Porche v State of Queensland (Department of Education)
[2022] ICQ 3
•8 February 2022
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Porche v State of Queensland (Department of Education) [2022] ICQ 003
PARTIES:
LETITIA JANE PORCHE
(appellant)
v
STATE OF QUEENSLAND (DEPARTMENT OF EDUCATION)(respondent)
FILE NO/S:
C/2021/10
PROCEEDING:
Appeal
DELIVERED ON:
8 February 2022
HEARING DATE:
9 June 2021
MEMBER:
Davis J, President
ORDER/S:
The appeal is dismissed
CATCHWORDS:
INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – WHAT CONSTITUTES – Where the appellant was a teacher employed in a State (Department of Education) Primary School – where complaints about the appellant’s performance were received – where a process of managing unsatisfactory performance was undertaken – where the Department concluded that the appellant could not be managed – where the appellant was dismissed – where the appellant brought an unfair dismissal claim – where the Queensland Industrial Relations Commission (QIRC) dismissed the claim – where the appellant appealed the decision of the QIRC – where the grounds of appeal were many and varied – whether any grounds show error of law or excess or want of jurisdiction – whether any other grounds identified
Industrial Relations Act 2016
Industrial Relations (Tribunals) Rules 2011, r 139
Public Service Act 2008, s 187, s 188, s 189CASES:
Briginshaw v Briginshaw (1938) 60 CLR 336
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Chambers v Jobling (1986) 7 NSWLR 1
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Erian v State of Queensland (Department of Agriculture and Fisheries) [2020] ICQ 012
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Norbis v Norbis (1986) 161 CLR 513
Porche v State of Queensland (Department of Education) [2021] QIRC 131
R v Bassi [2021] QCA 250
Re Minister for Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500APPEARANCES:
L Porche as self-represented appellant
H Blattman of counsel instructed by Crown Law for the respondent
Ms Letitia Jane Porche is a school teacher who was dismissed from her employment by the State of Queensland. She appeals against a decision of Industrial Commissioner Power made in the Queensland Industrial Relations Commission (QIRC) dismissing her application for reinstatement.[1]
[1]Porche v State of Queensland (Department of Education) [2021] QIRC 131.
Relevant statutory provisions
Ms Porche’s employment was governed by the Public Service Act 2008 (the PS Act).
The PS Act provides a disciplinary regime. Relevantly to the present case, ss 187, 188 and 189(1)[2] provided as follows:
[2]As it was at relevant times.
“187 Grounds for discipline
(1)A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
(a) performed the employee’s duties carelessly, incompetently or inefficiently; or
(b) been guilty of misconduct; or
(c) been absent from duty without approved leave and without reasonable excuse; or
(d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
(e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
(i)failing to disclose a serious disciplinary action; or
(ii)giving false or misleading information; or
(f) contravened, without reasonable excuse—
(i)a provision of this Act; or
(ii)a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
(iii)a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
(2)A disciplinary ground arises when the act or omission constituting the ground is done or made.
(3)Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)—
(a) a public service employee under section 187A; or
(b) a former public service employee under section 188A.
(4)In this section—
misconduct means—
(a) inappropriate or improper conduct in an official capacity; or
(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
Example of misconduct—
victimising another public service employee in the course of the other employee’s employment in the public service
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.
188Disciplinary action that may be taken against a public service employee
(1)In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
Examples of disciplinary action—
•termination of employment
•reduction of classification level and a consequential change of duties
•transfer or redeployment to other public service employment
•forfeiture or deferment of a remuneration increment or increase
•reduction of remuneration level
•imposition of a monetary penalty
•if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments
•a reprimand
(2)If the disciplinary action is taken following an agreement under section 187A(4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
(3)However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
(4)Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
(a) must not be more than half of the amount payable to or for the employee in relation to the payment; and
(b) must not reduce the amount of salary payable to the employee in relation to the period to less than—
(i)if the employee has a dependant—the guaranteed minimum wage for each week of the period; or
(ii)otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
(5)In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
(6)An order under subsection (1) is binding on anyone affected by it. …
189Suspension of public service employee liable to discipline
(1)The chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law. …”
Division 2 of Part 2 of Chapter 8 of the Industrial Relations Act 2016 (IR Act) concerns unfair dismissals. Section 316, 317 and 320 relevantly provide:
“316 When is a dismissal unfair
A dismissal is unfair if it is harsh, unjust or unreasonable.
317Application for reinstatement
(1)If it is claimed that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this part.
(2)The application must be made within—
(a) 21 days after the dismissal takes effect; or
(b) if the commission allows a further period on an application made at any time—the further period.
(3)An application may be made by—
(a) an employee; or
(b) with the employee’s consent, an organisation whose rules entitle it to represent the employee’s industrial interests.
(4)The registrar may reject an application if the registrar considers the dismissed employee is a person mentioned in section 315(1) as a person to whom section 316 does not apply.
(5)If the registrar rejects the application, the registrar must, by written notice, notify the applicant—
(a) that the application has been rejected; and
(b) of the reasons why the registrar considers the dismissed employee is a person mentioned in section 315(1) as a person to whom section 316 does not apply.
(6)The applicant may, by written notice given within 21 days after the registrar’s notice is received, inform the registrar that the applicant wishes the application to proceed.
(7)If the applicant does so, the commission must deal with the application, despite the registrar’s rejection.
(8)The commission and registrar must deal with an application as quickly as possible…
320Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider—
(a)whether the employee was notified of the reason for dismissal; and
(b)whether the dismissal related to—
(i) the operational requirements of the employer’s undertaking, establishment or service; or
(ii) the employee’s conduct, capacity or performance; and
(c)if the dismissal relates to the employee’s conduct, capacity or performance—
(i) whether the employee had been warned about the conduct, capacity or performance; or
(ii) whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
(d)any other matters the commission considers relevant.”
Section 321 of the IR Act empowers the QIRC to order reinstatement and s 322 authorises the making of compensation orders.
Jurisdiction to consider the reinstatement application and make orders under ss 321 and 322 of the IR Act vests in the QIRC from whom an appeal lies to this Court. An appeal from the QIRC to this Court is provided by s 557 of the IR Act. That provides:
“557 Appeal from commission
(1)The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
(a) error of law; or
(b) excess, or want, of jurisdiction.
(2)Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
(a) error of law; or
(b) excess, or want, of jurisdiction.
(3)However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
(4)If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
(5)In this section—
commission means the commission, other than the full bench constituted by the president and 2 or more other members.” (emphasis added)
Section 557(1) limits the grounds of appeal to errors of law or excess or want of jurisdiction. Section 557(2) provides for an appeal on other grounds by leave of the Court. The limits of the discretion to grant leave are prescribed by s 565 of the IR Act, which provides:
“565 When leave for appeal must be given
If an application for leave to appeal is made under section 554, 557[3] or 560, the Court of Appeal, court[4] or full bench—
(a)must give leave if it is satisfied it is in the public interest to do so; and
(b)may not give leave other than under paragraph (a).” (emphasis added)
[3]The present appeal is brought pursuant to s 557.
[4]A reference to the Industrial Court of Queensland.
Background
As is often the way in cases such as these, the Industrial Commissioner was faced with many contested factual issues. Complaint about the resolution of those issues by the QIRC form the basis of many of Ms Porche’s grounds of appeal. It is necessary to record a broad overview of the chronology of the events.
Ms Porche worked as a Year 1 class teacher at Coomera State School, commencing in January 2015. She completed Term 1 and took leave in Term 2. She returned to teaching at the school in Term 3. Those administering the school became concerned with Ms Porche’s performance early in Term 3. Ms Shiree Salazar, the Deputy Principal, received expressions of concern from parents about Ms Porche. Ms Porche hotly disputes the substance of those expressions of concern. At this point, it is the fact that parents expressed concern which is relevant as that caused other events.
Those concerns led the Principal of the school, Mr Chris McMillan, to conduct a classroom observation of Ms Porche. He provided feedback to her.
During the remainder of 2015 and Term 1 of 2016, Ms Salazar and Mr McMillan received various reports from teaching staff, parents and students, including that Ms Porche:
“•was leaving the classroom to go and heat up food and eating it during teaching time;
•failed to mark the roll on 1 September 2015, 9 and 20 November 2015 and 12 February 2016;
•failed to properly tidy the classroom to make it ready for the cleaner on 1 September 2015;
•refused to take phone calls from another staff member who was trying to give the Applicant a message about a Year 1 student needing to catch a bus home that day;
•yelled at the students on 25 February 2016;
•refused permission for a student to go to the toilet, after which he wet himself;
•failed to give a Year 1 student his lunch as the teacher on duty on 18 November 2015;
•failed to enter records into OneSchool[5] on numerous occasions;
•failed to notice children missing from her class, between 9 December 2015 and 8 February 2016;
•presented to school on her day off on 26 February 2016, without telling the other classroom teacher and disturbed the class following which Mr McMillan requested she leave the school and subsequently emailed her to communicate his expectation that she not attend on non-rostered days unless previously arranged with him;
•failed to show up for eating duty and playground duty on 3 March 2016;
•failed to wear a hat and high visibility vest when on duty on 3 March 2016; and
•failed to attend a staff meeting.”[6]
[5]OneSchool is the Respondent’s software suite that schools use to run reporting and administrative processes.
[6]Porche v State of Queensland (Department of Education) [2021] QIRC 131 at [12].
Ms Salazar and Mr McMillan continued to hold concerns and met with Ms Porche on 24 March 2016. What was put to her was a documented Informal Support Plan which was Stage 1 of a managing unsatisfactory performance (MUP) process. What had also been devised was a Support and Development Plan which is Stage 2 of the MUP process.
Ms Salazar and Mr McMillan were not satisfied with Ms Porche’s further performance so in November 2016, the Stage 2 process commenced. That was notified to Ms Porche in a meeting with Mr McMillan, Ms Salazar, Ms Annette Rose, who is the Principal Human Resources Consultant at the Department of Education, and a representative of the Queensland Teachers Union of Employees (QTU), Mr Jason Sperling.
Ms Porche was unable to work for the remainder of 2016 and was on sick leave for the whole of the 2017 school year.
Before returning to work in Term 1 of the 2018 school year, Ms Porche was required to undergo an independent medical examination to ensure her fitness for work. That was conducted by Dr Duke, a psychiatrist, who ultimately reported that she was fit for work but thought she should work at a different school. Ms Porche transferred to the Coombabah State School.
Mr Murray Gleadhill is the Principal of the Coombabah State School and his Deputy Principal is Ms Tina Flesser. They resolved to continue the MUP process but thought that it should be delayed so as to commence after 20 days, enabling Ms Porche to settle into her new work environment.
Mr Gleadhill and Ms Flesser began documenting concerns which arose over the 20 day period before the MUP process commenced. They included:
“•the Applicant was distracted and typing on her phone during a staff meeting on 5 February 2018;
•the Applicant was on her phone typing during Ms Flesser’s informal classroom visit and was not engaging with students on 12 February 2018;
•students reported that the Applicant had been yelling at them, was on her mobile phone talking about personal matters during class time, was crying in class and not engaging with the class on 13, 14, 16 and 17 February 2018;
•Mr Gleadhill observed on 12 February 2018, that the Applicant was on her phone during class teaching time after having been advised that this was impermissible;
•on 14 February 2018, the Record of Interactions[7] noted that a parent reported that the Applicant had marked her child’s homework incorrect when it was correct;
•it was reported to Mr Gleadhill on 15 February 2018 that the Applicant had failed to make the classroom tidy such that the cleaner was unable to clean properly after school;
•on 15 February 2018, the Applicant failed to attend a lunchtime meeting with Mr Gleadhill and told Ms Flesser that she did not want to meet with him; and
•on 19 February 2018, the Applicant refused to attend a morning meeting with Mr Gleadhill and Ms Flesser, stating that she was not going to the meeting, that it was a manipulation, and that she was not on a MUP process.”[8]
[7]A formal record kept by the school.
[8]Reasons at [23].
In February 2018, Stage 2 of the MUP process commenced. There were further complaints received about Ms Porche and the Regional Director, Mr John Norfolk, was involved by Mr Gleadhill.
The findings on the Stage 2 MUP process included:
“•four formal lesson observations, each being deemed ineffective;
•failure to provide any detailed lesson plans to school administration;
•receipt of seven parent complaints during Stage 2;
•failure to observe students leaving her classroom for significant periods; failure to observe students from other classes being present in her classroom; and marking the roll incorrectly, all of which presents considerable risk to student safety and represents a serious breach of duty of care; and
•failure to attend the weekly MUP progress meetings and further, when provided with feedback after each lesson, the Applicant either returned the lesson observation form or made comments such as ‘I’m doing a great job and that it’s just your opinion’.”[9]
[9]Reasons at [29].
Stage 3 of the MUP process was commenced. This involved an assessment by two External Review Officers who were Ms Kate Bentley and Mr Michael Josey. The Stage 3 report given in March 2018 included the following:
“•[the Applicant displayed] a lack of content knowledge, preparation and capacity to provide a basic structured session for learning.
•the disconnect between Ms Porche and the students was significant, resulting in poor personal learning relationships, limited mutual respect, a breakdown in feedback and formative assessment practices, and chaotic routines.”[10]
[10]Reasons at [35].
The matter was referred to the Board of Review which signalled the commencement of Stage 4 of the MUP process. Ms Porche was suspended from duty on normal remuneration on 13 March 2018. Ms Porche was absent due to health reasons and over that period, the suspension was discontinued.
Referral to Dr Duke resulted in an opinion being expressed (on 25 February 2019) that resulted in the suspension being reinstated. His opinion was that Ms Porche was capable of participating in a disciplinary and performance management process.
On 5 March 2019, the Board of Review resolved to send a show cause letter to Ms Porche as to why she should not be liable to discipline pursuant to s 187(1)(a) of the PS Act.
Various responses were offered by Ms Porche. Included in one response was the letter from Ms Porche’s treating psychiatrist, Dr Lotz. That letter (22 March 2019) expressed the opinion that Ms Porche was suffering from anxiety and depression and that the show cause process was exacerbating that condition.
On 4 April 2019, the Board of Review resolved that Ms Porche’s employment should be terminated and a show cause letter was sent to her. She responded.
On 3 May 2019, the Board of Review recommended the termination of Ms Porche’s employment. However, Ms Porche was given the opportunity to make further responses.
Ms Porche made various further responses which included another letter from Dr Lotz (18 April 2019), submitted under cover of Ms Porche’s email of 13 May 2019. Dr Lotz said:
“Ms Porche has been struggling with issues related to what appears to be difficulties with her principal and deputy at school, it appears she has been unfairly singled out as she alerted them to safety issues related to students with learning and intellectual disabilities.
In the time I have been treating Ms Porche on average once a month, she has struggled with trying to return to employment without undue harassment and difficulties. She is currently on no medication.”
On 3 June 2019, Ms Porche’s employment was terminated.
Ms Porche then filed an application in the QIRC seeking reinstatement.
The proceedings in the Queensland Industrial Relations Commission
The hearing of Ms Porche’s application commenced in the QIRC on 22 February 2021. Ms Porche represented herself. The State was represented by private counsel, Ms Blattman who also appeared on the appeal. The QIRC heard evidence and submissions over five days.
The witnesses (including Ms Porche) made affidavits which were filed and constituted their evidence-in-chief. The witnesses were cross-examined. Those witnesses were:
(a)Ms Porche;
(b)Ms Salazar;[11]
(c)Mr McMillan;
(d)Ms Flesser;
(e)Mr Gleadhill;
(f)Ms Bentley;
(g)Mark John Anghel;
(h)Mr Norfolk;
(i)Desmond Kluck;
(j)Dion Coghlan.
[11]Whose full name was Shiree Louise Salazar-Mandez.
Mr Anghel is an Officer of the QTU. He sat as the union’s representative on the Board of Review.
Mr Kluck was, at relevant times, employed by the State in the Department of Education as Executive Director within the Human Resources Branch. He chaired the Board of Review who sat on Ms Porche’s case.
Mr Coghlan is the Assistant Director-General of Human Resources in the Department of Education. It was his decision to terminate Ms Porche’s employment upon the recommendation of the Board of Review.
There were a large number of documentary exhibits which were tendered in three volumes. The relevance of each of the documents was explained in the schedule which was also tendered.[12]
[12]See generally hearing T1-3 to 1-4.
To the extent that it is necessary, I shall deal with the evidence when considering the various grounds of appeal.
The Queensland Industrial Relation Commission’s decision
The decision of the QIRC, on its face, appears completely conventional.
After referring herself to the relevant legislative provisions,[13] the Industrial Commissioner dealt with the basic chronology which is supported by the various documents in the bundle.[14]
[13]Porche v State of Queensland (Department of Education) [2021] QIRC 131 at [4]-[6].
[14]At [5]-[50].
The Industrial Commissioner then identified the issues which had been defined by the parties to the litigation[15] before turning to an analysis of the evidence of the various witnesses[16] who she regarded as critical, namely Mr McMillan, Ms Salazar, Mr Gleadhill, Ms Flesser, Ms Bentley and Ms Porche,[17] and made findings.
[15][51]-[57].
[16][58].
[17][58]-[98].
A significant issue raised by Ms Porche was whether procedural fairness had been afforded to her. The Industrial Commissioner dealt with this at length.[18] Procedural fairness arose for consideration in various ways. The Industrial Commissioner identified the four facets of Ms Porche’s complaints as to procedural unfairness in this way:
“[97] The Applicant made submissions that the MUP process involved a number of procedural failures that rendered the process unfair. These submissions relate primarily to the following, which are considered below:
•proceeding with the show cause process despite contrary medical advice;
•not allowing the Applicant to test the validity of each complaint;
•the MUP outcome being pre-determined; and
•the Board of Review process.”
[18][97]-[136].
The Industrial Commissioner then considered each of the four respects in which Ms Porche alleged procedural fairness had been denied.[19]
[19]“Proceeding with the show cause process despite contrary medical advice”, paragraphs [98]-[103]’ “Not allowing [Ms Porche] to test the validity of each individual complaint”, paragraphs [104]-[116]; “The Board of Review Process”, paragraphs [117]-[123]; “The MUP process being predetermined”, paragraphs [124]-[132].
After dealing with the four specific complaints about procedural fairness, the Industrial Commissioner then considered more general complaints,[20] referred herself to legal principles stated in Re Minister for Multicultural Affairs; Ex parte Lam,[21] and then concluded:
“[136] In applying the conception of procedural fairness as a concept to avoid practical injustice, I am satisfied that the Applicant suffered no practical injustice in the determination of this matter. All stages of the MUP process were undertaken in a procedurally fair manner, with the Applicant advised of each step throughout the lengthy process. The Board of Review gave the Applicant the opportunity to show cause with respect to the allegation and the proposed disciplinary penalty, ensuring no decisions were made without first providing the Applicant with the opportunity to be heard.”
[20]Paragraphs [133]-[134].
[21](2003) 214 CLR 1.
The Industrial Commissioner then turned to the question of whether the decision to terminate Ms Porche’s employment was harsh, unjust or unreasonable.[22] She directed herself to the relevant legal principles[23] and concluded that issue against Ms Porche.
[22]Paragraph [137].
[23]Paragraphs [137] and [153].
The appeal
Ms Porche filed her application to appeal on 13 May 2021. Paragraph 5 of the proforma application provides for the articulation of the grounds of appeal. There, Ms Porche wrote, “See attached sheet”. What was attached is a 19 page document with paragraphs numbered 1 to 45. There is no paragraph numbered “35”, so there are 44 paragraphs, each of which Ms Porche says contains an individual ground.
The paragraphs of Ms Porche’s document do not contain grounds of appeal drawn in the traditional way. Each paragraph contains a number of allegations and propositions, and more resemble submissions than grounds of appeal. That is understandable as Ms Porche is not legally trained, but she has not complied with the Rules[24] which require a concise statement of grounds of appeal.
[24]Industrial Relations (Tribunals) Rules 2011, r 139(2)(c).
Submissions were filed by the respondent which sought to categorise Ms Porche’s complaints made in the various grounds as:
“a)by overriding a medical expert to justify the termination of employment;[25]
b)by misinterpreting and/or failing to consider relevant evidence;[26]
c)by making findings without sufficient evidence or failing to undertake her own inquiries to garner evidence;[27]
d)by preferring the evidence of, or giving more weight to, the Respondent’s witnesses;[28]
e)by showing bias against the Appellant;[29]
f)by failing to take into consideration the Appellant’s personal circumstances;[30] or
g)by failing to understand and accept the Appellant’s submissions.[31]”
[25]Paragraphs 24 and 25 of the grounds.
[26]Paragraphs 1, 2, 3, 13, 18 of the grounds.
[27]Paragraphs 8, 9, 11, 14 of the ground.
[28]Paragraphs 2, 4, 16, 17, 18, 20 of the grounds.
[29]Paragraphs 21, 24, 26, 29, 34, 36, 37 and 40 of the grounds.
[30]Paragraphs 5, 7, 10 and 44 of the grounds.
[31]Paragraphs 6, 12, 15, 17, 19, 20, 21 of the grounds.
The State proposed that the appeal be heard on the basis that Ms Porche’s grounds were the seven categories identified by it. Ms Porche rejected that approach. When directed to consider whether she pressed all grounds of appeal, she said she did.
The appeal therefore proceeded on the basis that there were 44 grounds of appeal with each paragraph of the document attached to the application to appeal being treated as a separate ground.
Ms Porche filed various written submissions. These submissions were, with respect, long, repetitive and, at times, difficult to relate to the grounds of appeal.
While Ms Porche represented herself and was doing her best, there are limits. The State must be able to identify the issues it has to deal with on the appeal. I have therefore treated the document exhibited to the application to appeal as defining the only grounds of appeal.
It is clear that most of Ms Porche’s complaints are as to factual findings. She demonstrated, with respect, a general lack of appreciation of the appeal process and, in particular, the fact that appeals are limited to grounds based on an error of law or want or excess of jurisdiction except by leave. As a self-represented litigant in what was a factually complicated case, it is understandable that she had difficulty presenting her appeal in a coherent way consistently with the legislation. Ms Porche clearly though wished to pursue all avenues of appeal including seeking leave to raise errors of fact even though that course is severely limited by s 565 of the IR Act.
The appropriate approach was to look at each of the 44 grounds of appeal and see if error is identified and, if so, give Ms Porche an opportunity to apply for leave to mount a ground on that error if leave is necessary. The State agreed with that approach.[32]
[32]Transcript of the hearing of the appeal 1-17.
However, there could be no suggestion that Ms Porche was entitled to have her case reheard de novo by the Court. Findings of fact based on the assessment of credibility of witnesses may only be set aside where the finding is “glaringly improbable” or “contrary to compelling inferences”.[33]
[33]See Fox v Percy (2003) 214 CLR 118 at [29] following Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844 and Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The 44 grounds of appeal
Ground 1 is in these terms:
“1.While there was not obvious Error in law beside the Commissioner over-riding the recommendation of my medical expert Dr Lotz, the Commissioner failed to consider factors leading to the process and she misinterpreted many of the facts making her judgements wrong and as a result she was in error when she concluded dismissing my application for reinstatement in this case and this judgement was therefore harsh, unjust, and unreasonable.”[34]
[34]The emphasis in bold in the various grounds of appeal is emphasis added by Ms Porche. The grounds are reproduced faithfully and there has been no attempt to correct typographical errors.
This is just a broad allegation that the Industrial Commissioner failed to consider factors and that her judgment was wrong. There are no particulars within this ground of the actual error other than that the Industrial Commissioner did not follow the opinion of Dr Lotz. Dr Lotz’s report and the Industrial Commissioner’s findings about it are the subject of other grounds.[35] Many other particularised complaints appear in the grounds which follow ground 1. Ground 1 need not be separately considered.
[35]Grounds 22, 24 and 25.
Ground 2 is in these terms:
“2. The Commissioner erred at paragraph 139 when she expressed that I was not subject to an excessive workload or administration procedures. In making this determination she does not appear to have considered evidence presented as to the additional administrative burden presented by documenting usual classroom procedures for the purpose of the MUP.”
Paragraph [139] of the Industrial Commissioner’s decision is:
“[139] The Applicant submits that she was overloaded with excessive administration procedures, excessive scrutiny and excessive workload. From the evidence before me, the greater level of scrutiny was a reasonable response to concerns raised by students, parents and colleagues regarding the Applicant's performance. I am not persuaded that the Applicant was subject to excessive administration procedures or workload. It is a reasonable expectation that teachers will draft lesson plans and in the Applicant's case she was provided with time away from the classroom to undertake this work. It seems to me that the Applicant viewed requirements such as the provision of lesson plans as an unnecessary addition to her job, rather than as tools to assist her to perform her usual job to a satisfactory standard.”
A decision-maker is not obliged to refer to every matter that is put by way of submission. The reasons of a decision-maker must be read sensibly and not overcritically.[36]
[36]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 following Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
The findings at paragraph [139] have to be viewed in the light of other findings where the Industrial Commissioner found that Ms Porche was being given proper support. These findings are made at paragraphs [62], [64], [65] and [75] of the Industrial Commissioner’s reasons.
The comments at paragraph [139] include reference to the preparation of “draft lesson plans”. The Industrial Commissioner referred to lesson plans in paragraph [76] of the judgment which is in these terms:
“[76] It is clear from the Applicant's evidence that she felt enormous pressure as a consequence of the MUP process. What is not clear, however, is the nature of the work that she claims was done outside of normal working hours. There was no evidence of the output associated with working such extensive hours. One example is the production of routine documents such as lessons plans. The evidence is that the Applicant did not produce lessons plans as required by the MUP process. In the minutes of one meeting with Mr Gleadhill and Ms Flesser, the Applicant is noted as saying the following in response to queries about why she had not produced a lesson plan for a particular lesson:
·She does not have separate planning for the English lesson
·She goes with the flow
·There is no lesson plan because I don’t have time”
What is clear from paragraph [76] is that the Industrial Commissioner understood Ms Porche’s evidence that the MUP process itself was causing her difficulties. There is nothing to suggest that the Industrial Commissioner overlooked this aspect when writing what she did in paragraph [139].
There is no substance in ground 2.
Ground 3 is in these terms:
“3. The Commissioner erred in paragraph 94 that it is not plausible that multiple educators might collude to misrepresent my performance. In making this determination the Commissioner appears to not have considered that there may have been personal antagonism at play including resentment. I did point this out to the Commissioner in my submissions by highlighting the onslaught of incorrect emails from teaching partner Jackie Larson’s and my teaching peers that Shiree Salazar had befriended in a very social way. In my extension of argument, I highlighted how Jackie Larson’s sent an email to deputy principal Shiree Salazar highlighting her dislike that I had contacted the union and discussed her poor treatment of me in the workplace.”
Ground 3 refers to paragraph [94] of the judgment, and that is:
“[94] There is a consistent pattern throughout the MUP process of the Applicant attempting to discredit anyone who raised concerns about her behaviour or teaching performance, rather than addressing the substance of the complaint. It is simply not plausible that multiple educators of varying seniority across different schools colluded to misrepresent the Applicant's performance deficiencies.”
Paragraph [94] of the judgment consists of a finding of fact and then the drawing of an inference.
The finding of fact is that Ms Porche attempted to discredit anyone who raised concerns about her behaviour or teaching performance rather than addressing the substance of the complaint. The inference which is then drawn is that it is unlikely that all those involved in the MUP process would collude against her.
The finding at paragraph [94] cannot be looked at in isolation. At paragraph [90] of the reasons, there is a reference to Ms Salazar preparing spreadsheets concerning the class make-up. This was of concern to Ms Porche as she said that her class was not balanced. Ms Porche refused to take up Ms Salazar’s offer to discuss the spreadsheet. At paragraph [91] the Industrial Commissioner refers to Ms Porche’s criticism of Ms Salazar and her belief that Ms Salazar was manipulating parents and children to make complaints. At paragraph [92] there is reference to the evidence of complaints made by parents and children all alleging that Ms Porche was yelling at students. At paragraph [93] there is reference to complaints by a number of teachers across the two different schools and Ms Porche’s dismissal of those complaints as an attempt to “gang up” on her.
The evidence, as very carefully analysed by the Industrial Commissioner, showed that both the principal (Mr McMillan) and the deputy principal (Ms Salazar) of Coomera State School expressed serious concerns about Ms Porche’s performance and behaviour as did Mr Gleadhill and Ms Flesser, the principal and deputy principal respectively of Coombabah State School. An external review by Ms Bentley and Mr Josey was conducted. Ms Bentley was a former principal and now regional director. That review was also critical of Ms Porche, criticism which Ms Porche appeared not to accept.[37]
[37]Reasons paragraph [87].
The point was made at paragraph [96] of the reasons in this way:
“[96] The Applicant appears to have adopted a perspective that resulted in an inability to take on feedback from others in the workplace. It seems that at no stage of the lengthy performance management process did the Applicant show any capacity for reflection on her performance. This is despite concerns raised by the Principals, Deputy Principals, co-teachers, and other staff across the two schools. I note the Applicant's submissions that she would not internalise their views. The difficulty with that mindset is that it confirmed that her performance was not going to improve as the Applicant did not believe it needed to improve.”
Not only is the inference which was drawn at paragraph [94] obviously open to the Industrial Commissioner to draw, it was, in my view, inevitable that she should draw it. There is no substance in ground 3.
Ground 4 is:
“4.At paragraph 113 the Commissioner appears to find the factual basis of parent complaints are not relevant when assessing the reasonableness of the response to the allegations that were put to me as part of the MUP. However, at paragraph 108 the Commissioner notes that I was generally dismissive of complaints when they are raised. The Commissioner does not appear to consider the appropriateness of my reaction in the circumstances where the complaint is not based on fact.”
Ground 4 refers to paragraphs [108] and [113] of the reasons. They are:
“[108] The Applicant was made aware at the time that another student had been moved out of her class and that the carer had made allegations that the Applicant yelled regularly. The Applicant was aware that another student's mother had raised concerns regarding her lack of learning extension. Ms Salazar gave evidence that the Applicant was generally dismissive of the complaints when they were raised.
…
[113]I accept that in the circumstances of certain complaints it was reasonable to put the complaint to the Applicant in generalised terms rather than specific details. One such example is the matter in which parents raised concerns that the Applicant was unapproachable. Considerations of whether the Applicant was in fact 'unapproachable' are not particularly relevant, with the focus on ensuring that the Applicant was aware of the concerns generally and support given to improve her dealings with parents. I accept the Respondent's submission, that to allow the Applicant to interrogate each parent would have been inappropriate in the circumstances. The course of action taken by the Respondent to put some complaints to the Applicant in general terms to ensure the substance could be addressed was entirely reasonable.”
There is no inconsistency between paragraphs [108] and [113] of the Industrial Commissioner’s reasons. Again, these paragraphs must be looked at in proper context.
Both paragraphs appear under a heading “Opportunity to test the validity of individual complaints”. At paragraph [104] of the judgment, the Industrial Commissioner noted Ms Porche’s submission that not every complaint was put to her at the relevant time so that she could test its validity. This, Ms Porche said, denied her procedural fairness. At paragraph [106] it was recorded that a number of parent complaints had been put to Ms Porche at about the time they were made. Some examples were given at paragraphs [106], [107] and [108] of the reasons.
Then at [109] the Industrial Commissioner recorded the evidence of Mr Coghlan. Paragraph [109] is as follows:
“[109] The question was asked of Mr Coghlan by the Respondent whether every single complaint by student, parent and staff would usually be presented to a teacher. Mr Coughlan answered that it was a matter for each Principal to determine at a local level. However, in this matter he saw significant reflection on the performance process by a range of people, including principals, deputy principals, independent principals throughout the entire process. Mr Coghlan stated:
… What I expect to see is a process in which you have the concerns identified to you, whether individually or summated, and then you have an opportunity to demonstrate performance improvement over a range of period of times and in [the Applicant's] particular circumstances that was over an extended period of time, with extended support across two school settings by both the administrations teams of those two schools, and independent principals and deputies.”
That then led to findings at paragraphs [110] and [111] in these terms:
“[110] The evidence was that, depending on the nature of the complaints, parents were generally encouraged to raise their concerns with the teacher at first instance. I accept that this is not always appropriate, particularly in circumstances in which concerns have been raised about the manner of the teacher, as in this case.
[111]The evidence from both schools indicate that the substance of every issue was raised with the Applicant throughout the process. I accept that the Applicant was also aware of most of the specific complaints through the regular meetings with school administration.”
It was against that evidence that the finding at [113] was made. That finding is that it was reasonable to put allegations in general terms provided that the substance could be addressed. There can in my view be no complaint about that finding. At paragraphs [115] and [116] these findings were made:
“[115] I accept that the substance of the complaints, and in most cases the exact complaints, were put to the Applicant at or soon after the time they occurred. However, even if the complaints that were not presented individually to the Applicant are excluded from consideration in this matter, it is clear that the Applicant was still unable to comply with the requirement that she maintain respectful collaborative relationships with parents and carers.
[116]The evidence confirms that the performance issues were regularly put to the Applicant over a long period of time. The few individual complaints that were not put to the Applicant were of limited significance in the context of the entire process.”
The Industrial Commissioner’s reasoning is completely logical and there is no substance in ground 4.
Ground 5 is in these terms:
“5. At paragraph 149 the Commissioner considers the appropriateness of consideration, it is particularly where my personal vulnerability regarding finances and mental health were readily perceived. There were other alternatives open to the review panel including extended leave or redeployment that made the decision to terminate harsh, unjust, and unreasonable.”
Paragraph [149] of the reasons is:
“[149] The Applicant made extensive submissions that the dismissal was harsh given the impact that the loss of employment would have on her personal circumstances. The Applicant made following submission:
The situation exposed me to further abuse in the home and resulted in the chain of causation of events that included the loss of my full-time parenting rights, marriage breakdown, financial hardship, loss of quality of life, loss of life goals including sporting and holiday goals, loss of time with my daughter and the achievement of her developmentally appropriate goals. The entire situation was unfair, unjust, unreasonable and it was too harsh to terminate me from my employment.”
The complaint in ground 5 is that there was no consideration of disciplinary action short of dismissal. Paragraph [149] of the reasons refers to personal hardship. The submission in ground 5 appears to be that personal hardship ought to have led to some outcome other than dismissal.
From paragraph [150] of the judgment, the Industrial Commissioner embarks upon a train of reasoning which leads to the conclusion that the dismissal was not harsh, unjust or unreasonable.[38] That line of reasoning was:
(a)Ms Porche feels aggrieved by the termination of her employment given her personal and financial circumstances;[39]
(b)Ms Porche did not meaningfully engage with the MUP process or accept assistance to improve her performance: “the Applicant’s consistent refusal to accept that there was any basis for the continued complaints from students, parents and staff meant that the Respondent had no option after such a long period of deficient performance but to terminate her employment”;[40]
(c)Ms Porche was given notice that her performance was unacceptable and that she must improve;[41]
(d)she was afforded procedural fairness;[42]
(e)“… it would have been untenable to have permitted the Applicant to continue to teach in circumstances in which her conduct as reported by students, parents and staff posed a genuine risk to both student learning outcomes and wellbeing”;[43] then concluded,
(f)“In these circumstances, the dismissal of the Applicant from her employment was not harsh, unjust or unreasonable.”[44]
[38]Concluding with paragraph [162].
[39]Paragraph [150].
[40]Paragraph [151].
[41]Paragraphs [153]-[156].
[42]Paragraphs [157]-[160].
[43]Paragraph [161].
[44]Paragraph [162].
Ultimately, that is a “value judgment”[45] and is therefore a discretionary judgment where appellate interference is only justified where a House v The King[46] error is shown. Error will be shown where a relevant consideration is not taken into account.[47] However, the Industrial Commissioner took into account the submission about Ms Porche’s personal circumstances, but concluded on all the evidence, and for reasons which appear sound, that the dismissal was the only appropriate outcome. There is no substance in ground 5.
[45]Norbis v Norbis (1986) 161 CLR 513 at 518.
[46](1936) 55 CLR 499.
[47]House v The King (1936) 55 CLR 499.
Grounds 6 and 7 can be considered together. They are:
“6.The Commissioner erred to understand how this process was an abuse of process and how it was my workplace right not to be subject to this workplace abusive process or victimisation, by failing to consider that the ‘veiled support and performance process’ was only placed on me after returning to work at a new school and being a new mother, even though I have taught for 19 years and these processes were only placed on me when I was subject to extremely bad class dynamics at both schools(As was argued in my facts and contentions submissions and my arguments and extension of argument submissions), in failing to understand and consider how the specifics of the class dynamics combined with the issue of discriminately being exposed to these stressful (abusive) processes upon returning to a new work situation after becoming a mother, effected all my rights as well and my performance in the workplace, it appears that the Commissioner’s termination of my employment was harsh, unreasonable, and unjust.
7.The Commissioner erred to consider and understand that I worked for my university degree. I waitressed all the way though it and I worked hard to pay off my university FEES all by myself as documented in by submissions and explained orally in my hearings and mentions. As mentioned in my submissions and mentions, when studying for my paid university degree, I was taught by lecturers that all I can do as professional teacher is the best that I can do and that teachers have the right to their own interpretation of concepts depending on the context of the teaching and learning environment. The Commissioner has failed to consider these points that I presented in the hearing and she has failed to consider that as I have paid for the degree it needs to be considered that I have paid to ensure job security and that I have therefore paid not to be subject to a ‘veiled support and performance process’ in my career, which overlooks my right to interpretation depending on the context of the teaching and learning situation and overlooks that as a teacher you can only do the best that you can do. In erring to consider these other considerations, the Commissioner has failed to acknowledge that the support and performance processes placed too much power into administration’s interpretation of all subject matter and concepts and contexts involved and denied me my right to interpretation of these things and my right to job security. This was therefore an abuse of process placing me on the defence, defending my job and job performance ongoingly and taking my right of interpretation away given the stressful circumstances that I was placed in. It appears that the Commissioner’s decision to terminate my employment by not considering these other considerations was harsh, unjust, and unreasonable.”
The two grounds raise two broad issues. The first is that Ms Porche was victimised and the second is that she will suffer hardship through loss of her career.
The allegations of victimisation have already been dealt with when considering ground 3 and the attack upon paragraph [94] of the reasons.[48] Part of Ms Porche’s submission is that the appropriateness or otherwise of her conduct is open to interpretation. However, the Industrial Commissioner was entitled, given the number and calibre of educators who had viewed and criticised Ms Porche, to accept that her performance was unsatisfactory. The hardship, as I have explained, was a factor that was appreciated by the Industrial Commissioner who then reasoned[49] that dismissal was the only appropriate outcome. Neither ground 6 nor 7 are made out.
[48]Paragraphs [63]-[70] of these reasons.
[49][137]-[162]; see also the analysis of ground 5, paragraphs [79]-[83] of these reasons.
Ground 8 is in these terms:
“8. At Paragraph 7 the Commissioner erred to understand the concept of substantiated allegations of unsatisfactory performance in her statement. “the applicant was dismissed from her employment as a teacher following substantiated allegations of unsatisfactory performance over an extended period at Coomera State School and Coombabah State Primary School.” The term substantiate is to provide evidence to support or prove the truth of. The Commissioner failed to understand that at the point of my dismissal there had been no solid evidence to substantiate each and everyone of the allegations.” It is appearing that she has failed to consider the many justifications in my written submission and oral submission including my extension of argument explaining exactly how many of these allegations to this day prove unsubstantiated.”
Paragraph 7 of the judgment is:
“[7] The Applicant was dismissed from her employment as a teacher following substantiated allegations of unsatisfactory performance over an extensive period at Coomera State Primary School (‘Coomera SS’) and Coombabah State Primary School (‘Coombabah SS’).”
The Industrial Commissioner is not, at paragraph 7 of the reasons, saying that the “allegations of unsatisfactory performance over an extensive period” are substantiated to her. What she is saying at paragraph [7] is that, as a matter of history, the applicant was dismissed “following substantiated allegations of unsatisfactory performance over an extensive period”. That is clearly so. The decision-maker, Mr Coghlan, upon recommendation of the Review Board dismissed Ms Porche for that reason. In other words, in the view of Mr Coghlan and the Review Board, the “allegations of unsatisfactory performance over an extensive period” had been substantiated.
Having in paragraph [7] recorded the reason for Ms Porche’s dismissal, the Industrial Commissioner then went on to perform her task which was to consider the application made under s 320 of the IR Act for reinstatement. In the course of performing that task, the Industrial Commissioner considered the evidence.
What is clear from the reasons is that the Industrial Commissioner considered Ms Porche’s evidence and the evidence led by the State. It was not necessary to consider each and every allegation and make findings about them. However, having rejected Ms Porche’s submission that all the other witnesses had ganged up on her,[50] she went on to make the specific findings in paragraph [137] and following and concluded that the decision to dismiss Ms Porche was not harsh, unjust or unreasonable.
[50]Paragraph [94].
There is no substance in ground 8.
Ground 9 is in these terms:
“9.At paragraph 8 the Commissioner erred to understand that the decision to take my long service leave in Term 2 was largely influenced by Shiree’s repetitively invasive, belittling, aggressive and unsolicited style management of me. It appears the Commissioner has overlooked and devalued my personal experience of how Shiree’s approach to management was unreasonable as it made me feel that my job security was threatened, and I was not safe in my work environment. As the Commissioner has no substantiated evidence to prove that Shiree’s, Chris, Murray’s as well as Tina’s approach to management did not threaten me in this way her it appears her attempts to invalidate the destructive effect it had on me and my work performance in the workplace are unjustifiable as it is a form of abuse gaslighting to invalidate someone personal experiences making the termination of my employment harsh, unjust, and unreasonable.”
Paragraph 8 of the reasons is:
“[8] The Applicant commenced teaching a Year 1 class at Coomera SS in January 2015. The Applicant was absent during Term 2 having taken long service leave.”
The Industrial Commissioner did not make any findings adverse to Ms Porche consequent upon her taking long service leave in Term 2. Even if Ms Salazar treated Ms Porche inappropriately, there was a significant chronology of events after Ms Porche left Coomera State School. That included the continuation of the MUP at Coombabah State School, complaints being received from various teachers and others and an independent review by Ms Bentley and Mr Josey. There is no substance in ground 9.
Ground 10 is:
“10.At paragraph 9 the Commissioner erred to include in her statement that at no time did Ms Salazar allow me to meet with all the parents in a one-to-one meeting to discuss the truthfulness and validity of these allegations at the time they were raised making the act of justifying this as a reason to place me on a support plan unsubstantiated and therefore a breach of the process and a procedural flaw to try to justify these as substantiated allegations. In failing to acknowledge the initial procedural flaws the Commissioner erred to acknowledged that Ms Salazar manipulated me onto the initial support plan making the resulting steps that followed leading to management out of my employment, harsh, unjust, and unreasonable due to the initial and ongoing procedural flaws in the process of the MUP.
(The Commissioner failed to consider that the union informed me that even one small breach of the process deems that the process itself was flawed and cannot therefore be considered as a legitimate or fair process to justify the termination of my employment, this making the dismissal of me harsh, unjust, and unreasonable.”
This raises two issues: (1) Ms Porche was not allowed to meet with the parents in order to challenge the allegations and (2) there were procedural flaws in the process of the MUP. This ground raises similar issues to those raised by ground 4.[51]
[51]Paragraphs [71]-[78] of these reasons.
The evidence concerning the first issue was dealt with in detail by the Industrial Commissioner in the reasons at paragraphs [104]-[116] some of which I have already analysed.[52] It was open to the Industrial Commissioner to determine that it was reasonable to deny Ms Porche access to each and every individual complainant provided that the complaints were put to her fairly. It was also open to the Industrial Commissioner to find that the allegations had been put fairly to Ms Porche.
[52]Paragraphs [71]-[78] of these reasons.
The evidence of the conduct of the MUP process was carefully analysed[53] by the Industrial Commissioner and there is no reason to conclude that any of the findings made by her were not open. Specific complaints form the basis of other grounds which I consider later.[54] There is no substance in ground 10.
[53][14]-[42].
[54]For example, ground 26.
Ground 11 is in these terms:
“11. At Paragraph 10 The Commissioner erred to justify the truthfulness and therefore validity of Ms Salazar’s recorded chronology and Mr McMillan’ observations as well as their feedback at paragraphs 10 and 11, as they both have no physical evidence of taped lessons to validate the truthfulness of Mr McMillan’s or any of the Deputies and or Principal’s observations of my lessons and thus there is no solid evidence or substantiated evidence to prove that he was writing a true and accurate observation of what I could reasonably achieve given the cohort of children. To further support this the Commissioner failed to recall how I brought it to Chris’s attention in my cross examination of him in court how his written observation of me was not in line with what the mother of [Sally][55] was observing in my lesson delivery each week when she supported her daughter in the weekly reading and language rotations, proving Mr McMillan was not writing honest observations of the excellent work that I was doing in the classroom. Commissioner Power erred to consider that she therefore has no substantiated measurable evidence to prove that Chris was not using this as a strategy for the purpose of lowering myself esteem to justify his “push” of me onto and further along the ‘veiled support plan’. The Commissioner failed to recall how I provided verbal evidence and justification when cross examining both Chris and Shiree of how I had to buy a $200 running record box due to them not providing me with a running record box to meet their expectations and all the related implications discussed and evidence provided in the cross examination proving the process was flawed. The Commissioner’s heavy reliance on Mr McMillan, Ms Salazar’s as well as all the other staff and external staff’s written hearsay observations with no substantiated physical evidence that the delivery of my lessons did not meet the requirements of a competent teacher given the mix of challenging dynamics across both schools made the decision to terminate my employment, too harsh, unfair, and unreasonable. The Commissioner also has no physical evidence to measure my lesson delivery against that of my fellow teaching staff to make her decision justifiable again making her decision too harsh, unjust, and unreasonable.”
[55]Child’s name anonymised.
Ground 45 refers to paragraphs [150] to [160] of the reasons for judgment. Paragraphs [150] and [151] appear elsewhere in these reasons.[104] There is no need to set out paragraphs [152] to [160]. Ground 45 does not purport to assert a basis upon which the appeal ought to succeed. Ground 45 simply contains an explanation as to why Ms Porche feels unable to respond to each and every paragraph of the Industrial Commissioner’s reasons for judgment.
[104]Paragraphs [270] and [275] of these reasons.
Ground 45 raises no new issues and it ought to be rejected.
Conclusions
There is no substance to any of the 44 grounds[105] raised by Ms Porche. No legal or factual error has been identified.
[105]There is no ground number 35.
As previously observed,[106] Ms Porche wished to seek leave to raise any grounds that she could not pursue as of right. However, there is nothing of substance, whether factual or otherwise, identified in any of the 44 grounds. Therefore, the appeal ought to be dismissed.
[106]Paragraphs [51] and [52] of these reasons.
Orders
The appeal is dismissed.
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