Mani v Secretary, Department of Education
[2021] NSWPICPD 3
•26 March 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Mani v Secretary, Department of Education [2021] NSWPICPD 3 |
| APPELLANT: | Jumna Bai Mani |
| RESPONDENT: | Secretary, Department of Education |
| INSURER: | Allianz – as agent for the NSW Self Insurance Corporation |
| FILE NUMBER: | A1-2825/20 |
| MEMBER: | Ms C McDonald |
| DATE OF MEMBER’S DECISION: | 8 September 2020 |
| DATE OF APPEAL DECISION: | 26 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – section 11A(1) of the Workers Compensation Act 1987 – procedural fairness – alleged factual error – application of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 – ‘reasonable action’ |
| PRESIDENTIAL MEMBER: | Acting President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr D Baran, counsel | |
| Walker Law Group | |
| Respondent: | |
| Mr R Hanrahan, counsel | |
| Bartier Perry Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 8 September 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
Jumna Bai Mani (the appellant) worked with the NSW Department of Education (the Department/the respondent) as a primary school teacher from 1998. She was most recently employed as a full-time permanent teacher at Kings Langley Public School, where she commenced in the first term of January 2018. The appellant states she was subjected to racism during 2018, which she reported to the executive at the school. Towards the end of that year she was told she would be moving to a role as the ‘Learning Support and Relief from Face to Face’ teacher in 2019.[1]
[1] Appellant’s statement dated 21 May 2020, Application to Resolve a Dispute (ARD), p 1.
Following receipt of an email from Mr Lambert (the principal) on 18 March 2019, the appellant met with Mr Lambert and Ms Hutton (the acting deputy principal) on 19 March 2019 (the first meeting). She was told there had been a number of complaints about her by parents. She was asked to respond to the allegations in writing. The appellant subsequently sent her written responses to a professional support officer at the Teachers Federation, and then to the principal. The appellant described an encounter with the principal on 28 March 2019, when she saw him in his office to discuss rescheduling a meeting. She said she found him very angry; she described this as “bullying and workplace harassment.”[2]
[2] ARD, pp 2–3.
There was a further meeting on 29 March 2019 (the second meeting) involving the appellant, Mr Lambert and Ms Hutton. Mr Hayman, a teacher at the school, also attended this meeting as a support person to the appellant.[3] Mr Lambert discussed the appellant’s responses to the allegations and said the responses did not answer the complaints. The appellant was told she needed to include proactive responses to show she was seeking to improve her interactions with students and her class management. The appellant stated that she drew up a professional development plan (PDP) with the approval of her supervisor. She stated that Mr Lambert chose a PDP for her and forced her to include it as her own. She said that the plan should be an individual teacher’s goals yet Mr Lambert said he could make her change her plan, he did not have to ask her. The appellant said that the stated alternative was that Mr Lambert would refer the matter to EPAC (the Department’s Employee Performance and Conduct Directorate) to investigate.[4]
[3] Reply, p 41.
[4] ARD, pp 3–4.
There was a further meeting on 8 May 2019 (the third meeting), at which Mr Lambert said he would refer the PDP to EPAC for approval. The appellant stated that she telephoned EPAC and someone there told her that “EPAC has nothing to do with PDP”. The appellant said that on 16 May 2019, when school concluded, she was met outside her classroom by Mr Lambert and Ms Hutton, who walked her to Mr Lambert’s office and there gave her a letter, which stated that she would face disciplinary action if she failed to do what Mr Lambert wanted. She said she felt intimidated, embarrassed and anxious. She stated that she struggled to continue working for a further three days and then went off work.[5]
[5] ARD, p 4.
The appellant was paid workers compensation benefits on a provisional basis from 19 March 2019.[6] The insurer issued a s 78 notice dated 6 August 2019, in which it denied liability on the basis of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) relying on the Department’s allegedly reasonable actions in respect of performance appraisal.[7] The denial was confirmed in a notice dated 6 January 2020, in which the insurer relied on its alleged reasonable action in respect of both performance appraisal and discipline.[8]
[6] ARD, pp 11–14.
[7] ARD, pp 15–20.
[8] ARD, pp 22–33.
These proceedings were commenced by the ARD lodged on 22 May 2020. The matter was listed for conciliation conference and arbitration hearing on 14 July 2020. Mr Baran appeared for the appellant and Mr Hanrahan for the respondent. Much time was spent in attempted conciliation and it was not possible to deal with the arbitration hearing in the remaining time. Neither party sought to call oral evidence or to cross-examine. The matter was dealt with on the basis of written submissions. Submissions were lodged on the appellant’s behalf dated 27 July 2020 and 17 August 2020 (in reply). Submissions were lodged on the respondent’s behalf dated 12 August 2020.
The Commission issued a Certificate of Determination dated 8 September 2020, accompanied by 27 pages of reasons.[9] The Arbitrator accepted that a defence was made out pursuant to s 11A(1) of the 1987 Act on the basis of discipline. There was an award in favour of the respondent. The appellant appealed the decision. After the appeal was lodged, the Workers Compensation Commission was abolished.[10] The matter now comes within the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[11] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[9] Mani v Secretary, Department of Education [2020] NSWWCC 308 (the reasons).
[10] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[11] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
THE ARBITRATOR’S REASONS
The Arbitrator summarised the statement evidence of the appellant[12] and Mr Lambert.[13] She noted the Reply included a “table summarising issues with respect to [the appellant’s] performance at three previous schools and issues in 2018 which led to her being moved off class at the end of 2018”. She said it was unclear whether this document was prepared by Mr Lambert or was intended to form part of his statement.[14]
[12] Reasons, [9]–[19].
[13] Reasons, [21]–[45].
[14] Reasons, [46].
The Arbitrator referred to a number of what she described as “[p]olicies relevant to the matters in dispute”. There was a document titled “Australian Professional Standards for Teachers”, which included “goals in a PDP”. There was a document from the Teachers Federation called “Know Your Rights and Responsibilities in the Performance and Development Framework”. There was a Code of Conduct which described standards of behaviour “expected of all employees of the Department”. These included that an employee was expected to “comply with a lawful direction”, which was defined as “a direction which falls within the scope of the job description, involves no illegality and is reasonable”. There was an excerpt from the Department’s “Complaints Handling Policy Guidelines”. This provided that less serious matters should be resolved informally unless there was a reason why that was inappropriate. There was a document from the Teachers Federation dealing with “Implementing the Performance and Development Framework”. It summarised the procedures for “observations of professional practice and goal setting for PDPs”.[15]
[15] Reasons, [48]–[54].
The Arbitrator referred to a document titled “TR6 – Complaints Handling” which summarised “new complaints handling procedures implemented in 2017”. The Arbitrator said this was “the only evidence in the file which deals with the role of EPAC”. She noted the document said the Complaints Handling Procedure and Policy applied to a parent’s “expression of dissatisfaction about … the behaviour or decisions of staff”. It provided the subject of a complaint should be informed within five working days and a copy or summary of the specifics should be provided. Time should be provided for the subject of the complaint to arrange a support person; two days was sufficient. Written particulars should be provided at the meeting and time allowed for a written response. The appellant also relied on a pamphlet from the Teachers Federation which described “bullying”. The Arbitrator referred to the “Department’s Guidelines for the Management and Conduct of Performance”. The policies included maintaining “appropriate standards of conduct and work related performance for teachers”.[16]
[16] Reasons, [55]–[61].
The Arbitrator noted there was “no dispute that Ms Mani suffered a psychological injury nor that she is totally incapacitated for work”.[17]
[17] Reasons, [62].
The Arbitrator referred to the reports and clinical notes of the treating practitioners. The appellant saw Dr Ducic (her general practitioner) for treatment for anxiety associated with work stress in 2011, 2012, 2013, 2016, 2017 and 2018. The doctor’s reports dated 12 May 2013 and 14 July 2017 dealt with her previous claims. The doctor noted a report of anxiety as a result of racist comments in April 2018, for which treatment was declined. There were no references to anxiety or stress at work between April 2018 and 19 March 2019. On 19 March 2019, Dr Ducic recommended “work cover” for a “deterioration of mental health”. On 22 March 2019, there was a complaint of stress at work, the appellant said she did not yell at kindergarten children and felt that the parents should have talked to her first. On 15 May 2019, the appellant told Dr Ducic about her enquiry of EPAC (described as “IPAC”), when she was told that her case was closed, and said the principal was not telling her the truth.[18]
[18] Reasons, [63]–[68].
The Arbitrator referred to material from Ms Dilek, psychologist. Ms Dilek referred to the appellant’s history regarding two prior “harassment and bullying matters” that were taken to the “Work Cover Commission” and, in each instance, it was found to be a case of “ill-treatment”. The history was that, in each instance the appellant was cleared of wrongdoing and placed in an alternate school. Ms Dilek referred to a history of issues since the appointment of the new principal, with the appellant being “targeted and bulled [sic] and harassed at work”.[19]
[19] Reasons, [69]–[71].
The Arbitrator summarised material from Dr Jovanova, the appellant’s treating psychiatrist. She treated the appellant in respect of “three distinct episodes” of bullying in 2014, 2017 and 2019. The doctor said the appellant “consistently reported that her psychiatric symptoms always developed in the context of bullying at work”. Dr Jovanova reported to the insurer, on 5 July 2019, saying the appellant “informed me that the principal had distorted facts and had deliberately and systematically breached all protocols of conflict resolution”. Dr Jovanova said the appellant would “best respond to … fair treatment at her workplace”. The doctor recommended a compassionate transfer to another school.[20]
[20] Reasons, [72]–[77].
The report of Dr Rastogi, a psychiatrist qualified in the appellant’s case, was summarised. Dr Rastogi diagnosed an adjustment disorder with depressed and anxious mood. He said the injury was caused by “constant lack of support, chronic victimisation, and intimidation with threats” by Mr Lambert. Dr Rastogi said the injury resulted from “racial discrimination by students, intimidation and scrutiny as persecution by the principal and ongoing threats and having no support from Department of Education”. The doctor thought that, in the future, the appellant would be capable of a graded return to primary teaching in a different school.[21]
[21] Reasons, [81]–[83].
The Arbitrator also summarised the report of Dr C Smith, a psychiatrist qualified by the insurer, dated 15 July 2019.[22] Dr Smith diagnosed an adjustment disorder with depression and anxiety. He “considered that the predominant cause of [the appellant’s] injury was the initiation of informal performance management in respect of parental complaints”.
[22] Reply, pp 82–90.
The Arbitrator noted the appellant “did not rely on the racist remarks made in 2018”. She did not allege that the change of duties at the beginning of 2019 caused her psychological injury.[23] The Arbitrator summarised the appellant’s submissions. The appellant’s counsel referred to the need for reasonable conduct to be the predominant or sole cause of the relevant injury for the defence to succeed. He submitted there were a number of areas where the respondent’s conduct was “high-handed, vindictive, targeted and extremely disproportionate to the issues that had been raised … the disciplinary action in the circumstances was entirely unreasonable”. This was because the relevant actions were “unauthorised”.[24]
[23] Reasons, [94].
[24] Reasons, [103]–[104].
The Arbitrator summarised the respondent’s submissions. It was submitted that the appellant’s case did not address the predominant cause of her injury. It was necessary that Mr Lambert manage the multiple complaints about the appellant’s teaching methods “which had induced fearful reactions in some students”. The minutes of the “relatively informal meetings showed that [the appellant] did not perceive she had a problem and sought to shift responsibility”. The respondent submitted Mr Lambert’s actions were “objectively fair, being guided by the Code of Conduct and sound educational policy.” It was submitted the reasonableness of the respondent’s actions was to be assessed objectively, citing Northern NSW Local Health Network v Heggie.[25] “Taking a broad view of the whole process and the context of [the appellant’s] employment history, the actions of the Department were reasonable.” It was submitted that Mr Lambert’s version of events should be accepted. The respondent submitted that the making of provisional payments of compensation was not an admission of liability.[26]
[25] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[26] Reasons, [106]–[109].
The appellant, in reply, submitted that there was a deemed date of injury of 19 March 2019, with the relevant events being the series of meetings between the appellant and Mr Lambert. The events at previous schools were “irrelevant” and did not assist. The previous “vulnerabilities” meant the claim must succeed, as the respondent had to “take her as it finds her”. It was submitted the correct process was not implemented. It should have involved “informal discussion, mediation, alternative dispute resolution and counselling”.[27]
[27] Reasons, [110], [112].
The Arbitrator said that the appellant, in her submissions, relied only on the events of 2019. The Arbitrator said her understanding was that there was “no controversy” that the injury was solely caused by those events, although there were previous claims. The Arbitrator found the injury was caused by the events of March to May 2019.[28] She noted the various psychiatrists made a similar diagnoses.[29] The Arbitrator rejected the appellant’s submission that the compensation payments made constituted an admission, referring to s 280 of the 1998 Act.[30]
[28] Reasons, [118]–[121].
[29] Reasons, [122].
[30] Reasons, [123].
The Arbitrator then dealt with the s 11A(1) defence. She said she was satisfied that the parties conducted the matter on the basis that ‘discipline’ was the action relied on for the purposes of the defence. She referred to a number of well-known authorities dealing with the section.[31] This included reference to the summary by Sackville AJA in Heggie, following a review of the authorities, of the principles governing the defence.[32]
[31] Reasons, [124]–[130].
[32] Heggie, [59].
The Arbitrator referred to the meeting on 19 March 2019. She referred to the appellant’s case that she did not know the meeting was of a disciplinary nature, and she did not think it was about anything serious. The Arbitrator said the appellant was encouraged to bring a support person. The email arranging the meeting stated, “I need to meet with you …” conveying that the meeting was necessary, more than a “catch up”. There was reference to confidentiality which suggested it was serious. In July 2019 the appellant told Dr Smith that she did not take a support person to the meeting as she did not have a person to take. The Arbitrator preferred this more contemporaneous account, to the appellant’s statement prepared nearly a year after the last meeting, that she did not bring a support person as she did not think the meeting was “about anything serious”.[33]
[33] Reasons, [131]–[135].
The Arbitrator said the nine parental complaints were of a kind a school would take very seriously. This applied particularly to the children who were reluctant to attend school on those days when they were in the appellant’s science class. It involved more than a disagreement about teaching methods. The Arbitrator said that the appellant’s response suggested she failed to understand the seriousness of the complaints. She said the fact that Mr Lambert contacted EPAC was appropriate. The Complaints Handling Policy showed that EPAC’s functions included handling parental complaints against staff. The Arbitrator said the Complaints Handling Policy required confidentiality and it was reasonable not to disclose the complainants’ identity.[34]
[34] Reasons, [138]–[143].
The Arbitrator said that Mr Lambert provided copies of minutes of the meetings. Mr Lambert’s statement was dated 7 June 2019, two weeks after the appellant ceased work. The Arbitrator said that, where Mr Lambert’s evidence differed from that of the appellant, she preferred the “contemporaneous statement and the documentary evidence”.[35] The Arbitrator said that the appellant complained that there were inaccuracies in the minutes, but did not explain how the minutes were incorrect. The Arbitrator accepted the minutes were accurate.[36]
[35] Reasons, [146].
[36] Reasons, [148].
The Arbitrator described the meeting on 29 March 2019. She referred to the appellant’s view of the meeting. The appellant said she was not afforded procedural fairness, she was interrogated, her responses were not afforded due respect, she was asked to provide proactive responses to show she was trying to improve her interactions with students. The appellant said she had been advised this was against protocol. The Arbitrator said the minutes reflected a “careful record of a careful discussion”. Mr Lambert had explained the school was seeking to work with the appellant. The appellant was given an opportunity to explain her responses. Mr Lambert explained that EPAC was contacted due to the volume of complaints in a short period. Mr Lambert explained that the next step was review of the PDP goals in view of the need for the appellant to change her manner. He reminded the appellant about the EAP (Employee Assistance Program).[37]
[37] Reasons, [152]–[155].
The Arbitrator referred to the meeting on 8 May 2019, saying “[a]gain, the contemporaneous notes of the meeting contrast with [the appellant’s] summary of it”. The minutes indicated that the appellant asked what had happened to the EPAC complaint, and Mr Lambert said his findings had been sent to EPAC and he was awaiting a response. He said in the meantime adjustments should be made to the appellant’s “PDP goal”. The Arbitrator said the minutes showed the appellant considered “the issues stemmed from a misunderstanding by the parents”, the appellant was resistant to amendment of a PDP goal, and she had little insight into how the complaints had arisen. The Arbitrator said the appellant’s description of the meeting was that Mr Lambert lied about his interactions with EPAC and “in particular that the PDP was part of the process”. The Arbitrator said “[t]his is not what the minutes reveal”. The Arbitrator said the minutes did not suggest “that the PDP form would be sent to EPAC”.[38]
[38] Reasons, [156]–[159].
The Arbitrator referred to the letter dated 13 May 2019, providing a direction under the Code of Conduct. Shortly after being given this letter, the appellant ceased work. Mr Lambert said that at the time the letter was handed over he told the appellant that “a program of support would be arranged”. The letter said its purpose was to support the appellant. It was in clear language and explained the consequences of non-compliance. Mr Lambert stated that the appellant said she “would not accept changes to the PDP and that she would not participate in the support offered”.[39]
[39] Reasons, [160]–[162].
The Arbitrator said that she was required to assess the whole of the process, which may be ‘reasonable’ even if there are some defects. The assessment was to be objective based on what the school knew at the time.[40] The Arbitrator said that the appellant argued the Department’s conduct was unreasonable in:
(a) speaking to EPAC before speaking to her;
(b) not giving her advance notice and denying procedural fairness;
(c) not permitting Ms Mani an opportunity to present her case and investigate the matters she raised;
(d) ignoring what Ms Mani said in her defence, and
(e) not pointing out if a clause of the code of conduct had been breached and if so which one.[41]
[40] Reference was made to Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair).
[41] Reasons, [167].
The Arbitrator said the school had received nine complaints about the appellant’s teaching in a short time in early 2019 and a tenth complaint was received as the disciplinary process began. Mr Lambert was required to consider and act on these. The appellant was not informed of these immediately as Mr Lambert was away from the school. This was not unreasonable, “[i]t was appropriate that the complaints be dealt with by the principal.”[42] The Arbitrator did not accept the appellant’s submission that the complaints were “trivial”. Students were fearful of attending the appellant’s classes, one child was reluctant to attend school on those days when he was taught by the appellant. The complaints were about the consequences of the appellant’s teaching methods and the school was required to take them seriously. This followed the appellant’s role having been changed at the end of 2018 due to other complaints.[43]
[42] Reasons, [172].
[43] Reasons, [172]–[174].
The Arbitrator said the work of EPAC included parental complaints about staff. EPAC and the appellant agreed the complaints could be managed locally. The Complaints Handling policy mandated confidentiality, it was reasonable that the complainants’ identities were not disclosed. Not all of the complaints were disclosed within five days, contrary to the Complaints Handling policy. The Arbitrator said this was not unreasonable given Mr Lambert’s absence from the school.[44]
[44] Reasons, [175]–[177].
The Arbitrator referred to the first meeting, at which there was an attempt to discuss the complaints and the reasons why the appellant’s actions were inappropriate. The appellant accepted some of the issues raised (speaking in a loud voice and tearing pages from children’s books) but did not accept the actions were inappropriate. The appellant was given detail of the complaints and an opportunity to respond in writing. She responded within the 14 days she was given. The Arbitrator said she was satisfied that, at each of the first two meetings, the appellant was “given an opportunity to present her case”. She said the minutes demonstrated the appellant was given an opportunity to say what she wanted to say. In the second meeting, Mr Lambert sought more detail about the appellant’s written responses. The Arbitrator was satisfied Mr Lambert gave the appellant detailed explanation of the teaching areas which required improvement.[45]
[45] Reasons, [178]–[182].
The Arbitrator concluded that because of the serious substance of the complaints, Mr Lambert’s action was both reasonable and necessary. It was a “reasonable process … conducted [in] a reasonable manner and did not amount to bullying and harassment”.
The Arbitrator said the third meeting was to discuss amendment to the PDP. Objectively, this amendment of the goals was necessary to improve performance in the areas where there had been complaints and was reasonable. The appellant considered her professional development was a different thing to the complaints. The fourth meeting was that at which the letter dated 13 May 2019 was handed over. The letter stressed that its purpose was support. This was the first time there was reference to remedial or disciplinary action if the appellant failed to comply. It was handed over in a meeting rather than being sent to the appellant.[46]
[46] Reasons, [184]–[185].
The Arbitrator concluded that the process was conducted in a careful manner over an extended period and was aimed at improving the appellant’s performance as a result of parental complaints about serious issues. The Arbitrator found “the Department’s conduct, taken as a whole, was reasonable conduct with respect to discipline”.[47] That conduct was the cause of the injury and no compensation was payable. There was an award for the respondent.
[47] Reasons, [186]–[187].
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[48] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[49] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[50]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[51]
[48] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[49] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[50] [1996] HCA 140; 140 ALR 227.
[51] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[52] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[53]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[54]
[52] [2017] NSWWCCPD 5, [67].
[53] [2001] FCA 1833, [28].
[54] Raulston, [20].
In Heggie, Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[55]
[55] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[56] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[57]
[56] [2020] NSWCA 54 (Hill).
[57] Hill, [20].
THE LEGISLATION
Section 11A(1) of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
DEPARTMENTAL AND OTHER DOCUMENTS
There is a large body of material in evidence, from documents issued by the Department and the Teachers Federation, that deals with the processes adopted in disciplinary and performance related actions taken by the Department. The test of ‘reasonableness’ in s 11A(1) is an objective one, and is not to be decided simply by reference to whether the respondent complied with its own processes (for example the requirements of Departmental Guidelines).[58] The extent to which the Department complied with its own administrative processes could still be relevant to an assessment of whether its actions or proposed actions were reasonable.
[58] Jeffery v Lintipal [2008] NSWCA 138 (Jeffery) (per Basten JA), [50], Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98, [102].
Code of Conduct
The material before me includes a Code of Conduct, a document on its face issued by the Department.[59] A section of the document deals with “What happens if I breach the Code of Conduct?”. It includes:
“Procedural fairness requires a decision-maker to:
· inform you of the allegations made against you
· give you an opportunity to respond, and
· not have a personal interest in the outcome.”[60]
[59] ARD, pp 279–325.
[60] ARD, p 290.
A section of the document deals with “Duty of care”. The definition of the duty provides in general terms: “A duty of care is the legal obligation to provide reasonable care while performing any acts or making any omissions that could foreseeably harm others.” The discussion of the duty includes:
“21.2. Considerations of safety relate to both physical and psychological wellbeing of individuals.
21.3. As an employee, you have a duty to take reasonable care for the safety and welfare of the children and young people in your care. That duty is to take all reasonable action to protect students, children and young people from risks of harm that can be reasonably predicted. For example, risks from known hazards and from foreseeable risk situations against which preventative measures can be taken. The standard of care that is required, for example the degree of supervision, needs to be commensurate with the students’ maturity and ability.
21.4. Duty of care to students applies during all activities and functions conducted or arranged by schools where students are in the care of employees. The risks associated with any activity need to be assessed and managed before the activity is undertaken.”[61]
[61] ARD, p 310.
Appendix 3 of the document is titled “Fair warning, fair action Empowering managers to support professional behaviour”. It includes:
“If an employee engages in behaviours that are disruptive to the effective functioning of a workplace, managers should respond promptly by using a ‘fair warning’ approach to address the behaviours.
Managers should initially counsel the employee. If the poor behaviour persists, they should meet with the employee and provide them with an opportunity to respond to identified concerns. If necessary, the manager may subsequently provide a written direction. If poor behaviour occurs again, managers have the authority to give the employee a further written direction not to engage in the conduct and a warning that repeated unacceptable behaviour will result in disciplinary action being taken.
If the Code of Conduct is breached a third time, managers have the authority to refer the matter to the Employee Performance and Conduct Directorate (EPAC) with a recommendation that action be taken.”[62]
[62] ARD, p 322.
Appendix 3 also includes the following:
“Is this process procedurally fair?
Yes. An employee has the right to know the basis for any concerns about their conduct and the right to respond to those concerns and be fairly heard. Managers must ensure they have clearly advised the employee about their concerns. This should be done in a face to face meeting. The employee may bring a support person to the meeting and respond at the meeting or within an agreed timeframe.
If an employee refuses to meet to discuss the concerns, managers should make a note of their efforts to meet with the employee and should then proceed with the process, which may include forwarding them a letter of direction.”[63]
[63] ARD, p 323.
Complaints Handling Policy Guidelines
There is a document attached to the ARD with handwriting inserted at the top that reads “From NSW Dept of Education and Training Complaints Handling Policy Guidelines”. Under “Managing a Complaint” it reads:
“When required to manage a complaint, a decision will be required regarding the appropriate procedure in the circumstances.
Any matter which is assessed to be less serious should be resolved using informal resolution unless there is some reason why this approach in considered inappropriate.
A formal procedure will be needed only in those situations where it is not appropriate or not possible to resolve a matter informally.”[64]
[64] ARD, p 326.
Teachers Federation Update – Performance and Development Framework
The ARD includes a document headed “NSW Teachers Federation Current Issues Update”, which includes an article called “Implementing the Performance and Development Framework” (the Framework). It says that it “provides further advice and clarification about the implementation of the Performance and Development Framework”. It includes:
“A key feature of the approach to performance and development is that the individual teacher, executive or principal is ‘the driver’ of their own professional development. While decisions are to be made through negotiation with one’s supervisor, it is important that the teacher is able to determine the direction, focus and actions of the process. This capacity for individual teacher judgement is crucial to defining what it means to be professional.”
And:
“The framework is based on positive, mutually respectful collaboration between professionals. It is not intended to be a process of ‘top-down line management’ where the supervisor directs the teacher … Supervisors are to guide and support colleagues in a negotiated process to meet the requirements of the Framework.
Teachers progress through the processes by developing a Performance and Development Plan (PDP), completing a Self-Assessment and participating in the Annual Review. The structured discussion for the Annual Review will determine the wording to describe the teacher’s progress toward their goals in the agreed, written assessment.”[65]
[65] ARD, p 327.
There are other sections of the document dealing with “Observations of professional practice” and “Goal setting”.[66] There is a section of the document headed “A cautionary note regarding the Australian Institute for Teaching and School Leadership (AITSL)”. It states that the Framework “was jointly developed by the Federation and Department as part of the Terms of Settlement for the Salaries and Conditions Award … The nature and role of AITSL, however, has been changed since then. The Federal Government unilaterally determined that the AITSL board was no longer to be comprised of representatives from educational organisations”. It stated:
“… the AITSL Board is now comprised of direct political appointments. In response to this change, the AEU [Australian Education Union] formally decided to:
· cease cooperation with the current politicised AITSL and its work; and
· continue to support the implementation of professional standards, practices and processes that have been initiated by AITSL prior to June 2015, and negotiated into industrial awards, agreements and teacher registration/accreditation requirements.
Members are therefore advised that the policies, practices and processes produced by AITSL from June 2015 are not to be accepted as educationally sound or reflective of the views of the teaching profession.”[67]
[66] ARD, pp 328–329.
[67] ARD, p 330.
Teachers Federation – Complaints Handling Policy
There is a document bearing the insignia of the NSW Teachers Federation headed “TR6 – Complaints Handling”. The document refers to “various ‘tools’ under the Complaints Handling Policy (January 2017)”. It says that Federation was consulted on the “2017 policy/procedures documents” and “did not agree with many aspects of the final versions released by the Department. However, these are currently the procedures teachers and schools must follow.” The document goes on to set out the following:
“The work of EPAC encompasses management of:
· child protection investigations
· parental and staff complaints against staff and efficiency matters dealt with by the Staff Efficiency and Conduct Team (SECT) of the EPAC directorate
· serious misconduct issues dealt with by the Serious Misconduct Investigation Team (SMIT) of the EPAC directorate …
· Public Interest Disclosures, such as complaints of corruption or maladministration …
These types of matters will be referred to EPAC by the principal for investigation or, if necessary, to some other authority. There are specific details about referral obligations in the Department’s tool ‘Referring the Complaint’.”
Under the heading “What complaints can be resolved under the Complaints Handling Policy and Procedures” it is stated:
“The Department’s policy and procedure apply to any of the following:
· a community member or parent’s ‘expression of dissatisfaction’ about:
–‘any aspect of a service provided (or contracted) by the Department, including’
–‘the behaviour or decisions of staff’
–‘practices, policies or procedures’, and
–‘the way in which the Department has handled a complaint’.”[68]
[68] ARD, pp 331–332.
Guidelines for the Management of Conduct and Performance
The material includes “Guidelines for the Management of Conduct and Performance”, on its face a document issued by the Department. It describes itself as applying generally to “officers (i.e. permanent employees) who are employed by [the Department] under the Teaching Service Act 1980”. A ‘Policy Statement’ at cl 3 of the document includes:
“The objects of the legislative scheme for the management of conduct and performance are:
(a) to maintain appropriate standards of conduct and work related performance for officers in the Teaching Service, officers employed under Chapter 1A of the Public Sector Employment and Management Act2002 in the TAFE Division of the Government Service, and school administrative and support staff (SASS);
(b) to protect and enhance the integrity and reputation of the respective employee groups; and
(c) to ensure that the public interest is protected.
The protection of children is to be of paramount consideration:
(a) in taking any action with respect to an officer or permanent or temporary employee under the Teaching Service Act and Education (School Administrative and Support Staff) Act or an officer or permanent employee in the TAFE Division of the Government Service where the conduct of the TAFE Division officer or employee relates to or involves children;
(b) in dealing with any appeal against, or determining any claim with respect to that action.
This principle recognises the Department’s duty of care towards children who attend schools and TAFE Institutes and the importance of ensuring a safe environment for students at all times.
Courts and Tribunals are required to give paramount consideration to the protection of children when dealing with an appeal against any relevant disciplinary action or any claim made about such action.
The objects of the Acts together with the legislative scheme and these Guidelines demonstrate the management of conduct and performance in the Department is consistent with the rules of procedural fairness. A dual approach is taken to the management of conduct and performance issues.
Performance issues, in particular, can be dealt with in a remedial framework, with disciplinary action being taken when there has not been satisfactory improvement.”[69]
[69] ARD, pp 347–348.
Clause 6.1 sets out “Disciplinary Options”, which range from dismissal down to a caution and/or reprimand. “Remedial options” are dealt with at cl 6.2. It includes counselling (formal and informal), training and development, monitoring an officer’s conduct or performance, implementing a performance improvement plan, issuing a warning and mentoring. Clause 6 says that remedial action “may be relevant” in managing unsatisfactory performance, dealing with misconduct where the decision maker thinks it appropriate, or where an officer or permanent employee has been found guilty of an offence. It says that disciplinary options “may be relevant” where an officer or permanent employee has engaged in misconduct, in dealing with unsatisfactory performance where performance is still unsatisfactory after a performance improvement program has been completed, or where an officer or permanent employee has been found guilty of a “serious offence”. It will be observed remedial action is relevant in managing unsatisfactory performance; disciplinary action is only relevant in unsatisfactory performance matters where performance remains unsatisfactory after a program has been completed.[70]
[70] ARD, pp 352–354.
Clause 8 deals with “Procedural Guidelines for Dealing with Unsatisfactory Performance”. It provides that it “is important that officers or permanent employees who are not meeting the required standards have those issues addressed as soon as performance difficulties are identified”. It provides for ‘Performance Management’ saying:
“The following strategies should be implemented and referred to in dealing with instances of unsatisfactory performance:
· provide and adhere to induction and probation programs;
· ensure there are clearly articulated work standards and performance requirements which are reasonable and attainable;
· provide development plans to assist the officer or permanent employee to reach expected work standards;
· ensure that there is a clear understanding of the work to be performed;
· ensure training and development opportunities, both on and off the job, are provided;
· remove barriers to effective performance.”[71]
[71] ARD, pp 377–378.
The Guidelines state:
“Unsatisfactory performance should be dealt with by the workplace manager/supervisor as soon as performance difficulties are identified. The nature of the unsatisfactory performance should be clearly articulated, with reference to examples. This enables the officer or permanent employee and the manager or supervisor to be clear about the issues.
…
Disciplinary action is not the first choice in managing unsatisfactory performance, but may become necessary when performance is still unsatisfactory following an improvement program. Disciplinary action is only appropriate where performance remains unsatisfactory after the officer has been given a reasonable opportunity to improve his or her performance.”[72]
[72] ARD, pp 378–379.
The Guidelines provide that they are subject to the rules of procedural fairness, and that:
“The officer or permanent employee must have:
· the opportunity to respond to the opinion of the decision maker that his or her performance is still unsatisfactory after remedial action (including an improvement program) has been taken and he or she has been given a reasonable opportunity to improve;
· a separate opportunity to make representations in relation to any disciplinary action being considered.”[73]
[73] ARD, p 379.
The Guidelines deal with “Performance Principles Generally”.[74] The initial “key stage” for dealing with unsatisfactory performance is described as “early intervention and informal counselling and support”. The Guidelines state:
[74] ARD, pp 380–382.
“The primary responsibility for performance management is the officer or permanent employee’s manager/supervisor. Early and effective informal counselling in most cases should address an unsatisfactory performance problem. It is only if action under this stage, has failed to rectify the unsatisfactory performance that consideration needs to be given to involving the subsequent stages. The officer or employee should be given reasonable verbal or written notice of the time, place and purpose of the proposed informal counselling session.
At the outset of the session the manager will:
· outline the purpose of the discussion;
· clarify expectations.
Early and effective informal counselling in most cases will address a work performance problem and inform the employee that their poor work performance is unacceptable.
The manager/supervisor will also:
· confirm the standards and explain how the officer or permanent employee’s performance has differed from those standards by reference to the employees work examples or other relevant documentation;
· outline what she/he considers to be the applicable standards and explain how the officer or permanent employee’s performance has departed from that standard with reference to the officer’s work examples or other relevant documentation;
· provide an opportunity for the officer or permanent employee to respond to the manager’s performance concerns;
· advise the officer or permanent employee of her or his right to use the Department’s dispute resolution procedure if there is a disagreement.”
The Guidelines then deal with the steps to deal with an officer or permanent employee who has been assessed to have unsatisfactory performance following completion of a performance improvement program.[75] These are of limited relevance to the appellant’s situation as she did not complete a performance improvement program.
[75] ARD, pp 382–386.
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Arbitrator erred by failing to determine whether the respondent afforded the appellant procedural fairness. (Ground No. 1)
(b) The Arbitrator erred in finding that the respondent’s conduct was reasonable by accepting generally the contemporaneous evidence of the principal based on his statement and the minutes over that of the appellant. (Ground No. 2)
(c) The Arbitrator erred in finding that the appellant’s evidence showed a lack of insight about her previous claims and took into account a material irrelevant consideration by making findings about the appellant’s prior claims and further making a finding based on a history to doctors that the appellant had a lack of insight regarding the complaints. (Ground No. 3)
(d) The Arbitrator erred in failing to find that the respondent’s conduct in not following policy to inform the appellant of the complaint within five days was nonetheless reasonable. (Ground No. 4)
(e) The Arbitrator erred in determining that the respondent’s conduct was reasonable for the purposes of establishing a defence pursuant to s 11A of the 1987 Act. (Ground No. 5)
(f) The Arbitrator ignored or otherwise failed to engage with the submissions advanced by the appellant that the respondent failed to follow its own processes and acted unreasonably or did not discharge its onus. (Ground No. 6)
GROUND NO. 1
The Arbitrator erred by failing to determine whether the respondent afforded the appellant procedural fairness.
Appellant’s submissions
The appellant submits the first notice she had of the first meeting was an email from Mr Lambert dated 18 March 2019.[76]
[76] Reply, p 45.
The appellant refers to a draft template letter taken from the Department’s Guidelines for the Management of Conduct and Performance.[77] The appellant quotes from the commencement of the draft letter, which reads:
“I have carefully considered an allegation of possible misconduct that was referred to me for consideration. The allegation was that you (specify the details of the misconduct) …”.[78]
[77] ARD, pp 343–430.
[78] ARD, p 397.
The appellant submits that “[i]nstead of providing the [a]ppellant with that advance notice and specifying as the [r]espondent had to, the actual details of the allegations amounting to misconduct, the [r]espondent simply notified the [a]ppellant of a meeting.” The appellant submits this was “entirely unreasonable”; the appellant was entitled to procedural fairness and a reasonable opportunity to make her own enquiries, seek advice, prepare a written response to each of the allegations and seek further particulars. “This was critical to enable the appellant to face the meeting the following day.” The appellant submits this process was not followed, and the Arbitrator did not find that it was.[79] The appellant submits she was placed in the meeting on the following day facing, for the first time, “allegations of misconduct in a room with witnesses which would have been intimidating and frightening”.[80]
[79] Appellant’s submissions, [2]–[5].
[80] Appellant’s submissions, [6].
The appellant submits this procedural fairness flaw involved the denial of a “fundamental right”. The appellant refers to the decision of Geraghty CCJ in Irwin v Director-General of School Education,[81] cited with approval in the Court of Appeal in Commissioner of Police v Minahan:[82]
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
[81] Compensation Court of New South Wales, 18 June 1998, No 14068 of 1997, unreported.
[82] [2003] NSWCA 239 (Minahan), [27], [28], [42].
The appellant submits she “was ambushed the following day in a meeting completely blind and ignorant of the nature of the allegations”. The appellant submits this issue was specifically raised and the Arbitrator failed to determine it. The appellant submits this involved “jurisdictional error” or a constructive failure to exercise jurisdiction, citing Mitchell v Cullingral Pty Ltd.[83] She submits the Arbitrator failed to provide adequate reasons.[84]
[83] [2012] NSWCA 389, [116].
[84] Appellant’s submissions, [7]–[12].
Respondent’s submissions
The respondent submits that, when the complaints were raised with the appellant at the first meeting, this “produced multiple denials”. The respondent submits that, following the first meeting, the appellant undertook her own investigations and concluded that Mr Lambert’s concerns were “exaggerated and blown out of proportion”. The respondent submits it was reasonable that it was the headmaster who discussed the complaints with the appellant, rather than individual teachers to whom the parental complaints were made. The appellant perceived there had been “collusion” between staff.[85]
[85] Respondent’s submissions, [5]–[6].
The respondent submits the Arbitrator quoted the passage from Irwin (referred to by the appellant and quoted above). She also had regard to the decision of Truss J in Ivanisevic v Laudet Pty Ltd,[86] also cited with approval in the Court of Appeal in Minahan, her Honour saying:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[86] 24/11/98, unreported.
The respondent refers to the passage in Sinclair in which the Chief Justice said that “a course of conduct may still be ‘reasonable action’ even if particular steps are not”. It submits that, even if there was a “technical breach’ in when the complaints were raised with the appellant, due to Mr Lambert’s absence from the school, this was “subsumed” by other things. Mr Lambert was overwhelmingly kind and encouraging in his later interactions with the appellant, before she ended the conversation and walked out on the proposed professional development supports being offered. The respondent submits the Arbitrator, in the reasons at [168], did not accept any of the worker’s case on ‘reasonableness’, including the allegation of procedural unfairness.[87]
[87] Respondent’s submissions, [7]–[10].
Appellant’s submissions in reply
The appellant submits the deficiencies in the late and inadequate notice of the first meeting constituted a “fundamental flaw” in the discipline process. The appellant’s criticisms are not adequately dealt with by the Arbitrator’s reasons at [168], in which the various criticisms are dismissed as a whole.
The nature of the duty to provide procedural fairness
The appellant submits that she “was entitled to be afforded procedural fairness”. The respondent’s submissions do not argue otherwise.
The appellant’s submissions proceed on a basis, submitted to be consistent with that entitlement, that the respondent was obliged before the first meeting, to furnish the appellant with “the actual details of the allegations amounting to misconduct”. It was additionally submitted to be necessary that she be given an opportunity to “make her own enquiries, seek advice, and to prepare a written response to each and every one of the allegations and further seek additional particulars, if necessary”. It was submitted all of these aspects of the duty needed to be complied with before the first meeting, “critical to enable the appellant to face the meeting the following day”.[88]
[88] Appellant’s submissions, [4].
In Kioa v West Mason J (as his Honour then was) said:
“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”[89]
And:
“When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?”[90]
[89] [1985] HCA 81; 159 CLR 550 (Kioa) (per Mason J), [31].
[90] Kioa (per Mason J), [34].
In the same case Brennan J (as his Honour then was), to similar effect, said:
“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.”[91]
And:
“As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised.”[92]
And:
“Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v. Environment Secretary, at p 97:
‘To ‘over-judicialise’ the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.’”[93]
[91] Kioa (per Brennan J), [15].
[92] Kioa (per Brennan J), [35].
[93] Kioa (per Brennan J), [38].
In the same case, Deane J observed that there may be circumstances where the content of procedural fairness is restricted by circumstances (his Honour gave the example of the possibility of a prohibited immigrant going into hiding).[94]
[94] Kioa (per Deane J), [7].
In Minister for Immigration and Border Protection v WZARH, the plurality said:
“It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.”[95]
[95] [2015] HCA 40; 256 CLR 326; 326 ALR 1; 90 ALJR 25; (WZARH), [30].
In Saeed v Minister for Immigration and Citizenship the plurality said “… what is required to provide procedural fairness according to the rule will vary. Natural justice is flexible and adaptable to the circumstances of the particular case.”[96] In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam Gleeson CJ said “[w]hether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”[97]
[96] [2010] HCA 23; 241 CLR 252 (Saeed), [18].
[97] [2003] HCA 6; 214 CLR 1; 195 ALR 502; 77 ALJR 699 (Lam), [37].
Consideration
The appellant argues that, before the first meeting, she was entitled to be provided with actual details of the allegations, together with a reasonable opportunity to make enquiries, to seek advice, to prepare a written response to each and every one of the allegations and to seek further particulars. The appellant submits this was “a fundamental process of disciplinary action” which was not followed.[98] The appellant’s submissions state this was “critical to enable the appellant to face the meeting the following day”. She submits that otherwise she would “face, for the very first time, allegations of misconduct in a room with witnesses which would have been intimidating and frightening”.[99]
[98] Appellant’s submissions, [9].
[99] Appellant’s submissions, [4], [6].
The appellant’s submissions describe her as being “ambushed” in the first meeting, “completely blind and ignorant of the nature of the allegations which had been made against her for the very first time”.[100]
[100] Appellant’s submissions, [9].
Apart from the appellant, the only people present at the first meeting were Mr Lambert and Ms Hutton (the acting deputy principal).[101] As a matter of common sense it was necessary that someone from the school, additional to Mr Lambert, be present. There were no other witnesses there. The appellant had been invited to bring a support person but had not done so. Clearly it was necessary that the allegations be communicated to the appellant. Mr Lambert did this orally at the meeting. At the commencement Mr Lambert told the appellant that he liked her, that he had contacted EPAC about “some issues” and was told to “sort the issues locally”.[102]
[101] Appellant’s statement, ARD, p 2.
[102] Appellant’s statement, ARD, p 2.
The Code of Conduct describes the procedural fairness requirements of a decision maker dealing with a breach of the code of conduct (see [45] above). Mr Lambert’s actions at the first meeting complied with that duty; he informed the appellant of the allegations, she was given an opportunity to respond in writing at a later time, Mr Lambert is not suggested to have had a personal interest in the outcome.
The Code of Conduct at cl 7 refers to the “Fair Warning – Fair Action factsheet”.[103] The procedural fairness requirements are described in Appendix 3 (see [48] above). The appellant was entitled to know the basis for concerns about her conduct, which “should be done in a face to face meeting”. This Mr Lambert did. The appellant was told she could bring a support person and was given a right to respond within an agreed timeframe. The appellant, in her statement, says that if she had not requested the list of complaints “then [Mr Lambert] would not have voluntarily provided them to me”.[104] There is no clear basis for this assertion.
[103] ARD, p 290.
[104] ARD, p 2.
The appellant makes no developed submission, and refers to no authority, in support of her argument that the content of procedural fairness in the circumstances of the case required compliance with all of the matters referred to in [78] above, and that such steps needed to be taken prior to the first meeting. I reject the appellant’s submissions on these matters. The appellant’s submissions on the content of procedural fairness in the circumstances “over-judicialise” the duty (to borrow Lord Diplock’s term – see [74] above). In Ridge v Baldwin Lord Hodson, after referring to the varying requirements of the rule, depending on the circumstances of the case, the nature of the inquiry, the rules under which a tribunal acts and the subject matter, observed:
“No one, I think, disputes that three features of natural justice stand out – (1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges.”[105]
[105] [1964] AC 40, 132.
These fundamental principles of procedural fairness are referred to in the various Departmental and other documents referred to above that deal with the topic (see [45] and [48] above).
The appellant is critical that the allegations were not made known to her prior to the first meeting. At whatever time the allegations were disclosed, the preferable course appears to have been that this be done in person at a meeting. This was consistent with the procedures in the Code of Conduct (see [48] above). It would be anticipated to be less confronting and less legalistic than simply furnishing the appellant with a written list of allegations. The appellant does not nominate a basis on which the furnishing of the allegations in person was inappropriate. It had to be done at some time. There had to be a meeting at which this first notice was given. The Guidelines for the Management of Conduct and Performance required that unsatisfactory performance be dealt with “as soon as performance difficulties are identified” (see [57] above). This is consistent with the provision in the Guidelines that “protection of children is to be of paramount consideration” (see [54] above).
I do not accept that there was some failure to provide procedural fairness in Mr Lambert’s failure to use the template letter referred to.[106] The allegations (which were complaints by parents) were discussed with the appellant at the first meeting, and details of the complaints were forwarded to the appellant by email on the evening of 19 March 2019, the date of the first meeting.[107] It was agreed with the appellant that she would place her responses in writing after speaking to the Teachers Federation.[108] This was consistent with the procedural fairness requirements outlined in the Departmental documents. It was consistent with the fundamental requirements referred to in the passage quoted at [83] above. I do not see that it involved practical injustice (see [77] above).
[106] ARD, p 397.
[107] Reply, p 49.
[108] Reply, p 48.
I do not accept that the absence of procedural fairness alleged by the appellant in Ground No. 1 is made out.
The appellant submits that the Arbitrator failed to deal with the procedural fairness argument, which involved jurisdictional error and a failure to furnish adequate reasons.[109]
[109] Appellant’s submissions, [10].
The Arbitrator made various factual findings relevant to the procedural fairness issue. She concluded that there were sufficient indicators to convey that the first meeting was “about a serious matter”, the appellant should have known it was “more than a ‘catch up’”.[110] At the first meeting, the appellant was informed of the series of complaints and was told that EPAC had been informed. The Arbitrator said the complaints were of the type that a school would take seriously, children being reluctant to attend school when they had science classes with the appellant and being publicly embarrassed in front of their peers.[111] The Arbitrator concluded it was reasonable that Mr Lambert did not disclose the complainants’ identities; the Complaints Handling Policy required confidentiality and the appellant was still teaching at the school.[112]
[110] Reasons, [132]–[135].
[111] Reasons, [136]–[138].
[112] Reasons, [143].
The Arbitrator said that, rather than sending the appellant “a series of complaints”, Mr Lambert “sought to discuss them in a meeting” (that of 19 March 2019). He offered the appellant a support person, at the opening of the meeting (which he offered to defer) which she declined. The Arbitrator accepted the evidence of Mr Lambert, which she described as contemporaneous, and the minutes he had prepared. Mr Lambert asked the appellant to respond to the allegations in writing and emailed the minutes to her. Mr Lambert confirmed the appellant should seek advice from her union. He gave her 14 days to do so and to respond in writing. She was informed of the additional complaint which had been received.[113]
[113] Reasons, [144]–[149].
The appellant’s attack on the Arbitrator’s reasons, in Ground No. 1, has focussed on the first meeting, held on 19 March 2019. The reasons dealt also with the meeting on 29 March 2019 and an argument that procedural fairness was not afforded in that meeting. The Arbitrator referred to the appellant’s argument that she was interrogated, that her responses did not receive due respect, and that she “was asked to provide pro-active responses”. The Arbitrator said that a reading of the minutes of the second meeting reflected “a careful record of a careful discussion and show that [the appellant] was provided with an opportunity to explain her responses”. It was recorded that the appellant “needed to change her manner and take account of all learners in her care” and that the appellant’s “PDP goals would be reviewed in the following term”.[114]
[114] Reasons, [152]–[155].
The meeting on 8 May 2019 was dealt with briefly. Mr Lambert said he had sent his findings to EPAC and was awaiting a response. He said adjustments should be made to the appellant’s PDP goal. The minutes recorded the appellant considering there had been “a misunderstanding by the parents”. She was resistant to amendment of a PDP goal to address classroom management. “She said she felt stressed and was allowed time to consider the goal”. The Arbitrator rejected an assertion by the appellant that Mr Lambert lied about his interactions with EPAC.[115]
[115] Reasons, [156]–[159].
The Arbitrator referred to the short meeting on 13 May 2019 in which the appellant was given the letter of that date. The Arbitrator noted that Mr Lambert told the appellant that “a program of support would be arranged”. The letter was in clear terms. Mr Lambert stated that the appellant said she “would not accept changes to the PDP and that she would not participate in the support offered”. She ceased work shortly afterwards.[116] The Arbitrator then dealt with whether the respondent had discharged its onus of establishing that its relevant actions were ‘reasonable’ for the purposes of s 11A(1). That topic is covered in other grounds which are dealt with below. The reasons include findings at [167] to [168] in the following terms:
[116] Reasons, [160]–[162].
“167. Ms Mani’s case is that the Department’s conduct was unreasonable in:
(a)speaking to EPAC before speaking to her;
(b)not giving her advance notice and denying procedural fairness;
(c)not permitting Ms Mani an opportunity to present her case and investigate the matters she raised;
(d)ignoring what Ms Mani said in her defence, and
(e)not pointing out if a clause of the code of conduct had been breached and if so which one.
168. I do not accept that any of those matters have been made out. As I said above, I accept the generally contemporaneous evidence in Mr Lambert’s statement and the minutes of the meeting over that of Ms Mani.”
The appellant refers to the reasons at [167] to [168] and submits the Arbitrator “did not provide a single reason or any adequate reasons” for her conclusion. It is submitted this involved jurisdictional error and a failure to provide adequate reasons.[117]
[117] Appellant’s submissions, [10]–[12].
It is necessary that the Arbitrator’s reasons be read as a whole.[118] The Arbitrator’s reasons relevant to the procedural fairness issue were not confined to those at [167] to [168]. The Arbitrator’s reasons and fact finding relevant to multiple matters that go to the procedural fairness are summarised at [89] to [93] above. The findings go to the notice that was given of the complaints, the opportunity given to the appellant to respond to the complaints, the availability of a support person, the opportunity to seek advice from the appellant’s union, the Teachers Federation, and to the program that was referred to in the letter of direction, before the appellant went off work and ceased to participate in the process. The Arbitrator’s reasons, on a fair reading and read as a whole, were adequate to comply with her duty to give reasons dealing with the procedural fairness issue.[119] The submission that the Arbitrator failed to engage with the procedural fairness issue raised by the appellant is without merit
[118] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
[119] Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (per McColl JA), [56]–[67], NSW Police Force v Newby [2009] NSWWCCPD 75, [147]–[151].
Ground No. 1 fails.
GROUND NO. 2
The Arbitrator erred in finding that the respondent’s conduct was reasonable by accepting generally the contemporaneous evidence of the principal based on his statement and the minutes over that of the appellant.
Appellant’s submissions
The minutes of the first meeting[120] record the allegations being initially put to the appellant and the appellant’s response. They record Mr Lambert’s suggestions “moving forward”. The appellant submits this was not the only “contemporaneous” documentation. There was an email from the appellant to Mr Lambert dated 21 March 2019.[121] She said she was “seriously concerned about this ‘yelling business’.” She said she had good rapport with her students and no behaviour issues when she was teaching science. She said a couple of teachers of the classes she took, on a ‘relief from face to face’ basis, said the students loved her. She described an allegation in Mr Lambert’s email to her as “so untrue”. She said she never got upset with Kindergarten students.
[120] Reply, pp 46–48.
[121] Reply, p 53.
The appellant’s submissions refer to the minutes from the second meeting.[122] She submits the minutes set out her reasons for why the allegations were “either untrue or inaccurate” and offered “pathways to try and avoid any concerns”. She submits the emails and minutes were “contemporaneous evidence”, yet the Arbitrator did not make findings about these responses, what was accepted and what was not. The appellant submits that, in the absence of such findings, it could not be said that issue of the letter of direction dated 13 May 2019 was reasonable.[123] She submits it was erroneous to determine the respondent’s conduct was reasonable, purely on the basis that documents produced by the respondent were contemporaneous. The appellant submits “this was not a Watson v Foxman[124] case”. The contemporaneous evidence contained two versions expressing inconsistent views.[125]
[122] Reply, pp 58–63.
[123] Appellant’s submissions, [18]–[20].
[124] (1995) 49 NSWLR 315.
[125] Appellant’s submissions, [22]–[23].
The appellant submits it was necessary that the Arbitrator examine the evidence overall in dealing with the issue of reasonableness. It could not be properly done without making findings regarding why she rejected the appellant’s evidence expressed in the minutes and emails. This required careful consideration of the appellant’s evidence, particularly by reference to the appellant’s statement.[126]
[126] Appellant’s submissions, [24]–[25].
Respondent’s submissions
The respondent submits it was the Arbitrator’s job to evaluate the evidence and decide who to believe. In the email dated 21 March 2019, the appellant said that she was “seriously concerned about the ‘yelling business’”. It is unclear whether she accepted it as a “real issue for management or not”. She walked out on the PDP proposal. The appellant disputed certain allegations. It was not the Arbitrator’s task to “adjudicate every minute complaint”, but rather to assess the reasonableness of the employer’s actions taken as a whole. It was open to the Arbitrator to accept Mr Lambert’s version and to reject that of the appellant, which she did. The respondent submits that “every case is a Watson v Foxman case in the sense that in every case it can reliably be assumed that human memory is fallible and ‘overlaid by perceptions of self-interest’.”[127] The respondent submits the “two versions” of the evidence to which the appellant refers “[have] not been identified”. The Arbitrator was entitled to reject the appellant’s evidence based on the impression formed of her credibility. There were “further matters” identified by the Arbitrator in support of her reasoning.[128]
[127] Watson v Foxman (per McLelland CJ in Eq), 319.
[128] Respondent’s submissions, [11]–[16].
Appellant’s submissions in reply
The appellant refers to the submission that the Arbitrator was entitled to reject the appellant’s evidence on the basis of an impression regarding her credibility. The appellant submits the respondent has not identified the factual basis for such a decision, nor the basis on which such a conclusion could be made and sustained on appeal. The appellant submits the Arbitrator did not identify an impression of the appellant’s credibility. She did not find that the appellant was untruthful (reference is made to the reasons at [169]). She did not find there was deliberate exaggeration. The finding that was made was that the appellant laboured under a lack of insight. This finding is submitted to be irrelevant and one that should not have been made. She also “followed the reliability of contemporaneous documents”. The appellant submits the respondent has not responded to her argument that the Arbitrator failed to engage with contemporaneous documents that set out the appellant’s position (see [98] above).
Consideration
The Arbitrator made the following findings relevant to the acceptability of the appellant’s evidence:
(a) The appellant, in her statement dated 21 May 2020, said that Mr Lambert “told me to bring a support person” (to the first meeting on 19 March 2019) but she did not do so as she “did not think that the meeting was going to be about anything serious”.[129] The Arbitrator referred to a history from the appellant, recorded by Dr C Smith in his report dated 15 July 2019, that “she did not have a support person because she was not part of the various cliques and groups in the school”. The Arbitrator referred to matters in Mr Lambert’s email dated 18 March 2019 asking the appellant to attend the meeting, which the Arbitrator considered were sufficient to convey to the appellant that the meeting “was about a serious matter” (see [22] above). The Arbitrator, accepting the earlier history to Dr Smith in preference to the version in the appellant’s statement, concluded that “the contemporaneous history is more likely to be correct”.[130]
(b) The Arbitrator said the complaints were of a kind that a “school would be expected to take very seriously”, particularly those relating to reluctance of children to attend school on the day of the appellant’s science classes and children being publicly embarrassed in front of their peers. The Arbitrator was satisfied the parental complaints “were serious and that they reflected more than a disagreement about teaching methods”. She said that the appellant’s responses “suggest that she did not understand the seriousness of the complaints. She has interpreted efforts to resolve those complaints as intimidating and threatening.”[131]
(c) The Arbitrator said: “Ms Mani said that there were inaccuracies in the minutes but did not explain what they were. In the absence of an explanation as to how they were incorrect, I accept that the minutes are accurate.”[132]
(d) “Between the first and second meetings Ms Mani saw Dr Ducic three times, including on the afternoon of the meeting. On 22 March Ms Mani told Dr Ducic that she felt that Mr Lambert was ‘not right to tell her about the complaints, felt that parents should talk to her first.’ That complaint suggests a lack of insight and a lack of understanding of the seriousness of the complaints. The parents made the complaints to the school rather than to Ms Mani. Once the complaints were made, Mr Lambert was required to act on them.”[133]
(e) “Again, the contemporaneous notes of the meeting [on 8 May 2019] contrast with Ms Mani’s summary of it …
The minutes reflect that Ms Mani again sought to discuss the issues and that she considered that the issues stemmed from a misunderstanding by the parents. The minutes show that Ms Mani was resistant to amendment of a PDP goal to address the issues about classroom management and that she had little insight into how the complaints had arisen and how she should respond. She said she felt stressed and was allowed time to consider the goal.”[134]
(f) “Ms Mani said that Mr Lambert lied about his interactions with EPAC, in particular that the PDP was part of the process. That is not what the minutes reveal. There is no suggestion in the minutes that the PDP form would be sent to EPAC.”[135]
(g) The Arbitrator’s findings at [167] to [168] are set out at [93] above.
(h) “I accept that Ms Mani is telling the truth about her perception of what occurred. Ms Mani’s evidence shows a lack of insight about her previous claims. It is accepted that the Commission did not make any findings in previous proceedings despite the history she has given to medical practitioners that her claims were vindicated. Her evidence also shows a lack of insight in respect of the complaints which are the subject of these proceedings. Her subjective view does not assist in the objective assessment of the actions taken by the Department.”[136]
[129] ARD, p 2.
[130] Reasons, [131]–[135].
[131] Reasons, [138]–[139].
[132] Reasons, [148].
[133] Reasons, [151].
[134] Reasons, [156]–[157].
[135] Reasons, [159].
[136] Reasons, [169].
The appellant refers to the Arbitrator’s conclusion at [172] of the reasons. A reason relied on by the Arbitrator, in how she dealt with non-compliance with the provision for notification within five days, was that Mr Lambert was away from the school and it was appropriate that the complaints were dealt with by him. The appellant attacks this on appeal, arguing there was no evidence that Mr Lambert could not have complied within the five day notification period through the use of email, telephone or delegation.
The submission on delegation is dealt with by the Arbitrator at [172] of the reasons, it was appropriate that such a matter be dealt with by the principal. The appellant did not, at first instance, submit that compliance with the notification process could have been dealt with through email communication or by telephone. It is a submission of a type that the respondent could potentially have responded to, possibly with evidence. Without more, the availability to Mr Lambert of email or telephone communication in the circumstances is not known. It may also have been possible for evidence to be adduced or submissions made regarding the propriety of giving notification to the appellant in such ways. This is particularly so given the previous complaints and associated treatment when such situations had occurred previously. The appellant should not be allowed to rely on these submissions on appeal.[196]
[196] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7].
The submission that the appellant was left with less than 24 hours’ notice and inadequate time to prepare for the meeting agitates matters that are dealt with in the discussion regarding Ground No. 1.
Ground No. 4 fails.
GROUND NO. 5
The Arbitrator erred in determining that the respondent’s conduct was reasonable for the purposes of establishing a defence pursuant to s 11A of the 1987 Act.
Appellant’s submissions
The appellant submits that in the reasons at [178] to [187] (dealing with the reasonableness of the respondent’s conduct at the various meetings) no reference was made to the appellant’s statement.[197]
[197] Appellant’s submissions, [53].
The appellant, submitting on this ground, nominates various factual findings made by the Arbitrator which are said to be erroneous. It is submitted that the Arbitrator incorrectly concluded that the “various tests” identified by her were satisfied. The alleged errors identified by the appellant are as follows:
(a) The Arbitrator found, on the basis of “alleged concessions made by the [a]ppellant at [the first] meeting”, that the appellant had a loud voice and had torn some pages out of children’s books.[198] These findings were not properly available. The appellant said she had a loud voice but “only in the context of boys misbehaving where she had to bring them into line”. A finding that she “had a loud voice at all times (presumably) was wrong”. The appellant refers to the minutes of the first meeting, in which the appellant said she had “ripped out student’s work although she claimed it had only occurred once or twice and was usually done because things were incorrectly placed in their books”. The appellant submits the “finding” was “devoid of the explanation”.[199]
(b) The Arbitrator found that Mr Lambert, at the first meeting, did not ignore what was said by the appellant in her defence. The Arbitrator found the appellant was “given the opportunity to say what she wanted to say in the second meeting”.[200] The appellant refers to the minutes describing the second meeting. It is submitted Mr Lambert engaged in “inquisitorial conduct” and asked a series “of irrelevant questions” questioning the appellant’s credibility. The appellant refers to the third meeting, and submits Mr Lambert launched “a vociferous attack” on the appellant, trying to get concessions. This was in front of other people and would have been embarrassing. The appellant submits the Arbitrator needed to give reasons for why Mr Lambert’s “excessive and unnecessary” conduct was reasonable. [201]
(c) The appellant was an “experienced and highly qualified teacher”. She was placed under supervision (something submitted to have been ignored by the Arbitrator) and was required to have a Performance Development Plan in place. The appellant submits the school’s response outweighed the seriousness of the issue, which involved “a difference of opinion in teaching styles”.[202]
(d) It is submitted the Arbitrator “did not undertake a careful analysis of the minutes”. It is submitted the Arbitrator’s determination was “unsupported by factual findings”.[203]
[198] Reasons, [180].
[199] Appellant’s submissions, [53]–[58].
[200] Reasons, [181].
[201] Appellant’s submissions, [59]–[65].
[202] Appellant’s submissions, [66]–[67].
[203] Appellant’s submissions, [68]–[69].
Respondent’s submissions
The respondent nominates multiple references in the reasons to the appellant’s statement.
The respondent submits it is “not clear” why it was “not open” to the Arbitrator to make findings on the basis of the admissions made by the appellant that she ripped pages out of students’ books once or twice. It submits Mr Lambert could “not conduct a reasonable inquiry without asking questions”. To characterise the conversation as an ‘interrogation’ “belies the attitude of the worker and underscores the delicacy with which the headmaster approached the task”. The assertion that Mr Lambert’s behaviour was “excessive and unnecessary” is unfounded. There was, in the complaints, prima facie evidence of harm to children. The appellant “denied them and refused to co-operate”. It was reasonable for Mr Lambert to press the appellant on this issue, the respondent had “responsibilities to society and the cause of public education”.[204]
[204] Respondent’s submissions, [22]–[25].
Appellant’s submissions in reply
The appellant submits the Arbitrator did not refer to the appellant’s statement at [178] to [187] of the reasons, “critical paragraphs”. The appellant does not identify which of the respondent’s submissions are the subject of the submissions in reply at [29]. The appellant again submits that she was not given advance notice of the subject matter of the first meeting or prior notice of the specific allegations. The appellant submits it is difficult to understand how such a process involves delicacy. The appellant submits there was no prima facie evidence of harm to children. The appellant submits that whether Mr Lambert “gently” pressed the appellant (which is disputed) is irrelevant, the issue is reasonableness. It is submitted the appellant’s submissions commencing at [61] (presumably of its submissions on the appeal) have not been answered.[205]
[205] Appellant’s submissions in reply, [26]–[36].
Some fundamental principles
Grounds Nos. 5 and 6 raise issues going to the finding of reasonableness pursuant to s 11A(1).The series of principles set out by Sackville AJA in Heggie should be borne in mind. “Action with respect to discipline [extends] to the entire process involved in disciplinary action, including the course of an investigation”. The employer carries the burden of proof on the issue of whether its action was ‘reasonable’. The test is objective. It is insufficient that the employer believed in good faith that its actions were reasonable, or that it was compelled to act as it did. “The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.”[206]
[206] Heggie, [59].
The appellant challenges the Arbitrator’s finding, that the respondent’s actions in respect of discipline were reasonable, at various points in its submissions on this appeal. The issue of ‘reasonableness’ was described in Heggie as an “evaluative judgment”.[207] In Vines v Australian Securities and Investment Commission Spigelman CJ said:
“Where, as here, the relevant statutory test turns on whether or not the Court is ‘satisfied’ of a matter involving a broad evaluative judgment, then the case law indicates that the degree of restraint which an appellate court should manifest is of the same order as that applicable to a discretion, in the strict sense of that word. A statutory provision expressed in terms of whether a decision maker is ‘satisfied’ of a particular matter is accurately characterised as conferring ‘a very wide discretion’.”[208]
[207] Heggie, [71], [171].
[208] [2007] NSWCA 126, [8].
This approach on appeal, to an arbitrator’s finding on issues of ‘reasonableness’ in matters involving s 11A(1), has been applied in a number of Presidential decisions.[209]
[209] See for example St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64, [147]–[148]; Undag v Bupa Care Services Pty Ltd [2014] NSWWCCPD 67, [57]–[58]; State of New South Wales v Phelan [2017] NSWWCCPD 29, [104]–[105]; Westpac Banking Corporation v Mani [2019] NSWWCCPD 41, [170].
Consideration
Dealing with the submissions summarised at [163(a)] above, the Arbitrator, in summarising the first meeting, said:
“At the first meeting Ms Mani accepted some of the issues raised though she did not accept her actions were inappropriate. She agreed she had a loud voice. She agreed she had torn some pages out of children’s books.”[210]
[210] Reasons, [180].
The relevant passages from the minutes read:
“Mrs Mani acknowledged that she has ripped out students work, though she claimed it had only occurred once or twice and was usually done because things were incorrectly placed in their books.”
“Mrs Mani said ‘My voice is very loud, so yes, I yell. Some boys misbehave and I have to bring them into line.”[211]
[211] Reply, p 47.
The Arbitrator was doing little more than summarising the relevant passage from the minutes. The appellant seeks to make her point by suggesting the Arbitrator’s findings (if this is an appropriate term) were not confined in the way they were in the minutes. The appellant submits the finding that the appellant “simply had a loud voice at all times (presumably) was wrong and contrary to the evidence”.[212] This was not what the Arbitrator said. The appellant argues that, if the Arbitrator had said something different to what she did say, the alternate version would have been erroneous. This does not constitute error. In relation to the point about ripping out pages, the Arbitrator did not include the proviso that it only occurred once or twice, and then “usually” because things had been placed incorrectly. If the qualification that it only occurred once or twice were taken literally, it is difficult to see there could be any reason, “usually”, for why it occurred. This suggests the phrase “once or twice” was being used colloquially to mean a small number of times. By using the words she did to summarise this small aspect, the Arbitrator used words that were accurate without being nonsensical by referring to the usual reason for something happening, when it had only occurred once or twice. This is to an extent conjecture. I cannot see that this small anomaly in the description of pages being ripped out had the capacity to change the result. It was not a matter of substance. Reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.[213]
[212] Appellant’s submissions, [56].
[213] Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; 185 CLR 259, [30].
The matters raised in the summary at [163(b)] above go to Mr Lambert’s conduct when interviewing the appellant at the meetings. The appellant, in dealing with this ground, has again made the submission that the Department’s response outweighed the seriousness of the issue, which involved “a difference of opinion in teaching styles”. The Arbitrator rejected a similar submission at first instance:
“173. I do not accept that the complaints were as trivial as Mr Baran submitted. The complaints were about actions which made students fearful of attending Ms Mani’s classes because she spoke loudly and embarrassed children in front of their peers. One child was reluctant to even attend school on those days. While speaking loudly might be described as an outdated teaching method, the complaints were about the consequences of those methods on the children. The school was required to take them seriously.
174. Even if the complaints were not serious, the sheer number of complaints in a short period required action, particularly where Ms Mani’s role had been changed at the end of the previous year after the other complaints described in Mr Lambert’s statement.”
The Arbitrator’s findings set out in the previous paragraph were well open to her on the evidence overall. I agree with them. This is relevant to the submissions that attack the reasonableness of Mr Lambert’s conduct at the meetings. He was dealing with a problem that had to be taken seriously.
The paragraphs of the reasons which deal with the interviews at the meetings are [178] to [185]. These passages (except for [180] which is set out at [170] above) are as follows:
“178. The first meeting that Ms Mani attended was an attempt to sit down with Ms Mani to discuss the complaints and explain why her actions were inappropriate. She was given detail of the complaints and provided with an opportunity to respond in writing. She was offered a delay to obtain a support person and referred to the EAP. She was given 14 days to respond but did not take that long.
179. I am satisfied that Ms Mani was given an opportunity to address the issues at the second meeting. At both of those meetings she was given an opportunity to present her case.
…
181. I am satisfied that Mr Lambert did not ignore what she said in her defence. The minutes of the first and second meetings show that Mr Lambert was careful to give Ms Mani an opportunity to present her case, though he was sometimes required to direct her attention to the matters under discussion. She sought - and was given - an opportunity to say what she wanted to say. In the second meeting, he sought more detail about Ms Mani’s written responses.
182. While the Code of Conduct is relevant, it is not the only document which governs teaching practice. It was one of the sources of the direction imposed by Mr Lambert. He also relied on the Teaching Service Regulation 2012. I am satisfied that Mr Lambert gave Ms Mani a detailed explanation of the areas in which her teaching practice required improvement.
183. The Department did not, however, accept Ms Mani’s explanations of her conduct. Ms Mani said that the rights of the children at the school had to be weighed against her right to be employed in a safe environment, free of bullying and harassment. Because of the serious substance of the complaints, Mr Lambert’s action was not only reasonable but necessary. I am satisfied that the process undertaken was a reasonable process, was conducted in a reasonable manner and did not amount to bullying and harassment.
184. The third meeting on 8 May 2019 was arranged to discuss amendment of the PDP. The minutes suggest that Ms Mani considered that her professional development was quite separate to resolving the complaints. Objectively, the amendment of the goals to seek to improve Ms Mani’s performance in the areas in which there had been complaints was reasonable.
185. The fourth meeting was called to give Ms Mani the letter dated 13 May 2019. Mr Lambert stressed that the purpose of the direction was support. The letter was the first time in 2019 that there was any reference to disciplinary or remedial action if she did not comply. It was handed to her in a meeting rather than being sent to her.”
The appellant refers to the minutes of the meeting on 29 March 2019 (the second meeting).[214] The appellant submits Mr Lambert was “inquisitorial” and asked “a whole series of irrelevant questions” to question the appellant’s veracity. The appellant refers to two examples of this, “is that the truth Jumna?” and “is that seriously what you want written in the minutes?” The appellant refers particularly to a passage of the minutes commencing under the heading “Responses to parental complaints”. After some discussion about why the complaints came to Mr Lambert rather than the appellant direct, Mr Lambert asked the appellant “how we can work together to rectify the issues raised about voice projection”. The appellant repeated her written response that she had a loud voice to project her voice. She was asked to respond to the complaint about a child being too afraid to come to school. She responded that if the complaints were brought to her she could call the parents. Asked about a child that was afraid to come to school and went to sick bay rather than attending science, the appellant said that the children misunderstood her, she did not yell and did not have any problems in her class. When pressed on having a child afraid to come to school, the appellant said that the children were wrong in saying that she yelled and misunderstood her actions.
[214] Reply, pp 58–63.
Mr Lambert suggested there needed to be some self-reflection, and the appellant repeated that the children misunderstood her. She said she had no misbehaviour in her classes. It is unnecessary to summarise the minutes more extensively. The overall impression was of a person who did not accept the seriousness of the complaints or the associated need for change. It is recorded, well into the second meeting that “Ms Mani spoke about the allegations and said that they are all incorrect.”[215] Mr Lambert did press the appellant to self-reflect on why the children felt as they did. He spoke about how to interact with students. The impression that emerges from the minutes was of Mr Lambert trying to have the appellant accept what difficulties there were with a view to change. The appellant’s description of Mr Lambert launching a “vociferous attack“ on the appellant is not borne out by the minutes. The Arbitrator said Mr Lambert’s actions, because of the serious substance of the complaints, “was not only reasonable but necessary”. I agree with that view. The approach taken by the Arbitrator, in her reasons at [178] to [187], was well open to her.
[215] Reply, p 62.
The appellant submits that the Arbitrator, in the reasons at [178] to [187], did not include any reference to the appellant’s statement. This is the passage of the reasons that dealt with the meetings. The substance of the meetings is largely set out in that passage.
The appellant’s argument described at [163(c)] above is essentially dealt with at [170] to [171] above. The issue to be dealt with was one that was serious, not just “a difference of opinion in teaching styles”. The school had received ten complaints in a relatively short period of time, including students who were frightened to attend the appellant’s classes.
The argument described at [163(d)] above is that the Arbitrator failed to undertake a careful analysis of the minutes. This is associated with a submission that the Arbitrator was dutybound to make findings why, in respect of the meetings, “the conduct of Mr Lambert which was excessive and unnecessary was nonetheless reasonable”. The Arbitrator did not find the conduct of Mr Lambert to be excessive and unnecessary. For reasons given above she did not err in that regard. The Arbitrator sufficiently summarised the substance of what transpired at the meetings (which is described in the minutes). The appellant’s submissions do not indicate other specific factual findings the Arbitrator allegedly failed to make in arriving at her conclusions.
Ground No. 5 fails.
GROUND NO. 6
The Arbitrator ignored or otherwise failed to engage with the submissions advanced by the appellant that the respondent failed to follow its own processes and acted unreasonably or did not discharge its onus.
Appellant’s submissions
The appellant submits the ‘process’ required that there be an assessment pursuant to the Code of Conduct, which would deal with whether informal resolution was appropriate or whether “formal procedures” were required. If a matter was less serious it could be resolved using informal resolution processes, unless for some reason this was inappropriate. The appellant submits there was no attempt to resolve the matter informally. The appellant submits there had to be an identification of whether the allegation was serious misconduct or not. The appellant also submits it was the responsibility of the person managing the complaint to monitor the wellbeing of all parties. [216]
[216] Appellant’s submissions, [71]–[75].
The appellant submits that her submissions went to the above issue but were not dealt with by the Arbitrator. It is submitted the Arbitrator only concerned herself with the minutes and what she described as the ‘contemporaneous documents’. The appellant submits she complained bitterly that issues going to teaching style and classroom management were capable of being dealt with informally, through “remedial and systems improvement procedure and the negotiation procedure”. There had not been a determination that these informal procedures were inappropriate and that the conduct was sufficiently serious that formal procedures should be invoked.[217]
[217] Appellant’s submissions, [76]–[79].
The appellant submits this involved unreasonable action by the respondent in ignoring its own processes. The appellant submits it was legal error in that the Arbitrator failed to make findings on this topic. The appellant submits she was denied procedural fairness in that the Arbitrator did not engage with her submissions on this issue.[218]
[218] Appellant’s submissions, [80].
Respondent’s submissions
The respondent submits Mr Lambert considered what would be the most efficient and pain free process from the appellant’s point of view. “It was in her interest that the informal process was chosen and that is of itself a reasonable approach in an attempt to elicit the [appellant’s] co-operation.”
Appellant’s submissions in reply
The appellant submits that the adjective “pain-free” does not respond to its submissions, nor to its references to the specific process and the Code of Conduct.
Consideration
The appellant submits the Arbitrator failed to consider, and make findings about, why it was appropriate for the respondent to employ formal (rather than informal) procedures. The respondent submits that informal procedures were the most appropriate and the Arbitrator made such a finding. The appellant in reply submits the respondent fails to engage with its submissions on Ground No. 6. The parties’ positions pass like ships in the night.
Management of matters involving parental complaints against staff fell within the work of EPAC (see [52] above). The Arbitrator noted this.[219] The provision provided that “[t]hese types of matters will be referred to EPAC by the principal for investigation or, if necessary, to some other authority” (see [52] above). Procedural Guidelines for Dealing with Unsatisfactory Performance provided for performance management, including induction and probation programs, clearly articulated work standards and performance requirements, and the provision of development plans to assist the officer or employee (see [56] above). The Guidelines provided that unsatisfactory performance should be dealt with by “the workplace manager/supervisor as soon as performance difficulties are identified”. Disciplinary action was only appropriate in managing performance difficulties “where performance remains unsatisfactory after the officer has been given a reasonable opportunity to improve his or her performance” (see [57] above). These provisions are set out at greater length above under “Departmental and Other Documents”.
[219] Reasons, [140].
The Complaints Handling Policy Guidelines provided that “a decision will be required regarding the appropriate procedure”. If a matter is less serious, the procedure involves informal resolution unless there is some reason why this approach is considered inappropriate. A formal procedure is needed where it is not possible to resolve a matter informally (see [49] above). The Arbitrator noted this provision in her reasons.[220]
[220] Reasons, [53].
The appellant’s submissions proceed on the basis that the procedure involved in her case was one of formal, rather than informal, resolution. The respondent’s submissions do not reference this to a specific evidentiary basis.
The appellant’s statement indicates that, at the first meeting, Mr Lambert said that “EPAC told him to sort the issues locally” and “it was not a serious matter”.[221] The appellant said that at the first meeting Mr Lambert said “this was not a serious matter and that he would file away my written responses and that would be the end of the matter”.[222] The Arbitrator’s reasons at [25] refer to the minutes of the first meeting in which Mr Lambert said “EPAC has assessed the matter and determined that it was not a serious matter and that it could be dealt with under a local management process which I have agreed to conduct.” In an email to the appellant dated 19 March 2019, following the first meeting, Mr Lambert said: “I appreciate that you have agreed to have the matter handled locally. Should you change your mind and wish for the incidents to be investigated directly by EPAC, please let me know.”[223] The Arbitrator’s reasons at [37] refer to the minutes of the second meeting, at which “Mr Lambert asked if [the appellant] was still comfortable with him managing the matter locally, which she agreed to”.
[221] ARD, p 2.
[222] ARD, p 6.
[223] Reply, p 49.
Contrary to the appellant’s submission, the evidence indicates there was an assessment of whether the matter was serious or not, and EPAC then referred it to Mr Lambert for local management. Mr Lambert was the appellant’s “workplace manager/supervisor” and, consistent with the Guidelines, he dealt with the matter. The appellant’s statement regarding what was said to her at the first meeting was consistent with informal management. This clearly continued into the second meeting, at which the appellant agreed that she was comfortable with ongoing local management.[224]
[224] Reply, p 61.
The Guidelines for Dealing with Unsatisfactory Performance suggested the provision of development plans to assist the officer or employee (see [188] above). At the third meeting Mr Lambert sought to have the appellant amend her Professional Development Plan to add a goal about “classroom management and positive environments”, which he described as “the crux of the complaint”.[225] After discussion the following occurred:
“Mrs Hutton – It is part of the Local Management process. If you do not want this process we can take it to EPAC.
Ms Mani – EPAC said you have to manage it locally?
Mr Lambert – If you feel like you do not want to do it locally we can stop and I will ring EPAC and they can investigate it. I want you to know I was here until late last night trying to resolve this by supporting you.
Ms Mani – I am very stressed because I have RFF for the first time and have parents complaining. It is going on and on. I will think about the goals as I do not understand them as yet. I will get back to you.
Mr Lambert – Let’s do that and you can get back to me.”[226]
[225] Reply, p 68.
[226] Reply, p 70.
This concluded the minutes of the meeting. It is apparent that the matter was still being conducted as one involving informal resolution, it was being managed locally.
The evidence did not support the fundamental proposition on which Ground No. 6 is based, that there was not an assessment of whether a formal or informal process should be adopted, and formal procedures were then employed in dealing with the complaints. It is apparent that Mr Lambert forwarded the matter to EPAC, which determined that it was not a serious matter and returned it to Mr Lambert to deal with under a “local management process”. The appellant submits there was no attempt to resolve the matter informally. To the contrary, that was the basis on which the respondent dealt with it.
The appellant submits it was a function of the person managing the complaint to monitor the well-being of the parties. Dealing with the appellant, Mr Lambert mentioned the availability of a support person (taken up by the second meeting), the Employee Assistance Program (for short term counselling) and the Teachers Federation.[227] The appellant makes no specific criticism of the respondent in this regard.
[227] Reply, pp 46, 48, 49, 50, 52, 54, 66, 71.
I am not satisfied that the errors alleged in support of Ground No. 6 are made out. Ground No. 6 fails.
THE ADDED GROUND
The above deals with the grounds raised by the appellant. The respondent, in its Notice of Opposition, adds a further ground, Ground No. 7: “Whether the Arbitrator provided adequate reasons”.[228] It submits that several of the appellant’s allegations assert a failure to provide adequate reasons. The respondent refers to Baker v Towle, where Basten JA said “there is no error in failing to give reasons for findings not made”.[229] The respondent submits the appellant’s “real concern was with the facts found”.[230] The appellant then includes six paragraphs in its submissions in reply, which state that the respondent’s submissions on this topic should be rejected.
[228] Respondent’s submissions, [27].
[229] [2008] NSWCA 73, [39].
[230] Respondent’s submissions, [27].
Amendment of grounds of appeal, in this case to add a ground, requires leave. No party has sought leave. Additionally, it would seem fundamental that a party cannot amend its opponent’s pleading. The purported addition of Ground No. 7 is misconceived. The preferable course is that I simply ignore it. To the extent to which reasons have been raised in the other grounds, they have been briefly dealt with.
CONCLUSION
The various grounds of appeal have failed.
DECISION
The Arbitrator’s Certificate of Determination dated 8 September 2020 is confirmed.
Michael Snell
ACTING PRESIDENT
26 March 2021
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