicated by the fact that specific Child Protection allegations were made against the Applicant of which he was advised on 19 October 2009. He was later advised, on 15 February 2010, that the investigation had concluded in his favour and no further action was to be taken in that regard. 8The Applicant lodged a s 84 Unfair Dismissal Application on 17 December 2009. At that stage, he was still employed and was receiving his full pay. 9Conciliation attempts before Bishop C on 19 January 2010 proved unsuccessful and the matter was stood over generally on the basis that no dismissal or threat of dismissal was found. 10The Applicant commenced the school term on 27 January 2010 engaged on non-teaching duties, albeit on full pay. 11On 15 February 2010 Kevin Schipp, Manager-Staff Efficiency and Conduct Directorate, forwarded correspondence to the Applicant notifying him of six allegations regarding his performance/conduct and inviting him to respond to the allegations. 12On 16 April 2010, the Applicant wrote to the Independent Commission against Corruption (ICAC) complaining of corrupt conduct by the Respondent in its attempt to "crush" his career as a teacher. He received a response, dated 18 May 2010, which advised that, in the absence of any evidence supporting his allegations of corrupt conduct, the ICAC would not be investigating his complaint. 13The Applicant wrote to ICAC on two further occasions providing further information. Once again, ICAC responded that the information did not support the allegation that the Respondent's actions stemmed from a corrupt motive or corrupt conduct and declined to investigate the claim any further. 14Correspondence was forwarded to the Applicant from the Respondent's Solicitors dated 28 May 2010 advising that although the application before the Commission had been stood over generally, the proceedings were still current. 15The Applicant responded to the Respondent's legal representatives on 3 June 2010. 16Ms Jane Thorpe, Director Employee Performance and Conduct (EPAC), wrote to the Applicant on 6 August 2010 to advise that the six allegations of misconduct had been substantiated. He was provided with an opportunity, prior to a recommendation being made to the Deputy Director-General, to show cause why his employment should not be terminated 17Between August 2009 and 31 August 2010, the Applicant remained employed as an officer of the Teaching Service and continued to receive full salary payments and continued to accrue his leave entitlements including during the school holidays (December 2009 - January 2010). between September and December 2009 and remained employed and on full pay during the school holidays between December 2009 and January 2010. 18On 31 August 2010 the Applicant was advised that his employment was terminated effective 1 September 2010. 19The Applicant wrote to the Industrial Relations Commission a month later, on 1 October 2010, to advise that he intended to pursue his complaints to ICAC and also to pursue his WorkCover claim prior to asking for his application to be restored to the list. 20The Applicant forwarded lengthy correspondence to ICAC on 9 November 2010 in an effort to overturn the previous finding. On 19 November 2010, ICAC confirmed its decision not to investigate his allegations. 21The Applicant wrote to the NSW Ombudsman on 5 September 2011 complaining about the events that had led up to his dismissal. In a response dated 3 November 2011, the Applicant was advised that the NSW Ombudsman had no jurisdiction to act on his complaint. 22That reply was not acceptable to the Applicant and he wrote once again on 8 December 2011 seeking a reversal of that finding. The NSW Ombudsman wrote back to the Applicant on 7 February 2012 confirming its previous decision not to act on his complaint. 23On 4 May 2012 the Applicant wrote to the Industrial Registrar seeking to reactivate his application. 24The matter was re-listed for Mention/Directions Hearing before Bishop C on 18 June 2012. The Respondent submitted that the matter should be set down for hearing of the threshold issues. Bishop C recommended that the Applicant discontinue the present proceedings and lodge a fresh application. 25The matter was re-listed for further Mention/Directions Hearing on 13 July 2012 at which time the Applicant informed the Commission that he would not be discontinuing the present proceedings nor would he be lodging a fresh application. Standard directions were issued and the matter was set down for hearing on the threshold issues. 26The threshold issues are twofold - firstly, the jurisdictional issue. The Respondent argued that, at the time that the proceedings were initiated by the Applicant, he was not under threat of dismissal. He was ready, willing and able to work and was, in fact, getting paid. In addition, there were no reasonable grounds for thinking that he was going to be dismissed. He was eventually dismissed on 31 August 2010 (a long period of time after the filing of the claim) following the completion of a statute-based disciplinary process that commenced on 15 February 2010. Secondly, the want of prosecution issue. The Respondent argued that there was an inordinate delay of about two and half years on the part of the Applicant in prosecuting his case. The Evidence 27In a timeline of events provided by the Applicant, he contended that his relationship with Principal Wellham began to decline when, prior to August 2008, he had refused to provide her with his personal details and refused her suggestion that she present him, in the presence of all staff, with a certificate commemorating his 20 year service with the Respondent. He contended that she had become teary and, on at least two other occasions, attempted to convince him, during private conversations, to allow her to present him with the certificate. 28Mr Balcomb stated that he had become extremely concerned with the Principal insisting on one-on-one meetings with him and, in the absence of a set agenda, he was fearful that such meetings would have an inappropriate personal focus. Therefore, when, on 12 August 2008, the Principal insisted on meeting to have "... a little chat about this and that", he took a support person with him to the meetings on 13 and 26 August 2008. 29 Mr Balcomb stated that, on 10 July 2009, a child made a false claim against him in relation to the origin of a red mark on that child's wrist. The Applicant complained that no assessment had been made by a first aid officer and no photographs were taken of the mark. Nevertheless, he had received imprecise details of the allegation from Assistant Principal White resulting in him submitting written reports about the allegation at the direction of the Principal. Assistant Principal White conducted interviews with six - eight students from his class on 10 July and 28 July 2009. 30During cross-examination of Mr Miles, the Applicant stated that he was attempting to prove that the delay on his part in prosecuting his claim was the result of "the utter smashing of my self-esteem and the need for me to rebuild that over time.. requiring a good deal of time to identify the bullying which took place at the school in order to articulate that to form a cogent argument to the Commission....". 31It was pointed out to the Applicant that the first attempt he made to advance these proceedings following the unsuccessful conciliation proceedings on 19 January 2010 was a letter he wrote to the Commission on 4 May 2012. During cross-examination, Mr Balcomb denied stating that, after establishing his physical health, he clarified his thoughts and clarified what had actually occurred by writing to the Ombudsman. He said that he needed to do that in order "to present that factual detail with specificity and accuracy" to the Commission. Mr Balcomb also relied on the contents of a letter he wrote to the Commission dated 1 October 2010 which he had concluded with the statement "If I do ask to return before Commission...". He stated that he intended to return and advance these proceedings "depending on the information and the assistance that may or may not have been available to me from the agencies, the Ombudsman and the ICAC". 32He agreed that he had received correspondence from ICAC dated 18 May 2010 and again on 18 June 2010 confirming that his complaint to them had no merit. 33He conceded that he was aware, as at 7 February 2012, that the Ombudsman was unable to deal with the nature of his complaint yet he had continued to pursue his complaint through that avenue. 34Mr Balcomb insisted that he received the threat of dismissal on 8 September 2009 when the Principal handed him the TIP, "The document told me that". He also stated that he had formed the same view on 17 December 2009 when he filed the section 84 application. Yet he noted in that application that the date of the threatened dismissal was "22 February 2010 or thereabouts". He agreed that the section 84 claim was filed months in advance of the alleged threat. The Applicant was adamant that, despite there being a process to be followed in relation to the allegations about performance, he was certain that procedural fairness would not be afforded to him and the process would ultimately conclude with his dismissal. 35Mr Christopher John Miles, Principal Legal Officer (Employment) with DEC tendered a statement in the proceedings. 36Mr Miles gave evidence that, during the period between September 2009 and April 2010, the Applicant was the subject of three distinct processes as a result of concerns held by the Respondent as to his efficiency, child conduct allegations and misconduct allegations. The processes were distinguished by the fact that they were conducted over separate timelines and each fell within the purview of different senior officers with different delegations. 37Mr Miles pointed out that both persons identified by the Applicant as Officers who had threatened his employment (Ms Kerry Wellham, the Principal, and Mr Frank Potter, School Education Director) have never had any delegation from the Director-General to dismiss an officer of the Teaching Service from employment. 38Mr Miles explained that under the TS Act, an officer loses his/her substantive position through resignation, dismissal or medical retirement. In addition, an officer may lose his/her substantive appointment through the transfer mechanism contained in the Public Service Employment and Management Act 2002 (PSEM). However, whilst a disciplinary process is in place, the officer in question maintains his/her substantive appointment at their particular school. The Applicant, therefore, maintained his substantive position until his dismissal in September 2012. 39Mr Miles addressed the concerns held by the Respondent under the following three headings as each required a different process to be undertaken. His concerns are summarised below: Efficiency Concerns 40Firstly, in relation to the Efficiency concerns, Mr Miles pointed out that the Principal and workplace Manager, Ms Kerry Wellham, identified the Applicant as a teacher experiencing difficulties with his performance and, as she was charged, pursuant to part 8 of the "Guidelines for the Management of Conduct and Performance" (the Guidelines), with the responsibility for ensuring that the required standards of performance for that role were met, required the Applicant, at a meeting held on 12 August 2009, to participate in an informal program of support she had prepared which was to run from 17 August to 11 September 2009. 41The process, at its strongest, may, if those concerns were not resolved at that stage, lead to a requirement that a teacher participate in a TIP. 42Mr Miles stressed the following points: (1)The School Principal has the delegated authority to determine who should be placed on a TIP; (2)The Teacher concerned is not required to consent to participate in such a program; (3)A TIP is not "disciplinary action" as defined in the Teaching Act. (4)Many teachers who undertake that program are successful and continue to be employed by the Respondent. Even if any of those teachers were unsuccessful, a school principal does not have any delegated authority from the Director-General to take disciplinary action, including dismissal, against that teacher. 43The Applicant declined, in correspondence dated 25 August 2009, to participate in that informal program of support. 44On or about 7 September 2009 Ms Wellham determined that the Applicant would be required to participate in a formal TIP and, to that end, wrote to him and directed him to attend a meeting with her on 14 September 2009 to commence such a program. The Applicant did not attend that meeting. He remained on full pay as a teacher from September 2009 to December 2009 albeit he did not perform the full range of his duties - he did not complete school reports for his students nor did he undertake the TIP despite letters from Officers of the Respondent urging him to do so (for example, Ms Jane Thorpe, Director EPAC dated 8 December 2009). 45It was pointed out that, had the Applicant participated in a formal TIP, it would have been conducted with an experienced teacher (other than the Principal) and also a representative of the NSW Teachers' Federation. The concerns held as to his teaching performance would have been documented at the commencement of the program; it would have been followed by observation of his performance; and he would have received the benefit of review advice and suggestions from experienced teachers. 46At the end of that term, Ms Wellham formed the view that the Applicant was not going to participate in a TIP and therefore, she was not able to make a decision about the standard of his teaching - whether it was satisfactory or otherwise. Mr Miles stressed that the Applicant was not dismissed because of any concerns that Ms Wellham had about his teaching performance. 47The Applicant continued to remain on full pay throughout the school vacation (December 2009 to January 2010) and therefore had no reason to believe that his dismissal from employment was imminent. Child Protection Allegations 48Under the Respondent's procedures, school principals and staff generally are mandated to immediately notify the receipt of any child protection allegations to EPAC for initial assessment, pursuant to part 7 of the Respondent's Guidelines. School Principals are neither permitted nor required to investigate or analyse such allegations prior to such notification. 49Mr Rob Easton, Principal Investigator for the Respondent, wrote to the Applicant on 19 October 2009 informing him of three specific allegations that had been made against him: (i)On Friday, 10 July 2009, while in the playground of the school, he had grabbed the wrist of a male student and pulled his arm; (ii)On a number of occasions in the classroom, he had made inappropriate physical contact with students, including but not limited to three named students, by pushing and/or pulling their shoulders in attempts to get them to face the front of the classroom; and (iii)He had caused school children emotional distress by shouting at them, clicking his fingers or clapping his hands loudly while in close proximity to their faces; hit a student's desk with his hand using considerable force, responded to requests for assistance in an abrupt and angry manner; told a student to "... put your hand down unless you are dying..."; used unreasonable strategies for managing student behaviour including having them pick up hundreds of papers on the school playground and writing out hundreds of words; and (iv)Using inappropriate terms (such as "silly", "idiot" and "moron") when referring to students. 50The Applicant had, as was required of him, provided a response to the allegations. 51On 15 February, 2010, Ms Sarah Parry, Chief Investigator, EPAC Directorate, wrote to the Applicant setting out the outcome of the investigation. The Applicant was formally notified that the Child Protection allegations had been concluded in his favour and no further action was to be taken in that regard. The correspondence relevantly read: In relation to Allegations 1, 2 and 3 ..., I have determined that there is sufficient evidence to substantiate the conduct. I have also determined that this substantiated conduct does not amount to misconduct, but is inappropriate conduct for a member of the Teaching Service. EPAC will take no further action in relation to these matters.... Your Principal, Mrs Wellham and your School Education Director, Mr Frank Potter have been advised of the outcome of the investigation and will provide you with support and advice..... This matter has not been reported to the NSW Ombudsman... .... I have decided that they are not allegations of reportable conduct ... your name has not been referred to the Commission for Children and Young People... In other words, while the allegations were not found to constitute misconduct, some of the allegations were sustained and considered to be inappropriate conduct. 52Mr Miles pointed out that the Applicant, therefore, was aware immediately upon receipt of that correspondence that he could not be dismissed from his employment as a consequence of the child protection allegations and he was, indeed, not dismissed from employment as a result of those concerns. Mr Miles concluded, therefore, that there was no rational basis for the Applicant to have a subjective perception that he would be imminently dismissed from his employment. 53Attached to the statement of Mr Miles was correspondence from the NSW Ombudsman dated 3 November 2011 in which the Applicant was advised that, in relation to the Child Protection issues, I have reviewed the department's handling of the allegations against you and am of the view that the investigation was conducted appropriately. As you are aware, the department found the matter to be "not reportable conduct" and we believe the department's finding was appropriate. I also note that the professional responsibilities as set out in the department's Code of Conduct and that there was no disciplinary action taken as the department did not find that misconduct had occurred. The material provided to us indicates that your dismissal was not related to the reportable allegation against you, but appears to be in relation to your non-compliance with a staff efficiency program. .... 54In the Ombudsman's letter dated 7 February 2012 setting out the findings in relation to the second investigation of the Applicant's complaints, it was found that: There is also no evidence that either the Principal or the investigating officers from EPAC conducted their inquiries with the sole intention of discrediting you or obtaining negative statements about your conduct or performance.... It is clear that a number of people raised concerns about your conduct, and it is my view that these concerns warranted investigation.... The Misconduct Allegations 55Mr Kevin Schipp, Manager, Staff Efficiency and Conduct Directorate, wrote to the Applicant on 15 February 2010 notifying him of six allegations of misconduct concerning his failure to comply with the following lawful directions: 55.1 Written direction from the School Principal on 7 September 2009 to attend a meeting on 14 September 2009 to discuss a formal TIP; 55.2 Written direction from the School Principal dated 21 September 2009 to attend a meeting on 23 September 2009 to discuss implementation of a formal TIP; 55.3 Written direction from the School Principal dated 28 September 2009 to attend a meeting on 30 September 2009 to commence participation in a formal TIP; 55.4 Direction from the School Principal dated 1 December 2009 to attend a meeting on 4 December 2009 to commence participation in a formal TIP. The Applicant had attended very briefly to advise that he would not be participating in a formal TIP and left the meeting in haste; 55.5 He continued to attend the school but failed to submit end of year school requirements as per his responsibilities as a teacher; and 55.6 Direction from the School Education Director dated 10 December 2009 to attend a meeting on 14 December 2009 to participate in a formal program. The Applicant was provided with an opportunity to respond to those allegations within 14 days and an opportunity to request an interview which would be sound recorded and a copy of the transcribed record of interview or tape provided to him. He was advised that he was able to have a support person with him at such interview and able to nominate someone, including a union representative, to speak on his behalf. Finally, the correspondence advised that if the investigation report sustained an allegation of misconduct against him, then disciplinary or remedial action may be taken against him. If dealt with as a disciplinary action, then five possible actions were available to the Respondent: * A caution or reprimand; * The imposition of a fine; * A salary reduction or demotion to a lower position; * A direction to resign, or be allowed to resign within a specified period; and * Dismissal. 56The Applicant provided detailed responses to the allegations. On 6 August 2010, Ms Jane Thorpe, Director EPAC, wrote to the Applicant advising that, with the exception of allegation 2 which was dismissed, all allegations had been sustained and she held the view that his failure to comply with lawful directions and to submit end of year school requirements constituted misconduct. Ms Thorpe also advised that she was contemplating recommending that he be dismissed from the Teaching Service. The Applicant was given 14 days in which to make a submission, and perhaps provide any additional information, before a final decision would be made on what disciplinary action to impose. 57It is noted that the correspondence informed the Applicant that Mr Peter Riordan, Deputy Director-General, Workforce Management and Systems Improvement, when making his final decision on the disciplinary action to be imposed, would be taking into consideration a number of matters including the findings in the Child Protections concerns. 58The Applicant took the opportunity to make a submission on 25 August 2010. 59On 31 August 2010, Mr Riordan, in his role as the Respondent's delegate, wrote to the Applicant informing him of the decision to terminate his employment effective immediately. Actions taken by the Applicant between January 2010 and June 2012 60Mr Miles pointed out that the matter was listed for conciliation before Bishop C on 19 January 2010. The last piece of correspondence from the Applicant (contained in his personnel file) was dated 3 June 2010. That was in response to communication from the Respondent's legal representative. The file did not reveal any further correspondence from the Applicant after that date either seeking to press the current proceedings or commence new proceedings after he was dismissed nine months' later. It was pointed out that the Applicant had not explained why he did not write a short note to the Registrar seeking to activate the current proceedings. 61Mr Miles pointed out that the effect of the delay on the Respondent was "immense" and "will cause significant prejudice". He pointed out that a number of the officers involved in the matter in 2009 were no longer employed with the Respondent, including Michael Coutts-Trotter (former Director-General), Mr Patrick Quinn (former Senior Industrial Officer) and Mr Grant Malley. 62Mr Miles explained that, in addition, he held a discussion with Principal Wellham who advised: * She was unable to give evidence in the proceedings as she was scheduled to be on leave at the time; * It would be difficult, if not impossible, for her to obtain documents that she held from 2009; * She was unlikely, given the lengthy passage of time, to have a strong memory of all of the reasons she had for deciding to place the Applicant on a formal TIP; * The position previously held by the Applicant had been filled by another permanent appointment. Reinstatement of the Applicant to his former position would have a significant effect on staff morale at the school and, in addition, she may have to identify a staff member for nominated transfer. The ICAC Inquiry 63The Applicant wrote to ICAC on 16 April 2010 complaining of corrupt conduct by the Respondent in its attempt to "crush" his career as a teacher. 64In a reply dated 18 May 2010, ICAC advised the Applicant that his complaint had been considered by the Commission's Assessment Panel. The Applicant was advised that his complaint involved dissatisfaction with the way in which his concerns had been dealt with by the School and the Department. On that basis, the Commission will not be investigating his allegations in the absence of any information to support an allegation that the responses stem from a corrupt motive or involve corrupt conduct, 65The Applicant responded with correspondence dated 26 May 2010 and 31 May 2010 attaching further enclosures he wished to be considered by ICAC before concluding its assessment. It appears that, once again, the Applicant did not provide any information to ICAC to support his allegations of corrupt conduct. ICAC advised the Applicant, on 18 June 2010, that its decision not to investigate the allegations stood. 66On 9 November 2010, the Applicant forwarded a lengthy epistle to ICAC attaching new information in an effort to appeal its previous finding. In its reply, dated 19 November 2010, ICAC advised the Applicant that he had not provided any information to support his general contention that the actions of the Principal and other departmental officers were motivated by corruption. It was held that his allegations were mere speculation on his part. ICAC confirmed that the decision not to investigate his allegations stood. The Ombudsman's Inquiry 67On 5 September 2011, the NSW Ombudsman received a complaint from the Applicant about "the events leading to [my] dismissal" by the Respondent. The Ombudsman's office investigated the complaint and responded on 3 November 2011, that it had no jurisdiction to act upon his complaint. 68The Applicant responded on 8 December 2011 arguing against the findings of the Ombudsman. In a reply received on 7 February 2012, the Ombudsman advised that a further investigation had been undertaken by another Officer and a conclusion was reached that it was not in the public interest to conduct any further inquiries into the issues raised by the Applicant and therefore no further action would be taken in relation to his complaints: I have reviewed the available material, and found there is no basis for a claim that Ms Wellham's conduct constituted corrupt conduct or maladministration, and therefore any reports that you have made to the department could not be said to be public interest disclosures. There is no evidence to support your claim that the informal support process and teacher improvement program were commenced as detrimental action for the making of a public interest disclosure about Ms Wellham's conduct. Indeed, these processes appear to have commenced prior to your complaints to the Director-General and the Director, EPAC. LEGISLATIVE FRAMEWORK 69Part 4A of the TS Act sets out the objectives of the Act: (a) to maintain appropriate standards of conduct and work- related performance for officers in the Teaching Service, (b) to protect and enhance the integrity and reputation of the Teaching Service, (c) to ensure that the public interest is protected. 70Section 93D of the TS Act confers on the Director-General a power to issue Guidelines for the purposes of dealing with allegations of misconduct against officers as a disciplinary matter, and the taking of disciplinary action with respect to officers, including disciplinary action in relation to unsatisfactory work performance 93D Issuing of procedural guidelines (1) The Director-General may, from time to time, issue guidelines for the purposes of: (a) dealing with allegations of misconduct against officers as a disciplinary matter, and (b) the taking of disciplinary action with respect to officers under this Part, including disciplinary action in relation to unsatisfactory performance, and ... 71In about August 2006, the then Director-General published the Guidelines pursuant to Section 93D. The Guidelines tendered in the proceedings are stated to be the guidelines specified in the Education Legislation Amendment (Staff) Act 2006. 72Part 8 of the Guidelines relevantly provides as follows: 8. Procedural Guidelines for Dealing with Unsatisfactory Performance The legislation provides for: * ... * officers or permanent employees employed under the Teaching Service Act 1980 to have their performance reviewed at least annually; * the performance review to be against established criteria; * if following a review of performance the opinion is formed that the officer or permanent employee is not performing his or her duties in a satisfactory manner, a performance improvement program may be implemented; * the person must participate in any such performance improvement program in the manner required by the program; * the performance improvement program is to be on terms and is to be implemented for such period as the Director- General considers appropriate. The Director-General will delegate his or her functions to deal with unsatisfactory performance to an officer who understands the process and has the resources available to him or her to carry out the delegated function. 8.4 Remedial vs Disciplinary Action Before implementing disciplinary action to deal with unsatisfactory performance, the workplace manager/supervisor must be satisfied that reasonable assistance has been provided to the officer or permanent employee through an improvement program to enable him or her to perform at the required standard. The action taken in instances of unsatisfactory performance will be determined by what is reasonable in the circumstances.... Disciplinary action is not the first choice in managing unsatisfactory performance, but may become necessary when performance is still unsatisfactory following an improvement program. Disciplinary action is only appropriate where performance remains unsatisfactory after the officer has been given a reasonable opportunity to improve his or her performance.... 8.5 Procedural Fairness The Guidelines are subject to the rules of procedural fairness as required by sections 93D (2) and (3) of the Teaching Service Act, .... The officer or permanent employee must have: the opportunity to respond to the opinion of the decision maker that his or her performance is still unsatisfactory after remedial action (including an improvement program) has been taken and he or she has been given a reasonable opportunity to improve; a separate opportunity to make representations in relation to any disciplinary action being considered. .... 8.7 Performance Principles Generally ..... While it is always open to a workplace manager/supervisor to informally address performance issues with an officer or permanent employee, the Department has established processes for formally addressing unsatisfactory performance, should informal processes of support and remedial action not be successful. These are: * Teacher Improvement Program * .... The procedures outlined in the above documents should be followed when considering the first two stages for addressing unsatisfactory performance. If at the end of a performance improvement program the officer or permanent employee's performance is assessed to be satisfactory, no further action is required other than the usual periodic reviews. [emphasis added] 8.8 What happens to the officer or permanent employee if their performance has been assessed to be unsatisfactory? If an officer or permanent employee's performance has been assessed to be unsatisfactory following completion of a performance improvement program, they are directed to alternative duties in a location where they are not carrying out the inherent duties of their position. 8.9 What is the process for dealing with unsatisfactory performance following a performance improvement program? When the officer or permanent employee's performance has been assessed to be unsatisfactory following completion of a performance improvement program, the matter is forwarded for an independent review to determine whether the process used in the performance improvement program was appropriately followed. The review panel comprises two staff from different locations from the person's work location. The role of the panel is to determine that the process was followed according to the procedures. Their role is not to determine the merits of the matter. If the panel determines that the procedures were not followed, the officer or permanent employee is returned to their position with no further action. If, following the person's return to their position, their performance is still assessed to be unsatisfactory, a new performance improvement program must be commenced in another school .. . If the panel assesses that the process was conducted correctly, the panel report and all documentation is forwarded to a delegated decision maker.... 8.11 Determination about Appropriate Outcome (other than school principals) All remedial and formal action contained in the Department's relevant improvement program and procedures.. must be exhausted before these guidelines apply. If the performance of an officer ... is still assessed to be unsatisfactory following the completion of a performance improvement program or following his or her failure to participate in or to satisfactorily complete such a program the decision maker may take: remedial action disciplinary action a combination of remedial and disciplinary action The decision maker will advise the officer or permanent employee in writing that his or her performance remains unsatisfactory and that this assessment may lead to disciplinary action...[emphasis added] The notification should indicate: ... ... ... ... advice that the officer or permanent employee will be provided with an opportunity to provide a submission in relation to any proposed disciplinary action; the officer's response will be taken into consideration in deciding whether to take disciplinary action. 8.12 Unsatisfactory performance resulting in disciplinary action ..... The disciplinary action that may be considered by the decision maker includes: a caution or reprimand; the imposition of a fine; reduction of the officer or permanent employee's salary or demotion to a lower position; directing the officer or permanent employee to resign, or to be allowed to resign within a specified period; dismissal. The decision maker is also not precluded at this stage from ordering remedial action instead of disciplinary action or in conjunction with disciplinary action if they are of the view that a matter could be more effectively addressed in this manner.... 73The jurisdiction of the Commission to hear and determine a claim concerning the dismissal or threatened dismissal of an employee is set out in section 83 (5) of Part 6 of the Industrial Relations Act 1996 which defines "dismissal" as including the threat of dismissal. THE SUBMISSIONS 74The submissions of the parties are summarised below. It was a very laborious exercise attempting to distil the relevant issues from the substantial documentation provided by the Applicant. 75The Applicant addressed the merits of his substantive claim rather than the narrow jurisdictional issue as to leave to continue with the proceedings in view of the extensive failure on his part to prosecute the proceedings for more than two years. 76The Applicant contended that he had been bullied over a prolonged period of time at the workplace. He also contended that the main architect of that bullying managed to use a bogey child protection allegation to manipulate the Department's processes such that a lot of pressure was placed on the Applicant. The upshot of all that was a 4-week process of teacher review which was truncated abruptly by the Principal without notice to him followed by an allegation that he had refused to participate in the process. 77The Applicant insisted that the threat of dismissal existed as at 17 December 2009 and the Respondent carried out that threat unjustly and harshly by its actions throughout 2010. 78The Applicant understood the "genuine" threat of dismissal was the result of "improper action" by the Principal on 8 September 2009. That was the date on which she allegedly made good her telephoned threat to him of 25 August 2009, by directing, in correspondence dated 7 September 2009, that he participate in a TIP. 79Mr Balcomb pointed out that the facts demonstrate that he had properly participated in the "improperly commenced" four week review. He contended that, nevertheless, the Principal had provided false information about his intention to participate, and his actual participation in it, in order to establish a TIP for him. That behaviour by the Principal, he contended, was consistent with the contents of a publication at the school in 2008 wherein an improper warning was given to staff against challenging female authority in any way. He held the reasonable belief at the time that the Principal intended to generate for him the worst possible outcome in the TIP just as she had done in the review program. 80The Applicant provided examples of what he considered to be "inappropriate" behaviour, behaviour outside proper published process, by the Principal designed to disadvantage him: * authorising two sets of interviews to improperly investigate a false claim by a child of harm at the school; * implementing the 4-week review program as a result of the review process without undertaking a genuine evaluation of his achievements in comparison with the existing standards of colleagues; * refusal to allow him the right of reply on 12 August 2009 to matters suggested by the Principal to be factual and justifying the four week review; * falsifying minutes of the meeting of 12 August 2009; * directing an employee to attest to the truthfulness and correctness of those minutes on 21 August 2009; * threatening reprisals by telephone on 25 August 2009 upon his failure to cease voicing his concerns about the four week program; * making false claims in a letter to him dated 7 September 2009; and * attempting repeatedly, by letters dated 7 and 28 September and 1 December 2009, to use such false claims as the bases for implementing reprisal in the form of a TIP. 81The Applicant stated that the above, when considered in conjunction with the Director's "insupportable endorsement" of the Principal's actions despite three protestations by the Applicant to the Relieving School Education Director Sullivan, caused him to arrive at a decision not to participate in the TIP and to anticipate his dismissal as a result of that refusal. 82The Applicant pointed out that, in addition, he had not received a response to his email request to the Director-General Coutts-Trotter to intervene to stop the bullying by the Principal. It was obvious to him that the Principal's actions/manipulations would not be subject to scrutiny despite all his protestations. 83The Applicant stated that he also considered that the threat of dismissal existed because the Relieving School Education Director Sullivan response to him failed to address key actions of the Principal, were inconsistent with the facts, ignored his requests for mediation or arbitration, failed to comply with the Respondent's policies and procedures and failed to properly examine and report on what actually took place. 84The Applicant relied on the evidence he provided in the proceedings as proving that the Principal, from the very beginning of the procedure, was determined to make false claims about his participation in the review and the subsequent requirement to undertake a TIP, in order to demonstrate her authority by inappropriately humiliating him. 85The Applicant complained that the Principal had acted to diminish his chances of receiving genuine and appropriate collegial support - she had individually warned off two colleagues who had openly supported him, she had called a meeting of Stage 3 staff from which he was excluded and had discouraged them from supporting him and thirdly, she had lodged an unsustainable formal complaint against a casual teacher who had acted as his support person at the meeting of 12 August 2009. 86The Applicant also complained that the Principal was inconsistent in the manner in which she treated him as compared to other staff members to the point that her "profound bias" against him was so prolonged that it was habitual. He provided as an example the occasion of the Stage 3 Camp in May 2009 when the Applicant was the only person who complied with her directions as to the ban on drinking alcohol. 87The Applicant insisted that the Respondent's explanation that it would be difficult, if not impossible, to obtain documents that Principal Wellham held in 2009 and the unlikeliness of her being able to recall the reasons she had in 2009 for wanting to place the Applicant on a TIP were confirmation of his submission that no justification existed then or now for requiring him to undertake that program. 88The Applicant submitted that the claim by Director Potter on 10 December 2009 that the Director had the power to instigate disciplinary action simply by referring a matter to EPAC was another example of the threat of dismissal. In addition, the decision by the Regional Director to keep him on alternative duties "until further notice" severed completely the already unfair disciplinary action from any possible semblance of fair process. 89The Applicant contended that the failure by Director-General Coutts-Trotter to respond properly to allegations he made on 26 and 31 August and 11 September 2009 about threat and action of reprisal and procedural fairness and the failure by EPAC Director Thorpe to respond properly to allegations he made on 27 November and 8 and 11 December 2009 about the failure of the Department to comply with its own procedures also amounted to threats of dismissal. 90The Applicant confirmed that he refused to participate in the meeting on 14 December 2009. He pointed out that, as a courtesy, he had turned up at the meeting venue just before the scheduled time to find out whether anyone was still expecting the meeting to proceed and then let it be known that he did not wish to waste their time by attending a meeting which could not properly proceed as the Respondent was in significant breach of the conditions of his employment. 91It was pointed out by the Applicant that the Respondent had failed to comply with the Clause 32 of the Award by implementing the dispute resolution process. In particular, the Respondent failed to take up his requests that the matter be referred for mediation or arbitration. He contended that the failure by the Respondent to implement mandatory dispute settlement procedures after the application was filed on 17 December 2009 also demonstrated that the threat of dismissal was evident at that time. 92The Applicant also pointed out that the Respondent had failed to follow its own guidelines in that, to his knowledge, no risk assessment was undertaken to determine the risk to him of his removal from duty. 93The Applicant provided reasons for his contention that the Respondent repeatedly failed to correctly comply with the procedures relating to allegations of child abuse. The procedure provides for three mutually exclusive means of resolution of such allegations. The Applicant was required not only to participate in a performance management procedure but also to follow local management action and also an EPAC investigation into the same claims. He contended that confusion and complication arose because all of the disciplinary initiatives were inextricably linked. 94The Applicant noted that Director Thorpe had erred, on 14 December 2009, by confusing the four week review with the child protection allegations albeit she had earlier maintained that they were two separate issues. In addition, Director Thorpe had expressed the view that the directions given to the Applicant were lawful. Therefore, her stated decision to preside as head of department over any "investigation" had been compromised and the Applicant could not be confident in an absence of bias in the delegated officer making the recommendation regarding discipline. 95The Applicant submitted that the failure of the Respondent to advise him of the outcome in the child protection matter (made on 15 February 2010) until 21 days after the correspondence was written and dated (8 March 2010) was deliberate. The Applicant was required to respond to the "Schipp" allegations without knowledge of the outcome in the former matter. In addition, the communication from Director Potter on 11 March 2010 that his response to the allegations had not been received was false as he had successfully emailed it to EPAC 10 days before. He pointed out that he had made two further successful transmissions of his response on 11 and 18 March 2010 before, finally, receipt was acknowledged by EPAC. 96The Applicant recalled that, during cross-examination, Mr Miles explicitly stated that if, following an investigation, allegations are found not to have been proven, then the teacher returns to work at that school. He pointed out that, despite the fact that Chief Investigator Sarah Parry found, on 15 February 2010, that no action was required in relation to the child protection matter, he was not returned to work at Brooke Avenue Public School but was maintained on non-teaching alternative duties. He considered that he was permanently removed from his substantive position on 17 December 2009. Demotion, he pointed out, is a disciplinary measure and disciplinary measures are only undertaken if misconduct is found after allegations are properly investigated. On that basis, Director McKerihan was not authorised to remove his right to teach and, therefore, the demotion may be considered as a threatened dismissal. The Applicant submitted that when he was directed on 17 December to attend at the Gosford office to undertake alternative duties, he formed the opinion that his services had been dispensed with as he had no function to perform and there was no value in anything that he would be required to do at that location. He stated that there was no statement of duties. He believed that he would be expected to sign on and off and sit at a desk doing nothing all day. He expected that punitive, de-skilling disciplinary action was being effected for an indefinite period of time. 97The Applicant formed the view, following the receipt of the 13 December 2009 correspondence, that EPAC was not able to protect his right to procedural fairness, that he could not be confident that Director Thorpe could decide on his dismissal or otherwise without bias and that matters alleged against him would be determined in a transparent manner. On that basis, he concluded that dismissal was inevitable. 98The Applicant complained about the failure of the Respondent to adhere to time guidelines pointing out that the delay between December 2009 (when the allegations were received by the Division head) and his dismissal on 1 September 2010 had caused him a great deal of anxiety. It was only after his doctor had provided him with a WorkCover certificate on 29 July 2010 stating that he was suffering from "anxiety induced by being forced to endure degrading work conditions while awaiting departmental process long overdue" that the "guilty" verdict was delivered on 11 August 2010. 99In conclusion, the Applicant submitted that he had received unfair treatment from the Respondent in respect of the EPAC matter because of his legitimate approach to the Industrial Relations Commission for relief. 100The Respondent pointed out that the threshold issue to be determined by the Commission is whether there has been a dismissal, or a threat of dismissal, of the Applicant in order to establish the jurisdiction to enable the Commission to proceed to determine the merits of the current application. 101The Respondent pointed out that the Applicant stated on the s 84 application that the date of his dismissal or threatened dismissal was 22 February 2010. 102The credibility of the Applicant's evidence was questioned. Firstly, on the s 84 application, the Applicant ticked that he had been supplied with a reason for his termination. That was incorrect as his failure to participate in the informal TIP on 12 August 2009 led Ms Wellham, on 14 September 2009, to direct him to attend a meeting with her to commence a formal TIP. The Applicant declined to meet with her and declined to participate in a formal TIP. Secondly, the Applicant advised the Commission that the flowchart he had provided of the "Overview of Procedures for dealing with Teachers who are placed on a Teacher Improvement Program" demonstrated that "dismissal as [a] final outcome" of the TIP process. 103It was submitted that the Applicant, at that point in time, had not been dismissed nor was he under threat of dismissal. It was also submitted that the Applicant had not led any evidence to support the proposition that attempts to involve him in a TIP amounted to a threat of dismissal. 104The Applicant commenced a statute based disciplinary process on 15 February 2010 albeit he was not dismissed until 31 August 2010. 105The Respondent relied on the decision of Schmidt J in Hill v Director-General of Education (1998) 85 IR 201 (as cited with approval in subsequent cases before this Commission, including Baker v Australian Workers' Union [2005] NSWIRComm 1225) as the leading authority on the issue of a threatened dismissal. In Hill, the Commission found that - There has been no dismissal as yet, but it is clearly threatened and indeed, imminent, the dismissal having put off on a number of occasions, ... [p 206] In Baker, Connor C observed: 3 The remedy under s 89 (7) for a threat of dismissal is injunctive and interim in nature. For the threat to be sufficient to ground that remedy, in my opinion, it must be certain, imminent and unconditional to give rise to a claim under Part 6.... [emphasis added] 6. .... Mr Baker has jumped the gun.... [he] remains on the payroll 106Connor C found that Baker was still the subject of a disciplinary procedure that had not been completed and no final decision had been made in regard to his future employment. On that basis, the Commissioner did not make the orders sought. 107The Respondent pointed out that Mr Miles gave evidence that the Applicant had been the subject of three distinct processes in relation to concerns about his efficiency as a teacher and his professional conduct (b)Efficiency concerns; (c)Child Protection allegations; and (d)Misconduct allegations. All were dealt with in accordance with the procedural requirements contained in the Department's Guidelines for the Management of Conduct and Efficiency. 108The evidence before the Commission indicated that the Applicant either did not accept, or did not understand, that the processes were distinct from one another and involved different officers of the Respondent holding different delegations. The evidence of Mr Miles was unchallenged that the officers dealing with the first two processes did not have any delegation from the Director-General to dismiss an officer of the Teaching Service. Both those processes were underway and were far from resolution when the Applicant filed his application. Most importantly, the Principal of the School, on whom the Applicant focused heavily in relation to his bullying and harassment claim, Kerry Wellham, did not have the delegation to dismiss him. 109The Applicant's stated reason for his dismissal was "Refusal to participate in a Teacher Improvement Program Process". The Respondent pointed out, firstly, that it was merely seeking to address the efficiency concerns by placing the Applicant on a TIP, which, as defined in the Teaching Service Act 1980, is not disciplinary action. That is because remedial action is still available instead of, or in conjunction with, disciplinary action, if a teacher fails, or fails to undertake or complete, a TIP. Secondly, regardless of the above, a Principal does not have the delegated authority to dismiss a teacher or take any disciplinary action in relation to a teacher. 110The Applicant had relied on the letter to him, dated 14 December 2009, from Ms Jane Thorpe, Director EPAC, for his application citing threatened dismissal. The Respondent pointed out: Firstly, that the parties were in agreement that, at the time the s 84 application was filed, the Applicant had refused to participate in a TIP; Secondly, that the refusal was being considered by the Respondent as part of a 3-stage management process mandated in the Guidelines; Thirdly, no determination had been made as to the final outcome of that process. In addition, the Respondent's investigations of the Child Protection allegations was still underway and was far from concluded. In fact, that investigation was ultimately concluded in his favour on 15 February 2010; Fourthly, Ms Thorpe had decided to refer the matter to a more senior officer to determine the appropriate disciplinary action; Fifthly, the Applicant did not include the full sentence but quoted an extract from a sentence contained in that letter. The words preceding his extract are set out in bold print: "Should you continue to fail to obey lawful directions, including directions to attend meeting you will become subject to disciplinary action". It was pointed out that even if the Applicant had adopted a subjective view of that sentence, (5)it was not a threat that was "certain, imminent and unconditional"; and (6)it was not a view that a reasonable person in the employee's circumstances would hold given that disciplinary action may not result or given the range of possible disciplinary action that might result, other than dismissal. 111Although the Applicant had not complied with a number of reasonable directions given by the Respondent, not every refusal to comply with a reasonable direction may be classed as repudiation of the contract of employment and not every repudiation justifies a dismissal or threat of dismissal. 112The Respondent pointed out that, in any event, the Officers identified by the Applicant as having threatened him with dismissal did not, in fact, have the delegated authority from the Director General to dismiss an officer of the Teaching Service from their employment. 113It was concluded, therefore, that the Commission cannot, on the evidence before it, make a finding that a dismissal was imminent or inevitable at the relevant time. In addition, the Applicant has not satisfied the Commission by adducing any relevant or credible evidence, that he held a reasonable belief, at the time he filed the application, that he had been dismissed or was under threat of dismissal. On that basis, the Commission does not have jurisdiction to hear the matter as the application does not relate to a dismissal or threatened dismissal. 114It was submitted, in the alternative, that even if the Commission was to find for the Applicant that there had been a dismissal or threatened dismissal, the Applicant was derelict in seeking to pursue his claim for unfair dismissal in that he failed to prosecute his case in a diligent and timely manner because he took no action in the period between January 2010 and May 2012 to pursue the proceedings and therefore the application should be dismissed for want of prosecution. 115The Respondent pointed out that, in the absence of any satisfactory or, indeed, any explanation for the delay, the delay in prosecuting the claim was considerable bearing in mind that it was filed on 17 December 2009. The Respondent, it was submitted, was entitled to believe that the matter was finally concluded: Lucic v Nolan (1982) 45 ALR 411 at 414-415. In the interim, however, the Applicant had made voluminous submissions to the Ombudsman and a complaint to ICAC. 116The Respondent drew the attention of the Commission to the provisions of section 56 of the Civil Procedure Act NSW (2005) which emphasises the obligations on the parties to assist courts and tribunals in achieving the objects of the Act in bringing "just, quick and cheap resolution of the real issues in the proceedings". 117The Respondent submitted that it will be prejudiced by the delay occasioned by the tardy approach of the Applicant to the prosecution of his claim for the following reasons - firstly, there was likely to be a fading in the recollection of the Respondent's witnesses and considerable difficulty in locating documents from 2009; secondly, a number of the officers identified by the Applicant as being involved in the matter are no longer employed by it; and, thirdly, the Commission is obliged to consider the impost on the public purse if this matter is allowed to continue. 118The Respondent pointed out that the Applicant has not pursued his claim diligently despite having ample opportunity to do so. The Respondent submitted that, on that basis, the principle established in Aon Risk Services Australia Ltd Australian National University [2009] HCA 27; (2009) 258 ALR 14 should be applied. In other words, the removal of a party from proceedings where that party has had sufficient opportunity to plead their case and has a history of non-compliance with procedures, does not amount to denial of procedural fairness or natural justice. Such a decision needs to be made by the Commission for the sake of doing justice to the Respondent. 119The Respondent also pointed out that the application lacks merit in that, at the time of filing, there had been no dismissal or threat of dismissal and it has little prospect of success, particularly in terms of reinstatement given the complaints he has made to the Ombudsman and ICAC alleging corruption by the Respondent. 120The Respondent pointed out that the Applicant had completed and signed the section 84 application in which he confirmed that the Respondent had provided him with a reason for the dismissal, that being "Refusal to participate in a Teacher Improvement Program process". The Commission was reminded that the Principal had invited the Applicant to participate in an informal TIP. When he declined to do so, she had asked him to attend a meeting with her to commence a formal TIP. He did not attend the meeting and did not participate in the TIP. 121It was submitted that the Applicant was misleading when he asserted that the "Overview of Procedures for Dealing with Teachers who are placed on a Teacher Improvement Program" (which he had attached to the application) advised that dismissal is a final outcome of the TIP process. In actual fact, the Guidelines make it clear that a TIP is not a disciplinary process. If a teacher fails to meet the required level of performance it may, as one of a number of alternative consequences, result finally in a Principal referring the case for review. A TIP is not a disciplinary process as remedial action is still available instead of, or in conjunction with, disciplinary action. Failure to comply with lawful directions does not necessarily result in disciplinary action being taken against the teacher but, when it does, there is a broad range of disciplinary actions available of which dismissal is but one, and the most serious, option. Mr Miles gave unchallenged evidence that many teachers who undertake a TIP are successful in the program and continue to be employed as teachers. 122The Applicant was subject to a performance review and had actively resisted participating in the TIP. The Commission was invited to draw an inference that, despite his protestations, the Applicant had read or familiarised himself with the Guidelines given that they were generally available within schools and on the Respondent's intranet. 123It was contended that the Applicant was aware that he was not under threat of dismissal when he filed his section 84 application. Under the heading "Reasons for Application" he wrote the words, "I was threatened with a longer program (TIP) which could lead to dismissal... "I will not participate [in the TIP] as the program has been established without basis and as no natural justice has yet been shown to me, there is no possibility of it being a fair process. As a result, I anticipate that the DET will seek to dismiss me." 124The Respondent noted that the Applicant had confirmed, in cross-examination, that the TIP could not take place over the school vacation and that the earliest time he could participate in the program was from the beginning of the school year in February 2010 - a few months in advance of the filing of his application. 125Ms Thorpe, Director EPAC, wrote to the Applicant on 14 December 2009 and cautioned that "Should you continue to fail to obey lawful directions, including directions to attend meetings, you will become subject to disciplinary action." It was submitted that it was clear that the taking of disciplinary action was dependent on him failing to comply with further directions. The Applicant did not provide any evidence that he was given, or he failed to comply with, any directions between 14 December and the filing of his section 84 claim on 17 December 2009. 126The Respondent acknowledged that the Applicant was self-represented at the hearing, nevertheless, he was provided with guidance and assistance by the Commissioner throughout the proceedings. 127The Commission was reminded that despite being directed by the Commission to respond to questions put to him in cross-examination, he gave responses in the form of narrative statements which were non-responsive, some of his answers were evasive and others were obfuscatory. 128It was abundantly clear that, as at 17 December 2009, the grievances held by the Applicant concerning alleged bullying and harassment by various officers of the Respondent were at the forefront of his mind. However, he did not lead any evidence to link the allegations with the alleged belief that he had been threatened with dismissal. In any event, it was not a belief open to a reasonable person in the Applicant's circumstances, it had no factual basis and it was misconceived and speculative. 129The Respondent relied on the judgment in Baker v Australian Workers' Union [2005] NSWIRComm 1225 wherein it was held that the Commission must satisfy itself that the threat of dismissal, if indeed there was such a threat, was "certain, imminent and unconditional". The Appellant did not lead any evidence to prove that those conditions were present. Indeed, those conditions were absent as the threat was dependent upon a further direction/s being given by the Respondent and not complied with by the Appellant. 130The Respondent referred the Commission to correspondence from the Applicant to Ms Thorpe, dated 24 December 2009, wherein he referred to the section 84 application as a "notified dispute". It was pointed out that he had not made any reference to his dismissal or threatened dismissal. Instead, he had attempted to negotiate a settlement of that dispute by offering proposals for settlement such as 50 per cent reduction in his working hours - matters which point to the fact that the Applicant considered himself as still employed by the Respondent. It was submitted that the earliest time that a threat of dismissal arose was on 15 August 2010 when the Applicant was advised of the positive outcome of the misconduct allegations and asked to show cause why his employment should not be terminated. 131In conclusion, the Respondent is seeking that the application be dismissed for want of jurisdiction. In the alternative, the Respondent is seeking that the application be dismissed for want of prosecution. The Respondent is seeking an order that the Applicant pay the Respondent's costs as agreed or assessed. CONSIDERATION 132The Director-General has, pursuant to the powers conferred by Section 93D of the Teaching Service Act 1980, issued Guidelines for the Management of Conduct and Performance in about August 2006, as specified in the Education Legislation Amendment (Staff) Act 2006, for dealing with allegations of misconduct against officers as a disciplinary matter and the taking of disciplinary action with respect to officers, including disciplinary action in relation to unsatisfactory work performance. 133The Guidelines note that the legislation requires that a person, who is considered to be not performing his/her duties in a satisfactory manner, must participate in any performance improvement program. 134The Director-General, in the Guidelines, delegated authority to Principals to make decisions as to whether or not a teacher is placed on an improvement program as they not only understand the process but have the resources available to them to carry out the delegated function. 135Principal Wellham identified the Applicant as experiencing difficulties with his performance. Prior to embarking on a formal program of assistance, the Principal offered the Applicant, in the presence of his support person at a meeting on 12 August 2009, informal support for a period of four weeks (17 August to 11 September 2009). 136The Applicant declined that offer and, instead, lodged a grievance with the Director-General's office on 20 August 2009 seeking a review of that direction. An independent investigation into his grievance revealed that his allegations were unsubstantiated. He was urged to reconsider his decision not to participate in that informal process. The Applicant wrote to the Principal on 25 August 2009 declining to participate in the informal support program as he did not acknowledge her judgment in regards to his teaching performance. 137I am satisfied that the Principal and the Director-General did all they could on that occasion to deal with the matter informally and it was the Applicant who rejected all efforts at informal assistance. 138On or about 7 September 2009, the Principal determined that the Applicant was required to participate in a formal Teacher Improvement Program (TIP). She wrote to him directing him to attend a meeting on 14 September 2009 to "discuss and negotiate" a formal TIP stating "Please be advised that failure to comply with this direction may lead to disciplinary action". 139On 11 September 2009, the Applicant advised the Principal via email that her direction for him to participate in an informal support program was baseless and therefore not reasonably practicable for him to follow. In response, the Principal reaffirmed her decision to proceed with the program and also reiterated the need for the Applicant to comply with the directions whilst seeking a review of his matter. 140The actions of the Applicant, in my view, left the Principal with no option but to direct him to participate in a formal TIP. He was cautioned, and quite rightly so, that if he did not, then he may be subject to disciplinary action. In my view it is necessary to caution any employee of the likely consequences of refusal to comply with a lawful direction at any workplace. The Applicant failed to attend the meeting on 14 September 2009. 141On 24 September 2009, the Applicant communicated with the Manager of the Department's Staff Efficiency and Conduct Unit requesting that he be placed on temporary alternative placement or leave "until proper working conditions are restored for me, and may be requiring more time than you anticipated". 142The Principal directed the Applicant to attend a meeting on 29 September 2009. The Applicant responded that he would not be at work on 29 and 30 September 2009 and therefore would not be able to attend the meeting. The meeting was rescheduled to Term 4, 2009. 143At the beginning of Term 4, Mr Balcomb applied for extended leave for a period of six weeks. When the application was declined, the Applicant proceeded on sick leave. He produced three medical certificates for stress-related illness covering all week days in the period 19 October 2009 to 27 November 2009. He produced a fourth certificate certifying him as fit to resume normal duties from 1 December 2009. 144The Applicant made it clear, in his letter to the Department's Staff Efficiency and Conduct Unit, that he did not wish to work at that School "until proper working conditions are restored for me". The Applicant was determined not to attend any meeting held in regards to his work performance. That was abundantly obvious from the his refusal to attend meetings, his application for extended leave for six weeks and, when that was declined, his taking of sick leave. 145The Applicant was directed, by letter dated 1 December 2009, to attend a meeting on 4 December 2009 to discuss the commencement of the formal TIP. The Applicant briefly attended the meeting merely to advise that he would not be participating and then made a hasty retreat. 146On 8 December 2009 the Applicant was forwarded correspondence from Jane Thorpe, Director EPAC, urging him to participate in the process and to attend meetings warning that "Failure to do so may result in disciplinary action being taken against you". The correspondence went on to discuss the on-going investigation. 147Principal Wellham referred the matter to the School Education Director for advice . Further correspondence was forwarded to the Applicant on 10 December 2009 in which Frank Potter, School Education Director, directed him to attend a meeting on 14 December 2009 to participate in a 10-week TIP forewarning the Applicant that "Should this direction not be complied with on Monday 14 December 2009 I will refer this matter to the Employee Performance and Conduct Directorate for instigation of disciplinary action". 148The Applicant attended the meeting merely to advise that he would not be participating and beat a hasty retreat. Correspondence was forwarded to him from Ms Thorpe on the same day informing him that "Should you continue to fail to obey lawful directions, including directions to attend meetings, you will become subject to disciplinary action". 149The Applicant was forwarded correspondence on 17 December 2009 advising him of the Respondent's concerns in relation to his failure to follow lawful directions to participate in TIP. He was directed to report to level 3/40 Mann Street, Gosford to undertake non-teaching alternative duties. 150Once again, upon his resumption at work, he was directed to attend a meeting on 4 December 2009 to discuss the commencement of the formal TIP. He failed to attend. 151Despite all of the above, the Applicant was not subjected to any disciplinary measures at that stage. The Applicant was in employment and on full pay between September and December 2009. He remained employed and on full pay during the school holidays between December 2009 and January 2010. In other words, the Applicant continued to be paid his salary and continued to accrue his leave entitlements from August 2009 until his dismissal on 31 August 2010. 152The Applicant lodged a s 84 Unfair Dismissal application on 17 December 2009 in which he contended that he was threatened with dismissal on "22 February 2010 or thereabouts" and that he was "still working under threat of dismissal" for his "refusal to participate in Teacher Improvement Program process". In response to the request to attach to the claim a copy of any relevant documentation regarding such dismissal, the Applicant attached, firstly, the letter from Ms J Thorpe of 14 December 2009 in which he was cautioned that "you will become subject to disciplinary action" and, secondly, the Respondent's procedure for dealing with teachers who are placed on a TIP pointing out that dismissal was the final outcome under that procedure. Finally, in the reasons for application, the Applicant stated, inter alia, "...I will not participate as the program has been established without basis and, as no natural justice has yet been shown to me, there is no possibility of it being a fair process. As a result I anticipate the DET will seek to dismiss me". 153During cross-examination, the Applicant agreed that the section 84 claim was filed months in advance of the alleged threat but reasoned that he possibly calculated the date of the threatened dismissal from the end date of the 10-week TIP albeit the program would not have been conducted during the Christmas vacation period. James: Q. On 17 December 2009, had you formed the belief that you were actually dismissed by the Department? Balcomb: A. I had formed the belief that it was inevitable. Q: Between January 2010 and May 2012 you did nothing in pursuant of that in relation to this Commission though did you? A: Yes, I did enormous amounts. I marshalled my resources, tried to construct my arguments so that people would understand readily and put myself in a position where I would be able to deal with this process. Q: Between about 19 January 2010 and May 2012 you didn't travel overseas at all did you? A: No. Q: And you were not in any way incapacitated from writing letters, were you?.... You could write a 107 page letter for example to the Ombudsman in that period? A: I did do that. Q: And you wrote letters to ICAC in that period? A: I did.... Q: In the period 19 January 2010 to May 2009 there was nothing in your physical health to prevent you from writing to this Commission to have these proceedings activated so as to pursue them was there? A: Yes. Q: And that was? A: that was that because of the self-esteem, the fact that I'd lost my position, the fact that my colleagues told me that they believed that I had suffered sexual allegations against me even when I showed them the documentation demonstrating that wasn't correct. Yes, my mind is part of my body and so certainly I was unable to approach the Commission. Q: But you were able to approach ICAC? A: Indeed, as part of the process towards coming back to the Commission. Q: And you were able to approach the Ombudsman? A: Correct. Those were steps. 154The Guidelines clearly provide that no disciplinary action can be implemented in relation to unsatisfactory performance until reasonable assistance has been provided to the officer through an improvement program to enable that officer to perform at the required standard. The Guidelines further provide that disciplinary action is only appropriate where performance remains unsatisfactory after the officer has been given a reasonable opportunity to improve him/her performance. The Applicant was given every opportunity to participate in an informal process. He declined. He was given more than ample opportunity to participate in a formal TIP. He declined. He was made aware of the ultimate circumstances of his actions. He still declined to participate despite the fact that the Guidelines contain adequate safeguards for officers: * Officers are able to respond to the opinion of the decision maker if his/her performance is still unsatisfactory after remedial action, including a TIP, has been undertaken and a reasonable opportunity has been provided for the officer to improve; * There is provision for an independent review of the improvement program by two independent staff drawn from other work locations; * If the review panel determines that the officer's performance is till unsatisfactory, a new performance improvement program MUST be commenced in another school. 155If the review panel determines that the process was conducted correctly or as in the case of the Applicant, the officer failed to participate in such a program, it forwards a report and all documentation to a delegated decision maker who MAY take remedial action, or disciplinary action or a combination of both. 156In addition to that, there is a prolonged and patient process for dealing with unsatisfactory performance before a decision is made and when ultimately a decision is made, it may be remedial in nature or disciplinary of a combination of both. A Principal has no delegated authority to dismiss a teacher. 157The Applicant was adamant that, despite there being a process to be followed in relation to the allegations about performance, he was certain that procedural fairness would not be afforded to him and the process would ultimately conclude with his dismissal. 158It would appear that what the Applicant meant in relation to "proper working conditions" was for him to be left alone to conduct his classroom whichever way he desired irrespective of any concerns held by the Principal as to his performance. Clearly that is not acceptable at any workplace as quality control is vital to the provision of services to the public. 159The Applicant has been self-represented from the commencement of the proceedings and actually initiated the proceedings by himself. He was aware that the matter was stood over generally when conciliation proceedings before Bishop C failed to resolve the matter. Nevertheless, the Respondent's Solicitors wrote to the Applicant on 28 May 2010 reminding him that although the application before the Commission had been stood over generally, the proceedings were still current. The Applicant received that advice because he responded to it on 3 June 2010. 160On 6 August 2010, the Applicant was forwarded correspondence from Jane Thorpe, Director Employee Performance and Conduct, informing him that the investigation into the misconduct allegations was completed, the six allegations had been substantiated and she would be recommending to Peter Riordan, the Deputy Director-General that the Applicant be dismissed from employment. At that time no decision had been made as to his employment. The Applicant was provided with an opportunity to show cause why he should not be dismissed. No attempt was made by the Applicant to seek to restore his application regarding threatened dismissal to the Commission's list. 161On 31 August 2010 the Applicant was advised that his employment was terminated effective 1 September 2010. No attempt was made to seek to restore his unfair dismissal application to the list within 21 days or advise the Commission of the status of his employment. 162Some 30 days after his termination (on 1 October 2010), the Applicant wrote to the Industrial Relations Commission to advise Bishop C that, before requesting that his file be re-opened, he intended to present further information to ICAC about the actions of his supervisors during 2009 and events affected by those actions. He also advised of his intention to inform the GIO of facts relating to a WorkCover claim which, in his opinion, had been decided wrongly as a result of alleged inaccurate and insufficient information from the Respondent. He indicated that a change in the decision of WorkCover would "hearten" him to return to the Commission. He undertook to promptly advise the Commission of his intentions once a response was received from ICAC and GIO. 163The Applicant forwarded lengthy correspondence to ICAC on 9 November 2010 in an effort to overturn the previous finding. On 19 November 2010, ICAC confirmed its decision not to investigate his allegations. Once again, the Applicant did not take any steps to pursue his claim before this Commission. 164The Applicant wrote to the NSW Ombudsman on 5 September 2011 complaining about the events that had led up to his dismissal. In a response dated 3 November 2011, the Applicant was advised that the NSW Ombudsman had no jurisdiction to act on his complaint. The Applicant was aware that this Commission had jurisdiction to hear his complaint yet, once again, did not take any steps to pursue his claim. Instead, he wrote once again on 8 December 2011 seeking a reversal of that finding. The NSW Ombudsman wrote back to the Applicant on 7 February 2012 confirming its previous decision not to act on his complaint. 165Despite the fact that the last word from ICAC was on 19 November 2010 and the last word from the NSW Ombudsman was on 7 February 2012, it was not until 4 May 2012 that the Applicant wrote to the Industrial Registrar seeking to reactivate his application. 166I have read the article titled "Procedural Fairness in the Department of Education and Training" dated 26 October 1998 as contained in the "Legal Issues Bulletin" published by the Respondent. I am satisfied that procedural fairness was shown to the Applicant both as to his right to be heard and the right to an appeal. Had the Applicant participated in the meetings, he would have probably received reasons as to why he was to be placed on an informal/formal TIP. It was his decision not to participate in those meetings and to be heard on those reasons. He had nothing to lose by attending as he had a right to call for an independent review. 167A Principal at a school is best placed to make decisions as to the performance of the teachers at that School. The educational interests of the children at school are paramount. 168Given that child protection concerns were being investigated, then the Department had every obligation to find alternative duties for the Applicant while those concerns were being investigated. I accept that the Respondent is required to give paramountcy to the protection of children. It does not mean that the teacher is immediately found guilty of such conduct - it is merely a precaution pending the outcome of the investigation. In the case of the Applicant, those concerns were unfounded and the Applicant had no case to answer. He was not dismissed as a result of those concerns. 169It is blatantly obvious, therefore, from all of the evidence, that there was no threat of dismissal of the Applicant when he lodged his section 84 claim. The only way that he could be certain at that time that the threat of dismissal was "certain, imminent and unconditional" was if he was determined, in his own mind, that he would not be complying with any lawful directions from any member of the Respondent's staff in the future. That would have been within his knowledge only. 170I accept that the Applicant did not lead any evidence to support the proposition that attempts to involve him in a TIP amounted to a threat of dismissal. 171I also accept that the Applicant did not lead any credible evidence to support his contentions that conduct by officers of the Respondent in relation to the three processes gave rise to a reasonable belief that he had been threatened with dismissal when he filed the section 84 application. 172I further accept, given the above timelines, that the Applicant failed to pursue these proceedings in a proper and timely manner. It appears that these proceedings were left on the back burner while the Applicant persistently pursued his complaints to the Ombudsman and ICAC in the full knowledge that they lacked jurisdiction to deal with employment matters such as unfair dismissals. ORDERS 173Matter No IRC 2025 of 2009 is hereby dismissed for want of jurisdiction. 174In the alternative, Matter No IRC 2025 of 2009 is dismissed for want of prosecution. 175Leave is reserved to the Respondent to pursue its application for costs. I Tabbaa AM COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2013