Bronwen Martin v Beechworth Montessori Children's Group Incorporated T/A Beechworth Montessori School

[2017] FWC 3314

[2017] FWC 3314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Bronwen Martin
v
Beechworth Montessori Children's Group Incorporated T/A Beechworth Montessori School
(U2017/613)

COMMISSIONER WILSON MELBOURNE, 27 JUNE 2017

Application for an unfair dismissal remedy.

[1] This decision concerns the dismissal of Bronwen Martin from the position she held of principal of the Beechworth Montessori School.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Ms Martin’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

BACKGROUND

[3] Until 17 January 2017 Bronwen Martin was principal of the Beechworth Montessori School, having been appointed to the position only a year previously on 25 January 2016.

[4] The Beechworth Montessori School is an incorporated association managed by a Committee of Management (CoM), sometimes referred to as a board, with the committee comprised of representatives from the school community. The school is relatively small, with student numbers in the primary school fluctuating between 92 in February 2016 and 81 in February 2017. The school also has an Early Years Program, for 3 and 4 year olds, with 26 children in that program in February 2016 and 32 in February 2017. It employs approximately 20 or 21 staff, including those engaged in teaching roles.    1 The school follows the educational principles of Dr. Maria Montessori, which emphasise education of the whole child as well as self-directed learning.

[5] Evidence in this matter was given by the following people;

• Ms Martin, who was not only employed as principal, but was also a parent of one child attending the school at the relevant time, and Harry Bussell, a former CoM president, until his resignation on 27 October 2016, and a former parent of children at the school; and



• Six people on behalf of Beechworth Montessori;



• Dean Cleave-Smith, the current CoM president, since 7 November 2016, and having been a CoM member for just over 2 years and formerly holding the positions of secretary and treasurer, as well as a parent of one child attending at the school;



• Katherine Beaton, a current teacher at the school, now in her fifth year, as well as a parent of two children attending at the school;



• Jacqui Alessi, the current CoM secretary, holding that position for approximately one year, and a parent of two children at the school;



• Nadia Dean, a CoM member since October 2016, as well as a parent of two children attending at the school;



• Rachel Kerkvliet, the CoM vice-president since 11 April 2016, as well as a parent of three children attending at the school; and



• Susi Allen, a former teacher and principal of Beechworth Montessori, and its current acting principal, since 13 February 2017.

[6] Ms Martin’s role as principal, as set out in her job description settled at the time of her engagement, included a broad position objective as well as specific responsibilities and accountabilities;

“Position Objective

To provide outstanding educational leadership and stewardship that supports the Beechworth Montessori School's pedagogy. Supporting teachers to deliver an exceptional quality of education for students, and fostering strong community collaboration consistent with Montessori philosophy, values and practices.

Reporting Relationships

1. The Principal reports directly to the Beechworth Montessori School's Board/Committee of Management.

2. All teaching and administrative staff report directly to the Principal.

Accountabilities and Responsibilities

Consistent with Montessori philosophy and in accordance with the policies and strategic direction of the Board, the Principal is responsible for delivering leadership in the following areas as identified in the Australian Professional Standard for Principals, developed by the Australian Institute for Teaching and School Leadership:

1. Leading and teaching others

Prepare the School for effective teaching by leading, designing and managing the School's staff and environment to achieve optimal learning outcomes for students through:

• management and supervision of staff to ensure the delivery of high quality Montessori education;



• ensuring effective educational leadership exists in all aspects of the School's operation.

2. Developing self and others

Manage the continuous improvement of teaching and learning through:

• the recruitment of teaching, supporting and administration staff;



• conducting constructive formal performance appraisals of staff;



• assist staff in managing their professional development;



• managing own ongoing professional development.

3. Leading improvement and change

Produce and implement improvement plans and policies for the ongoing development of the School and its facilities by:

• participating with the Board in strategic planning and operational implementation;



• involvement in planning, direction, evaluation and control of the School's teaching and learning programs;



• maintaining operational Policies and procedures.

4. Leading the management of the School

Create and sustain conditions under which quality teaching and learning thrive through:

• managing day to day operations of the School;



• providing advice, information and reports to the Board on all aspects of the School's teaching and learning programs;



• complying with statutory requirements as relevant to the operation of the School and programs;



• manage and maintain the physical School environment;



• financial and budgetary management;



• developing effective marketing concepts and techniques for Montessori Schools and identifying opportunities to enhancing enrolments.

5. Engaging and working with the community:

Building and maintaining positive relationships with the School, staff, parent and wider community, including:

• coordinating parent involvement in and contribution to School operations;



• developing and promoting links between the School and the local community;



• liaising with relevant government and non-government agencies, the Montessori education community and the independent School sector as necessary to promote the optimal functioning of the School.

Functional Competencies

The Principal is expected to demonstrate the following Functional Competencies:

1. Leadership

• Align people, purpose and process with the School vision and values;



• Work with staff to develop educational programs in accordance with the mission of the School;



• Build, lead and manage a successful, motivated and cohesive team;



• Strong analytical and problem solving skills;



• Highly effective public presentation, oral and written communication skills;



• Respectful towards the component populations of the School community;



• Ability to demonstrate fairness, diplomacy, integrity and a sound rational approach to issues and problems.

2. Teaching and learning

• Excellence in supporting the development of teachers;



• Lead the School in developing its curriculum and pedagogy;



• Ability to keep abreast of trends and research in education.

3. Business acumen

• Understand financial' and compliance requirements;



• Development and implementation of strategic plans;



• Be results focussed and decisive.

4. Personal

• Energetic and passionate;



• Flexible, self-disciplined and organised;



• Resilient and cope well under pressure;



• Self-aware and take responsibility for personal development and growth;



• Commitment to the rights of the child through education and lifelong learning.

5. Professional

• Relevant academic qualifications;



• Relevant School leadership knowledge and experience” 2

[7] Ms Martin’s employment was also subject to a contract of employment, which included a Total Remuneration Package of a base salary and superannuation, which totalled $123,512 per year, together with a salary packaging benefit of $10,000 per year. The actual Total Remuneration Package, comprising all elements, is set out in a schedule to the contract as $133,512 per year. 3 The contract also provides obligations about conduct, termination of employment by either party and certain employee obligations;

“12 Conduct

12.1 The School expects that the Principal will behave in a manner considered appropriate for business purposes in the exercise of the duties as Principal. It is expected that at all times the Principal will conduct themselves in a professional, diligent and considered manner. Where after conducting an investigation, the School is satisfied that the Principal has acted in a manner which is contrary to the interests of the School or that constitutes a failure to exercise the necessary judgement required in the course of the required duties, the School reserves the right to terminate the Principal's employment in accordance with the termination of employment provisions contained in this contract.

12.2 None of the above is intended to limit the ability of the School to summarily terminate the Principal's employment without notice where satisfied as a result of an investigation that the Principal has engaged in serious misconduct.

13 Termination of Employment

13.1 Resignation

13.1.1 Resignation from this position requires (3) months notice in writing.

13.1.2 In the event that less than (3) months notice in writing is provided, the School may withhold monies and benefits due, equivalent to the period of notice not provided.

13.2 Termination by the School

13.2.1 The School may terminate the employment relationship and the contract of employment by giving (3) months notice in writing or part or full payment in lieu of notice.

13.2.2 In the event of serious misconduct, the School will terminate the employment relationship and contract of employment without providing notice.

13.2.3 Within the first 3 months of employment the Principal or the School can terminate the employment relationship and contract of employment with one weeks notice.

14 Employee Obligations

14.1 As an employee of the school the Principal must:

• devote the whole of their time during your hours of work for the School to your duties to the School,



• serve the School faithfully and diligently to the best of their ability,



• act in the School's best interests,



• support the School and conduct themselves in a way which is consistent with the ethos of the School,



• comply with all lawful and reasonable directions of the School,



• comply with all law applicable to their position and assigned duties,



• where requested agree to any reasonable request to be examined by a medical practitioner nominated by the School who will provide a report to the School and held confidentially within the Principal's employment records, and



• not engage in any other employment or business without the prior approval of the Committee of Management President. Approval will not be unreasonably withheld.

14.2 The School reserves the right to commence disciplinary action in accordance with any of its policies and/or procedures should the Principal not comply with any of the employee obligations set out above. Disciplinary action may include termination of employment.” 4

[8] Prior to commencing work at Beechworth Montessori School, Ms Martin had an extensive history as an educator in private and public schools in Victoria, New South Wales and South Australia. However, she is not a qualified Montessori educator and had not previously worked in a Montessori school. Prior to being employed by the Beechworth Montessori School, she had been principal at a public primary school for four years and one term. After moving to Beechworth in early 2005 and living there for some years, she enrolled a child in the Beechworth Montessori School and so gained context of its work, educational style and environment from being a parent in the school. Ms Martin had also been at an earlier time the member of the school’s inaugural committee of management when it commenced operations about 10 years ago. 5

[9] Ms Martin’s employment at Beechworth Montessori School coincided with significant challenges within the school and she was ultimately considered by the CoM to have mismanaged those challenges and failed to show appropriate leadership to the point that the CoM considered in late 2016 her future employment to be untenable. For her part, Ms Martin defends her decision-making and is critical of the CoM for what she perceived as an unjustified lack of support for her decisions in her role as principal.

[10] In the year Ms Martin was employed the CoM had three presidents; Karen Smith, until 22 March 2016; 6 Harry Bussell from March 22;7 and Dean Cleave-Smith from 7 November 2016.8 The period in which Ms Smith was president was, it seems, largely uneventful so far as Ms Martin’s employment is concerned, however the period of Mr Bussell’s and Mr Cleave-Smith’s presidencies coincided with periods of comparative tumult and rancour, regarding both Ms Martin’s employment as well as elements of the behaviour of staff, parents and the CoM.

[11] One of the strengths of the Beechworth Montessori School may be that it functions, to some extent at least, as a community. Parents may be employees at the school as well as members of the CoM. Staff and parents feel free to raise their concerns on any matters, including employment matters, directly with CoM members who appear not to actively deflect or discourage things being progressed in that manner.

[12] Ms Martin experienced how this may work in February 2016 after being employed for only a short time;

“49 I recall that in Term 1, 2016 on the advice of Howard Russell, I commenced discussions with one staff member, Sally Richardson, about her holiday working arrangements, Sally then attempted to ‘leap frog’ me to the president, saying words to the effect that she was “having troubles” with me. I recall that Karen Smith, as president, actively directed Sally to work with me, as I was trying to consult and work with her.

50 I found Karen Smith’s approach in this situation very thorough and supportive, and as I would expect when the intent is to build a strong, trusting, curious and mutually supportive relationship between president and principal. Over subsequent weeks, Karen Smith had several conversations with me about the issue, and checked in with how things were going and what I was doing, offering appropriate advice. Karen refrained from involving herself directly with Sally, in spite of Sally’s attempts to directly involve Karen, and Karen was supportive but appropriately guiding of my approach.” 9

[13] An environment such as this could be thought to have a greater level of complexity for a frontline management role than might usually be considered the case. While so, it is hardly an unusual environment: many forms of organisation, large and small, private and public, corporate and community will sometimes operate with alternative access channels to those mandated by formal organisational charts and governance arrangements. The CoM itself identifies that such a situation may arise, and provides guidance to its members, or prospective members, in its Board Information Pack 2016, which “sets out information about how the CoM works”. 10 Part of the guidance is an acknowledgement that board members may feel passionately about a matter, together with the provision of strategies to members about how they deal with such a situation;

“11. There is a pressing issue I believe should be discussed at Board level. If I join the Board, will I be able to get my issue addressed?

You should not join the Board if you are doing it because you are passionate about a single issue to the exclusion of all others. You should only nominate for the Board if you are interested in participating in the management of the school as a whole and accepting the responsibilities that come with that.

Having said that, you will certainly be able to participate in robust discussion on a number of topics and you will be able to request items to be added to the agenda. What we do ask of Board members, however, is that they use their Parent Hat and Board Hat as appropriate.

*EXAMPLE: I AM CONCERNED ABOUT CARS DRIVING TOO FAST IN THE CARPARK.

With my Parent Hat on, I can let the Administrative staff know so they can advise families on the appropriate speed for the carpark.

With my Board Hat on, I can ask this to be included as an item for discussion as it relates to a safety issue for the community as a whole.

*EXAMPLE: I AM CONCERNED ABOUT SOMETHING IN MY CHILD’S SOCIAL GROUP AND I FEEL THE CLASS DIRECTOR IS NOT DEALING WITH IT APPROPRIATELY.

With my Parent Hat on, I can talk to the Director directly. If I’m not happy with the response I receive, I can talk to the Principal. If I’m still not happy, I can, as a Parent, put my matter forward to the President of the Board.

With my Board Hat on, if the matter is brought to the Board by the President, I will declare my conflict of interest and participate in discussion as the President deems appropriate.” 11

[14] By June 2016, the CoM presidency had changed – from Ms Smith to Mr Bussell, with whom Ms Martin also had a constructive relationship.

[15] Within the same period the CoM had adopted a 10 year financial forecast which provided for a significant expansion in the school. 12 This provided for an increase in enrolments in the primary school from 93 in 2015 to 112 in 2021, and that number continuing until the end of the planning period, 2026. The Early Years enrolments were forecast to decline from 35 in 2015 (and they had been at higher levels in earlier years) to 30 from 2017 to the end of the planning period. Total Income was expected to rise from $1.53m in 2015 to $2.4m in 2026 and Net Cash Flows (Total Income less Total Expenses) were expected to initially decline from $85,174 in 2015 to $36,897 in 2016 and then rise and fall in the out-years, but eventually be at $119,159 in 2025.

[16] While ambitious, there is no evidence before the Commission that would suggest the 2016 – 2026 forecasts were not achievable at the time they were adopted. In fact, to the contrary, the evidence suggests the forecast was founded in fact. Given the known waiting list for certain of the school’s classes and actual Early Year attendances, the forward school enrolments were considered achievable.

[17] The school also expected to construct a multipurpose hall to be funded through a principal/interest loan.

[18] Not unexpectedly the school is reliant for revenue generated almost entirely from its enrolments. Parents pay fees to send each child to the school; and the state and federal governments fund the school according to a formula that is heavily influenced by enrolments. School “censuses” of actual enrolments are conducted in February and August of each year. The August census determines the funding to be provided to the school from the government funders. Simply put, fewer enrolments means lower revenue, both in the current and forward years, unless more children can be attracted to the school in those later years.

[19] By midyear tensions arose in the relationship between staff and Ms Martin and the members of the CoM and Ms Martin. Mr Cleave-Smith gave evidence that;

“…by about April 2016 there were already signs of change, whereas previously the Principal’s office door was typically left open, it was now often closed, Bron was less present in the foyer around pickup and drop off times and in early May a reflective privacy film was installed on the Principal's office window which opened out to the school foyer. Bron’s interpersonal style also appeared to me to be changing, and she often looking hurried, tired and anxious” 13

[20] When he queried the matter of the privacy film with Mr Bussell, then the president, he thought his concerns were dismissed and when he “checked in with Bron in the following days and queried the need for privacy film and she said something along the lines of - "there are too many distractions".” 14

[21] Nadia Dean, a CoM member from November 2016, gave evidence that she did not think Ms Martin had handled the progression of her son in the school as well as she should have and that Ms Martin had not communicated important matters about her son to her, noting that in respect of this criticism Ms Dean does not differentiate blame for her concerns much between Ms Martin and another senior teacher, Karen Bowey. Overall she felt that Ms Martin wanted to exclude her son from the school. 15

[22] Late in June 2016, the relationship between all concerned suffered a serious setback. First on 21 June 2016, the Assistant Director (or assistant teacher) in the Cycle 2 “Moonstone Room”, Sally Richardson, resigned from employment. Later the same day Ms Martin dismissed the director of the Moonstone Room, Khy Grayling.

[23] Ms Richardson had worked for the school for a number of years and, on some of the evidence, her resignation was a shock to some. However, although her resignation and its timing may have been unfortunate, it was not a surprise to Ms Martin, and likely others, since on Ms Martin’s evidence, Ms Richardson had told her in February 2016 that she wanted to resign, to which Ms Martin replied that she would not accept a verbal resignation.

[24] When Ms Richardson resigned, she sent an email to the Moonstone families setting out her reasons for the resignation;

“Dear Moonstone families,

With a very sad heart I resigned my position as classroom assistant to Bronwen Marten on Tuesday.

My Montessori journey began twenty years ago when my daughter started at Margaret River Montessori. I have 11 years experience as a parent, volunteer and board member at that school. In 2010 I obtained an International Montessori Teaching Diploma and have spent the last six and a half years as classroom assistant at Beechworth Montessori School working with some amazing, inspiring, passionate educators. I have loved every day working in a Montessori environment at Beechworth Montessori School. The joy and beauty of your children has made for more job satisfaction than I would have thought possible. The gentleness and kindness of a workplace placing great value on grace and courtesy has made me feel at all times respected and valued. It is with these thought in mind that I have resigned. I am no longer able to marry my beliefs and passion for Montessori with the practices of the current school leadership. I cannot continue to work in the environment subsequently created by this leadership.

I shall miss you all but have so many wonderful memories to take away. I wish you all well for the future.

Kind regards

Sally Richardson” 16

[25] Having received Ms Richardson’s resignation, in an unconnected decision Ms Martin dismissed Ms Grayling. She did so after seeking advice from Independent Schools Victoria and consulting with the President, Mr Bussell. The advice had been sought over some weeks and Ms Grayling’s dismissal was timed for 21 June 2016 so that the date of effect of the termination would be within the applicable minimum employment period, which was six months.

[26] The combined effect of these two staff movements was immediate and incendiary.

[27] Some staff and parents dissented, making their dissent widely known. The CoM sought to call Ms Martin to account for what had happened. Whether directly or indirectly the circumstances of Ms Grayling’s dismissal and other events eventually led to a motion in October 2016 for the President, Mr Bussell, to be removed, who in any event resigned. The circumstances of the resignation of one employee and the dismissal apparently for cause of another are also the point from which members of the CoM, and the school itself, argue that departures of several families from the school may be dated. The circumstances became so emblematic of questions about Ms Martin’s leadership they still resonated and reverberated in the hearing of this matter more than 10 months after the events.

[28] Ms Grayling was mostly diplomatic in her communication to the school community about her loss of employment, referring to her contract not being renewed;

“Khy Grayling

Dear Moonstone Families,

Today I am writing to you with a very heavy heart: I doubt that you are aware that I have been on a contract while working in Moonstone room - and yesterday I was informed that this contract will not be renewed, due, among other reasons to 'philosophical differences'.

I am completely devastated by is piece of news -far too distressed in fact to return for the final few days of term.

I am a qualified and experienced Montessori teacher; I have spent many days attending workshops and seminars and observing in other Montessori schools - in case there is any doubt (and doubt will be cast) in your minds, I have at all times placed your children and the Montessori philosophy at the centre of everything I have done.

I would like to thank you for the opportunity to work with your children and families - as they are our future, then the future is full of great promise. Tell them gently how much I have cared for them and how sad I am to not say goodbye.

Enjoy your break,

With love,

Khy” 17

[29] While Ms Grayling’s communication was muted, professional and measured, it stands in contrast to that sent to the CoM by Wiggy Brennan, an assistant in the Cycle 1 & 2 room, who was critical of the decision. She was unguarded in her criticism to the CoM – the departures of Ms Grayling and Ms Richardson led to it being an “appalling and tragic week”; the school had not adhered to its Montessori philosophy; and the school was becoming just another small country primary school;

“Dear Harry, Rachel, Jacqui, Mat, Dean, Zoe, Penny, Pamela, and Anthea, (I hope thats all of you!),

This week we lost 2 dedicated and amazing staff members. One harried into resignation and the other sacked without notice. Both these women were extraordinary Montessorians in their love and understanding of the philosophy and their ability to practice it in the classroom. This year alone both had poured considerable personal funds into furthering this knowledge of Montessori practices and the teaching strategies required to support the unique needs of the children enrolled in their room including dyslexia training. Finding qualified staff to equal these two women, who understand and embody the Montessori philosophy and have the expertise to meet the individual learning needs of the Moonstone families whilst satisfying the expectations of their families will be, in my opinion, an impossible task.

We have a beautiful philosophical basis on which all decisions about our school should be based including organisational management and personnel decisions. In short, everything the school does should be tested against the philosophy to ensure that it is the right thing to do. Clearly this has not occurred.

It has been an appalling and tragic week for our school staff and the community and I recognise it must be especially hard for those of you who are parents with children in (what was) the beautiful Moonstone room. So I'm writing to ask that you dig deep and reflect on what has happened and ask yourselves what direction the school is taking, how much of the Montessori philosophy and practice is being diluted and homogenised, and what ultimately will be left that differentiates it from any other small country primary school.

I have lost two treasured colleagues. These holidays I will not "laugh, rest and have fun."

Yours,

Wiggy” 18

[30] At least one other member of the school staff, Ms Quealy, complained directly to the CoM. In her correspondence, and in connection with Ms Grayling, Ms Quealy said that;

“We are a teaching team and have always supported each other, and therefore I am personally devastated by the ruthless treatment that Khy has been subjected to. This after she personally funded additional training attending the MWEI maths workshop and Multi-Sensory Professional Development, at a huge cost to herself. Our school management has inflicted a wound that will not heal for a long time.” 19

[31] Further, she expressed the view that in regard to Ms Richardson’s resignation that she was “flabbergasted that this has happened and that our leadership has not shown the skills to resolve what appears to be a conflict of personality.” 20

[32] Finally, she let the CoM know her views about what it should do as well as asking for its thoughts and actions;

“The treatment of our two co-workers has affected the families, children and staff of this school deeply. This was evident on the tear stained faces of families outside the Moonstone room during the last week where parents were grappling with what had happened due to poor and secretive communication. Parents at the transition meeting were lied to about Khy’s absence when they were told she was ill. Those parents are now angry, rightly so. The focus for this year was to rebuild our community, support and give staff a voice and create open and transparent communication within all groups. The sacking of Khy and resignation of Sally has shown this isn’t happening. It has damaged our school name, community and parental trust. I acknowledge that many of you feel the pain as you also have children in the Moonstone room.

It has taken years to build up the level of expertise needed to run a Montessori School. From our first year with 14 students in 1997, through to the beginning of our school and on to our move to the new premises we have continued to consolidate our knowledge of educating children in this unique philosophy. Finding trained Montessori educators, be they teachers or assistants has never been easy. That makes the events of last term even more unfortunate.

How is the committee going to respond to these events? Will they be brushed under the carpet or will we see clear and transparent communication? Judging by the number of emails and comments I have received from our parent community and even our past community there is a lot of anger abounding. Why is it that staff have been left to cope with the out pouring of grief when the decision makers where clearly invisible. How do we as a community bind together after this? How long is it until staff start considering whether this is the type of workplace they want to contribute to? This is not a threat, but it is a reality.

I want to work in a vibrant, inclusive school where we are able to resolve conflict with dignity when it arises. Where all children, families and staff have a voice. Where all decisions both within the classroom and school community are made with the Montessori philosophy at heart. How can we achieve this? I look forward to hearing your thoughts.” 21

[33] Ms Grayling’s dismissal especially took elements of the school community by surprise. Karen Bowey, the assistant principal, was in the meeting in which Ms Martin dismissed Ms Grayling and exchanged text messages with Susi Allen on the subject. At the time Ms Allen was a community member, consultant and former teacher and principal of Beechworth Montessori, and she is now the acting principal. The text messages were exchanged during the morning of 23 June 2016. They show that Ms Bowey thought parents and staff were shocked and that “it is taking a very heavy toll on everyone”. Ms Allen referred to the news as being awful and likely to have an appalling effect on the school, as well as it being a nightmare;

• Sent by Ms Allen to Ms Bowey on 23 June 2016 at 10:40 AM; “What’s happened?”



• Ms Bowey to Ms Allen on 23 June 2016 at 12:16 PM; “Sorry assumed Sally would have told you..Khy’s contract not renewed, Sally resigned”



• Ms Allen to Ms Bowey on 23 June 2016 at 1:20 PM; “Oh my god! That’s awful! SHIT! Sally will be too upset to talk to me. That could have an appalling effect on the school! When did this happen? How have parents reacted? And other staff?.”



• Ms Bowey to Ms Allen on 23 June 2016 at 7:53 PM; “Khy was told Tuesday afternoon, Sally quit Wednesday. Parents shocked, staff shocked, students were leaving Moonstone and no doubt more will leave with the fall out. Can’t say too much without breeching confidentiality but it is taking a very heavy toll on everyone. I am feeling quite positive for Sally as I think she will head back to WA and she has given to much for so long it is time for time for herself. Khy I’m not so sure … messy disputes ahead.”



• Ms Allen to Ms Bowey on 24 June 2016 at 9:22 AM; “Oh Karen this is a nightmare. I have just sent Sally a message and I’ll email Khy. I didn’t think it would be this bad. I thought Khy would be offered support to help her along a difficult path. As for Sally I agree it is time for her to find happiness elsewhere. She has been treated badly by the management of the school for way too long. as I said to Terie remember self preservation and love.” 22

[34] It is noteworthy from the foregoing exchange that the departure of Ms Grayling, or at least some sort of performance management of her, did not seem to be news to Ms Allen. The last text from Ms Allen alludes to her expecting some difficulties for Ms Grayling, although perhaps not termination of her employment, but nonetheless of Ms Allen having an expectation that Ms Grayling would require “support to help her along a difficult path”.

[35] The CoM sought an explanation from Ms Martin about why she had acted as she had. Mr Bussell, then president and who had been consulted by Ms Martin about the dismissal, appears satisfied of the explanation, but other members were not. A long letter from Ms Martin detailing her perspective of the circumstances of Ms Richardson’s resignation and Ms Grayling’s dismissal was read out by Mr Bussell at the CoM meeting convened on 4 July 2016. The meeting had been convened at short notice and for the specific purpose of discussing the two staff departures. While, according to Ms Martin, it is the case that a principal would ordinarily attend meetings of a school’s governing body, on this occasion Ms Martin was specifically requested not to attend. 23

[36] The correspondence from Ms Martin read out to the CoM set out that she noted the CoM was holding a confidential meeting when she understood herself to have full responsibility for the school staff. In connection with the matter of whether she would disclose information about the staff departures, Ms Martin gave this explanation to the Committee;

“I would like to make you aware of the following facts.

• It is expected practice for a Principal to maintain confidentiality, therefore a principal would not be discussing the specific details of conversations that the Principal has had with staff



• The outgoing President Karen Smith, made it clear that she saw an important part of my role, was re-instilling a culture of professionalism, in addition to appropriate confidentiality in terms of staff management.” 24

[37] The correspondence also noted about Ms Richardson that she had initially sought to resign in February and that when she did resign she did so by email without informing Ms Martin personally. 25 The correspondence further set out that in Ms Martin’s opinion Ms Richardson avoided her after resigning, despite Ms Martin wanting to discuss the matter. She also set out that after responding to Ms Richardson by email on 22 June 2016, Ms Richardson then accused her of not having responded to the resignation, with her informing the CoM about the claim that;

“Sally resigned, via email, rather than seeing me in person, in the middle of the day on Tuesday 21 June 2016. She is formally still employed by the school until July 19, 2016, though I am of the understanding she will not return. (Though Sally has not informed me of this herself). Whilst I briefly saw Sally's resignation on 21 June, before meeting with a parent about the placement of her child in a Cycle 3 room that afternoon, I did not respond to it, and only quickly read it. I responded to Sally's email, on Wednesday 22 June at 8.40am, and then tried to speak to her to let her know I had received it, and responded to it. Sally would not stop to talk to me, and kept walking (I believe Feona witnessed this) and then on Thursday 23 June in the presence of Rachel Kerkvelit, maintained that I had not acknowledged her resignation. At which point I looked for my reply (which was not straight forward to find) copied it to her and provided Jacqui, Rachel and Sally with a copy of the original response which was dated 22 June as "sent.".” 26

[38] Ms Martin put forward that at various times since February 2016, Ms Richardson had been disrespectful and rude to her and that other unnamed staff had suggested she give Ms Richardson a warning about her conduct. In relation to Ms Grayling, Ms Martin gave this information, again noting that it was only read out to the CoM meeting;

“RE: Khy Grayling (Moonstone Director)

I am aware that my decision not to extend Khy Grayling's employment beyond her probation period is also to be discussed by you, and that again, statements made about me by some teachers and parents are causing you concern. I note that, it has previously been relayed to me, that one of the parents speaking to you, was also instrumental in the decision to appoint Khy over another applicant in the first place and applied significant pressure at the time.

As I explained to one staff member, who asked for a briefing, and commented to me that she hoped that "process had been followed," I would be crossing a line, to give a full briefing to other people. I would also hope that it would be assumed, that I took advice and acted to follow processes in line with that advice from professional educational bodies.

However in light of statements that I know are being made about me and my leadership, I wish to, without giving specific information of names, make you aware of the following.

1) This was not a simple, quick or knee jerk decision

2) Over the course of the semester I either directly was given information, or was informed by our Enrolment Officer of extremely strong expectations from parents of 20% of children due to transition from Cycle 1 to 2 that their child was to be in Turquoise and not in Moonstone.

3) Over the course of the semester, I had parent meeting/discussions with at least 20% of parents with children currently in Moonstone, several of which stated pretty well categorically that their child was to transition out of the room by the start of Term 3, 2016. I also had discussions with one parent strongly requesting that a child was moved to Turquoise from Moonstone, a request that we were unable to accommodate.

4) I had numerous parent meetings and/or discussions in the lead up to NAPLAN around Khy's views of and preparation of their children (or not) for these assessments.

5) Both the Assistant in Term 1, and some parents in Term 2, inferred or stated explicitly that it was the Assistant rather than the Director in Moonstone, that was monitoring and on top of what children could and could not do, and matching children to work.

6) As the majority of the above situations occurred I had discussions with Khy, and have notes these.

7) In addition, I organised for the other Cycle 2 Director to offer her assistance and also for support to be programmed into the room (and all rooms) to support assessments to be completed prior to reporting. These supports were not fully utilised by Khy, and subsequently her planning to complete assessments did not ensure they were completed before the reporting period, which was the purpose of providing the support

8) Following the meeting which myself, Harry as President, Karen as Khy's support person and Khy attended on June 21, 2016, it was Khy who chose to leave promptly, rather than see out the probation period. She was and has again been offered payment for a number of professional counselling sessions.

9) I consulted about the decision to cease Khy's employment after the conclusion of the probation period, over a number of weeks with ISV, and also with our President. I

acknowledge the great work she did with the creation of the habitat, discussed this with ISV and reiterate I did not make the decision lightly. 27

[39] As an explanation of the reasons for dismissal of Ms Grayling, what Ms Martin set out may be summarised as her being motivated to act for reason of parents being insistent their children move out of Ms Grayling’s room by Term 3; parents expressing concerns about Ms Grayling’s preparation of their children for NAPLAN testing; and the perception of some parents that it was Ms Richardson who was more on top of their children’s educational progression and needs.

[40] The correspondence also addressed Ms Martin’s perceptions of claims, circulating by then, that Ms Martin was insufficiently “Montessori” and was damaging the integrity of the school. She reminded the CoM of her long history with the school, including being a founding board member; her educational qualifications and respect for Montessori principles; as well as the action she had taken, as principal, to reinforce the school’s adherence to an application of Montessori teaching principles.

[41] Following the CoM meeting on 4 July 2016, the committee wrote to Ms Martin. The correspondence was in respectful and firm tones; the CoM respected Ms Martin’s decision-making but encouraged dialogue with her on matters of mutual concern;

“Dear Bronwen,

As you are aware the board met today to discuss points raised by some members of staff and parent community in relation our school. The President tabled your letter and a single copy was read to those attending, as requested no copies were retained by members. Given the nature of your letter we feel it's important to provide some insights as to our meeting.

At no point was the intent of the meeting to discuss the process or management decisions leading to the termination of Khy Graylings contract or the resignation of Sally Richardson. The board is confident that due process and consideration was made in relation to the termination of Khy's contract. Additionally, the board fully supports management's approach to address salary anomalies and gaps in required HR records and, like you, find it disappointing that Sally took affront to these discussions as this seems to be the major factor contributing to her resignation.

Instead, the focus of our meeting was a round table discussion on the views and concerns of staff and the community that has surfaced as a result of an outpouring of emotion from Khy and Sally leaving the school. It's not unusual for these types of events to bring other items to the surface, however in these circumstances we believe the school can only benefit from both managements and the board's attentive ear. The key take-outs from our discussion were;

• a feeling by some staff that they are not being heard



• a cultural divide amongst staff around qualifications and individual values and philosophies around Montessori education



• principal workload around leadership, administration, governance and community



• the high degree of workforce change management required around culture & leadership



• parent community beliefs around the transition process



• communication process to staff and parents around staffing / key changes

Our meeting was not about solutions, but developing a shared understanding of the contributing factors. Our belief is that most of these issues have been present for quite some time and whilst incremental improvements may have been made, to varying degrees they remain unresolved.

We agreed that the agenda for our next Board meeting will be revised to ensure adequate time to discuss and agree how we can collectively start working through the various issues as we want to ensure the school is a harmonious and enjoyable environment for both staff and students. In support of this we are developing a brief communication and online-survey as means to obtain feedback from all members of staff. We would like this to be sent out before the start of term and ideally would be sent from you. Harry will discuss this with you over the course of the week.

Regards,

Beechworth Montessori

Committee of Management” 28

[42] The day after the CoM meeting, on 5 July 2016, Ms Quealy sent her letter to the CoM. 29

[43] Ms Martin was then concerned about the requirement to undertake a staff feedback survey. Having first spoken with Ms Martin on the subject, Mr Bussell then emailed CoM members about Ms Martin’s concerns, with Mr Cleave-Smith’s statement recording the following;

“29. On 6 July 2016 the CoM received an email from Harry advising us that Bron had telephoned him and expressed how angry she was with him due to the staff survey. Harry went on to state-

"By the conclusion of this long conversation I agreed with her that we, as a Board, cannot and will not send out a survey or letter without proper consultation between ourselves and the Principal first. This will have to occur at our next Board meeting, scheduled for next Thursday, 14 July. This is a basic summary of our discussions. So please note: at this point there will be NO surveys and NO letters sent to any staff. Instead, please gather your thoughts and bring them to the next Board meeting."

30. Bron’s refusal to accept that the CoM had a basis by which to survey staff and parents is in direct conflict with the Board Information-Pack / Handbook. Bron also incorrectly asserted in her Principals Report dated 18-August that survey responsibilities were defined in the principals position description, Bron stated, under the section titled Survey instruments that these fall “within the portfolio of the principal’s role description”. The Principal's position description makes no reference to surveys.

31. Bron's response to this CoM initiative was met with dismay by many CoM members and as a CoM we could see a reputational crisis developing within the school community. We believed that we had taken proactive steps to assist the situation and in doing so had put forward a solution that would take some ‘heat’ out of the situation. However, Bron failed to recognise or accept this was the case. As a result, we transitioned into Term 3 with a very high level of staff and community distrust and frustration around the handling of the events at the school.” 30 (original emphasis omitted; reference omitted)

[44] The CoM meeting on 14 July 2016 reaffirmed the decision to survey staff, with Ms Martin asked to consult with staff about suitable questions. The decision to conduct a staff survey was the subject of discussion between Ms Martin and Mr Bussell, with Ms Martin being concerned about the way in which an informal survey could be misused, with it potentially focussed on questions specifically about her. 31

[45] A further confidential meeting of the CoM was held on 29 July 2016, at which perceptions of Ms Martin’s performance were aired including her adherence to Montessori methods of teaching. Correspondence from a founding and current staff member of the school, Michaela Rouch, was tabled at the meeting. Ms Rouch’s correspondence included her view that the ramifications of the departures of Ms Richardson and Ms Grayling had affected many in the community to a greater or lesser degree and that;

“It has altered the atmosphere of the school with some staff watching their back, some shutting down not game to speak out and some continuing with business as usual. Some children have been withdrawn, some families considering withdrawal and some staff considering leaving. It shows poor judgement as Sally’s resignation was sent that morning and Khy was terminated that afternoon, completely dismantling a room, letting both children and parents down, as was observed on the last day of term.” 32

[46] Ms Rouch also put forward that there appeared to be a lack of awareness of the fallout Ms Martin’s actions would have; that Ms Martin lacked certain understandings about the Montessori pedagogy; and that the CoM should “look at those things that truly matter in our community and begin to work together in the direction people want to go in. This begins with actively listening to our families, teachers and most importantly our children”. 33 Ms Martin considered the correspondence, which she saw briefly, to be quite critical of her;

“On 29 July 2016 (the evening after the second in-camera meeting), Michaela Rouch wrote to the CoM. Harry gave me a copy of the letter to read, the following week, from memory. In it Michaela spoke very negatively about me, and my decision about Khy, inferring I did not operate with love or understand restorative practice or Montessori pedagogy. She also made references to another staff member’s health and capacities in her letter and asked what was happening in terms of my performance review, inferring that perhaps I should not pass it. I was very hurt and affected by Michaela’s inference I did not know how to love. It caused me significance sadness and emotional distress. Somehow, it really touched a nerve.” 34

[47] The reference to Ms Rouch’s letter touching on Ms Martin’s own performance review appears to be a connection with a passage in which Ms Rouch calls on the CoM to consider the effects of the Grayling/Richardson departures;

“I understand that Bron has walked into a new situation and needs time to adjust and mentoring in the Montessori philosophy, as well as assistance in peaceful resolution. I believe we have all helped her as best we can but her decision regarding Sally and Khy has dented my trust in her judgement, particularly as some parents have been told that both Sally and Khy wanted to leave.

Why are parents being told this mistruth?

There appears to be a lack of awareness of the ‘fallout’ her actions would have, indicating ignorance about the value of teacher/child relationships that are an important part of what Maria Montessori calls, ‘the dynamic community’ that is created in the prepared environment which is our greatest asset and teaching tool. One so valued by many staff that we have been asking Bron for a whole staff meeting so we can explore this in greater depth together, benefitting Bron as well. Unfortunately it has been pushed back on the staff agenda again until week 8 in term 3.

My question is; ‘Was Bron put on a probationary period too when hired?’ Is this something the committee should consider for future reference?

In a small town I believe to achieve credibility you have to ‘walk the talk’ but you need to understand the culture or language spoken to be able to do this, something Bron does not understand about the Montessori pedagogy. Our values are tested in our daily interactions with the children we teach and their families both in the school and unfortunately outside the school environment. I believe the principal should drive the agenda of the board that represent our Montessori community- those who pay our wages and school expenses and entrust us with their children. (A bird does not poop in its own nest). In this way our community school runs very differently to a government school as accountability is to our parents FIRST (now referred to as ‘stakeholders’ I believe), not the government.” 35 (original emphasis omitted)

[48] The August CoM meeting discussions included a report from Ms Martin about recruitment of a replacement for Ms Grayling in the Moonstone room which had progressed to the point of consideration of applicants by a selection panel about which;

“Bron advised us that BMS had received a strong number of responses from a range of high quality Montessori trained people. Bron emphasized the strength of Montessori qualifications of the candidates which I viewed as a positive given the community sentiment. Bron informed us that she was continuing to work through the process.” 36

[49] The next day, Ms Martin advised in the school newsletter that she had made decisions about the recruitment process, including that the Moonstone room would be run in Term 4 2016 as a job share arrangement with Ms Nicola Bussell being employed for two days per week and another employee being employed for the remaining three days. Mr Cleave-Smith’s evidence is that he thought this decision further eroded confidence in Ms Martin’s capacity, with neither staff member being Montessori qualified teachers. 37

[50] Mr Cleave-Smith at least felt that this series of events amounted to Ms Martin misleading the committee about her recruitment intentions.

[51] Notwithstanding Mr Bussell’s opinion that Ms Martin had exceeded his expectations of performance for a principal, discussion of the performance agreement for Ms Martin ensued in the October 2016 CoM meeting, with Mr Cleave Smith’s evidence on the subject recording;

“48. I thought the performance appraisal setting might be the appropriate context to bring up our concerns about Bron's performance and behavior with her. The CoM were not confident in Harry’s ability to conduct an effective performance appraisal and a number of the members suggested that I join Harry and Pamela Walpole (CoM member) ("Pamela") to conduct it on the basis that they were both stepping down from the committee at the end of Term 4 and my presence would provide continuity into 2017.

49. On about 10 October 2016, Jacqui advised Harry that she was going to table this proposal for discussion at the CoM meeting on 13 October 2016. On 13 October 2016 this topic was raised under other business and Jacqui suggested that given both Harry and Pamela were likely to step down at the end of their current terms then I should be part of the process to provide continuity. Bron became agitated and highly defensive and it became apparent to me that Harry had not discussed this with Bron prior to the meeting. In the end the CoM persisted and Bron reluctantly agreed that I could sit-in on the appraisal, but not participate in the conversation. I deny that this was highly unusual and that having me join the conversation would be "moving the goal posts".” 38

[52] Shortly after the 10 October 2016 CoM meeting, on 24 October a “requisition” of nine parents sought a special CoM meeting and the resignation or removal of Mr Bussell as president, which led to him resigning on 3 November 2016. Mr Cleave-Smith was subsequently elected president of the CoM on 7 November 2016. 39 The conduct of Ms Martin’s performance appraisal was not progressed during the processes associated with the CoM requisition and change in president until 2 December 2016.40

[53] When the parties resumed consideration of Ms Martin’s performance appraisal, a template performance plan that had been annotated with Ms Martin’s comments about her performance was provided by her to Mr Cleave-Smith for the purposes of discussion. 41 The performance and development plan had been earlier agreed between Ms Martin and the school in March 2016.42 The meeting was attended by Ms Martin, Mr Cleave-Smith and another CoM member, Pamela Walpole. The parties hold differing perceptions about what was discussed in the meeting and whether or not it was positive towards Ms Martin’s performance. For his part, Mr Cleave-Smith believes that while there was discussion of positives about Ms Martin’s performance, the conversation nonetheless included identification of matters that required improvement and change on the part of Ms Martin, with his witness statement putting forward the following;

“65. The meeting on 2 December 2016 was protracted. We talked through each of the areas of the performance plan and talked through the areas where positive outcomes had been achieved and identified those areas where further improvement was required. In a number of areas the focus of the feedback was around how Bron’s approach had contributed to lower than expected outcomes and how consideration of the leadership elements of - communication, change management and gaining buy-in so as you take people with you were creating issues with her three key stakeholder groups. We also discussed the enrolment issue in the performance appraisal – we said there was a huge issue with the unusually large number of parents removing their children from the school but Bron refused to take any responsibility for this when she was an integral part of the problem. Over half of those were parents who said they had lost all faith in the leadership of the school, and these were ones who had been with the school since its inception. Bron was very defensive in her responses and at times quite distressed during the conversation. At no point was she prepared to recognise there may be any merit in the points we made or that her actions had in any way contributed to the school's situation. I found that Bron was not able to receive criticism or self-reflect, which, in my view are very important attributes for leadership roles. BMS is currently in crisis due to student numbers and low enrolment. Building enrolment and instilling confidence in the community was the most critical aspect of Bron's role and she just did not appear to understand that independent schools are mainly dependent on government funding which is determined by enrolments.

66. It was Bron’s response to the performance appraisal that led me to believe that if Bron was not willing to see there was an issue with her behavior then it would be very difficult for the CoM to work through these issues with Bron and Bron’s position as leader of the school would be untenable. After the performance appraisal where it was clear there was no sign that Bron was going to take responsibility for any of the issues the school was currently facing we had no other option but to proceed down the path of terminating her employment. Because there was no acknowledgement of her part in the problems it would have been ineffective to implement performance management with Bron. If someone in such a high leadership role does not recognise they are failing in the core competencies of the role there are very few options available for correction.” 43

[54] After the meeting, Mr Cleave-Smith and Ms Walpole worked through the written discussion provided by Ms Martin as well as the matters discussed within the meeting on 2 December and provided to Ms Martin on 8 December 2016 a further version of the performance appraisal document, which this time included written feedback from the school to Ms Martin about how it perceived her performance. While most the feedback given by her employer is positive about her performance, some is constructively critical of her performance and seeking that there be changes in the way she was working. 44

[55] Mr Cleave-Smith’s evidence is that by 27 or 28 November he had decided that Ms Martin’s position at the school was untenable unless there were to be changes. He believed the school was dealing with a crisis and that it was apparent that Ms Martin’s leadership was a significant part of the problem. He also says that by the time of a formal CoM meeting on 8 December 2016 that it was very clear to him that the school was in crisis. 45

[56] Another of the CoM members, Jacqui Alessi, had come to a similar conclusion as Mr Cleave-Smith, but perhaps reaching that point by the end of November 2016.

[57] There was a further CoM meeting held on 8 December 2016, convened after Mr Cleave-Smith had circulated an email, referred to as a “situation assessment” to all but one of the committee’s members, which declared his view that Ms Martin “is an unsuitable fit for the role of Principal, largely driven by the lack of leadership skills to deliver the required operational outcomes within the culture of the staff and parent communities”. 46 A meeting was held on the evening of that day, again in the absence of Ms Martin, and the CoM resolved that Mr Cleave-Smith would meet with Ms Martin the following day and offer her the opportunity to resign.47

[58] The next day, 9 December 2016, Mr Cleave-Smith sought to meet with Ms Martin and informed her that;

“…the CoM had met and resolved that her position was no longer tenable due to her leadership style and communication and I asked her to spend the weekend considering and reflecting on this. Her response was one of surprise and disbelief. She said that she felt the CoM needed to review their decision and that we should not expect her resignation on Monday.” 48

 74   Exhibit R2.

 75 Exhibit R13 [38].

 76 Ibid [39].

 77 Ibid [40].

 78 Ibid [59].

 79   Exhibit A1 Attachment 19, 4.

 80   Ibid Attachment 20, 4.

 81   Ibid Attachment 22, 1.

 82   Exhibit R13 [54]-[58].

 83 Exhibit R8 [6].

 84   Exhibit A1 Attachment 1.

 85 Exhibit R8 [65].

 86   Exhibit R8 Attachment DCS-24.

 87   Ibid.

 88   Ibid.

 89 Exhibit R8 [29].

 90 Exhibit A1 [312].

 91   Ibid [315]–[316].

 92 Exhibit R8 [50].

 93   Exhibit A3 Attachment HB-3.

 94 Exhibit A1 [114].

 95 Ibid [152].

 96   Ibid Attachment 10.

 97   Ibid Attachment 19, 4.

 98   Ibid Attachment 20, 4–5.

 99   Ibid Attachment 22, 1.

 100   Ibid Attachment 19, 4.

 101   Ibid Attachment 21, 5.

 102  Ibid Attachment 22, 2.

 103   Ibid Attachment 19, 5.

 104   Ibid Attachment 21, 6.

 105   Chubb Security Australia Pty Ltd v Thomas Print S2679 [41].

 106 Exhibit R16 [10].

 107 Exhibit R8 [6]; Exhibit R16 [10].

 108   Exhibit R8 Attachment DCS–29.

 109   Exhibit A1 Attachment 16.

 110   Exhibit A7, Applicant's Closing Submissions, [61].

 111 Exhibit R16 [83].

 112   [2014] FWCFB 7198.

 113   Ibid [23]-[24].

 114   Ibid [27]-[28].

 115 Exhibit R11 [46].

 116   Ellawala v Australian Postal Corporation, AIRCFB (2000) Print S5109 [33]-[34].

 117 Exhibit R8 [92].

 118 Exhibit R16 [10].

 119   Exhibit A7 [78]–[79].

 120 Ibid [61].

 121 Exhibit R16 [91].

 122   Exhibit A5, Applicant’s Calculation of Loss.

 123   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 29.

 124   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries[2016] FWCFB 7206 [34]; see also Bank of Sydney Ltd v Pasqualina Repici[2015] FWCFB 7939 [7].

 125   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

 126   [2014] FWCFB 236.

 127   Ibid [10]-[12].

 128 (1995) 67 IR 316.

 129   Ibid, 328

 130   [2000] AIRC 1151 Print S5109.

 131   Ibid [41]-[43].

 132   Ibid [71]-[74].

 133 (2013) 229 IR 6, [2013] FWCFB 431.

 134   Ibid [45]; [53]-[55].

 135 Ibid [54].

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