Cantwell v NSW Education Standards Authority

[2024] NSWCATAD 282

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cantwell v NSW Education Standards Authority [2024] NSWCATAD 282

Hearing dates:

8 August 2024

Date of orders:

23 September 2024

Decision date:

23 September 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Isenberg, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Education – teacher accreditation – revocation for performance deficiencies – underlying findings not in dispute – allegations of lack of procedural fairness

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Education Standards Authority Act 2013

Teacher Accreditation Act 2004

Cases Cited:

Cantwell v Secretary, of the Department of Education [2023] NSWIRComm 1012

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

Lavers v NSW Education Standards Authority [2023] NSWCATAD 170

McDonald v Director General of Social Security (1984) 1FCR 353

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Shiv Migration Agents Registration Authority [2008] HCA 31

Category:

Principal judgment

Parties:

Miles Cantwell (Applicant)
NSW Education Standards Authority (Respondent)

Representation:

Counsel:
D Fuller (Respondent)
Solicitors:
Applicant (Self-Represented)
Lander & Rogers (Respondent)

File Number(s):

2024/00019578

Publication restriction:

nil

REASONS FOR DECISION

1. The Applicant in these proceedings is Miles Cantwell, who has been a teacher for over 30 years. His teacher accreditation was withdrawn by the Respondent, NSW Education Standards Authority (NESA) for his alleged failure to meet professional standards set out in the Teacher Accreditation Act 2004 (Accreditation Act). That decision was affirmed on internal review on 19 December 2023. The Applicant now seeks review by this Tribunal.

Relevant legislation

2. NESA is a statutory corporation constituted under the Education Standards Authority Act 2013 (NESA Act) and one of its functions is to accredit teachers in NSW: s 12(2)(c) of the NESA Act. Presently, to teach in a school or early childhood centre, a person must be accredited by NESA: s 28 of the Accreditation Act.

3. Prior to 2004 there was no scheme for the accreditation of teachers in NSW. When the Accreditation Act was introduced, existing teachers with teaching qualifications (including the Applicant) were transitioned into the new scheme without needing to obtain accreditation unless they volunteered to be accredited. Subsequent amendments to the Accreditation Act made in 2014 mandated that all teachers satisfy the requirements for accreditation, but these amendments did not come into force until January 2018.

4. NESA’s principal objectives include to ensure teaching quality and professional standards: s 11(1)(c)(iv) of the NESA Act. The requirements for accreditation as a proficient teacher are set out in the Professional Standards (Standards), which are approved under s 19(1) of the Accreditation Act. The Standards are 'a public statement of what constitutes teacher quality', by providing ‘a framework that makes clear the knowledge, practice and professional engagement required across teachers' careers'. The Standards are organised into three ‘domains' — Professional Knowledge, Professional Practice and Professional Engagement — which, between them, contain seven 'Standards', including, relevantly:

1. in the domain of Professional Knowledge:

1. Standard 1. Know students and how they learn; and

2. Standard 2. Know the content and how to teach it;

2. in the domain of Professional Practice:

1. Standard 3: Plan for and implement effective teaching and learning; and

2. Standard 4: Create and maintain supportive and safe learning environments.

5. Each Standard contains descriptors.

6. If a teacher does not meet these Standards NESA may revoke a person's teacher accreditation: s 24 of the Accreditation Act. The grounds for revoking a person's teacher accreditation include that NESA is satisfied that the person has failed to comply with any of the requirements of the professional teaching standards that apply to the person: s 24(1)(g) of the Accreditation Act. In exercising its discretion to revoke a person's teacher accreditation, NESA must take into account (where appropriate):

1. the nature and seriousness of the conduct concerned;

2. the frequency the conduct concerned;

3. the recency of the conduct

4. any other matter that is required to be into account by the procedures and guidelines in the professional teaching standards: s 24B of the Accreditation Act.

7. NESA is also required to apply the principle that, in an action or decision concerning a child or young person, the safety, welfare and wellbeing of the child or young person is paramount: s 4 of the Accreditation Act.

Evidence before the Tribunal

8. The Applicant provided:

1. a “preliminary submission” dated 3 April 2024, with attachments

2. a statement dated 14 May 2024

3. his Tamworth Community College Certificate IV in Training and Assessment

4. his KAL Diploma of Community Services

5. Online newspaper article referring to the Applicant

6. CESE notifications

9. The Applicant gave evidence and was cross-examined.

10. The Respondent provided voluminous material in accordance with s 58 of the Administrative Decisions Review Act1997 (ADR Act). The Respondent also relied on the following statements:

1. Lyn Kirkby, Executive Director, School and Teaching Standards, NESA, dated 30 April 2024 with extensive annexures

2. Paul Daniell, Acting CEO, NESA, dated 30 April 2024

3. David Gault, Principal Education Officer, Teaching Standards and Accreditation, NESA, dated 30 April 2024 with extensive annexures

11. Neither Ms Kirkby nor Mr Daniell was required for cross examination. Mr Gault gave evidence and was cross examined.

Tribunal’s approach

12. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Respondent’s delegate, and there is no presumption that the decision of the Respondent’s delegate is correct:  at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof in McDonald v Director General of Social Security (1984) 1FCR 353 the Tribunal unless the relevant legislation states specifically to the contrary: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34]. The Tribunal may have regard to any policy applied by an administrator except to the extent it is contrary to a 'Government policy' or law or it produces an unjust outcome in the circumstances of the case: s 64(4) ADR Act,

CONSIDERATION

What are the issues before the Tribunal?

13. The Applicant did not challenge the “underlying findings” that led to the revocation of his teacher accreditation, but rather, that the process by which that decision was reached was unfair and unreasonable.

What led to the revocation of the Applicant’s teacher accreditation?

14. The Applicant has been a teacher for approximately 33 years, although he did not hold teacher accreditation until 1 January 2018, at which time, he had not been subject to any assessment. He taught at Tamworth High School (the School) from 20 April 2010, predominantly as a Visual Arts teacher.

15. The Applicant was said to be experiencing performance issues from early 2018, such as his failing to submit student attendance rolls and achievement grades on time. In addition, there was a recorded incident relating to the Applicant’s alleged mistreatment of a student in one of his classes by placing him in ‘the naughty corner’. The concerns continued through 2019. According to the Summary of Concerns provided, from early in the 2020 teaching year, the Applicant's performance issues increased in number and scope, including complaints about managing students' behaviour, failing to provide work for students or to ensure students completed work in class, failing to prepare lessons properly and failing to attend school meetings, as well as continuing to fail to submit rolls and grades on time.

16. On 4 August 2020 the then-Principal of the School, Daniel Wilson wrote to the Applicant informing him of concerns about his teaching practice by reference to Standards 2, 3, 4, 5 and 7. The Applicant, with a support person, attended a meeting with Mr Wilson on 6 August 2020. The Applicant acknowledged there that he had discussed performance issues with his supervisor, Tina Poder. He was given specific examples of concerns with his performance in respect of the Standards. Following that meeting the Applicant was placed on a five-week Performance and Development (PD) support program. During the PD he was given feedback on lessons and lesson plans, assessments and student work and he had regular meetings with his managers.

17. At the end of the five-week PD, the School, in conjunction with the Department assessed the Applicant as not demonstrating a sufficient degree of improvement in relation to the identified Standards. This included several situations in which the Applicant did not follow or digressed from the relevant teaching or assessment programs for his classes.

18. Because of these ongoing concerns, the Applicant was then placed on a Teacher Improvement Program (TIP) with a five-week assessment and support schedule, commencing in late October 2020. The Applicant described TIP as a formal observation of his teaching. He was given the opportunity to provide feedback on the draft TIP, which was taken into account. He was given 7 days relief from face-to-face teaching for the duration of the TIP.

19. Similar to the PD program, the TIP included lesson observations, reviews and feedback in relation to lesson plans, student work samples, a teacher ‘daybook’ and teaching and learning programs, and regular meetings with management. The observations and reviews were conducted by two external teachers (Mr Warden and Ms Hill)^, as well as two Principals (including the School’s new Principal), a Deputy Principal and the Head of the Applicant's Department at the School.

20. The Applicant subsequently signed the TIP plan. The TIP was ceased before the due end date, as the end of term approached and student attendance was poor.

21. A further five weeks of the support program were subsequently added in the new school year.

Did the Applicant improve after the break?

22. The Applicant submitted that it was irregular that he be subjected to a second TIP, which took place in the new (2021) school year, concluding on 9 March 2021. The Applicant agreed in cross examination though that the break afforded him the opportunity to reflect upon the feedback he had received in the first round. Unfortunately, although the Applicant’s performance had improved somewhat, he was still found to be “unsatisfactory” with respect to some of the Standards at the end of the program.

Feedback and identified deficiencies

23. The material before me included a comprehensive set of meeting minutes and feedback reports on the Applicant's lessons, lesson plans, daybook and registrations and work samples for each of the ten weeks of the TIP. Feedback reports prepared during the TIP commented on the Applicant's performance against Standards 1 to 4 and provided constructive suggestions as to how he might address the identified shortfalls. The reports were given to the Applicant and signed by him, with the Applicant having the opportunity to provide comments. In addition to the feedback reports, the Applicant had formal meetings each week of the TIP to discuss and provide feedback on his performance. His comments were documented.

24. A summary of the feedback reports was helpfully provided by the Respondent. More than two-thirds of those reports for all types of work indicated that the Applicant's performance was unsatisfactory. These included two-thirds of the reports prepared by external reviewers.

25. The shortfalls in performance identified in the feedback reports included:

1. not communicating clear Instructions and expectations to students in relation to their work;

2. falling to explain to students why they are completing tasks by reference to the learning intentions and success criteria for the relevant lesson

3. failing to ensure students remain engaged in lessons;

4. failing to ensure students in fact complete the tasks expected of them, such that the results of all work sample reviews conducted as part of the TIP were unsatisfactory;

5. providing inadequate feedback to students about their completed work;

6. work completed by students not aligning with lesson plans;

7. failing to enforce behavioural expectations and classroom rules;

8. lack of clarity and appropriate strategy in lesson planning;

9. lack of differentiation and modifications in lesson plans for students of different abilities;

10. unrealistic timing of lessons affecting the Applicant's capacity to implement lesson plans; and

11. arriving late at class.

26. The Applicant asked Mr Gault if there was a “pass mark” for TIP assessments. Mr Gault said to be “proficient” a teacher needed to meet the Standards and that a proficient teacher should be meeting all of the Standards all of the time, with only minor exceptions. He was unable to say what is the minimum requirement. He said that if by the end of the TIP, the majority of the assessments are positive then the TIP will have been considered a success.

27. By the end of the second TIP, notwithstanding having had a total of 8 weeks of what was effectively coaching, the Applicant was still not meeting all of the Standards.

28. At the end of the TIP, the School's Principal prepared a report which concluded that the Applicant was not meeting the expected level of performance in relation to each of Standards 1 to 4 (Principal's Report). While there had been some improvements in some aspects of the Applicant’s performance the Principal's Report considered that these were not adequate to meet the required Standards, nor had the improvements been shown to be sufficiently sustained. The Applicant was invited to respond to the Principal's Report but his response was focused on what he perceived to be areas of procedural unfairness or bias in the TIP process and errors in the Principal's Report, rather than the substance of the underlying assessments.

The Applicant’s assertions that the process that led to the revocation was flawed

29. The Applicant’s contention was, in summary, that the TIP imposed an unduly onerous assessment regime. He raised a number of issues which he said, led to the conclusion that his teacher accreditation should be revoked, was flawed.

30. Firstly, and primarily, the Applicant asserted he was subjected to an excessive number of observations. In his preliminary submissions he wrote that there were 20 lesson observations, 24 lesson plans prepared, 5 student work samples and 7 day books assessed. He conceded in his evidence that the number of observations for a TIP is not mandated. He said he was unaware of what might be the “standard” number of observations when he, and his accompanying union representative, agreed to the draft TIP which included the planned number of observations. No queries were raised by him in the ongoing review discussions about the extent of the planned observations. He said in his evidence at first that he did not raise his concerns in the course of TIP that he thought the number of observations was excessive. He also said the union raised no concerns that it was excessive. Subsequently he said that he had raised concerns but was “told to get on with it”. He said there was “no constructive conversation about workload”. He did not specify with whom he raised his concerns, although thought there may have been an email to Ms Poder. He did not produce a copy of that email nor could I locate any material before me that documented his alleged complaint.

31. It was only later, after the decision under review, that he had located matters involving 4 other teachers, Messrs Kent, Buchanan, Nsiah, and Brown, who, like him, had brought unfair dismissal claims in the Industrial Relations Commission (IRC). He relied upon information in the reported decisions as to the number of “observations” undertaken before their accreditation was revoked, and that, by comparison, the number of observations of him was excessive. He conceded in cross examination that he was observed in face-to-face teaching, on average, a “bit over 2” lessons per week of the TIP.

32. Mr Gault was asked about the reasonableness of the number of observations. He said that 20 face-to-face observations across a 10 week period was not unreasonable, together with the “wrap around” activities associated with teaching a lesson. He said he was unaware of the cases to which the Applicant referred, but said the number of observations would vary according to the context, including, for example, whether the teacher was teaching high school or primary school. He considered that it was a normal part of TIP to observe lessons and the other core teacher activities. Further, most of the non face-to-face observations, such as lesson plans and work samples were activities that the Applicant was, or should have been, undertaking as part of his ordinary duties in any event.

33. The evidence of both Mr Daniell and Ms Kirby was to the effect that the higher the number of observations, the greater the opportunity for a teacher to demonstrate their ability to meet the Standards.

34. Secondly, the Applicant submitted, the number of observations meant that he would no sooner obtain feedback on his performance than he was almost immediately being observed again, before he had had time to digest and apply the feedback remarks from the prior assessment. He said he would have to read the feedback, prepare the next lesson, and without time to consult his peers or read up on strategies so as to implement change, he was into the next observed lesson. Sometimes, he said, he did not receive the feedback until the day of the next assessment.

35. He said that because of the large number of observations the students became aware that his performance was under review and they were asking if he was going to be “sacked”. This he said, created “additional stress”. He said he regarded the TIP as a “negative process” in which he was being assessed “all the time”.

36. Thirdly, he said that he was also obliged to continue preparing for and teaching his other (ie unobserved) classes. He considered that participation in the TIP substantially increased his workload. He agreed though that during the course of the TIP he was given seven days of relief of various kinds to support his participation. He understood though that this was a set amount and was not adjusted to reflect the number of observations conducted. While others may have had fewer observations, they would still have been granted 7 days relief from face-to-face teaching. The same, he submitted, applied with respect to his reduced teaching load of 3 hours per week, which was the same relief, irrespective of the number of observations.

Conclusion as to reasonableness of the evaluation process

37. At the end of the first round his performance was still considered unsatisfactory in respect of a number of the Standards. He was afforded the opportunity to reflect upon his performance over the long holidays and to take on the board the feedback he had been given in the course of the first round. In my view it is fair to say that the Applicant actually benefitted from having two 5-week assessment periods, rather than one. Consistent with this conclusion is the fact that his performance in fact showed some improvement in the second round. Furthermore, he was able to use the long break to recuperate from what he perceived was the intense scrutiny that took place in the first round.

37. I accept that the scrutiny of the process may have been stressful for the Applicant, but, in addition to feedback, but it was well documented in the material before me that he was offered regular support.

Conclusions as to the Applicant’s performance

39. The conclusions in the Principal's Report were the subject of an external review by Melissa Johnston, the Principal of a different school. Ms Johnston reviewed all of the material relating to the Applicant’s performance (including from the PD and the TIP) as well as the Applicant's response to the Principal's Report. She prepared a very detailed analysis (Johnston Report), noting the Applicant’s teaching history and the outcome of the PD and the TIP. The Johnston Report contained detailed consideration of the Applicant's responses to the Principal's Report, including as to process, perceived bias and workload concerns. She observed that there had been some deficiencies in the administration of the PD and noted some other minor deficiencies about the administration of the TIP. She noted the Applicant’s concerns in relation to the process but found nothing which would have affected the outcome. She upheld the Principal's conclusion that the Applicant was not meeting the required level of performance and she considered that none of the matters the Applicant raised detracted from the conclusion that his performance was inadequate; the processes followed were appropriate and the Applicant was appropriately supported throughout. As a consequence of the Johnston Report, on 19 August 2021, a delegate of the Department had invited the Applicant to show cause as to why disciplinary action should not be taken against him for unsatisfactory performance in relation to Standards 1 to 4. On 12 November 2021, after considering a further submission by the Applicant, the delegate confirmed the decision that disciplinary action would be taken and that the appropriate disciplinary action was to direct the Applicant to resign, falling which he would be dismissed. The Applicant was ultimately dismissed on 22 November 2021 and his name was also placed on the Department's ‘Not To be Employed’ list.

40. The Applicant subsequently commenced proceedings in the IRC claiming to have been unfairly dismissed: Cantwell v Secretary, of the Department of Education [2023] NSWIRComm 1012. Based on the evidence before him, the Commissioner concluded that:

1. there was ‘no sense in which it could be said that the (Department) has failed to fully, fairly and properly follow a process to assess the performance of the applicant under the TIP’: at [111].

2. 'Those employees of the respondent who were charged with assessing and reporting on the TIP gave evidence and were unanimous that in their opinion the applicant did not meet the required standard of teaching. Those employees were all teachers of considerable experience. Only two of them were crass examined and it was never seriously suggested to either of those two that their expressed opinions as to the applicant’s performance were wrong.': at [112].

3. while the Applicant 'did not expressly concede that his teaching performance was substandard, the Applicant effectively conceded that he had failed the assessment of his performance through the TIP': at [113];

4. the outcome of the TIP — that is, that the Applicant was not meeting the required performance standards — 'was the correct professional assessment of the Applicant's performance through the TIP': at [141];

5. the Applicant was given support and feedback throughout the TIP, and adequate opportunities to respond to its conclusions. which he took up: at [115]; and

6. the Applicant's complaints of procedural unfairness and had no merit, and while the Applicant had demonstrated errors in the Principal's Report which were 'regrettable', those did not ultimately detract from the assessment that the Applicant had failed to meet the relevant performance standards or demonstrate that his dismissal was unfair: at [116] – [124].

41. I have placed considerable reliance on the findings of the Commissioner, who had the benefit of hearing the evidence of seven witnesses, including the Applicant’s direct and indirect supervisors, teachers from other schools who either provided support to the Applicant to improve his performance, or assessed him during the TIP, and from a Professional and Ethical Standards officer who was the decision-maker in dismissing the Applicant.

42. In Lavers v NSW Education Standards Authority [2023] NSWCATAD 170 (Lavers) at [40]-[42] the Tribunal considered accepted the Respondent’s submissions in relation to the purpose served by the accreditation framework under the Accreditation Act, as follows:

The accreditation requirement under the [Accreditation Act] functions as a gateway to entry into the teaching profession. A person who is allowed entry to the teaching profession is held out to the public as ‘a person worthy of their confidence'. Members of the public, including parents of children in the NSW education system, should be able to have confidence that an accredited teacher has the willingness and capacity to ensure the safety. welfare and wellbeing of the children they teach, to act with integrity, trustworthiness and high moral and ethical values, to comply with relevant standards of practice, and to be an appropriate role model for children and other teachers. Accordingly, in deciding whether a person should be accredited or re-accredited as a teacher, it is appropriate for NESA (and the Tribunal) to have regard to:

(1) the need maintain public confidence in the teaching profession, including by appropriate censure or denunciation of improper conduct and other behaviour that falls short of the high standards that the public is entitled to expect of an accredited teacher;

(2) protecting students, colleagues and members of the public from such behaviour by the person in question in the future (that is, specific deterrence and

(3) deterring others from engaging in similar behaviour (that is. general deterrence).

These considerations are consistent with the protective principle to be applied in administering the Accreditation Act…, and NESA'S principal objective of upholding the standards of the teaching profession… They are also consistent with the principles applied in the context of the admission and discipline of members of other professions.

43. In the present case the Applicant was found to have failed to comply with four of the seven Standards. The relevant Standards relate both to the Applicant's teaching skills and to his capacity to create and maintain a supportive and safe learning environment. I consider these requirements to be fundamental to a teacher's capacity to deliver a high-quality and effective education to students in an environment that protects their wellbeing, such that they, their parents and other members of the community are entitled to expect of any teacher. In Kentv Secretary, Department of Education [2019] NSWIRComm 1001 to which the Applicant referred, the Commissioner said that the protection of children extends to the protection of children from having the quality of their school education compromised by being exposed to teachers who do not meet the level of performance required by the Department of a proficient classroom teacher. For that reason, the Applicant’s non-compliance with the Standards is inherently serious: see s 24B(1)(a) of the Accreditation Act.

44. The Applicant's non-compliance extended over a significant period of time – he having come to attention in 2018, when his performance as a teacher was apparently the subject of scrutiny for the first time: s 24B(1)(b). He undertook the PD, and then the TIP, both of which entailed detailed assessment and feedback. His performance was observed to be deficient throughout the TIP process, although there was some improvement in the 2^nd TIP period. Throughout the process the Applicant was offered additional support. It is doubtful that further training would overcome the identified deficiencies, given that the Applicant had been teaching for in excess of 30 years. In any event, the Applicant’s submissions do not suggest that he has taken any steps to directly address the shortcomings identified in his performance, although he appears to have achieved a Certificate IV in Training and Assessment at Tamworth Community College in April 2023, as well as a Diploma of Community Studies in April 2022. I observe, too that the Applicant appears to have undertaken a teaching role at Tamworth TAFE, teaching Certificate 1 level adult literacy in small classes to young adults who were “not suited” to the school system, and this was positively received in the community according to newspaper report provided by the Applicant. The funding for the course, he said, has now been withdrawn. The Applicant conceded that the TAFE environment differed from a school environment. It does not follow that this relatively recent experience serves to overcome the widespread and ongoing deficiencies in relation to the Standards identified in his performance at the School. I cannot be comfortably satisfied that his additional studies and his TAFE role would necessarily produce a result that would mean he is now proficient for the purposes of the Accreditation Act.

45. Further, while the Applicant was assessed as having performance issues in late 2020 and early 2021, and hence are relevantly recent: s 24B(1)(c). The Respondent made the revocation decision promptly after being notified that the Applicant's dismissal had been finalised.

46. In view of the extensive opportunities the Applicant had to demonstrate his proficiency, I cannot be satisfied that the Applicant is capable of meeting the Standards that the public is entitled to expect of teachers, including meeting the fundamental expectation that a teacher will be capable of delivering high-quality, effective teaching in an environment consistent with students' safety, welfare and wellbeing. I agree with the view expressed in Lavers that the Tribunal said it was not concerned with the rehabilitation or other concerns of the teacher: at [42].

47. For these reasons, the correct and preferable decision is that the Applicant's teacher accreditation be revoked under s 24(1)(g) of the Accreditation Act.

decision

48. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 September 2024