Anderson v Minister for Education
[1996] IRCA 297
•2 Jul 1996
DECISION NO: 297/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged unlawful termination - school teacher - alleged inefficiency - Regulation 86A procedure - whether inefficiency reports and compliance with Regulation 86A procedure are valid reasons for termination - whether valid reason if honest belief on reasonable grounds - whether procedural fairness - inadequate management of assessment process - subjective nature of criteria used to assess inefficiency - meaning of "harsh, unjust or unreasonable" - reinstatement.
Industrial Relations Act 1988 ss 170DC, 170DE, 170EA, 170EDA, 170EE
Education Act 1969 (WA) Regulations, Regulation 86Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
Kenefick v Australian Submarine Corporation Pty Ltd (1995) 62 IR 107.
Kenefick & Others v Australian Submarine Corporation Pty Ltd, unreported, IRCA 103/96, Full Court (Ryan, Beazley and North JJ), 26 March 1996.
Sangwin v Imogen Pty Ltd, unreported, von Doussa J, IR 73/96, 8 March 1996.
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199.
Gibson v Bosmac Pty Ltd (1995) 60 IR 1.
Davis v Nokia Telecommunications Pty Ltd, unreported, IRCA 217/96, Patch JR, 30 April 1996.
Gregory v Philip Morris Ltd, (1988) 80 ALR 455.
Monchouquy v West Coast Enterprises, unreported, IRCA 253/95, Wheeler JR, 5 April 1995.
Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 422.
Farrell v Conagra Wool Pty Limited, unreported, IRCA 39/94, Parkinson JR, 15 September 1994.
R v Industrial Court of South Australia; ex parte General Motors/Holdens Pty Ltd (1975) Bray CJ, 10 SAIR 582.
Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992), 36 FCR 20.
Baddeley v State Trustees Ltd, unreported, IRCA 229/96, Millane JR, 31 May 1996.
Slifka v JW Sanders Pty Ltd, unreported, IRCA 701/95, 19 December 1995.
Burazin v The Blacktown City Guardian, unreported, IRCA 660/95, Madgwick J, 15 December 1995.Jennifer ANDERSON -v- MINISTER FOR EDUCATION - WI 1446 of 1995
Before: RITTER JR
Place: PERTH
Date: 2 July 1996IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWI 1446 of 1995
B E T W E E N:
Jennifer ANDERSON
Applicant
A N D:
MINISTER FOR EDUCATION
RespondentMINUTE OF ORDERS
2 July 1996 RITTER JR
THE COURT ORDERS THAT:
1.It is declared that the termination of the Applicant’s employment by the Respondent was unlawful in that the Respondent contravened Section 170DE of the Industrial Relations Act 1988
2.The Respondent shall reinstate the Applicant by appointing her to another position on terms and conditions no less favourable than those on which the Applicant was employed immediately before her termination.
3.The employment of the Applicant is, for all purposes, deemed to have been continuous in the position in which she was employed before the termination of her employment.
4.The issue of whether any additional order should be made by the Court about the school where the Applicant will be employed upon reinstatement will be deferred, pending the receipt of further submissions from the parties.
5.The Respondent is to pay compensation to the Applicant pursuant to Section 170EE(2) of the Industrial Relations Act 1988.
6.The parties are to make further submissions on the quantum of such compensation at a time and in a manner as the Court shall direct.
7.The amount of compensation will, when an order is made by the Court quantifying the compensation, be paid by the Respondent to the Applicant within 7 days.
8.Each party has liberty to apply to the Court on not less than 48 hours notice to the other party.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWI 1446 of 1995
B E T W E E N:
Jennifer ANDERSON
Applicant
A N D:
MINISTER FOR EDUCATION
RespondentPRECIS OF JUDGMENT
2 July 1996 RITTER JR
For reasons which will be published tomorrow, I have made the following findings :
1.The Respondent has discharged its onus, under Section 170EDA of the Act, and proved that there was a valid reason for the termination of the Applicant's employment.
2.However, the Applicant has discharged her onus, under Section 170EDA of the Act, and proved that the termination of her employment was harsh, unjust or unreasonable and, therefore, the termination was in contravention of Section 170DE(2) of the Act.
3.The appropriate remedy is the primary remedy for termination of employment in contravention of the Act, that of reinstatement. The reinstatement is to be effected in the manner as reflected in my reasons.
4.In addition, the Respondent is to pay the Applicant compensation in accordance with the formulae set out in my reasons.
The precise formulation of the orders to be made with respect to compensation and reinstatement is to be deferred, pending receipt of further submissions, and possibly evidence, as set out in my reasons. As set out in my reasons, it may be advisable for Ms Anderson to obtain legal advice on the technical issues raised therein about compensation. I will ask the parties to come back to the court on 11 July 1996 at 10.00 am before me, to make further submissions on these issues, in accordance with my reasons. At this stage, the Court will make the following orders :
1.It is declared that the termination of the Applicant’s employment by the Respondent was unlawful in that the Respondent contravened Section 170DE of the Industrial Relations Act 1988.
2.The Respondent shall reinstate the Applicant by appointing her to another position on terms and conditions no less favourable than those on which the Applicant was employed immediately before her termination.
3.The employment of the Applicant is, for all purposes, deemed to have been continuous in the position in which she was employed before the termination of her employment.
4.The issue of whether any additional order should be made by the Court about the school where the Applicant will be employed upon reinstatement will be deferred, pending the receipt of further submissions from the parties.
5.The Respondent is to pay compensation to the Applicant pursuant to Section 170EE(2) of the Industrial Relations Act1988.
6.The parties are to make further submissions on the quantum of such compensation at a time and in a manner as the Court shall direct.
7.The amount of compensation will, when an order is made by the Court quantifying the compensation, is to be paid by the Respondent to the Applicant within 7 days.
8.Each party has liberty to apply to the Court on not less than 48 hours notice to the other party.
The reasons for decision will be published and couriered to the parties by the Court on 3 July 1996. This precis of judgment is now published. As stated, the time referred to in order 6 above is to be 11 July at 10.00 am.
IN THE INDUSTRIAL RELATIONS COURTOF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1446 of 1995
B E T W E E N:
Jennifer ANDERSON
Applicant
A N D:
MINISTER FOR EDUCATION
Respondent
REASONS FOR DECISION
2 July 1996 RITTER JR
CONTENTS OF JUDGMENT
Page No.
1.Nature of the Application 5
2.Background 5
3.The Trial Process 6
4.Outline of the Case 9
5.Regulation 86A of the Education Act 10
6.Valid Reason for Termination - Reliance on Regulation 86A 14
7.Section 170DC 16
8.The Regulation 86A Process 21
(1)The First Adverse Report 21
(2)Background to the Writing of the First Adverse Report 23
(3)Ministry Procedures for Inefficiency 33
(4)Ms Anderson's Response to the First Adverse Report 40
(5)The Treatment of Ms Anderson's Response 46
(a) Mr Frizzell's reply 46
(b) Could the Adverse Report be Removed From 48
Her Record
(c) Lack of Feedback to Ms Anderson 49
(d) Mr Frizzell's Communication with Mr Miles, 51
Mr Betjeman and Mrs Dagg
(e) Mr Betjeman's Evidence on the First Adverse Report 52
(f) The References Appended to Ms Anderson's Response 57
(6)Mr Miles' Involvement after the First Adverse Report 60
(7)The Transfer to Challis and Mrs Dagg's Involvement 63
(8)The Claim of Bias against Mrs Dagg 69
(9)The Processes Relating to the Second Adverse Report 70
(10)The Second Adverse Report 76
(11)Ms Anderson's Response to the Second Adverse Report 79
(12)Mr Frizzell's Reply to Ms Anderson 80
(13)Setting Up the Management Plan 81
for the Third Adverse Report
(14)The Management Group Guidelines 84
(15)The Interaction between the Panel Members 88
and Ms Anderson
(a)Mrs O'Brien 88
(b)Mrs Daley 92
(c)Mrs Parker 96
(d)Mrs Dagg 98
(16)Interaction with Mr Frizzell between the Second 100
and Third Adverse Reports
(17)Mr Betjeman's Evidence and Apprehension of Bias 104
(18)Ms Anderson's Response to Deferred Adverse Report 109
(19)The Sequelae to the Third Adverse Report and the 110
Implementation of the Termination of Employment
(20)Review of Part 8 of the Judgment 117
9.The Applicant's Witnesses 117
(1)Ms Manders 117
(2)Ms King 119
(3)Mrs Gregory 121
10.The Substance of the Three Adverse Reports 125
(1)The First Adverse Report 125
(2)The Second Adverse Report 128
(a)Programming 128
(b)Assessment, Recording and Reporting 130
(c)Timeliness 134
(d)Poor Standard of Children's Workbooks and 135
Large Amount of Worksheets
(e)Effective Communication with Mrs Dagg, 137
Other Staff, and Parents
(f)School Operational Procedures not being followed 139
(g)Supportive Environment 140
(3)The Third Adverse Report 141
(A)Overview of the Report 142
(1) Planning and Preparation 142
(2) Assessing and Reporting on Student Outcomes 142
(3) Teaching Skills 143
(4) Classroom Management 143
(5) Professional Characteristics 144
(B)Comments on Improvement 144
(1) Planning and Preparation 144
(2) Assessing 145
(3) Teaching Skills 145
(4) Classroom Management 145
(5) Professional Characteristics 145
(C)Positive Comments 145
(1) Planning and Preparation 146
(2) Assessing and Reporting on Student Outcomes 146
(3) Teaching Skills 146
(4) Classroom Management 146
(5) Professional Characteristics 147
(D)Oral Evidence on Teaching Efficiency 147
(E)The Specific Criticisms in the Report 150
(1) Planning and Preparation 151
(2) Assessing and Reporting on Student Outcomes 158
(3) Teaching Skills 160
(4) Classroom Management 166
(5) Professional Characteristics 166
11.The Respondent's Written Submissions 172
12.The Applicant's Submissions 175
13.The Respondent's Reply 179
14.Valid Reasons for Termination - Conclusion 179
15.Harsh, Unjust or Unreasonable Termination 180
16.Remedy 193
17.Compensation 195
18. Orders 197
(Annexure A) Teaching Dimensions
1. NATURE OF THE APPLICATION
This application by Ms Anderson is brought under Section 170EA of the Industrial Relations Act 1988 ("the Act") and claims that the respondent terminated her employment in contravention of Part VIA of Division 3 of the Act. The applicant seeks reinstatement to her employment pursuant to Section 170EE of the Act. The respondent denies that the termination of employment was in contravention of the Act. Alternatively, the respondent submits that if the termination of employment was in contravention of the Act, then reinstatement should not be ordered because it is impracticable in all the circumstances of the case; Section 170EE(2) of the Act.
BACKGROUND
The applicant was employed by the respondent as a primary school teacher. Ms Anderson completed studies in primary teaching at the WA College of Advanced Education at Mt Lawley at the end of 1983. In 1984 she commenced relief teaching with the respondent. During the five years from 1984 to 1988, she was employed by the respondent on a relief teaching basis. During this time the total amount of relief teaching amounted to approximately one year and one term equivalent of teaching time. The relief teaching took place in Port Hedland.
At the beginning of second semester in 1989, Ms Anderson commenced full time teaching for the respondent at Dumbleyung District High School which included a primary school where she taught a split class of Grades 3 and 4. This position was a replacement for a teacher absent on maternity leave and so did not continue beyond a single semester.
From the beginning of 1990, Ms Anderson was transferred to Carcoola Primary School in North Pinjarra where she taught a Grade 4 class for one year. Ms Anderson was granted permanency during this year. In 1991, Ms Anderson transferred back to the metropolitan area where she took up a full time appointment at Westfield Park Primary School as a permanent teacher. Ms Anderson taught at Westfield Park Primary School from January 1991 until December 1993.
For the commencement of the school year in 1994, Ms Anderson was transferred to Challis Early Childhood Unit ("Challis"). There Ms Anderson taught a Grade 2 class. She remained at Challis for the whole of 1994 and first term of 1995.
On 12 April 1995, the second last day of Term 1 of that year, Ms Anderson was advised by the principal that she had been dismissed and was required to leave the school that day. On 13 April 1995 she received a letter dated 11 April 1995 from the respondent by which she was advised that she had been dismissed on the grounds of inefficiency. The dismissal was purportedly under Regulation 86A of the Education Act Regulations.
THE TRIAL PROCESS
At the trial, the applicant represented herself. She was courteous to the Court at all times and presented her case in a reasonable manner. The respondent was represented by counsel who presented the case for the respondent in a fair and thorough manner. The former was particularly appropriate given that Ms Anderson represented herself and the latter provided me with valuable assistance. The parties were able to jointly put together a file of relevant documents for use during the trial. This made much easier the process of identifying and tendering relevant documents.
The applicant gave evidence in support of her case and called the following witnesses:
(1)Mrs Wendy Manders, a school teacher and educationalist of considerable experience, particularly in the area of the treatment of students with attention deficit disorder ("ADD"). Mrs Manders had interaction with Ms Anderson when the latter taught at Westfield Park Primary School;
(2)Ms Joan King, who was a deputy principal at Westfield Park Primary School for the years 1991 and part of 1992, and currently a deputy principal at Ashburton Drive Primary School.
(3)Mrs Gweneth ("Gwen") Gregory, who is now an acting deputy principal of a state primary school, and who was a teacher who taught with Ms Anderson at Carcoola Primary School in 1990.
In addition to this, Ms Anderson tendered a number of documents. Some of these, which may have been otherwise objectionable on the basis of containing hearsay, were tendered with the consent of counsel for the respondent.
The respondent called the following witnesses:
(1) Mr John Miles, the principal at Westfield Park Primary School in 1993.
(2) Mrs Linda Humphreys, a deputy principal at Westfield Park Primary School in 1993.
(3)Mrs Patricia ("Pat") Dagg, the acting principal at Challis for nine years, including 1994.
(4)Mrs Megan O'Brien, the deputy principal at Challis Primary School between 1990 and 1995.
(5)Mrs Prudence ("Prue") Daley, a teacher at Challis in 1994.
(6) Mrs Sherry Parker, a teacher at Challis in 1994.
(7)Mr Kenneth Betjeman, a superintendent of the Education Department of Western Australia, who has, other than when seconded to head office, been the superintendent of the Armadale Education District since 1992.
(8)Mr Peter Frizzell, the Executive Director of Schools at the Education Department in Western Australia.
In addition to the oral evidence, approximately 150 exhibits were tendered. Some of these were quite lengthy. The hearing was keenly contested and the evidence took some eight days to be heard. At the conclusion of the eighth day of evidence and with the consent of both parties, it was resolved that closing submissions would be presented in writing. This was done because at the conclusion of the eighth day, there was then no immediate court time available for the hearing of closing submissions. Further, the hearing had already been somewhat disjointed. There had been breaks between the first and second, fourth and fifth, and sixth and seventh days of the hearing. The hearing commenced on 13 December 1995 and the evidence was not completed until 20 February 1996.
The eighth day completed at about 7.30 pm. It is often not appreciated that court officers, who attend at these hearings to assist Judicial Registrars, and transcript officers, must make individual sacrifices to assist the Court in being able to sit late. For this, the parties and the Court should be grateful. It is appropriate in my view to record in this judgment what I said at the conclusion of the hearing on 20 February 1996, being, "I should also place on record my thanks to the court officer and the Auscript staff for remaining until what is now half past seven." (1021)
The respondent's closing submissions were filed on 23 February 1996. The applicant's closing submissions were filed on 1 March 1996 and the respondent's submissions in response to the applicant's closing submissions were filed on 6 March 1996. There was one matter raised by the applicant's submissions upon which, by letter dated 10 April 1996, the Court invited further submissions from the Respondent. These were filed on 17 April 1996. The subject of these submissions will be discussed later in these reasons. My decision had been formally reserved at the conclusion of evidence on 20 February 1996.
4. OUTLINE OF THE CASE
The applicant contended that the termination of her employment was in breach of both Sections 170DC and 170DE of the Act. With respect to Section 170DC, Ms Anderson alleged that her employment had been terminated for reasons relating to her conduct or performance and that she had not been given the opportunity to defend herself against the allegations made.
With respect to Section 170DE, Ms Anderson alleged that her employment had been terminated without a valid reason connected to her capacity or conduct. Pursuant to Section 170EDA(1) of the Act, the respondent has the onus of proving that there was a valid reason for the termination, of the kind referred to in Section 170DE(1).
If the employer does so prove, then there will still be a termination of employment in contravention of Section 170DE if the employee proves that, having regard to the employee's capacity and conduct, the termination is harsh, unjust or unreasonable; Section170EDA(1)(b). This was Ms Anderson's alternative position.
The respondent's case was that there was a valid reason for Ms Anderson's termination of employment, being her inefficiency as a school teacher. The respondent further alleged that Ms Anderson could not show that the termination of her employment was harsh, unjust or unreasonable. The respondent also denied any contravention of Section 170DC.
5. REGULATION 86A OF THE EDUCATION ACT
The applicant's employment with the respondent was governed by the Education Act 1969 (WA) (as amended) and the regulations made pursuant to the Education Act. As stated above, the respondent purported to terminate the applicant's employment in reliance on Regulation 86A of the Education Act Regulations.
This regulation states:-
"86A (1) Subject to this regulation, a teacher who is inefficient is liable to be -
(a)reduced to a position carrying a lower salary or remuneration; or
(b)dismissed.
(2)Where the Chief Executive Officer receives no less than two reports that a teacher is inefficient, the Chief Executive Officer shall forward a copy of the reports to the teacher and request that the teacher submit a written explanation on the reports within the time specified in the request.
(2a)Each of the reports referred to in subregulation (2) of this regulation shall come from -
(a)the principal of the school at which the teacher is employed; or
(b)a person holding or acting in a position of Superintendent or a higher position;
and may be given by the same person or by different persons.
(3)Where, after considering the reports made under subregulation (2) of this regulation in relation to a teacher and the written explanation (if any) given by the teacher in respect of the reports, the Chief Executive Officer is satisfied that the teacher is inefficient the Chief Executive Officer may -
(a)direct that the teacher be reduced to a position carrying a lower salary or remuneration; or
(b)recommend to the Minister that the teacher be dismissed.
(4) Upon considering the -
(a)reports made pursuant to subregulation (2) of this regulation that a teacher is inefficient;
(b)explanation (if any) given by the teacher pursuant to subregulation (2) of this regulation in respect of the reports; and
(c)recommendation made by the Chief Executive Officer pursuant to paragraph (b) of subregulation (3) of this regulation,
the Minister may, by order in writing, dismiss the teacher and the order has effect accordingly."
The procedural requirements of Regulation 86A are as follows:
(1)The Chief Executive Officer receives no less than two reports that a teacher is inefficient.
(2)The inefficiency reports are written by the principal of the school at which the teacher is employed or a person in a position of superintendent or a higher position.
(3)The Chief Executive Officer forwards a copy of the reports to the teacher and requests that the teacher submits a written explanation on the reports within the time specified in the request.
(4)The Chief Executive Officer considers the inefficiency reports and the written response by the teacher (if any).
(5)If a Chief Executive Officer is satisfied that the teacher is inefficient then he may recommend to the Minister that the teacher be dismissed.
(6)After considering the inefficiency reports, the explanation of the teacher and the recommendation of the Chief Executive Officer, the Minister may, by order in writing, dismiss the teacher.
The regulations do not contain any definition of inefficiency. Some attempt to define efficiency is made in Exhibit A, a draft Ministry of Education document dated November 1990, as to which further reference will be made later in this judgment.
In this case, the procedures established by Regulation 86A were followed, in that :
(1)The then Chief Executive Officer (Mr Black) received three reports that Ms Anderson was inefficient. He received them via Mr Frizzell. The first report was written by Mr John Miles and dated 20 December 1993. The second report was written by Mrs Pat Dagg and dated 26 July 1994. The third report, dated 19 December 1994, was jointly written by Mrs Dagg, Mrs O'Brien, Mrs Parker and Mrs Daley. Although the third report was written by a group of people of which the principal was only one member, there was no issue taken that this report did not comply with Regulation 86A(2a);
(2)Each report was forwarded to Ms Anderson and she was invited to respond to each report. She did so, as follows:
(a)Ms Anderson replied to the first report by letter dated 31 January 1994.
(b)Ms Anderson responded to the second report by letter dated 19 August 1994.
(c)Ms Anderson responded to the third report by letter dated 10 February 1995.
(3)By letter dated 1 March 1995 to Ms Anderson, Mr Frizzell enclosed another copy of the first and second adverse reports. The letter said that if Ms Anderson had any further comments to make, she could forward them to Mr Frizzell by no later than 10 March 1995.
Ms Anderson responded by letter to Mr Frizzell dated 10 March 1995.
(4)In a memorandum from Mr Frizzell to Mr Black dated 17 March 1995, Mr Frizzell enclosed a draft report to the Minister on the review of Ms Anderson's teaching efficiency, recommending that she be dismissed as a teacher.
This report was, I infer, subsequently signed by Mr Black and dated 31 March 1995.
(5)The then Minister for Education, the Hon. Mr Moore MLC, sent a letter to Ms Anderson dated 11 April 1995 saying that he had considered the report from Mr Black, the reports relating to Ms Anderson's efficiency and her responses to those reports. Ms Anderson was advised in the letter that Mr Moore agreed with the recommendation that she be dismissed.
Mr Black and Mr Moore did not give evidence. It was not suggested that Mr Black and Mr Moore did not consider the matters that they were required to under Regulation 86A(3) and (5). [It may have been that they should have been called as witnesses - see Baddeley v State Trustees Limited, unreported, IRCA 229/96, 31 May 1996, Millane JR, page 7. However, as nothing was made of their failure to give evidence by Ms Anderson, I will not further consider this issue.]
The termination of employment of the applicant was therefore legal in the sense of complying with Regulation 86A. However, the mere fact that the termination of employment complied with Regulation 86A, does not foreclose the jurisdiction of this Court. It was not argued by the respondent that it did.
6. VALID REASON FOR TERMINATION - RELIANCE ON REGULATION 86A
The respondent, in its closing submissions, said that:
"It was the applicant's inefficiency, documented in three adverse reports pursuant to Regulation 86A, over a period of some 14-15 months, which was the reason for termination. It is submitted that termination of the applicant's employment was a logical response to the applicant's inability to teach effectively and that there was no capricious termination. Consequently it is submitted that all the evidence supports the conclusion that the respondent had a valid reason to terminate the applicant."
In making such submissions, the respondent relied upon the judgment of Justice Northrop in Selvachandran v Peteron Plastics Pty Ltd, unreported, Industrial Relations Court of Australia No. 329/95, as approved by Wilcox CJ in Kenefick v The Australian Submarine Corporation Pty Ltd (1995) 62 107 at 116.
An issue which is perhaps only inferentially raised by these submissions is whether the respondent had a valid reason to terminate the applicant's employment, simply because the respondent had received three inefficiency reports about Ms Anderson in accordance with Regulation 86A; and Regulation 86A was otherwise complied with. That is, did the fact that the Minister received three inefficiency reports in accordance with Regulation 86A mean that his decision to terminate the employment of the applicant was therefore for a valid reason? For example, would it be the case that the Minister still had a valid reason to terminate the employment of the applicant, even if it could be shown that the contents of the inefficiency reports were not factually accurate, in such circumstances where the Minister would have no reasonable basis to believe that the reports were inaccurate?
Von Doussa J considered a not dissimilar issue in Sangwin v Imogen Pty Ltd, unreported, IRCA No. 73/96, 8 March 1996. In that decision, his Honour said at page 14 that Section 170DE(1) "should not be construed so as to exclude from the notion of a 'valid reason' an honest belief held on reasonable grounds by the employer", after a proper inquiry, "that a state of fact exists which justifies termination of the employment."His Honour considered that such a reason for termination would still be a "valid reason" even if the reasonably held belief was later shown to be erroneous. His Honour considered examples to illustrate the point. His Honour referred to a skilled operator of equipment where human life depends on the proper operational performance of the equipment. The employer receives a report that the operator is suspected of suffering a medical condition that is likely to impair his ability to perform duties. The employer is duty bound to ensure safety. If after sufficient inquiry the suspected diagnosis could not be excluded, his Honour considered whether the employer would still have a valid reason for termination. His Honour said it would be odd in such a situation if after termination it was later held that no valid reason existed at the time of the dismissal because later events, such as the passing of time or a new diagnostic procedure, proved that the operator had not been suffering the suspected medical condition.
His Honour did not specifically consider whether in such a situation, although it could be said that there was a valid reason for the termination, nevertheless, the termination was harsh, unjust or unreasonable because the reasonably held belief was in fact erroneous.
In my opinion, the facts of this case do not properly come within the situation considered by Von Doussa J. This is partly because we have not heard evidence from the then Minister of his "honest belief on reasonable grounds". Whilst this can perhaps be inferred, due to the contents of the letter that the Minister sent to Ms Anderson, I do not think it appropriate in this case to hold that merely because the Minister received three reports of inefficiency and complied with Regulation 86A, that of itself and without further consideration constituted a valid reason for termination. This is partly because the Minister needed to consider and assess the explanations given by Ms Anderson under Regulation 86A(5).
Therefore, to decide whether there was a valid reason for termination and, if so, whether nevertheless the termination was harsh, unjust or unreasonable, I need to consider in detail the contents of the inefficiency reports, the replies to them and the evidence relating to the issues covered by the adverse reports. I will also need to consider whether the way in which the Regulation 86A process was carried out was such as to mean that the termination was not valid or was harsh, unjust and unreasonable. [See the reference later in these reasons to the High Court decision of Byrne & Frew v Australian Airlines Ltd] In addition, the issues raised by the applicant's reliance on Section 170DC of the Act need to be considered. I will turn to this first.
7. SECTION 170DC
Section 170DC of the Act provides that an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b) the employer could not reasonably be expected to give the employee that opportunity.
The respondent did not place reliance on Section 170DC(b).
In this instance the employer did terminate Ms Anderson's employment for a reason related to her conduct or performance. The termination was for her "inefficiency" as a teacher. The next question is whether Ms Anderson was given the opportunity to defend herself against the allegations made.
Section 170DC provides a statutory right that an employee be given what may be colloquially described as "a fair go"; see Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199, Wilcox CJ. As the Chief Justice said at 210, to comply with Section 170DC(a), the employer must determine the aspects of conduct or performance which are such as "to justify possible dismissal and put those matters squarely to [the employee] under circumstances where [the employee] had a fair opportunity to defend himself."
In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Wilcox CJ at page 7 stated that Section 170DC does not require any particular formality and is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about their conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.
In Kenefick and Ors v The Australian Submarine Corporation Pty Ltd, unreported, IRCA 103/96, Full Court (Ryan, Beazley, North JJ), 26 March 1996, the Court, at page 12, albeit in a different context, indicated that Section 170DC satisfies a "need for the employee to have an opportunity to respond because . . . a convincing defence to the allegations may persuade the employer not to terminate the employment of that employee." Their Honours, at pages 12/13, said that Section 170DC contained what the legislature "obviously" regarded as a "fundamental right to an opportunity to respond to allegations of misconduct or poor performance."
In this case, subject to one matter which is considered later in these reasons, I do not think that there has not been a contravention of Section 170DC of the Act. (This matter relates to Mr Frizzell's memorandum to Mr Black.) The three inefficiency reports were each sent to Ms Anderson and her comments on each report were requested. Ms Anderson responded in writing to each report. Further, prior to her termination, Ms Anderson was given a further opportunity to respond in writing to each of the reports. The reports set out the bases upon which it was alleged that Ms Anderson was an inefficient teacher.
The letters that were sent to Ms Anderson enclosing the reports referred to Regulation 86A. As Regulation 86A makes clear, and as Ms Anderson knew, a teacher who is inefficient is liable to be dismissed if the Regulation 86A process is followed.
As set out above, Ms Anderson's final written response to the reports was sent to Mr Frizzell by letter dated 10 March 1995. The termination of her employment occurred approximately one month later. Wilcox CJ in Nicolson v Heaven and Earth Gallery, page 210, emphasised that ordinarily the opportunity to respond to allegations put should be given to the employee at a time "close to the date of dismissal." On the facts of the case before him, the Chief Justice said, "It would not suffice that something was said to Mr Nicolson [the employee] four weeks earlier, after which he was allowed to go on with his work as before." In this case, there was a gap of about one month between Ms Anderson providing her final submissions and the termination of employment. However, I do not think that this of itself meant that there was a breach of Section 170DC of the Act. The concept of a "close" time between the receipt of a response to allegations and a decision to terminate is not in my opinion an inelastic one and there is some scope for variation from case to case. In this instance, the respondent is the Minister of a large state government department. In such circumstances, it is to be expected that there will be a longer delay in considering the potential termination of a school teacher's employment, under a regulatory process, than, say, a situation of a small business operated by a single proprietor. However, one month is still a lengthy delay for someone in the position of Ms Anderson - waiting to know whether or not they have been dismissed. In my view, it is a longer period than is desirable or appropriate.
Although I find, subject to the matter of Mr Frizzell's memorandum to Mr Black which is to be considered later, that there has been no breach of Section 170DC of the Act, it is necessary to consider the procedures which led to the termination of Ms Anderson's employment. This is because such procedures could have operated in such a way as to, for example, mean that the termination of employment was harsh, unjust or unreasonable.
In Byrne & Frew v Australian Airlines Ltd, (1995) 131 ALR 422 at page 434, in the joint decision of Brennan CJ, Dawson and Toohey JJ, their Honours considered an argument that "the adoption of an unfair procedure may render a dismissal harsh, unjust or unreasonable", depending "upon the whole of the circumstances". Their Honours accepted that "the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable" (434); although the Full Court of the Federal Court had impermissibly reached "a conclusion adverse to the Respondent, based upon the procedure employed in dismissing the Appellants without considering whether the trial judge was correct in reaching the conclusion that there was sufficient evidence to establish that the Appellants were involved in the misconduct alleged against them."
This statement was made in the context of a judgment which, although it did not involve the Industrial Relations Act, Part VIA, Division 3, did concern a Federal award which stated that "Termination of employment by an employer shall not be harsh, unjust or unreasonable".
In their judgment, McHugh and Gummow JJ at 461 said that the majority in the Full Court "had proceeded on the footing that termination of employment might be unreasonable . . . by reason of 'procedural' deficiencies without the need to go further into 'substantive' aspects of the matter." At page 462, their Honours said that "the distinction between procedure and substance is elusive" but that "is not to say that the steps taken, or not taken, before termination may not be relevant to a consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable. But the question under [the relevant clause of the award] is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second."
Their Honours considered some of the relevant authorities and continued at 463: "Procedures adopted in carrying out the termination might properly be taken into account by the primary judge in determining whether the termination thus produced was harsh, unjust or unreasonable" but that the Full Court had erred in determining the appeal "purely for reasons associated with what are identified as procedural defects in the steps taken by the Respondent to dismiss the Appellants." Whilst their Honours were at pains to point out that they were only construing the award, and what was said did not necessarily determine the meaning of harsh, unjust or unreasonable in a different setting, I think I ought to be guided by these judgments in considering the allegation that the termination of employment was, at least, harsh, unjust or unreasonable under Section 170DE(2) of the Act.
I now turn to the evidence about how the Regulation 86A process was implemented by the Respondent.
8. THE REGULATION 86A PROCESS
(1) The First Adverse Report
As stated earlier, the first adverse report was written by Mr John Miles, the principal of Westfield Park Primary School, and was dated 20 December 1993. The adverse report was directed to the attention of Mr Frizzell. The second paragraph of the report said:
"In view of the accumulating evidence in respect to Miss Anderson's teaching, in particular in the areas of communication and interpersonal skills and her reluctance to accept and act on advice, I have no alternative in presenting this adverse report. In view of the discussions that have taken place with Ms Anderson over the past two weeks, she has been made aware of the contents of this report.
Miss Anderson has met formally with the executive staff group which included the senior school psychologist as her representative.
An agreement for support and professional development was drawn up and duly signed by Miss Anderson.
Miss Anderson showed reluctance to proceed, stalling at every opportunity, postponing in services or contacts organised for her."
In the report, Mr Miles outlined what the executive staff group, supported by the district superintendent, regard an efficient teacher to be. The report also set out "broad areas of teacher effectiveness in which Miss Anderson needs to be seen to be accepting responsibility". Nine points were then outlined. The letter then said that in the context of "current concerns", particular attention needed to be given to addressing issues 2, 5, 7, 8 and 9.
These issues were as follows:
2.Contributing to the ethos of the school through efficient and effective parent, student and teacher relationships.
5.Student work is marked frequently, including prescribed homework, and constructive feedback is provided to students.
7.Classroom climate is enhanced through fair dealings and purposeful student management.
8.Responsibilities accepted for being familiar with and implementing all school operational procedures (eg, class notes sent home need to be sighted by the principal).
9.Responsibilities accepted for own actions and there is a willingness to respond and act on advice from the executive staff members.
The letter concluded, "As a group we will monitor and review Miss Anderson's progress in 1994. It is imperative, however, that she responds to advice and professional development seriously with prompt attention".
In my opinion, the contents of issues 2, 5, 7, 8 and 9 are generally not sufficiently specific to either be understood in a meaningful way or addressed either in a reply to the letter or by subsequent conduct. The exception is the specific complaint in issue 5 and the example in issue 8.
As the second paragraph of Mr Miles' letter highlights and Mr Miles' oral evidence confirmed, it was mainly his concern with Ms Anderson's communication and interpersonal skills and her reluctance to accept and act on advice which led to Mr Miles making the report. This related in part to the events involving Mr Miles and Ms Anderson in the months leading up to 20 December 1993.
(2) Background to the Writing of the First Adverse Report
Mr Miles was a new principal to Westfield Park Primary School in 1993. He said in his evidence that initially there were no difficulties with Ms Anderson. However, problems emerged when Mr Miles became aware of parental complaints about the way Ms Anderson had allegedly dealt with children in her class. He said in his evidence that this occurred in August-September 1993. He said that he went to Ms Anderson and put complaints to her and that she became defensive. He said that Ms Anderson viewed letters of parental complaint and thought that these were unjustified. Mr Miles also said that he had detected communication problems with Ms Anderson including hearing her yelling out to her students when he was passing her class in the passageway. He said that before November 1993 he did not have anything to say to Ms Anderson concerning her teaching per se but he did talk to her about her communication skills.
Exhibit 30 was a copied extract of entries that Mr Miles made in his school journal concerning complaints made about Ms Anderson by parents. The extract noted complaints made on 31 August, 16 September, 24 September and 27 October 1993 by different parents; that is a total of four different parents. Some of those parents had further contact with Mr Miles, as noted in Exhibit 30. On 14 December 1993, there was a written complaint by a parent/helper in the classroom of Ms Anderson who had made "serious allegations". The journal extract noted that on 17 December 1993 Ms Anderson had declined the opportunity to comment on the letter.
Mr Miles said that he formed the view that Ms Anderson needed counselling because of her communication and interpersonal skills deficiencies. Mr Miles suggested that Ms Anderson see the school psychologist, Ms Elizabeth Fairclough, concerning her communication and interpersonal skills. On 15 November 1993 Mr Miles wrote a memorandum to Ms Anderson, "following up my previous request for you to see the school psychologist, Elizabeth Fairclough. I would like to keep in touch with you and the progress made".
On the same date, Mr Miles issued to Ms Anderson another memorandum which said that:
"After a number of discussions with you regarding communication with parents and interpersonal skills, I recommend that you see the school psychology staff for advice and guidance. As you have since indicated to me that you prefer not to go ahead with this request, I am now formally indicating that you do so. I will also advise Elizabeth Fairclough, the senior psychology officer, of my decision".
Mr Miles said in his evidence that he wrote these memoranda to Ms Anderson rather than communicating orally with her as she was at that stage refusing to talk to him.
On 16 November 1993, Mr Miles again wrote two memoranda to Ms Anderson. The first stated that a parent had seen him regarding one of the students in Ms Anderson's class and a "class incident". The memorandum said that Mr Miles needed to speak with Ms Anderson regarding the incident. The second memorandum said that "I am extremely concerned that you were not willing to enter my office, at morning recess, to discuss an appropriate time for a formal interview with me. I am now requesting that you meet with me to arrange an appropriate formal interview time".
Exhibit 5 was a note from Ms Anderson to Mr Miles in response to the memorandum of 15 November 1993. This note stated that:
"There have been a few occasions when you have made me aware of parents' feeling on particular issues, but I do not recall any strategies or interpersonal skills being discussed at the time.
Since my communication skills with parents is seen as an area of concern - would you please detail the following matters so that we can address specific areas."
The note then requested various particulars of the discussions held, the parents and scenario discussed and interpersonal skills or strategies for the circumstances that were discussed. The note concluded that Ms Anderson was "totally perplexed by the nature of your memo, and therefore request clarification of the issues".
Exhibit 6 was a further note from Ms Anderson to Mr Miles dated 17 November 1993. The note referred to the four memos from Mr Miles dated 15 and 16 November 1993. The note stated that:
"I'm willing to participate in a documented interview - if the other person present is Elizabeth Fairclough. Since these matters pertain to parent communication, and Elizabeth has discussed a number of families from this school with me in the past, I feel that her contribution would be both objective and relevant.
I would like our meeting to take place in three stages - in the first meeting I would like you to state your areas of concern to myself with Elizabeth present. In the second meeting I would like time to discuss those areas with Elizabeth confidentially, so that we can discuss possible strategies, and in the third meeting I could bring those strategies to your attention, and formulate an action plan." (emphasis added)
Mr Miles sent a memorandum in reply to Ms Anderson dated 17 November 1993. This memorandum indicated that Mr Miles was pleased that she had accepted his advice and noted that there were matters that Ms Anderson needed to address and that she had agreed to a formal meeting. Mr Miles also recorded that he was pleased that Ms Anderson accepted Ms Fairclough as a "support person". The memorandum indicated that the initial meeting would occur in his office on Thursday, 18 November 1993 at 9.30 am. When that meeting concluded, Ms Anderson would be given an opportunity to meet with Ms Fairclough. There would then be a final meeting held at 2.00 pm to determine strategies to take place.
The meeting took place on 18 November 1993 as scheduled. The people attending the meeting were Mr Miles, Ms Anderson, Ms Fairclough and Ms Humphreys, who was to act as a "scribe". Mr Miles made some notes prior to the meeting being held which referred to issues relevant to communication and strategies to address relevant issues. Mr Miles was clear in his evidence that Ms Anderson was told at this meeting that inefficiency procedures could follow if an acceptable outcome was not reached at the meeting. Mr Miles said that Ms Anderson was defensive at the meeting. In relation to one incident, on which Ms Humphreys had reported a matter to Mr Miles, Mr Miles said that Ms Anderson called Ms Humphreys a liar and said that she would "take her to court". Mr Miles said that at the meeting he indicated to Ms Anderson that he wanted some immediate response to the problems that were raised.
At the conclusion of the meeting an "agreement" was signed. The "agreement" was Exhibit 10. The "agreement" was signed by Ms Anderson, Ms Fairclough and Mr Miles and dated 18 November 1993. This document was headed "Issues for clarification and discussion between Elizabeth and Jennifer". It then listed five matters. Each of these matters broadly related to communication. Ms Anderson wrote underneath this list that she was "happy to work with Elizabeth in the above areas". The agreement then listed three further matters. The first was that Ms Anderson would seek confidential counselling at an Armadale clinic with "an appointment to be established by Jennifer and communicated to Elizabeth". Secondly, there was a request for "acknowledgment of positive achievements during the year from John and Elizabeth". Thirdly, there was "working with Elizabeth to develop specific communication skills". There was agreement for "trial work" as necessary with another psychologist. Underneath these points Ms Anderson wrote in her handwriting, "I will undertake the outcomes requested".
On 22 November 1993, Mr Miles sent a further memorandum to Ms Anderson which had the stated purpose of "placing on record" the outcomes of the interviews on 18 November 1993. The memorandum listed the "agreed outcomes". This involved a repeat of the agreed outcomes listed in the document which was signed on 18 November 1993. The memorandum stated that "Regular reviews of your progress will be arranged over future months". The memorandum also stated that "I am pleased that you have recognised that you have to develop your interpersonal and communication skills and are prepared to try and improve them. "
Mr Miles subsequently received a request from Ms Anderson for a photocopy of school journal entries dealing with parent complaints. She also requested a copy of a parent letter of complaint. The memorandum from Mr Miles to Ms Anderson dated 22 November 1993 enclosed photocopies as requested excepting the parent letter as it was "directed to myself". Mr Miles also said that the information contained in the letter was not the major concern, it was only supporting material. Mr Miles said that Ms Anderson had viewed the letter already and noted its contents. Mr Miles said that the major, "general" concerns were outlined in his notes and Elizabeth Fairclough's notes which Ms Anderson had signed.
On 29 November 1993, Ms Anderson wrote a two page memorandum to Mr Miles. The memorandum recorded that on 25 November 1993, Ms Anderson spoke with Ms Fairclough about the outcome of the meeting on 18 November 1993. The memorandum stated that "I am happy to discuss ways of communicating with difficult parents - with Elizabeth, during my DOTT time, as soon as Elizabeth is able to make time available." The memorandum also requested that if there were "any other inservice seminars or workshops that you are aware are available - then I would like to attend those also".
The memorandum referred to comments that Ms Anderson had made to the school social worker and psychologist and members of the administrative team during the year on the number of "at risk" children within Ms Anderson's class. The memorandum also recorded Ms Anderson's disappointment in the response from some parents during the year.
The memorandum concluded:
"I have considered and reflected upon the outcome suggested of attending a clinic for counselling. I feel that this is an intrusion of my professional life into my personal life - and feel that general discussion on random topics may not be relevant to your main area of concern - my interaction with parents in this area.
I would like to state again that I will willingly participate in any form of professional development that will relate to my skills in dealing with parents.
I hope that this addresses your areas of concern."
Mr Miles stated in evidence that his view of this memorandum was that it was setting out excuses and an avoidance of the issues. Mr Miles said that Ms Anderson's class was as difficult as two to three other classes in the school. He was surprised that she was now "avoiding" counselling after the agreement reached on 18 November 1993.
In a memorandum dated 8 December 1993, Ms Anderson advised Mr Miles that she would like him to release the dates, times and source of complaints over the year as recorded in his school journal. The memorandum said that Ms Anderson thought this information would be helpful in directing her and Ms Fairclough to relevant areas. A further memorandum from Ms Anderson to Mr Miles which was headed as a response to a letter dated 9 December 1993 thanked Mr Miles for confirming that he would supply a written copy of journal entries referring to herself over the year. The memorandum said that Mr Miles' letter commented that it may take a number of days to go through the journal. The memorandum asked whether there would be enough time to compile the anecdotal notes before the end of the school year. The memorandum noted that there were only six days left before the end of the school year.
In relation to these last two memoranda, Mr Miles said that he regarded the first memorandum as a delaying tactic and said that he did not think the journal entries referred to in the second memorandum would assist in discussions with Ms Fairclough.
On 10 December 1993, Mr Miles wrote a memorandum to Ms Anderson saying that he had organised a formal session with Ms Fairclough for Tuesday, 14 December 1993 at 2.00 pm. He advised that relief teaching would be provided to release Ms Anderson from her duties at school so that she could meet with Ms Fairclough at the district office. The memorandum said that:
"I have also contacted three other organisations that would be willing to meet your professional development needs immediately, in the area of interpersonal skills and communication. Please make your appointment within the next week and inform me of your choice with the date and time.".
The memorandum set out as the three organisations the Armadale Community Health and Development Centre, Armadale Clinic and an organisation called EASE. According to Mr Miles, EASE is an Education Department counselling unit (356).
On 14 December 1993, Mr Miles wrote another memorandum to Ms Anderson. The first paragraph confirmed that journal entries would be provided before the end of the year. The memorandum then said that:
"It is imperative you keep the appointment with Elizabeth Fairclough and make immediate contact with any of the three agencies suggested, all of whom have staff experienced in interpersonal and communications skills. The journal entries will make no difference to the above. We are in the main concerned with your interpersonal and communications skills which need to be addressed immediately. Please contact Elizabeth to keep your appointment."
Ms Anderson did not keep the appointment with Ms Fairclough. On 15 December 1993, Ms Fairclough wrote a note to Ms Anderson (Exhibit 26). Whilst Ms Fairclough was not called to give evidence, there was no objection to this document being tendered as an exhibit. The note recorded that Ms Fairclough was disappointed that Ms Anderson did not manage to keep the appointment made for the previous day. The memorandum also said that Ms Fairclough had not "perceived that you have been genuinely committed to understanding or addressing the concerns that John has identified. For this reason it would be more productive for me, as a psychologist, to respond to your initiative and request for further contact." The note concluded that Ms Fairclough strongly urged Ms Anderson to "consider the personal counselling options - EASE or Armadale based services". The note had at the bottom a "cc" to Mr Miles.
Ms Anderson replied to the note of Ms Fairclough by letter dated 16 December 1993 (Exhibit 27).
The letter stated that Ms Anderson thought there was a change in focus. The letter said that Ms Anderson originally thought that the focus was on strategies for interacting with difficult parents. Ms Anderson said that "the focus has now become more personalised - and my whole approach to interpersonal skills is being questioned. I now choose to seek further advice in this area". The letter said that Ms Anderson was surprised that the contents of the note from Ms Fairclough to Ms Anderson, had been sent to Mr Miles. The letter concluded that whilst Ms Anderson thanked Ms Fairclough for her assistance, she felt "that because of your close liaison with the school, it would be in my best interests to seek private counselling. I will contact EASE and inform John of the appointment date and time."
In a memorandum of the same date to Mr Miles, Ms Anderson simply said that "I have made a confidential appointment to see Dallas Clements at EASE during the second week of term 1 in 1994. I will be speaking with her on Wednesday, 9 February".
Ms Anderson gave evidence that she kept this appointment and this was not contradicted on behalf of the respondent. I accept Ms Anderson's evidence that this appointment was kept.
In his evidence, Mr Miles said that he did not think that this appointment was "immediate enough". He thought that it was a stalling tactic. He said that the word "immediately" in relation to counselling was used at the meeting on 18 November 1993. However, he also said that he would have been happy if Ms Anderson had kept her appointment with Ms Fairclough on 14 December 1993. Mr Miles said that he then wrote the adverse report because he did not think that Ms Anderson had acknowledged that she even had a problem.
In relation to the timing of the appointment with Ms Clements, it should be noted that the school year ended on 20 December 1993 and would not recommence until the first week of February 1994. Therefore, although there was a gap of approximately eight weeks between 16 December 1993 and the date of the appointment with Ms Clements, the time that Ms Anderson would have been at school between these two dates would be limited to two weeks at the most. In such circumstances I have some difficulty in understanding why Mr Miles was so concerned at the "delay" before the appointment with Ms Clements. In particular, I find it difficult to understand why Mr Miles felt compelled to write the report dated 20 December 1993. Ms Anderson had, prior to that date, stated to Mr Miles that she had a confidential appointment to see Ms Clements on 9 February 1994. Ms Clements was from EASE, an organisation with whom Mr Miles said that Ms Anderson could discuss her "communication problems".
Mr Miles said that he advised Ms Anderson through the male deputy principal, Mr Gurr, that an inefficiency report was being written. He also asked Mr Gurr to ask Ms Anderson whether she would like to see the letter. Mr Miles said in evidence that Mr Gurr later reported to him that Ms Anderson had declined to do this. Mr Miles said that he wrote the inefficiency report on the basis of a discussion with Mr Betjeman. Mr Miles said in evidence that he would not have proceeded with the report if Ms Anderson had made an attempt to get counselling or attend a session with Ms Fairclough. However, there is some difficulty with this statement given that on 16 December 1993 Mr Miles had a note from Ms Anderson that she was going to seek counselling with Ms Clements on 9 February 1994.
Mr Miles said in evidence that at the time when he wrote the inefficiency report, he did not know that Ms Anderson had earlier in the year lodged an application for a transfer. As it turned out, Ms Anderson did receive a transfer to Challis for the 1994 school year.
Reference has been made earlier to the contents of the first adverse report. As stated, the report includes the observation that "In view of the discussions that have taken place with Ms Anderson over the past two weeks, she has been made aware of the contents of this report". This may not be strictly accurate. The evidence supports the view that Ms Anderson was advised by Mr Gurr that an inefficiency report was going to be written and said that Ms Anderson could view the report. Mr Gurr reported to Mr Miles that Ms Anderson declined this. According to Mr Miles there were no "discussions" with Ms Anderson during the "past two weeks". Mr Miles said in his evidence that Ms Anderson was not talking to him at this time and therefore all communication was in writing. However, from the communication in writing, which has been set out above, I think it accurate to say that Ms Anderson was generally aware of the areas of concern of Mr Miles.
The fifth paragraph on page one of the report said that Ms Anderson had showed reluctance to proceed, stalling at every opportunity and postponing inservices or contacts organised for her. No particulars were provided of these allegations. Further, the report did not mention to Mr Frizzell the fact that Mr Miles had on 16 December 1993 received the note from Ms Anderson indicating that she would meet with Ms Clements on 9 February 1994.
I have set out earlier the particular concerns that Mr Miles listed in the report. These matters did not indicate any problem with planning for classroom teaching, including written documentation of such planning, record keeping or her teaching capacity other than issue 7 which has been quoted above. These matters are significant given developments in 1994.
In answer to questions that I asked of Mr Miles, he indicated that he thought that Ms Anderson could be fit to be a teacher if she received counselling for her interpersonal skills and communication. Without such counselling, he did not think that Ms Anderson could be an adequate teacher. Given that, it is a little surprising that Mr Miles did not see fit to inform Mr Frizzell in his adverse report that Ms Anderson had agreed to the counselling session with Ms Clements as referred to above.
(3) Ministry Procedures for Inefficiency
Ms Anderson questioned the authority of Mr Miles to write the first adverse report on 20 December 1993. This was, at least in part, because she alleged Mr Miles had not complied with Ministry of Education procedures for dealing with teacher inefficiency. Ms Anderson tendered as Exhibit 'A', a Ministry of Education document entitled Procedures for Grievance Resolution, Complaints, Inefficiency and Misconduct. The document was marked as being a draft. It was dated November 1990. Mr Frizzell, in his evidence, said, however, that there was an agreement with the State School Teachers Union that the Respondent would follow the guidelines. Mr Frizzell's evidence was :
"Q.Right. And what is the status of the guidelines for Regulation 86A?---In what sense?
Q.Well, do they have any - - - ?---It is an agreed - - -
Q.Do they have any status?---they have an agreed status in terms of an agreement with us and the Teachers Union..
Q.Right. Can you say whether or not it is the case that you have to look at the regulation itself first or whether you just go by the guidelines?---Well, we're guided by the regulation, of course, and a set of guidelines and procedures that follow from that, which are merely guidelines.
Q.Are you bound by those guidelines?---No. We're bound by the regulations.
Q.Right. Okay. Thank you. (610)
THE J.REGISTAR: Do you know what the union's reaction would be if you decided not to perform in accordance with the guidelines?---We have an agreement with the union that we will follow guidelines, and therefore when challenges are made, if challenges are made they would be made against - either against the regulatory process of [sic] a breach of the guidelines, which is an agreement."
Part 4 of Exhibit A is headed "Regulation 86A - Inefficiency." Counsel for the Respondent, in her closing submissions, said that Exhibit A constituted guidelines "approved by the Education Department and the State School Teachers' Union." With respect, Mr Frizzell's evidence indicates that not only are the guidelines approved by the bodies mentioned, but that there is an agreement that the guidelines will be followed, with the relevant union. Ms Anderson was a union member. The guidelines ought to have been applied by the Respondent and the individual managers (eg, principals, superintendents, executive directors of schools) who were involved in the management of Ms Anderson's teaching problems that Mr Miles perceived.
Mr Betjeman said of Exhibit A that that these were "only guidelines, they are not mandatory, and not only that - one would hope there is an immediate response to any advice, and the three to six months is suggested as a reasonable time for the person to demonstrate that they have responded fully and satisfactorily to the advice." With respect to Mr Betjeman, this view ignores the somewhat elevated status that these guidelines have, in light of Mr Frizzell's evidence, that there is an agreement between the Ministry and the union that the Ministry will follow the guidelines.
In their closing submissions, the Respondent referred to the fact that in the guidelines, it states that the teacher has prime responsibility for their own improvement. This is indeed stated in the guidelines. It is axiomatic, in my view, that before an individual can improve, there must be an assumption of responsibility and willingness to do so. However, the case remains that here, despite Ms Anderson's initial prevarication, she did make a first and very significant step - the appointment with Ms Clements.
In the Respondent's written submissions, in response to the Applicant's closing written submissions, counsel writes, "Evidence given by Mr Betjeman and Mr Frizzell is to the effect that the Regulation 86A Guidelines and Regulation 86A itself, were adhered to at all times." There are a number of problems with such a submission. Most fundamentally, however, is that the issue is not whether an employee (in the management section) of the Respondent believed that the regulations and guidelines were complied with. The relevant issue is whether the Court considers that the guidelines and regulations were complied with and, if not, the effect of that in terms of the Act.
The first section of Part 4 of Exhibit A is headed, "What is the purpose of Regulation 86A?" The document then says, "The normal definition of 'efficient' - which is, to be 'competent, capable and effective' - applies to teachers, and would be seen to be supported by past Teachers Tribunal decisions. The Ministry of Education is responsible for providing education of an acceptable standard to all students attending government schools in Western Australia. To achieve this result, all classrooms need to operate efficiently."
Whilst such statements are unobjectionable statements of broad principle, there are obvious difficulties in their application. One is that the adjectives "competent", "capable" and "effective" are all subjective. To whose or what standard is a teacher to be judged? Is it a standard acceptable to the teacher as a professional, the students of the teacher, the parents of the students that the teacher is teaching, the principal of the school, the relevant superintendent, the Executive Director of Schools or the Ministry of Education (assuming a body such as that can hold a subjective belief)? The difficulties of determining efficiency multiply if one considers that within each of these groupings, opinions may vary on what makes a "competent", "capable" or "effective" teacher. For example, the views of parents will certainly differ on this. One parent may regard a teacher who is not a strict disciplinarian to be ineffective or incapable. Another may hold a directly contrary view.
Also, it would be erroneous to consider that all teachers hold a uniform view of the characteristics that comprise a "competent", "capable" and "effective" teacher. To illustrate this point, Mrs Dagg obviously placed a great deal of importance on documentation; Mrs Gregory less so. Can it be said that either view is wrong? I doubt it. They are simply different points of view.
It could be argued that the intent of Regulation 86A, when it refers to efficiency in the context of a state school teacher means efficiency according to the standards of the Respondent. Although there is an obvious circularity in this statement, the circularity will be lessened if guidelines are published by the Respondent which attempt to identify the standards expected by the Respondent.
Attached to Exhibit 97 was a copy of a Ministry document which sets out five "teaching dimensions" and, for each dimension, the "criteria" of it and "indicators" of the "criteria" being present. This document was referred to in the evidence as being a document which was used in the assessment of student teachers and teachers seeking permanency. This document, on the evidence presented, comes closest to being a document which attempts to identify the standards expected by the Respondent.
The five "teaching dimensions" are "planning and preparation", "assessing and reporting on student outcomes", "teaching skills", "classroom management skills" and "professional characteristics". Again, it would be difficult to quibble with these headings as being appropriate broad headings of the constituent characteristics of an efficient teacher; and, by the provision of the "criteria" and the "indicators" in the document, there is a further attempt to identify, and seemingly objectify, the standards of measurement of an efficient teacher. A full copy of the teaching dimensions document is annexed to these reasons as Annexure A.
The document itself does not indicate that any greater weight is to be given to any one dimension than the other. This seems to indicate that as a component part of an efficient teacher, each "dimension" and "criterion" is to be given equal weight. This seems also to be consistent with the way in which the document is used in practice. For example, Mrs Daley spoke about students having to "score" about 20 out of 25 criteria to get a job upon graduation.
If this is the way the document is to be construed, in the present context, that of assessing whether a teacher is inefficient for Regulation 86A purposes, it would mean the "criterion" of "School Operation", in the dimension "professional characteristics", as "indicated" by "distributes notes and flyers regularly as requested" and "collects money/daily returns to office", would be equal, in terms of comprising a component part of an efficient teacher, to the criterion, "develops a positive relationship with students" in the "teaching skills" dimension.
If this is so, at least some educationalists would take issue with such a conclusion. For example, Mrs Manders, in her evidence, said, "I'm talking about what I believe to be the most important part of education, it's teaching kids. And that's what I would comment on." Again, whilst the view of many would be that this statement is hard to criticise as a general principle, it inevitably leads to a more vexed question, that of what makes a good teacher of "kids". However, its relevance in the present context is that Mrs Manders' view would seem to be that one of the dimensions in the teaching dimensions document is more important than others, in assessing a teacher. But, on the evidence before me, this seems contrary to the view of the Respondent as expressed in the teaching dimensions document and in its application by the teachers who formed part of the panel who assessed Ms Anderson in 1994. Even if (and I am not suggesting this was the evidence) Ms Anderson glowingly "passed" the teaching dimension "teaching skills", if she "failed" all other criteria, she would only "score" 5 out of 25 and therefore be deemed inefficient. An educationalist like Mrs Manders could well think this was an unreasonable conclusion.
While these issues may be relevant in considering my overall review of Ms Anderson's termination of employment on the basis of efficiency, it is preferable now to concentrate on what the Guidelines (Exhibit A) say about the implementation of the Regulation 86A process.
The Guidelines included a section headed "When should Regulation 86A be invoked". This commenced that :
"Regulation 86A provides a statutory mechanism to deal with those few instances where a teacher is not performing at an acceptable level. Regulation 86A provides the Chief Executive Officer with the power and procedures for dealing with an inefficient teacher."
In this section of the document, it was also stated that:
"Principals who are doing their job effectively will confront the problem at the earliest opportunity. Areas in which a teacher needs to improve will be agreed on, as will a course of action ... When it is considered that a teacher is not performing at the required level, the principal is responsible for taking the action necessary to rectify the deficiency. These steps begin at an informal level and, if the problem isn't rectified, proceed to a formal level."
Later the document states that "the principles of natural justice require that the teacher be given a chance to improve and to reply to allegations of inefficiency before any penalty under 86A is invoked".
The next section of the document is headed Guidelines for Invoking Regulation 86A. Point 3 of the guidelines refers to a situation where a principal has serious concerns about a teacher's performance. The document says that there are then procedures which should be undertaken including documenting the problem, drawing up an agreed course of action to rectify the problem, providing support at the school level; and a time frame for review. I note that in the instance of the first adverse report, there was no documented time frame for review.
Point 4 of the guidelines says that a specified period of time should be allowed for the teacher to implement the advice given. "Reasonable time should be allowed. This will vary according to the nature and complexity of the problem. Three to six months is considered reasonable".
Point 7 of the guidelines says that if after review the situation improves, there is no need for action under Regulation 86A and no need for an adverse report.
Given the reference to three to six months referred to above, it is difficult to see why Mr Miles felt compelled to write the report on 20 December 1993. The formal interview only took place on 18 November 1993 and on 16 December 1993, Ms Anderson indicated that she was going to undertake formal counselling on 9 February 1994.
The next section of the document refers to Stage 1 - The First Adverse Report. Point 1 of this section of the document says that if satisfactory progress has not been made within the specified time, a first report that the teacher is inefficient should be forwarded to the chief executive officer. Again, I make the point here that there was no time specified for checking on whether Ms Anderson had made satisfactory progress. Mr Miles indicated in his evidence that he wanted Ms Anderson to undertake counselling "immediately", although this was in part qualified by Mr Miles saying that he would have been happy if Ms Anderson had kept her appointment with Ms Fairclough on 15 December 1993, following the agreed outcomes from the meeting on 18 November 1993. More fundamentally, however, the agreed outcomes from the meeting on 18 November 1993 did not specify a time within which Ms Anderson had to make satisfactory progress in relation to her interpersonal and communication skills.
I therefore agree with Ms Anderson's submission that Mr Miles, in writing the first adverse report, did not comply with the Ministry of Education document referred to. The significance of this will be considered later.
(4) Ms Anderson's Response to the First Adverse Report
The first adverse report was sent to Ms Anderson by Mr Frizzell with a letter dated 20 January 1994. As stated earlier, the letter invited Ms Anderson to respond to it. This Ms Anderson did by letter dated 31 January 1994. The letter was 14 pages in length (excluding appendices). Together with appendices, the reply was said to be 96 pages in length. The letter addressed the comments made in the adverse report and enclosed the following appendices :
(1)Written correspondence between Mr Miles and Ms Anderson from 15 November to the end of the school year.
(2)Letters from colleagues.
(3)Letters from parents.
(4)Copies of programming, daily work pad, test records and analysis.
(5)Samples of student work.
Most of these appendices were tendered as part of Exhibit 35. Some of the appendices were documents which contained hearsay; for example, letters from parents about Ms Anderson's teaching who were not called to give evidence. However, these documents were received as part of Exhibit 35 as they formed part of the materials which were sent to Mr Frizzell.
On the first page of the letter, Ms Anderson said that she was "deeply concerned by the allegations that have been made". She apologised for the lengthiness of her letter but said that she felt "that I need to provide sufficient detail in the following pages - so that a fair and accurate assessment of my teaching efficiency can be made".
The letter then goes through various parts of the letter from Mr Miles dated 20 December 1993 and makes observations on various aspects of the letter.
The observations include the following:-
(1)During 1993, no member of the executive staff group observed any lesson in Ms Anderson's classroom. Further, there were no requests to sight programmes, daily work pads or test records.
(2)During 1992, as maths coordinator for Westfield Park, Ms Anderson worked with the whole staff in revising and updating the school's maths policy. This involved also working with parents. Ms Anderson mentioned this aspect in support of her "positive interpersonal skills".
(3)Ms Anderson indicated that in relation to the alleged reluctance to accept and act on advice, that she had continued to seek advice from Gwen Gregory, Wendy Manders and Joan King as well as in discussions with Ms Humphreys in 1993.
(4)Ms Anderson said that she was shocked that an adverse report was submitted when she "had already agreed in writing on seven occasions to work on specific areas that [Mr Miles] would address - in the new year".
(5)Ms Anderson complained about the processes leading to the meeting and agreed outcome of the meeting on 18 November 1993.
(6)Ms Anderson indicated that Mr Miles had "directed" her to choose a counselling service to attend and inform him of the choice, date and time within a week. Ms Anderson indicated that on 16 December 1993 she wrote to Mr Miles indicating that she had chosen to see Ms Clements of EASE during the second week of term 1 in 1994. A copy of this letter to Mr Miles was enclosed.
(7)Ms Anderson commented on her positive interaction with difficult children and enclosed a reference from Wendy Manders.
(8)Ms Anderson indicated her system of marking of students' work. Samples of students' work were enclosed.
(9)In relation to her contribution to the ethos of the school, Ms Anderson pointed to presentation of plays for the school assembly including parent assistance in preparation of costumes and the like. She also referred to her role as maths coordinator and participation in the 1993 school carols assembly at Christmas time.
(10)Ms Anderson included letters from the Year 3 teacher in the next door class room, a written comment from the physical education specialist teacher at the school and an honour certificate presented by the school's librarian, Judy Harvey, and signed by Mr Miles.
(11)In the context of a submission concerning her duty of care responsibilities to students, Ms Anderson pointed to students in her class who had disabilities including spina bifida and children requiring ADD medication.
(12)Ms Anderson clarified the situation concerning the lack of marking of homework that was criticised by Mr Miles.
(13)Ms Anderson indicated that she had not breached any deadlines and time lines for operations at school.
(14)Concerning notes being sent home without being sighted by the principal, Ms Anderson stated that when the principal was absent from school premises she provided both deputies with a copy of the class note for approval. In this regard, reference was made to an enclosed letter from Ms Jean Boynes-Butler, a fellow teacher at the school.
(15)Ms Anderson said that "I have recognised verbally and in writing that there are areas that I could improve as a teacher. The problem at the moment seems to be identifying the particular area". Ms Anderson made this comment because she said in her letter that without being provided with the anecdotal evidence from Mr Miles as to the particular problems at issue, she found it difficult to discuss these issues in a meaningful way, with Ms Fairclough or anyone else. This was a theme repeated in Ms Anderson's evidence. I do not necessarily accept this evidence. The comment made by Mr Miles was that the issue of concern was Ms Anderson's communication skills, particularly in dealing with parents. Therefore, it was not strictly necessary to have the particular anecdotal evidence available to her before seeking counselling on improving these skills. However, I can also well understand why Ms Anderson would want particular examples of her allegedly inappropriate behaviour so that these could be discussed with Ms Fairclough or somebody else.
(16)Ms Anderson pointed to the fact that she had received a transfer to Challis and was looking forward to working with the administration team of that school. In this regard, as stated above, Ms Anderson had applied for a transfer from Westfield Park earlier in the year. Very late in the school year, Ms Anderson received confirmation of her transfer to Challis. The transfer was not related to the inefficiency report of Mr Miles. Ms Anderson said "I would like to work harmoniously with the administration team of the Challis centre, and am hoping that the new headmistress will be able to clearly define those areas that she would like me to address. I am concerned that the adverse report from John Miles may unfairly bias the headmistress".
(17)Ms Anderson said in the letter, "In your letter it was commented that you would expect a report from my principal at the end of first semester. I am hoping to clear my name and record with this adverse report. If there is any further information that I can provide, or character referees - would you please advise me".
(18)Ms Anderson said that at no stage during 1993 were there any concerns addressed to herself by the administrative staff in reference to her general efficiency as a teacher. This is not altogether inconsistent with Mr Miles' evidence in that he indicated that if her communication and interpersonal skills were improved, Ms Anderson could be an efficient teacher. Although, as the evidence of Mr Miles and other witnesses indicated, interpersonal and communication skills are considered an integral part of school teacher efficiency, the specific concern with Ms Anderson was her interpersonal and communication skills with, in particular, parents and other staff members. It does not seem to have been an issue, at this stage, that Ms Anderson could, generally, effectively communicate with and teach her class.
(19)Ms Anderson said that "The formal directive from the headmaster that I choose a counselling service and commence counselling by 17 December - the last few days of school - was an unreasonable request". Ms Anderson referred again to her letter to Mr Miles dated 16 December 1993 and said that in the adverse report she was misrepresented when, in deferring counselling to 1994, she was said to be deliberately stalling. In this regard, Ms Anderson indicated that she was also busy with end of year commitments.
(20)Ms Anderson indicated that she was willing to participate in a performance management appraisal in 1994 but was disappointed that this was deemed necessary.
(21)Ms Anderson concluded that "this matter is causing me great anxiety and I would appreciate your considered response to my comments".
This final paragraph of Ms Anderson's letter is entirely understandable. It is understandable that having a Regulation 86A report on a teacher's record would cause her great anxiety. This is particularly so given that she felt that many of the comments in the report were unjustified. As indicated above, Ms Anderson hoped to clear the report from her record. Given the length of the reply to the report, the nature of the reply and the substantive documentation appended to the reply, Ms Anderson was justified in looking forward to a "considered response" to her comments.
(5) The Treatment of Ms Anderson's Response
(a)Mr Frizzell's Reply
The reply from Mr Frizzell to Ms Anderson's letter dated 31 January 1994 was a letter dated 17 February 1994.
This letter from Mr Frizzell, in its entirety, is as follows (omitting formal parts):-
"Your response to the report by Mr J Mills [sic], Principal, Westfield Park Primary School, received in this office on 1 February 1994, is acknowledged.
I will request that your next report be provided by the principal of your present school, Ms P Dagg, Challis Early Childhood Centre, at the end of Semester 1, 1994."
In my view, this letter was not an adequate response to the detailed letter provided by Ms Anderson. Ms Anderson specifically raised in her letter the issue of whether, in light of the submissions made in her letter, the first adverse report would stand. Mr Frizzell's letter contains no acknowledgment of this request being received, let alone considered. Further, there was no reference to the numerous issues raised by Ms Anderson in her letter.
In my view, the letter from Ms Anderson deserved a more specific and considered response. There is more than a hint of irony in the fact that Ms Anderson received such an inadequate response to her letter in reply to an adverse report, which had complained about her communication skills. As Ms Anderson observed in her evidence "There was no comment by Peter Frizzell on any of the material submitted and the process continued".
Mr Frizzell said that the letter from Ms Anderson would have been read by himself and his senior education officer who would then refer it to the industrial relations section of the Education Department for their comment. He said that:
"The normal procedure would be that we would note where there were glaring differences of opinion or where there were challenges made to some of the assumptions and normal practice would be either to meet or to follow that up with a further letter. In this case it was, as I remember, that it was noted and recorded and a judgment was made that we needed to put in place a support for Jennifer and call for a second report to see if some improvement could be made in a variety of areas across her teaching work".
If this was so, none of this was communicated to Ms Anderson in the letter dated 17 February 1994. Secondly, there was no evidence of what the "support" put in place for Ms Anderson was. Finally, there appears to have been no assessment of whether Ms Anderson was correct in disputing a number of aspects of Mr Miles' report. The attitude of Mr Frizzell seemed to be that he would get a second report and see what happened; a wait and see approach. Even if this was his attitude, this should have been properly explained to Ms Anderson, given that she specifically asked in her reply to the adverse report that, due to the contents of her reply, the adverse report be removed from her record and the Regulation 86A process go no further.
(b)Could the Adverse Report be Removed from the Record?
In answer to a question that I asked of Mr Frizzell, he said that in every case there would be a second report. This was not spelt out to Ms Anderson and, if true, she ought to have been advised of this.
During his cross-examination, however, Mr Frizzell contradicted this answer. He said, again in answer to a question that I asked him, that the response from Ms Anderson could (potentially) have meant that the first report from Mr Miles was not regarded as a first adverse report for the purposes of Regulation 86A.
In re-examination, Mr Frizzell was asked, "Actually, would Miss [sic] Anderson's response to that report have made any difference to whether it was called an 'adverse report' or not under the regulations?" His answer was, "The report was considered, on my judgment, the judgment of the superintendent, the line managers and the principal, John Miles, at that stage, to be clearly an indication of unsatisfactory performance and drawing attention to areas of need. All that we require is, one, to give the opportunity for the individual, one, to respond and, secondly, to identify areas in which they would require support, and we should be providing support to enhance their performance. So, in that respect, no." (606) I am not sure that this makes the position any clearer. If Ms Anderson's
response, whatever it contained, could make no difference to how the adverse report was treated, one wonders what the point of inviting Ms Anderson to respond to the report was. If it was some vague notion of natural justice or procedural fairness, these concepts would not be satisfied if a decision had already been made to treat Mr Miles' report as a first adverse report for Regulation 86A purposes.(c)Lack of Feedback to Ms Anderson
I also asked Mr Frizzell about the failure to provide any feedback to Ms Anderson about her response. He said (transcript 565):
"I guess the critical issue is that a judgment needs to be made whether in fact we need the support in the school and I didn't consider that the response at that stage was - sufficiently warranted any other practice than continuing as usual, which would be to say to somebody that on the basis of the original concerns raised by the principal, all that we require - and that the total tone of these sorts of procedures throughout is one of support and trying to have people be able to demonstrate, or at least move towards showing that they are willing to make improvements and, in fact, indeed, in demonstrating some improvement it is not common practice to reply to each report that comes back unless there is something, I guess, clearly out of place in that sense."
I did not at the time and still do not understand this answer. With all due respect to Mr Frizzell, Sir Humphrey Appleby could have given it. I then asked Mr Frizzell a question which is set out below, together with his answer :-
"It seems a bit odd though that you send the report to Ms Anderson, ask for her comments; she makes detailed comments and she does not get any feedback other than to be told there will be a next report? - That's fairly normal. Both reports are then - both her response and her response to the second report form part of the formal assessment then of the management of the case."
In my opinion, if what I put to Mr Frizzell is "fairly normal", the "fairly normal" practice of the Education Department represents unreasonable management practice.
The question of lack of feedback was also raised by Ms Anderson in her cross-examination of Mr Frizzell as follows:-
"Can you explain why the ministry has the policy of not giving any form of feedback to responses that I made? With this letter that was submitted on 31 January, there was no feedback from yourself or one of your senior personnel assistants or from the industrial relations branch. Can you explain why there was no feedback on any of the comments I made in my response? ---Normal practice would be that had there not been change of schools that the discussion would take place between the superintendent and the performance manager and yourself in terms of any feedback and certainly an opportunity for you to sort out any differences of opinion between the two reports.
It is not common practice for us to respond but it is, of course, due and proper process that we consider the full reports and address any significant differences of opinion or changes through our line management and I guess it's much more appropriate that people in the field who are working very closely with you do so - do that, but your report is part of the case management and part of the case judgment.
THE J.REGISTRAR: I think Miss Anderson's question is: why is it not common practice for head office to respond?
MS ANDERSON: Policy.
THE J.REGISTRAR: "Common practice" was used by the witness. I am using his terminology now. You said it was not common practice to respond?---Well, it is not policy to respond at that stage of the case.
Why is not the policy to respond at that stage?---I guess when a first report has been - an unsatisfactory report has been tabled, somebody has been given a response to continue that on when a judgment has been made, that we'll put those to one side - while we try to address the areas of concern and issue. It seems to be a sensible and manageable way of getting on with managing the issue." (592)
I am not at all sure that this answer is comprehensible. Whatever it does mean, it ignores the point that, looking at it objectively, a person who responded with a submission of the type of Ms Anderson's, could expect to receive a substantive reply, orally or in writing, which specifically answered the points raised in her letter. The points raised in her letter were not unreasonable and, in my opinion, ought to have been responded to.
(d)Mr Frizzell's Communication with Mr Miles, Mr Betjeman and Mrs Dagg
Mr Frizzell said he did not speak with Mr Miles about the first adverse report although he said he spoke to Mr Betjeman. Mr Frizzell said that from speaking to Mr Betjeman, he understood that:
"The greatest concern at that stage was the fact that there was no willingness on the part of [Ms Anderson] to actually take part. I think there's been - and that's been part of the sad part about this case, that there has been an unwillingness during most of the period to take the support that's offered and to actually enter into the process of one, planning for improvement; two, be demonstrating it; and, three, working with the people that are there. That would have been the greatest concern, even from the early stages, and certainly Mr Betjeman's deep concern".
This observation, although understandable to some extent given Ms Anderson's prevarication in initially meeting with Mr Miles and the administration team and in not seeing Ms Fairclough as scheduled, ignored the fact that Ms Anderson had complied with Mr Miles' "directive" and made an appointment to see Ms Clements on 9 February 1994. A second thing about this observation of Mr Frizzell is that, from his evidence, Mr Miles' "greatest concern" was with Ms Anderson's interpersonal skills and communication.
I asked Mr Frizzell whose job it would be to make sure that Mrs Dagg, Ms Anderson's new principal, understood that. Mr Frizzell said that would have been the job of the superintendent for the Armadale area, Mr Betjeman.
Mr Frizzell also said that:
"Certainly the superintendent, Mrs Dagg and the teacher involved would meet and it is an expectation of our system that a superintendent would see that the best possible support structure was set up in addition to establishing what the real concerns were, so on the transfer of the performance management from one school to the other, the expectation would be that the superintendent and both principals would have discussions. That's normal practice."
The evidence from Mr Betjeman and Mrs Dagg, which is considered in more detail below, as well as that of Ms Anderson, confirmed that there was no such meeting in this case.
(e)Mr Betjeman's Evidence on the First Adverse Report
Mr Betjeman became the superintendent of the Armadale district in 1993. He said in his evidence that he had a number of visits to Westfield Park Primary School to meet with Mr Miles, who was a new principal to the school at the beginning of 1993, during the course of that year. Mr Betjeman said that he had a number of discussions with Mr Miles throughout the year on school matters by telephone and as part of school visits. He said that Ms Anderson's name was not mentioned during visits to Westfield Park Primary School until towards the end of term 3 when Mr Miles said by telephone that there were concerns that he could no longer ignore.
Mr Betjeman said that he discussed the matter with Mr Miles and set up a potential support system "using the senior school psychologist as an independent person". (I interrupt this narrative to say that if this meant a person independent to Mr Miles, then Ms Fairclough, with respect, did not act in this way. Her action in sending a copy of her letter addressed to Ms Anderson dated 15 December 1993 to Mr Miles showed that she had at least mixed allegiances - to the school and Mr Miles on the one hand, and to Ms Anderson on the other. This placed Ms Fairclough in a potential conflict of interest. In my view, Ms Anderson was wise to this and quite understandably formed the view that her interests would be best served if she sought counselling elsewhere; hence the appointment with Ms Clements at EASE.)
Mr Betjeman said that towards the end of 1993 when Mr Miles wrote a report on Ms Anderson's efficiency, a draft was sent for him to comment. Mr Betjeman said that "I would read it only in terms of process, not in terms of his opinions." (984)
Mr Betjeman said that after the first adverse report was sent by Mr Miles to "head office", he had no further involvement in the first report. He said that he did not keep a copy of the first adverse report.
Mr Betjeman also described his involvement in sending a letter to Mr Frizzell dated 31 March 1994 (Exhibit 54). Mr Betjeman explained that the sending of this letter related to the first adverse report. Mr Betjeman said that "normal practice" is that when a report is written, that might be deemed to be the first report, or a report on efficiency, the process is to return the report to the teacher and invite comment. He said that there was a request from central office that Mr Miles be invited to comment on Ms Anderson's comments on the first report. Mr Miles was on long service leave at that time. Also, "as I recall, a major fire had occurred at Westfield Park Primary School. Admin block was destroyed by arsonists. The school was in a bit of a turmoil for the first four or five weeks and [Mr Miles] was not present, and those things combined made it a bit difficult to contact him for comment but, finally, comment was made and there's simply a referral - and he provided comments through the deputies to me." Mr Betjeman said that therefore, "I was acting as a post box, returning the material to [Mr] Frizzell."
With respect to Ms Anderson's 96-page response to the first adverse report, Mr Betjeman was asked whether he read that. He said that, "I think I might have, yes." (988)
Mr Betjeman said, about whether he discussed Ms Anderson's response to the first adverse report with her, "No, I didn't. It was relayed through me to [Mr] Miles." (997)
When asked about the lack of feedback to Ms Anderson about the points raised in her response to the first adverse report, Mr Betjeman said that it is, "not normal that that would occur. Any teacher that has a report submitted on them and is invited to comment, in most instances, the reply to those comments is, we acknowledge from central office - there is an acknowledgment of receipt of the comments and some encouragement to the teacher to treat the next phase of the process seriously and to do their best to overcome their difficulties, but there's not a sort of a reply to a reply. [Ms Anderson's] reply to the first report was so extensive that for some reason it was decided by central office to invite the principal to comment on some of the facts made by [Ms Anderson] in her report." (997)
Mr Betjeman was asked whether there was any particular reason why a teacher does not get more feedback. Mr Betjeman said that, "Normally if they are in the one school report 1 blends into report 2 in the same situation and it's all part of one continuous process. It's not common for teachers to transfer from one school to another in the middle of a reporting process so the feedback would be part of that ongoing process in a school. When there is a transfer between schools, if [Mrs Dagg] were to, in this instance, at Challis, to take it, it would have been more appropriate for [Mr] Miles to give her feedback than [Mrs Dagg] because it was [Mr Miles] report on [Ms Anderson], not [Mrs Dagg's] report on [Ms Anderson] and it would have been [Mrs Dagg's] job to consider any information from the previous report but to basically deal with the situation afresh with [Ms Anderson]. (997/998)
There are a number of points to be made about this evidence :
(i)It is clear that there was no coordinated attempt by those in management at the Education Department and, in particular, Mr Frizzell and Mr Betjeman or the relieving superintendent at Armadale District to :
(a) provide any substantial feedback to Ms Anderson, in light of her response to the first adverse report; and,
(b) ensure that Mrs Dagg, given the transfer of Ms Anderson from Westfield Park Primary School to Challis, was aware of all of the background relevant to Mrs Dagg providing a second report - including the areas which Mr Miles detected were of major concern, with respect to Ms Anderson, and making sure that the administration team at the school provided adequate support structures to allow Ms Anderson to deal with the perceived inefficiencies.
(ii)Mr Betjeman also said that it is not normal that there would be any feedback to Ms Anderson about the points raised in her response to the first adverse report. (997) In my opinion, this demands the same observation that I made about Mr Frizzell's evidence. If this represents normal practice, then the practice of the Education Department represents unreasonable management practice.
(iii)If, as Mr Frizzell said in evidence, it was Mr Betjeman's responsibility to make sure that Mrs Dagg understood that Mr Miles' major concern was with Ms Anderson's interpersonal skills and communication - this does not seem to have been recognised or, if so, acted upon by Mr Betjeman or the relieving superintendent at Armadale District.
(iv)In the evidence that I have quoted earlier, Mr Frizzell said that it was the "expectation of our system" that a superintendent would see that the best possible support structure was set up so that on the transfer of the performance management from one school to the other, the expectation would be that the superintendent and both principals would have discussions. Mr Frizzell said that this was "normal practice". If this was normal practice, it clearly did not occur in this case. Mr Miles was on long service leave during first term, 1994. Mr Betjeman had been seconded to head office. The relieving superintendent at Armadale District did not meet with either Mr Miles or Mrs Dagg about the "performance management" of Ms Anderson. Mrs Dagg was given, initially at least, very limited guidance on the way in which the performance management of Ms Anderson's "problems" should be carried out. What Mr Frizzell described as normal practice did not take place and this was clearly to the detriment of Ms Anderson.
(f)The References Appended to Ms Anderson's Response
In cross-examination, Ms Anderson asked Mr Frizzell whether he received the parent references and a letter from a staff member who taught in a classroom adjacent to that of Ms Anderson with Ms Anderson's response to the first adverse report. The answer was "Not to my recollection, Jennifer. Were they with it originally?" Ms Anderson then said "Yes, they were. There were references from four parent helpers who observed in my class on a daily basis until the end of December 1993 school year. Do you vaguely remember that, reading those?" The answer was, "No, I don't. I'm sorry." The documents were shown to Mr Frizzell who then said "I am sorry, I do not remember them. Sorry, are we referring to all of these, are we?" Ms Anderson confirmed that was the case and Mr Frizzell then said "Well, I haven't looked at all of them".
Ms Anderson asked whether it would have made a difference to Mr Frizzell's recommendations with the first adverse report if he had read all of the references. Mr Frizzell's reply included the observation that "I mean, without reading these, firstly, I can't make that comment. I can't give you a judgment about that ...".
It is a matter of some concern that Mr Frizzell said that he did not read the references that were supplied with Ms Anderson's response. This is because the content of some of the references that were written about Ms Anderson were very positive indeed.
The following will illustrate the point:
(1)Reference 1, from a parent who had a child in Ms Anderson's class in 1992 at Westfield Park Primary School. The date of the reference was 23 November 1993. The parent worked for one hour each day during maths sessions with her child to assist with the difficulties the child was having in mathematics. The reference states in part:
"I have seen several teachers in action and I felt confident that my daughter had a good teacher both for learning and as an example ... It is my sincere wish, that during my son's years at school, he had a teacher as caring, understanding and observant as Miss Anderson ... In summary, Ms Anderson has restored my faith in teachers ... I find that Ms Anderson is honest in her dealings with parents, this may not be accepted openly as some parents don't wish to hear anything that is not praise. Miss Anderson displays tact and allows the parent to speak their mind. She is open minded and open to suggestions."
(2)Reference 2 from a grandparent (undated) includes the following:
"Just a few lines to thank you for the time and effort you have put into helping [child's name] during this past year."
(3)Reference 3 from a mother helper in Ms Anderson's class, dated 14 December 1991, includes the following:
"Miss Anderson is a highly competent teacher and has a natural understanding of children".
(4)Reference 4, from a parent dated 13 November 1991. This parent helped in Ms Anderson's class three mornings a week:
"For the last two years I have had trouble getting my daughter to school, crying, etc. but this year she gets up early and skips over to school and it's really amazing. She's always thinking of what flowers from our garden she can take to Miss Anderson because she think she's wonderful."
(5)Reference 5, from a parent, dated 12 November 1991:
"Jennifer is a very dedicated teacher spending many hours after school and on weekends at the school preparing her work and is well organised in her classroom".
(6)Reference 9, from a parent of a special education student being integrated in Ms Anderson's mainstream class, dated December 1993:
"She has a good manner with parents who go into the class to help making them feel more than welcome".
(7)Reference 10, parent reference dated 20 December 1993:
"Westfield School is lucky to have such a dedicated teacher. She is an asset to our school and I hope we have her for many years to come."
(8)Reference 12 from a colleague at Westfield Park Primary School dated 20 December 1993:
"I have known Jennifer in the capacity of a colleague for several years while teaching at Westfield Park Primary School. In all dealings I have had with her she has been polite and well mannered."
(9)Reference 13, from the teacher in the adjoining classroom at Westfield Park Primary School dated 19 December 1993:
"As a neighbouring teacher Jennifer has always been helpful and I have felt comfortable working alongside her. I believe that Jennifer has had a professional approach towards the children in her class and towards me as a fellow teacher."
(10)Reference from a parent helper dated 24 November 1993 :
"Miss Anderson is a very encouraging lady and friend. I certainly would not like her treated improperly. I myself would have loved to have had a teacher like her when I went to school".
The above selection of excerpts from the references tendered indicates in my view that it was a management error that Mr Frizzell did not have regard to the references when he considered Ms Anderson's response to the adverse report. Further, as Mr Frizzell acknowledged in his evidence, one cannot tell whether if he had read these references it would have made any difference to his assessment of the first adverse report. However, given the content of the references, even accepting that some of them refer to Ms Anderson's teaching in years previous to 1993, one cannot escape the conclusion that they could have affected a reasonable manager's assessment of the first adverse report. In my view, a reasonable manager, having read Ms Anderson's response to the first adverse report, together with all appendices, would have made further inquires to see whether the first adverse report was justified. Simply calling for a second report did not satisfy this need, which was demanded by the content of Ms Anderson's response and supporting documentation.
(6)Mr Miles' Involvement after the First Adverse Report
In a letter from Mr Frizzell to Mr Miles dated 20 January 1994 (Exhibit 33), Mr Frizzell advised Mr Miles that the inefficiency report dated 20 December 1993 was considered to be a first adverse report under "Section" [sic] 86A of the Education Act Regulations 1960. Mr Frizzell said that Ms Anderson has been given the opportunity to respond to the report in writing. This letter appears to confirm that the report would remain as an adverse report, whatever Ms Anderson said in her response. This is supported by the statement in the letter that "The programme of support you have initiated should be continued and a further written report on Miss Anderson be provided to me by the end of Semester 1 1994". This paragraph also shows that as of the date of writing the letter, Mr Frizzell was apparently not aware of Ms Anderson's transfer to Challis. Ms Anderson had been advised of this prior to the end of the school year on 20 December 1993. The letter to Ms Anderson from Mr Frizzell of 20 January 1994 also indicates that he required "a further report to be provided to me by the principal at the end of Semester 1, 1994". This also shows Mr Frizzell's lack of knowledge that Ms Anderson had been transferred.
It seems that Ms Anderson's response to the first adverse report was sent to Mr Miles for his observations.
Exhibit 50 was a letter from Mr Miles to Mr Frizzell dated 28 March 1994 which commences, "In viewing and studying Miss Anderson's details in response to the inefficiency report ...". Mr Miles then details seven points in response to Ms Anderson's submission to Mr Frizzell. Of relevance for present purposes is point 6 which stated that the "refusal to act immediately and the constant postponing of professional development has made it impossible for us to avoid the presentation of the inefficiency report". The issue of "acting immediately" again needs to be qualified in light of Mr Miles' evidence, as set out above, that he would have been content with Ms Anderson seeing Ms Fairclough in mid December 1993, after having agreed to a meeting with Ms Fairclough on 18 November 1993. Further, this makes no reference to Ms Anderson's appointment with Ms Clements at EASE, of which Mr Miles had been informed in writing; although in fairness to Mr Miles, this fact had already been mentioned to Mr Frizzell in Ms Anderson's reply to the first adverse report.
Point 7 in the letter from Mr Miles to Mr Frizzell was that "Her excessive attention to all small details is typified by the length and detail of Miss Anderson's reply and highlights aspects of her problem". This sentence is not entirely clear in that it does not specify which aspects of Ms Anderson's "problem" is typified by the length and detail of her reply. That Ms Anderson's reply was lengthy and detailed is understandable. An inefficiency report had been written about her by her principal. The inefficiency report was said to be a report pursuant to Regulation 86A which can lead to dismissal. Ms Anderson thought that the inefficiency report was unjustified. She set out to prove this to Mr Frizzell. In support of her submission, she went into the detail of the allegations made against her and supported her submissions by documentary evidence. None of this to me seems indicative of a "problem" that Ms Anderson had, but simply reflects her earnest desire to have the inefficiency report removed from her file, as she said to Mr Frizzell in her letter to him.
Mr Miles also wrote a letter to Mr Betjeman dated 17 June 1994 concerning a "union report" regarding Ms Anderson (Exhibit 76). It was not clear from this letter what the "union report" related to. Exhibit 75 was a letter to Mr Frizzell from Mr Betjeman dated 17 June 1994, which enclosed Mr Miles' letter of the same date. In his evidence, Mr Betjeman said the letters related to a request by the union for a transfer from Challis, "because the school was not providing an unbiased environment for her to work in." (990) Mr Betjeman's letter rejected this assertion and said Ms Anderson should not be transferred from Challis.
Mr Miles' letter of 17 June 1994 detailed some of the interaction between Mr Miles and Ms Anderson concerning parent communications. The letter noted that such discussions had taken place on 16 September and 28 November 1993. Mr Miles also stated that on 5 November 1993, there was a journal entry which noted that Mr Miles suggested that Ms Anderson contact Ms Fairclough concerning "ideas on communication skills and interpersonal skills". Ms Anderson was noted as having agreed to this.
Mr Miles then states in the letter that given that Ms Anderson was aware of the "problem" quite early and asked by him to receive professional development, he felt that she had adequate time to respond before a formal request was made.
The next point in Mr Miles' letter noted that Ms Anderson:
"has a tendency to agree to suggestions but not follow through. Given the simple requests, time made available for professional development and contacts made on behalf of Miss Anderson, I certainly believe Miss Anderson had sufficient time to respond positively to requests made. Section [sic] 86A provides us with guidelines which are suggestions for reasonable time. Journal entries commence on 16 September - I consider this reasonable time."
In point 6 of the letter Mr Miles refers to the incident with Ms Anderson on 16 November 1993 when she stormed out from the passage near his office and refused to communicate verbally with him.
Point 7 was that "It is not known whether Ms Anderson actually made any contact with EASE prior to the conclusion of the school year or after that time. Miss Anderson has a tendency to agree to requests then postpone them or disregard them". I think that this paragraph had the capacity to, albeit I accept not intentionally, mislead Mr Betjeman. Mr Miles did know that Ms Anderson had made contact with EASE prior to the conclusion of the school year, in the sense that he had been advised in writing that she had telephoned EASE and made an appointment to see Ms Clements the following year. Further, as her evidence revealed, Ms Anderson did keep her appointment with Ms Clements in February 1994.
In point 8, Mr Miles again emphasised that the problem was one of communication and interpersonal skills. He offered the opinion that enabling Ms Anderson to transfer to another school or location and disregarding the inefficiency report did not address these problems. It may be, at this stage, that Mr Miles was referring to a request that Ms Anderson had by then made to transfer from Challis. Mr Miles concluded his letter by saying that Ms Anderson needed to recognise "her problem" and address "her problem" rather than avoiding it through technicalities or transfers. To that extent, he said that he believed the first inefficiency report should remain imposed.
(7)The Transfer to Challis and Mrs Dagg's Involvement
Mrs Dagg is currently deputy principal at Roleystone Primary School. She commenced in that position in 1995. Prior to that, she was acting principal at Challis for nine years. She has been teaching for approximately 30 years. Mrs Dagg has been in the position of deputy principal or acting principal since 1982. From the evidence of Mr Betjeman, Mrs Dagg has a very good reputation in the Armadale district.
As stated earlier, Ms Anderson transferred to Challis for the commencement of the 1994 school year. Mrs Dagg was telephoned in December 1993 about Ms Anderson commencing at Challis in January 1994. She said (410) that the superintendent telephoned her and "said that Ms Anderson was to be transferred to Challis, and would be under a performance management situation as there was an 86A situation, from her previous school".
Ms Anderson was to teach a year 2 class at Challis. This was a different year level to that she had taken at Westfield Park, although she did have some prior experience of year 2. In addition, Challis was teaching the children using a method of teaching called the First Steps programme or First Steps strategies. This method of teaching and recording involves the listing of various developmental stages along a continuum for each child in various subjects - eg, spelling, reading, etc. When the child achieves that stage, it is marked on the record of the teacher (292). Although Ms Anderson had some training in and use of this teaching system when at Westfield Park Primary School, she was clearly not used to or proficient in the use of the First Steps strategies when she began at Challis. Mrs Gregory said it would take two to three years to "master" teaching by the First Steps method (306). Mrs Dagg said Ms Anderson was told to see Ms Denmark, a key teacher at the school, for assistance with problems in implementing the First Steps system (433).
As Ms Anderson said in her response to the first adverse report, she was concerned that Mrs Dagg would be biased against her because of the contents of the first adverse report. However, Mrs Dagg said in evidence that she did not see the first adverse report until a time later than Ms Anderson's commencement at Challis.
According to Mrs Dagg's evidence, the first "official announcement from the Department" that she had to write a report about Ms Anderson (416) was when she received a letter from Mr Frizzell dated 17 February 1994. This was a short letter. It referred to the fact that Mr Frizzell had received an inefficiency report on Ms Anderson dated 20 December 1993 from Mr Miles. The report was not enclosed. The letter requested a "written report on Miss Anderson by the end of Semester 1, 1994". The letter then said "A programme of support had been arranged for Miss Anderson by Mr Mills [sic] and this would also need to be negotiated with Miss Anderson". The letter then concluded.
Whilst one can understand that Mrs Dagg may not have been shown a copy of Mr Miles' adverse report through concerns about bias, to effectively manage the perceived problem involving Ms Anderson, it is clear that Mrs Dagg ought to have been given some detail of the supposed problem. This could have been as brief as to say that "Mr Miles has noted that Ms Anderson has had difficulty in communication and interpersonal skills, particularly with parents and other staff members". To have appraised Mrs Dagg of this could not be said to infect Mrs Dagg with bias, on any reasonable view, yet would allow Mrs Dagg to understand the nature of the "problem" at hand so that she could effectively manage it. Mr Frizzell did not take this course. With reference to the "programme of support" that had been arranged for Ms Anderson, as referred to by Mr Frizzell, Mrs Dagg also ought to have been given some indication of what this was.
It would have been appropriate for Mr Frizzell to have pointed out to Mrs Dagg that Ms Anderson had made an appointment to see Ms Clements and to have asked her to communicate with Ms Anderson about that.
The letter from Mr Frizzell to Mrs Dagg was lacking the specificity required to allow Mrs Dagg to effectively manage the "problem" perceived by Mr Miles. Further, it simply requested a "written report on Miss Anderson by the end of Semester 1, 1994", when Mr Miles' view, as he said in evidence, was that Ms Anderson could be an effective teacher if her communication and interpersonal skills were improved.
I asked Mr Frizzell the following question:
"If Mr Miles held the view that interpersonal skills and communication was a major problem, whose job would it have been to make sure that Mrs Dagg understood that?---The superintendent, and it is common practice that the superintendent and the two principals concerned would meet. Certainly the superintendent, Mrs Dagg and the teacher involved would meet and it is an expectation of our system that a superintendent would see that the best possible support structure was set up in addition to establishing what the real concerns were, so on the transfer of the performance management from one school to the other, the expectation would be that the superintendent and both principals would have discussions. That's normal practice."
Mr Frizzell also said in evidence that it would be "normal practice" for the first adverse report to be attached to the letter to Mrs Dagg on 17 February 1994. However, he acknowledged there was no reference to that in the letter. Further, Mrs Dagg said that she did not receive the first adverse report with this letter. I accept the evidence of Mrs Dagg on this point.
In his evidence, Mr Betjeman said that although he discussed with Mr Miles the first adverse report, he did not have any further involvement in the first report after it was sent to Mr Frizzell at head office. He said that in either late 1993 or early in 1994 he advised Mrs Dagg that an adverse report had been submitted by Mr Miles and that it would need to be "discussed in more detail with her in 1994 ... so I alerted her to the fact that the transfer was occurring and that it would involve a continuation of a reporting process". Mr Betjeman said that he did not provide Mrs Dagg with a copy of the first adverse report. As stated, he said that he did not keep a copy of that report.
Mr Betjeman was asked by counsel for the respondent whether he was involved in setting anything up at Challis with respect to Ms Anderson being assessed for the second report. Mr Betjeman said that early in 1994 he was moved into central office to work there for most of first term, that is, for about eight weeks. He said that he had no detailed discussion with Mrs Dagg as he could recall, in the one week of the school year prior to going to central office. He said that he might have but he had no recollection of that. He said that the first detailed discussion that he could recall was in the form of a letter when he returned from the "central office job" about eight weeks later.
Mrs Dagg said that she did receive the first adverse report "in the first few weeks of term", but that there had been delay because of Mr Miles being on leave, and the fire at Westfield Park Primary School. She said that before the report was received by her, she had some discussions with the superintendent abut the report. Mrs Dagg said that the superintendent did not give her the total contents. "He mentioned to me there had been concerns raised about interpersonal skills and there had been some involvement of himself and the school in this situation. That's as far as he discussed with me." (687) This was in the last week of term in 1993. Mrs Dagg said she was not told that Ms Anderson had made an appointment to see a counselling service (688).
In a letter dated 31 March 1994 from Mr Betjeman to the principal at Challis, Mr Betjeman gave further information to Mrs Dagg about Ms Anderson. The letter commenced, "Further to previous discussions in relation to due process that applies for teacher efficiency reporting, I suggest that key judgments need to be made in relation to the following questions which correspond with those listed in the first unsatisfactory report". These were:-
"Q.2: Are interpersonal skills with parents, students and staff helping to build school ethos?
Q.5: Is regular homework being given and marked so that constructive feedback is being provided to all students?
Q.7a: Do her lessons engender a sense of purpose for students and are they well managed?
Q.7b: Do all students receive fair dealing?
Q.8: Does Ms Anderson follow school operational procedures?
Q.9: Does Ms Anderson willingly act on advice?
Other issues raised in the first unsatisfactory report which should also be monitored are listed below:
Q.1: Is Ms Anderson clear about intended lesson outcomes and how she might achieve them?
Q.3: Do her actions indicate that she is supporting the school development plan's priorities?
Q.4: Does she fulfil duty of care obligations?
Q.5 Are school deadlines and timelines met?
This letter is intended only as supportive advice."
Mr Betjeman was asked, in examination in-chief, about due process in the context of Mrs Dagg writing a second report about Ms Anderson. (989) Mr Betjeman said that, "each report should take the teacher as they find it [sic] but, however, each situation needs to build on and from the previous advice. If one is looking to provide - the reporting process is not intended to dismiss a teacher. It's intended to say to the teacher : there are serious considerations that need to be - consideration needs to be given to particular aspects of teaching, and the aim is to provide the teacher to have that teacher deal with them and become an effective teacher, and so it's normal that through any reporting stage from one to another that, I guess, sort of a fresh view is taken, but the issues are carried over from the previous situation." In general, however, Mr Betjeman said that he had no difficulty with the second report having a broader base than the particular areas of concern that Mr Miles had detected and reported on in the first report.
As stated, Mrs Dagg said that she had not seen the first adverse report by the time she received the letter from Mr Betjeman. Counsel for the respondent took Mrs Dagg through the letter from Mr Betjeman dated 31 March 1994 to "comment on whether or not you were applying these particular things already by the time you received this letter." (Transcript 437) Mrs Dagg generally confirmed that she had been considering the issues which were contained in Mr Betjeman's letter. During the course of this questioning I asked Mrs Dagg whether Ms Anderson was provided with any mechanisms by which she could improve her interpersonal skills with parents. Mrs Dagg answered, "Not directly. All I mentioned to her was about being less defensive, of not regarding every intrusion of a parent into the classroom as something where they were looking for trouble, to be basically less defensive of what was happening, but I didn't provide her with anything other than that". This indicates that there was no structured follow-up, support or programme of appraisal or management in relation to the "problem" that Mr Miles had specifically identified.
(8)The Claim of Bias Against Mrs Dagg
As stated earlier, Ms Anderson was concerned that Mrs Dagg would be biased against her. She based this on her assumption that Mrs Dagg would have seen the first adverse report. This assumption was not correct. Indeed, to some extent it would have been helpful, in my opinion, for Mrs Dagg to have seen the first adverse report so that she would have had a better idea from the beginning, of the areas which Mr Miles was concerned about with respect to Ms Anderson's teaching. As it was, as said earlier, at least initially Mrs Dagg was given very limited guidance on this.
Ms Anderson maintained the claim of bias against Mrs Dagg throughout the course of the Regulation 86A procedure and during the trial. Having considered the relevant documentation which was tendered to the Court and having carefully observed Mrs Dagg giving evidence during the trial over an extended period, I do not think that Mrs Dagg was biased against Ms Anderson. Whilst she may not have been as sympathetic to Ms Anderson as some principals or teachers may have been, in my view this falls short of anything approaching actual bias. An issue of apprehension of bias relating to comments attributed to Mrs Dagg in November 1994 will be considered later.
(9)The Processes Relating to the Second Adverse Report
Mrs Dagg's first contact with Ms Anderson was when she invited her to attend a staff get-together prior to the commencement of the school term in 1994. Mrs Dagg said that she took the attitude that "this was a new start for Miss [sic] Anderson". She had decided to set up a performance management situation and "run with that as directed by the superintendent". Mrs Dagg said that she commenced the performance management process with Ms Anderson with an initial discussion where she said that she regarded Ms Anderson's time with Challis as a time in which Miss Anderson could prove herself.
Ms Anderson had a new year level for her, a Year 2 class. Mrs Dagg advised Ms Anderson of the names of various staff members that she could go to for support and drafted an outline of "how we could look at performance management", for Ms Anderson to consider and have input. This document, which was tendered as Exhibit 37, had, according to Mrs Dagg, the purpose of giving Ms Anderson some idea of when documentation would be due, what documents would be looked at and when things would happen.
The document made reference to Ms Anderson's planning and programmes. It contained a timetable by which Ms Anderson had to submit to Mrs Dagg her daily work pads and programmes. As emerged in the evidence, a daily work pad is a document which outlines the work which a teacher is going to do on a particular day. The programme is a longer term document setting out the work to be done in a subject area for a term or semester. Exhibit 37 required that Ms Anderson submit her students' workbooks by week 6 or 7 of the first term and book records by week 6 or 7 of the term. The document also made reference to matters of classroom organisation such as displays, classroom climate, discipline, lesson preparation and implementation of programmes. Professional characteristics were also referred to. Included in this was the seeking of, accepting and acting on advice about performance and dealing ethically with job responsibilities and personnel. Also included was reacting helpfully to students, parents, teachers and administration.
It is clear from this document and the evidence of Mrs Dagg that she saw her role as conducting a general performance appraisal of Ms Anderson, including receiving and checking her programmes and daily work pads; when as was stated a number of times in the evidence by a number of witnesses, permanent teachers did not have to submit programmes and daily work pads to the school administration.
Mrs Dagg said that these matters were discussed with Ms Anderson on 2 February 1994. Mrs Dagg took notes of this meeting with Ms Anderson. From the notes it appears that Mrs Dagg had some indication of the contents of Mr Miles' first report. This is because the discussion points with Ms Anderson as reflected in the document included relationships with parents, no notes going to parents without approval, school discipline policy and the school support team.
On 3 February 1994, Mrs Dagg had a meeting with Ms Anderson in which the latter voiced her concerns that Mrs Dagg may be influenced by the Regulation 86A report. The notes confirmed that Mrs Dagg reassured Ms Anderson that she was approaching the situation as a "new start".
On 7 February 1994, Mrs Dagg had a further meeting with Ms Anderson when the topic of arranging parent interviews was discussed.
With respect to the letter dated 17 February 1994 from Mr Frizzell to Mrs Dagg, the latter, as I said earlier, confirmed she did not receive a copy of the first adverse report with the letter. She said that the letter was the first official announcement from the Department that she was to write an efficiency report on Ms Anderson.
Mrs Dagg said that in the early part of the year she felt that she was being supportive of Ms Anderson. She said that she spent some time in her classroom helping her with teaching a Year 2 class. She said that she went through with Ms Anderson some ways in which she could teach various classroom lessons, provided documentation to her on various things in the school and offered her the opportunity to talk with other staff members. She gave her specific directions as to who she could speak to about different areas.
Exhibit 42 was a document setting out some information that Ms Dagg provided to Ms Anderson as a result of a meeting that took place and also records some of the documentation that had been presented to Mrs Dagg at that time. Exhibit 42 was dated 24 February 1994. There was a meeting between Ms Anderson and Mrs Dagg on that date. The document noted some areas of concern with respect to Ms Anderson's teaching. Ms Anderson responded to this document by a note to Mrs Dagg dated 25 February 1994 (Exhibit 43). This document included three comments that Ms Anderson wanted noted. The first was that the first adverse report was written by Mr Miles from Westfield Park in 1993 and that the 1994 school year had been commenced at Challis. The second was that it was the school policy to collect samples of children's work in the first two weeks in order to sort the children into ability groups in week 3. The third was that Ms Anderson commenced the school year at Challis with a broken arm which had required surgery, plates and pins. Ms Anderson said that this made difficult the setting up of a new classroom in a new school. Ms Anderson pointed to the fact that she had been advised not to lift anything heavier than a teacup with her left arm. She said that this made normal daily tasks quite difficult.
Ms Anderson concluded the document by saying that she was happy to be at Challis and was pleased with the staff in her "cluster" and the professional approach that she saw in the other staff at the school.
In her evidence, Mrs Dagg said that she thought that she had a good relationship with Ms Anderson at that stage.
However, Mrs Dagg also said that on a number of occasions Ms Anderson had said to her that she was a single person, that her job was her life and that she put much time and effort into her job. Mrs Dagg said that she felt that this had placed her under pressure and she felt that she needed to give Ms Anderson as much help as possible.
Exhibit 45 were notes that Mrs Dagg wrote after considering Ms Anderson's programmes. The document was dated 11 March 1994.
Exhibit 46 was written as a result of a classroom observation of Ms Anderson on 18 March 1994. This was in the form of a note to Ms Anderson from Mrs Dagg.
On 24 March 1994, Mrs Dagg noted that she and Ms Anderson had spoken at length about the latter's concerns that Mrs Dagg may not write a satisfactory report at the end of the semester. The note indicated that Ms Anderson had said to Mrs Dagg that if an unsatisfactory report was written, she would "litigate". Mrs Dagg noted that, "I felt this was a form of verbal intimidation and reported it to the district superintendent".
On 31 March 1994, Mrs Dagg wrote Ms Anderson a note concerning her review of some of the children's work books and concerns that were raised as a result of this.
Mrs Dagg said that she observed Ms Anderson's classes on a regular basis and provided her with feedback as a result of each observation. She also observed the way in which Ms Anderson worked around the school and with other people, listened to comments from other staff and looked at documentation.
Mrs Dagg said that by the end of term 1 there were still problems with programming and there was a major problem with record keeping in that there was a lack of diagnosis. (Transcript 428)
In relation to the letter from Mr Betjeman dated 31 March 1994, Mrs Dagg said that Ms Anderson's interpersonal skills with parents and later with other staff slowly broke down. Mrs Dagg said that Ms Anderson had difficulty relating to parents and became extremely defensive if they came near her room or wanted to talk to her about anything. She said that this became "quite a defensive attitude".
On 15 April 1994, Mrs Dagg wrote some notes of topics for an interview on 15 April 1994 with Ms Anderson. The notes covered issues such as records, concern about the large amount of personal photocopying Ms Anderson was doing, verbal complaints to Mrs Dagg about home reading not being supervised, Ms Anderson's attitude to children and notes from the school not being distributed to her students. Also, there was concern that the classroom discipline policy which was called a "Top Kids" policy was not being applied consistently. The document records that 15 April 1994 was day 1 of term 2.
Counsel for the respondent asked Mrs Dagg whether she thought that the performance management appraisal was "punitive". This question was asked because Ms Anderson had raised this in her evidence. Mrs Dagg said that the process she used was similar to that used for other teachers and it had never been regarded by anyone else as punitive.
By letter dated 11 May 1994 (Exhibit 61), Ms Anderson provided Mrs Dagg with a detailed response concerning two comments "dated 31st [sic] of April 1994". Then followed 4½ pages of comments on matters raised by Mrs Dagg. These included comments on booklets containing test records for term 1 1994, Ms Anderson's method in over the shoulder marking, teaching at the point of error, personal designing of worksheets for "First Steps" strategies (a teaching method), daily diary writing by the students, daily language activities and take-home test sample booklets, availability of class sets of scrapbooks, commencement of "my word" book lists, the purposes of spelling pads, use of editing skills, "dotted thirds paper, handwriting standards in diary writing, plotting the class on the writing and spelling continuum and exercise book cover sheets for different subjects." The letter concluded by thanking Mrs Dagg for her anecdotal comments and said that "I need helpful suggestions and I'm sure they will catalyst further change".
In mid-May 1994, Ms Anderson was away for three days and a relief teacher taught in her class. Mrs Dagg said that the relief teacher raised some areas of concern about Ms Anderson's planning. Mrs Dagg then reviewed Ms Anderson's planning because some children were said to be having difficulty with the activities left for them. Mrs Dagg wrote Ms Anderson a note about these matters concentrating on reading and maths. This document (Exhibit 64) was dated 12 May 1994.
On 17 May 1994, Mrs Dagg had a further discussion with Ms Anderson and made notes of the discussion. The notes concerned Ms Anderson taking short leave for three days (which had occasioned the necessity for the relief teacher), concerns at the conduct of Ms Anderson when on the short leave including visiting the District Office and Resource Centre, the issues raised as a result of the relief teacher's concerns and a parent complaint about his daughter being moved around in Ms Anderson's class. Mrs Dagg also read to Ms Anderson complaints by two parents about her attitude and behavioural management. The appraisal timetable for the term was set out and also mentioned was "the need by Ms Anderson to be aware of her attitude to other staff". The notes were provided to Ms Anderson on 19 May 1994.
On 24 May 1995, Mrs Dagg wrote a note to Ms Anderson about what Mrs Dagg would consider to be adequate documentation to enable "assessment of student outcome". Mrs Dagg explained that this was as a result of Ms Anderson's request for some further guidance.
As alluded to earlier in these reasons, it seems that Ms Anderson attempted to be transferred from Challis. The letter from Mr Betjeman to Mr Frizzell dated 17 June 1994 (Exhibit 75) reflects this. Mr Betjeman's opinion was that Ms Anderson should not be transferred from Challis. He indicated that Ms Anderson had been given an extremely favourable teaching situation and had professional support from the principal.
(10)The Second Adverse Report
Mrs Dagg's report to Mr Frizzell was dated 26 July 1994 and was submitted at the end of first semester. Omitting formal parts, the report is as follows:
"Miss Jennifer Anderson's progress has been monitored by me during Semester 1 as requested.
The areas agreed upon:
1.The planning, implementation and evaluation of an appropriate program for a Year 2 class.
2.Classroom and student management.
3.Maintenance of effective communication with staff, students and parents.
Miss Anderson has had difficulty in the preparation of a program to satisfactorily represent the intended curriculum for her Year Two class. The planning did not indicate that it addressed student needs as a result of her judgements on student learning. There was little evidence in the planning and implementation of catering for individual differences.
First terms planning provided a limited written overview, with some sections requiring substantial additions. Post programming advice and support were provided. Second terms planning, particularly in the Language area showed that while there was a great deal of research indicated, the programme was not based on the needs of the class. The recommended time lines needed extending in both Terms 1 and 2.
Assessment, recording and reporting on student learning has not been systematic or comprehensive enough to allow judgements in relation to the learning programme. There is only one recording of assessment, for a semester of oral reading and a limited diagnosis of comprehension.
There is no on going evaluation to support summative evaluation in writing for both reporting and continual recording.
Evaluations in maths are limited and do not indicate any individual diagnosis across strands, making it difficult to provide accurate summative reporting.
My review of assessment in Term 1 indicated that evaluation lacked diagnosis and comprehensiveness, this was still the case in Term 2, even with several discussions and written explanations. Timelines for completion in both terms needed extension.
Review of children's work books in Term 1 indicated poor standards, lack of regular marking and unfinished work. Term 2 review indicates that there is some improvement in standards but there is a continued lack of monitoring of children's understandings, evidenced by the work samples of lower ability children where they are failing to complete work and have poor standards. The use of large amounts of worksheets, involving the children in extended colouring, has contributed to the poor standards as children have tired easily and lost interest.
Timeline for review of books was not adhered to in either term.
Miss Anderson has had difficulty in maintaining effective communication with some parents and myself. Parents have expressed concern over Miss Anderson's attitude to them and failure to implement requests. Particular concern was raised by two parents in late Term 2 over approaches to them by Miss Anderson after her viewing of their 'complaints' in my documentation provided under Freedom of Information.
I have had personal difficulty with Miss Anderson as a staff member as she continually reiterated to me that fact that she felt that the 86A Report was unfairly implemented. She has also reminded me that if I do not write a favourable report this will mean a deterioration in lifestyle as she is dependent on her personal income, on one occasion indicating to me that she would not fail to litigate if my report was unsatisfactory. This attitude has meant that Miss Anderson has not recognised that she has a problem with her teaching and has made any advice and support difficult.
Failure to implement instructions and school operational procedure has also caused difficulty.
Instances include:
*taking unapproved leave
*failure to distribute newsletters, notes
*defiance of a ruling not to use the school fax unless authorised
*school management information not supplied on time
*class reports presented (late) on the last day of term with no explanation or request for time extension.
While a staff member at Challis, Miss Anderson has had an extremely supportive environment and every opportunity to prove her efficiency as a teacher. Her continued insistence on proving her situation to be unjust has caused her stress and created barriers to successful relationships with others and her application to classroom responsibilities.
Yours faithfully"
It can be seen that Mrs Dagg specified problems that Ms Anderson was having with programming, evaluation of student work, timeliness, maintaining effective communication with parents and Mrs Dagg herself and failure to implement school operational instructions and procedures. Later in the judgment I will comment on the substance of the report.
(11)Ms Anderson's Response to the Second Adverse Report
The report was forwarded to Ms Anderson by Mr Frizzell under cover of a letter dated 5 August 1994. This letter from Mr Frizzell advised Ms Anderson that following receipt of her response he would consider what action to take.
Ms Anderson responded to Mr Frizzell by letter dated 19 August 1994. In contrast to her response to the report written by Mr Miles in December 1993, this response was very short. The response did not consider the substantive aspects of Mrs Dagg's report at all. The letter referred to Ms Anderson's concern about bias before her transfer to Challis and stated that "A personality conflict has been evident between myself and Ms Dagg from the start of my appointment at the school". Having heard all of the evidence, I do not accept that this is an accurate assessment of the relationship between Mrs Dagg and Ms Anderson, "from the start".
The response also said that "I believe very strongly that I have achieved all the requests as stipulated by Ms Dagg. I have a request to make in relation to my implementing the suggestions as put by Ms Dagg and that is that I would like a Principal or Deputy Principal from outside the Armadale District to consider my programmes, daily workpad and samples of children's work." Ms Anderson also stated that she would like to discuss with that person how Ms Anderson had adapted to Challis.
Ms Anderson proposed that one of three people be chosen to undertake the tasks she suggested, being Mrs Gregory, Mrs King or Mr Michael Wright, a principal from Springfield Primary, Kallaroo.
The letter also referred to a meeting on 13 July 1994 between Mr Frizzell, Mr McLeod from the Education Department, Ms Shelley Archer from the State School Teachers' Union and Ms Anderson. The letter stated that Mr Frizzell had commented that it would be possible for them to convene again following Mrs Dagg writing the second report. This was said to be so as to "ascertain the path to be taken in relation to the process to be followed in her case". Ms Anderson asked for a time for a meeting with these people to be arranged to discuss such matters. On this note, the letter ended.
(12)Mr Frizzell's Reply to Ms Anderson
Mr Frizzell's reply to this letter was dated 5 September 1994. Consistently with the first letter that Mr Frizzell wrote to Ms Anderson in response to her reply to the first adverse report, the letter was short. The substantive paragraphs of the letter were only two in number as follows:
"Following careful consideration of the reports and your written explanations, I have decided that a further report will be called for. This will be provided to me by the end of Semester Two 1994.
If you feel a further meeting would assist you to resolve the issues raised in the reports, please contact my secretary, Ms Diana Wee, on 264 4819."
On the same date Mr Frizzell wrote to Mr Russell Stranger, who was the then acting district superintendent at the Armadale District Education Office. Mr Frizzell advised Mr Stranger that he had decided to call for a further report concerning Ms Anderson, which would be due at the end of Semester two 1994. Mr Frizzell requested that Mr Stranger set up a management group from within the school, with Mrs Dagg, to assist and support Ms Anderson. Mr Frizzell stated that:
"The group will require clear guidelines to ensure that the information they are able to gather as a result of their support is useful in the preparation of the further report. The report would need to be submitted by either you or [Mrs Dagg].
This process needs to be established as quickly as possible in order to ensure that the report is based on a minimum of three months as recommended in the Guidelines."
By a facsimile from Mrs Dagg to Mr Stranger, which although undated seems to have been written not long after 5 September 1994, Mrs Dagg informed Mr Stranger that "After reading the letter from the Executive Director of Schools Miss Anderson refused to speak with me."
Ms Anderson had, prior to the report being submitted, apparently been offered a look at the report but had declined indicating that Mrs Dagg "was personally biased". This is also noted in the facsimile to Mr Stranger.
(13)Setting Up the Management Plan for the Third Report
On 19 September 1994 there was a meeting with the district superintendent, Ms Anderson and Mrs Dagg in which management guidelines were discussed. Mrs Dagg's notes record that there was an agreement to begin the new management process for term 3 and that Ms Anderson was to review a guideline document with the union and an industrial advocate.
Exhibit 93 was the minutes of meetings and discussions on 21 September 1994. The meeting is recorded as taking from 8.00 am to 1.00 pm. The minutes record that those present were Mrs Dagg, Mrs O'Brien, Mrs Daley, Ms Anderson, Mrs Parker and Ms Mary Franklyn, a State School Teachers' Union representative. The document noted changes to the original management group guidelines being negotiated by those present. The minutes stated that this activity was seen as part of the management process. The document stated that the aim of weeks 1 and 2 was to negotiate an agreed plan. This document noted a panel being set up and comprising Mr Stranger, Mrs Dagg, Mrs O'Brien, Mrs Parker and Mrs Daley. The document set out the role of various panel members, timetable format, objectives, mentors' objectives and timelines. A timetable was attached and the document was to be signed when it was agreed.
This document was not agreed to. A revised document of proposed management group guidelines dated 22 September 1994 was then written (Exhibit 94). This document was also not signed.
Exhibit 95 was a response to the revised proposed management group guidelines dated 22 September 1994. This document included a number of issues and proposed changes put forward by Ms Anderson with the aim of being able to establish a plan that met the "needs of Ms Anderson". The document was written by Ms Franklyn but it was submitted to Mrs Dagg on behalf of Ms Anderson. In her evidence Ms Anderson said that she adopted this document. The document referred to matters such as weekly mentor programmes, circulation of minutes of meetings, the final report being written by the superintendent, timetabling and other matters.
By facsimile from Mrs Dagg to Ms Franklyn on 23 September 1994, Mrs Dagg advised that she had been advised by the district superintendent to present a "position" to Ms Anderson on "Monday" with a request that Ms Anderson comply with the guidelines. The guidelines proposed were attached. Mrs Dagg said that she would appreciate Ms Franklyn's attendance at the meeting. Mrs Dagg requested that Ms Franklyn advise her of her available times for the meeting.
A further document entitled Revised Document Management Group Guidelines dated 23 September 1994 was written (Exhibit 97). This document stated that revisions had been made to the proposed guidelines as a result of a consideration of a response made by Ms Anderson and Ms Franklyn on 22 September 1994. This document was also not signed.
There was a further meeting on 26 September 1994 between Mrs Dagg, Ms Anderson and Ms Val Brooks, the union representative at Challis Primary School. This meeting lasted from 1.05 pm to 1.55 pm. The minutes state that Mrs Dagg said that she had been advised to formally give Ms Anderson guidelines and that any concerns were to be passed on to Mr Frizzell. Mrs Dagg was to meet with the other panel members the next day. Mrs Dagg was to note Ms Anderson's concerns to pass on to Mr Stranger that day and Mr Stranger was to be asked to forward them to Mr Frizzell. The minutes record that Ms Anderson had a number of areas of concern. These included a lack of specific focus for each mentor, that Mrs Dagg not act as a mentor because of the "personality conflict" between Ms Anderson and Mrs Dagg, only one mentor be allowed in the class each week to avoid unsettling of the schoolchildren and parents and that as the performance management plan would commence implementation in the last week of term this would not be a reflection of normal classroom procedures and learning outcomes. The minutes included Mrs Dagg's response to the issues raised and Ms Anderson's reply to this.
The minutes closed with a note that Ms Anderson "felt that there were no more concerns she need raise at this time". The minutes of the meeting were copied to Mr Stranger, Mr Frizzell, Ms Brooks, Mrs Dagg, Ms Anderson and Ms Franklyn.
Although it was not signed, it appears that the document which became Exhibit 97 formed the management group guidelines in relation to the writing of the next report about Ms Anderson. Ms Anderson said in her evidence that she was directed to accept these management group guidelines.
(14)The Management Group Guidelines
Exhibit 97 said that "these guidelines are considered operational as from Monday, 26 September," 1994. It set out the performance management panel, comprising Mrs Dagg, Mrs O'Brien, Mrs Parker and Mrs Daley. The panel members were specified as follows:
Mrs P Dagg Principal Chairperson
Mrs Megan O'Brien Deputy Challis Primary School
Mrs Sherry Parker Classroom Teacher Challis ECU
Mrs Prue Daley Classroom Teacher Challis ECU
The document said that all meetings of the panel and the "team" would be recorded by a member of the panel. The "team" appears to refer to the members of the panel plus Ms Anderson. The document said that the panel members would record the observations they made according to the "Teaching Dimensions document". This document was attached to the management group guidelines and is Annexure A to this judgment. It has been referred to earlier.
The management group guidelines specified the objectives of mentors as follows:
·Review of the learning outcomes achieved, by visiting classroom to observe outcomes.
·Viewing of the planning documentation, recording of outcomes to verify planning process.
·Provide feedback and assistance on learning outcomes.
·Recommend appropriate professional development to support Ms Anderson.
The document then said that the mentors should negotiate with Ms Anderson classroom visits that would allow them to observe student learning outcomes and view planning and evaluation documents. These visits were to be in terms of the teaching dimensions document and used in the panel and team meetings to formulate plans for support and advice.
The document said that these objectives would be supported by fortnightly (one hour maximum) meetings after school by:
1.The panel to review and formulate plans for action.
2.Team meetings with Ms Anderson, to discuss implementation strategies and professional development.
The document said that Ms Anderson was to arrange half-hour sessions with mentors to discuss classroom issues or participate in classroom activities. The document said that each mentor was to negotiate with Ms Anderson a suitable time for classroom observation and documentation review. The document set out a timetable as follows:
Term 3
Week 8 12 Sept
Planning and Negotiation of Management Plan
Week 9 19
Planning and Negotiation of Management Plan
Week 10 26 Sept
Management Plan Implementation
All Mentors to visit
Panel Meeting
Team Meeting
Holidays
Term 4
Week 1 17 Oct
Megan Sherry
Week 2 24 Oct
Team Meeting and Panel Meeting
Week 3 31 Oct
Prue Pat
Week 4 7 Nov
Panel Meeting and Team Meeting
Week 5 14
Megan Prue
Week 6 21
Panel Meeting and Team Meeting
Week 7 28
Sherry Pat
Week 8 5 Dec
Panel Meeting
Week 9 12
Final Report submitted to District Superintendent
The references to Pat, Megan, Prue and Sherry are to Mrs Dagg, Mrs O'Brien, Mrs Daley and Mrs Parker respectively.
After the timetable, it was stated in the document that Mrs Dagg would be required to deal with the administration and accountability issues involving Ms Anderson. This would require classroom observation of teaching strategies and student learning outcomes. The document said that where an interview was required (by Mrs Dagg) to address administrative issues, the union representative would be present. This paragraph was no doubt inserted because of Ms Anderson's concerns about the "bias" of Mrs Dagg and the "personality conflict" between them.
The revised Management Group Guidelines dated 23 September 1994 presents as a comprehensive and well thought out programme. However, from the timetable, as noted above, it can be seen that there would only be about nine school weeks of implementation of the management plan. This seems a relatively short period, when compared to the guidelines in Exhibit A.
Although Ms Anderson remained dissatisfied with the management programme, it was implemented . The mentors endeavoured to take the roles assigned to them under the plan, panel and team meetings were held, and Ms Anderson spoke with the mentors and provided them with documentation.
The three mentors, Mrs O'Brien, Mrs Parker and Mrs Daley, all actively co-operated with the management plan. Each of them attended the relevant meetings, considered documentation submitted by Ms Anderson and provided Ms Anderson with oral and written feedback. Each gave evidence. I did not detect in their evidence any malice or bias towards Ms Anderson. I do think, however, that they would have given varying degrees of support to Ms Anderson in both what was communicated to her and the way in which the communication was effected. This is probably reflective of the different personalities and management styles of each individual. In my opinion, having viewed the relevant documentation and seen the mentors give evidence, Mrs O'Brien would have been the most supportive to Ms Anderson, in the sense that I have used this expression immediately above. I detected from Mrs O'Brien's demeanour when giving her evidence that she had an enthusiastic desire for Ms Anderson to succeed in proving herself an efficient teacher.
To understand the implementation of the management plan and the processes which led to the third report it is necessary to consider the interaction between each panel member and Ms Anderson. A summary of this, with respect to each panel member will now be set out:-
(15)The Interaction between the Panel Members and Ms Anderson
(a) Mrs O'Brien
As stated earlier, Mrs O'Brien was deputy principal at Challis Primary School in 1994. This school is separate to Challis and largely had its own buildings and administration although some facilities and the staff room were shared.
On 30 September 1994, Mrs O'Brien was involved in her first observation of Ms Anderson and made "running notes" which she gave to Ms Anderson. These notes became Exhibit 106. The notes recorded that Ms Anderson was on DOTT (Duties Other Than Teaching) time between 9.30 and 10.00 o'clock and Mrs O'Brien was unaware of that and surprised about it. There were also some notes about documentation that Mrs O'Brien observed. This observation took place on the last day of term 3. Mrs O'Brien indicated that she did not have a problem with doing an assessment on the last day of term 3 because management and classroom teaching happens from day one till the end of term.
Ms Anderson provided a written response to the anecdotal notes from Mrs O'Brien in a two page document dated 19 November 1994 (Exhibit 107).
On 20 October 1994, Mrs O'Brien was involved in another classroom observation of Ms Anderson. She wrote three pages of notes which were provided to Ms Anderson (Exhibit 111). Ms Anderson provided a written response which was undated but which became Exhibit 112.
There was a mentors' meeting on 24 October 1994 which was attended by Mrs O'Brien, Mrs Daley, Mrs Parker and Mrs Dagg.
There was a panel meeting involving all panel members and Ms Anderson on 28 October 1994. The notes from the mentors' meeting of 24 October 1994 were given to Ms Anderson. One issue that was raised was the concern of the mentors in obtaining documents. There was an agreement reached that Ms Anderson did not have to be personally present when documents were being considered. Questions from mentors could be followed up later. Ms Anderson raised the concern at this meeting that the panel may not have the opportunity to view all areas in the "teaching dimensions" document. Mrs Dagg was recorded as indicating to Ms Anderson, that to ensure that she would have the opportunity to demonstrate her efficiency, extra time would be obtained for the mentors to observe, as offered by the superintendent.
Ms Anderson, in a two page document dated 19 November 1994, responded to the notes of the team meeting.
On 31 October 1994, Mrs O'Brien assessed Ms Anderson's programmes, records and daily work pad. She made what she described as a "running record" of notes that she wrote as she was reading the documents. She also discussed the notes with Ms Anderson and made notes of the discussion. This document together totalled nine pages (Exhibit 120). The discussion with Ms Anderson was conducted from 2.15 to 2.45 pm and from 3.30 to 4.30 pm.
Ms Anderson responded to Mrs O'Brien's notes in a 19 page document dated 14 November 1994. Copies of this document were circulated to the panel members and Ms Franklyn (Exhibit 121).
On 10 November 1994 there was a team meeting involving the four panel members, Ms Anderson and Ms Franklyn. Amongst other things, times were agreed to for week 5 observations and consideration of the work books of the students. Mrs Daley was scheduled for 16 December at 11.40 am and Mrs Dagg for 18 December between 11.00 and 12.00. A panel meeting was scheduled for Wednesday, 23 December at 8.00 am and a team meeting for Wednesday, 23 December at 3.30 pm. Ms Anderson responded to the notes of the team meeting in a two page document dated 19 November 1994 which was tendered as Exhibit 139.
Mrs O'Brien had two sets of classroom observations of Ms Anderson on 11 November 1994. Mrs O'Brien wrote notes while she was observing (Exhibit 140). A copy of the notes was provided to Ms Anderson. The notes were lengthy, comprising seven pages of Mrs O'Brien's relatively small handwriting. In addition, Exhibit 140 also contained a one page set of notes of Mrs O'Brien's review of six student scrapbooks which she reviewed at home on 13 November 1994. Again, Ms Anderson responded in writing to these notes in a seven page document which was undated but tendered as Exhibit 141.
There was a mentors' meeting on Friday, 18 November 1994. All four panel members were present and minutes of the meeting were taken and typed up. The minutes contained four pages of notes on the areas of preparation and planning, assessment and reporting, classroom management, communication issues and teaching skills.
On 28 November 1994, Mrs O'Brien reviewed Ms Anderson's writing programme and made notes about this (Exhibit 148). These notes were given to Ms Anderson.
Mrs O'Brien was involved in the meetings which culminated in the report dated 19 December 1994 being written. Mrs O'Brien and each other panel member signed the report. The report will be referred to in detail later in these reasons. Mrs O'Brien described in her evidence the process which led to the report being written. Each of the four panel members went to the district office. This was towards the middle of December 1994 and in accordance with the timetable that had been set up. With the assistance of a whiteboard, the panel members went through the teaching dimensions, noted what had been demonstrated and reached a consensus of the panel's feelings in relation to each teaching dimension. Mrs O'Brien said there was nothing in the report that she did not agree with. In answer to a question by counsel for the respondent, Mrs O'Brien indicated that Mrs Dagg did not influence her in putting the document together. Mrs O'Brien explained that Mrs Dagg wrote on the whiteboard as the others were talking. Mrs O'Brien said that Mrs Dagg was careful to consider the evidence that had been found and "she was trying to be extremely careful that what we were talking about was demonstrated".
Mrs O'Brien said that the whiteboard being used was one which had a capacity to print what was written on it. She said that quite copious notes had been written on the whiteboard and each member got a copy of the notes. Mrs Dagg then composed a draft report. Mrs O'Brien believed that was revised and then presented to each individual for signing. Mrs O'Brien read the document and signed it.
(b)Mrs Daley
In this outline of Mrs Daley's involvement with Ms Anderson I will not set out her attendance at the panel meetings and team meetings which have been listed in the outline of Mrs O'Brien's involvement with Ms Anderson above.
Mrs Daley was a Year 2 classroom teacher at Challis in 1994 and was also the acting deputy principal. Ms Anderson was in the Grade 2 classroom next door to Mrs Daley.
Mrs Daley prepared a typed list of her involvement with Ms Anderson from 26 September 1994 to 1 November 1994 (Exhibit 100).
The major points set out in this document are as follows:
(i)On 26 September 1994, Ms Anderson was given a list of proposed times for the week 10, term 3 suggested classroom observation times for Mrs Daley to observe her class;
(ii)On 27 and 28 September 1994, Mrs Daley wrote of some difficulties in obtaining times from Miss Anderson for classroom observation. However, on 28 September 1994, Ms Anderson informed Mrs Daley that she was prepared to allow Mrs Daley into her classroom to observe teaching lessons. On that date, between 11.40 and 12.10, Mrs Daley observed a handwriting lesson in Ms Anderson's classroom.
(iii)On 30 September 1994, Mrs Daley requested a sample of the students' handwriting books which were given to her late on 29 September 1994 at the same time as Mrs Dagg had called a panel meeting. Mrs Daley allowed other panel members to view the handwriting books.
(iv)On 30 September 1994, Ms Anderson complained to Mrs Daley that she needed to be present when any of her documentation was looked at and that Mrs Daley should not have shown it to the other panel members without her permission.
(v)Mrs Daley suggested to Ms Anderson on 30 September 1994 that on 17 October 1994 she and Ms Anderson should get together and discuss a handwriting programme for term 4 1994.
(vi)Mrs Daley recorded that on 29 September 1994, various materials were offered to Ms Anderson in relation to handwriting which were not accepted by Ms Anderson.
(vii)On 17 October 1994, Ms Anderson was recorded as not having any documentation with her.
(viii)On 19 October 1994, Ms Anderson is recorded as having suggested that it would be better for Mrs Daley to see her documents nearer to the time of Mrs Daley's next observation in week 3 of term 4 of 1994.
(ix)On the same date, Mrs Daley suggested that on 31 October 1994, after school, would be a suitable time for discussing documents as the next observation was to be on Tuesday, 1 November 1994 or Wednesday, 2 November 1994. The document records Ms Anderson agreed to 31 October 1994 as a suitable discussion time.
(x)On 21 October 1994, Ms Anderson agreed to Mrs Daley's week 3 observation being on 2 November 1994 for a handwriting lesson. There was also an agreement to discuss documents about the teaching of handwriting on 31 October 1994, after school.
(xi)On this date Ms Anderson also requested and was given a copy of Mrs Daley's notes from the observation on 28 September 1994.
(xii)On 31 October 1994, Ms Anderson did not have the documents at school as planned. The discussion then took place on 1 November 1994.
(xiii)On 1 November 1994 Ms Anderson was recorded as still having no term 4 handwriting programme present and no daily work pad for the next day when Mrs Daley was to observe the lesson. Ms Anderson only had a term 1 1994 handwriting programme which had been used for terms 1, 2 and 3. Exhibit 100 has more notes of this discussion.
Mrs Daley's notes of the observation on 29 September 1994 were typed and tendered as Exhibit 103. The notes indicate Mrs Daley's concerns and suggested ideas to help Ms Anderson. Exhibit 103 records that the issues raised in the three pages of notes were discussed in the team meeting held on 29 September 1994 and Ms Anderson's concerns about the observations in the notes were taken into account. However, Ms Anderson also provided a written response to Mrs Daley's notes in a four page document which was tendered as Exhibit 104.
Mrs Daley's notes of her discussion with Ms Anderson concerning handwriting documents were typed and tendered as Exhibit 126. This document indicated the documents which Mrs Daley had sighted, her concerns and suggestions. The notes were given to Ms Anderson who responded with a one page document dated 19 November 1994.
Mrs Daley's notes of the observation of Ms Anderson's handwriting lesson on 2 November 1994 were also typed and tendered, as Exhibit 128. This document indicated some "positives" and some "suggestions". The document was copied to Ms Anderson and the other panel members. In a one page document dated 19 November 1994, Ms Anderson responded to the notes from Mrs Daley (Exhibit 129).
Mrs Daley observed another handwriting lesson on 16 November 1994 from 11.30 am to 12.15 pm. Her notes were typed and copied to Ms Anderson and the other panel members (Exhibit 143).
In a document dated 6 December 1994, Mrs Daley noted various parts of her interaction with Ms Anderson from January 1994. Also detailed in this document were various programmes that had been provided to Ms Anderson to assist her when commencing at Challis (Exhibit 153).
In relation to the report submitted to Mr Frizzell, Mrs Daley said that she could recall two meetings to discuss this, one in November and one in December. These were both held at the district office. Mrs Daley said that the report had been based on all observations and notes etc. that had been collected by the mentors or panel members and brought together at the major meetings that she recalled. Mrs Daley signed the report and agreed with the contents of the report. She said that she read the report several times and had input into it and considered it. She said that the report reflected what she saw and considered of Ms Anderson's teaching efficiency.
From my observation of Mrs Daley when giving evidence and in my review of the documentation prepared by her, Mrs Daley was, in my opinion, almost fastidious in her desire to document her interaction with Ms Anderson. My perception was that she was not particularly sympathetic to Ms Anderson in the performance management process.
(c)Mrs Parker
Again, I will not repeat Mrs Parker's involvement in meetings which have been referred to in the analysis of Mrs O'Brien's interaction with Ms Anderson.
In 1994, Mrs Parker was a Year 1 teacher at Challis.
On 28 September 1994, Mrs Parker observed Ms Anderson's class between 2.40 and 3.05 pm. She made notes of her observation which were tendered as Exhibit 102. Her notes record that she "dropped in - no specific lesson". The notes included her observations and some "wishes" for improvement. On 18 October 1994, Mrs Parker had another observation of Ms Anderson's class. Again she wrote notes of her observation (Exhibit 108). Ms Anderson wrote a written response to these notes in a document of just over one page dated 19 November 1994 (Exhibit 109). On 21 October 1994, Mrs Parker spent approximately one hour looking at Ms Anderson's language and science programmes. The notes of this inspection (Exhibit 113) also indicate that there was some discussion with Ms Anderson as the notes have written in them "Jennifer's concerns". Ms Anderson responded to the notes from Mrs Parker in a five page document dated 19 November 1994 (Exhibit 114).
Mrs Parker also considered Ms Anderson's records and made a note of her "concerns". This document was undated but tendered as Exhibit 123.
Mrs Parker also made notes of her observations of a programme file of Ms Anderson. Several pages of notes were prepared and tendered as Exhibit 147.
Mrs Parker observed Ms Anderson's teaching on 1 December 1994. She prepared some observation notes which were tendered as Exhibit LL. This was a document which was quite comprehensive in narrative and form. The document had a typed table format with column headings as follows: Times, Lesson Comment, Discipline, Feedback to Children, Movement in Room, Marking, Relationships, Completion of Work/On Task Behaviour. Mrs Parker had filled in the document as she observed Ms Anderson. She noted the times of particular incidents taking place, the lesson content and made notes in the Discipline, Feedback to Children, Movement in Room, Marking, Relationships and Completion of Work/On Task Behaviour columns as she saw fit. In essence, the document was a timeline of Ms Anderson's teaching on the day in question with particular reference to aspects that had previously concerned panel members. In addition to this, Mrs Parker made more descriptive observation notes on separate pages. The document indicates that Mrs Parker observed the entire day of Ms Anderson's teaching.
Mrs Parker also participated in the preparation of and signed the final report to Mr Frizzell. She recalled that there were two meetings towards the end of the assessment period in relation to the report to Mr Frizzell. The meetings took place in the district office and were attended by all panel members. She agreed that there was a big whiteboard upon which "positives", "negatives" and "queries" were written. The "queries" section included things that the panel disagreed on or things that were needed to be discussed further or checked. Mrs Parker said that before she signed the report she carefully read it and ticked the things she agreed with. She said this turned out to be everything in the report. She said, therefore, that she agreed with everything in the report.
(d)Mrs Dagg
As set out earlier, Mrs Dagg did not have as prominent a role in the observation of Ms Anderson as some of the other panel members, due to the allegations of bias and personality conflict that had been made. She was involved as chair and co-ordinator of the panel and participated in the meetings which are referred to in the analysis of Mrs O'Brien's involvement with Ms Anderson as set out above.
Mrs Dagg had a meeting with Ms Anderson on 19 October 1994 which was also attended by Ms Brooks. Typed notes of the meeting were prepared and tendered as Exhibit 110. The document detailed a number of things which Ms Anderson was unhappy about. Included in the document is the comment by Ms Anderson that she wanted more time with Mrs O'Brien to discuss planning rather than Mrs Dagg continuing classroom visits. The document states that Ms Anderson felt that Mrs Dagg's comments were harsh and that Mrs O'Brien "recognises that improvements were occurring". Ms Anderson said that she was unhappy with the amount of Mrs Dagg's involvement and would like Mrs O'Brien's mentor time increased. It was agreed that Mrs Dagg and Ms Anderson should meet weekly to discuss any problems that were identified.
On 19 November 1994, Ms Anderson sent a letter to Mrs Dagg concerning a page of anecdotal comments from Mrs Dagg that Ms Anderson had received on 9 November 1994 "alluding to parent contacts with myself". The 9 November 1994 document was not in evidence. In the letter of 19 November 1994 Ms Anderson highlighted the areas in which Mrs Dagg had referred to parents in a general sense and asked for identification of the particular parents and scenarios. The letter of 19 November 1994 records that there was no prior verbal or written response from Mrs Dagg. The letter then states that on 14 November Ms Anderson responded in writing by letter to the anecdotal notes. Again, the letter of 19 November 1994 indicates that in the 14 November letter, there was a request for identification of particular parents and areas of concern. The letter of 19 November states that on 17 November Ms Anderson verbally requested that these details be provided. Ms Anderson also refers to a letter dated 17 November from Mrs Dagg in which she suggested that these matters be considered against the indicators in the teaching dimensions appraisal process during a team meeting.
Ms Anderson concluded the document by saying that since no parent or scenario had been identified, the concerns of Mrs Dagg were unsubstantiated. Ms Anderson says that she was deeply concerned that Mrs Dagg intended to use speculation as a basis for the appraisal process. Ms Anderson said that she was "taking this opportunity to register that due process will not have taken place - if these unidentified matters are used as part of the appraisal process".
In her evidence, Mrs Dagg said that she gave Ms Anderson an overview of the areas of concern from the parents. She said that these were symptomatic of other difficulties Ms Anderson was having. Mrs Dagg was not concerned about the specifics. These had been addressed with the parents. Mrs Dagg said that she thought that due process had taken place as she discussed the overall issues with Ms Anderson but withdrew the information about specific instances because she did not think they were necessary.
In her evidence, Mrs Dagg spoke about the evidence of the mentors' meeting on 18 November 1994. This was a meeting at the district office. Mrs Dagg confirmed that the panel looked at each of the areas of teaching dimensions and recorded notes on a whiteboard. Each panellist contributed information about how they felt on each teaching dimension and together they prepared a "summative evaluation". The notes were taken from the whiteboard, typed and distributed.
Mrs Dagg also explained how the report from Mr Frizzell was prepared. She said a draft was compiled by the panel members. Mrs Dagg then took it back to the office and rewrote it, had it typed and then gave it to each of the panel members for their additions, subtractions and to make sure it reflected what everyone thought. Mrs Dagg agreed with and signed the report.
(16)Interaction with Mr Frizzell between the Second and Third Reports
Throughout the Regulation 86A process, a common theme for Ms Anderson was her dissatisfaction with the way in which the process was implemented. She requested, in her response to Mr Frizzell about the first adverse report, that this report not stand on her record. This request was not addressed by Mr Frizzell's reply, as I have set out in detail earlier in these reasons. In her response to the second adverse report, Ms Anderson questioned Mrs Dagg's impartiality and criticised the process that had taken place. Mr Frizzell's request that Mr Stranger set up a panel seems to have been a response, in part at least, to this.
In the period between the second and third reports being written, Ms Anderson continued to have communications with Mr Frizzell about the procedures involved in her teaching efficiency assessment.
The substance of Ms Anderson's letter to Mr Frizzell dated 19 August 1994 and his reply dated 5 September 1994 have been set out earlier.
Ms Anderson met with Mr Frizzell on 25 October 1994. Prior to that she prepared some typewritten notes for the "informal" meeting and forwarded them to Mr Frizzell. Mr Frizzell described the meeting as an informal meeting trying to support the process that had been then put into place.
Ms Anderson's notes of concerns to be raised comprised six pages. The concerns included the "personality conflict with Mrs Dagg", the "punitive" implementation of the performance management plan by Mrs Dagg, the reservations about the fact that other panel members and the union representative had worked with Mrs Dagg for approximately five years or more and the number of classroom observations of the mentors which Ms Anderson thought would undermine her credibility with students.
From the evidence of both Ms Anderson and Mr Frizzell, no particular conclusions or agreements were reached at this meeting.
By letter to Mr Frizzell dated 7 November 1994, Ms Anderson enclosed a copy of a facsimile she sent to Shelley Archer from the State School Teachers' Union on 31 October 1994. This facsimile was not in evidence but a letter to Ms Archer and Ms Franklyn at the State School Teachers' Union dated 2 November 1994, which referred to this facsimile, was tendered as Exhibit 131. In this letter, Ms Anderson refers to a discussion with Mr Frizzell "That the way that the performance management plan is being implemented (by the people here) is causing me stress". This discussion with Mr Frizzell is not a reference to the meeting on 25 October 1994 but a subsequent discussion that Ms Anderson said that she had with Mr Frizzell in early November 1994. She described this as an informal discussion with him when she went to the Education Department to see Mr Frizzell without appointment. In the letter to Ms Franklyn and Ms Archer, Ms Anderson detailed the extent of her commitments for the week commencing Monday, 31 October 1994. The letter alluded to the heavy workload that she was being asked to perform and the fact of the parent complaint that Mrs Dagg had raised with her was also causing her stress. She requested the union to intervene. She concluded that "Peter Frizzell said that there weren't grounds for dismissal in Pat Dagg's second term report. If that is the case - I shouldn't be placed under the stressful schedule that I am at the moment". The letter to Mr Frizzell dated 7 November 1994 makes reference to Mr Frizzell expressing concern at their last meeting that Ms Anderson seemed unwilling to talk to Ms Archer. Ms Anderson sent Mr Frizzell a copy of the facsimile because she was disturbed that Mr Frizzell had gained the impression that she was not willing to talk to Ms Archer.
The letter to Mr Frizzell set out a number of other concerns that Ms Anderson had with the performance management process. Ms Anderson described her interaction with Mrs Dagg during the year as "harassment in the workplace by my employer". Ms Anderson detailed a number of areas which had led to her experiencing stress because of the performance management plan. A further letter was sent by facsimile to Mr Frizzell which, although undated, appears to have been sent on 18 November 1994 (Exhibit 133). This letter referred to Ms Anderson's contact with a colleague "who has had extensive experience in situations such as one I currently confront. John Nowicki is a respected administrator and conflict resolution facilitator and came with strong recommendation from a close friend and colleague". Ms Anderson said that based on discussions with Mr Nowicki regarding regulations, acceptable procedures and administration of regulations, participative decision making and equal employment opportunity, she believed that her case needed immediate reappraisal and action taken to cease the investigation into her professional integrity and ability to fulfil the requirements of a classroom teacher.
Ms Anderson said that "From the moment I transferred into Challis ECU this year, the intense scrutiny to which I have been subjected is unjustified, undemocratically conceived, and constituted harassment". Ms Anderson referred to the actions of Mrs Dagg during the year as constituting a "witch hunt". She asserted that Mrs Dagg had pre-empted her position and placed her in the "guilty until proven innocent bracket". Ms Anderson requested a formal transfer out of the district. Ms Anderson requested further discussions on what she described as a "settlement proposal".
By priority paid letter dated 9 November 1994, Mr Frizzell replied to Ms Anderson's two facsimiles (Exhibit 136).
Mr Frizzell asserted that he had made no comment in the meeting about communication with Ms Archer. In the document, he said that his comment was that "unless you were willing to have open discussion with the school principal, Pat Dagg, there was no chance of resolution".
Mr Frizzell said that the second facsimile was of greater concern. He said that his message had been clear and consistent to her that she "would need to be faithful to the agreed process set up in the school to assist and support you. This mechanism would serve to demonstrate your achievements in the classroom". Mr Frizzell said that he had no knowledge of the implementation of the process and suggested that this be discussed with the school principal. He said that he could not make any judgment mid way through a support and appraisal programme.
Mr Frizzell said that:
"Your most recent fax could well be interpreted as an attempt to hinder or deflect the process established to assist you. I remind you that the process was agreed to by all parties and you must meet your part of the agreement. To do otherwise will clearly be counterproductive and give no opportunity to successfully resolve the situation. Having discussed the situation with the principal and the district superintendent, Ken Betjeman, I am confident that due and proper process is occurring".
Given the evidence referred to earlier about how the "process" of assessment for the third report was set up, it is not correct to merely state this was "agreed to by all".
Mr Frizzell concluded by saying that the requests at the end of the facsimile were not appropriate and could not be considered. A copy of the letter from Mr Frizzell to Ms Anderson was sent to Mr Betjeman, Mrs Dagg and Ms Archer.
Ms Anderson replied to the letter of Mr Frizzell by letter dated 14 November 1994 (Exhibit 142). Ms Anderson stated that the recently "faxed" letters were not an attempt to hinder or deflect the process. Ms Anderson said that her concerns about the implementation of the plan were raised and discussed openly with the school principal, Mrs Dagg, the panel members and the union representative. Ms Anderson reassured Mr Frizzell that she had complied with the principal's directives to date and would endeavour to meet the requirements of the support and appraisal programme.
This was the last written correspondence from Ms Anderson to Mr Frizzell prior to the third adverse report being sent to him by the panel.
(17)Mr Betjeman's Evidence and Apprehension of Bias
Mr Betjeman gave evidence about a telephone conversation he had with Ms Archer from the union on 10 November 1994. Mr Betjeman was informed that a proposal was to be put forward to him in writing that Mrs Dagg be removed from the panel. Three reasons were given for this as follows:
(1)Mrs Dagg had pre-judged Ms Anderson as was evidenced in comments Mrs Dagg had made.
(2)If Ms Anderson was not supported then any negative report would be taken to the State School Teachers' Tribunal.
(3)The union had evidence of Mrs Dagg's bias.
Ms Archer told Mr Betjeman that the motive for making the telephone call was to "protect Pat Dagg, who is a wonderful person". Mr Betjeman made a note of this telephone call which was tendered as Exhibit 137. The note records that his "action" would be to ask Mrs Dagg to reassure him that there was no opportunity for a bias case to be successful. This was despite his view that Ms Archer's call constituted "the union lobbying outside normal process, putting pressure on me by direct phone call." (1010)
Mr Betjeman spoke to Mrs Dagg on 17 November 1994 and made a note of this (Exhibit OO). The note records that Mrs Dagg "has advised categorically that no bias exists". Mr Betjeman said Mrs Dagg admitted during the course of their conversation that she had said that "this lady has got to be stopped" in referring to Ms Anderson but that she had meant "stopped from hindering due process". Mrs Dagg also admitted that she had said about Ms Anderson that "this lady has got to go." Mr Betjeman said that Mrs Dagg told him that this comment "was an inappropriate 'heat of the moment' expression in light of inordinate frustration at Ms Anderson's 'hindrance to due process'". (1012) Mr Betjeman also noted in Exhibit 00 that "the Principal has professional integrity, will judge the issue on evidence, is only one of three in the panel" and that the comments of Mrs Dagg were said in confidence to Ms Franklyn from the union. Mr Betjeman also noted that Mrs Dagg had assured him that, "no comments of bias had been made in any other forum" (Exhibit 00). Mr Betjeman noted in Exhibit 00 as his "action" that Mrs Dagg should remain on the panel.
Mr Betjeman conceded in his evidence that Exhibit 00 was in error in that it recorded that Mrs Dagg was only one of three on the panel and not one of four (1012) but if anything this error did not work to Ms Anderson's detriment - as being one in four, rather than one in three would, mathematically and theoretically at least, decrease Mrs Dagg's potential influence on the panel (assuming she was minded to assert any).
Mr Betjeman's assessment of Mrs Dagg's "professional integrity" was seemingly based on his previous knowledge of Mrs Dagg and her reputation in the teaching community in the Armadale area.
Most regrettably, these issues were not raised with Mrs Dagg either in examination in chief or cross-examination and Ms Archer and Ms Franklyn were not called to give evidence.
The comment of Mrs Dagg to Ms Franklyn, if made, was most injudicious, to say the least. The comment has this character, even if it was said in the heat of the moment. Ms Franklyn was an organiser in the union which was representing Ms Anderson. If Mrs Dagg did make the comment attributed to her by Mr Betjeman in his evidence, it could ground an argument of an apprehension of bias, whether or not there was any actual bias. The argument of an apprehension of bias comes from the meaning of the words attributed to Mrs Dagg, "this lady has got to go", referring to Ms Anderson; the fact that the comment was said to Ms Franklyn (given Ms Franklyn's position); the fact that it was said in confidence to Ms Franklyn; the previous allegations of bias that had been made against Mrs Dagg, and the timing of the comment. According to Mr Betjeman's evidence, the comment must have been made prior to Ms Archer's telephone call to him on 10 November 1994. Mr Betjeman then spoke to Mrs Dagg on 19 November 1994. According to the timetable in Exhibit 97, week 5 of term 4, 1994, commenced on 14 November 1994. There was a panel meeting on 18 November 1994, at which all four panel members were present and minutes were taken of discussions on the panel's observations of Ms Anderson, according to the teaching dimensions document (see my summary of Mrs Dagg's and Mrs O'Brien's evidence). According to Mrs Dagg's evidence, this meeting was at the district office. She said a "summative evaluation" of Ms Anderson's teaching was prepared at this meeting. This was no doubt the beginning of the written preparation for the writing of the final report. The timing of the comment by Mrs Dagg was therefore very unfortunate indeed (assuming the comment was made).
Mr Betjeman decided to take no action on the comment because of Mrs Dagg's professional integrity, that he thought she would judge the issue solely on the evidence and that Mrs Dagg answered him that "categorically no bias exists" (1011). I do not know that it could be said that it was reasonable of Mr Betjeman, or fair to Ms Anderson, for Mr Betjeman to take no action, given the comment that he was aware that Mrs Dagg made.
In considering this issue, I need to take into account the evidential value of the comment attributed to Mrs Dagg. The Respondent did not object to Mr Betjeman giving evidence of his conversation with Mrs Dagg. I have considered whether the evidence of Mrs Dagg's comment should be ignored on the basis that it may be hearsay. I have come to the view that it should not. This is for four reasons: Firstly, the evidence is admissible as an exception to the hearsay rule - it being a representation by Mrs Dagg, an employee of the Respondent, adverse to the Respondent's interest in the outcome of the proceedings : see Evidence Act 1995, Sections 81, 87 and the Dictionary thereto. Secondly, the Respondent did not attempt to qualify or clarify Mr Betjeman's evidence of this conversation. Thirdly, the Respondent did not either lead evidence from Mrs Dagg to contradict the evidence of this conversation or recall Mrs Dagg to qualify the evidence given by Mr Betjeman. (It is true that Ms Anderson also did not ask Mrs Dagg about this issue either. If she was a lawyer, one would have expected her to - both from the point of view of satisfying the rule in Browne v Dunn and in the futherence of the claim of bias against Mrs Dagg. But Ms Anderson is not a lawyer and as she explained (for financial reasons) was not represented at the hearing. In these circumstances, I cannot draw any adverse inference against Ms Anderson's case for the failure to put the appropriate questions to Mrs Dagg.) Fourthly, the evidence is not hearsay in so far as it represents knowledge of the issue that Mr Betjeman had at the time. That is, it is direct evidence from Mr Betjeman of what he knew of the comments attributed to Mrs Dagg by Ms Archer. After the conversation with Mrs Dagg, Mr Betjeman knew, because of Mrs Dagg's admissions, that she had said to Ms Franklyn that Ms Anderson "has got to go".
The real question, as articulated above, is whether Mr Betjeman's handling of this issue was fair and reasonable in the circumstances. On balance, I think it was not. Given the previous (and ongoing) claims of bias against Mrs Dagg, the fact that she remained as chair and in a pivotal role on the panel in terms 3 and 4, 1994, and the content and the timing of the comment Mrs Dagg admitted making, I think a reasonable manager would have taken steps to replace Mrs Dagg as the head of the panel.
There is, on the evidence before me, no reason why a superintendant could not have chaired the panel. This would have complied with Regulation 86A and removed any apprehension of bias by Mrs Dagg against Ms Anderson.
The allegations of bias against Mrs Dagg before the comment to Ms Franklyn had placed her in a difficult position. The making of the comment exacerbated this. In my opinion, Mrs Dagg was then in such an invidious position that in fairness to Mrs Dagg, Ms Anderson and the integrity of the Regulation 86A process, she ought to have been replaced as chair of the panel.
Mr Betjeman said that Mrs Dagg had assured him that no actual bias existed. Having carefully watched Mrs Dagg give evidence, I agree with this conclusion. However, there is also the consideration as to whether there could be a reasonable apprehension of bias, and if so, the legal effect of this. In my view, there was a basis for a claim of a reasonable apprehension of bias. The factors in support of this conclusion, I have set out above. As a result of this, in my view, as a matter of fairness and reasonable management practice, Mr Betjeman ought to have had Mrs Dagg replaced as chair of the panel. He did not do so. In my opinion, this was a defect in the implementation and management of the Regulation 86A process. As set out earlier in these reasons, the High Court, in Byrne & Frew v Australian Air Lines Limited, has confirmed that "the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable." (page 434)
"The question whether the termination was unreasonable is, I think, one of fact. This question requires a determination, by reference to moral values and prudential considerations current in the community, of what the tribunal of fact thinks a reasonable employer in the circumstances would have decided to do at the time when the Respondent terminated the Appellant's employment. The process is similar to that by which the question is, whether a personal injury or damage to a chattel has been caused by a person's negligence are resolved : what does the tribunal of fact think a reasonable person, placed in the circumstances in which that person was placed, would have done? The tribunal of fact has regard to prevailing moral values, prudential considerations and, sometimes, normal skills (as of driving a car or operating a crane, for example) in deciding what that reasonable person would have done . . .it will not be surprising if judges do not always agree as to what a reasonable employer would have done in cases arising under" the relevant clause of the award.
Part of this passage was quoted with approval by Lee J in Aitken v CMETSWU, WA Branch, (1995) 63 IR at page 7. Earlier on in his judgment in Aitken (page 5), Lee J said that the words "harsh, unjust or unreasonable" reflect a concept that is common to unfair dismissal cases under the terms of industrial awards and under the common law. His Honour quoted from the judgment of Sheppard and Heerey JJ in Bostik (Australia) Pty Limited v Gorgevski, part of their Honours' judgment which has been quoted above. The case before Lee J in Aitken concerned a termination of employment on the basis of redundancy. His Honour stated that where the position of the employee was "genuinely redundant", the employer had satisfied the onus of proof cast upon it by Section 170EDA(1) of the Act (page 5).
At page 6, his Honour observed that a genuine redundancy which obliges an employer to select the employee whose services are to be terminated by reason of that redundancy may nonetheless result in the termination being harsh, unjust or unreasonable if the selection is not fairly made according to established criteria.
At page 6, his Honour commented :
"The words 'harsh, unjust or unreasonable' used in Section 170DE of the Act in Division 3 (Termination of Employment) are part of interrelated provisions designed to implement agreed international standards for the proper termination of an employee's services. (See : M Pittard, 'The Age of Reason', Employment Security (1994), p39; RC McCallum, 'International Standards in Industrial Relations and Their Application in Australia' (1995) 2 TJR 163 at 182.) The object of these provisions of the Act is to institute a level of practice in the management of labour which will tend to preserve the worth of the asset that labour represents. Underlying the provision is the awareness of parliament that legislative intervention for the protection of employees is in the public interest in an economy that is subject to international influences which tend to promote less security in employment and to demand more flexibility in the use and skills of labour."
At page 7, immediately prior to quoting with approval part of the passage of the judgment of Jenkinson J in Gregory v Philip Morris Limited, which I have quoted above, his Honour said :
"The question in this case is whether the employer gave due regard to all reasonable and fair considerations that the employee was entitled to expect as part of the employer/employee relationship that existed between them prior to termination of the employee's services. That is to say, acting fairly and having due regard to the interests of the employee, did the employer do that which could be reasonably expected of it in the circumstances to avoid the termination operating harshly, unjustly or unreasonably?"
His Honour then reviewed the evidence and, at page 8, concluded that the actions of the employer, "fell short of the conduct to be expected of a reasonable employer in the particular circumstances of this employer/employee relationship". Finally, on this aspect of the case before his Honour, Lee J said that, having regard to the steps that the employer, as a reasonable employer, should have taken and failed to take before implementing its decision to terminate the employee's services, the employer did not have a valid reason to terminate the employment of Mr Aitken.
In this case, in considering whether the termination of Ms Anderson's employment was harsh, unjust or unreasonable, it is appropriate to have regard to not only the final decision to terminate the employment, but also to the entire Regulation 86A process, which ultimately led to the termination of employment. This is because the decision to terminate was that of the Minister, who could only lawfully make such a decision, under Regulation 86A, if the pre-conditions to Regulation 86A(4) applying, occurred.
If, for example, there were two adverse reports before a Minister which, on their face, complied with Regulation 86A but, on an examination of all of the evidence by this Court, the employee proved that there were serious mis-statements of fact within the adverse reports, then the termination would have been shown to be (at least) harsh, unjust or unreasonable, in my opinion.
Furthermore, if the procedures through which a Regulation 86A process was implemented were lacking in fairness or reasonableness, then a teacher whose employment had been terminated for lack of efficiency may be able to prove that the termination of employment was harsh, unjust or unreasonable.
In this case, the applicant faces some difficulty in proving that the termination of her employment was harsh, unjust or unreasonable. This is because I accept that Ms Anderson was an inefficient teacher at the time that the third adverse report was written by the standards of the panel members; and further, the report was written by her principal and three of her peers. At least one of those, Mrs O'Brien, was supportive of Ms Anderson in her evidence, wherever she felt she could be.
However, to simply say that Ms Anderson was an inefficient teacher in December 1994 and that therefore the termination of her employment was not harsh, unjust or unreasonable is too simplistic, in my opinion. I think one needs to consider why Ms Anderson was then an inefficient teacher. In my opinion, the implementation of the Regulation 86A process directly contributed to Ms Anderson's inefficiency by undermining her status and capacity as a teacher. I think that Ms Anderson's self-confidence was substantially dented by the way in which the Regulation 86A process was set in train and implemented. This had the effect of exacerbating her defensive tendencies to the point that she was spending much, if not all, of her energies defending the Regulation 86A process, rather than proving that she could be an efficient teacher. That Ms Anderson had been an efficient teacher in the past was substantiated by the fact that she gained her permanency and is supported by, at least, the evidence of Mrs Gregory who, as I have said earlier, was a most impressive witness.
Whilst I have not found this an easy matter at all to resolve, on balance, I am satisfied that Ms Anderson has discharged the onus of proving that the termination of her employment was harsh, unjust or unreasonable.
If I thought that there was no prospect that Ms Anderson could again be an efficient teacher (by the standards of the Respondent), I would have either determined this issue against her or, in the alternative, not ordered reinstatement (see below). However, I am not satisfied of this, having regard to the fact that Ms Anderson gained her permanency, the evidence of Mrs Gregory, the evidence of Mrs O'Brien, Mrs Parker and Mrs Daley of what they observed in the classroom in their observations in term 4, 1994 and Mr Miles and Mr Frizzell's evidence of Ms Anderson's potential to be an efficient teacher. That evidence has been set out above. It has assisted my conclusion which is that the combination of a number of factors relating to the implementation and assessment of the Regulation 86A process, together with Ms Anderson's potential to be an efficient teacher, means that the termination of her employment under Regulation 86A has been harsh, unjust or unreasonable.
There are a number of factors relating to the implementation and assessment of the Regulation 86A process which are relevant in this context and which I set out below. The order in which they are set out does not reflect any ascending or descending order of importance. It is the combined overall effect of the items listed which has, together with her potential to be an efficient teacher, led in my opinion to the unlawful termination of Ms Anderson's employment. That is not to say that if less than all of the items set out below were not present, I would not have still found that the termination of employment was harsh, unjust or unreasonable.
In considering this matter, I have taken into account the very important role that school teachers have in our society. It could be said, with some force, that there are few less important positions. Therefore, it is essential that school teachers that have the responsibility of teaching primary school children are efficient teachers (whatever that means). This factor has weighed heavily on my mind. However, it has also weighed heavily that Ms Anderson graduated and received her permanency from the Respondent. She fulfilled all necessary requirements to become a permanent state primary school teacher. If the finding of dismissal on the basis of inefficiency were to stand, this would mean that she could no longer practise her profession. As she said in her evidence, it would be unrealistic to suggest that she could be employed at a private school, having been dismissed as a state school teacher on the grounds of inefficiency. Further, it would hinder her capacity for further employment as a nanny, child carer or tutor. The seriousness of the consequences for Ms Anderson, if the termination of her employment is upheld, is a matter which I consider that I must also have regard to. This factor is at least encapsulated within the content of the word "harsh".
Clearly, this is not a situation, unlike many cases which come before the court, where the simple fact that the person has lost their job does not mean that their chosen career is effectively at an end. This would, very much, be the case for Ms Anderson.
The factors which I have taken into account in deciding that, on balance, the termination of employment was harsh, unjust or unreasonable, in addition to those set out above, are as follows :-
(1)Mr Miles issuing the directive that Ms Anderson seek counselling when he had no authority to do so;
(2)Mrs Gregory's evidence that Ms Anderson was an efficient teacher when she taught with her in 1990, and her observations of the standard of Ms Anderson's programmes and documents when working with her in 1990, and also those that she saw in 1994;
(3)The fact that I found that there was no proper basis for the sending of the first adverse report. This meant that the Regulation 86A process, which was set in train by that report, was essentially off the rails from the outset;
(4)The fact that Mr Miles proceeded with the first adverse report, despite the fact that, as he knew, Ms Anderson made an appointment to see Ms Clements. Further, Ms Anderson kept that appointment.
(5)The fact that Mr Miles sent the first adverse report prior to the time period reflected by Exhibit A, the Ministry of Education document entitled Procedures for Grievance, Resolution, Complaints, Inefficiency and Misconduct; also, the fact that the guidelines were not otherwise complied with by Mr Miles; further, that, in my view, the process of completion of the assessment for and preparation of the first report was short, when compared with the guidelines in Exhibit A;
(6)The fact that Ms Anderson got no substantial written response to her detailed reply to the first adverse report;
(7)The fact that Mr Frizzell did not consider the references provided with the first adverse report;
(8)The lack of any oral feedback to Ms Anderson in light of her response to the first adverse report and the lack of a written response, of any substance, thereto;
(9)The lack of follow-up to Mr Miles' perception of Ms Anderson's interpersonal and communication problems; for example, the failure to encourage Ms Anderson to pursue the counselling session that she had with Ms Clements, or continue with such counselling;
(10)The fact that no-one acquainted Mrs Dagg at an early stage, with Mr Miles' perception of Ms Anderson's communication and interpersonal skills; also, that Mr Miles otherwise thought that Ms Anderson was potentially an efficient teacher;
(11)The fact that Mrs Dagg remained Chair of the panel for the third adverse report after allegations of bias had been made against her. This put Mrs Dagg in a very difficult position and, in my opinion, reflected upon the process which lead to the third adverse report. I say this, despite my finding that Mrs Dagg was not actually biased. It would have been more appropriate for the panel to have been chaired by Mr Betjeman or some other superintendant;
(12)The failure to remove Mrs Dagg from the panel after Mrs Dagg admitted to Mr Betjeman that she said to Ms Franklyn that Ms Anderson "had to go";
(13)The time allowed for the implementation of the performance appraisal which led to the third report was, in my view, too short to properly carry out the processes that should have been. (I make this comment, aware that each panel member said that there was sufficient time for Ms Anderson to show improvement. However, in this context, I note the time set out in Exhibit A referred to above. I also note Mrs O'Brien's evidence that things were "rushed" towards the end of the term.)
(14)The evidence of Ms Manders;
(15)The fact that Ms Anderson had made a strong contribution to Westfield Park Primary School prior to Mr Miles involvement at the school. I am referring here, in particular, to her work as a Maths Coordinator and other such matters.
(16)The implementation of the termination of employment.With respect to the Respondent's submissions and the authority referred to by the Respondent, cited earlier, I do not necessarily accept that the way in which a termination of employment is carried out cannot affect whether the termination is unlawful in the sense of it being harsh, unjust or unreasonable.
(17)The fact that Mr Frizzell in his draft to Mr Black which was then conveyed under Mr Black’s signature to the Minister, suggested that Ms Anderson had been recalcitrant in failing to carry out what was expected of her. This allegation was not specifically put to Ms Anderson as a reason why her employment should be terminated. It is, as I have found, clear that Mr Frizzell held this view. This ought to have been specifically put to Ms Anderson for her to respond to before such an allegation went to Mr Black or the Minister. I have mentioned that this constituted a breach of Section 170DC. [In view of my findings on Section 170DE, it is not necessary to consider what remedy, if any, would be appropriate if this were the only breach of the Act.]
(18)The fact that the third adverse report did not at all times accurately reflect the documentary or oral evidence of the opinions or beliefs of the panel members concerning Ms Anderson’s teaching performance.
(19)The failure of the Respondent as an employer to properly take into account that there may be understandable reasons why Ms Anderson was defensive in her attitude to judgment and criticism generally and to the Regulation 86A process in particular. This ought to have been discussed sensibly with Ms Anderson rather than just being a point of criticism of her. In my opinion, greater efforts should have been made to understand the reason why Ms Anderson was behaving in a defensive manner and assist Ms Anderson to try and overcome this. In my view, no-one took the opportunity to effectively try to manage this problem that Ms Anderson was, as a professional teacher, seen to have.
(20)The mere fact that Ms Anderson was an inefficient teacher in December 1994 does not mean she was an inefficient teacher before that and will be an inefficient teacher in the future. There are many professional people who have had periods of inefficiency during their careers. This does not mean that they are going to be inefficient for all time. In my opinion Ms Anderson was not given an adequate or proper opportunity to overcome her inefficiency. If the appraisal process of Ms Anderson had been less retributive, in the sense of always having a Regulation 86A termination hanging over her, there may have been far more scope for her to improve as a teacher. This is particularly so given that Ms Anderson had an understandable sense of injustice at the Regulation 86A process. This was because, quite rightly in my opinion, Ms Anderson believed that the first inefficiency report should never have been sent by Mr Miles, and if it was it should have been properly dealt with by Mr Frizzell after Ms Anderson’s lengthy reply to it. Ms Anderson's sense of injustice about the first adverse report coloured and affected her ability to be an efficient teacher, according to the standards of Mrs Dagg and the other panel members in 1994, and exacerbated her defensiveness.
(21)Overall, there was a lack of adequate management of the Regulation 86A process as a whole. Ms Anderson's reply to the first adverse report was not properly dealt with. Neither was her transition to Challis. No-one acquainted Mrs Dagg, at an acceptably early stage, that Mr Miles' major concern was with Ms Anderson's communication and interpersonal skills. There were no support structures put in place for Ms Anderson to deal with this perceived deficiency. There was no encouragement for Ms Anderson to follow up or continue with her counselling session with Ms Clements. This ought to have occurred if the employer was truly interested in assisting one of its professional employees in overcoming a deficiency noted by Mr Miles. The change to a broadbased and demanding appraisal process, as implemented by Mrs Dagg, served to exacerbate Ms Anderson's perceived deficiencies, rather than help overcome them. No-one in management stood back, looked at the alleged deficiencies in Ms Anderson's teaching, and decided on an appropriate strategy to bridge the alleged gap between Ms Anderson's then teaching performance, and something which the Respondent would regard as an efficient teacher. On the evidence, the responsibility to do this would have been that of Mr Frizzell or the Armadale superintendent at the relevant time. If this is so, then, ultimately, the responsibility for the failures of management rests with them.
(22)There was a lengthy delay between the third adverse report and Ms Anderson’s termination of employment. Even accepting the fact that the Education Department is a large bureaucracy, there was an element of unfairness in this delay, to Ms Anderson. I should say that I do not regard this as a matter of any particular substance, but should be mentioned as a matter which Ms Anderson was entitled to be aggrieved about.
Due to the above, therefore, I find, on balance, that Ms Anderson has discharged her onus of proving that the termination of her employment was unlawful in the sense that it was harsh, unjust or unreasonable.
In Burazin v The Blacktown City Guardian, unreported, IRCA 660/95, Madgwick J, 15 December 1995 at page 19, his Honour described the enactment of Part VIA of Division 3 of the Act as "sorely needed and curiously overdue in a nation that esteems itself justly in some other aspects, as the home of the 'fair go'". At page 20, his Honour said :
"Needed as the termination of employment provisions were, and necessary to such prosperity as proper labour standards are (employees and their dependants being the greater part of the nation), in Parliament's evident view, their introduction was bound to cause some disruption and some expense to a good many employers. A considerable change in their standards was wrought."
The management practices of the Respondent, a large state government employer of professional teachers, as reflected by the evidence in this case, are, most regrettably, not such as to ensure compliance with laws which give a statutory entitlement to an employee, to what Madgwick J has intimated is a "fair go".
16. REMEDY
The Respondent has submitted that reinstatement should not be ordered because it is impracticable to do so. Mr Frizzell gave some evidence about there not being an available position for a school teacher in Western Australia. He said, "...positions are tightly filled and closed. I mean, we have a long and strong waiting list, and I guess it would be a matter of at the time of what's available, but we certainly currently don't have a teaching force that has vacancies sitting in it. But, I mean, I couldn't give any more than a guesstimate of that." (587)
I find it very difficult to accept, and reject any suggestion that a place cannot be found for Ms Anderson, if this Court ordered reinstatement. The Respondent employs a vast number of school teachers and I cannot accept that a position could not be found for Ms Anderson, after the unlawful termination of her employment. Ms Anderson has sought reinstatement. In my opinion she is entitled to be reinstated. It would be inequitable, in my opinion, for the Court not to make an order for reinstatement. One reason for this is obviously that reinstatement is the primary remedy available under the Act (Section 170EE). And, although I have found that she was an inefficient teacher in December 1994, I have also found that there may be valid reasons for this (at least some of which were exacerbated by the conduct of the Respondent) and that the termination of employment was harsh, unjust or unreasonable. Further, I do not necessarily think that Ms Anderson will remain an inefficient teacher (by the Respondent's standards), given a less exacting appraisal process, time, proper management and a restoration of faith in her own ability.
In the recent decision of Davis v Nokia Telecommunications Pty Limited, IRCA, 217/96, 30 April 1996, Patch JR has reviewed a number of the authorities on reinstatement. Patch, JR extracted the following principles from the cases:-
1.Reinstatement is the primary remedy under the Act. The initial focus of the Court in respect of any decision as to remedy has to be on the question of whether or not it is impracticable to reinstate an employee whose employment has been unlawfully terminated;
2.Reinstatement is to be ordered unless the Court finds it impracticable to do so;
3.Impracticable means something less than impossible, but reinstatement will not be impracticable where it is inconvenient or difficult, without causing an unacceptable problem or unacceptable embarrassment, or seriously affecting productivity, or affecting harmony within the employer’s business.
Considering these matters, together with all of the circumstances of the case, as is required under Section 170EE(2) of the Act, I am of the firm view that reinstatement ought to be ordered. However, I think the order could be fashioned so that Ms Anderson is not employed at a school where Mr Miles, Mrs Humphreys, Mrs Dagg, Mrs Daley, Mrs Parker or Mrs O’Brien are members of the administrative staff or in an area where Mr Betjeman is the superintendent. I think this could potentially lead to disharmony and/or decrease the chances of Ms Anderson efficiently teaching, upon reinstatement. I think that Ms Anderson being employed at a school separate from these individuals would maximise her chances of once again becoming an efficient teacher. Subject to hearing submissions on the issue, I also think that the order of the Court could be that Ms Anderson be reinstated at a metropolitan school, close to her current address, so as to put her in a position analagous to that which she was in at the time when Mr Miles sent the first adverse report.
The order that I will make under Section 170EE(1) will be that the Respondent reinstate the Applicant by reappointing her to another position on terms and conditions no less favourable than those on which she was employed immediately before the termination. I will hear further from the parties on the precise terms of this order given my observations as set out above.
Under Section 170EE(1)(b) the Court may make an order to maintain the continuity of the employees employment. An order to this effect will be made.
Finally, whilst I can make no formal orders in this regard, I would also urge Ms Anderson to consider taking up formal counselling to try and deal with some of the communication and interpersonal deficiencies which Mr Miles had in mind when he began the Regulation 86A process. This may assist Ms Anderson in not being as defensive as she has been seen to be in the past and becoming, once again, an efficient teacher.
17. COMPENSATION
Under Section 170EE(b)(ii) the Court may make an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination. In my opinion it is entirely appropriate to make such an order. Ms Anderson has been largely out of employment since the termination of her employment. However, I do not have before me the precise figures of the remuneration that Ms Anderson has earned during the period following the termination of her employment. Therefore, I will need to hear further submissions and possibly evidence on this.
I will hear further from the parties in relation to the amount of compensation that will be ordered to be paid and whether it is necessary for the Respondent to deduct tax at the appropriate PAYE rate before paying the balance to the Applicant; see, for example, on this issue, The Taxation Implications of Statutory Unlawful Termination of Employment by Mitchell and Telfer, Centre for Employment and Labour Relations Law, Working Paper No. 3, August 1994 (1994) 7 AJLL, 227; Moreland v Optus Communications/Optus Mobile Pty Limited, unreported, IRCA 48/95, Patch JR, 28 February 1995 (affirmed by Wilcox CJ, IRCA, 701/95, 19 December 1995) Slifka v JW Sanders Pty Limited, unreported, IRCA 701/95, 19 December 1995, North J; John v Gunns Limited, unreported, IRCA 210/95, 18 May 1995, Northrop J; Reader v Wyndham Lodger Nursery Home Inc, unreported, IRCA 448/95, 8 September 1995, Marshall J, and Grant v Gurrendah Shire Council, unreported, IRCA 117/95, Moore J, 30 March 1995.
I will ask the parties to attempt to reach an agreement as to the appropriate figures before an order will be made. I will ask the parties to return to the Court at a later stage to advise whether this can be agreed, or whether further evidence and/or submissions is/are necessary. It will also be necessary for a precise sum to be calculated so that an order can be made which, if required, can be enforced by the Court. In endeavouring to reach agreement on this matter, the following should be taken into account by the parties :
1.Prima facie, the Respondent is to pay to the Applicant the amount which she would have earned between the date of termination of employment and the date of reinstatement.
2.The parties are to consider whether this amount should be at a gross or net rate.
3.Deducted from this amount should be any amount that Ms Anderson has received as remuneration between the dates referred to in 1. above.
4.Any other appropriate heads of compensation that can legally be awarded, based on the evidence heard to date.
I think it advisable that Ms Anderson obtain legal advice about these matters. I also indicate that the Court is prepared, through District Registrar Richardson, to assist the parties in negotiating an agreed compensation amount which, if and when agreed, could then come back before me to be made an order of the Court.
18.ORDERS
The Court will, at this stage, make the following orders and declarations:-
1.It is declared that the termination of the Applicant’s employment by the Respondent was unlawful in that the Respondent contravened Section 170DE of the Industrial Relations Act 1988.
2.The Respondent shall reinstate the Applicant by appointing her to another position on terms and conditions no less favourable than those on which the Applicant was employed immediately before her termination.
3.The employment of the Applicant is, for all purposes, deemed to have been continuous in the position in which she was employed before the termination of her employment.
4.The issue of whether any additional order should be made by the Court about the school where the Applicant will be employed upon reinstatement will be deferred, pending the receipt of further submissions from the parties.
5.The Respondent is to pay compensation to the Applicant pursuant to Section 170EE(2) of the Industrial Relations Act.
6.The parties are to make further submissions on the quantum of such compensation at a time and in a manner as the Court shall direct.
7.The amount of compensation will, when an order is made by the Court quantifying the compensation, be paid by the Respondent to the Applicant within 7 days.
8.Each party has liberty to apply to the Court on not less than 48 hours notice to the other party.
I certify that this and the preceding 198 pages are a true copy of the reasons for decision of Judicial Registrar Ritter as recorded in the transcript and revised by the Judicial Registrar
Associate :
Dated : 2 July 1996
APPEARANCES
The Applicant appeared in person.
Counsel for the Respondent: Ms C Paterson
Solicitors for the Respondent : The Crown SolicitorDates of Hearing : 13 December 1995,
7 - 9 February,
13 - 14 February
and 19 - 20 February, 1996.Date of Judgment : 2 July 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWI 1446 of 1996
B E T W E E N:
Jennifer ANDERSON
Applicant
A N D:
MINISTER FOR EDUCATION
Respondent
CORAM: Ritter JR
PLACE: PerthDATE: 2 July 1996
CORRIGENDUM
On page 3, line 8 of the Reasons for Decision, subheading (18) should read:
"Ms Anderson's Response to the Third Adverse Report"and on page 109, line 9, the heading (18) should read:
"Ms Anderson's Response to the Third Adverse Report"Susan Richardson
District Registrar
10 July 1996
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