Kent v Secretary, Department of Education [2019] NSWIRComm 1001

Industrial Relations Commission New South Wales Medium Neutral Citation: Kent v Secretary, Department of Education [2019] NSWIRComm 1001 Hearing dates: 20, 21 and 22 March, 8 June, 31 July and 19 October 2018 Decision date: 17 January 2019 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application of Bradley Kent is dismissed Catchwords: UNFAIR DISMISSAL – classroom teacher – unsatisfactory teaching performance – informal support program – Teacher Improvement Program – failure to meet the level of performance required for the position of proficient classroom teacher – protection of children the paramount consideration – dismissal not harsh unreasonable or unjust – application dismissed Legislation Cited: Industrial Relations Act 1996 Teaching Service Act 1980 Cases Cited: Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Greig v Secretary, Department of Education [2018] NSWIRComm 1077 New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32 Category: Principal judgment Parties: Bradley Kent (Applicant)

Secretary, Department of Education (Respondent) Representation: Counsel: Mr A Britt (Respondent)

Solicitor: Ms C Schipp, Department of Education (Respondent) File Number(s): 2017/00304518

DECISION 1. This decision relates to the unfair dismissal application Bradley Thomas Kent. The application was filed on 5 October 2017. Conciliation was unsuccessful and the substantive hearing of the application commenced before me on 20 March 2018. The hearing occupied six days concluding on 19 October 2018. 2. The applicant nominated 31 August 2017 as the date of his "threatened dismissal" and 18 September 2017 as his last day worked. Prior to his dismissal, the applicant was employed as a teacher at Condobolin High School ("the School") in the central west region of New South Wales. 3. On 30 August 2017, Mark Anderson, Relieving Director, Staff Efficiency and Conduct Team, Employee Performance and Conduct Directorate ("EPAC") within the Department of Education ("the Department") wrote to the applicant. Mr Anderson referred to previous correspondence dated 19 July 2017 from Veronica Kapsamali, Director, Staff Efficiency and Conduct Team, EPAC, in which Ms Kapsamali had advised the applicant that she had formed the opinion that his work performance was still unsatisfactory following completion of an improvement program and that she was considering imposing disciplinary action. 4. In the letter of 30 August 2017, Mr Anderson stated that he had carefully considered the applicant's submissions of 13 August 2017 and the interview with and documentation provided to Mr Anderson on 4 August 2017. The letter then continued: I am of the view you did not provide any additional or compelling information that would alter the original opinion formed by Ms Kapsamali. I have decided, as defined under Section 93 B (1) of the Teaching Service Act 1980 to direct you to resign from the Teaching Service. You have 14 days from receipt of this letter to submit your resignation, otherwise you will be dismissed. I wish to advise that I have recommended that your name be placed on the list of people who are not to be employed in any capacity in NSW government schools (the NTBE list), without reference to the Director, Recruitment and Employment. 1. On 18 September 2017, the applicant resigned effective from that day. 2. In his unfair dismissal application, the applicant does not seek reinstatement to his former position but does seek re-employment to another position or, in the alternative, monetary compensation.