Mao v Secretary, NSW Department of Education [2016] NSWIRComm 1046

Industrial Relations Commission New South Wales Medium Neutral Citation: Mao v Secretary, NSW Department of Education [2016] NSWIRComm 1046 Hearing dates: 22 November 2016 Date of orders: 07 December 2016 Decision date: 07 December 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – performance – schoolteacher – performance improvement plan – significant difficulties with performance – dismissal not harsh, unreasonable or unjust – application dismissed TEACHING SERVICES ACT 1990 – probation – probation can only be extended by positive exercise of statutory power, not by omission Legislation Cited: Industrial Relations Act 1996 s.84 Teaching Services Act 1990 s.48(1), 48(2), 48(5). Category: Principal judgment Parties: Mr Li Mao Secretary, Department of Education Representation: Mr Mao in person Mr A Britt, counsel (Respondent) File Number(s): 2016/00227343

Judgment 1. This is an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') brought by Mr Li Mao (I use the Anglicised order of the applicant's name) in relation to his dismissal from his employment with the Department of Education.

Facts 1. Mr Mao commenced employment with the respondent as a teacher at Lake Cargelligo Central School on 10 October 2011. 2. In June 2012 Mr Mao was struck by a student in a classroom and was then absent on workers' compensation leave. 3. On or about 6 September 2012, a report was filed by the Principal, Mrs Margaret Chamen, identifying areas of concern with Mr Mao's teaching. 4. From 24 March 2014 to 27 June 2014, Mr Mao returned to work at Cowra High School. 5. Mr Mao returned to work at Lake Cargelligo Central School on 5 February 2015. 6. After a series of parent and teacher complaints, MR Mao was placed on a Teacher Improvement Programme. ('TIP') Mr Mao was placed on the programme applicable to permanent, that is, non-probationary, teachers. 7. The TIP commenced on 11 August 2015 and was to conclude on 16 November 2015. 8. However, Mr Mao did not complete the TIP, having taken a combination of personal and sick leave after 5 October 2015. 9. It should be noted that the Departmental policy relating to the TIP (at, relevantly, paragraph 4.1.1) together with the provisions of the Teaching Services Act 1990 allow for a teacher to be assessed on the basis of a TIP even where the TIP is not finally concluded within the 12 week period. 10. At the conclusion of the TIP program the Principal found that Mr Mao did not meet the required level of performance. 11. On 5 January 2016, Mr Mao was directed to commence alternative, non-teaching, duties and his case was referred to the respondent's Employee Conduct and Performance Directorate (" EPAC") in January 2016. 12. Mr Mao provided his response to the Principal's report on 13 January 2016. 13. A review of the improvement programme documents and process was conducted by a Ms Sheen, Deployed Principal, on 12 February 2016. It was found to have been properly conducted. 14. Mr Mao's case was referred to the Director of the Staff Efficiency and Conduct Unit, Mrs Kapsimali. The process of receiving Mr Mao's submissions and assessing them was carried out. No complaint is made about the administrative procedure followed and it appears entirely orthodox. 15. On 29 June 2016, Ms Thorpe of the respondent wrote to Mr Mao advising that his performance had been properly assessed as unsatisfactory. Mr Mao was offered the opportunity to resign, in which case his name would not be placed on the NTBE List and he would be offered casual teaching. However, were he not to resign he would be dismissed. 16. Mr Mao did not resign. On 22 July 2016 Mr Mao's employment was terminated by the respondent.