Industrial Relations Commission New South Wales Medium Neutral Citation: Greig v Secretary, Department of Education [2018] NSWIRComm 1077 Hearing dates: 28 February, 1 March, 2 March, 5 March and 6 March Date of orders: 04 December 2018 Decision date: 04 December 2018 Jurisdiction: Industrial Relations Commission Before: Commissioner Seymour Decision: Application dismissed Catchwords: UNFAIR DISMISSAL - Teacher with 33 years' experience - Unsatisfactory work performance - Teacher Improvement Program – Whether harsh, unreasonable or unjust - Protection of children paramount consideration HELD – application dismissed Legislation Cited: Industrial Relations Act 1996, ss 84, 88, 162, 163 Teaching Services Act 1980, ss 5A, 93A Cases Cited: Bankstown City Council v Paris (1999) 100 IR 363 Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Davis v Secretary, NSW Department of Education [2017] NSWIRComm 1003 Greig v Director General, Department of Education and Communities (2013) NSWIRComm 1025 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32, Pastrycook Employees, Biscuit Maker Employees and Flour and Sugar Goods Workers Union v Gartrell White (1990) 35 IR 70 Category: Principal judgment Parties: Mr Ian Greig (Applicant) Secretary, Department of Education (Respondent) Representation: I Greig (in person) A Britt, Counsel (Respondent) M Buchanan (Respondent) File Number(s): 2017/298150 DECISION 1. This is an application pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ('IR Act') brought by Mr Ian Greig in relation to his dismissal from his employment by the Secretary, Department of Education ('Department'). 2. Mr Greig's evidentiary case comprised his own evidence and a statement of Mr Alexander Judge, Deputy Principal Prairiewood High School (and formerly Head Teacher English at Greystanes High School). 3. The Department was represented by Mr Britt of Counsel. The Department relied on the following statements (noting the position held by each deponent at the time of the events the subject of these proceedings): 1. Susan Wyatt – Principal Mosman High School; 2. Collette Longley – Deputy Principal Mosman High School; 3. Anthony Gahan – Deputy Principal Mosman High School; 4. Peter Papilos – Head Teacher English Mosman High School; 5. John Feros – Head Teacher, Performing Arts and Head Teacher Stage 6 Mosman High School; 6. Carmel Burns – Head Teacher Administration Mosman High School; 7. Janelle Dean – Teacher; 8. Stanley Mitford – Casual Teacher Mosman High School; 9. Bernadette Smith – Head Teacher Languages and Stage 4 Mosman High School; 10. Kerryanne Knox – Independent Reviewer for the Department; and 11. Mark Anderson – Director Staff Efficiency and Conduct Team within the Employee Performance and Conduct Directorate. 1. Mr Greig represented himself in the proceedings and is not legally qualified. His filed evidence was a mixture of submission and fact. The approach taken by the Commission pursuant to ss 162 and 163 of the IR Act, which was not objected to by either party, was not to entertain technical objections to the filed evidence but rather admit all of the written material filed by both parties, subject to cross-examination and determination of weight by the Commission. 2. Mr Greig prosecuted his case proficiently over the five days of hearing. He cross-examined all eleven of the Department's witnesses and made opening and closing oral submissions, with minimal assistance from the Commission concerning matters of practice and procedure as necessary to promote a fair and efficient hearing. 3. In addition to oral submissions at the hearing, the parties filed written Outlines of Submissions. I have had regard to the evidence and submissions in making my decision. Background 1. Mr Greig commenced as a Classroom Teacher at Mosman High School on 1 February 2016. He was employed to teach junior and senior English with the expectation he would in the future also teach Drama, those subjects being his areas of experience and expertise. 2. On 8 February 2016, the Head Teacher of English Mr Papilos received an email from a parent of a student in Mr Greig's year 11 English class. The email stated, inter alia: Although they do not dislike their English teacher in any way, they are very worried they are not learning anything, to the point of getting one of the students from the other English class to send through their notes to them. In four lessons they have only covered one quarter of a poem, whilst the other class has covered two poems. [X's] main concern is that he tends to go off topic a lot in the lesson and talks about other things. Also last lesson he spent the first 20 – 30 minutes setting up his computer on the smart board, which is what I think prompted the students to go and speak with their year advisor. [X] struggles with English as it is and she is very worried as she feels she will fail English if she stays in this class. Please could you consider her being moved to the other English class, as it would be very much appreciated. (Emphasis added) This student was subsequently moved from Mr Greig's class to another English class. 1. Also on 8 February 2016, Mr Papilos received an email sent to the school on 5 February 2016 from another parent requesting his daughter be moved out of Mr Greig's year 11 English class: I am the father of [x] (Year 11 student) and I am emailing you in regards to the quality of English class my daughter is in. She has been saying the teacher has not taught her a sufficient amount of the course work in time for her assessment due in 3 weeks' time and she is falling behind the other standard classes. This has caused us to believe that this may inhibit her HSC and ATAR. We were wondering if it was possible for [X] to be moved to another standard class where she will be more comfortable with the level of teaching. (Emphasis added) This student was also moved from Mr Greig's class to another English class. 1. Mr Papilos' evidence was that around this time, he had a number of other students in Mr Greig's English classes approach him about being moved and submitting written requests to move. He referred to this in an email on 11 February 2016 to the Principal and Deputy Principal noting "there is a consistent theme across cohorts and students that 'there is no control', 'a lack of direction', 'poor quality of lessons', 'no teaching' and that 'the teacher is not interested'". 2. On 16 February 2016, Mr Papilos was provided with another email request from a parent to move their daughter out of Mr Greig's Year 11 English class: [X] feels she is falling behind in her English class with Mr Greig and this is causing her some anxiety. She has compared work with another student of Miss Whistler and they have done more work and are further in front. [X] is concerned that they aren't doing much work in their English class and that she would achieve better results in Miss Whistler's class. Please assist her in changing class soon as she has an assignment coming up and wants to do well in English. Your ongoing support is much appreciated. (Emphasis added) This student was also moved from Mr Greig's class to another English class. 1. On 24 February 2016, Mr Papilos received an email from the school office about the movement of another student out of Mr Greig's year 10 English class. This student was moved to another English class. 2. On 18 May 2016, Ms Wyatt (the Principal) and Ms Longley (the Deputy Principal) met with Mr Greig (with Mr Feros as his support person) to discuss concerns with Mr Greig's performance, including the large percentage of requests to withdraw from his Year 11 English class. Ms Wyatt also raised issues of complaints by Year 8 students and parents that Mr Greig was late to class, spent time on his ipad rather than teaching and did not provide assessment feedback. She noted concerns from teaching staff that Mr Greig did not put marks in the centralised mark book in a timely fashion. Ms Wyatt's evidence was that the meeting was to outline to Mr Greig the concerns and discuss how they could be addressed to support the learning of students and ensure faculty procedures were followed. 3. Ms Wyatt stated that around this time, in light of the move of students out of Mr Greig's year 11 English class to the other class, she made the decision to collapse Mr Greig's class and move all the remaining students to the second English class. On 1 June 2016, Mr Papilos emailed Mr Greig to advise him that the numbers in his year 11 English standard class had dropped to such a level that the students in his class would collapse into another teacher's class. 4. On 8 June 2016, Ms Longley met with Mr Greig to discuss requests received from parents of children in his year 8 and year 10 English classes to move out of his class and to discuss concerns she held about Mr Greig's reports. Ms Longley explained the issue with the reports as follows: …the reports were inconsistent and did not reflect the practices of the school. I emphasised to Mr Greig that the faculty determines the outcomes that the Year 8 students are required to be assessed against. Once the outcomes are selected, it is expected that all Year 8 classes report on the same outcomes. It is important for the outcomes to remain consistently marked because the outcomes listed on the reports have been published on our website and in student/cohort assessment booklets for all English classes and for each reporting period. Mr Greig had two year 8 classes and, unlike every other Year 8 classroom teacher, he reported on different outcomes for each. His Year 8 English class, for example, had three out of five outcomes assessed, two outcomes were marked as not applicable. All other Year 8 teachers presented reports which had all five assessed. Mr Greig was asked to adjust his planning for semester and ensure these outcomes were assessed and included in reports for his students. 1. On 26 July 2016, there was a further meeting between Mr Greig and Ms Longley to discuss Mr Greig's lack of progress in marking his Year 7 half yearly English exam and his Year 8 Shakespeare unit. Ms Longley explained in her evidence that it is important for students to receive feedback in a timely manner as it allows them to know their achievement relative to their learning goals. It also enables the teacher to evaluate understanding of content and identify interventions and modify teaching practice to support students in their learning. Ms Wyatt stated in her evidence that exams need to be marked in a timely fashion in order that the results can be collated and student reports prepared in accordance with Mosman High School's calendar. 2. On 3 August 2016, Ms Wyatt wrote to Mr Greig advising him he was required to attend a meeting to discuss his performance and the implementation of a Teacher Improvement Program (TIP). On 9 August 2016, the TIP was implemented. On 11 August 2016, the NSW Teachers Federation emailed Ms Wyatt on behalf of Mr Greig raising concerns about the implementation of the TIP. After two meetings in which the content of the TIP was discussed, the TIP proceeded. Ten Review Meetings occurred during the progress of the TIP. 3. TIP processes are conducted with reference to the Australian Professional Teaching Standards (Teaching Standards): There are seven Teaching Standards as follows: 1. Professional Knowledge: 1. Know students and how they learn; 2. Know the content and how to teach it; 2. Professional Practice: 3. Plan for and implement effective teaching and learning; 4. Create and maintain supportive and safe learning environments; 5. Assess, provide feedback and report on student learning; 3. Professional engagement: 6. Engage in professional learning; 7. Engage professionally with colleagues, parents/carers and the community. 1. Mr Greig's TIP was focussed specifically on three minimum standards: (1) Know students and how they learn; (3) Plan for and implement effective teaching and learning; and (5) Assess, provide feedback and report on student learning. 2. The Department provided the following chronology of the steps taken by Mosman High School in respect of the TIP, which comprised an initial support and guidance phase followed by an assessment phase: 17/8/16 10Eng5 S.Wyatt Support & Guidance 23/8/16 7Eng0 C.Burns Support & Guidance 25/8/16 8Eng6 C.Longley Support & Guidance 30/8/2016 8Eng3 T.Gahan Support & Guidance 31/8/2016 7EngG B.Smith Support & Guidance 2/9/16 10Eng5 J.Feros Support & Guidance 5/9/16 8Eng6 S.Wyatt Support & Guidance 8/9/16 10Eng5 P.Papilos Support & Guidance 9/9/16 8Eng6 J.Feros Support & Guidance 13/9/16 7Eng0 S.Wyatt Support & Guidance 14/9/16 10Eng5 T.Gahan Support & Guidance 16/9/16 7Eng0 J.Dean Support & Guidance 19/9/16 10Eng5 C.Longley Support & Guidance 11/10/16 8Eng3 B.Smith Unsatisfactory 14/10/16 8Eng6 C.Longley Unsatisfactory 18/10/16 7Eng0 C.Burns Unsatisfactory 25/10/16 8Eng3 T.Gahan Unsatisfactory 26/10/16 7EngG B.Smith Unsatisfactory 28/10/16 10Eng5 S.Mitford Unsatisfactory 1/11/16 9Eng5 S.Wyatt Unsatisfactory 3/11/16 10Eng5 C.Longley Unsatisfactory 1. At the conclusion of the TIP, the Principal Ms Wyatt made a recommendation that Mr Greig be dismissed for the reason of his unsatisfactory performance, assessed against the three relevant Teaching Standards. The Department then followed a procedure involving the matter being referred to an Independent Reviewer (Ms Knox) and subsequently to the Director Staff Efficiency and Conduct in the Employee Performance and Conduct Directorate for decision regarding disciplinary action. This was Mr Anderson, who reviewed the documentation relating to the TIP and formed the opinion that Mr Greig's performance was unsatisfactory. 2. On 27 July 2017, Mr Anderson wrote to Mr Greig advising him of this initial opinion and that he was considering imposing disciplinary action which could include dismissal and being placed on the Department's confidential "Not To Be Employed List" ('the NTBE list'). A process of Mr Greig providing a written response, attending an interview with Mr Anderson with a support person and making submissions followed. Mr Anderson wrote to Mr Greig on 8 September 2017 advising that his performance had been assessed as unsatisfactory, his employment was terminated and his name placed on the NTBE list. Applicable law 1. The IR Act prescribes a range of matters that are to be considered in dealing with an application under s 84 as follows: 88 Matters to be considered in determining a claim 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) If any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed; and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 1. However the essential test is whether the decision to dismiss the employee was harsh, unreasonable or unjust: Bankstown City Council v Paris (1999) 100 IR 363. This is a tripartite test and the Commission is required to make a positive and specific finding on each of the words in the expression 'harsh, unreasonable and unjust'. 2. The reason for Mr Greig's dismissal was not any kind of misconduct, but rather his unsatisfactory performance. Accordingly, Mr Greig bears the onus of establishing that his dismissal was unfair for the purposes of s 88 of the Act: Pastrycook Employees, Biscuit Maker Employees and Flour and Sugar Goods Workers Union v Gartrell White (1990) 35 IR 70 at 83-84. 3. In this matter, certain provisions of the Teaching Service Act 1980 ('the Teaching Service Act') must be considered in assessing whether the dismissal was fair. Section 5A of that Act provides: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 1. In New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32, Deputy President Sams considered the imperative imposed by s 5A of the Teaching Service Act on the Commission when dealing with disciplinary action for unsatisfactory performance: [174] Thus, I have no difficulty at all with the proposition…that the term "protection of children" extends to the protection of children from teachers whose unsatisfactory performance arises from an inability to demonstrate effective classroom management or an inability to provide a safe and challenging learning environment. To put it bluntly, the Teaching Services Act requires the Department to ensure that children are protected from incompetent, ineffective, hopeless or indolent teachers. 1. The objects of Part 4A of the Teaching Service Act - 'Management of Conduct and Performance' - are as follows: 93A Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service. (b) to protect and enhance the integrity and reputation of the Teaching Service. (c) to ensure that the public interest is protected. 1. The reason for Mr Greig's dismissal by the Department was his unsatisfactory performance in his role as a teacher. There is no dispute that he was informed this was the reason for termination of his employment. 2. Applying the relevant statutory provisions as interpreted by this Commission, I now turn to a consideration of each of the following questions: 1. whether Mr Greig's performance was unsatisfactory on the evidence before this Commission and if so, whether that was a sufficient reason justifying his dismissal; 2. the process followed by the Department in respect of Mr Greig's unsatisfactory performance and whether it was procedurally unfair; and 3. whether the dismissal was otherwise harsh in any respect. REASON FOR DISMISSAL - UNSATISFACTORY PERFORMANCE Student requests to move classes 1. The evidence regarding requests by multiple students to move out of Mr Greig's English classes is set out in the Background in this decision. The emails from parents are respectful and focussed on the desire of their child to achieve and learn. A common theme is a fear of falling behind the curriculum being taught in the other Standard English class and being underprepared for assessments. These fears are legitimate and reasonable in light of the current secondary education system which is assessment-based and students are required to study towards completion of certificates and tertiary admission scores. Further, it was not a situation of an isolated disgruntled student. 2. In my view, these student and parent concerns form part of the evidence of Mr Greig's unsatisfactory performance in his role as a teacher at Mosman High School and formed a proper basis for the school to commence a process seeking to improve his performance in respect of the three identified Teaching Standards. Observations of teaching 1. The persons involved in observing Mr Greig's classes across the TIP gave detailed evidence in their written statements, on which they were all cross-examined by Mr Greig, about what they observed and how certain aspects of Mr Greig's teaching did not, in their professional opinion, meet the identified Teaching Standards. The Department tendered over 1,000 pages of documents that included observation feedback sheets and notes of meetings completed by these witnesses. I do not propose to summarise all of that evidence in these reasons. The following is provided as a non-exhaustive overview of the nature and extent of the evidence of Mr Greig's unsatisfactory performance: 1. Mr Feros observed two of Mr Greig's lessons as part of the first support and guidance phase of the TIP. Mr Greig was also given the opportunity to observe two of Mr Feros' Drama lessons, as part of the professional support and guidance in the TIP. Mr Feros' evidence in respect of the first lesson he observed was that Mr Greig's lesson did not reflect the lesson plan, the lesson did not directly relate to the task, there was no guidance to students regarding written notes, the outcomes were not clear when students were told to do group work and the lesson lacked a definite structure. He considered the main problem was that the content of the material taught was not matched to the set task and outcomes. Mr Feros also considered that Mr Greig's classroom management was inconsistent. 2. In respect of the second lesson he observed, Mr Feros' evidence included that there was no guidance provided by Mr Greig with the work sheet the students were required to complete, the work was not modified for students on an ILP, the research activity task was unclear and the lesson plan and lesson lacked detail regarding plenary/student learning, with the group work not specifically relating to the set task. 3. Ms Dean did not work at Mosman High School. She was engaged as an independent external person to provide Mr Greig with professional support and guidance during the first support and guidance phase of the TIP. Ms Dean had 32 years' experience with the Department as a classroom teacher, Head Teacher, Deputy Principal and Relieving Principal. Ms Dean explained in her evidence the importance of teachers devising lessons around the program in the units being taught, then linking lesson plans to outcomes and concepts in the units and assessment feedback and elements within the Quality Teaching Framework. Teachers must clearly understand the concepts within the program, how they will explore the concepts through their lesson plans and the outcomes on which the students will be assessed. They should backward map their lessons plans to ensure all students are well prepared for the final assessment. 4. Ms Dean met with Mr Greig on three occasions and observed one of his lessons. While her role was not to formally assess whether the lesson was satisfactory or unsatisfactory (which occurred in the second phase of the TIP), her evidence was that she considered there were areas where Mr Greig was not meeting the Teaching Standards. Her concerns included lack of clarity of the purpose of the lesson, classroom management, absence of differentiation within the lesson format, need to link teaching strategies more closely to the concept of the unit, absence of formative assessment during the lesson and poor structure of the lesson. 5. Mr Mitford observed one of Mr Greig's lessons during the second assessment phase of the TIP. Mr Mitford assessed the lesson as 'unsatisfactory'. Mr Mitford recorded detailed observations against each of the three Teaching Standards and the overall assessment as recorded on the observation sheet was as follows: While it was apparent that the teacher had a detailed knowledge of the content and concepts being presented to the class and some of the students gave an impression of engagement in the lesson and an understanding of what was being taught, the majority of the class lacked engagement or the opportunity to engage in the lesson. Teaching strategies were limited and largely teacher directed, there was little or no differentiation in strategies or work presented to students, especially those on ILPs, little evidence of formal feedback on student achievement and no attempt made at assessing student understanding, learning or achievement, therefore this lesson is deemed as having not fulfilled the standards outlined above and is unsatisfactory. 1. Mr Greig disputes Mr Mitford's observations and says that Mr Mitford informed him at the conclusion of the lesson that the lesson was 'satisfactory', only changing his assessment to 'unsatisfactory' when he completed his written feedback. Under cross-examination, Mr Mitford acknowledged he said to Mr Greig that from a classroom management perspective the lesson was 'alright' or words to that effect, however denies that he told Mr Greig that he had assessed the entire lesson as 'satisfactory'. In his written statement, Mr Mitford stated that 'once the Teaching Standards and Specific Indicators were applied to the lesson observed it was apparent that most of the standards and specific indicators had not been achieved. Therefore I stand by my written feedback and assessment of the lesson observed'. 2. Mr Mitford's written observations contain both positive and negative feedback about Mr Greig's lesson and accordingly demonstrate a balanced assessment of his performance against the three relevant Teaching Standards. I accept that Mr Mitford did not clearly provide verbal feedback to Mr Greig at the immediate conclusion of the lesson that he would assess his performance as 'unsatisfactory'. While it is understandable that a person in Mr Mitford's situation would be uncomfortable telling a colleague that their performance is unsatisfactory, it is regrettable that did not occur in a clearer manner. However that does not mean that the assessment Mr Mitford made as reflected on the written observation sheet in evidence was invalid or untrue. Further, his detailed observations align with the concerns raised by other observers of Mr Greig's classes during both phases of the TIP. 3. Mr Gahan observed three of Mr Greig's lessons, two during the first support and guidance phase of the TIP and one during the second assessment phase. Mr Gahan considered that in the first and second lessons observed, Mr Greig did not adequately adjust the lesson for students on an ILP, cater to the different abilities of students or alter the course of his teaching in response to changes in circumstance during the lesson. In the third lesson observed during the assessment phase, Mr Gahan assessed the lesson as 'unsatisfactory', for reasons including the absence of differentiated material to cater to students with different abilities. 4. Mr Gahan also assessed Mr Greig's day book – a record of the scope and sequence of course content covered in the teacher's classes – as 'unsatisfactory'. He explained that the teacher's day book facilitates forward planning and reflection of best practice, enables casuals to cover a class if the teacher is absent and identifies strategies that address students ILPs. Mr Gahan's comments made on Mr Greig's day book at the time included 'homework activities are not evident throughout the week', 'strategies for ILP should be reflected here', 'details regarding lesson timing would be beneficial here', 'I suggest that the teacher looks at the daybook from a temps point of view. How would the temp teacher use the daybook to guide the lesson' and 'conclusion of the unit. Daybooks should include activities strategies and assessment. Resources and homework should be included. Notes on differentiated activities/tasks should be evident'. 5. Ms Smith observed three of Mr Greig's classes, one in the first support and guidance phase and two in the second assessment phase. Mr Greig was also given the opportunity to observe one of Ms Smith's classes. Ms Smith has specialist teaching experience in English as a Second Language (ESL). Ms Smith's evidence in respect of the first lesson she observed included that there was inadequate differentiation for ESL students and students on ILPs, generic worksheets used with no 'scaffolding' to cater to the needs of all students and that there needed to be more ongoing feedback and supervision of students to ensure all students were on task and not become disengaged. 6. In respect of the two further lessons observed, Ms Smith assessed these as 'unsatisfactory'. She provided detailed feedback in her written observation sheet of performance against each Teaching Standard for both lessons. In respect of the second lesson assessed as 'unsatisfactory' she summarised her main concerns as including students not adhering to respecting silence and listening, students learning impacted negatively by others calling out and speaking over the teacher, vocabulary and context were not addressed and the pace of the lesson did not always engage students. 7. Mr Papilos observed one of Mr Greig's classes in the second assessment phase, a Year 10 class studying the text 'To Kill a Mockingbird'. Mr Papilos assessed the lesson as 'unsatisfactory', for reasons including that the lesson delivered did not reflect the lesson plan, if it had been followed the lesson plan would not have been a sound teaching and learning sequence, students on an ILP were not accommodated as per their plans and there was disengagement of some students (on their phones, asleep or with heads on their desks). Mr Greig was also given the opportunity to observe one of Mr Papilos' classes; 8. Ms Longley observed four of Mr Greig's classes, two in the first support and guidance phase and two in the second assessment phase. In respect of the second lesson observation in the support and guidance phase, Ms Longley summarised her main concerns as including there was no differentiation for students of different learning abilities, lesson timing was an issue and activities that would have reflected students' learning were not started, student poor behaviour was ignored, lesson structure in general was poor and little verbal feedback was given to students. 9. Ms Longley assessed the further two lessons she observed as part of the assessment phase of the TIP as 'unsatisfactory'. This was for reasons including lack of classroom management/discipline, students on an ILP were not given differentiated tasks or work that was organised into chunks or sequenced despite lesson plan feedback, Mr Greig did not collect work to check it, scaffolding was not done and there was poor timing and sequencing of the unit content and tasks set. Ms Longley also reviewed and provided feedback on Mr Greig's teaching and learning program, which she assessed as 'unsatisfactory'. 10. Ms Wyatt observed four of Mr Greig's classes, three in the first support and guidance phase and one in the second assessment phase. Ms Wyatt stated she was concerned that Mr Greig did not differentiate for diverse learning needs of students. In reviewing the lesson plan for the first class observed, Ms Wyatt considered it did not include the strategies to be used to cater for the learning of each group or adjustments made to ensure students with learning needs have access to the syllabus outcomes. Ms Wyatt's evidence was that she was also concerned that the topic being taught should have been completed by Week 3 and assessment in Week 4. All other English teachers had completed the topic and delivered the final summative task to the students by Week 4. 11. In addition to completing the standard observation feedback form, Ms Wyatt provided Mr Greig with some separate, detailed typed feedback on Mr Greig's lesson plans for observed lessons. I consider those observation feedback forms and notes are balanced and demonstrate a great deal of thought and effort directed at identifying for Mr Greig how he could improve and meet the Teaching Standards. In addition to the areas for improvement, Ms Wyatt recorded strengths in Mr Greig's teaching as she observed them. 12. Ms Wyatt assessed the last lesson she observed as part of the assessment phase of the TIP as 'unsatisfactory'. She stated this was for reasons including lack of differentiation in teaching strategies and stimulus ('this is repeated feedback') in a class with a student with a disability and gifted students, and time management against the lesson plan. Mr Greig's written comments on Ms Wyatt's feedback relating to differentiation were: 'All students were sitting the same exam the next day' and in relation to Ms Wyatt's concern that all students received the same stimulus material he commented: 'as they will in an exam'. Ms Wyatt gave evidence about the importance of differentiation in teaching: These responses by Mr Greig highlight his lack of understanding of Standard 1 which is 'Know Students and How they Learn'. Every class is made up of a range of students with diverse talents and needs and the core role of a classroom teacher is to match the identified needs with appropriate instructional content and strategies so that all students are suitably challenged and supported. While all students are going to be sitting the same exam, they will learn in different ways and some will need more help or different strategies or adjustments made, in order to learn and the more capable students will need to be extended. 1. Under cross-examination, Mr Greig stated that he did not agree with the opinions of those observing him and that he considered his lessons were all satisfactory. I accept the evidence of these witnesses regarding their observations of Mr Greig's teaching. Their evidence is consistent in theme, though not slavishly so. There is no evidence that their assessments were conducted other than in good faith, that they were biased or there was a predetermined outcome of the TIP. The process was appropriately specifically focussed on the three Teaching Standards identified and did not extend into extraneous matters. Importantly, this is not a matter where there are isolated concerns expressed by one or two colleagues or supervisors. There are multiple observers, including one from outside Mosman High School, attesting to similar issues they observed in respect of Mr Greig's teaching based on their professional experience. 2. Mr Judge gave evidence on behalf of Mr Greig. He deposed that Mr Greig had been a mentor to him over many years, generous with his time and assistance and encouraging him to pursue excellence in his teaching. Mr Judge gave evidence that he had observed Mr Greig modelling innovative and engaging teaching approaches and displaying a deep knowledge of literature. He would be happy to have Mr Greig as a member of his faculty. Mr Judge also attended a meeting between Mr Greig and Mr Anderson the decision maker as Mr Greig's support person. 3. Mr Judge acknowledged under cross-examination that he has not taught with Mr Greig since 1997. He could not recall whether he had otherwise observed Mr Greig's classroom teaching since that time. He had no involvement in the TIP process undertaken by Mosman High School, in terms of observing lessons taught by Mr Greig against the identified Teaching Standards. I accept Mr Judge's evidence that Mr Greig was an excellent mentor to him and he holds a high opinion of Mr Greig's teaching approaches and knowledge. However, it is of no probative weight in the determination of the issues in these proceedings, which specifically involve Mr Greig's performance as a classroom teacher at Mosman High School against the three Teaching Standards in the TIP. Evidence of Mr Feros 1. In 2016, Mr John Feros was the Head Teacher of Performance Arts at Mosman High School. He was nominated as Mr Greig's supervisor, played a role as Mr Greig's support person during the TIP (to a point) and observed two of Mr Greig's classes as part of the support phase of the TIP. Mr Greig relies upon Mr Feros' evidence as demonstrating Mr Greig's proficiency as a teacher, contrary to the finding of unsatisfactory performance under the TIP. 2. Mr Greig submitted that his role at Mosman High School involved him teaching three discrete areas - junior English, senior English and Drama. He says he has considerable expertise and experience in Senior English and Drama and is proficient in all three areas, yet there was an attempt in the management of his performance to focus on one part only, being senior English. Mr Feros was positive about Mr Greig's team teaching of the Year 12 Drama class, which did not appear anywhere in the TIP report even though team teaching was listed as part of the process. 3. Mr Feros was cross-examined by Mr Greig in relation to these matters as follows: Q. Did you also say to me you would have no trouble with me taking a Drama class in would've been 2017 at this stage? A. Correct, yes. That was the aim, to actually have you teach Drama the following year. Q. And did you say to me, "You need to get off this so we can do some damage in Drama together"? A. Correct. Q. And just for the sake of the Commission, you mean "damage" in a positive way there? … A. Two things. One, I liked working with you, all right? And I thought that we would be a good sort of combination at our school. Secondly, I knew that sort of Drama was your passion and that if I said, "For God's sake, get off this sort of TIP, then we can sort of work together" and that was the aim, to try and give you some confidence to get you off it. Q. Would you also say that reflects your confidence in me to make that statement? A. Yes slash no. Q. Well, let's try— A. Okay, yes, because I can see and I can value, as a Drama teacher. No, because you didn't get off the TIP program and it was something that would've been so easy for someone with your experience. (Emphasis added) 1. In re-examination, Mr Feros explained Mr Greig's attitude to the TIP and the way English was taught at Mosman High School: A. Okay. Having to sit next to Mr Greig was, you know - and I considered him, you know, I do still consider him to be, you know, like someone that I respect, someone that I'm friends with. The most frustrating thing throughout this whole process was the number of times I would take him aside, "Pull your head in, do your job and it goes away", all right? But there was this sort of, always this resistance about "No, they're doing things wrong in the school, it's the outcomes that are wrong", sort of "The number of assessment tasks are wrong. Why do I have to give marks? I want to sort of", you know, "base it all on outcomes". But our community did not want that. Our parents don't want that. Our parents are aware of sort of the outcomes, all right, because they're listed on our reports. But they're more concerned with the mark. And so if you've got sort of like a mark and the outcomes don't reflect the mark, the parents are upset, the parents are very vocal with this. And I don't get, you know, like throughout the whole process, the frustration of saying, you know, like, for someone with so much experience, that this is a Mickey Mouse walk in the park, the TIP and we weren't getting anywhere and that was the most frustrating thing for me, being my first…. … Q. And you were asked a series of questions about getting off the TIP. Is that what you meant? Actually knuckle down and--A. That's it. Pull your head in, stop complaining because, honestly, you know, like Mr Greig came to Mosman, you know, and he wanted, you know, like Drama, Advanced English. He felt like his expertise wasn't being used in the school. But, as I said to him, "You have to establish yourself throughout the year and then the following year things fall into place." And that was the most frustrating thing, sitting next to him and Mr Greig not getting it, not understanding it. Q. Did you form any view as to whether Mr Greig thought he should be on a TIP? A. No, no, he felt that he should not be on one. (Emphasis added) 1. I accept Mr Feros' evidence that, based on his observations of Mr Greig when team teaching with him at Mosman High School, Mr Greig was a very good Drama teacher. However Mr Greig was employed by Mosman High School to teach English and Drama. He was not teaching any Drama classes as the sole teacher during the period of the TIP. The fact that one aspect of a role is being satisfactorily, or even very well, performed does not negate the obligation of an employee to perform other aspects of their role satisfactorily, or the corresponding right of an employer to address that underperformance. This was what the Principal of Mosman High School sought to do with Mr Greig's teaching of English classes. The concerns about Mr Greig's performance related to his teaching of English classes (which were the vast majority of his class teaching work), not Drama classes and appropriately, the observations of his classes conducted as part of the TIP were of English classes. 2. Mr Feros undertook an observation of two of Mr Greig's English classes in the support phase of the TIP, without making a formal determination of whether the teaching was satisfactory or not. Mr Feros' evidence about that class was as follows: A. ….In that lesson, it was a lesson on 'To Kill a Mockingbird' and the lesson was creative, right? I'll grant Mr Greig that. However, the point I was making is that it's important that the kids know why they're doing the work that they're doing. And so I said the way it's done is that we put the question on the board and then what we do is that we brainstorm with the kids and then what happens is that Mr Greig will write up the responses, the kids copy that down and that forms the basis for their content for the upcoming essay. And the creativity that he's doing in class is great but you need the content and the creativity together and that was the point I was making, not that sort of, you know, English is boring at Mosman, it's a case of, you know, the content first, the kids understand what's happening and then you can branch off and do all these creative exercises. Because I sat in on that class and sort of a lot of those kids had no idea who the characters were in that novel and he was trying to sort of, you know, approach it a sort of, you know, a creative way but you still need the text and that's my point. (Emphasis added) 1. Mr Feros' evidence is consistent with the evidence of others who observed Mr Greig's English teaching as part of the TIP, namely, he was not satisfactorily performing certain basic aspects of his job as a classroom teacher. Even if I accept that Mr Greig's English lessons were creative, which I do in light of the evidence of Mr Feros and Mr Judge, his lessons also needed to meet the Teaching Standards identified in the TIP. Previous decision involving Mr Greig 1. Mr Greig referred to the decision of Commissioner Newall in Greig v Director General, Department of Education and Communities (2013) NSWIRComm 1025 ('2013 Greig Decision'). This was a previous application brought by Mr Greig, challenging his demotion from Head Teacher to classroom teacher at Monaro High School. Commissioner Newall found the demotion was not harsh or inappropriate. Mr Greig relied upon that decision in these proceedings in effect as evidence of his proficiency as a teacher. He submitted that Commissioner Newall found that Mr Greig's failings were in the area of his responsibilities as a head teacher, drawing a clear distinction between a head teacher and a classroom teacher. Commissioner Newall stated as follows: [45] It's apparent that Mr Greig is a teacher of singular ability and has a real passion for the subject he teaches. There was uncontroverted evidence from a number of former students from Monaro High School who have 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 and 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. (Emphasis added) 1. Mr Greig submitted that while he took issue with other aspects of Commissioner Newall's findings in the First Greig Decision, the dicta supported that as a teacher Mr Greig "was not just average, and that he had demonstrated, through results, what can be done". Further, Mr Greig submitted that a teacher does not immediately have that effect, rather it is built over time through relationships with staff and students, when you "try and push them somewhere else". 2. The Department submitted that the 2013 Greig Decision was not assessing whether Mr Greig was competent. The passage relied upon was not about teacher performance but rather conduct as a Head Teacher and is therefore obiter dicta. Further, the evidence from pupils that Mr Greig's teaching was 'life changing' was not before the Commission in these proceedings and accordingly cannot properly be relied upon. Any such evidence was in respect of Mr Greig's teaching at a different school a number of years before the period in which he was assessed at Mosman High School. Finally, as submitted by the Respondent, Commissioner Newall's opinion that Mr Greig was a passionate teacher does not answer the question this Commission is determining, namely, whether Mr Greig was competent or proficient, having gone through the TIP. A person can be passionate about their job yet lack the necessary competence or proficiency. 3. I agree with these submissions. Accordingly, while I note the comments by Commissioner Newall, they cannot be given more than limited weight in assessing Mr Greig's performance as a teacher at Mosman High School. It is not an appropriate response to the specific areas of underperformance raised with Mr Greig by Mosman High School in the TIP to say: 'In the past Mr Greig has done certain things, he is highly experienced and respected, therefore it is unfair and illegitimate for his current employer to require him to respond to concerns about his performance through a TIP'. Exit passes 1. Mr Greig submitted that a key matter not taken into account by the Department in its performance management process, and a matter that ought be taken into account in this fresh hearing, is exit passes completed by students in his classes: Now, the exit passes are the students' input into all this process. I don't believe they can be denied. They're not a detailed analysis of the lesson and around goals and that but you do get a sense, when you put them all together, of how the lesson went and how the students responded. You do get the odd crazy comment there and I think one student, at one point, wrote, "I don't understand why you guys want to be teachers": Anyway, but they're 13 and 14 year olds, on the edge of puberty and sometimes their responses can be a little cute. However, it hasn't been considered and the respondent didn't mention it once. And that, to me, is a key. If you're going to evaluate those lessons and you're going to look at what the observer said, and test it against anything, you have to, rather than just my comments, you have to test it against those exit passes and I believe that, at the minimum, they create enough doubt in those observations that it shouldn't be a hard and fast finding. (Emphasis added) 1. Comprehensive summaries of exit passes completed by students in Mr Greig's classes, sufficient to draw conclusions about what they might indicate about his performance as a teacher in those classes, was not in evidence. However, Mr Greig was able to provide a number of Exit Passes completed by students at the end of a class observed by Ms Smith. In his handwritten response to Ms Smith's written observations, Mr Greig states: 'Exit passes contradict much of what is here', 'here' being Ms Smith's written observation assessment. Ms Smith stated the following in respect of the Exit passes: (a) One student comments on page 1109 of Exhibit DOE1 that she has questions about 'everything' and indicates in the "I don't understand' section 'nothing', which is contradictory and shows that she does not understand the purpose of the exit passes; (b) Many students left boxes incomplete; (c) A comment by one student on page 1110 of Exhibit DOE1 says: "I was a little confused but I am good now just words I guess I don't really knew" which suggests that a glossary or vocabulary list would have helped her, as suggested before. This was noted on my lesson feedback for the Year 7 lesson given back to Mr Greig on the 25 October 2016…in Teaching Standard 1 'To meet the needs of the diverse range of students' learning needs within the classroom. With especially the EAL/D students, it is important to provide vocabulary lists and wall charts. This is important when discussing texts later in the lesson; (d) A comment on page 1121 of Exhibit DOE1 states "I like it when Ms Smith is here because the class is always good when she is here", which suggests there are discipline problems in the classroom. 1. I accept that some student exit passes contained positive comments and an absence of negative comments about the class. However as Mr Greig notes, exit passes are not a detailed analysis of the lesson around teaching and learning goals. Further, teenaged students are not assessing their teacher against the Teaching Standards that were identified by the Department as not being satisfied by Mr Greig, namely, 1. 'Know Your Students and How They Learn; 3. 'Plan for and implement effective teaching and learning' and 5. 'Assess, provide feedback and report on student learning'. 2. While I have therefore considered the exit passes, I consider the evidence of the many teaching colleagues who observed Mr Greig's lessons against the identified Teaching Standards are of greater probative weight. Conclusion – unsatisfactory performance 1. The decision maker Mr Anderson stated that the reason for the dismissal was Mr Greig's inability to demonstrate the capacity to know how students learn, plan and implement effective teaching and assess and provide feedback on student learning. In determining what action to take in respect of Mr Greig Mr Anderson took into consideration the requirement in s 5A of the Teaching Service Act that 'the protection of children is to be of paramount consideration'. He was and remains of the view that Mr Greig did not meet the required standards for teaching. 2. The Department's reason for Mr Greig's dismissal, being that his performance was unsatisfactory, had a basis in fact. I consider Mr Greig was afforded an opportunity to make out a defence to the reason for dismissal, being his unsatisfactory performance. He could, and sometimes did, respond to the observation reports and at the review meetings held during the TIP. He responded to the Principal's Report and provided a written response to Mr Anderson the decision maker, as well as attending a meeting with him. 3. The nature of the unsatisfactory performance justified dismissal in the circumstances, particularly when considered in light of the statutory requirement in the Teaching Service Act to give paramount consideration to the protection of children. Further, in managing the performance of teachers the Department is expressly required to maintain appropriate standards of work-related performance of teachers. This in turn facilitates the protection and enhancement of the integrity and reputation of the Teaching Service as a whole. The dismissal cannot therefore be said to be unreasonable or unjust arising from the reason for dismissal. PROCEDURAL UNFAIRNESS 1. In his written submission, Mr Greig explained his serious concerns about the lack of procedural fairness in the TIP as follows: The Teacher Improvement Program was a shock. What was even more of a shock was the way that processes were ignored. At each stage I thought that the reviews would consider the failure to follow the protective policies of the Department. I have not resorted to nitpicking or isolating a single point, but I have looked at the processes, I have looked at the central tenet of dialogic learning around which the TIP is based. Its [sic] is there too [sic] help teachers improve, not to "assess" them and then "get rid of them". I don't believe that is how excellence is achieved. There have been many corners cut in this process. To put someone's entire career and reputation on the line as a result of that - is not a valid or just process. Decision to implement a TIP 1. Mr Greig did not, and does not, accept that he should have been put on a TIP. He relies upon the following provisions of the Department's document entitled 'Teacher Improvement Program – July 2014': 1.1 Overview These procedures must be implemented at any time during the school year where a Principal has identified that a permanent teacher is experiencing difficulty with their teaching performance. Teacher improvement procedures must arise from a teacher's participation in performance and development processes, and be implemented as a consequence of underperformance against the standards of the position held and the Australian Professional Standards for Teachers….. 1.5 Relationship to the School's existing Performance and development process Teacher improvement procedures must arise from a teacher's participation in an annual performance and development cycle, and be implemented as a consequence of underperformance against the standards of the position held. (Emphasis added) 1. Mr Greig submits that: "the key phrase is 'must arise'. It is unequivocal. It MUST. This [is] [sic] a key point that can't be glossed over. It is fundamental to the entire process. The program should not have gone ahead." In oral submissions Mr Greig further submitted that the reason he was put on the TIP was because of student and parent complaints which were not investigated by the School in accordance with policy. He believed policy required them to be investigated to determine whether they were "legitimate issues or they're just 14 year olds" before any performance management could occur and/or that classroom observation must occur prior to implementing any TIP. 2. I do not agree with the interpretation of the Teacher Improvement Program document for which Mr Greig contends. It is a policy, not a piece of legislation. The wording of clause 1.1 commences by stating that a Teacher Improvement Program must be implemented by a Principal 'at any time' the Principal has identified that a teacher is experiencing difficulty with their teaching performance. 3. The comments of students reported by their parents seeking to move classes disclose the genuine and serious nature of their concerns, reflective of what is, in my view, a highly commendable desire to learn and achieve. This is of particular significance in respect of a Year 11 class where results impact HSC and ATAR scores and potentially children's futures. One parent reported their child was suffering anxiety as a result of such concerns. They are simply not matters Mosman High School could ignore and are prima facie evidence of Mr Greig experiencing difficulty with his teaching performance at Mosman High School. Indeed, the school would have been derelict in its duty to students and to Mr Greig if it did not take steps to address Mr Greig's performance in the identified areas through a performance process. 4. Further, Ms Wyatt's evidence was that there were a number of matters in addition to the requests by students to move classes that lead her to identify Mr Greig was experiencing difficulty in his teaching. A meeting was held with Mr Greig about these matters on 18 May 2016 to discuss how to address the concerns. This is a meeting which was about Mr Greig's performance and development. If strict compliance with the TIP document was required prior to implementing a TIP, which I do not consider it is, Mr Greig was thereby participating in a performance and development process. 5. In summary, Ms Wyatt identified Mr Greig was experiencing difficulty with his teaching performance. It was open to her to implement a TIP. While there was no absolute requirement that it do so, the decision arose out of the circumstance outlined in clause 1.1 of the TIP document, not the annual performance and development cycle (although a TIP could arise in that different circumstance). I also note there is no requirement in the TIP document requiring classroom observation must be undertaken prior to implementing any TIP. I adopt the reasoning of Commissioner Newall in Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 at [5]-[6] ('Buchanan') at [12]: [12] An employed teacher does not have the ability to reject a principal's view of whether or not he or she needs improvement. If it is determined that a TIP is necessary, that can be canvassed by, for example, a teacher's representative union and there is an ability to negotiate the content of a programme, but if a view is formed that a TIP is to be done, then it is to be done. Such discussions were held with Mr Greig's union regarding the content of the TIP. 1. In any event, if putting Mr Greig on the TIP was a breach of the TIP document, which I do not consider it is, that is not determinative of these proceedings. In Buchanan, Commissioner Newall explained the Commission's approach as follows: [5] I was asked to find that the placement of Mrs Buchanan on the TIP was itself contrary to the guidelines covering TIPs and that that rendered the dismissal which eventuated necessarily unfair, as it meant that the TIP was unlawful or at least contrary to policy. I disagree. [6] While it is the case that in a given case breach of an employer's own policies can render dismissal unfair, it is not necessarily so, and Antonakopoulos v State Bank of NSW (1999) 91 IR 385 and similar cases do not say otherwise. Indeed that leads me into this proposition. What the Commission has to address under s 84 of the Act, or under part 6 of chapter 2 of the Act, is whether a dismissal was harsh, unreasonable or unjust. Lawfulness of an action taken by a respondent, or observance of its policies, may well be a consideration but they do not detract from the actual consideration the Commission is required to carry out, that is, drawing on Bankstown City Council v Paris (1999) 93 IR 209 and the cases following it, whether a dismissal was unfair assessed by the tripartite test to which I have referred. That is the only basis on which s 84 applications can be determined, there is no other. (Emphasis added) 1. In all of the facts and circumstances of this matter, I do not consider it was unfair for the Principal of Mosman High School to put Mr Greig on a TIP. Breach of Guidelines 1. Mr Greig submitted that the provisions of the Department's Guidelines for the Management of Conduct and Performance (4 August 2006) (Guidelines) were breached by Mosman High School in the conduct of its TIP. He identified a number of actions that he submitted constituted procedural unfairness, including (but not limited to) the following: 1. there should have been an independent minute taker at the Review Meetings. This is not required in the Guidelines or the Teacher Improvement Program document. Mr Greig was given the opportunity to query the minutes, which he did on a few occasions. In any event, I agree with the Department's submission that the identity of the minute taker does not materially impact on whether Mr Greig was able to achieve the Teaching Standards during the TIP; 2. he was deprived of verbal 'collegial discussions' following the lesson observations. The TIP document states that 'Feedback from lesson observations…should ideally be provided immediately following the lesson as a professional, collegial discussion and followed up with written feedback.' It is clear that such discussions did not in fact occur following each lesson observation. Sometimes this was a result of Mr Greig not being immediately available and sometimes the observer. However it is not expressed as a mandatory requirement. Even if it was, the Guidelines are a policy document not a piece of legislation. Mr Greig had the opportunity to schedule a verbal discussion after the lessons if he wished and he received the observers' written feedback on the lesson and could (and did) comment on those. In my view, the value of the 'collegial discussion' was to enable Mr Greig to understand the areas the observer had identified as not meeting the Teaching Standards in order to support him to improve. However it appeared from Mr Greig's evidence that he believed if the verbal discussions had taken place, the observer would change their mind about what they had observed, which was not the purpose of the 'collegial discussion'; and 3. he was not allowed an independent observer of his choosing. Even though there was no requirement in the TIP document or the Guidelines for a classroom observer from outside Mosman High School, Ms Dean was requested by the Principal to (and did) perform this role. In any event, the person requested by Mr Greig, Ms Carolan, was a former colleague of his and could not be considered to be 'independent'. 1. The nature of the Department's Guidelines was recently considered by Commissioner Murphy in Davis v Secretary, NSW Department of Education [2017] NSWIRComm 1003 at [80]-[81]: [80] The Guidelines are no more than they purport to be, that is a guide to assist the Department and its teachers in dealing with cases of unsatisfactory performance. The Guidelines require a cooperative approach from all parties to ensure a successful outcome. The approach contended for on behalf of the appellant, which pedantically nit-picks over every word and phrase in the document, runs entirely contrary to the underlying purpose of the Guidelines, which is to assist underperforming teachers to improve their teaching. The Guidelines are not a straitjacket on the Department. In order to be effective, the Guidelines need to be applied with a level of cooperation between the parties and a degree flexibility and common sense, not in the rigid, formulaic manner as has been proposed on behalf of the appellant in this matter. [81] The level of pedantry which was evident in the positions advanced on behalf of the appellant descended to cross-examination of the respondent's witnesses in relation to the phrase "informal processes of support and remedial action" which appears in Part 8.7 of the Guidelines. It was put that this phrase involved two separate and discreet steps, the first step being the implementation of "informal processes of support" and the second step being the implementation of "remedial action". The attempt to split this phrase into two separate and distinct processes typifies the artificiality of the appellant's approach to the question as to how the Guidelines should be applied in a practical and common sense fashion to a real situation involving an underperforming teacher. 1. I adopt the reasoning of Commissioner Murphy. Mr Greig has focussed on technical aspects of the process adopted in the TIP and did not, and still does not, engage with Mosman High School's substantive concerns about his failure to meet the three identified Teaching Standards. The following submission by Mr Greig in relation to the lesson observation and feedback provided by Ms Burns illustrates this: But, you know, I just felt that I wasn't getting a fair go to get that input and so that probably may - not just resistance, just I'd look at it and think, "Oh, that's not why I did this, I did it for this reason". But it's written down, stored in the file, before I've had a chance to say "This is the reason for it", you know and "This is the level of engagement". And the example the respondent used of Ms Burns saying the kids were passive watching", well, I don't agree with that opinion but I accept that was her opinion. And when she said, you know, I should've explained in full, I said, well, actually that was the first day of a five week unit. I was trying to engage the kids and just kept them thinking about - in fact I wanted them to think about "Why is he showing all these things?" That was part of the engagement to bring their thinking into it; it's part of the process. It's not the only way, I'm not saying Ms Burns' approach was not valid, but we didn't discuss it and, to me, that's - I'm not pretending to be perfect but I think I have an outstanding record for academic achievement with the students I've taught over time. (Emphasis added) Conclusions – procedural unfairness 1. Ms Wyatt gave evidence about her lack of desire to implement TIP programs because of the sheer volume of documentation (a matter to which I can attest in terms of the evidence in these proceedings tendered by the Department), the procedural requirements and consequent time involved of her and observers. She stated she would have preferred Mr Greig achieve the Teaching Standards that she set for him to achieve, so that she did not need to do that. She had high hopes for Mr Greig given his experience and reputation when she employed him. However she considered that he was experiencing difficulty in his teaching based on the information before her, and therefore initiated the TIP. I accept her evidence and consider the resulting process undertaken by Mosman High School and the Department was transparent, comprehensive and fair. 2. In the 2013 Greig Decision, Mr Greig made similar submissions about procedural deficiencies in the process adopted by the Department in demoting him. Commissioner Newall found as follows in respect of those submissions: [170] Mr Greig raises issues of procedural fairness in the Department's processes. [171] Essentially, of course, the fact that the matter is heard de novo by the Commission acts to cure any procedural unfairness which may be alleged, including all those that Mr Greig does allege, and indeed the Respondent's investigation as a whole: Matkevich v NSW Technical and Further Education Commission (No 3) (Supreme Court of NSW, 2 Feb 1996, unrep; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 593; R v Marks; ex parte ABCE & BLF (1981) 147 CLR 471 at 485. …. [175] In sum, there has not been in this case a departure from the bases of procedural fairness so as to take this matter outside the principles enunciated in Matkevich No 3 loc cit. Mr Greig has had any unfairness cured by the hearing before this Commission, in which his whole case was conducted de novo. 1. These principles are equally applicable in this matter. I have considered Mr Greig's submissions in relation to procedural unfairness. While I understand he remains aggrieved by aspects of the process followed by the Department, I do not consider unfairness has been demonstrated that renders the dismissal unreasonable or unjust. Further, the matter has been heard de novo and I have found Mr Greig's unsatisfactory performance established on the evidence before the Commission. HARSHNESS 1. The remaining question is whether, in all the circumstances, the dismissal was harsh. The meaning of the expression "harsh" was considered by the Full Bench in Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 ('Fraser'): [24] The term "harsh" was considered by the Full Bench of this Commission in Department of Health v Perihan Kaplan (2010) NSWIRComm 65. It was observed at paragraphs 27-29 that: ...........There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union (1971) AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals........requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". … We would add to the discussion of the meaning of the expression 'harsh' [for the purposes of s 84 (1)], our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch, [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of fairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence." And later at [35]: Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent. 1. Applying these principles, the assessment of harshness involves balancing or weighing the nature of Mr Greig's unsatisfactory performance giving rise to the dismissal against any mitigating circumstances: Fraser at [35]-[47]. 2. I agree with the position expressed by Commissioner Newall in Buchanan, that the prima facie position is that the Department is entitled to dismiss a teacher who fails a TIP as demonstrating a deficiency in competency: [19] What we have in my view is a teacher who did not satisfy a TIP. It is not mandatory to dismiss such a teacher although a dismissal on the basis of a perceived lack of competence may well arise from failure successfully to complete a TIP. Indeed such a failure might well, in the usual the case, be a sound basis for dismissal. Again I note here that the applicant was invited to resign rather than suffer the stigma of dismissal in the first instance but she declined, which of course was her right. And although it may well be usual, and indeed it may well generally be justified, to dismiss a teacher who has not been able to demonstrate competence through the mechanism of a TIP, the decision to dismiss a teacher for lack of competence does not necessarily and ineluctably follow from an unsuccessful TIP. …. [24] It is the case, I say again, that the TIP was not satisfactorily performed. Prima facie that allows a conclusion that the teacher is not competent, but I have formed the view that there are a number of aspects of this particular TIP at the particular time at which it was conducted that stand against a hard and fast view that its unsuccessful completion, which was the case, inexorably leads to a view that Mrs Buchanan must be dismissed for incompetence on the basis of that TIP. Those matters go to personal matters affecting Mrs Buchanan, one being the death of her father. … [29] The decision to terminate her employment, noting that at first resignation was offered, was, it is clear from Ms Thorpe's evidence, based effectively and squarely on the TIP result. I say again, the department is not wrong to take that approach at large. The TIP is an agreed structure to measure teachers' competency. If a teacher does not pass the TIP the prima facie view is well available that there is a deficiency in competency, and the department is entitled to act thereon. It must also, as I say, have regard to any particular circumstances that might have affected that result and those circumstances do, in my view, exist here. 1. I therefore turn to a consideration of whether any such particular circumstances existed in Mr Greig's case. Unlike Ms Buchanan, there is no evidence from Mr Greig regarding any significant personal life event that occurred during the period of the TIP that materially affected his capacity to effectively and fairly participate in it. Further, the only medical evidence related to sick leave that Mr Greig took was for a period after the TIP was, to all intents and purposes, complete. He subsequently participated in the Department's review processes that occurred after Ms Wyatt made her recommendation he be dismissed for reason of unsatisfactory performance. Accordingly, in contrast to Ms Buchanan, there are no particular circumstances in Mr Greig's case of the kind that justify departing from the prima facie position described by Commissioner Newall. 2. Mr Greig submitted he has "given [his] life to the Department, to working very hard to create educational opportunities for the children of NSW but this did not appear to affect the final outcome" of the Department's decision. I accept Mr Greig's evidence that he has in the course of his career with the Department undertaken activities in his personal time, such as directing the Pacific School Games 18 years ago, organising trips overseas for students in a previous school at which he taught in Monaro and working with students to prepare them for the HSC in school holidays. I have had regard to the evidence of Mr Judge and the matters raised by Commissioner Newall in the 2013 Greig Decision relied upon by Mr Greig in these proceedings. While commendable, these actions are not determinative of whether Mr Greig was competent or proficient, having gone through the TIP, in his role teaching English at Mosman High School. 3. In closing in his written submissions, Mr Greig further stated as follows: I will end this matter (for now) with a quote from Commissioner Newall in the case Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045: "there are a range of other matters that must also be considered in determining the future of a teacher and perhaps it might be said that is more so when one is considering a teacher who has given effectively a lifetime's service to the department." Page 7, Par 23 There is no evidence that this approach has been afforded me at anytime. 1. Mr Greig had approximately 33 years' service with the Department, the majority of his working life. This is a relevant and significant factor that I have weighed very carefully in considering the harshness of his dismissal. I accept that Mr Greig genuinely believes his dismissal to be harsh. However, regrettably, in my opinion this is the result of his perception of his performance and consequent failure to accept feedback and need to improve in certain areas, rather than dismissal being an objectively harsh outcome. 2. Mr Greig did not, and still does not, accept that his performance as a teacher was in any way unsatisfactory. He stated this unambiguously in his written submissions: "I am a proficient teacher. I firmly believe that." He maintained in these proceedings that the observations and opinions of all of the persons who observed his classes were wrong. The content and tone of Mr Greig's written comments on his colleague's written observations of his lessons demonstrates his dismissive attitude to constructive feedback about areas of improvement in his work performance. Mr Feros opined that it ought to have been a simple matter for Mr Greig to have met the requirements of the TIP given his experience. However, he considered Mr Greig was resistant to the TIP because he believed he was proficient in teaching and a TIP was therefore unjustified. 3. Ms Knox was the Independent Reviewer who examined all of the documentation relating to Mr Greig's performance management process, including a statement by the Principal Ms Wyatt and Mr Greig's response. Ms Knox has 40 years' experience with the Department, including as a classroom teacher, Assistant Principal, Principal and regional Director of Education. Ms Knox summarised her conclusions as follows: Mr Greig was passionate about his subject area Mr Greig's involvement in the production side of school performances was impressive Mr Greig was underperforming as a classroom teacher and did not meet the Standards 1, 3 and 5 as detailed in the Australian Professional Standards for Teachers Mr Greig made choices about his involvement in the TIP process that impacted on his ability to participate positively in the process. In fact there was a high level of arrogance about any feedback provided to Mr Greig and this resulted in him making critical statements about the management of the school. Mr Greig had difficulty accepting that his teaching practice was in question. The management of Mosman High School could not be blamed for Mr Greig's personal choices in relation to moving to Sydney away from his family. …. Mr Greig's former experience indicated that his teaching practice was not always deemed as poor and in fact, Mr Greig had received in his earlier years of teaching, accolades for his work. In my opinion, Mr Greig was facing difficulties in managing some of the teaching requirements that are relevant and necessary to student learning today, as well as meeting administrative requirements. 1. My review of the evidence in this matter leads me to draw similar conclusions to those of Ms Knox. The Department sought through its usual process to convey to Mr Greig the aspects of his teaching that, as his employer, it considered were not proficient. Unfortunately, Mr Greig did not agree with the fundamental premise of the process, namely, that his teaching was not proficient. Accordingly, he did not accept there was any justification for the TIP or need for him to improve. He focussed instead on the process followed by the Department. I have found that process to be reasonable and fair. 2. Mr Greig maintained this position during the Commission proceedings and failed to acknowledge that any concerns held by the Department about his performance were legitimate. Of particular concern was his apparent inability to appreciate the concerns expressed by the parents of students in his Year 11 English class and other classes who asked to be moved, or reflect on what role he may have played in that request. Mr Greig's statement in this Commission about the Year 11 students who requested to move out of his English class demonstrates his failure to accept the feedback given to him about his performance, effectively putting it down to the students' 'unrealistic expectations': Mr Greig: And I would also say that at Mosman the students who have moved from my class didn't do any better. … Commissioner: --there's no evidence of that. Mr Greig: But it didn't - you know, sometimes, particularly going into Year 11, students have unrealistic expectations of what they might achieve and Year 11 is often a year of reckoning for them, which can be quite sad actually but it does happen over time. But, my goal is to get every student I teach to achieve to the maximum of their potential. 1. An email Mr Greig sent to Mr Papilos on 2 August 2016 further illustrates Mr Greig's attitude to his teaching and position at Mosman High School: If I am to express one disappointment with this year it would be that you have not sat me down and asked and listened to what I can contribute to Mosman High School in English. I have tried to tell you of my experience a couple of times yet I don't feel you listened as closely as I liked. I have been a school teacher for thirty years (oh my that sounds a lot!) and I have developed considerable expertise in English and Drama. I have a reputation in English for my knowledge of Young Adult literature and have been contacted and asked for recommendations by schools that I am not teaching at. I have even been asked this year. I am actually quoted in Helen Sykes book on children's literature. I have also taught Advanced and Extension English on numerous occasions and have achieved many outstanding results. Schools have sought me out to comment on Extension Two English work in most of the years that it has been taught. These are two areas where I would profess expertise yet I feel at times that this is not acknowledged at Mosman and I am treated akin to a first year out teacher. I acknowledge that I have a preference for Drama, but John [Feros] also recognises my knowledge and skills and seeks to use them. I would like to see that happen in English. (Emphasis added) 1. The Respondent submitted that in addition to Mr Greig's performance being poor, the fact he did not recognise any fault or acknowledge the Department's concerns is a relevant factor in assessing the harshness of his dismissal. I agree. Mr Greig's failure to accept that his performance was deficient and the Department's concerns were legitimate meant he did not positively engage with the process to seek to improve it. The result was continuing adverse impacts on students if he remained in the classroom. There was similarly no indication on Mr Greig's evidence that if he returned to teaching, his performance would improve in the identified areas. 2. The issues with Mr Greig's performance that were identified by numerous colleagues and consistently raised with him through his TIP, related to his failure to satisfy Teaching Standards 1, 3 and 5 at Mosman High School. The fact that he may have had a reputation for having certain expertise outside Mosman High School and his opinions sought on that basis, does not abrogate the need for him to meet the minimum standards identified. I have found that he did not do so. 3. It is regrettable that Mr Greig did not appear to either understand or accept what I consider was reasonably expected of him (and indeed of all teachers) by Mosman High School and the Department. However that is not due to a failure by management of the school to clearly inform him of the standards, warn him that his performance needed to improve against those standards or give him a reasonable opportunity to do so through a fair process. 4. Ms Knox, the Independent Reviewer, recommended that Mr Greig not be dismissed, but rather offered casual employment as a Drama teacher: The recommendation choices pertaining to Mr Greig were to either terminate his employment or recommend casual employment. It was my opinion that Mr Greig, passionate about his subject area, could continue as a casual teacher. My understanding of a casual teacher role was that it limited the need for the administration tasks, as the evidence demonstrated that administration tasks were particular areas where Mr Greig lacked commitment and rigour. 1. I do not agree with Ms Knox's conclusion in this regard. I have found that Mr Greig's performance in respect of Teaching Standards 1, 3 and 5 are unsatisfactory. Despite the 10 week TIP, the feedback provided and the opportunities to access learning and support, Mr Greig was not able to achieve the required minimum level of proficiency. In my view, those minimum levels are required in any teaching role in a school, including casual teaching, regardless of the subject matter being taught. The statutory obligation imposed on the Department under s 5A of the Teaching Service Act to give paramount to consideration to the protection of children is not limited to teaching delivered by full-time or part-time teachers. Further, Mr Greig's demonstrated inability to acknowledge the need to improve his performance in the identified areas militates against him continuing to work in a casual capacity. 2. I did not have before me evidence of Mr Greig's full history across all of his years as an employee of the Department, apart from the 2013 Greig Decision. In this context, I have taken into account the comments made by Commissioner Newall about Mr Greig's performance as a teacher at that time, which were clearly positive. However I have also considered the findings about Mr Greig's conduct as Head Teacher in that decision, as follows: [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. Accordingly, Mr Greig does not have an unblemished employment history with the Department and cannot be said to be exemplary. 1. I accept that Mr Greig's career has been damaged by his dismissal. However this is no different to any teacher whose employment has been terminated for similar reasons of unsatisfactory performance after a TIP process has been applied. There are no special circumstances warranting mitigation of the penalty of dismissal. In weighing all relevant factors, in my view Mr Greig's dismissal was not harsh having regard, as I have throughout this matter, to the provisions of s 5A and Part 4A of the Teaching Service Act. He has not discharged the onus on him to establish his dismissal was harsh, unreasonable or unjust. Orders 1. Accordingly, the application is dismissed. ********** Amendments 05 December 2018 - Paragraph 9. Change 2018 to 2016 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: 05 December 2018