Industrial Relations Commission New South Wales Medium Neutral Citation: Greig v Director General Department of Education and Communities (No 3) [2014] NSWIRComm 34 Hearing dates: 10 June 2014 Decision date: 18 July 2014 Jurisdiction: Industrial Court of NSW Before: Boland AJ Decision: The Court makes the following orders: (1)If leave to appeal is required, leave is granted. (2)The appeal is dismissed. (3)No order as to costs. Catchwords: APPEAL - Appellant a member of the teaching profession - Appellant demoted for misconduct and transferred to another school - Initial appeal brought under s 98 of Industrial Relations Act 1996 - Appeal dismissed - Further appeal to single judge under s 197B of Industrial Relations Act - Multiple assertions by appellant that errors made at first instance in relation to decisions on questions of law - Whether jurisdiction protective or punitive - Appeal dismissed Legislation Cited: Government and Related Employees Appeal Tribunal Act 1980 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Teaching Service Act 1980 Teaching Service Regulation 2007 Transport Appeals Board Act 1980 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Byrne v Rail Corporation of NSW [2012] NSWIRComm 117 Caiman v Commissioner of Police (1999) 167 ALR 91 Clisdell v Commissioner of Police (1993) 31 NSWLR 555 Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 Greig v Director-General, Department of Education and Communities [2013] NSWIRComm 1025 Greig v Director General, Department of Education and Communities [2014] NSWIRComm 26 Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 Hutchinson v Roads and Traffic Authority [2000] NSWCA 332 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Maritime Services Board v Murray (1993) 52 IR 455 Mifsud v Campbell (1991) 21 NSWLR 725 North Sydney Council v Lygon (1995) 87 LGERA 435 Rail Corporation New South Wales v Brown [2012] NSWIRComm 14 Rail Corporation of New South Wales v Brown [2012] NSWCA 296 Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 Rossmar Park Pastoral Co Pty Ltd v Coal Mines Australia Pty Ltd [2008] NSWSC 1385 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Totalisator Agency Board (NSW) v Casey (1994) 54 IR 354 von Senff v State Transit Authority [2013] NSWIRComm 1013 Category: Principal judgment Parties: Ian Greig (Appellant) Director General, Department of Education and Communities (Respondent) Representation: A Britt of counsel (Respondent) Ian Greig (Appellant in Person) J Bennett (Respondent) File Number(s): IRC 1025 of 2013 Decision under appeal Citation: [2013] NSWIRComm 1025 Date of Decision: 2013-11-20 00:00:00 Before: Commissioner P Newall File Number(s): IRC 1271 of 2013 Judgment 1Ian Greig ("appellant") was the Head Teacher - English with responsibility for Drama at Monaro High School ("Monaro"). The Department of Education and Communities ("DEC" or "respondent") upheld certain allegations against Mr Greig of misconduct and in November 2012 he was demoted to Teacher and transferred from Monaro to Karabah. 2Mr Greig appealed the decision to demote and transfer him. The appeal was brought under s 98 of the Industrial Relations Act 1996 ("IR Act"), which enables a public sector employee to appeal to the Industrial Relations Commission against an "appealable decision" of his or her employer. 3Commissioner Newall heard the appeal in September, October and November 2013. In a decision given on 20 November 2013 (Greig v Director-General, Department of Education and Communities [2013] NSWIRComm 1025) the Commissioner found that the demotion was not harsh or inappropriate, that the transfer was not an appealable decision and that there was no procedural unfairness. Newall C dismissed Mr Greig's appeal. 4Mr Greig appealed from the Commissioner's decision. He was entitled to do so under s 197B of the IR Act and any appeal under that provision is to be heard by a single judicial member of the Commission. This judgment deals with Mr Greig's appeal. First instance decision 5The Commissioner noted early in his decision that Mr Greig was self-represented and that counsel represented the respondent. The Commissioner said he afforded Mr Greig license in a number of procedural matters, and in the conduct of his case at large, consistent with his being an unrepresented applicant. He did so, he said, without causing any unfairness to the respondent. 6Newall C referred to the parties' claim that the matter would consume 10 to 15 hearing days, that more than a dozen witnesses would be called in each party's case and that sittings in both Sydney and Cooma or a similar location would be required. In light of the obligations upon him to act as quickly as practicable and his power under s 162(2)(c) to limit the time in which parties have to present their respective cases, the Commissioner directed that the parties would have four days to present their evidence followed by written submissions. The directions were entirely appropriate given the nature of the proceedings (an appeal against demotion and transfer) and the limited resources of the Commission. 7The Commissioner then addressed his powers under the IR Act. No issue was taken about the exercise of those powers and it is not necessary to address that part of the first instance decision. 8Next, the Commissioner addressed the question of onus of proof. He determined that the onus fell on the respondent to prove misconduct, but also observed that a party seeking to persuade the Commission to allow an appeal against a disciplinary decision necessarily carried the onus of so persuading. There was no error in that approach. 9In his overview, the Commissioner regarded Mr Greig as a talented individual and "a teacher of singular ability..." who had "a real passion for the subjects that he teaches." He found that Mr Greig "had mentored and assisted beginning teachers to their significant benefit" and his work brought credit on Monaro, particularly in relation to music and drama presentations. It is apparent from the Commissioner's decision that Mr Greig was highly regarded by students and parents. 10Newall C, however, observed at [50]-[51] of his decision: [50] The ability to teach the best students so that they reach their full potential, which ability Mr Greig, on the evidence, has amply demonstrated, is however not all that the Department requires of a Head Teacher. In the world of Departmental school education, the gifted and passionate teacher who accepts a Head Teacher role is not excused conformity with the administrative requirements of that role; these requirements include, on the evidence, obligations of leadership, administration, supervision and organisation of the relevant faculty. [51] In the end it is in these matters that Mr Greig has exposed himself to censure from the Department. 11The Commissioner next addressed the allegations of misconduct made against Mr Greig. The allegations ultimately relied upon by the respondent were in the following terms: That between 2004 and 2011, whilst employed as Head Teacher English with responsibility for Drama, at Monaro High School, you engaged in conduct that could amount to misconduct in that you: (A) Between 2008 and 2011, failed to consistently and professionally carry out (sic) your responsibilities as Head Teacher English in leadership, administration, supervision and organisation of the English faculty, including but not limited to: i) Failing to consistently develop and/or maintain teaching and learning programs; ... vi) Requiring staff members to sign and date blank TARS forms which indicate the required supervision had taken place; vii) Failing to demonstrate appropriate leadership, including but not limited to: b. On other occasions attending Monaro High School executive meetings with your mobile telephone and laptop and proceeding to use your laptop while the meeting was being conducted and not participate in the meetings; (B) Failed to ensure that marking for all Years 11 and 12 work was consistent, transparent and accountable, including but not limited to: (i) On a number of occasions giving students their marks verbally; (ii) On occasions failing to give any marks for work completed; (iii) On a number of occasions providing no written feedback to students; (iv) Failing to consistently use marking rubrics in accordance with Board of Studies (BoS) guidelines; (v) On occasions using a marking grid instead of using the recommended marking rubrics; (vi) On one occasion in 2008, failing to mark the trial HSC papers in a timely manner and input the marks prior to the marks being forwarded to the Board of Studies; (vii) instructing staff not to include marks or rankings on Years 7 to 10 student reports. ... (D) During 2008 to 2011, failed to be punctual in attending your Year 11 and 12 classes, as demonstrated by: (i) On numerous occasions, failing to arrive on time to teach your Advanced English and/or Extension English classes; (ii) On numerous occasions, failing to arrive on time to teach your Drama classes; ... (iv) On a number of occasions failing to teach your Advanced English and/or Extension English classes at all, including leaving the class sitting or standing unsupervised in the corridor for the entire class time ... (I) During 2009 and 2010, failed to treat a male student, namely Mark Salvestro, with respect, fairness and consistency, in that you: (i) On a number of occasions made disparaging comments to Mark about him coming from St Patrick's Catholic School, Cooma; ... (vi) On one occasion when Mark asked you for feedback about the mark he received for his speech assessment you laughed and said words to the effect of "Did you see your speech" and walked away giving him no other feedback; (J) Between 2004 and 2009, failed to treat a female student, namely Sarah Redmond, with respect, fairness and consistency, in that you: ... (xii) On one occasion becoming very angry and aggressive towards your Principal, Mr Peter King, in front of students, including Sarah Redmond, when you chased Mr King across a quadrangle and then while standing over him pointing your finger at him, screamed your objection to Mr King's-decision about the outcome of the petition, causing Sarah to become fearful of being physically harmed by you. 12The Commissioner referred at [55] of his decision to the evidence and how he treated it: [55] That material included particularly records of interview with persons who did not give evidence before the Commission and were not brought or intended by the Respondent to give evidence. That material was formally in evidence, but in circumstances where it was necessarily untested, it must be and was given significantly less weight. In any case where it was in contradiction with evidence actually brought and tested, as from for example Mr Greig, I have preferred the evidence actually brought and would in any event do so unless the evidence actually brought was inherently unreliable. 13At [56] the Commissioner found that Part 4A of the Teaching Service Act 1980 dealt with disciplinary processes. He further found Mr Kevin Schipp had properly been delegated the power to discipline. 14At [58]-[86] Newall C addressed the allegation that Mr Greig, between 2008 and 2011, failed to carry out his responsibilities as Head Teacher, English in leadership, administration, supervision and organisation of the English faculty. The Commissioner referred to the evidence, particularly that of Mr Schipp, a senior departmental officer with previous senior teaching experience, that there was no adequate teaching and learning program in place in the English faculty at Monaro under Mr Greig's tutelage. Newall C found this allegation was made out to the standard required in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 15The Commissioner also found that Mr Greig required staff to sign and date blank Teacher Assessment and Review Schedule (TARS) forms that indicated supervision had taken place (in circumstances where it had not). 16In relation to the allegation that Mr Greig failed to ensure that marking for all Years 11 and 12 work was consistent, transparent and accountable, the Commissioner found the following particulars were made out: (1)that Mr Greig on a number of occasions provided no written feedback to students; and (2)that Mr Greig failed to consistently use marking rubrics in accordance with Board of Studies guidelines. 17The next allegation was that in the years 2008 to 2011, Mr Greig failed to be punctual in attending his Year 11 and Year 12 classes. This allegation was made out. 18The other allegations were either not made out or were dismissed as not providing any basis for a finding of misconduct. 19The appellant disputed the proposition that the allegations related to conduct and contended they were about his performance. The significance of this, according to the appellant, was that if the respondent had concerns about Mr Greig's behaviour, the proper order in which those concerns should have been addressed was, firstly, as a performance issue and only after that, as a conduct issue. Newall C found that the respondent was entitled to regard the concerns it had with Mr Greig as conduct matters. 20In relation to whether the Commissioner's findings constituted misconduct on Mr Greig's part Newall C found that Mr Greig had the obligation to provide leadership, administration, supervision and organisation of his faculty and that this included developing and maintaining teaching and learning programs. The Commissioner found that there was no adequate teaching and learning program in place in the English faculty at Monaro under Mr Greig's tutelage. The Commissioner held this was misconduct within the meaning of the Teaching Service Act. Further, that: I am bound to accept that it is a fundamental obligation of a Head Teacher to provide such a programme. It is not discretionary, and in my view a failure to provide it cannot be excused by differences in philosophy or approach. 21In relation to his finding that Mr Greig did not carry out a proper TARS process the Commissioner held that it constituted misconduct within the meaning of the Teaching Service Act. The Commissioner was satisfied that the TARS process was "a mandatory and important part of the development of a teacher and a mandatory and important part of a Head Teacher's duties." To fail to carry them out, the Commissioner found, was "wrongful and was misconduct within the meaning of s 93C of the Teaching Service Act." 22The Commissioner further held the following factual findings constituted misconduct: (1)Mr Greig on a number of occasions provided no written feedback to students; (2)Mr Greig consistently failed to use marking rubrics. 23In relation to his finding that in the years 2008 to 2011, Mr Greig failed to be punctual in attending his Year 11 and Year 12 classes, and on some occasions failed to appear to teach them at all, Newall C held that whilst such behaviour by a teacher was: [I]n no wise to be condoned, I am not satisfied that this has been proven to have occurred consistently enough and without exculpatory factors to be prepared to characterise it as misconduct in this particular case. 24Under the heading "Appropriateness of punishment", the Commissioner stated: [158] It is to be remembered that Mr Greig was not dismissed or asked to resign. [159] His failings in my view have been in the essential area of the responsibilities as a Head Teacher. I accept the submission of the Respondent that it has very high expectations of a person in the role of Head Teacher particularly in relation to leadership and setting an example for other staff. [160] Accordingly, while I accept that the decision to demote Mr Greig is a matter of the utmost gravity to him, indeed that it is, particularly when the transfer that is consequential on the demotion is considered, a life-changing decision for him, a matter to which I have given serious consideration, I am unable to find that the decision to demote Mr Greig was harsh, excessive or inappropriate. In coming to that view I have had regard, as I have throughout this matter, to the provisions of s.5A of the Teaching Service Act. 25In relation to the direction to Mr Greig to transfer to another school, the Commissioner referred to the evidence of Mr Schipp, which the Commissioner accepted, that the transfer was not discipline related, but arose out of the fact that, once Mr Greig had been demoted, there was no vacancy at Monaro for a teacher. 26The Commissioner held that it was apparent that a transfer to another school was not a disciplinary matter and hence fell outside the definition of an 'appealable decision' in s 97(1) of the IR Act. That being so, the Commission was not able to make any order concerning the fact of Mr Greig's transfer. 27The Commissioner next addressed Mr Greig's submission that he had not been accorded procedural fairness. Newall C held even if there was procedural unfairness in the decision making process that led to Mr Greig's demotion (a finding the Commissioner did not make), "it was able to be cured, and was cured, by the Commission hearing this matter armed with powers to determine the matter entirely otherwise to the initial decision maker if it saw fit." 28In his conclusions and orders the Commissioner stated: [177] I have found that the Department has made out at the appropriate level of proof some matters which establish that Mr Greig has committed misconduct within the meaning of the Teaching Service Act. I have found that the punishment imposed on Mr Greig, considered against those matters I have found to be established, is not harsh or inappropriate. [178] Accordingly, the order appropriate to be made in this matter is that the appeal is dismissed. [179] I so order. Nature of the appeal 29As I earlier stated, Mr Greig's appeal is brought under s 197B of the IR Act. That section provides: 197B Appeals on questions of law in relation to public sector promotional and disciplinary matters (1) A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Commission in Court Session against any decision of the Commission in the proceedings on a question of law. (2) On an appeal under this section, the Commission in Court Session may: (a) remit the matter to the Commission for determination in accordance with the decision of the Commission in Court Session, or (b) make such other order in relation to the appeal as seems fit. 30As it is apparent from the terms of the section, an appeal only lies "against any decision of the Commission... on a question of law." The decision of the Full Bench in Rail Corporation New South Wales v Brown [2012] NSWIRComm 14 provides guidance in identifying the scope of the appeal under s 197B. Although Brown was concerned with s 23A of the Transport Appeals Board Act 1980, s 23A(1) limited an appeal to "any decision of a Board in the proceedings on a question of law" (my emphasis). The decision in Brown is, therefore, a relevant authority to be relied upon in these proceedings notwithstanding the different statute here under consideration. The decision in Brown was overturned on appeal to the Court of Appeal (Rail Corporation of New South Wales v Brown [2012] NSWCA 296). However, nothing in the Court of Appeal's decision affects the validity of what the Full Bench stated at [19]-[21] of its decision. 31At [21], the Full Bench in Brown stated: (a) an appeal from a decision on a question of law is a more limited appeal than that available on a question of law or involving a question of law; (b) it is not sufficient, therefore, to merely establish that an error of law has occurred in the course of the appeal; (c) while it must be shown that the Tribunal has made a decision on a question of law that is challenged on appeal, it is not necessary for the Tribunal to have, itself, expressly identified that question. It will be sufficient if the appeal identifies any decision of the Tribunal that is a decision on a question of law. Thus, where the Tribunal reaches a conclusion with respect to some matter that requires for its determination the identification of a relevant matter of law and error is alleged with respect to that matter of law, the jurisdiction of this Court under s 23A is invoked; (d) the appellant, nevertheless, is required to identify with some precision the decision of the Tribunal on a matter of law in order to invoke the jurisdiction of the Court under s 23A; (e) where the questions raised on appeal involve an assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implied decision on a question of law. 32As Kirby P observed in Maritime Services Board v Murray (1993) 52 IR 455 at 459 in relation to s 54 of Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act"), which also limited an appeal to a decision on a question of law: It is important to approach the appeal holding in mind the narrow basis upon which this Court has jurisdiction over matters decided by the Tribunal. 33Where the appeal is confined to a decision on a question of law the Court is not concerned in the facts and merits: Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 558-559 per Sheller JA. 34By way of further explication as to the meaning of a decision on a question of law, in Hutchinson v Roads and Traffic Authority [2000] NSWCA 332, Giles JA, in considering s 54 of the GREAT Act, which was relevantly in the same terms as s 23A of the TAB Act, stated at [33]: The word "decision" is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based... but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal.... 35Further, a tribunal that decides a question of fact when there is no evidence in support of the finding makes an error of law: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [91]. Moreover, a right of appeal under s 197B is not limited to explicit decisions formulated in the proceedings, but extends to "decisions which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal": Kostas at [23] per French CJ. See also Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 at [27] per Allsop P. 36The appellant relied to some extent in the appeal on the asserted failure of Newall C to give reasons for some of his conclusions. I note that in Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459 the Full Bench of the Industrial Court stated: Although the failure of a judicial officer to provide adequate reasons may constitute an error of law (see Pettit v Dunkley (1971) 1 NSW LR 376 at 388), the extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 -273 per Mahoney JA and at 280-281, per McHugh JA, and Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). It is not always necessary for a judicial officer to expose every step in his or her chain of reasoning. 37To elaborate on this issue, the requirement to provide reasons means that the decision maker is obliged to expose his or her reasons for resolving a point critical to the contest between the parties: see North Sydney Council v Lygon (1995) 87 LGERA 435 at 442 per Kirby ACJ, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 per Mahoney JA, at 280 per McHugh JA. A decision maker's reasons will satisfy the requirement to provide reasons if they state with economy and conciseness the jurisdictional basis and/or discretionary basis for the issue of the order in the proceeding: Rossmar Park Pastoral Co Pty Ltd v Coal Mines Australia Pty Ltd [2008] NSWSC 1385 at [48]. 38Furthermore, the requirement to provide reasons does not make it necessary to refer to all of the evidence led in the proceeding and to indicate which of it is accepted or rejected: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA. Nor is the decision maker obliged to provide reasons in respect of every matter of fact and law that may have been raised in the proceeding or determine every matter raised in argument: Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 385-386. 39In Totalisator Agency Board (NSW) v Casey (1994) 54 IR 354, Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law. In Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523, Basten JA, after referring to what Kirby P said in Casey, observed at [75]: [75] There is something to be said for the view that, where a tribunal has exceeded the bounds of its legal authority by failing to accord procedural fairness, such an error does not constitute a decision of the tribunal on a question of law: see Seltsam at [159].... 40In Byrne v Rail Corporation of NSW [2012] NSWIRComm 117 the Full Bench considered an appeal under s 23A of the Transport Appeals Board Act 1980. Appeals under that section are limited to "any decision of a Board in the proceedings on a question of law." In Byrne the Full Bench found that excluding the appellant from the hearing room during the course of the hearing was procedurally unfair and upheld the appeal. The appeal was also upheld on the ground that there was a failure by the Board to expose its reasons for resolving a point critical to the contest between the parties. 41Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 also concerned an appeal under s 23A of the Transport Appeal Boards Act. At [46] the Full Bench found: [46] In our opinion, it is abundantly clear that the Board failed to decide facts centrally relevant to the exercise of its jurisdiction. That is, the Board exercised its jurisdiction to reinstate the respondent in his former position in the absence of findings of fact regarding the respondent's alleged conduct that was contended by the employer to warrant dismissal from employment. ... [55] In the present case, the Board neither made adequate findings of fact regarding the matters that were alleged to justify the dismissal of the respondent nor did it - or could it have in the absence of such findings - determine whether the dismissal was just and reasonable. [56] We would characterise the question of law in this case as the (implied) decision of the Board that it was unnecessary to determine facts that were centrally relevant to the exercise of its jurisdiction in that the Board was not required to determine whether the conduct alleged was proved or not and not required to determine whether RailCorp's decision to dismiss the respondent was just and reasonable. The error was the Board's failure to resolve all relevant questions of fact or issues placed before it by the parties necessary to resolve the controversy. [57] The appeal should, therefore, be upheld and in the circumstances the matter remitted to the TAB for determination according to law. 42Mr Greig is self-represented. He submitted he had to do a significant amount of research to establish exactly what the term "question of law" meant as opposed to a question of fact. He said he believed he had developed an appropriate understanding of the term. Further, Mr Greig said he had read Byrne and Elleray. Both of these decisions discussed the relevant case law as to what was a decision on a question of law. 43Mr Greig would also have had the benefit of my interlocutory decision where I specifically addressed the requirements under s 197B of the IR Act. 44Mr Greig presented as a person of considerable intellect. Despite the absence of legal training I am satisfied he would have understood what was required of him in being able to show on appeal that error had occurred within the narrow limits permitted by s 197B of the IR Act, that is, in relation to a decision on a question of law. Grounds of appeal 45There were 64 grounds of appeal. The appellant helpfully condensed these grounds to 10 matters that he contended constituted decisions on questions of law in respect of which Newall C erred. The 10 matters were as follows: (i) that not all relevant factors have been considered for each finding against the Appellant. (ii) that the Commission considered evidence that was not open to it to make decisions. (iii) that there was a breach of natural justice by infringing the fair hearing rule. (iv) that the Commission failed to address all aspects of the punishment against the Appellant in arriving at the decision. (v) that not all mitigating factors were considered in affirming DEC's punishment against the Appellant. (vi) that the Commission did not apply all the relevant DEC statutes and processes that affected the Appellant. (vii) that due to the issue of credit that the Commission reached conclusions that were not open to it. (viii) that the Commission did not give reasons as to why decisions were made to apparently ignore evidence and include other evidence. (ix) That the Commissions (sic) findings are inconsistent within themselves. (x) That the Commission reached conclusions that are not supported by the evidence. Leave to appeal 46In Greig v Director General, Department of Education and Communities [2014] NSWIRComm 26, a decision relating to interlocutory issues, I raised the question whether the provisions of Pt 7 of Ch 4 of the IR Act dealing with appeals to the Full Bench apply to appeals to a single member of the Industrial Court (see [15]). It was unnecessary to resolve that question. 47However, the question arises again in relation to leave to appeal in the present proceedings. Section 188 (which appears in Pt 7 of Ch 4) provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 48The question is whether the appellant is required to be granted leave to appeal in accordance with s 188. I have decided that this case is not the appropriate vehicle to determine that question, essentially for the same reasons I decided I would not determine the matter in the interlocutory proceedings. If leave is required, I propose to grant leave. Consideration Not all relevant factors considered 49Under this heading the appellant made submissions that I have summarised below. In respect of each of them I have sought to indicate why they do not concern a decision on a question of law or if they do, why no error exists. 50The appellant submitted that in assessing the appellant's performance the Commissioner did not refer to s 93G of the Teaching Services Act that refers to performance and review. There was no error of law because s 93G is concerned with performance reviews of officers. The respondent chose to treat the appellant's conduct that was the subject of the allegations as allegations of misconduct and, as it was entitled to under s 93F, dealt with the allegations as a disciplinary matter. Section 93G is not relevant where allegations of misconduct are made. The Commissioner was alert to the fact the appellant had contended the allegations were performance issues and not conduct issues. The Commissioner determined that the respondent was entitled to regard the allegations as going to matters of conduct. I am unable to find any error relating to a decision on a question of law. 51It was next submitted the Commissioner failed to take into account the "Satisfactory Performance Reviews" of the appellant from 2008 to 2011 prior to making findings of misconduct. The Commissioner was required to consider whether certain allegations of misconduct were made out and, if so, whether the decision to demote Mr Greig was appropriate. Presumably, the appellant was contending that his performance reviews were critical facts the Commissioner was required to have regard to, but did not, in order to determine the appeal. 52The Commissioner was alive to the question of whether he was dealing with conduct or performance issues. He specifically addressed that question at [137]-[143]. In identifying why he considered the appellant's behaviour constituted conduct and not performance the Commissioner said the appellant: [W]as on a number of occasions put on notice that there were concerns about has approach to his duties. He was given directions by Mr King, as his principal, which on the evidence he did not abide by. He was told that he would be given informal support, and although that support does not appear on the evidence to have amounted to much, he was not at all unaware that his Principal, and other responsible persons such as Mr Lewis, were concerned at a number of aspects of his conduct which have crystallised in that matters ventilated here. [142] There is no determinative line between performance issues and conduct issues, although there will be many issues which are obviously one or the other. Inadequate performance which shows no sign of change when specific directions are given in regard to what tis required may well be, and often is, a conduct issue. 53What the appellant seemed to be submitting was that, as his performance reviews were rated satisfactory, there could not have been any misconduct found on his part. It does not seem to me one necessarily cancels out the other. There was no attempt on the appellant's part to show on the appeal that there were such inconsistencies between his performance reviews and the allegations of misconduct that the veracity of the allegations had to be seriously questioned. Nor did he attempt to demonstrate on the appeal that the performance reviews of Mr Greig were undertaken in the knowledge of the allegations, which in any event did not arise for investigation until 2011-12. 54Further, a satisfactory assessment under a Performance Review could not nullify a properly based finding of misconduct following a disciplinary process, for example, that Mr Greig failed to carry out the TARS process contrary to instructions from the Department and his Principal, Mr King. It was also a breach of the then r 5 of the Teaching Service Regulation 2007. TARS involved provision of feedback on teachers' performance ensuring that the teacher's performance is appraised by annual review. 55The fact that the Commissioner did not refer in specific terms to the appellant's performance reviews is not in the same class of matters considered in Elleray. In Elleray the Board failed to decide facts centrally relevant to the exercise of its jurisdiction. 56Mr Greig next submitted no reference was made to the evidence of Mr Brison or Mr Bell. In ignoring their evidence it was contended the Commissioner was raising questions of their authority and ability to manage the school effectively. Natural justice, he said, required the Commissioner to address their role. I presume this submission was made out of Mr Greig's concern for Mr Bell and Mr Brison. If that is so it is not relevant to the appeal. 57In any event, I have examined the evidence of Mr Bell, who was Principal of Monaro from 2010 and of Mr Brison who was Deputy Principal of Monaro from 2001. He served with Mr Peter King, the Principal preceding Mr Bell from 2008 to 2010, and then with Mr Bell. 58Even if the Commissioner failed to have regard to the evidence of Mr Brison and Mr Bell that evidence would not have had the effect of changing the outcome. The evidence of these two men was considerably outweighed by evidence of those more directly involved in those matters that led to the allegations. For example, in relation to the allegation that Mr Greig failed to carry out his responsibilities as Head Teacher, English in 'leadership, administration, supervision and organisation of the English faculty" the detailed evidence of Ms Preston, Ms Roberts, Ms Crawford, Ms Wall and Ms Steel - all teachers in the faculty - as well as that of Mr King, was overwhelmingly against the appellant. Mr Bell, himself, conceded that the learning programs were not of a satisfactory standard. 59In relation to the TARS allegation, Mr Brison's evidence was simply that the majority of faculties at Monaro used an informal process. On the other hand, Ms Steel, Ms Howell, Ms Preston, Ms Roberts and Ms Wall gave evidence they were not subject to a TARS process by Mr Greig despite Mr King expressing his concern to Mr Greig that the process was not being followed in the English faculty. 60It was clearly open to Newall C to make the findings he did on the evidence before him. There was no relevant error. 61Mr Greig's third submission under this heading was that the term "program" was not defined in the decision. He said the Commissioner referred to the testimony of Mr Schipp, but not Ms Carolan regarding the maintenance and development of programs. Mr Greig contended that Ms Carolan's expertise in this area was far greater than that of Mr Schipp. He submitted no reason was given for not referring to Ms Carolan's evidence. 62I have read the evidence and submissions, which indicates to me there could have been no confusion about the term "program". Mr Greig appears to have known perfectly well that an allegation against him was that he failed to develop and maintain teaching and learning programs for teachers in the English faculty. Those allegations were based on complaints by teachers in the English faculty. Mr Greig addressed those allegations in his evidence. Furthermore, Mr Schipp in his oral evidence gave a very clear explanation of a teaching and learning program that the Commissioner referred to in his decision at [243]-[244] (see [72]). No error exists. 63That the Commissioner preferred evidence of Mr Schipp over that of Ms Carolan is not a decision on a question of law. In relation to Mr Schipp's evidence the Commissioner stated at [70]-[73] of his decision: [70] In the end, significant and detailed evidence about the need for a programme, the proper content of the programme, and the adequacy of Mr Greig's approach was given by Mr Kevin Schipp, the manager of the Staff Efficiency and Conduct Unit of the Department. Mr Schipp was (very properly) pressed hard in cross-examination on this matter by Mr Greig. [71] Mr Schipp's relevant evidence is to be seen at tpt 18 September beginning at p 214. At page 222 and following Mr Schipp gave detailed evidence, in cross-examination, about the materials that Mr Greig did have in place and whether they properly represented a teaching and learning programme. [72] Without reproducing all that evidence here, it is clear that in Mr Schipp's view as a senior departmental officer with previous senior teaching experience, there was no adequate teaching and learning programme in place in the English faculty at Monaro under Mr Greig's tutelage. Mr Schipp's evidence at tpt 243-44 sets out in detail what in his view a programme of the standard required would be. When pressed, he expresses the forthright view that the document that was in existence fell so far short of what was required that the proper approach would be to tear it up and start again. [73] I found Mr Schipp's evidence persuasive. When it is taken together with the evidence of Ms Roberts, Ms Preston, Ms Steel, Ms Crawford, Ms Wall and indeed Mr King that there was no programme put in place by Mr Greig, even allowing for the fact that some of those latter persons might be said to have formed an adverse view of Mr Greig, and add to that the evidence of Ms Carolan, it establishes in my view that there was not a teaching and learning programme of the kind properly required in place in the English faculty before 2011. 64I have read the evidence of Mr Schipp and Ms Carolan. Whilst Ms Carolan may be an excellent Head Teacher with considerable expertise in teaching and learning programs, as the Commissioner observed Mr Schipp was a senior departmental officer with previous senior teaching experience. As the person responsible for determining, in the context of misconduct allegations, whether adequate teaching and learning programs were in place at Monaro he was in possession of strong evidence from teachers in the English faculty and a former Principal of Monaro that such programs were not in place. What is more, despite her sympathetic view of Mr Greig's efforts regarding the development and maintenance of programs it seems to me that Ms Carolan's evidence did not provide a satisfactory basis upon which the Commissioner could conclude that Mr Greig's development and maintenance of teaching and learning programs were adequate. At no point in her evidence or in her interview with departmental investigators did Ms Carolan state that Mr Greig had in place proper teaching and learning programs. No error exists. 65Next, Mr Greig submitted the question of double jeopardy was not addressed in the decision. That is, matters dealt with previously by the respondent and resolved were resurrected and used again to support findings of misconduct against the appellant. The appellant seems to be using the term "double jeopardy" in the sense that a person cannot be penalised again for the same offence. It is not clear to me whether the appellant's complaint was that the respondent, in separate investigations, dealt twice with the same allegations or that as the respondent found him guilty of certain counts of misconduct he was placed in double jeopardy by the Commissioner's consideration of the same allegations and again found guilty. 66As to the first circumstance, I agree with the respondent: it appears not to have been argued at first instance in final submissions by the appellant and should not now be considered on appeal. Further, the submission was so broad as to be meaningless. 67As to the second circumstance, the legal concept of double jeopardy has no application here. Even though it may be the case that the respondent found the appellant guilty of certain counts of misconduct and the Commission found the same thing, the respondent was not a court or tribunal. The Commissioner's findings were the outcome of an appeal by the appellant against the findings of his employer. The purpose of an appeal under s 98 of the IR Act is to enable the appellant to challenge an appealable decision made by the employer. The appellant was not "tried twice for the same offence." In any event, there was no decision on a question of law. No error exists. 68The appellant's next submission was that the Commission did not address the word "develop" regarding programs. He submitted this made it hard to see if the evidence had been tested against all parts of the allegations. I do not quite understand this submission but it does not involve a decision on a question of law. What is more, the evidence was incontrovertible: Mr Greig failed to properly develop teaching and learning programs at Monaro. No error exists. 69The Commissioner, Mr Greig submitted, did not refer to Higher School Certificate and School Certificate results that were submitted to the respondent's investigation in 2012. He said the results would have indicated there were adequate teaching and learning programs within the English and Drama faculty at Monaro. 70There was no elaboration of this submission or any attempt made to show the Court on appeal how the connection was to be made between the exam results and the proposition that the appellant did not fail to consistently develop and/or maintain teaching and learning programs. The bare fact that the exam results may have placed Monaro in a favourable light (if that was so) does not prove the proposition, especially in light of the strong evidence supporting the allegation. 71If the appellant was under an obligation (which he was) to develop and maintain teaching and learning programs to a certain standard required by the respondent for his faculty and failed to do so, good results from the Higher School Certificate and School Certificate do not change that fact. No error exists. 72The appellant submitted the Commission did not address the assessment that is required under s 93G of the Teaching Service Act of the appellant's performance. According to the appellant that performance had been rated as satisfactory for every year prior to 2009 and in years 2010-2012 (no assessment was made in 2009). By failing to take into account these assessments, it was submitted the Commissioner failed to give credit to what is the major annual form of review used by the respondent. 73I have already dealt with this submission to some extent. It does not seem to me to involve a decision on a question of law. Moreover, no evidence was brought to my attention that the specific allegations of misconduct against Mr Greig constituted matters that were the subject of his performance reviews in the relevant years. Unless it is clear from the evidence that the allegations against the appellant were matters that had regard to his performance reviews, it cannot be simply assumed that was the case. 74The fact that neither Mr Bell nor Mr Brison made allegations of misconduct and that Mr Bell signed off performance reviews as satisfactory, does not mean the allegations had no substance. The submission that their evidence should be treated as the "best evidence" of the appellant's conduct is tantamount to submitting the direct evidence of teachers and students going to the precise nature of the misconduct, was of no consequence. 75It was not the responsibility of either Mr Bell or Mr Brison to investigate the allegations made against Mr Greig or to determine whether they had been made out. That was the responsibility of Mr Schipp in accordance with the Department's policies and procedures and the Teaching Service Act. Mr Schipp was required to have the misconduct allegations fully investigated and to make a decision on the evidence before him whether the allegations had been made out. 76Furthermore, as the respondent submitted, the hearing before the Commissioner was a hearing de novo. That is, the Commission is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decision maker (see Caiman v Commissioner of Police (1999) 167 ALR 91 and von Senff v State Transit Authority [2013] NSWIRComm 1013 at [29]). The Commissioner, after hearing the evidence and submissions, found the appellant had engaged in misconduct. 77Finally, on this point, it is apparent the Commissioner had regard to the evidence that favoured Mr Greig. Newall C observed that: Mr Greig is a teacher of singular ability and has a real passion for the subjects that he teaches. [T]here was a significant body of evidence of outstanding success in the conception, instigation and execution by Mr Greig of projects involving students and the school generally, ranging from the school magazine Kunama to a range of music and drama presentations of a quality which would do credit to any school, let alone a smaller school such as Monaro, and which did bring that credit to Monaro. [T]here was uncontested evidence that Mr Greig had mentored and assisted beginning teachers to their significant benefit. 78Nevertheless, as the Commissioner remarked at [50]-[51]: [50] The ability to teach the best students so that they reach their full potential, which ability Mr Greig, on the evidence, has amply demonstrated, is however not all that the Department requires of a Head Teacher. In the world of Departmental school education, the gifted and passionate teacher who accepts a Head Teacher role is not excused conformity with the administrative requirements of that role; these requirements include, on the evidence, obligations of leadership, administration, supervision and organisation of the relevant faculty. [51] In the end it is in these matters that Mr Greig has exposed himself to censure from the Department. 79It was next submitted that the Commissioner referred to evidence contained in nine affidavits sworn or affirmed by witnesses for the respondent in circumstances where the witnesses were not subject to cross-examination. I presume that the appellant is contending that because he was unable to test the evidence of these witnesses he was not accorded procedural fairness and that the decision of the Commissioner to not allow cross-examination was a decision on a question of law in respect of which the Commissioner erred: see Byrne. 80As I read the record of proceedings before Newall C, the Commissioner was concerned at the length of time the parties were proposing to take: some 10 to 15 days in respect of an application related to the demotion and transfer of a public sector employee and filed in 2012. The Commissioner was not prepared to countenance such a proposal and limited the proceedings to four days, with two days allocated to each party to deal the evidence. That is, each party had two days in which to bring their evidence in chief and cross-examine. As Newall C stated at [13]: The parties were advised that each had in effect two days in their own case and were told that they should turn their minds to whom they really needed to call to give evidence in their own case and whom they really needed to cross examine in their opponent's case, and to give advice of that each to the other. 81It is to be noted the respondent strongly opposed the truncation of proceedings. However, the appellant supported it. 82Having assumed the onus of proving the misconduct the respondent proceeded to call four of its witnesses: Mr King, Mr Schipp, Mr Salvestro (a pupil at Monaro in 2009 and 2010) and Ms Millington (a teacher at Monaro responsible for student welfare). Examination in chief was short, reliance being placed on the witness' affidavits. Knowing he was limited to two days, the appellant used all of that time to cross-examine the respondent's first four witnesses. The appellant was aware that there were seven other persons the respondent had indicated would be called if time permitted, namely, Ms Roberts (English and Drama teacher at Monaro), Ms Preston (English/Dance/Drama teacher at Monaro), Ms Steel (English teacher at Monaro), Ms McNab (Head Teacher of Creative Arts at Monaro), Mr Tame (Head Teacher of Science at Monaro), Ms Wall (English and History teacher at Monaro) and Ms Howell (English teacher at Monaro). 83At the conclusion of the evidence of Mr King, Mr Schipp, Mr Salvestro and Ms Millington at the end of the second day of proceedings, the respondent sought to tender into evidence the affidavits of Ms Roberts, Ms Preston, Ms Steel, Ms McNab, Mr Tame, Ms Wall and Ms Howell. The appellant took no objection - despite being advised they would be used in evidence - and the affidavits were admitted. Despite Mr Greig being a self-represented litigant, he would have understood the implications of allowing the affidavits into evidence. It is to be noted the appellant was in possession of each of the affidavits of the aforementioned teachers before the hearing commenced and had the opportunity, in reply affidavits that he filed, to respond to what they had deposed. 84There is no doubt that the Commissioner did have regard to the affidavit evidence of those teachers that were not subjected to cross-examination by the appellant. However, it seems to me that evidence was in the main sought to be admitted as supportive of the evidence of Mr King who, along with Mr Schipp, were the main witnesses for the respondent. 85In the circumstances, it is too late now for Mr Greig to take the point that he was not given the opportunity to cross-examine some of the respondent's witnesses. He was fully apprised by Newall C as to what was expected of him, he clearly understood those directions and when he found he had used all of his allocated time cross-examining four of the respondent's witnesses, he took no objection to a further seven affidavits for the respondent being admitted into evidence, despite knowing they would not be subject to cross-examination by him. There was no procedural unfairness. No error exists. 86It was next submitted the Commissioner cited evidence outside the timeframe of the allegations made against the appellant. This was a reference to [79] of the Commissioner's decision where it was stated: [79] Ms Steel, who was when she first came into the English faculty under Mr Greig a probationary teacher, further says that it was only in 2012 when another Head Teacher was in place that she became aware that TARS involved conferences between the teacher and Head Teacher and observations and review of her teaching materials and samples of students' work, evaluations and reports. 87The appellant's submission is incorrect. Ms Steel was merely comparing her experience in 2010-11 with that in 2012 when she did undertake the TARS process. 88The appellant submitted his evidence regarding the TARS process was not addressed. He referred to (but did not identify) the evidence of Mr Brison and the appellant's own evidence in this respect. No reason was given for ignoring this evidence, it was submitted: Mr Brison gave evidence regarding the appellant's leadership, but his evidence does not appear to have been considered. 89Again, it appears (but was not stated) that the appellant was contending the Commissioner erred in relation to a decision on a question of law because he decided the TARS allegation had been made out without having regard to the appellant's evidence. 90The Commissioner did refer to the appellant's evidence. When one considers that evidence and the evidence supporting the allegation, the latter heavily outweighs the former. The appellant claimed he undertook an informal TARS process. However, it seems it was so informal that none of the teachers who gave evidence understood they were subjected to the process. 91The next submission was in respect of the allegation that "on a number of occasions" the appellant failed to provide written feedback to students. The appellant submitted this was contrary to the evidence. The appellant submitted only two students supported the allegation so it had not been proved there was a failure "on a number of occasions". This is not a decision on a question of law. 92The appellant next submitted that in respect of the allegation "Failing to consistently use marking rubrics in accordance with Board of Studies (BoS) guidelines" the evidence of former students was ignored without explanation. The Commissioner, it was contended, relied only on the evidence of one student in 2009 to make good the allegation. It was also submitted the Commissioner provided no reason for ignoring the evidence of students aside from Mr Salvestro. Seven students gave evidence in the appellant's favour. Evidence of Mr Brison in the appellant's favour was also ignored, it was submitted. 93That the Commissioner preferred the evidence of some witnesses to that of others, or did not find it necessary to explain why some evidence was not addressed in the decision, is not a decision on a question of law. As to the question of adequate reasons regarding the failure to use marking rubrics, the Commissioner found: [102] The evidence was that Mr Lewis and Mr King both formed the view that Mr Greig's use of rubrics 'were at best of a minimal standard'. Mr King's correspondence with Mr Greig in March 2010 is a contemporaneous record of his concern about this matter. [103] Relevantly, in correspondence to which I have referred above, Mr King wrote to Mr Greig in July 2009 setting out a factual finding that Mr Greig had failed to use marking rubrics in particular pieces of work. [104] In my view the particular as a matter of fact is made out. Again, I return to its proper characterisation below. 94Clearly, the Commissioner gave reasons based on the evidence, particularly the evidence of Mr King. There was no error in relation to a decision on a question of law. 95It was next submitted the Commissioner failed to note that in the investigation into the appellant's conduct, the appellant's direct supervisors - Mr Brison and Mr Bell - were not interviewed by the investigator prior to making findings of misconduct. This does not amount to a decision on a question of law. I note, firstly, the investigator did not make findings of misconduct. More to the point, however, the hearing before Newall C was a hearing de novo. The Commissioner was required to determine the matter on the evidence before him, not evidence gathered or not gathered by the investigator. 96The appellant next submitted the original decision to demote and transfer the appellant was based on 16 counts of misconduct. The Commission reduced this to four. The appellant submitted it was a question of law as to just how the number of findings of misconduct could be reduced by 75% yet the punishment remained identical. 97The decision the Commissioner was required to make regarding penalty was whether the penalty imposed was appropriate in all the circumstances. That decision involved questions of mixed fact and law. The Commissioner found at [156], [159] and [160]: [156] What is established in my view is that Mr Greig misconducted himself in two significant areas; the failure to provide adequate teaching and learning programmes for his faculty and the failure to provide adequate supervision of and support to teachers within his faculty by means of the TARS scheme. I have also found that he misconducted himself in two express failings in respect of marking, a matter not to be regarded lightly. ... [159] His failings in my view have been in the essential area of the responsibilities as a Head Teacher. I accept the submission of the Respondent that it has very high expectations of a person in the role of Head Teacher particularly in relation to leadership and setting an example for other staff. [160] Accordingly, while I accept that the decision to demote Mr Greig is a matter of the utmost gravity to him, indeed that it is, particularly when the transfer that is consequential on the demotion is considered, a life-changing decision for him, a matter to which I have given serious consideration, I am unable to find that the decision to demote Mr Greig was harsh, excessive or inappropriate. In coming to that view I have had regard, as I have throughout this matter, to the provisions of s.5A of the Teaching Service Act. 98It is not so much the quantity of the substantiated allegations, but rather their quality that was relevant in determining penalty. The Commissioner found the appellant failed in essential areas of his responsibilities as a Head Teacher. It does not seem to me there was any error, particularly having regard to the disciplinary options under s 93B of the Teaching Service Act, in the imposition of a penalty involving demotion to the position of teacher for a period of two years. The appellant, plainly, was not adequately fulfilling the obligations of a Head Teacher as required by the respondent. No error exists. 99The appellant next submitted that despite the respondent contending the transfer of the appellant was not discipline related and was because there was no position at Monaro for a classroom teacher, there was no evidence that the situation at Monaro had been investigated to see whether such a position was, in fact, available. This is not a decision on a question of law. The Commissioner accepted evidence that the transfer was not discipline related. It was open to the Commissioner to accept that evidence. He found that in those circumstances, correctly in my opinion, he had no power to make any order regarding the transfer. Commission considered evidence that was not open to it to make decisions 100Under this heading the appellant effectively repeated some of the complaints he made under the first heading. That being the case I have not dealt with them a second time. 101The appellant submitted that the respondent did not proceed to have the evidence of a Ms Crawford admitted, yet the Commissioner referred to her statements on four separate occasions. 102The respondent conceded a reference should not have been made to the evidence of Ms Crawford, but such error was not an error in respect to a decision on a question of law: see Clisdell at 398; Hutchinson at [33] and Lambert at [74]-[75] per Basten JA. I think that is correct. In any event, it would not appear that reliance on Ms Crawford's "evidence" was critical to any of the Commissioner's findings. It was "evidence" supporting other admitted evidence of the respondent. Even if the Commissioner had not had regard to Ms Crawford's statements he would have been entitled to reach the same conclusions he did in his decision. 103The appellant submitted the Commissioner cited a letter from Mr King to the appellant in March 2010. Mr Greig contended the Commissioner's references to it do not support the content of the document because, contrary to what the Commissioner stated, the letter did not mention informal support except in hindsight. This is not a decision on question of law and has no relevance to the correctness of the Commissioner's decision. 104The appellant next submitted the Commissioner, at [91] of his decision stated: [C]oncerns about Mr Greig's approach to marking were raised by two principals at Monaro High School, including Mr King, and continued until 2011. 105The appellant submitted the evidence did not support the citing of "two principals". This is not a decision on a question of law. In any event, I note it was not only Mr King who was concerned with marking, but also a Mr Aston, who was the School Education Director and whose concern Mr Bell passed on to Mr Greig. 106It was next submitted the Commissioner made an error of law when he stated at [91] that the question of the appellant's "marking was referred to Mr David Lewis" (my emphasis). Not only is this submission somewhat pedantic (the appellant had appealed a decision of Mr King and Mr Lewis heard the appeal), but it is not a question of law. 107The appellant next challenged the findings of the Commissioner at [63] where it was stated: [63] Mr King went on, however, to describe his own experience with the teaching and learning programmes in the English faculty. Mr King said that he ultimately got Mr Greig to write a faculty programme, which Mr Greig did with input from others. He said that he raised concerns about teaching and learning programmes with Mr Greig in September 2009, and that the informal support he proposed for Mr Greig in March 2010 was due in part to concerns about lack of teaching and learning programmes. 108The appellant contended there was no mention of teaching and learning programs in the letter and that the informal support was that offered in 2009 and was not an ongoing offer in 2010. Even if the Commissioner erred in his interpretation of the letter (if he did it was of little consequence given the weight of the evidence supporting the substantiated allegations) it was not a decision on a question of law. 109The appellant next submitted that in [65] and [66] of the Commissioner's decision he sought to use evidence that was outside the time frame of the allegations. These paragraphs stated: [65] Ms Wall, who relevantly has acted as Head Teacher in the English faculty at Monaro since January 2012, having earlier been a teaching member of that faculty under Mr Greig, gave evidence that Mr Greig 'gave very little active assistance' in putting learning and teaching programmes in place. He did not, said Ms Wall, 'compose/create any well processed programs for the faculty': affidavit, para 53. [66] She further gave evidence about the materials that Mr Greig did provide, but characterised them as falling well short of the learning and teaching programme that was needed and that has, since 2012, begun to be put in place: affidavit, paras 54-60. 110The purpose of references to the period after 2011 was to demonstrate the failure of the appellant in the relevant time (2008-2011) and was not an error by the Commissioner. 111The appellant next referred to [68] of the Commissioner's decision where he stated: [68] On the evidence, including Ms Wall's evidence, Mr Greig did present a programme after input from his colleague Ms Carolan. Ms Carolan was called in evidence by Mr Greig; her evidence supports the view that there was no, or no adequate by the Department's standards, teaching and learning programme in the English faculty at Monaro before she became involved in assisting to develop one. 112The appellant contended that the Commissioner erred because Ms Carolan's evidence did not support the view that there were no adequate teaching and learning programs in place at Monaro. At no point in her evidence did Ms Carolan say the teaching and learning programs at Monaro were adequate. Ms Carolan said that when she visited Monaro she explained to teachers the "conceptual programming model" she employed at Manly. It appears that the appellant sought to make a transition to this model at Monaro, but that Ms Carolan felt his approach to the transition was wrong. 113Even if there was an error in interpreting Ms Carolan's evidence it was not an error concerning a decision on a question of law. Ms Carolan's evidence seems to be neutral on the question of whether there were adequate teaching and learning programs in place at Monaro. Given the weight of other evidence that the programs were not adequate any error in interpreting Ms Carolan's evidence is of no consequence. 114The appellant referred to [114] of the Commissioner's decision, which was as follows: [114] Evidence was brought from Mr Salvestro, who was in some of the relevant classes, to the effect that Mr Greig on occasions arrived at class late and on one occasion did not attend at all. (Affidavit paras 38-40) Ms Howell gave evidence of occasions when Mr Greig was late to class and occasions when he did not appear at all. She said that she had a particular knowledge of this because her classroom was, until she was moved to another, next door to Mr Greig's room. 115The appellant submitted Mr Salvestro was in one of his classes for six months in the year 2010. The appellant contended he did not teach Mr Salvestro at any other time; to say he was in "some" was not supported by the evidence. This is not a decision on a question of law. In any event, even if the Commissioner was wrong on this point, the evidence established Mr Greig was late on occasions. In relation to the allegation the Commissioner was satisfied (at [155]): [T]hat Mr Greig was on occasion late to class and that (at least once) he failed to appear at all. While such behaviour by a teacher is in no wise to be condoned, I am not satisfied that this has been proven to have occurred consistently enough and without exculpatory factors to be prepared to characterise it as misconduct in this particular case. 116The appellant next referred to [140] of the Commissioner's decision, which states: [140] In sum, my view is that the Department was entitled to regard the concerns it had with Mr Greig as conduct matters. It is not as if Mr Greig was allowed to continue unremarked by the Department and then faced with a claim of misconduct going back some time. 117The appellant submitted the Commissioner did not give weight "to the law regarding Executive Teacher (sic) Review (EARS)." Mr Greig contended that given he was passed as satisfactory in 2010 and 2011 (and 2008) it was true to say that the Department's "remarks" were positive. Therefore, he submitted, what the Commissioner stated at [140] ("It is not as if Mr Greig was allowed to continue unremarked by the Department and then faced with a claim of misconduct going back some time") was actually what happened, but in a positive vein. The appellant submitted the conclusion the Commissioner reached could only be sustained "by ignoring the implications of the legislated program of Review and supervision that all teachers participate in some form." 118I have dealt with this issue earlier in this judgment. I should add that it is undoubtedly the fact that Mr King raised concerns with Mr Greig regarding his conduct during the time frame spanning the allegations. This is what the Commissioner was referring to when he said Mr Greig's conduct had not gone unremarked. Furthermore, I note the Executive Annual Review (EARS) process is not a legislated program. No relevant error exists. 119The appellant next referred to [141] of the Commissioner's decision, which states: [141] Rather, he was on a number of occasions put on notice that there were concerns about has approach to his duties. He was given directions by Mr King, as his principal, which on the evidence he did not abide by. He was told that he would be given informal support, and although that support does not appear on the evidence to have amounted to much, he was not at all unaware that his Principal, and other responsible persons such as Mr Lewis, were concerned at a number of aspects of his conduct which have crystallised in that matters ventilated here. 120The appellant submitted there was no evidence to support the finding that he was given directions by Mr King, which he did not abide by. It seems to me there was such evidence. For example, in September 2009 Mr King wrote to Mr Greig indicating he had concerns about Mr Greig's teaching efficiency. Mr King specified his areas of concern, which included feedback to students, the TARS process and marking. Mr King said, "I expect you to positively address these concerns..." otherwise it might be necessary to place Mr Greig on a formal Teacher Improvement Program. 121The letter was not strictly a direction, but clearly Mr King was requiring Mr Greig to take steps to improve his teaching efficiency. Mr King also gave evidence that in 2009 he "directed" Mr Greig to conduct formal TARS with each member of the English faculty. 122Whilst it is true that Mr King said to Mr Greig in March 2010 that the appellant had improved in many areas, Mr King identified eight areas that remained to be addressed. Mr King did form the view that Mr Greig had not improved after the September 2009 letter and had intended to place him on a formal improvement program, but Mr King received notice he was to be transferred as Principal at Byron Bay High School. Mr King did not proceed to notify Mr Greig about a formal improvement program and merely identified further areas for improvement in his March 2010 letter to Mr Greig. 123Paragraph [141] of the Commissioner's decision is not a decision on a question of law. Moreover, it is in general terms an accurate reflection of the evidence. 124Mr Greig next referred to [150] of the Commissioner's decision, which states: [150] I observe that both the Board of Studies document 'HSC Assessments and Submitted Works - Advice to Students' and the Board of Studies document 'HSC Assessment in a standard referenced framework - a guide to best practice' hold that students are to be provided with 'feedback that assists them to review their work' and 'feedback in respect of their strengths and weaknesses and areas for improvement.' I accept that these requirements are part of the overall system of marking vital to the conduct of the senior school years. A failure to provide this feedback adequately might at the outset be a performance issue. Where it persists, as in my view it did here after appropriate directions were given to Mr Greig, it is able to be characterised as misconduct within the meaning of s.93C and, given the importance of the requirement, I find that it did constitute misconduct in this case. 125The appellant submitted there was no evidence to support the finding that there was a persistent failure to provide feedback to students. Even though there was a conflict in the evidence regarding Mr Greig's practices regarding feedback to students, Newall C was entitled to form a view about which evidence he preferred. There was evidence from students and teachers regarding the failure to provide feedback. Mr King raised with Mr Greig his concern about the appellant's failure to provide feedback. There is no error in relation to a decision on a question of law. There was a breach of natural justice by infringing the fair hearing rule 126This is the third main area of the appellant's complaints on the appeal. The complaints cover the same ground as the matter I dealt with earlier in this judgment, namely, that the appellant was not accorded procedural fairness because he was not given the opportunity to cross-examine a number of the respondent's deponents on their affidavits. 127I do not intend to repeat myself, but I should add to make it clear that I consider there was no error of law. The Commissioner was acting entirely within his power to truncate the proceedings and both sides were treated equally. The Commissioner made it abundantly clear on 17 September 2013 that subject to those parts of affidavits for both sides that had been ruled inadmissible the affidavits would be admitted regardless of whether deponents were cross-examined on the affidavits. It was a matter for the parties to manage their allocated time effectively and efficiently. When he found he had used up all of his allocated time and there were still a number of the respondent's witnesses available for cross-examination it was open to the appellant to record his objection to the affidavits being admitted in the absence of an opportunity to cross-examine. He did not do so. There was no procedural unfairness. The Commission failed to address all aspects of the punishment against the Appellant in arriving at the decision Not all mitigating factors were considered in affirming DEC's punishment against the Appellant 128Again, in some instances the appellant has repeated submissions in relation to complaints raised under earlier headings. I do not propose to address these matters a second time. 129The appellant referred to [45]-[48] of the Commissioner's decision, which state: [45] It is apparent that Mr Greig is a teacher of singular ability and has a real passion for the subjects that he teaches. There was uncontroverted evidence from a number of former students of Monaro High School who had been taught by Mr Greig that Mr Greig's approach to teaching had for them been life-changing, significantly and for the better. That is uncommon, and in many ways the highest commendation that a teacher may attract. [46] That evidence was reinforced by evidence to the same effect from parents of students taught by Mr Greig. [47] Supporting that evidence, there was a significant body of evidence of outstanding success in the conception, instigation and execution by Mr Greig of projects involving students and the school generally, ranging from the school magazine Kunama to a range of music and drama presentations of a quality which would do credit to any school, let alone a smaller school such as Monaro, and which did bring that credit to Monaro. [48] Further, there was uncontested evidence that Mr Greig had mentored and assisted beginning teachers to their significant benefit. 130The appellant submitted the material within these paragraphs should have been considered in regard to the allegation that "Between 2008 and 2011, failed to consistently and professionally carry out your responsibilities as Head Teacher English in leadership, administration, supervision and organisation of the English faculty, including but not limited to...." It was further submitted the Commissioner also left out the evidence that "demonstrated leadership across the school in technology, behaviour and literacy...." Mr Greig contended that the first criterion in assessing whether a teacher was a good Head Teacher was the quality of their classroom practice. He said it disadvantaged him not to have included all of the matters referred to in [45]-[48] under the allegation relating to leadership. 131No error arises. The Commissioner said at [50]-[51]: [50] The ability to teach the best students so that they reach their full potential, which ability Mr Greig, on the evidence, has amply demonstrated, is however not all that the Department requires of a Head Teacher. In the world of Departmental school education, the gifted and passionate teacher who accepts a Head Teacher role is not excused conformity with the administrative requirements of that role; these requirements include, on the evidence, obligations of leadership, administration, supervision and organisation of the relevant faculty. [51] In the end it is in these matters that Mr Greig has exposed himself to censure from the Department. 132The appellant referred to a number of factors that should have been taken into account in mitigation. These included: the decision to restrict the appellant's ability to apply for higher positions for two years, that the appellant has effectively not worked as a Head Teacher since he was removed from Monaro at the start of 2012, that the appellant was removed from school on the basis of what were characterised as issues of child protection in circumstances where the Commissioner found the relevant allegation had not been made out, and that the appellant was placed in a position that involved no face to face teaching, which effectively constituted an additional punishment and has had a negative impact on the appellant's health. 133Other than the issue of child protection, none of these matters are relevant in a jurisdiction that is entirely protective: Lambert. This matter is discussed more fully later in this judgment under the heading "Protective or punitive". 134In relation to the child protection issue, it will be recalled that one of the allegations (Allegation J) was that: (J) Between 2004 and 2009, failed to treat a female student, namely Sarah Redmond, with respect, fairness and consistency, in that you: (xii) On one occasion becoming very angry and aggressive towards your Principal, Mr Peter King, in front of students, including Sarah Redmond, when you chased Mr King across a quadrangle and then while standing over him pointing your finger at him, screamed your objection to Mr King's decision about the outcome of the petition, causing Sarah to become fearful of being physically harmed by you. 135The respondent found this allegation was made out. As a consequence, Mr Schipp advised the appellant that: Having completed these employment proceedings, I am required to consider whether the allegations amount to reportable conduct. I have decided that allegation J constitutes reportable conduct. This being the case, in line with employer's responsibilities as required by legislation, your name has been referred to the Commission for Children and Young People, as Category One. See attachment, Information about Reporting to the Commission for Children and Young People, for further detail. 136The Commissioner found the allegation was not made out: see [123]. That being the case it seems to me the respondent has a serious obligation to withdraw the referral of the appellant's name to the Commission for Children and Young People, there being no basis for the name to have been referred. 137In relation to the appellant's removal from face to face teaching, as an aspect of punishment it is not a relevant consideration: Lambert. Moreover, the Commissioner was precluded from interfering with the consequences of the transfer; it not being discipline related. The Commission did not apply all of the relevant DEC statutes and processes that affected the Appellant 138The appellant raised again the issue of performance reviews and the role of a Head Teacher. I dealt with these matters earlier in this judgment. 139The appellant next submitted the Commissioner did not use the regulations in the Teachers' Handbook that explicitly state that each individual teacher is required to take responsibility for their class programming. He submitted that Newall C's finding, that it was the Head Teacher's role to "provide" teaching and learning programs, was not supported by any of the respondent's regulations or advice. Mr Greig submitted the Commissioner appeared to put the sole responsibility for teaching and learning programs on the Head Teacher rather than seeing the role as one of support and guidance. Further, that the Commissioner did not provide any legal or evidential basis for this finding. 140It may be the case that the Teachers' Handbook places a responsibility on teachers to devise and document teaching and learning programs at the individual classroom level. The evidence was that a Head Teacher was required to develop and maintain a faculty teaching and learning program. The evidence was that the appellant failed to consistently do so and the Commissioner found accordingly. No error exists, let alone an error in relation to a decision on a question of law. Due to the issue of credit that the Commission reached conclusions that were not open to it 141The appellant raised issues about Mr King's credit as a witness. The appellant referred to Mr King's evidence where Mr King conceded there were three errors in his affidavit. The appellant submitted, therefore, those parts of the affidavit were a "fabrication" because Mr King "appears to have concocted an entire narrative." The appellant submitted the Commissioner did not address these matters in his decision. 142 The appellant also referred to inconsistencies in Mr Salvestro's evidence and submitted that as the Commissioner had disregarded Ms Millington's evidence because of its unreliability, the Commissioner should disregard the evidence of Mr King and Mr Salvestro. 143In relation to Mr Salvestro, it may be observed that the Commissioner found two allegations were not made out. These were that Mr Greig failed to treat Mr Salvestro, appropriately in that he, first, made disparaging comments to him about coming from St Patrick's Catholic School and second, that he failed to provide proper feedback for a task and did so discourteously. In respect of other allegations about which Mr Salvestro gave evidence the Commissioner accepted that evidence. 144At [98] the Commissioner referred to the appellant's attack on Mr Salvestro's credit: [98] I note that Mr Greig called Mr Salvestro's credit into question regarding other answers he gave in his oral evidence, which was tested in cross-examination. I found, however, no reason to disbelieve Mr Salvestro on this point. 145I am unable to find any basis upon which the Commissioner erred in relation to Mr Salvestro's evidence. In relation to Mr King, the proposition that because Mr King conceded he was in error in relation to three matters in his affidavit does not provide a proper basis to contend the Commissioner erred in respect of a question of law by not disregarding Mr King's evidence. The Commission did not give reasons as to why decisions were made to apparently ignore evidence and include other evidence 146The appellant referred to various parts of testimony given at first instance and submitted that reasons were not given by the Commissioner for accepting evidence of some witnesses and not others and that evidence supporting the appellant's case was ignored by the Commissioner. 147There is a duty to give reasons, but as I earlier explained, the extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided. It is critical that the tribunal's decision adequately discloses the steps involved in the reasoning that led to the result or conclusion reached by it. To fail to do so may constitute an error of law. Whether it constitutes an error in relation to a decision on a question of law is, however, a different matter. The appellant is required to identify with some precision the decision of the tribunal on a question of law in respect of which it is contended error occurred. 148Where it is contended the reasons were inadequate it behoves the appellant to show the inadequacy was of such a nature that the tribunal failed to resolve relevant questions of fact or issues placed before it by the parties necessary to resolve the controversy (see for example, Elleray). In my opinion, the appellant has not done this. 149For example, the appellant submitted that because the Commissioner did not specifically address evidence of some students or failed to give reasons as to why he found certain elements of the allegations were made out, that constituted the relevant error. The appellant did not show how it was that there was failure of the Commissioner to address the evidence of students that the appellant provided constructive feedback, which according to the appellant meant that the Commissioner had discarded or overlooked that evidence and, therefore, committed an error of law. 150In this regard, the Commissioner accepted evidence of Mr Salvestro that he did not receive adequate feedback. He accepted evidence from Mr King that another student did not receive adequate feedback for assessment tasks from Mr Greig. The Commissioner accepted further evidence from Mr King that a particular piece of work was handed back to a student without a mark or a comment and fifteen weeks' late and that other student work was handed back without comment. That other students may have given evidence that they received adequate feedback from Mr Greig does not alter the fact that other students did not. 151I am unable to find error under this heading. The Commission's findings are inconsistent within themselves 152The appellant submitted that there was an inconsistent finding in that the Commissioner found no program was in place, yet found Mr King had stated in his evidence that an English program existed in 2009. 153The Commissioner found at [73] that "there was not a teaching and learning programme of the kind properly required in place in the English faculty before 2011." I am unable to find any statement by the Commissioner that is inconsistent with that finding. No error exists. The Commission reached conclusions that are not supported by the evidence 154Matters raised under this heading have already been addressed earlier in this judgment. No error exists. Protective or punitive 155There is one final matter not raised by the appellant on the appeal. At [27]-[33] of his decision Newall C discussed the nature of the jurisdiction: [27] The Commission may impose a punishment different to that imposed by the initial decisionmaker. In this case the range of punishments available to the decisionmaker are set out at s.93B of the Teaching Service Act. While arguably the Commission is not, given the terms of s.100C(2) of the Act, confined to those punishments it would be appropriate in my view that the Commission have regard to the punishments the parliament has seen fit to provide in the statutory instruments applicable to particular types of public sector employment. [28] The Commission's view of an appeal of this nature is to be formed on the basis of, first, whether the misconduct said to be the basis for the punishment is made out; and second, if it is, whether the punishment imposed, here dismissal (sic), is appropriate: Duhbihur loc cit, Rail Corporation of NSW v Elleray [2013] NSWIRComm 86 at [54]. [29] The Commission must also satisfy itself that the decisionmaker has in the first instance acted lawfully. [30] Counsel for the Department submitted that the disciplinary power exercised by the Director-General in this matter was 'protective, not punitive', analogously with the manner in which disciplinary powers exercised by the Commissioner for Police have been characterised: Commissioner for Police v Donlan (unreported, Supreme Court of NSW, 8 August 1995). [31] In general, the disciplinary powers exercised in relation to public employees who do not have fiduciary-like duties are, without more, punitive in nature, not protective of the general public: Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 276, at [106]-[107]. [32] However, the powers exercised by the Director-General in this case were necessarily exercised having regard to s.5A of the Teaching Service Act 1980, which, summarised, provides that any action taken in respect of an officer must have regard to the paramount consideration of the protection of children. [33] That statutory obligation, which, it should be noted, is expressly provided at subs. 5A(2) of the Teaching Service Act to have effect despite anything in the Industrial Relations Act, introduces a protective element into the exercise of the powers by the original decisionmaker and necessarily introduces that protective element into the exercise of powers carried out by the Commission, given that the Commission is required to determine the matter de novo, as I set out above. 156Later in his decision, the Commissioner stated at [160]: [160] Accordingly, while I accept that the decision to demote Mr Greig is a matter of the utmost gravity to him, indeed that it is, particularly when the transfer that is consequential on the demotion is considered, a life-changing decision for him, a matter to which I have given serious consideration, I am unable to find that the decision to demote Mr Greig was harsh, excessive or inappropriate. In coming to that view I have had regard, as I have throughout this matter, to the provisions of s.5A of the Teaching Service Act. 157Then in his conclusion Newall C stated: [177] I have found that the Department has made out at the appropriate level of proof some matters which establish that Mr Greig has committed misconduct within the meaning of the Teaching Service Act. I have found that the punishment imposed on Mr Greig, considered against those matters I have found to be established, is not harsh or inappropriate. [178] Accordingly, the order appropriate to be made in this matter is that the appeal is dismissed. 158It may be seen that in his decision at first instance Newall C referred to the tests in Duhbihur at [28] and [31] of his decision (which found the jurisdiction under the Transport Appeals Board Act 1980 to be punitive), but later seemed to accept the jurisdiction was protective (see [32]-[33]). 159In addition, at [13] the Commissioner referred to an essential task in a disciplinary appeal was to assess the appropriateness of the "punishment". At [27] and [35] the Commissioner again referred to the notion of "punishment". At [160] of his decision Newall C stated he was unable to find the decision to demote Mr Greig was "harsh, excessive or inappropriate" and in so doing had regard to s 5A of the Teaching Service Act. At [177] the Commissioner found the "punishment" was not "harsh or inappropriate". 160After final submissions had been made and the decision reserved, the Court sought the additional assistance of the parties as to whether the Commissioner considered the nature of the jurisdiction to be punitive or protective. The Court raised an issue as to whether, depending on the nature of the jurisdiction, different tests apply. The parties responded in writing. 161In Lambert, the appellant had appealed from a decision of the Government and Related Appeals Tribunal in which the Tribunal ordered that the respondent be reinstated but demoted from his grade and pay level as at the date of dismissal for the period of one year and further ordered that he be "placed on probation" for the period of one year. He was granted continuity of employment, but without an entitlement to back-pay. The Tribunal found that the respondent, a residential care worker, had developed "an inappropriate and unprofessional relationship" with two residents and that he had engaged in conduct with them including tickling, kissing, hugging and embracing. 162The disciplinary action taken against the respondent was under Pt 2.7 of the Public Sector Employment and Management Act 2002. That Part contains provisions that are very similar to the provisions under Divisions 1 and 2 of Pt 4A of the Teaching Services Act. The objects of both Parts are virtually identical as are the definitions of "disciplinary action" and "misconduct". Moreover, the provisions of the IR Act in Divisions 1, 3 and 4 of Pt 7 dealing with public sector disciplinary appeals are virtually identical to the provisions of the Government and Related Appeals Tribunal Act 1980 considered by the Court of Appeal in Lambert. 163The appellant in Lambert relied, inter alia, on the following grounds of appeal: 1. The Tribunal erred in its decision by deciding to take into account the following irrelevant factors identified as "mitigating circumstances" (in paragraph 36 of the Tribunal's decision): (a) "Mr Lambert is towards the end of his career but still a few years from any possible early retirement, trained and experience basically as a care / support worker only, and he has already experienced difficulty in finding another position", (b) "The surrounding personal and workplace circumstances present in 2006 and already discussed in paragraph 30 above (eg health issues including prostate cancer, somewhat toxic work environment and family health issues)", (c) 'the stress and uncertainty, which has plainly had an impact on his health, arising from the prolonged investigation conducted by DADHC, together with the intervening police involvement, that to a large extent were centred on serious allegations of sexual misconduct that were not upheld in these proceedings", as those factors were not relevant as a matter of law to the exercise of the Tribunal's jurisdiction in making its decision as to the appellant's dismissal of the respondent. 2. The Tribunal erred when it ordered that the appeal be allowed, the dismissal be set aside and that the respondent be reinstated with conditions (Orders 1 to 8, paragraph 38 of the decision) as these Orders and Order 3 in particular failed to properly and appropriately exercise and apply the protective nature of the Tribunal's jurisdiction or to exercise it in accordance with section 41 of the Public Sector Employment and Management Act 2002 (NSW) or otherwise as provided according to law. 3. The Tribunal erred in law by failing to take into account in exercising its jurisdiction, the requirement that it ensure that the public interest was protected pursuant to section 41 of the Public Sector Employment and Management Act 2002 (NSW) or otherwise as provided according to law, in that: (a) It did not take into account the special needs of the clients in the appellant's care or address the manner in which the public interest and particularly the needs of such clients to be protected would be fulfilled through the Orders made in its decision; and, (b) It failed to make orders which provided any adequate safeguards or which recognised the risks presented through the reinstatement of the respondent to ensure that the public interest in protecting such vulnerable persons was addressed as it is required to be in accordance with the Tribunal properly applying its jurisdiction according to law. 164The Court of Appeal accepted that the Tribunal had correctly found that the nature of its jurisdiction was protective. However, it found that the Tribunal had erred by taking into account irrelevant factors. Hodgson JA referred to [36]-[37] of the Tribunal's decision, which were in the following terms: [36] However, there are also a number of mitigating circumstances present in Mr Lambert's case that must be considered. Prior to these incidents in 2006, Mr Lambert had an unblemished record of employment with DADHC dating from 1987. Mr Lambert is towards the end of his career but still a few years from any possible early retirement, trained and experience basically as a care / support worker only, and he has already experienced difficulty in finding another position. The surrounding personal and workplace circumstances present in 2006 and already discussed in paragraph 30 above (eg health issues including prostate cancer, somewhat toxic work environment and family health issues). Prior to his dismissal Mr Lambert already suffered a reduction in his take home pay when he was given alternative duties during the long investigation. There is also the stress and uncertainty, which has plainly had an impact on his health, arising from the prolonged investigation conducted by DADHC, together with the intervening police involvement, that to a large extent were centred on serious allegations of sexual misconduct that were not upheld in these proceedings. The Tribunal also has before it a number of statements in general support of Mr Lambert, by way of character references. [37] After carefully considering all the above factors, and the words of the High Court in Evatt that: '[t]he power...to discipline... is, however, entirely protective, and, notwith-standing that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved' (at p184), the Tribunal considers it appropriate to order Mr Lambert's reinstatement, with conditions, and impose substantial financial consequences in its place. This outcome will balance the strong need to reinforce the public interest in ensuring that vulnerable clients of DADHC are appropriately cared for at all times and recognising both the surrounding circumstances that may have contributed to Mr Lambert engaging in the misconduct as well as his service history and other personal circumstances. Therefore, the decision by the Deputy Director-General to dismiss Mr Lambert is set aside. In its place, the Tribunal will order Mr Lambert demoted from the grade and pay level of 'Residential Support Worker Level 3, Year 8' to 'Residential Support Worker Level 2, Year 7' from the date of Tribunal's decision and continuing for a period of one year; from the day after the period ending a year after the date of the Tribunal's decision Mr Lambert's demotion will continue but at the grade and pay level of 'Residential Support Worker Level 3, Year 1' for a period of one year; and after that point he will progress within the pay scale of Residential Support Worker Level 3 as normal. These periods of demotion, together with the Tribunal declining to order any back pay to Mr Lambert on his reinstatement, will impose the appropriate financial consequence on Mr Lambert as discussed. The Tribunal will also order Mr Lambert reinstated by DADHC but to ensure that he has no more failures in relation to following and properly applying DADHC policies etc, he will be placed on a period of probation for 12 months. The Tribunal will also order that the continuity of his employment will be taken not to have been broken by DADHC's now set aside decision to dismiss him. 165At [32]-[36] Hodgson JA stated: [32] Coming to the factors set out in par [36] of the Tribunal's judgment, those in the second and seventh sentences were relevant to determine measures appropriate to protect the public interest and other objects set out in s 41 of the PSEM Act. The factors in the fourth sentence, namely circumstances present in 2006 that may have contributed to the misconduct, were also relevant, in that they could ameliorate the seriousness of that misconduct. However, the factors in the third, fifth and sixth sentences could not ameliorate the seriousness of the misconduct in 2006, and do not go (at least directly) to the question whether there is any likelihood of misconduct in the future. In my opinion, they cannot be supported on the basis that they ameliorate the seriousness of Mr Lambert's lying to the investigator: although DADHC sought to rely on this, and although the Tribunal made a finding to that effect, that finding was qualified by rejection of the contention that Mr Lambert had attempted to deceive the investigator and the Tribunal, so that the Tribunal in substance rejected the wider case sought to be made by DADHC. Certainly, nothing in the judgment suggests that the Tribunal was considering lying to the investigator as a basis for protective action. [33] The factors in the third, fifth and sixth sentences were thus not directly relevant to determining measures appropriate to the objects in s 41; and in my opinion, they could be indirectly relevant only in narrow and particular ways. [34] Those factors could conceivably be indirectly relevant as supporting a view that the impact on Mr Lambert of measures short of dismissal would be greater than they otherwise would have been, and for that reason would be sufficient to ensure that the misconduct would not be repeated; and they could conceivably be indirectly relevant in circumstances where the Tribunal was considering two alternative measures which would equally serve the purposes of s 41, and was considering which of them would cause less hardship to the employee. However, because of the narrowness and particularity of each of these possibilities, I would expect the Tribunal to make it clear that it was using a factor it referred to in either or both of these ways, if it was in fact doing so. [35] In my opinion, the way the factors are expressed in par [36] as "mitigating circumstances", and the fact that in par [37] "other personal circumstances" are said to be balanced along with the strong need to enforce the public interest, indicate that the factors in the third, fifth and sixth sentences of par [36] were not being used in a way that could possibly be relevant, but rather as factors that could be considered generally along with the need to protect the public interest. In my opinion, that does manifest an error of law in treating those factors as relevant. [36] In my opinion, the Tribunal did make a decision that was erroneous in law in that respect, this erroneous decision did materially affect its final decision, and the appeal should be allowed for that reason. 166Tobias JA generally agreed with the reasons of Hodgson JA (at [47]) and with Basten JA in respect of this Honour's findings regarding irrelevant considerations. At [84]-[87], Basten JA stated: [84]...The references to the personal circumstances of the respondent appear to have been relied upon solely for the purpose of diminishing the punitive effects of any order upon him. In this sense those effects were indeed irrelevant to the extent that they were relied on to qualify the scope of the appropriate protective order. The scope of the proper order was to be defined by the interests of the vulnerable persons in the care of the Department and not by the effect of the order on the individual public servant. The need for protection was not to be balanced or qualified in this way. [85] The respondent contended that there was no authority for the proposition that the harsh consequences on the individual concerned could not properly be balanced against the scope of the order. I do not accept that submission: the specific message of the disciplinary cases explaining that the jurisdiction is entirely protective is to make clear that the scope of the protective order must be defined by the reasonable needs for protection, as assessed in the circumstances of the case. That message denies the analogous application of principles relevant to sentencing proceedings in the criminal jurisdiction. [86] So understood, the error on the part of the Tribunal was not merely in taking into account particular facts as found, but in using those findings in a particular way, inconsistent with the limits of the power conferred on the Tribunal. That involved an error in identifying the proper scope of the powers of the Tribunal and was thus an appropriate ground for appeal under s 54 of the GREAT Act. [87] The next question is whether the errors thus identified were material to the orders made by the Tribunal. They were expressly identified in the context of addressing the scope of the protective orders to be made. Accordingly they constituted material errors requiring the upholding of the appeal. 167In my opinion, given the similarity between the statutory provisions considered in Lambert and those that are relevant to this appeal, it follows from Lambert that the orders made under s 100C of the IR Act are protective and not punitive in nature. Section 100C provides: 100C Decisions with respect to appeals (1) (Repealed) (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 168Newall C was aware that the nature of the jurisdiction is protective: see [31]-[33]. What has complicated an understanding of that awareness is the various references in the decision to "punishment" and the Commissioner's use of the word "harsh" as described above. 169Despite the Commissioner's understanding regarding the protective nature of the jurisdiction and despite the reference in [160] to the fact the Commissioner had regard to s 5A of the Teaching Service Act, the unavoidable conclusion is that he ordered the appeal be dismissed on the basis that the "punishment" of the appellant was not "harsh or inappropriate". He considered (at [28]) that his view regarding the appeal was to be formed on the basis of, "first, whether the misconduct said to be the basis for the punishment is made out; and second, if it is, whether the punishment imposed, here dismissal (sic), is appropriate: Duhbihur loc cit, Rail Corporation of NSW v Elleray [2013] NSWIRComm 86 at [54]." 170The Commissioner formed a view as to the disposition of the appeal on the basis of what was an appropriate punishment. Newall C should have formed his view based on a consideration of the objects of Part 4A of the Teaching Service Act set out in s 93A as well as s 5A of that Act. Section 93A provides: 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. Section 5A provides: 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. 171Whilst the Commissioner said he had regard to s 5A of the Teaching Service Act he did not explain how demotion was an appropriate protective measure in the light of that provision. Nor did the Commissioner consider why demotion was an appropriate protective measure in light of the objects of Pt 4A of the Teaching Service Act. 172At [160] and [177] the Commissioner stated he was unable to find the demotion was "harsh". The reference to "harsh" indicates a subjective consideration. That is, an assessment of the impact of the decision on the appellant. That was not a relevant consideration when the task is to determine what disciplinary action is an appropriate measure to protect children, to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, to protect and enhance the integrity and reputation of the Teaching Service and to ensure that the public interest is protected. 173In my opinion, Newall C erred in disposing of the appeal on the basis of what he considered was an appropriate punishment where the notion of punishment was irrelevant to the jurisdiction he was required to exercise. That is, the Commissioner made a decision on a question of law that was erroneous. 174Notwithstanding that error, in my opinion an order that, in effect, upheld the respondent's decision to demote the appellant was an appropriate protective order. The Commissioner found the appellant, as Head Teacher, failed in his duty to the teachers in his faculty. Those failures, which included a failure to develop and maintain teaching and learning programs, would potentially have an adverse flow-on effect to students. The appellant also failed in his direct duty to students by failing to provide adequate feedback and failing to take a proper approach to marking. 175The disciplinary action of demotion to Teacher had the effect of removing the appellant from his role as Head Teacher and, therefore, had the effect of protecting students from the appellant's failure to comply with his duty towards the students in his role as Head Teacher. 176The demotion would also have the effect of reinforcing to the appellant the need to maintain appropriate standards of conduct and work-related performance in the Teaching Service. It was also an appropriate measure to protect and enhance the integrity and reputation of the Teaching Service by addressing misconduct that had the potential to bring the Teaching Service into disrepute. Finally, there is a strong public interest element in ensuring that teachers are adequately resourced in accordance with Departmental requirements and students, particularly in the final years at school, are given adequate feedback and marking is carried out in accordance with requirements. 177In the result, whilst the Commissioner erred, no basis exists to interfere with his order dismissing the appeal. Costs 178The respondent sought costs of the appeal and of the interlocutory proceedings. In the exercise of my discretion there will be no order as to costs. Orders 179The Court makes the following orders: (1)If leave to appeal is required, leave is granted. (2)The appeal is dismissed. (3)No order as to costs. ********** 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: 18 July 2014