Industrial Relations Commission New South Wales Medium Neutral Citation: Susan Gail Minogue and Department of Education and Communities [2013] NSWIRComm 1026 Hearing dates: 4 September 20135 September 20136 September 2013 Decision date: 29 November 2013 Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal-Casual Teacher with 27 years' experience-Commenced Full-time Employment-Probationary period extended twice-Alleged unsatisfactory work performance-Informal support program-Formal Teacher Improvement Program-Not completed-Extensive sick leave-Applicant required to show cause why she should not be dismissed-Response unsatisfactory-Probationary Employment Annulled- Dismissal not harsh, unjust or unreasonable-Protection of children is to be the paramount consideration-Includes protection of children from teachers. Legislation Cited: Industrial Relations Act 1996 Teaching Services Act 1980 Cases Cited: Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 548; 93 IR1; Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288; Lane and Northern Sydney Central Coast Area Health Service [2006] NSWIRComm 380; Bankstown City Council v Paris (1999) 93 IR 209; Macleay Valley Health Service v Jeffree (1994) 58 IR 187; Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11; New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32; NSW Department of Education and Training v Cassis [2007] NSWIRComm 158 Category: Principal judgment Parties: Mr Peter Vlug (Partner, for the Applicant) Representation: Mr A Britt (for the Respondent) Ms M Buchanan (Principal Legal Officer, Employee Performance and Conduct Directorate, for the Respondent) File Number(s): IRC 456 of 2013 DECISION Background 1Ms Susan Gail Minogue, the Applicant, commenced employment with the Director-General, Department of Education and Communities, the Respondent, at the beginning of the school year in 2010 as a probationary full-time Teacher at Collaroy Plateau Public School (CPPS) pursuant to the terms and conditions of the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009. 2The Applicant had undertaken casual employment for the previous 27 years and was waiting all that time, since her original training, for a permanent teaching appointment. 3During 2010, the Principal became concerned about the Applicant's teaching performance and remained concerned despite providing the Applicant with a significant amount of informal support. 4In November 2011, the Principal met with the Applicant to formally identify her as a teacher experiencing difficulties with her teaching performance. The Applicant was formally advised that she was to be placed on a Teacher Improvement Program (TIP) in accordance with the Department's Procedures for Managing Probationary Teachers, April 2010. The areas of concern identified to the Applicant were: Teacher know their students and how they learn; Teacher communicates effectively with their students; Teacher creates and maintains a safe and challenging environment through the use of classroom management skills. 5The TIP commenced in November 2011. The Applicant completed approximately two weeks of the TIP before she commenced a period of sick leave between November 2011 and October 2012. The Principal deemed the Applicant to have failed to satisfy the requirements for the position held. The Principal prepared a report, dated 5 December 2012, setting out the reasons for her determination. 6The then Regional Director, Northern Sydney, Ms Jane Simmons, wrote to the Applicant on 5 December 2012 directing her to attend alternative duties at Dee Why Regional Office. 7The Applicant provided a response to the Principal's report on 7 January 2013. 8By letter dated 11 February 2013, Mr Dean White, then School Education Director (SED), Peninsula Network, Northern Sydney Region, advised the Applicant that he had reviewed all documentation regarding her TIP, including her response to the principal's report and asked to meet with her to clarify some of the information on 18 February 2013. 9After meeting with the Applicant and Mr Vlug, Mr White prepared a submission dated 17 March 2013 which detailed all of the documentation he had reviewed and included his opinion that the Procedures for Managing Probationary Teachers had been followed. He recommended that the determination of the Principal be accepted. He also recommended the annulment of the Applicant's probation and the placement of her name on the Not To Be Employed list. He then referred the matter to the Employee Performance and Conduct Directorate (EPAC). 10Mr White forwarded correspondence, dated 20 March 2013, to the Applicant advising her that, after reviewing all material and after taking into account her submissions, he supported the Principal's view that she did not satisfy the requirements for the position held. 11The matter was then referred to Mr Schipp, then Regional Director, EPAC, for consideration. Mr Schipp wrote to the Applicant on 23 March 2013 advising that he was considering taking action to annul her appointment following concerns expressed about her efficiency. He provided her with a copy of all relevant material on which he would be relying and provided her with an opportunity to make a written submission to show cause as to why her appointment should not be annulled. 12Mr Neale Dawson, Counsel on behalf of the NSW Teachers' Federation, provided a written submission on behalf of the Applicant. 13After considering all material, Ms Thorpe, Director, EPAC, annulled the Applicant's appointment as a teacher effective from 9 May 2013. 14The NSW Teachers' Federation, on 31 May 2013, filed an application pursuant to section 84 of the Industrial Relations Act 1996 (the Act) seeking relief with respect to the alleged unfair dismissal of Ms Minogue by the Respondent. 15The matter was listed for conciliation and directions before Newall C on 18 June 2013 at which time conciliation proceedings failed to resolve the claim. Standard directions were issued and the matter was listed for hearing on 4 - 6 September 2013 inclusive before the Commission as currently constituted. 16The Respondent denied that the Applicant's dismissal was harsh, unjust or unreasonable. THE EVIDENCE 17Mr Neale Dawson, Counsel, filed a notice of ceasing to act on behalf of the NSW Teachers Federation on 19 June 2013. 18Mr Peter Vlug, the Applicant's partner, appeared on her behalf and called evidence from: Ms Susan Minogue, the Applicant and Mr Peter Shuttleworth, a retired Principal. 19Mr A Britt, Counsel, appeared on behalf of the Respondent and called evidence from: Suzanne Trisic, Principal - CPPS Diane Twentyman, Assistant Principal - CPPS and Dean White, Director, Warringah Network (previously SED, Peninsula Network, Northern Sydney Region) 20Statements were tendered into evidence from: Kevin John Schipp - Manager, Staff Efficiency and Conduct Team, Sarah Ann Boyd (nee Lisney), Assistant Principal Jane Thorpe, Director, EPAC They were not required for cross-examination by the Applicant. 21Ms Minogue tendered a statement in the proceedings, dated 1 March 2012, which appeared to have been a statement which took two days to prepare for Alliance in relation to a workers' compensation claim. 22While in her 20s, the Applicant said she taught in the Catholic School system for seven years. Her Principal at the time, Mr Chris Curran, at St Johns the Apostle, Narraweena, affirmed to her that she had become one of his best teachers. She was Primary Sports Mistress, Science Co-ordinator and Liturgical Dance Co-ordinator in addition to leading a guitar group in the church. 23Ms Minogue stated that she commenced employment with the Respondent in 1998 as a casual teacher at various schools on the Northern Beaches (including a year at Harbord Public School in 2000 teaching Year 2 students and from March -December 2005 at Wheeler Heights teaching Year 1 students). She said she taught in blocks, averaging about three days per week although she worked less when she was undergoing treatment for cancer for about six months and recuperating from the effects of radiation therapy. The Applicant attached to her statement a statement from Ted Hemmens, Principal, Harbord Public School, in which he advised that the Applicant worked at that school as a casual during 2000 and, as a result of her work, was employed to teach a year 2 class for the 2001 school year. In addition, in early March 2005, while teaching at Wheeler Heights Public School, she was asked by the Principal, Kathryn Drummond, to take a Year 1 class for the rest of the year as the teacher had taken ill. 24During cross-examination, the Applicant stated that, given the above, she considered herself to have been "a very experienced, competent teacher" prior to commencing at CPPS. 25She said she became permanent in term 1 on 27 January 2010 at CPPS, a co-educational school with approximately 500 students. The Applicant was offered the position to replace a teacher not returning from overseas. She said the Principal advised her that she would be on 12 months probation before she was signed off on. 26In her first year at CPPS, she taught Kindergarten. In her second year, she taught Year 4 and Relief from face to face (RFF) teaching. In the latter, she taught various key learning areas (KLAs). She stated that she preferred to teach kindergarten as she had not taught the latter for many years. 27She said she typically arrived at work at about 8.30 am. School started at 9.10 am. Recess was at 11 am for 20 minutes. Lunch was at 1-1.50 pm. School finished at 3.10 pm. She usually left between 4 - 4.30 pm after ensuring that all her work was marked before she left. She attended various after hours school activities - for example, staff development, parent/teacher nights, parent/teacher interviews and Teacher Professional Learning (TPL) every Tuesday afternoon. 28The Applicant said that she would go to Ms Lizzie Smith, one of the Assistant Principals, if she needed assistance as she found her approachable. In addition, she got on well with most of the other teachers at the school but she did not socialise with anyone from the school outside of work. 29The Applicant said that her uncle, Peter Shuttleworth (a former Principal at three or more large Primary Schools in Sydney), advised her that it was customary for a beginning teacher to be given the same class for two consecutive years in order to consolidate. She argued that she ought to have been given that opportunity at CPPS. Kindergarten 30Ms Suzanne Trisic, Principal, CPPS, provided a statement in the proceedings in which she stated that she became aware, within the first few weeks of commencing her teaching position, that the Applicant was experiencing difficulties in classroom management and duty of care. She had received complaints from parents about the former and the kindergarten supervisor, Mrs Sue Wroe, expressed concern about both issues. 31The Applicant was required to attend a meeting with the Principal and Ms Janelle Guttenbeil, Assistant Principal, on Friday, 21 May 2010, minutes of which were tendered in the proceedings. The Minutes demonstrated that the parent complaints were advised to the Applicant (parents being told that it was their duty to teach their children sight words; not enough time being provided at recess as children had to learn the alphabet; negative language being used by her to the children; children not eating their lunch because they had to clean desks; children being left unsupervised on the veranda while she locked herself in the classroom; classroom noisy and chaotic while she sat at the computer oblivious to what was going on). She was also advised that both parents and staff had noted her late arrivals and early departures from the school. The Principal pointed out that it was a requirement that teachers hand in a program in every term. Despite being asked for it, the Applicant had not submitted her program for Terms 1 and 2 2010. 32The Applicant confirmed her attendance at that meeting and the issues discussed at that meeting during cross-examination. She agreed that the Principal had asked for a copy of her program for Term 1 in Term 1. She initially responded that it had taken her "a few days" to provide the program but later conceded that it was possible that she had not provided it until Term 2 2010. 33The Applicant also confirmed that the Principal provided her with detailed feedback on 2 June 2010 making positive comments as well expressing serious concerns about her ability to program. 34Ms Diane Twentyman, Assistant Principal, provided a statement in the proceedings in which she stated that she became aware that the Applicant was experiencing difficulties in the classroom in June 2010 and that she was being provided with informal support. 35The Principal held another meeting with the Applicant on 20 July 2010 at which Ms Janelle Guttenbeil was also in attendance. The Minutes of that meeting indicated that the Principal advised the Applicant that she had real concerns about her teaching and learning programs and practices and was not prepared, at that point in time, to sign off on her probationary period. The Principal had outlined the areas of concern to the Applicant. 36The Principal gave evidence that, as a result of that meeting, she received a request from Ms Guttenbeil to work with the Applicant to provide support three mornings a week from 9.10 am - 12 noon. Ms Guttenbeil had said to her words to the effect, "I really feel for her, can I work with her?" As a result of acquiescing to her request, the school paid for a casual teacher to replace Ms Guttenbeil who was taken off her own classes to provide that support to the Applicant. 37Ms Guttenbeil provided a report on 17 September 2010 in which she noted that the Applicant possessed only a basic knowledge of curriculum. The Applicant agreed that Ms Guttenbeil was not wrong when she wrote that the Applicant had attended several Best Start Literacy and Numeracy training sessions, taken part in professional learning sessions on Quality Teaching, attended weekly instructions sessions at school on IWB technology, and so on. Ms Guttenbeil recommended that the Applicant not be put on a formal TIP but that she continue to be supported for the rest of the year in an informal capacity. In the report, which was tendered in the proceedings, Ms Guttenbeil noted that there had been a marked improvement in the Applicant's teaching and her management of the children and that she had gained confidence. 38The Applicant agreed, during cross-examination, that she could not say of Ms Guttenbeil that she lacked compassion, or communication skills or professionalism. She said that when Janelle Guttenbeil stopped coming into her class, she was given no negative feedback and so felt that she was improving. 39The Principal stated that she still had concerns regarding the Applicant's teaching performance and duty of care and was not prepared to sign off on her probationary period. However, she was prepared to recommend the extension of the probation period by another six months and to allow her to be further supported. She tendered a copy of the T1 report dated 1 December 2010 she submitted regarding the Applicant. 40The Applicant said the news that her probationary period was to be extended to the end of Term 2 2011 upset her because she had not received any negative feedback for six months and had received numerous complimentary letters from parents of children she had taught in kindergarten in 2010. She said that the Principal made the comment to her at the end of term 4 2010, "Sue you are just here for the ride". 41The Applicant stated the Principal did not tell her that she had received a lot of complimentary emails from parents about her performance in kindergarten until the first week of term in 2011. She pointed out that, in addition to the emails received by the Principal, she had been told personally by many parents how much their children learnt in their first year with her and how glad they were that she was their teacher. Year 4 class 42The Principal stated that, due to her concerns about the Applicant's classroom management and duty of care of the kindergarten children, she decided that, in 2011, she would allocate the Applicant a class with more mature students. She recalled that she gave the Applicant an opportunity to choose the staff member she felt she could work well with. The Applicant chose to work with Ms Dubois who was teaching Year 4. She was therefore allocated a year 4 class of 10-year olds on the understanding that, during the 2010-2011 school holidays, the Applicant would meet with Ms Dubois to familiarise herself with curriculum outcomes and units of work. She understood that had occurred. 43Ms Twentyman was appointed as the Applicant's supervisor during 2011. 44On 18 March 2011, Ms Twentyman made a file note of a discussion she had with a student's mother as a result of her child sustaining an injury when he hit his face on a desk as a result of "aggressive behaviour" by student "S". The incident had been discovered by accident as the Applicant had failed to report it. 45 On 7 April 2011, Ms Twentyman checked the Applicant's program and commented that she had made a good start with her program but would like to talk to her about more detail being provided about what learning activities were taking place in the classroom in relation to English and Mathematics. She offered to share with the Applicant the manner in which she programmed her work, particularly in relation to those Key Learning Areas (KLAs). 46The Principal met with the Applicant, Ms Tash Gee (teacher/Teachers' Federation representative) and Ms Twentyman on 18 May 2011 to discuss strategies the school would put in place regarding issues emanating from her class. Ms Twentyman pointed out that the Applicant refused to meet in the afternoon and opted for a lunch-time meeting as she did not have any lunch time duty on that day. The concerns raised with her were - + students leaving the school grounds early The Applicant was advised that complaints had been received from other teachers and parents that students from her class were leaving school grounds before bell and walking/riding scooters out of the grounds. The Applicant responded that she had asked the students to wait on the class landing until the bell rang. She was instructed to keep the students in the class until the bell rang. + students not being supervised during class time The Principal had observed the Applicant's students, for approximately 40 minutes, running around the class landing, up and down the stairs and into the school lane while the Applicant was in the classroom. The Applicant responded that she had asked the students to complete their work. + the assembly item by 4M being of poor quality The assembly item was not only of poor quality but was also not what was expected at CPPS. The Applicant's response was that she had advised her students to do their best. 47The Applicant was absent on 19 May 2011. The Principal and Ms Twentyman met with the step-father of one of the Applicant's students and kept notes of the meeting which were tendered in the proceedings. He had attended to confirm the veracity of something his step-daughter had reported to her parents the previous evening. He said student "M" came home upset and wanted to buy the Applicant flowers because she had returned to the classroom after lunch and called her students "selfish" and "ratbags" because it was their fault she almost lost her job and why she was not going to be at school the following day. The student had actually bought flowers for the Applicant and brought them to school on that day. The step-father also complained that the Applicant was "unapproachable" citing an occasion when he had tried to talk to her about homework for his step-daughter and she had made excuses. He pointed out that there had been no homework sheets for several weeks. 48The Applicant was absent on sick leave on 20 May 2011. The Principal stated that, at recess, four children from the Applicant's class went to the front office and asked to see her. They wanted to know if they had caused the Applicant to lose her job. She addressed the whole class and explained that the Applicant was away on sick leave and would be returning to teach their class. Also on that day, the casual teacher who had taken the Applicant's class in her absence and who was aware of their standard having taught them at various times during 2010, advised the Principal confidentially of her concerns regarding the behaviour and learning of the students in that class. She advised that the students would just get up, walk around, throw things at one another and use poor language to address one another. She pointed out that there was no work ethic, and showed her examples of 2011 work demonstrating that it did not meet year 4 standards. The Principal made a file note of both incidents which was tendered in the proceedings. 49Ms Twentyman noted, on 24 May 2011, that at approximately 2 pm she could see the Applicant yelling at her students to get into the line outside their classroom and the yelling seemed to be having little effect. Another teacher, Mrs Marie Sirotic (the 3S teacher) commented that that type of thing went on all the time outside the Applicant's classroom. 50Ms Twentyman explained that an ICT Consultant visits the school once a fortnight to troubleshoot any computer or IWB problems. She was personally aware that the Applicant was having problems writing on the IWB and asked him to look into it during his visit on 2 June 2011. The Consultant had a talk later that day with the Schools Computer Co-Ordinator and asked not to be sent to the Applicant's classroom again pointing out that, on a previous visit earlier in the year, the Applicant left him alone with the children when the lunch bell rang and, not being a teacher, he had felt uncomfortable about child protection issues. He also described the class as a "rabble" when he went into it earlier that day. 51Ms Twentyman said she had cause to counsel the Applicant on 3 June 2011. She came across two of her students outside the classroom - one was on his way to the Library to undertake research and the other was in search of a teacher who was absent on that day. Student "S" was out on the steps of the classroom and she finally got out of him that he was supposed to be reading a book. Ms Twentyman said she entered the classroom and found it very untidy. The Applicant was picking books strewn all over the floor. Some children were missing supposedly doing "research", others were not on task but resumed their work upon her entry. An examination of Student "S" book demonstrated a below standard level of work. Ms Twentyman proceeded to the library where she saw the Applicant's students behaving inappropriately while the Librarian struggled to teach a class, supervise the Fisher Road children who integrate on a Friday and supervise the 10 students sent over by the Applicant to do research. The Librarian, Marilyn O'Carroll, complained that it was not the first time that the Applicant had sent her students to the library without supervision. Ms Twentyman sent the students back to the Applicant and then spoke to the Applicant at recess time regarding observing the correct protocol for the use of the computers in the library. The Applicant said she understood, would take the students herself to the library in future and had apologised to the librarian. 52Ms Twentyman reported on a meeting with Ms Laura Dubois, 4L teacher and Grade 4 Co-ordinator, on 6 June 2011, during which the latter complained to her about the Applicant's lack of duty of care, and management of, her class. Ms Dubois pointed out that a number of other teachers had also complained to the Applicant about having to reprimand her students at Assembly in her presence. Ms Dubois advised her that she had approached the Applicant and told her forthrightly that she had to do something about her lack of discipline and management skills and offered her some management hints and also offered to teach some lessons in her classroom to allow the Applicant to observe and model her management practices on hers. There was no evidence that the offer was ever taken up by the Applicant. 53Ms Twentyman reported on a phone conversation with a staff member, DM, who raised two issues with her - firstly, the fact that there were students in the Applicant's classroom running around, jumping up and down and touching the IWB in the room at 8.30 am on 13 June 2011 when they were not allowed to be in classrooms before school without teacher supervision. That matter was raised with the Applicant in the staffroom at the Wednesday morning staff meeting and her reaction had been "What can I do about it?" DM had suggested to her that it was her duty of care to go to the classroom and manage the situation which she did. Secondly, the Applicant had allowed one of her students to use her internet log in to access YouTube (YouTube is blocked by the DET for student log ins) and watch them with other students without being vetted by the teacher first. 54The Principal stated that she received parental complaints about the Applicant between May - July 2011 all of which had been documented and tendered in the proceedings. A handful of those complaints are set out below to demonstrate the type of issues involved: A. The mother of student "N" attended a meeting on 30 May 2011 and also provided a letter complaining that the applicant's classroom management and lack of communication skills had contributed to her son's declining behaviour and happiness. She recounted incidents resulting from the Applicant allowing the students out early. She and other mothers had assisted a girl who had fallen over and hurt herself badly and witnessed another boy narrowly avoiding been run over by a car. She and other mothers could also attest to the fact that the Applicant was continually shouting at the children. As a result, the Principal put the Applicant on notice, on 31 May 2011, that she would organise a "Letter of Direction" if the children were allowed to leave before bell. B. On 3 June 2011, the mother of student "N" opined that it was not worth saying anything as the children were being penalised for it. She stated that every day that week she had arrived early and heard the Applicant yelling at the children. She was making them stand behind their chairs with their bags on waiting for the 3.10 bell to ring. Ms Trisic stated that she rang EPAC in frustration on 6 June 2011 and, on their advice, called Scott Campbell of the Child Protection Unit for advice. C. On 17 June 2011, the parents of Student "S" met with the Principal, Barbara Montgomery (School Counsellor) and Robyn Cliff (ISTB) to discuss their son's progress at the school. During the discussion, the parents had expressed their concern at the fact that the Applicant would ask their son, within hearing of the whole class, if he had taken his medication. They advised that it was upsetting their son dreadfully and they did not want it made public that he was trialling medication. D. On 20 June 2011, the mother of student "M" complained to the Principal that she had organised an interview with the Applicant to discuss her concern that her daughter was not learning anything and was not getting homework. She complained that the Applicant was marking something at the time and never looked up at her and engage in conversation. E. On 22 June 2011, the mother of student "B" threatened that her son would leave the school if he was not moved to another class as there was no learning occurring in the Applicant's class which was displaying shocking behaviour and he was bottom of grade let alone his class. 55The Principal decided to commence a five week informal support plan for the Applicant and arranged a meeting with the Applicant to commence the program. The Applicant recalled that she was required to attend a meeting with the Principal, Ms Twentyman and Ms Lizzie Smith (the Applicant's Support Person) on 24 June 2011 during which she was advised that a parent had complained about her because she had refused to allow her child to leave school before the bell rang. The mother had insisted on taking her child and did so. The Applicant could not recall such an incident, particularly in the absence of any identification of either the mother or the child. Once again, the Principal advised her that seven families from her class were leaving the school. The Applicant pointed out that she had heard that before and it never happened. She could not understand why the Principal allegedly replied, "I take that as a threat". 56The Applicant pointed out that despite the fact that she was constantly told by the Principal and Ms Twentyman that she was in charge of her class, the actions of the Principal contradicted that advice. She said that her gut feeling at that time was that she was being set up to fail with the children in her class and, on reflection, she believed she was right. She said that the children were "acting out difficult behaviour" She provided examples of when she felt undermined by the Principal: (a) A few boys (W, N and S) started to leave her class and, upon being questioned, advised that they were going to the Principal's office because she had told them that "we can go there anytime we want to". She said she refused to allow them to leave the classroom pointing out that she was the teacher during class time and told them they could go to the office at morning tea or lunch. During cross-examination, she denied that she said to them "I don't care what Mrs Trisic said, you're not going." She also denied saying to the children that they were responsible for her losing her job. (b) She went to see Ms Twentyman, an Assistant Principal, in relation to student "N" calling her a "retard" because he did not like being cited on the behaviour chart as a warning for calling out or back-chatting. As she was telling her about this, the Principal walked in and both women started to chat about something else and her problem was ignored. She walked out feeling that she had not been supported. (c) She was called in to see the Principal during Term 3 2011 and advised that one of her students (S) refused to accept that his actions (she could not recall if he had been calling out or throwing something) constituted a strike despite receiving the requisite warnings under her behaviour management system. She found it odd that the Principal would accept the word of a child over hers. (d) She sent a number of boys to the office for misbehaving in class (back-chatting her, swearing, walking around the class and so on). When they returned, they bragged to her that "We didn't even get into trouble; she [meaning the Principal] asked us questions about what's going on." During cross-examination, the Applicant admitted that she sent them on a few occasions and it was on one occasion only that they came back and said that. She denied that she told the students that they were responsible for her losing her job and, if they told their parents that, they were mistaken. Informal Support Plan 57The Applicant was put on a 5-week Informal Support Plan in the period Monday, 27 June 2011 to 18 August 2011. However, owing to a period of absence by the Applicant (from 28 June - the end of term on 1 July 2011) and school holidays in between, its completion was delayed. It resumed in term 3 (on Monday, 18 July 2011) and was to conclude on Friday 19 August 2011. Nevertheless, it concluded one week short with the knife incident described below. 58On 27 June 2011, a meeting was held between the Applicant and Ms Twentyman during which the latter provided feedback on the former's lesson plans. Ms Twentyman stated that she had provided the Applicant with a copy of her spelling routine, gave her the weekly routine notebook and spelling notebook for the IWB that she used when on class and also showed her how to use some Maths and Spelling games on the Interactive whiteboard (IWB). 59On 20 July 2011, Ms Twentyman observed a maths class conducted by the Applicant and then provided her with written observations in which she had provided both positive comments as well as suggestions for improvement. Ms Twentyman reviewed a number of other lesson plans conducted by the Applicant in the period 25-29 July 2011 and provided both oral and handwritten feedback on the lesson plans. 60The Applicant stated that the Principal sat in on a 40-minute lesson on quotation marks which she conducted with her Year 4 class on Friday, 22 July 2011, following which she commented "That was a good lesson". 61The Principal stated that parent emails containing complaints about the Applicant had been provided to her on 22 July 2011. She recalled that the Applicant sought a meeting on 25 July to address the contents of the emails. Given the dates on the emails, it is obvious that the Principal had provided the wrong dates in her statement. Nevertheless, the emails existed, they were tendered in evidence, and contained very disturbing accounts of continuing poor management of classroom behaviour, the Applicant's behaviour towards the students (slamming books down on the students' desks, the on-going threat to children regarding losing her job, shouting at the children for letting her down over the presentation at assembly, and so on). 62The Applicant acknowledged that, on 25 July 2011, during a feedback meeting with the Applicant and her support person (Lizzie Smith), the Principal and Ms Twentyman, the Principal had advised the Applicant of parental complaints received by email about her. The Principal told her she was being afforded "special privilege" by being allowed to read them but she was not allowed to take copies. As she wanted to reply to those emails, the Principal provided her with copies of the emails to look at with Ms Smith. She spent until 7 pm reading them and writing responses to the then Director of Education, Ms Trish Gillette, copies of which she left for the Principal. In her response, the Applicant outlined the classroom management strategies she had adopted on a suggestion from the Behaviour Modification Team within the Department. The disruptive children were on a "three strike" system. She had a set of traffic lights with a first and second warning and then a consequence. The consequence was chosen from a list provided from each student and recorded on the program of the three things they did not want to miss out on (for example, play, art, a game, etc). 63She returned the copies of the email complaints that evening. She recalled the complaints and her responses as follows: (a) One parent complained that her son could not sleep at night because he was worried about the class. The date on the email suggested to her that the reason he could not sleep was because he had, a week earlier, cut a name tag from another child's jumper and taken the jumper home for his sister. She had suggested to her class that they might want to tell her in private if anyone knew what happened to the jumper. She said that the student admitted to her later in private what he had done. She asked him to bring it back and it took him three days to do so because he could not reach it as it was on top of his sister's cupboard. (b) Another mother complained that her son (another "N") had not learned a single thing all year. The Applicant pointed out that the boy had topped all of Year 4 in Maths and was well up there in literacy. She pointed out he had behaviourally-challenged classmates who caused disruption and affected other children.. One child in particular ("S") was suffering from Oppositional Defiance Disorder (ODD) and he was not stabilising despite taking medication for ADHD. He therefore caused constant disruption to the class. The Applicant pointed out that this ODD child had brought a knife into the school, often had sharp objects in his pocket (obtained from the building site on the school grounds) and poked other children with them. That child would hurt other children in the class physically or by name calling and observing that he was difficult to manage was an understatement. He only had one friend in the class. (c) A parent complained in another email that the Applicant had not read a letter she sent in with her daughter ("M") straight away in the morning. The Applicant conceded that she had not but explained that it was because the child had already told her that she had a tick on her head from the previous weekend and she kept an eye on her that morning. The mother also complained that her daughter was not getting enough homework. That student was new at the school and was the brightest student in her class. The Applicant argued that she gave all her students the standard amount of homework and marked it on a weekly basis. She recalled that the student's father came in one afternoon, without an appointment, and also indicated that he did not think that his daughter was getting enough homework. She had offered to set more homework or suggested that the student could do some extra research or "Mathletics" of her own accord. The Applicant stated that although she was not worried, she was annoyed at not receiving a response from Ms Gillette because she had spent hours responding to what she considered to be "trivial " complaints. 64The Applicant agreed, during cross-examination, that she was aware that even after that first tranche of complaints were provided to her, that there were subsequent complaints by parents. She objected to the fact that the issues were not raised with her as they occurred - they were raised with her as a group which she considered to be a "bombardment". 65Ms Twentyman observed the Applicant's Maths class on 28 July 2011 and provided her with a written report which, once again, set out the positives as well as areas for improvement. She also provided oral and handwritten feedback on her review of the Applicant's lesson plans and supporting documents in the period 1 - 3 August 2011 and 8-12 August 2011. 66 Ms Twentyman was present with the Principal at a meeting with a parent who was threatening to remove his child from the school. In the notes kept by Ms Twentyman on 1 August 2011, she noted that the parent stated that no learning was occurring, things were being thrown around the room and it was an accident waiting to happen. He advised that he and his wife were not prepared to wait for something to happen before they took action. He stated that were not wanting their daughter, "M", there when it happened. The Principal asked the father to voice his concerns in writing to the School Education Director (the SED) and undertook to move his daughter to another class if no action was taken by the SED. 67On 8 August 2011, Ms Twentyman sent the Applicant a note pointing out the difficulty in supplying the applicant with constructive feedback on her lesson plans when they were provided to her on the morning of the actual lessons as that did not give the Applicant time to take in any suggestions or changes she might make to the lessons before they were delivered. 68Despite the fact that the Applicant was still viewed as having difficulties, the 5-week Informal Support Plan was suspended on 15 August 2011 as a result of the incident described below. The Knife Incident 69The Applicant was still on the informal five week support program when, at approximately 11.20 am on Thursday, 11 August 2011, Student "S", the Year 4 child with ODD, brought out a knife from his bag just after recess when all the other students were putting their lunch boxes and drink bottles away in their bags. The Applicant described it as having a blunt curved blade and a pointy tip. He said to another boy "come any closer and you are going to get this in the stomach" or "come any closer and I'm going to stab you with this in the guts". The other children started screaming and calling out that "S.... has a knife". When she went to retrieve the knife, he quickly shoved it in his lunchbox and put it on his desk saying "No, you don't". 70The Applicant said that she took the lunchbox and, initially, placed it in the bottom drawer of her desk but thought better of it because, on many previous occasions when she had confiscated objects from him, he had pushed her out of the way and pushed her work off the desk as he retrieved his things. She considered putting the knife in her handbag but recalled that two days' earlier, "S" had unzipped her bag and answered her ringing mobile telephone. She decided, instead, to ask two responsible boys to take the knife, and a yellow card on which she had written that "S" had the knife, to the office. She said she placed the knife on top of the card and told "N" to hold the card with his thumb on top of the handle and discreetly walk it up to the office. However, "S" saw the boys walking towards the door and, perhaps thinking they were going to dob on him, ran towards them saying "Oh no you don't" and retrieved his knife. During cross-examination, the Applicant argued that she did not consider it to have been a scuffle but agreed that "S" had "grabbed the knife back" from the boys. 71The Principal stated that one of the boys from the Applicant's class went running into the front office screaming that "S" had a knife. 72The Applicant said the class started getting restless again and she was running her eyes around the class trying to settle them down when the Principal walked in and asked to speak to "S" who, by now, was out of control and calling out, "I don't know why I brought the fucking knife to school". 73The Principal said she proceeded to the Applicant's classroom where she found "S" standing behind his desk upset, distressed and shouting that she could not search his bag and he did not know why he had brought a knife to school. She observed the Applicant screaming at the children and then yelling at "S" saying words to the effect, "you are stupid, this is all your fault". 74The Principal said she instructed her to stop yelling at "S", she asked the other students to stand behind their desks and asked them to leave the room one group at a time. It was in response to a question from the Applicant, "what should I do?" that she instructed her to take the rest of the class to the playground and play a game. She then turned her attention to "S" and commenced to calm him down. The Applicant argued in the proceedings that the Principal should have taken "S" out and left her indoors with the rest of the students as it was a very hot and it was close to midday. 75The Applicant said that, approximately 20 minutes later, the Principal brought "S" out into the playground and said to her, "You have a phone, why didn't you ring? Why would you give a child a knife?" The Applicant said she was not given an opportunity to respond before the Principal said, "It's all over, Sue". She said she did not know what that meant. The Principal remained with the Applicant and her class for another 15 minutes until the lunch break when the Applicant took her students back to the class. The Principal suspended "S" from school for two days for aggressive behaviour (Friday 12 August and Monday 15 August 2011). 76A detailed report, together with the reports provided by some of the students, were tendered in the proceedings. The student reports were very disturbing to read. 77 Whilst the Applicant conceded that it may not have been the correct course of action to take, she had been concentrating on getting the knife out of the room in order to settle the children down. She pointed out that the knife incident should not be taken out of context as children used sharp scissors they brought from home on a daily basis in class lessons and they, too, can be misused and can cause injury. She pointed out that the Principal was aware that it was not out of character for the said student to jab other students in the class in the back, hurting them with sharp objects that he had in his pocket. In fact, she had taken a sharp metal object (sharper than the knife in question) from that boy and given it to the Principal in the first term. She denied that she had wrestled with "S" to take the knife off him and she also denied seeing that knife on more than that one occasion. 78The Applicant explained in her statement that the Principal had promised her, since the first term, that a phone was going to be installed as it was easier to telephone than to send a child to the office with a yellow card. It was not installed until the afternoon before the incident. However, no card was supplied with the relevant telephone numbers until later that afternoon. 79During cross-examination, the Applicant argued that there were no shelves in her classroom that the child in question could not reach and she could not reach the top of the whiteboard in order to place the knife. She agreed that she could have used the card system or she could have sent a note to a teacher in the next or nearby classes but had decided to get the knife out of the room by sending it to the Principal with the two boys. She agreed that, in hindsight, it was not appropriate to give the knife to the boys and that she had all the time in the world to consider what to do with the knife as she had possession of it. She argued, nevertheless, that the knife was question was "no more dangerous" than the scissors used by the pupils but she took the knife off him and not the scissors because "a knife... is conceived to be a weapon". She agreed that it was luck that no-one got hurt because of the decision she made on that day, that it was not ludicrous that the Principal would be concerned about her giving a knife to two students to take in to her and that it was a very serious duty of care issue. 80The Principal advised that she took a decision to remove the Applicant from her position as classroom teacher and place her into the RFF position from Monday, 15 August 2011. Relief Face to Face Teaching 81The Applicant said that before school commenced on 11 August 2011, Ms Smith gave her a message that the Principal wanted to see her and the other Year 4 Teacher, Laura Dubois, in her office after school. It was the day of the knife incident recounted above. They had not advised what the meeting was about. The Applicant thought that the meeting was about one of her students, another "S", moving into Ms Dubois' class because he had complained constantly of two girls touching him on his private parts. She said she was sick of those complaints because she never witnessed it happening but the Principal agreed with her that he ought to be moved having made allegations of sexual harassment. 82The meeting was attended by the Principal, the Applicant, her support person, Ms Lizzie Smith, and Ms Anna Sulfaro who took the minutes of that meeting. 83The Applicant said that when she and Ms Dubois attended the Principal's office at 3.30 pm, the Principal said to Ms Dubois, "I am directing you to teach Year 4 and Sue will be doing RFF" from 14 August 2011. She said that they both sat there in confusion. It meant that she would have every one of the 23 classes (in 2012) once a week and therefore would have the difficult children once a week for 1.5 hours rather than all day every day. The Principal made it clear that the move would provide the Applicant with an opportunity to rebuild her relationships with the parent community. she added that she did not expect the Applicant to prepare 22 different lessons. Rather, the teachers in each grade would get together and decide on a subject and the Applicant would teach one subject/unit to the whole grade. The Principal also advised that the informal support plan would cease and that the Applicant would henceforth be supervised by Ms Smith. 84During cross-examination, the Applicant confirmed that the Principal advised her, at that meeting, that parental concerns and duty of care issues had become overwhelming. 85The Applicant said she felt relieved with the transfer and they spent the weekend switching classes. She said she loved her RFF job and found it refreshing seeing all the children as she went from class to class. She said that the five week informal support program was cut short, with only one more week to go, as a result of the above incident. In the absence of any feedback in relation to the part of the program undertaken, she assumed that she had performed satisfactorily. 86Ms Twentyman said that Ms Tash Gee, another teacher, raised a concern with her about the Applicant on 17 August 2011. In the file note kept by Ms Twentyman, it was noted that the Applicant was taking class 6G for Computer RFF. The lesson had already been set up by Ms Gee as a notebook with hyperlinks to some commercials on coffee as the lesson was about caffeine from the Drug Education Syllabus. Ms Gee had already vetted the commercials to ensure that the contents were appropriate for the students. Apparently, during the lesson, at the suggestion of one of the students, the Applicant allowed a YouTube clip, not vetted by herself or anyone else, to be put on the IWB. The students later reported to Ms Gee that the Applicant "had no idea what to do in Computer lessons". As it turned out, the YouTube clip was not appropriate for that class. that was the second occasion that the Applicant had allowed YouTube clips to be viewed in her class despite all teachers twice being alerted to that requirement, the last alert being provided after, and as a result of the Applicant allowing 4M to download and show YouTube clips randomly in class. 87On 24 August 2011, Ms Gee reported to Ms Twentyman that the Applicant had told students in her class about disciplinary measures she had taken against a student in 4S. Ms Gee wanted her to know that she had spoken to the Applicant and advised her that it was inappropriate to involve her students as it was none of their business. 88The Applicant said that Ms Smith wrote a positive report on her RFF program. For some reason, the report was not on her program folder when it was assessed by Ms Twentyman. The Applicant had a meeting with the Principal after school at the end of Term 3 on 16 September 2011 for what she thought was her Teacher Annual Review (TAR). She recalled that the Principal said she was happy with her work when she indicated how happy she was doing RFF. She advised the Applicant that she would continue on RFF indicating that "I wouldn't do that to you" in relation to giving her a class. The Applicant was offered a choice of either 3 days or five days a week. As she had been under a lot of pressure, she thought three days would be ideal reasoning that she could always apply in the future to return to five days per week. The Principal assisted her in her application for three days per week. 89The Applicant said that Ms Smith had her meeting straight after her and then texted her to say: Hey Sue, it's so wonderful that Suzanne has decided not to put you on 10 week plan. I am very excited that you have options. I reckon u should stay on RFF and apply to go part time 3-4 days. Long weekend every weeks sounds awesome to me. bet Pete would like that too. Thnx for looking out for me today plus doing the finishing of the artwork. I really appreciate it. have a fab weekend. Early to bed for this little black duck. Lizzie xxxx 90Upon resumption from a 2-week holiday, the Applicant had the Year 4 class for RFF between recess and lunch in Week 2, Term 4, on Tuesday, 18 October 2011. She sent a student, "N", to sick bay as he said he had a headache. She wrote a report about that issue. The Principal came into her classroom and asked if everything was okay and when she replied "yes", the Principal left the classroom. There was no further discussion about it and the Applicant did not become aware that it was an issue until she received an email at home on 26 October 2011. The Applicant said that she saw the student at the medical centre on 27 October and he told her that he was getting blood tests to determine whether he had glandular fever because he was suffering a lot of headaches lately. She was convinced that the headache on that day was a regular headache and not one obtained from using a calculator. 91The Principal had in a report, dated 18 October 2011, stated that a support person would be provided to manage "S", whenever the Applicant had his class in future. The Applicant pointed out that the support person was supposed to be the Principal or the non-teaching Assistant Principal. That support was never provided. 92On Thursday, 20 October 2011, the Applicant went to see the Principal about doing a course. The Principal took the opportunity of saying to her "While I've got you here, I know you've got a case going with Federation and I have to give you 48 hours notice.. So, I will give you a letter on Monday". She refused to elaborate pointing out that she "would prefer it to be minuted". The Applicant pointed out that, at lunch time on that same day, the Principal had said to her "I was happy with you last term". Formal TIP 93The Principal pointed out that, having regard to her responsibility for the provision of educational leadership in the school, she still had concerns about the Applicant's teaching performance despite the significant amount of support that had been provided to her. She also had an obligation, if a teacher was experiencing difficulties with their teaching and duty of care, to ensure that guidance and support were provided through a formal TIP. She decided to place the Applicant on a TIP in accordance with the Procedures for Managing Probationary Teachers Who are Experiencing Difficulties with Their Teaching Performance. 94The Applicant said she was on tenterhooks and therefore, by Sunday, 23 October 2011, could not help emailing the Principal to ask what the meeting was about. On Monday morning, 24 October 2011, she opened an email from the Principal before commencement of school in which she was advised that she was to be on a 10 week formal TIP. In response to her email request, she met with the Principal before school to obtain reasons for that decision to clear up her confusion in light of the conversations with her and Ms Smith at the end of the previous term. The Principal said she could not be sure that the Applicant would stick to the 3 days per week in 2012 and would not change her mind and want to do five days. The Applicant repeated that she would stick with the three days and the Principal indicated that she had a "big decision" to make that day - that is, allow the Applicant to do three days per week on RFF or go on a formal TIP. 95A meeting was held that afternoon at which the Principal, Mrs Twentyman and the Applicant were in attendance. Mr Peter Vlug, the Applicant's partner, attended as her support person. The Applicant said that the Principal told her that she had received complaints from six teachers about her class room management but was not prepared to tell her from whom and what the complaints were about. Mrs Twentyman pointed out that, while she had a right to talk to fellow teachers about anything, "the teachers have a habit of taking things straight to the Principal". The Principal proceeded to give her an example. She had received a complaint from a teacher, Tash Gee, that the Applicant had allowed Year 6 students to watch YouTube. The Applicant recalled that she was instructing the Year 6 class on drug education and the advertisements were highlighting coffee as a drug. One of the boys moved the mouse and clicked onto something - a picture appeared of a fully clothed boy hugging a girl. Apparently it was an alcohol advertisement. She said she turned it off as soon as she noticed it. To her it was not a big issue. The Applicant said that both the Principal and Assistant Principal had looked at her and the Principal said, "I am not questioning you as a person, friend or mother but I am questioning your teaching ability and classroom management skills". The Principal handed her a letter dated 24 October 2011 indicating that she had decided to put her on a 10 week TIP. The Applicant described herself as "totally devastated" when she said to the Principal "I feel like you have just kicked me in the guts" to which the Principal allegedly replied, "I know". The minutes provided of that meeting do not include any mention of most of the matters recalled by the Applicant as being discussed at that meeting. 96The Applicant stated, in her statement, that later that night she messaged Tash Gee to point out that they had already spoken about the YouTube incident and she had already explained to her that it was an accident. She pointed out that there was no need to raise the matter with the Principal as the latter was documenting everything about her. She also pointed out that, as a Teachers' Federation representative, she was supposed to support teachers and not dob on them. 97The Applicant was absent on sick leave from 25 October 2011 until 6 November 2011. 98The Applicant said she rang in sick on Tuesday, 25 October 2011 and consulted Dr F Cheung the following day. He certified her as unfit for work for both days. She returned to the Medical Centre and consulted Dr J McCririck on Thursday, 27 October 2011 and he certified her as unfit for work until Friday, 4 November 2011 citing "anxiety state" as the reason for absence. She said she had felt "wobbly", "not able to move", "upset", "unable to focus" and "wasn't feeling balanced". She had declined an offer by Dr McCririck to refer her to a psychiatrist. 99On 31 October 2011, the Applicant said she checked her emails and responded to one from the Principal about the 4S incident on 18 October 2011, the student who was sent to sick bay. She agreed to having either the Principal or the non-teaching Assistant Principal sit in on her RFF classes with 4S to appease a concerned parent. 100She was feeling a little bit better and decided to return to work on Tuesday, 1 November 2011. The Applicant said she was taking her first class when the classroom telephone rang. The class teacher, who was present, Anne Chen, answered the phone and, to her humiliation, advised her that the Principal wanted to see her in the office immediately. The Principal was with Mrs Twentyman. They advised her that she had to go home because her certificate certified her as unfit until 4 November 2011. She said that she felt alright but admitted that, having been pulled out of class, she was back to "feeling out of sorts again" and unable to function properly. She stayed for a while at school organising a few things before she went home. 101She said that later that afternoon, and every afternoon after that, Mrs Twentyman telephoned her to find out if she was coming back to work the next day and got the same answer every time, that she would comply with the medical certificate and remain at home to recuperate until 4 November 2011. She said that she did a lot of sleeping, crying and a bit of meditating. In addition, she sourced telephone counselling through the Employee Assistance Program (EAP). 102The Applicant said that when she returned to work on 7 November 2011, she met with the Principal and Mrs Twentyman yet again. The Principal handed her another formal letter regarding her alleged failure to notify planned/unplanned absences. She said she replied that she never planned absences but only ever got sick when she received letters from her about which she had no prior knowledge. Despite the comment in the letter about the Principal being concerned about her health and welfare, she said she felt that she had been kicked in the gut yet again. 103In the letter dated 7 November 2011, the Principal advised the Applicant of her concern about her health, welfare and compliance with Departmental procedures. She reminded the Applicant of previous oral advice from Ms Twentyman of the need to inform the school of her resumption of duty or continuing sick leave by 3 pm the previous day as failure to comply would create administrative difficulties and can disadvantage the education and welfare of students and impact on the workload and morale of colleagues. 104The Applicant said she attended a meeting with the Principal and Ms Twentyman on 8 November to negotiate the formal TIP plan. Mr Vlug was also in attendance as her support person. She acknowledged receipt of a range of documents about the plan at that meeting. The Applicant said she asked what options she had if she did not want to undertake the TIP and the Principal had replied that she could resign. The Applicant said she went home, felt too ill to eat and went to bed crying. 105The Applicant commenced the formal TIP on 14 November 2011. Ms Twentyman was her supervisor on that program and provided her with the resources on the topic "The need for shelter" (concerning human society and its environment) together with a list of different resources that she had used in previous years for that unit of work. Ms Twentyman pointed out that it was usual in the first two weeks of a TIP not to undertake assessments but, rather, to provide "support and diagnosis" lesson observations which she did in writing. Her lesson plans were reviewed by Ms Twentyman on 14 - 17 November 2011 inclusive. The Applicant failed, on Monday 14 November, to hand in her RFF Teaching and Learning Program as required by the TIP. The Applicant failed, on Wednesday 16 November, to hand in her Friday lesson plans. The Principal observed her class on 15 November 2011 and provided her with feedback in the form of an observation report. 106Ms Sarah Ann Boyd (nee Lisney), Assistant Principal, provided a statement in the proceedings in which she advised that she was asked by the Principal to observe some of the Applicant's classroom lessons under the TIP. She said that prior to that, the Principal asked her to provide the Applicant with any resources she had on the topic "The Need for Shelter" as she had been teaching that grade. She said she provided the Applicant with several different resources she had used in previous years for that unit of work. On 17 November, Ms Boyd provided the Applicant with a written report on her observations on her Human Society and its Environment lesson, "The Need for Shelter". 107The Applicant agreed that a number of formal meetings were held with her as part of the TIP program and that one such meeting was held on 17 November 2011 at which she, Mr Vlug, Ms Twentyman and Ms Boyd were present. She was given the option to provide written comments but chose not to. The Applicant failed, on Thursday 17 November, to hand in the following Monday's lesson plans. 108On Friday, 18 November 2011, Ms Twentyman reviewed the Applicant's RFF Teaching and Training Programs including some of her students' work samples that the Applicant had provided and then met with her to provide her with feedback prior to writing a report to the Principal regarding week 2 of the Applicant's TIP. The Applicant failed to provide her lesson plans for Monday 21 November and Tuesday 22 November. In her report on the meeting with the Applicant that day, Ms Twentyman noted that the Applicant had admitted that she had not read the TIP carefully and had not prepared her lesson plans for the following week to hand in to her. She said that the Applicant told her that she needed to sleep after school every day and was too tired to do what was required of her. Ms Twentyman had suggested that she finish her lesson plans over the weekend and hand them in to her on Monday morning. She would not comment on the Monday lesson plans as she would be teaching them on that day but would comment on the next day's plans as an observation was set down for that day. Ms Twentyman reported that she had gone on to provide advice and tips to the Applicant but it appeared that the latter was having difficulty understanding what was required of her. 109Ms Twentyman concluded that she would not like to see the Applicant reinstated as a teacher as she did not believe that the Applicant met the standards required for the position she held. 110The Applicant confirmed that she participated in the TIP for approximately two weeks, with supervision, staying up until 2 am or 3 am each night preparing lesson plans and making aids. She thought it was a ridiculous expectation to have her lesson plans submitted to Mrs Twentyman two days in advance when one day would have sufficed and would have been more realistic; to re-program for Year 6 for whom she had programmed child protection for the whole term; to re-program for Years 3 - 5 inclusive for whom she had programmed drug education for the whole term, and, in addition, to program by the Healthy Harold book. She felt that "something was wrong with me" as she "didn't feel right", she was "not really there", she "wasn't really functioning properly", she was "being carried", she was "anxious". 111The first fortnight of support and diagnosis lesson observation over, the TIP was to go into the assessment stage when the Applicant proceeded on sick leave and basically did not teach at that school again. The Applicant said she consulted Dr McCririck on Sunday, 20 November 2011 as she was feeling unwell. Dr McCririck provided her with a medical certificate citing "stress" and "unwell" as the causes. She then commenced a period of sick leave between 21 November 2011 and October 2012 during which she consulted a number of doctors at the medical centre, including Dr R Pamplin who suggested to her that she consult a psychologist at the centre and provided her with a referral to Tanya Bonner. 112The Applicant stated that, in the interim, she met with Trish Gillette who organised for Angus Meikle, Injury Manager, to contact her. He suggested that she arrange for her doctors to provide her with Workers' Compensation Medical Certificates for those absences. She complied and obtained certificates for the periods 25 October - 6 November 2011 and from 21 November to 17 December 2011. She said that her GP told her that he did not want her to undertake any face to face teaching. 113She attended the two staff development days on 19 and 20 December 2011 (the last 2 days of term when no children attended school) in order to find out what KLSs she would be teaching for each grade in 2012 but, as it turned out, it had not yet been decided. 114The Applicant obtained another medical certificate for the period 23 December 2011 to 25 January 2012. On 25 January 2012, she returned to see Dr Ramplin as she was feeling sick in the stomach, feeling as though she was "being stabbed in the guts", at the prospect of returning to work. She was provided with a certificate certifying her as unfit for work for the period 26 January 2012 to 17 February 2012. She returned to the centre and obtained another certificate for the period 16 February 2012 to 8 March 2012. In the interim she consulted the psychologist on about five occasions and found those consultations beneficial. On 1 March 2012 when her statement was taken, she declared her intention to return to her GP to obtain a further certificate declaring her as unfit for work as she did not think she could return to work at that time. 115The Department's procedures for TIPs indicate that there is a maximum period of 20 weeks in which the TIP is to be completed. The formal TIP was delayed by the Applicant's sick leave and then workers' compensation claim. It was not until 5 December 2012 that the Principal provided a report on the Applicant's TIP in which she recommended that the Applicant be determined as not satisfying the requirements for the position held. The 10-page report provided by the Principal was tendered in the proceedings and detailed all the assistance provided to the Applicant upon commencement and continuing; the formal complaints made about the Applicant and the support provided by the School to assist her in that regard; the 5-week informal support plan; the RFF plan; and, finally, the formal TIP and the fact that the Applicant had completed only 2 weeks of the 10-week formal program; the extension of the probation period to the end of term 4 2012. The Report went on to detail the areas in which the Applicant showed some improvement and those areas which showed no improvement. 116The Principal concluded that she would not like to see the Applicant reinstated as a teacher as she was of the opinion that the Applicant does not meet the standard required for the position, even on a casual basis. Support and Assistance 117In her application to the Commission, dated 31 May 2013, the Applicant wrote "The employer failed to recognise and provide the support the applicant needed in order to enter the workforce 27 years after her original training". 118The Applicant pointed out that she was entitled to have three induction afternoons. However, the Principal allocated her one hour only at the end of Term 1 2010. She and another temporary kindergarten teacher had the induction with a teacher, Mark Wallace. 119During cross-examination, the Applicant agreed that an informal meeting was held on 30 June 2010 with the Principal and Assistant Principal during which they raised with her their concerns about her teaching and learning programs and practices. The Applicant said that the Principal said to her, on that same day words to the effect, "I have been documenting everything". 120The Applicant said that the Principal told her that she was not happy with her programme format. The Applicant replied that she had no idea what was expected of her because she had not been provided with guidelines to which, she said, the Principal replied, "Well, that's up to you to find out." 121The Applicant was cross-examined in relation to the allegation that she had not been supported at that school. She agreed that it was her decision to accept the position at CPPS having waited 27 years for a permanent placement. She conceded that during those 27 years, she worked just under eight years in the Catholic system, and 12 years in the government system (from 1998 - 2010) as a casual teacher of which two years were full-time (teaching Year 2 at Harbord Primary and teaching Year 1 at Wheeler Heights) before reverting back to three days per week as a casual teacher. She also conceded that during those long periods of employment (both full-time and casual), she had to manage a class, undertake programming, discipline children and deal with parents. She agreed that she had not considered herself as a "beginning teacher" but, rather, considered herself as "a fairly experienced teacher". 122The Applicant reluctantly conceded that she had been provided with the following support and assistance when she commenced her full-time employment in 2010 - (a) Two days without classes at the beginning of the school year in 2010 to become familiar with kindergarten procedures and planning. It involved meeting with the other kindergarten teachers for some of the time to discuss what they intended to do with their classes. She argued that she did not consider that time to be support and assistance; (b) She was provided with the first few weeks of planning term and yearly overviews by the school. She argued that she was not treated differently from the other kindergarten teachers; (c) She was provided with a list of big books but argued that it happened at all schools; (d) She did one full day of best training but argued that it was necessary; (e) She was not rostered on to playground duty for the first three weeks but argued that the same was afforded to all he kindergarten teachers; (f) Also in the first three weeks of school, the kindergarten classes finished half an hourly early compared to the normal classes in order to meet with the other kindergarten teachers to de-brief and discuss issues and to prepare for the following day; (g) She attended weekly meetings held throughout the school year to discuss events and activities; (h) Ms Chris Graham, Northern Sydney Best Start Consultant worked with her during terms 1 and 2; (i) Ms Natasha Guy conducted the 101 technology afternoons for about six weeks to support her technological skills; and (j) Ms Janelle Guttenbeil worked with her for two mornings a week for four weeks. The Applicant argued two points - firstly, that she had not been afforded special treatment as all the kindergarten teachers were provided with the above. Secondly, she argued that the support and assistance she received were not provided directly by the Principal 123Ms Twentyman, was the Applicant's supervisor in 2011. In relation to support and assistance in 2011, the Applicant agreed that: (k) She had the help card system which, she argued, she had created herself, in relation to a particular student, "S". It involved the Applicant sending another student with the help card to the front office if she needed assistance with him and either the Principal or Ms Twentyman would attend the class; (l) Ms Twentyman argued that the Applicant had lower student numbers (24/25) as opposed to the other year 4 teachers (up to 30 students). The Applicant argued that she had 27 students when the other 4 classes had 30 to make up for the fact that she had student "S"; (m) Mrs Shell Foley, the head consultant for itinerant behaviour, provided her with strategies to support classroom management and she provided her with assistance to address the students in class 4M; (n) Robyn Cliff, another Itinerant Behaviour Specialist, worked in the classroom with the Applicant and provided her with strategies to manage not just student "S" but the whole class; and (o) The school provided her with a five week informal support plan (which ended up being four weeks because of the late start due to her illness and an incident involving "S" towards the end). The program involved another teacher, Diane Twentyman, attending and observing her class, providing feedback on her class, her programming and class preparation. 124The Applicant wrote to Mr Schipp on 24 April 2013, in response to an opportunity to reply to matters that had been raised against her. She acknowledged that she told Mr Schipp that "I feel that I have the necessary skills and knowledge to support the programs within any skill... to significantly enhance the learning outcomes of students I teach." She agreed that she had not told Mr Schipp that she was struggling and needed assistance. She claimed that it was not she who had not written that statement in her application to the Commission. 125In relation to what support she required, the Applicant nominated support and assistance with interactive whiteboards because, as a casual, she could not log on those. She admitted that the Principal was providing her with guidance in that regard and had commented that she was improving. The Applicant had also asked to be advised of those areas where she fell short. She agreed that she was told in what areas she needed improvement but contended that she was not shown how to improve. She said that while she was working with Dean White, she undertook a lot of professional learning and up-skilled herself. 126She said she had been told about her programs not being satisfactory but was not given guidelines or advice on how to improve them. She had described the Principal's actions in advising her that she was unsatisfactory as "totally destructive". During cross-examination, she thought that, perhaps, "undermining" would be a better description. 127The Applicant agreed that she wrote that, by December 2010, "....the real issue is not my competence as a teacher but the lack of compassion, communication skills and professionalism of the Principal in handling the matter". During cross-examination, she considered that she did not have a problem because she felt she was teaching well. She explained that the problem was what she perceived as the Principal's lack of communication skills in dealing with her and lack of experience as a Principal. 128She confirmed that when she attended a meeting with the Principal on 21 May 2010 to discuss concerns the former had with her performance and her ability to program, the Principal had asked for a copy of her program for Term 1. She initially responded that it had taken her "a few days" to provide the program but later conceded that it was possible that she had not provided it until Term 2 2010. She agreed that the Principal sent her a note on 2 June 2010 setting out feedback on her program and recommendations. 129The Applicant also confirmed that the Principal met with her in July 2010 at which time she expressed concerns about the Applicant's teaching performance and duty of care and indicated that she would be allowing a further supported period by extending the probationary period to December 2010 as she was not prepared to sign off on it. 130The Applicant further confirmed that she attended a meeting on 18 May 2011 with the Principal and Ms Twentyman during which strategies were discussed in relation to three concerns raised with her - students leaving the school grounds early (she conceded it happened on two occasions), students running around the dance rehearsal for Education Week unsupervised (she argued that she was present at the time) and the assembly item by 4 M being of poor quality. 131The Applicant confirmed that she was provided with an informal support plan when she was placed on the informal improvement program. She recalled that Ms Twentyman came into her classroom on 3 June 2011 and found it untidy. She explained that the children were doing research and therefore there would probably have been a lot of books on the floor. She agreed that she had allowed some students to go unaccompanied to the Library to conduct research on the computers as there was only one in the class. She conceded that the computers in the Library had to be booked and she was required to attend the Library with all of her class and supervise her students. 132She attended a meeting on 24 June 2011 with Ms Twentyman to discuss the informal support plan. She confirmed that Ms Twentyman expressed concern to her in writing about her marking in that there was a lack of consistency across grade 4. 133She also agreed that she met with Ms Twentyman on 27 June 2011 to discuss her lesson plan. At that time, Ms Twentyman provided her with her own spelling routine, showed her how to use some mathematics and spelling games on interactive whiteboard and gave the Applicant the weekly routine notebook and spelling notebook for the interactive whiteboard she had used when she was previously teaching that class. 134The Applicant further agreed that Ms Twentyman thereafter reviewed a number of her lesson plans throughout July and August 2011 and provided both oral and written feedback on those plans. She had observed her lessons and provided written observations on her mathematics class (on angles). A few days later, she received from the Principal copies of two or three emails from parents to consider and respond to. All that was followed by a feedback meeting on 25 July 2011 of the informal support plan. On 8 August 2011, Ms Twentyman forwarded an email to her pointing out that the Applicant was being tardy in providing her with her lesson plans. The Victimisation Allegation 135The Applicant wrote a letter of complaint about the Principal during which she set out a number of allegations. These matters are addressed below. 136Ms Minogue formed the impression that Ms Trisic was not happy with her appointment because she was not the Principal's preferred appointee. She said she overheard Ms Trisic comment, on a number of occasions during the lunch break in the staffroom during 2011, that "We just don't want to be sent someone again". The Applicant stated that those comments made her feel like she was a "ring in" and "unwelcome". She said she ignored those comments but noted that if she laughed, she got dirty looks from the Principal and if she participated in general conversation, her comments were either rebuffed or ignored. No evidence was provided of any of the above allegations. 137The Applicant recalled that she rang in sick on a Monday at the end of Term 1 in 2010. It was obvious to her that Ms Diane Twentyman, one of the Assistant Principals, did not pass on the message to the Principal because Ms Trisic telephoned her at home. The Applicant stated that she did not answer the telephone because she was asleep. The Applicant said she later noted an email forwarded to her by the Principal prior to that telephone call asking her why she was not at school. She was concerned that the Applicant had parent interviews the following day and she needed to be in attendance for those as some parents had arranged babysitters and time off work to attend the interviews. The Applicant stated that when she presented the following day for the parent interviews although she was still unwell, she noted that the parents had their children with them and had therefore not arranged for babysitters and, in addition, would not have taken time off work to attend because the interviews were conducted between 4.30 - 7 pm. In any event, she was aware that quite a number of parents did not go to work and, those that did, the fathers turned up later in the session. 138The Applicant said that the Principal called her into the office on 30 June 2010 and asked her if she had told a staff member that she had breast lumps. The Applicant explained that she had advised her supervisor, Sue Wroe, of an appointment to have tests which happened to coincide with an after school grade team meeting. She advised that she had declined an 11 am appointment offered by the doctor so that she would not take a day off work. 139The Applicant recalled that on a Wednesday in Term 2 2010, the Principal rang her in the classroom and asked angrily for some sticks she loaned her at the beginning of the year. The Applicant later advised her that she had lent them to her fellow kindergarten teacher, Mark Wallace. The Principal had thanked her for following it up but did not apologise for her initial accusation. 140The Applicant stated that she was called into the office by the Principal at the end of Term 2 in 2010 and advised that three families were leaving because of her but did not give her a reason. She pointed out that no families ended up leaving. 141The Applicant, (in a formal complaint lodged against the Principal on 7 November 2011), included an incident on 30 June 2010 when the Principal mentioned to her that she had, some days earlier, let the children sit on wet grass thereby not fulfilling her duty of care to the children. It was obvious to her that the Principal had noted that incident but did not mention it to the Applicant so that she could remedy the situation immediately. The Applicant advised her that the children were not sitting - they were squatting on astro turf and were playing a game called duck duck goose. 142On Friday, 23 July 2010, the Applicant gave out term invoices to children in her class. They were open invoices with a small school envelope stapled at the top. She had not realised that the children's names were written on top of those letters and so she had distributed them randomly to the students to put one each in their bags. She said the Principal called her into the office at lunchtime and advised her of a parent complaint. The Applicant was advised that she had made a huge error as she had breached privacy laws. She was told to mind her business when she questioned whether any of her students were experiencing hardship. She questioned why, if they were private, they had not been inserted in the envelopes and sealed? During cross-examination, she agreed that it had been appropriate to discuss the matter with her. 143The Applicant stated that she was on sick report on 20 - 25 August 2010. She had a blood test done, and had physiotherapy and acupuncture done on her neck on 24 August 2010. She said she received a text message on her mobile telephone from Janelle Guttenbeil, Assistant Principal (now retired) on Tuesday, 24 August 2010, asking if she could call her. The Applicant rang her instead. She said that Ms Guttenbeil warned her that the Principal was on a mission and not to attend any meetings with her without having the Union representative with her, "there is a process she is going through to put you under more pressure. You are stressed because you are under so much pressure, that's why you are sick". She said Ms Guttenbeil told her she was okay and that she was on her side. Ms Guttenbeil, now retired, did not give evidence on behalf of the Applicant and no explanation was provided as to why she was not called to give evidence. 144During Term 3 2010, the Applicant said she found the front and side of her car, including the lights, had been smashed in when it was parked in a cul de sac behind the school. She found a note on the windscreen. The Applicant said she took the note to the Principal and asked her if she would include it in the newsletter which was circulated to parents in case someone might have seen something. Despite an assurance that she would do that, and despite several reminders, three weeks' later it still had not been included and when it was eventually included, all it said was "Contact the office if you saw a silver car being hit" and it would have been too late for anyone to remember the incident. The repairs had cost her $1800 and was a significant issue to her while it appeared, by the Principal's response, to have been considered inconsequential to the latter. 145In her complaint against the Principal, the Applicant stated that the Principal had "victimised" her. During cross-examination, she explained that it was because the Principal "constantly" called her into the office during her lunch breaks and she would end up not having any break at all. She conceded, however, that sometimes it was a couple of days a week and other weeks she was not called in at all. She argued that the Principal would raise a list of matters with her and, in her view, that was victimisation because some matters were warranted and others were not warranted. She considered that if she did not agree with the matters raised with her then, in her view, they were not warranted. 146The Applicant agreed that she had not included in her statement that she believed that the Principal disliked her more or less from day one. She confirmed during cross-examination that it was her theory and was not supported by fact although the Principal had told her that she would not have selected her for employment at her school. 147She agreed that she had not included in her statement that the Principal told her that she was documenting and dating everything. She agreed that, despite saying at the commencement of the cross-examination that she had included everything in her statement, it appeared that she had left out a lot of things that were relevant. Whilst she conceded that there was nothing wrong with what the Principal was alleged to have said, she pointed out that it had been said in a "threatening way". 148The Applicant said she received a formal letter dated 17 March 2011 in relation to driving on the school grounds after hours. She recalled that the Principal asked her at recess in early March 2011 whether she drove a big silver car. When she responded that she did, the Principal told her that she had been seen driving fast into the school. The Applicant denied driving fast saying that she drove a manual Toyota Corolla Ascent in the first gear on the school grounds, her car was not that big and other staff members also drove silver vehicles on the school grounds. She said that she explained to the Principal that she had stopped to talk to some students who had called out to her from the playground above. The Principal assured her that she was not the only one she had spoken to about the matter however, the Applicant believed she was the only one issued with the letter. 149The Applicant said she also felt "denigrated", "put down" when the Principal boasted to her that the children respect her just because the Year 4 students wished her a good morning when she walked into the Applicant's class. The Applicant said that she had taught her students to stop and greet any teacher that came into their classroom. 150The Applicant stated that she arranged the seating in her class in Term 2 2011 in two Vs in accordance with a specific seating plan designed to separate children with behavioural problems as suggested to her by a behaviour consultant. Upon her return from one day's sick leave, she discovered that the seating arrangement in her class had been changed by the Principal and a casual teacher. She became upset about it and changed it back. 151The Applicant lodged a formal complaint against the Principal on 7 November 2011 citing lack of support for her, the Principal's belittling attitude towards her and victimisation of her. She attended an interview on 28 February 2012 with Mr Dean White, the Director of Education for the Northern Beaches. He advised that he would be interviewing Ms Trisic and then attempting to arrange a mediation between them. 152In her reply to Mr White's letter of 13 March 2012, the Applicant pointed out, on 22 April 2012, that two Assistant Principals, Janelle Guttenbeil and Lizzie Smith, had provided favourable reports about her improvement and progress. Yet, she had not been provided with the former's report and the latter's report had been removed from her file. She also advised that Mrs R, a parent of one of her Year 4 students and one of her kindergarten students, advised her on 5 April 2012 at Collaroy Beach Ocean Pool that the Principal had encouraged parents to complain about her teaching. She stated in her reply that the parent had said to her, "I can't believe that they gave you that class with all those behavioural problem children, with yellow cards and lot of children with learning difficulties. She wasn't looking at her duty of care to the kids, giving you that class (Yr 4). That was a malicious thing she did to you. All the parents thought you were great with kindergarten". Mrs R was not called by the Applicant to provide evidence on her behalf. During cross-examination, the Applicant agreed that there was primarily one student with the behavioural problem in Year 4. 153The Principal did not write a report about the Applicant's performance until December 2012, more than 12 months after she ceased her TIP program. The Applicant was provided with an opportunity to respond to that report. Mr White wrote to the Applicant on 11 February 2013 in which she was advised that he had reviewed all the documentation regarding her TIP including her response to the Principal's report. He advised that he wished to meet with her to clarify some of the information she had provided. 154The Applicant, accompanied by Mr Vlug as her support person, met with Mr White on 18 February 2013. She agreed that she was given a free run to say anything that she wanted to say to him and that she had taken advantage of that opportunity. As a result, Mr White prepared a submission, dated 17 March 2013, which was provided to Mr Schipp. In it, Mr White stated that he had formed the view that the Applicant had not met the level of performance required and recommended that her probation be annulled and her name placed on the "not to be employed" list. 155Mr Kevin John Schipp, Manager, Staff Efficiency and Conduct Team, provided a statement in which he stated that, after reviewing all available information, he wrote to the Applicant advising that he was considering recommending to the Director, Employee Performance and Conduct Directorate, to take action to annul her appointment. 156The Applicant confirmed receipt of that correspondence from Mr Schipp, dated 25 March 2013, in which she was provided with an opportunity to provide him with a submission showing cause as to why her appointment should not be annulled and her name added to the confidential list of persons not to be employed. Mr Schipp received a submission from Federation Law dated 24 April 2013, which also had attached to it a submission from the Applicant. 157Mr Schipp said he considered the submission and arranged for a briefing to be prepared for Ms Jane Thorpe, Director-EPAC. After considering all available information, it was clear to him that a significant amount of support had been provided to the Applicant throughout her period of probation. He recommended that the Applicant's appointment be annulled. 158However, in recognition of the previous casual teaching the Applicant had performed prior to her appointment to CPPS, and her submission that incompetency had never been suggested in that time, he further recommended that the Applicant be considered for limited casual approval for a period of six months. It would mean that if two reports of satisfactory performance are received from two Principals after two terms of casual teaching by the Applicant, then further unlimited casual teaching would be provided. 159Mr Schipp stated that he had considered the evidence filed by the Applicant in the proceedings and nothing in the material would cause him to change his view that it was appropriate to recommend that her appointment be annulled. 160Ms Jane Thorpe, Director-EPAC, also provided a statement in the proceedings in which she set out the role of EPAC which includes - Oversighting performance improvement programs for school employees; Taking disciplinary or remedial action where appropriate; and Assisting Department leaders to effectively manage performance and conduct matters. 161Ms Thorpe stated that she satisfied herself, having reviewed all briefing material provided to her in relation to the Applicant, including all material relating to the TIP, and the submissions made by and on behalf of the Applicant, that: (i)Ms Minogue had been identified as experiencing difficulties with her teaching performance while at CPPS; (ii)Ms Minogue was provided with support on an informal basis throughout 2010 and part of 2011; (iii)Following the provision of informal support, Ms Trisic, Principal, still had concerns about Ms Minogue's teaching performance; (iv)Ms Minogue was placed on a TIP in accordance with the Department's Procedures for Managing Probationary Teachers 2010; (v)The TIP was conducted in accordance with those procedures; and (vi)Mr White, then School Education Director, reviewed the matter and determined that those procedures had been followed. 162Ms Thorpe stated that, having considered all the relevant material (including the TIP, the opinion of the Principal, the submission of the Applicant and that of her legal representative and the recommendation made by Mr Schipp), she formed the opinion that it was appropriate to annul the Applicant's appointment. She determined that the appropriate action to take was the course recommended by Mr Schipp, that is, to annul the Applicant's appointment and recommend that she be given limited casual approval for a period of two terms based on her previous successful casual teaching history with the Department. 163The Applicant confirmed that she received correspondence from Ms Thorpe, dated 8 May 2013, via Mr Dawson, annulling her appointment as a probation teacher but not including her in the "not to be employed" list. 164In conclusion, the Applicant pointed out that her informal program had been cut short; Ms Twentyman had instructed her not to talk to either parents or teachers (outside of school) about issues raised with her; the Principal accepted the parents and children's word over hers; the Principal and Assistant Principal had not provided her with any support; she was harassed by Ms Twentyman while she was off sick in an effort to force her to resign; her every move had been documented; she was provided with a warning for allegedly speeding; the Principal had not bothered to look at her program in 2011 up to the end of Term 3 because she did not have time despite having it in her possession for a week; she should have had the opportunity to consolidate on kindergarten for a second year rather than going up to Primary, especially as a Probationary teacher; and she was not given her first, second or third preference for a grade in 2012. For those reasons, she said she felt too frightened about "putting myself in the firing line again" by returning to that school as it had affected her health and self-confidence, particularly in teaching. 165During re-examination, the Applicant pointed out that she was denied the opportunity to discuss issues with parents and the students and work out solutions to whatever problems existed and that made her feel undermined. Relief Sought 166During cross-examination, the Applicant confirmed that she has not worked since she was dismissed from employment and has not applied for any positions since her dismissal. The Applicant pointed out that she has had cervical cancer and has a current medical certificate certifying her as unfit for work until 24 September 2013. The way she was currently feeling, she expected that she would be eased back to work on a gradual basis. 167The Applicant also agreed that she was seeking reinstatement to her former position in the knowledge that her doctors had suggested to her that she was not to return to CPPS. Alternatively, she was seeking re-employment as a teacher in another school or an office worker in a departmental office, or monetary compensation. 168The Respondent submitted that the impact of the decision to terminate the Applicant has to be balanced against the rights of students and on that basis the application should be dismissed. The Respondent submitted that reinstatement is impracticable and provided reasons as to why in addition to which it was pointed out that it went against her medical advice. 169The Respondent provided reasons as to why re-employment would also be impracticable. Finally, compensation should not be awarded, it was submitted, because the Applicant has not sought to find alternative employment and has not sought to mitigate her loss. THE SUBMISSIONS 170It was submitted on behalf of the Applicant that she was a "returning beginning full-time teacher" who was experiencing difficulties and who was not consolidated into any particular class. Rather she was required to take kindergarten, Year 4 and RFF in a period of less than two years. 171It was also submitted that the evidence relied on by the Respondent was largely flawed with untruths and exaggerations designed to paint the Applicant in as bad a light as possible. For example, the Principal had to concede during cross-examination that she had viewed complimentary emails about the Applicant. In addition, there had been positive reports provided from two Assistant Principals in relation to the Applicant - Ms Janelle Guttenbeil and Ms Elizabeth Smith. 172It was submitted on behalf of the Applicant that she had been given a class with a child with challenging behaviour yet, despite the evidence, the Principal had denied that she had prior knowledge of that. 173It was pointed out that, in one instance, the Principal had obtained statements from three children on the day of an alleged assault with a calculator, yet she did not ask the Applicant about it until eight days later when she forwarded an email to the Applicant while on sick leave seeking her own account of events. The Commission was asked to draw conclusions from the fact that the Principal had, in its submission, deliberately omitted that incident from her statement. 174It was submitted on behalf of the Applicant that her position and authority had been undermined to such an extent that it had shattered her self-esteem and confidence. The Principal had allowed the students to leave the class whenever they wanted to and she had required the Applicant and the other children to leave the class during the knife incident instead of taking the child out of the class. 175In conclusion, it was submitted that the most important facet of evidence for the Commission to consider is whether the Principal was aware of the challenging child at the time of classroom allocations at the end of 2010. It was submitted that she was aware of that fact and the Principal had clearly failed in her duty of care to the Applicant by failing to allocate her a class appropriate to her. On that basis, the dismissal of the Applicant was unfair. 176The Respondent submitted that students have a right to be taught by competent teachers and teachers bear responsibility for performing their duties efficiently and competently. 177It was submitted on behalf of the Respondent that the Applicant was dismissed on account of poor performance and failing to meet the standards expected of a teacher. Therefore, the Applicant bore the onus of proving that her dismissal was unfair. 178The Respondent pointed out that the evidence of those witnesses not required for cross-examination should be accepted. In addition, it was pointed out that neither Ms Trisic nor Ms Twentyman were cross-examined on their observations and impressions of the Applicant as a teacher, therefore their evidence, which led to the annulment of the Applicant's appointment, was unchallenged. 179The Commission was urged, taking into account issues such as reliability and honesty of the witnesses, consistency in the versions of events given and consistency of conduct, to prefer the evidence of the Respondent's witnesses for a number of reasons: The Applicant's evidence as to what was included in her application as the basis for unfairness was unconvincing; The allegation by the Applicant of lack of needed support was directly inconsistent with the admissions she made during cross-examination and was also directly inconsistent with her own views on her own ability and not needing support; The Applicant conceded numerous mistakes in her evidence during cross-examination and inconsistent answers; The Applicant had some difficulty remembering a number of events; and The unduly melodramatic terms the Applicant used to describe the conduct of the Principal. 180It was submitted that the statutory test which the Commission is required to apply was not whether the dismissal was lawful but whether the dismissal was harsh, unjust or unreasonable: Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 548; 93 IR1; Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288; Lane and Northern Sydney Central Coast Area Health Service [2006] NSWIRComm 380. The Respondent reminded the Commission of the requirement to make "a positive and specific finding" on each of the words in the expression "harsh, unreasonable and unjust": Bankstown City Council v Paris (1999) 93 IR 209. 181The Respondent further reminded the Commission that if a finding is made in favour of the Applicant under, one, two or all three of above headings (See Macleay Valley Health Service v Jeffree (1994) 58 IR 187 at p 192), then it needs to determine whether re-instatement, re-employment or monetary compensation is the appropriate remedy: Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11. 182It was submitted on behalf of the Respondent that the evidence left no doubt that the Applicant was provided with a reason for her dismissal and the reason for termination had, taking into account the evidence, a basis in fact. 183In considering whether reason for termination justified termination, the Respondent submitted that there is an imperative, pursuant to s 5A of the Teaching service Act 1980, on the Commission to ensure the protection of children: New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32. It was submitted that the term "protection of children" extends to the protection of children from teachers: NSW Department of Education and Training v Cassis [2007] NSWIRComm 158. 184In relation to the evidence of Mr Shuttleworth, the Commission was reminded that he could not definitively say whether the Applicant fell within his definition of a teacher returning to the workforce; he quite honestly stated that he had no knowledge of her performance or abilities; he recognised that teachers are provided with support and assistance and with areas of concern they need to address on both formal and informal support programs; he freely conceded that there were good reasons why a teacher may be changed from a kindergarten class to another class based on the needs of the schools, care of children (both physically and educationally) or, to a lesser extent, because the supervisor of that teacher is in a similar class group. Relevant Statutory Provisions 185Section 5A of the Teaching Services Act 1980 provides that: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 186The objects of Part 4A of the Teaching Services Act are: 93A Objects of Part The objects of this Part are as follows: (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. 187Section 88 of the Industrial Relations Act 1996 requires that: SECTION 88 MATTERS TO BE CONSIDERED IN DETERMINING A CLAIM 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) If any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed; and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. CONSIDERATION 188I am satisfied that probationary employments may be extended or annulled either during or at the end of the probationary period and therefore the actions of the Respondent did not breach s 48 of the said Act. 189I am also satisfied that the performance review conducted and the performance improvement programs implemented were in accordance with s 93G and s 93H of the said Act respectively. 190It is noted that s 93H of the said Act requires a TIP to be implemented for such period as the Director General considers appropriate. Mr Schipp pointed out that the Respondent and the NSW Teachers Federation had agreed, in 2010, to an amendment to the Procedures for Managing Probationary Teachers to provide that a TIP must be completed within a maximum 20-week period to address concerns about TIPS being delayed for long periods of time when a teacher was absent from school for the following reasons: * to reduce the impact of a teacher's continuing absence on the running of a school and, more importantly, on the learning of students; * provide consistency to the process; and * provide some certainty to the teacher involved, in particular to probationary teachers in their probationary period. The Applicant did not complete the 10-week TIP within the agreed time frame. In fact she had only completed the first couple of weeks when an assessment of her performance was not required. 191It is noted that s 93J of the said Act provides that the Director-General may do either or both of the following - (1)take remedial action with respect to the officer; or (2)take disciplinary action (which is defined in s 93B as including dismissal) with respect to the officer if the officer's performance is still unsatisfactory following either completion of the TIP, or failure to participate in a TIP or failure to satisfactorily complete a TIP. 192I am satisfied that Ms Jane Thorpe, Director- Employee Performance and Conduct Directorate, had the delegated authority pursuant to section 8 of the Teaching Service Act 1980 to exercise all powers under Part 4A of that Act, the objects of which are set out above. 193In his statement dated 9 July 2013, Mr Shuttleworth, retired Principal of 14 years, opined the following: I would consider it good practice for a beginning teacher, or a teacher returning to schools after an absence of some years, to be placed on a class of a particular level, eg Year 2 or stage 1, according to the needs of the school. Because of the challenges of classroom teaching faced by a teacher in these circumstances, not the least of which are acquainting her/himself with new curriculums, teaching procedures, school culture and interpersonal relationships with children, staff, parents and others in the school community , it would be good practice for the teacher to remain at the particular level at which s/he began for a period of two years in order to confirm and consolidate her/his teaching skills and knowledge at that level... 194I accept the views of Mr Shuttleworth and respect the fact that his years of experience as a Principal would normally have been very helpful to the Commission. Nevertheless, the Applicant cannot be considered to be "a beginning teacher" or "a teacher returning to schools after an absence of some years". According to the evidence before the Commission, she has had 27 years continuous service as a teacher interspersed by periods of full-time employment. She, therefore, would not, in my view, need to re-acquaint herself with matters identified in Mr Shuttleworth's statement. 195The following extract of cross-examination of the Applicant is an example of how the Applicant appeared to blame everyone else but herself for what has befallen her: Britt: Now you filed an unfair dismissal application on 31 May 2013? Applicant: Yes. Britt: And in that application you were asked question 17, "were you provided with reasons for dismissal" and you've said "yes" - do you recall saying that? Applicant: Yes. Britt: And you then were able to say well the reason was inefficiency in question 18? Applicant: Yes. ..... Britt: You then, in your application, have set out the reasons for your application, do you recall that? Applicant: Yes. Britt: I think, in fairness to you, Mr Dawson may well have assisted you in crafting this document? Applicant: No, I crafted it. Britt: You crafted it, yourself? Applicant: Yep. He wrote things out at the beginning. Britt: You say one of the reasons for the dismissal being unfair, is the employer failed to recognise and provide support the applicant needed in order to enter the workforce 27 years after her original training?.... Applicant: That's correct. Britt: Then, you assert, the dismissal is harsh, unjust and unfair, as the Applicant was not provided with appropriate and reasonable support? Applicant: That's correct. ...... Britt: Another basis of the unfairness you assert is, the principal made it clear to the applicant that she was not the principal's preferred appointee? Applicant: That's correct. ..... Britt: Then you say, "However, she was deemed to have failed the program at the expiry of 20 weeks from its commencement". Do you recall writing that? .... Applicant: No. I didn't write that, because it says, "however, she". Britt: Well, I asked you whether Mr Dawson had prepared the document, and you said he wrote words to the effect some of the material at the beginning? Applicant: Mm. Britt: This is the very last page, is it not, madam? Applicant: Yes, it is. Britt: You wouldn't call that page the beginning, would you? Applicant: No, you wouldn't, no. Perhaps he did. Britt: When you say, "perhaps he did", did he write that page or did you write that page? Applicant: I do not recall writing this page. .... Britt: Did Mr Dawson have any discussion with you about the preparation of this document? Applicant: No. .... Britt: So, you're telling the Commissioner that, without having any discussion with you, Mr Dawson knew your home address. Applicant: I did have discussions with him, but he wasn't going to be representing me for this... Britt: I haven't asked you about the representation, I've asked you specifically about the preparation of this application, and your answer, under oath, is that you didn't have discussions with Mr Dawson about the preparation of the application. Is that answer true, or not? Applicant: Well, I must have. Britt: So the answer that you didn't have discussions with him you now concede was incorrect? Applicant: Yes. I misunderstood the question. Britt: Well, what part of my question did you misunderstand? Applicant: This actual application form I haven't seen before, and I know that I didn't write that. ... Britt: So, you're telling the Commission that you've never seen your own unfair dismissal application document before? Applicant: I just have, I must have seen it. 196I am abundantly satisfied from the evidence which I have set out above, which is but some of the evidence before the Commission, that the Applicant was informed of the reason for her dismissal and the reason had a basis in fact. She had been provided with feedback all along the way from the Principal, from parents, and from other teachers regarding her lack of management of the class, her lack of duty of care towards the students and the complaints that the children were not getting homework and were not learning anything. She was advised many times over that she was not performing her duties efficiently and competently. 197I am satisfied that the reason justified her dismissal and it was abundantly clear to her in what direction her continued employment was going. There can be no doubt that the Respondent owes a duty of care to both its students and its staff. The duty of care in relation to the protection of children is paramount, regardless of whether or not it is enshrined in legislation. The Applicant was, in my opinion, very fortunate to have been allowed the extensions of time and support that she received in view of the ungratefulness of the Applicant. She had been supplied with incredible support by the Principal and other teachers which she refused to concede that she needed. Everything that went wrong was the fault of someone else but never the Applicant herself. 198The incident with knife was the most telling example of the Applicant's lack of responsibility for her actions. I agree with the father of one of the students when he opined that it was an accident waiting to happen. 199The following are examples of the notice given to the Applicant that she was not faring well. The following concluding remarks were contained in the feedback provided to the Applicant on 2 June 2010 by the Principal in relation to the belated submission of her Term 1 2010 program: It is unfortunate that you did not hand it in [sic] a program for term 1 and I did not force you. I thought I was giving you time to settle in to a new school and a very busy term for a Kindergarten teacher BUT there are MANY areas that require development and at this point of time I have real concerns. Your program reflects a teacher who needs support and guidance. I KNOW that you have had strong support and guidance from your kindergarten supervisor, been involved in weekly grade meetings and intensive mentoring and weekly support from Best Start consultant Kris Graham. As stated before, I have real concerns about the teaching and learning programs in your classroom. You have dismissed support before stating that you have taught for many years. I am more than happy to support and guide you and as your program does not reflect a teacher who has taught for many years this will be occurring. 200On 30 July 2010, in the first couple of weeks of Term 3, the Principal advised the Applicant that she had concerns in the following areas: classroom management duty of care knowledge of the curriculum formal programming and other DET requirements differentiation of work to meet individual students needs working within a team structured supervision eg walking from one area of the school to another not implementing the advice and support given by Best Start Consultant, Assistant Principals, Kindergarten Supervisor, Principals and colleagues 201The Applicant would have been aware that the progression from an informal support program to a formal TIP was a warning in itself of unsatisfactory standards of performance. It is also clear that a failure to meet the satisfactory standard following a TIP procedure may lead to dismissal. 202The Applicant was provided with a number of opportunities, detailed above, to make submissions as to why her employment should not be annulled. She was not able to convince the Respondent's decision makers and has been unable to convince the Commission as currently constituted. I adopt and endorse the comments of the Full Bench in Cassis where it was stated: There can be no doubt that the welfare (and protection) of children is the paramount consideration in proceedings such as the present. This must be determined objectively with the assistance of the employment screening result. It is necessary to take all other factors into account. [88] 203The Applicant firmly refused to accept responsibility for her performance and thereby adversely affected her students and other classes. There was no evidence before the Commission that if there was a return to work that the applicant's performance would improve. I am inclined to agree with the Respondent that there are no special circumstances that would warrant any mitigation of the penalty of dismissal. 204I find that the dismissal of the Applicant was neither harsh, nor unjust nor unreasonable. ORDERS 205The proceedings in Matter No IRC 456 of 2013 are hereby dismissed. 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: 02 December 2013