SALLY KNEE and SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, SCIENCE, RESEARCH AND TERTIARY EDUCATION
[2012] AATA 392
•27 June 2012
[2012] AATA 392
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4563
Re
SALLY KNEE
APPLICANT
And
SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, SCIENCE, RESEARCH AND TERTIARY EDUCATION
RESPONDENT
DECISION
Tribunal Senior Member C R Walsh
Date 27 June 2012 Place Perth Decision Summary
The Tribunal affirms the decision under review.
(sgd) C R Walsh........................................................................
Senior Member C R Walsh
CATCHWORDS
Higher education – applicant enrolled in Graduate Diploma of Education (Secondary) at Edith Cowan University (ECU) - applicant withdrew from unit “PPA4350 (Final Professional Practice)” after the census date – applicant received a grade of “Withdrawn Fail” for the unit – applicant applied to ECU to have her SLE for the unit re-credited and her fees for the unit remitted – ECU refused the applicant’s applications for withdrawal without academic and financial penalty - applicant alleged that she was “bullied” by her mentor teacher during her practical placement at the school where she undertook the unit – applicant alleged that ECU failed to respond appropriately when she reported the alleged “bullying” – applicant alleged that her ECU university colleague had a conflict of interest – applicant alleged that her enrolment in the unit was terminated by ECU without her consent – applicant alleged that the termination of her enrolment by ECU prevented her from achieving a passing grade in the unit – whether the applicant’s circumstances constitute “special circumstances” – consideration of meaning of “special circumstances” under SLE Guidelines and Administrative Guidelines 2012 – whether applicant’s circumstances were beyond her control – whether applicant’s circumstances did not make their full impact until after the census date for the unit – whether the applicant’s circumstances made it impracticable for her to complete the requirements for the unit – decision under review affirmed
LEGISLATION
Higher Education Support Act 2003 – section 36-20 – section 36-21 – section 36-21 - section 79-1 – section 79-5 – section 75-10 – section 75-15 - 209-10 – section 238-10
Student Learning Entitlement Guidelines – Chapter 5
Student Learning Entitlement (Repeal) Instrument 2011
Higher Education Support Amendment Act (Demand Driven Funding System and Other Measures) Act 2011 – Item 38 of Part 2 of Schedule 2 – Item 9 of Part 1 of Schedule 2
Administration Guidelines 2012 – Chapter 3
Legislative Instruments Act 2003 – section 5CASES
Re Costello and Secretary, Department of Transport [1979] 2 ALD 934
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Baum and Secretary, Department of Education, Employment and Workplace Relations (2008) BC200810597
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Gorton [2001] FCA 1194Repatriation Commission v Williams [2001] FCA 1195
SECONDARY MATERIALS
Federal Register of Legislative Instruments
Explanatory Statement to the Student Learning Entitlement (Repeal) Instrument 2011Edith Cowan University “Final Teaching Practice 2010 Information and Guidelines”
REASONS FOR DECISION
Senior Member C R Walsh
27 June 2012
INTRODUCTION
Ms Knee seeks a review of the decision made by Edith Cowan University (ECU) on 14 July 2011 to refuse to re-credit her Student Learning Entitlement (SLE) for the unit of study “PPA4350 (Final Professional Practice)” (Unit) in which she had enrolled in Semester 2 of 2010, at ECU, pursuant to section 79-1 of the Higher Education Support Act 2003 (Act). On 16 September 2011, that decision was reviewed and affirmed by Ms Glenda Jackson, Director Student Services Centre, ECU pursuant to section 209-10 of the Act.
FACTUAL BACKGROUND
On 16 February 2009 Ms Knee enrolled in the Graduate Diploma of Education (Secondary) at ECU, at which time she elected to defer her HECS liability.
On 14 December 2009 Ms Knee enrolled in the Unit.
On 17 August 2010 Ms Knee submitted her placement form for the Unit at the school where she had been offered a placement (School).
On the morning of 23 September 2010 Ms Knee emailed Dr Geoffrey Lowe, Senior Lecturer, ECU (Dr Lowe), stating:
“I’m very stressed about my teaching prac and don’t feel I have the skills to do what I’m being asked to do. I was hoping I might have a private chat with you about it. I will warn you I will probably cry.”
Later that day, Dr Lowe replied to Ms Knee, by e-mail, as follows:
“If you are stressed about the prac, then why not delay it? Don’t put yourself under pressure. How about coming in earlier next Tuesday, say around 2.30, for a chat.”
On 24 September 2010, Ms Knee replied, by e-mail, to Dr Lowe. That e-mail said, in part:
“I have put off something that I really want to do in order to complete my prac this semester. If I delay it, I would have to delay getting what I really want. I’ll describe this when I meet with you.
I also emailed Alan and am meeting with him today. I’m really struggling with the conducting class and need to find a way to get through it.”
Dr Lowe responded to that e-mail with the following e-mail:
“If you are thinking of delaying the prac, it would be best to let the prac department know straight away – they may be able to use your prac placement. Contact Carmel in the prac office on [email protected].”
On 24 September 2010 Ms Knee raised concerns about undertaking her practical placement for the Unit with ECU Secondary Placement Officers. An email from Ms Carmel Ward (Ms Ward) and Ms Nicole Forbes (Ms Forbes), ECU Secondary Placement Officers, to Dr Lowe, states:
“...Sally phoned, sounding very unsure of herself. She said that she will come to see you on Tuesday. I have advised her the census dates (23rd Oct for Financial penalty and 30th Oct for Academic penalty) If she decides to withdraw before the prac commences, we will ask Maureen if she would be willing to take [blank]. If Sally decides to ‘soldier on’, can you please put some thought into where we can place [blank]....Please dig deep!”
On 24 September 2010, Ms Knee also raised concerns about her upcoming practical placement and her conducting ability to Dr Alan Lourens, Conducting, Performance, Composition, Education, ECU (Dr Lourens). An email from Dr Lourens to Dr Lowe, dated 24 September 2010, provides:
“...Just a brief report on Sally Knee, whom I met this afternoon at 1pm. We ended up meeting in a classroom, as she wanted to meet somewhere private, and the meeting finished at 1:30 pm when I needed to go and teach my class.
Sally was very upset and stressed. She is worried both about her conducting, and more particularly with her upcoming teaching practice, She is worried that her mentor teacher at [the School] is being very open with her teaching and conducting requirements, and she feels out of her depth. She is worried about her conducting ability, although by her own admission she has not spent much time practicing the physical aspects,
I believe that Sally will be in great need of support in the coming practice, and that she feels she is not ready for it. Please let me know if I can offer any more support...”
On 28 September 2010, Dr Lowe responded to the email from Dr Lourens, as follows:
“...Thanks for the heads up. I am also meeting with Sally today and will recommend that she delay her final Grad Dip Ed pract until such time that she feeds [sic] ready to cope. I suspect there is more in her background (she is an incredibly nervous person) than just pre-prac nerves...”
On 30 September 2010 Ms Ward emailed Dr Lowe about a meeting she had with Ms Knee regarding her options for her placement, as follows:
“...I spoke to Sally again today. She raised more obstacles than achievable. I asked her to take some time to think through her options, research and prepare for her practice and make up her mind about the placement.
She has 3 options:
1 Do her practice at [the School] (She said that she is worried that she will not meet [the mentor teacher’s] requirements)
2 Decline the [School] place and we search for a new place when schools re-open. (She wants a school where she will have experience with Primary Music – I explained that we have to place her in Secondary, and Primary experience would be a bonus. She said that the [School] place is not as it was described to her. I have advised her that there is another student waiting for a place, but there is no guarantee that [the mentor teacher] will allow us to place another student at [the School]. There is also the possibility that we may not find a place in a school that was to her liking).
3 Withdraw (she wants to finish GDE course so she can focus on her Bc.Sc at Curtin in 2011 – she has deferred her Curtin studies this semester to complete the GDE course).
Will ask Nicole to follow up with Sally early next week to determine her response...”
On 1 October 2010 Dr Lowe responded to the email from Ms Ward regarding Ms Knee’s options regarding her practical placement, as follows:
“...Sounds like exactly the same conversation that I had with her! Bottom line is, either get on with it or don’t do the prac – stop making excuses. Lets see what eventuates...”
Ms Knee’s 7 week practical placement at the School commenced on 11 October 2010.
The ‘Census Date’ for the Unit was 28 October 2010.
On 2 November 2012 Ms Knee emailed Dr Peter Prout , Graduate Diploma of Education (Secondary) Course Coordinator, ECU (Dr Prout), regarding problems she was having with her practical placement at the School, as follows:
“...I am having some problems on prac and would really like to discuss them with you, preferably in person. I have already spoken to my university colleague, the prac office and Geoff Lowe regarding this matter.
I’m not at the school today and doubt I will be up to going tomorrow so I am available most of the time...”
Also on 2 November 2012, Dr Prout emailed Ms Knee about her meeting request, as follows:
“...Thanks for your email. I know you have spoken with Geoff, which is why I didn’t call you yesterday (I agree with the counsel Geoff gave you). I wonder what the outcome was with your uni colleague and the prac office? I will be in a school all day tomorrow and I am running a training event on Thursday morning – I am not really free until Friday!
I am concerned you are out of school again today (presumably sick?) since you can’t afford to miss time and possibly not meet the minimum criteria for the unit. I suggest you work this out with Janeen, but I can confirm we don’t move people unless there is a serious breakdown of relationship between the mentor and out student. Otherwise it is a matter of toughing it out and learning all you can from the experience. If you cannot work this out with Janeen I can see you on Friday...”
An email from Ms Janeen Thomsett, Professional Practice Coordinator, ECU (Ms Thomsett), to Ms Forbes, dated 2 November 2010, noted that Ms Knee had told Ms Thomsett that she had decided to withdraw from her practical placement at the School:
“...I spoke to Sally late today and she has decided to withdraw from the prac at [the School]. It was too late to get a message to her MT [i.e. mentor teacher] or to the school coordinator. Can you please give them a call first thing tomorrow morning!!...”
Also on 2 November 2010, Ms Knee replied, by email, to Dr Prout. That email set out some of Ms Knee’s issues concerning her practical placement at the School, as follows:
“...Thank you for your email. I spoke with Janeen by telephone. I told her again as I did yesterday that I couldn’t continue with [the School] prac under my mentor teacher in the current circumstances. I don’t believe that it would be possible for me to demonstrate the competencies necessary to pass the prac while working with her. Janeen said I therefore had to withdraw from the prac unit. I was committed to the prac and made a number of sacrifices to make sure I could give myself the best chance of doing well. I was really looking forward to teaching in a school in some capacity next year. It makes me sad to think that this won’t happen as it’s something I’ve worked really hard towards.
I have had a number of unpleasant experiences on prac, some of which I shall describe to you below.
The working environment in the music department is very tense in part due to a dispute between my mentor teacher and another music teacher. I was due to begin taking two classes taught by the other music teacher this week. On Friday my mentor teacher specified which particular classes I was to take and asked me to tell her what I was going to work on with both his classes. I said that I needed to talk to him to find out what he had been teaching him (sic) to see if I might perhaps be able to do a lesson that followed on from what he had been doing and also to ensure that I didn’t double up on content. She said that I needed to tell her there and then what I was doing and would not allow me to talk with him about this. I believe the reason for not being able to discuss my upcoming lessons with him was because of the ongoing dispute between them. I do not feel that I can talk openly and freely with the other music teacher because of this dispute and her disapproval of my communication with him. I feel so isolated at the school.
I have tried as far as possible not to become personally involved in the dispute within the department. I have tried in all my conduct with the other music teacher to be friendly and welcoming. I have made the effort to greet him every morning. Although this might sound like a basic courtesy, it has not been easy to do in that environment.
On the first day of classes (12/10/10) my mentor teacher took a year 11 aural training class of four students. Every time a student made a mistake, she wrote their name on the board and placed a cross next to it. The emphasis on the exercise was on who the loser was going to be. There was one boy who was less capable than the others. He had more crosses next to his name than anyone else. He was visibly anxious and I found this very distressing to watch. Although I disapproved of the way she treated the students, I didn’t feel I could speak up. I’m sure that the students knew that I felt uncomfortable.
After a while, my mentor teacher told me to join in the activity with the students instead of just observing. I had never used the system the class was using to name rhythms and was therefore a bit slow at interpreting the notation on the sheet we were working from. The system was explained to me briefly just before I engaged in the activity with the students. I made lots of mistakes. She also wrote my name up on the board and put a cross next to it every time I hesitated/incorrectly said a rhythm. I felt humiliated. The students were trying to help me and some of them even made mistakes so that they’d get a cross next to their name before the rhythm came around to me. At one point my mentor teacher said that it was a “tie for the loser” between me and the least confident boy. I feel that this incident affected my ability to form a professional teaching relationship with these students.
I’m not absent from the school due to illness. I have called in “Sick” for the second day in a row because the thought of being in such an unbearable environment any longer fills me with dread. It is unendurable.
I really want to graduate this year. I want to be a teacher. That’s why I requested a new placement.
I have described just two facets of my experience on prac in this email. My reasons for feeling that the mentoring while on placement is not acceptable are numerous. They will take some time to document in full. I have discussed the above and more with Janeen.
I did not feel able to tell let (sic) my university colleague, Christina Norris know (sic) the extent of my difficulties with my mentor teacher while on prac. I will elaborate on the reasons for this another time. I’m exhausted and really need some sleep. I do however want to make it clear at this stage that she has been very supportive and I couldn’t recommend her highly enough to be a university colleague for other prac students at another school. My issue is not with her or her personality. She has been very kind to me.
I would like to meet with you on Friday. Can you please suggest a time?...”
On 3 November 2010, Ms Knee attended the Lindisfarne Medical Group to see Dr Glynn Hughes who issued her a medical certificate, which states:
“This medical certificate is to certify that I reviewed Sally Rachel Knee at our surgery today.
In my opinion, she will be unfit for her normal work/study from 3/11/2010 to 5/11/2010 inclusive.
Sally reports that her symptoms were present since the beginning of this week; Her presentation is consistent with this.”On 4 November 2010 Dr Prout emailed Ms Knee, as follows:
“...I will be in my office all morning tomorrow so I can see you any time between 9.30 am and Noon. Since you have discussed this with Janeen I will cc her so that we don’t cover the same ground again...”
On 5 November 2010 Ms Knee emailed Dr Prout, as follows:
“...Thank you for agreeing to meet with me. I was hoping to come and see you at 10.30 if possible. I hope you are able to read this email before then...”
Also on 5 November 2010 Dr Prout emailed Ms Knee, as follows:
“...Let’s make that 11.00 am. Thanks.”
On 6 November 2010 Ms Knee emailed Dr Prout about her decision to withdraw from her practical placement, as follows:
“...I am writing to inform you of my decision regarding my placement.
I’ve decided that I won’t return to [the School] for my placement or mediation because I feel intimidated in my mentor teacher’s presence.
I understand the consequences of this decision, that I will be awarded a fail grade as a result. It is my intention to appeal this. Could you please inform me of the steps involved in this process?...”
On 8 November 2010 Dr Prout emailed Ms Knee about her decision to withdraw from her practical placement at the School, as follows:
“...I am sorry you have decided to withdraw from your prac. I believe Janeen has now officially informed the school accordingly. If you intend to appeal the consequences of your decision you need to go to the Student Handbook where you will find the steps you need to follow. You will note that one of the first things you need to do is to see Janeen and myself and then to complete the next steps in the process...”
On 8 November 2010 Ms Thomsett emailed Ms Knee regarding her withdrawal from the Unit:
“...Thank you for officially letting me know of your decision to withdraw from your final practicum. As you are aware, the result for a late withdrawal will be a “withdraw fail”.
If you do choose to follow through with an appeal you will need to go to This web site will provide you with the details and the process you need to follow.
From memory, it asks you to first go to your lecturer (in this case it is me) and then to the course coordinator (Peter Prout). As you have already been through these steps, you will need to download the correct form and follow the guidelines. Please let me know if I can assist...”
On 8 November 2010 Ms Thomsett emailed Ms Knee’s mentor teacher at the School regarding Ms Knee’s withdrawal from the practical placement, as follows:
“..I am very sorry it has taken me so long to catch up with you. I have tried calling on many occasions and today when they told me you were not well I got your email address instead.
As you are no doubt aware by now, Sally Knee has withdrawn from the prac. She has said that she was very stressed and was unable to continue. I know she was very anxious in the first week but Christina Norris has sent me an email to say that she had settled in after the first week and was now doing well.
I was surprised to hear from her last Tuesday when she told me she was withdrawing.
I understand that you are not well but if you get the chance when you are feeling better can you please just drop me an email to let me know how you felt she was going up til (sic) the time she withdrew...”
On 9 November 2010 Ms Norris emailed Ms Thomsett regarding her observations of Ms Knee:
“...Just a follow up email re my observations of Sally Knee-GDE Music – at [the School]. Mentor [teacher](sic).
I first met Sally on 13th October during the School Seminar, which also included 2 other GDE students. During this meeting I discussed the requirements for this practical experience, including the final grade assessment rubric (as per handbook). This is to ensure that the students understand what is required as well as giving them a goal to work towards, and ensuring that all sections are covered.
After this meeting Sally stayed behind and indicated that she was upset and felt very overwhelmed by all that had been asked of her so far at [the School]. This included doing revision with the year 12 students in the area of contemporary music. She indicated that she had spent many hours researching this area as her understanding is limited in this field – her strength is classical, and had prepared the lesson plans for this class. She felt that she was unsure of some of the terms and felt that she had not received enough assistance from her mentor. Due to all the extra preparation she felt she was very tired and could not teach the lesson that day.
She also felt that she didn’t have the skills to meet the outstanding level as required in the ECU rubric. At this stage she had become quite tearful and so taking these issues into account I suggested we approach the mentor and ensure that she was given the support that she required. After speaking together with Sally and [the mentor teacher](sic), it was agreed that further feedback and assistance would be given when required. However, [the mentor teacher](sic) assured Sally that the lessons that she had prepared so far were very good and appropriate.
As Sally was so upset, and felt she couldn’t cope with the rest of the day and teach (the already prepared for) year 12 class, [the mentor teacher](sic) and I agreed it was best for Sally to go home, get some sleep and restart the next day. I told Sally that it would be OK for me to be in on a weekly basis to give her as much support as she would require (this was cleared with Janeen at ECU).
[The mentor teacher’s] feedback about Sally’s performance so far had been that she had seemed to be coping, preparing thorough lesson plans and starting to develop good relationships with the students.
Sally’s load was quite low with only 2 lessons per day (see attached) which included a yr12 revision class, and yr11 class. Also included was some choir conducting and some band practice work.
I had not received any phone calls nor emails related to any problems at [the School] since this time.
I observed Sally teaching on the 21st October and found her to be solid in her teaching and looked confident and enthused with the students (four students of Yr 11) and did extremely well organising these students to clean up the equipment from a different location back to the music department.
I went through Sally’s prac portfolio, and other professional documentation. I found these to be of excellent standard, very well organised, with only minor improvements to be made to make the usage of the documents easier in the future.
This feedback was given to Sally at the time. Sally did not indicate that she had any further issues and had settled into being at [the School].
The feedback that I received from [the mentor teacher](sic) was that she was pleased that Sally was increasing in confidence and was making progress and that she would ask her to do a little more. This is when the Year 12 students finished and she would start working with the Choir and ensembles.
It was organised that I would come in during week 4 and observe a choir practice session to be led by Sally. If I was required earlier then I would be contacted to come in during week 3.
I next briefly touched base with Sally during a morning tea at [the School](as I was in for another student) in week 3, and asked if all was going OK, and was told, she was going well. I left it at that. I spoke to [the mentor teacher] quickly to ensure that Sally would take some Junior classes and come up to having a “full load” from week 4 onwards.
I had organised to come back in and observe Sally teach on Wednesday 3rd November. However, I received a phone call from Sally on Monday 1st November at 7.30 am to say that she wasn’t feeling well and would not be in that day. We spoke again later that morning during which time she expressed her concern about being overwhelmed and stressed at [the School], and that she felt she was being bullied by her mentor and that the (perceived) level of animosity in the department made it difficult for her to stay at [the School]. Sally asked if she would be able to continue her teaching practice via SIMS.
I then contacted Janeen Thomsett with the issues that Sally was facing, who then took over the management of this case.
I spoke briefly to [the mentor teacher] after Sally’s decision to not continue, she informed me that Sally had let her know that she wasn’t’ coming in on Monday via SMS, and that this was not professional. However, [the mentor teacher] reiterated that she thought that Sally was doing well and that she would be taking a larger load as of week 4. She also stated that she thought they were working well together and there wasn’t a problem with each other.
I believe that if Sally had continued she would have been able to attain a pass grade for the practical experience...”On 9 November 2010 Ms Forbes emailed ECU Student Central to arrange Ms Knee’s withdrawal from the Unit:
“...Would you please withdraw Sally Knee from the unit PPA4350 for teaching period 10PR6, as at the 2nd of November 2010. I was advised by Janeen Thomsett, Professional Practice Co-ordinator, on the 2nd of November that Sally did not wish to complete her professional practice. Written confirmation from Sally is provided in the message to Peter Prout dated the 6th of November below..”’
On 10 November 2010 Ms Lisa McStay, Student Advisor, ECU Contact Centre, emailed Ms Knee confirming that her withdrawal from the Unit had been processed:
“...Your request to withdraw from PPA350 – Final Professional Practice has been processed and you have now been withdrawn from the unit. As you withdrew after the Academic Penalty date, the unit will appear on your record as “WF – Withdrawn Fail”. Please be aware that as your request was also made after the financial penalty date, you remain liable for the tuition fees...”
This is also shown in an ECU computer generated enrolment record.
On 11 November 2010 Ms Knee’s mentor teacher at the School emailed Ms Thomsett regarding Ms Knee’s performance on her practical placement, as follows:
“...Sally Knee taught at [the School] for 3 weeks. During her time, she taught a Year 12 class of 4 students for one week and a Year 11 class of 4 students for 3 weeks. She took 2 separate choirs once and a Jazz Band rehearsal. Sally was always well prepared for her classes and conducted her lessons very well. She showed very good class room control and delivered her lessons competently and confidently. Her lesson planning was always completed to a high standard.
I enjoyed working with Sally during her time at the Music School. With more teaching experience, Sally has the potential to be an excellent teacher and I do hope she will have the opportunity in the future to show how capable she is...’’On 12 November 2010 Ms Thomsett responded to Ms Knee’s mentor teacher, as follows:
“...I appreciate the time and effort you have provided for Sally...”
On 7 March 2011 Ms Knee submitted an “Application For Withdrawal – ECU Without Academic Penalty” form and an “Application For: Remission of HECS-HELP, Fees Liability Or Fee-HELP Debt, Refund of Unit Fees” form with ECU in respect of the Unit. Ms Knee’s stated reasons for the applications were as follows:
“I was unable to successfully complete the above unit for the following reasons:
·experiencing bullying
·failure of ECU to respond appropriately to the reported bullying
·withdrawal from PPA4350 without consent
The above did not make their full impact until after the census date.
Further details are attached.” [Emphasis added]In support of both of those applications, Ms Knee provided the following “further details”:
“ Summary
I experienced bullying from my mentor teacher while attempting to complete my teaching placement. Edith Cowan University’s failure to respond in a timely and appropriate manner when I reported this, the adverse consequences that followed, and the termination of my enrolment in the unit without my consent resulted in unsuccessful completion of the unit.List of Bullying Behaviours Experienced
·behaviour that was degrading and humiliating
·isolation
·deliberate denial of access to information and resources
·overloading with work
·setting deadlines that were difficult to achieve
·constantly setting tasks beyond my skill level
Description of Bullying Behaviours
On 12/10/10, the second day of my teaching practicum and the first day of term for students, my mentor teacher was conducting a year eleven aural training class of three students. We had previously agreed that I would observe this lesson. The students were taking turns reciting notated rhythms using a system that my mentor teacher was aware I was unfamiliar with. Each time a student made a mistake, she wrote their name on the white board and placed a cross next to it. She said “Let’s see who the loser’s going to be.” She then asked me to join in the activity with the students. I made a number of errors. Each time, my mentor also placed a cross next to my name on the whiteboard. She stopped the activity and told me in from of the students that I needed to perform at a higher standard. I said that I would do my best but was struggling because I had never used this system before. My mentor stopped the activity on at least two subsequent occasions and told me in from of the students that I needed to do better.
One boy was less confident than the other students and appeared to be extremely anxious. He made a greater number of errors than the others. My mentor said it was “...a tie for who the loser’s going to be...” between this student and me.
This incident made me feel humiliated. I was concerned I would be required to unexpectedly participate in other unfamiliar activities and would be similarly humiliated. I thought that my mentor teacher would coniine to demand an unrealistically high standard of performance that I would be unable to achieve. I was worried that I would fail my practicum as a result.
My mentor teacher arranged for me to teach the year twelve 3B Contemporary Music classes until students left to complete their WACE exams. I did not feel confident about teaching contemporary music because my background and undergraduate degree is in classical music. I knew I did not have the content knowledge necessary to be able to teach and prepare lessons for the students without supervision and assistance. I told my mentor teacher that I would need support from her in order to teach this class.
My mentor teacher would not provide me with any resources when I requested them and told me that she expected me to find all my own teaching materials to teach the 3B Contemporary Music class. Nor would she share or suggest when they were requested any resources I could use in order to learn the content knowledge required to teach specific skills that I was instructed to cover with the students. She would also not allow me to use any pre-existing revision/lesson materials. I was expected to create me own, resulting in an unrealistically heavy workload. This denial of access to resources and unreasonable workload made deadlines difficult to achieve and caused severe sleep disturbance. On a number of occasions while on placement, I did not go to bed at all in order to complete the work for school the next day.
I was required to independently write whole sections of the year eleven exam without guided assistance. I did not feel competent to be able to do this without supervision and voiced my concerns. I was not given access to the resources and materials required to complete the task until shortly before the school’s deadline for exam submission, making this deadline difficult to achieve. In addition, she insisted that I include content that was not part of the relevant syllabus released by the Curriculum Council of Western Australia. I was instructed to include types of questions that assessed beyond the level of performance that students in the class could attain, and that I would be held accountable when it became apparent that students were incapable of answering these questions.
There was an ongoing conflict between my mentor and the other senior school music teacher. This appeared to have been ongoing for some time before I commenced the placement. Both teachers barely spoke to each other. I wanted to communicate openly with the other teacher, but felt unable to as a result of this conflict and that my mentor teacher disapproved when I spoke to him. I also became increasingly aware over the duration of my placement that my mentor teacher disapproved when i spoke to other staff members. She communicated this mainly via non-verbal means. This made me feel isolated, and I avoided communication with other staff at the school as a result.
On a Friday while we were meeting to discuss what I was going to teach the following week, my mentor teacher told me I was going to take the other teacher’s year nine and ten classes. She asked me what I was going to teach the students. I said that I wanted to discuss this with the other teacher. I felt that this was necessary because I was going to be working with him and teaching students he was responsible for. I also wanted to prevent the duplication of lesson content, and ensure I was providing instruction at an appropriate level. It was necessary for me to work collaboratively with and seek feedback and assistance from other staff members in order to satisfy the criteria for assessment. These needed be met in order to achieve a passing grade for the unit. My mentor teacher would not allow me to talk with the other teacher about his lessons; she insisted I tell her during that meeting what I was going to teach the classes.
Following the discussion I have described above, I was very concerned about the remainder of my practicum. I know that I would be unable to teach all that my mentor teacher had instructed me to cover in the year eleven classes during the next week. I was also worried about having to teach the other music teacher’s classes without discussing this with him. As a result of not being permitted to talk to him about teaching his classes, I felt more unable to engage in any conversation with the other music teacher. I didn’t feel that I could satisfy the requirements of assessment to achieve a pass for the practicum under these circumstances.Reporting the Bullying and Edith Cowan University’s Response
On 13/10/11, I reported the denial of access to information and resources, unreasonable work demands, that I was sometimes unable to go to bed in order to finish work for the following day, and didn’t feel able to meet the requirements of the teaching practicum in that environment to Christina Norris (university colleague) in our first meeting. I also told her a serious incident that involved me, the students, and my mentor teacher had occurred the previous day. I said that I didn’t feel able to discuss this in the school’s staff room where the meeting took place. The incident I was referring to was the lesson during which the students and I had crosses placed next to our names when we made an error. Christina Norris discussed the concerns I had described to her with my mentor teacher.
The incident involving the children was not discussed again during my practicum. I decided not to follow up with it because I feared that my mentor teacher would treat me less favourably and might fail me as a result. My university colleague did not ask for any further details or refer to this incident again during my practicum.
On 01/11/10, I reported that I was being bullied to Dr Geoff Lowe (Senior Lecturer of Music), Janeen Thomsett (Professional Practice Coordinator), and Christina Norris. I attempted to contact Dr Peter Prout (Coordinator, Graduate Diploma of Education) by phone and left a message on his answering machine. I said that was experiencing severe difficulties on my teaching practicum and wanted to discuss these with him. I asked him to call me back. He did not return my call.
In a phone conversation on 01/11/10 with Janeen Thomsett, after I had described specific bullying incidents, she said that she thought I had misinterpreted these incidents and behaviours. She told me that I had two options. I could return to my placement with my current mentor teacher, or withdraw from the unit. Janeen Thomsett informed me that if I withdrew, a fail grade would be recorded on my academic transcript. I requested a new placement, but was told that this was not possible. No offer was made to investigate the bullying, nor did she acknowledge that I had experienced bullying.
On 02/11/10, I requested a meeting in writing via email with Dr Peter Prout to discuss the difficulties I was experiencing on the professional placement. In a spate email on this date, I informed him that my mentor teacher was bullying me. I described specific incident. In his reply, he stated that he was not available for a meeting until 05/11/10.
On 02/11/10 Janeen Thomsett contacted me by telephone and asked if I had made any decision regarding my placement. I told her that I felt unable to return to my placement with my mentor teacher under the current circumstances. She said that I needed to withdraw from the unit, and would receive a grade of ‘...withdrawn fail...’ as a result.
On 03/11/10, I requested a meeting with Janeen Thomsett. A meeting took place later that day during which no new options were provided. I was again told that I could either return to my placement with my mentor teacher, or withdraw from the unit, resulting in a grade of “...withdrawn fail...’ being awarded. No offer was made to address the bulling before I returned to the placement. I requested an alternative placement again and was told that this was not possible. Janeen Thomsett did not acknowledge that I had experienced bullying.
On Friday 05/11/10, I met with Dr Peter Prout. He said that I could return to my placement with my mentor teacher on Monday, if the school would have me. He also offered to go to the school to mediate between my mentor teacher and me.
During the meeting, each time I said that I had been bullied, or described how I felt after specific bullying incidents, Dr Peter Prout said, “That’s just your perception.” He said this numerous times during the meeting. I told him that I was unhappy that no staff member had acknowledged that I had experienced bullying. His response to this was, “But that’s just your perception.”
I also brought it to Dr Peter Prout’s attention that I was dissatisfied with how my reports of bullying had been dealt with by the staff at ECU. He said that he agreed with the way my complaint had been dealt with by other staff and that this response had been appropriate.
Dr Prout asked me what my decision was regarding my professional placement, whether or not I was going to return to the school for mediation and to resume the placement. I said that I needed more time to make this decision. He told me to contact him by telephone later that day to inform him of my decision.
Mediation was not presented as an option until four days after I had expressly notified the university that I was experiencing bullying. Prior to this, the university did not offer to talk to my mentor teacher, or anybody at the school about the bullying I reported if I was to return to continue the practicum.
Following the meeting, i felt upset and frustrated because Dr Peter Prout would not acknowledge that I had experienced bullying, and would not agree that my complaint had previously been handled inappropriately. I did not feel that if I returned to the school for mediation with Dr Peter Prout that my concerns would be appropriately addressed. This was in partly due to his refusal to acknowledge that the behaviours I had described to him were bullying. I feared that if I returned to my placement with my mentor teacher, the bullying would continue or become worse, she would seek retribution, and would fail me. I did not feel that reports of the continuation of the bullying would be believed or dealt with appropriately by ECU. I was concerned that returning to continue the placement with my mentor teacher would result in further adverse outcomes.
I contacted Dr Peter Prout by telephone later that afternoon. I request additional time to seek advice and to make my decision. He instructed me to email him by the afternoon of 06/11/10 and inform him of my final decision.
I emailed Dr Peter Prout, Dr Geoff Lowe, Janeen Thomsett and Christina Norris on 06/11/10 and informed them of my decision regarding placement. I was unable to return to the school ‘...for my placement or mediation because I feel intimidated in my mentor teacher’s presence.”Termination of Enrolment
On 10/11/10 I received an email from ECU informing me that my enrolment in Final Professional Practice, PPA 4350 had been terminated. I did not request to be withdrawn from the unit. At no time did I give my consent to be withdrawn from the unit.
The termination of my enrolment prevented me from having the opportunity to achieve a passing grade in the unit.Conclusion
Edith Cowan University failed to acknowledge that I had experienced bullying, adequately investigate my reports, minimise harm once it had occurred, or prevent further bulling or resulting harm on my placement.
The circumstances that prevented the successful completion of the unit did not make their full impact until after the census date.”
In further support of her applications for withdrawal from the Unit without academic and financial penalty, Ms Knee provided the following letter from Mr Paul Jeffery, Clinical Psychologist, dated 20 February 2011:
“...I am writing in support of Ms Knee’s appeal against the Fail grade issued by ECU as a result of her withdrawal from her final professional placement. Ms Knee has been a client of mine since August 2010, for issues not directly related to her course of study, however, in the course of our consultations Ms Knee talked increasingly about the emotional impact of her final professional practicum at [the School].
My records indicate that from the outset of the practicum, Ms Knee perceived her mentor teacher to be engaged in behaviours that were unhelpful and unreasonable. As the practicum proceeded, Ms Knee reported experiences such as being asked to conduct lessons outside of her area of training at short notice, to prepare an exam with some content outside of the scope of the syllabus, having her name placed on the blackboard with other students as punishment during a lesson, and being prevented from speaking with other teachers on the course about classes she was taking for their students. Ms Knee reported her attempts to address her concerns directly with her mentor teacher did not result in any meaningful change, and Ms Knee came to feel bullied and highly anxious about the placement, resulting in changes to her sleep and other anxiety symptoms.
During the course of our sessions, I became aware that Ms Knee also had made some attempts to engage the appropriate University channels to initially try to resolve the impasse. Ms Knee came to the opinion that the University did not appear to validate her experience (that any of her mentor teacher’s behaviours were inappropriate), and so lost confidence in the mediation process I understand was offered. She was aware that declining to participate in the process would possibly jeopardize her ability to finish her unit and degree...”On 15 March 2011 Ms Lucy Carter, Student Fees Office, ECU, emailed Ms Knee acknowledging receipt of her “Application for Withdrawal - ECU Without Academic Penalty” form dated 3 March 2011 (which was received over the counter on 7 March 2011), as follows:
“‘...This application has now been submitted for consideration and formal written notification of the outcome will be provided within 20 working days (providing all the necessary documentation has been supplied in the specified format ie: original or certified copies)...”
On 22 March 2011 Ms Sarah Osborne, Student Fees Office, ECU, emailed Dr Lowe, Ms Thomsett, Dr Prout and Ms Shelley Worth regarding Ms Knee’s applications for withdrawal from the Unit without academic and financial penalty, seeking further information or background knowledge that may assist in assessing Ms Knee’s applications, as follows:
“...Geoffery, Janeen and Peter, as the student refers to you in her application are you able to provide and further information or background knowledge that may assist in assessing /processing the student’s application...”
On 28 June 2011 Professor Brenda Cherednichenko, Executive Dean of the Faculty of Education and Arts, ECU, emailed Ms Glenda Jackson, Director, Student Services Centre, ECU, in relation to Ms Knee’s remission of fees request, as follows:
“...From my enquiries I can confirm that Sally did experience a difficult time in her placement. She notified the School of Education and did have a conversation with Goeff Lowe (sic), followed by Janeen and the (sic) Peter Prout. It appears she first had concerns in mid-October and contacted ECU colleagues around 1 November. The School has responded to her across that week, but not with the response that Sally desired.
Her own emails to colleagues indicated that she felt ‘isolated’ and ‘humiliated’ which is most unfortunate and deserves response and support, but might be also understood as quite different from the claim of ‘bullying’.
If she has spoken to colleagues about ‘Bullying’ that is not identified specifically by Peter. However, their email exchanges indicated that they were aware she was not doing well in the situation and needed additional support. She was offered mediation support in the week she notified.
They did offer to work with her on strategies to make the placement a success and to mitigate the behaviours. If bullying is clearly what has been described then normally this too should, in the first instance, be attempted to be resolved at the school.
They re-iterated that working things out in the setting is always the first approach.
Sally’s emails indicate that she had had (sic) frequently communicated with staff. It seems her first concerns were on 12th October and her first reported meetings with staff and email were from 1st November.
The emails Sally has provided do not mention ‘bullying’ but do mention ‘isolation’ and ‘humiliation’. They also make a number of judgements about ECU Staff and the schools’ staff and their suitability for the work for which they are employed.
The emails also indicate the desire by ECU staff to work with Sally to improve the situation at the school and her demand for a new placement and her request to not have to go back there.
This often happens with students and they are usually encouraged build the skills to work things out and to return to the workplace setting.
Other information I can gather which may influence the experience and outcomes of this case, includes” (sic)
She was also asked, it appears, to take on an increasing role as the teacher and she did not feel confident doing so, yet this was her last placement for her Grad Dip.
On 1st Nov, she met with Geoff Lowe and on 4th, the Program Director Peter Prout agreed to meet with her too, and on 5th November she met with Peter. Mediation was suggested, and this is now 4 days after she has spoken with Geoff.
Over the weekend then a number of emails crossed between staff and Sally. The attached email print out provided to me by Sally, indicates that on Sat 6th Sally wrote to Peter, Janeen Thomsett, Geoff Lowe and Christine Norris (the University Colleague) to say that:‘I am writing to inform you of my decisions regarding my placement
I’ve decided that I won’t return to [the School] for my placement or mediation because I feel intimidated in my mentor teacher’s presence.
I understand the consequences of this decision, that I will be afforded a fail grade as a result. It is my intention to appeal this. Could you please inform me of the steps involved in this process?’Janeen responded with all the information and weblink to the student appeal process.
To my knowledge Sally has not appealed the grade result to date.
The School is keen to enable Sally to re-enrol and undertake a practicum if she desires and I have mentioned this to her.
I think the timeframes generally were appropriate with staff speaking with her as she contacted them within a day or so, given the communications and issues raised all around. However, I have also reiterated my advice to colleagues that if a student makes a claim of ‘bullying’, then this needs to be investigated as quickly as possible, and the first attempt is always to mediate the situation.
I am meeting Sally on Friday to discuss my finding...”On 14 July 2011 ECU notified Ms Knee of its decision not to re-credit her SLE or remit her HECS-HELP debt in respect of the Unit, as follows:
“‘...Your application has been declined as the supporting documentation provided has not been deemed adequate to substantiate that circumstances made it impracticable to complete the requirements of the unit as per the application guidelines. Please note that Edith Cowen University is required to follow legislative guidelines to process applications for Withdrawal without Financial Penalty...”
That is, ECU declined Ms Knee’s applications for withdrawal from the Unit without academic and financial penalty.
That same day, Ms Knee emailed ECU regarding its decision, as follows:
‘To Whom It May Concern
Today I received email notification that my Application for Withdrawal Without Academic Penalty and Application for Withdrawal Without Financial Penalty have been declined. It is my intention to appeal these decisions.
I require further information to assist in the preparation of my appeal.
Could you please inform me in writing of ECU’s rationale for deeming the supplied supporting documentation inadequate to substantiate that circumstances made it impracticable to complete the requirements of the unit? I request that this information be provided as soon as possible to allow me to prepare an accompanying statement and seek and additional professional documentation that may be required in order to submit my appeal prior to the deadline.
I wish to appeal the decision regarding both the Application for Withdrawal Without Academic Penalty and Application for Withdrawal Without Financial Penalty. My understanding is that I am required to submit both of these applications to the Manager of Fees & Scholarships at the Student Services Centre within 28 days. Is this correct?...”On 19 July 2011 Professor Cherednichenko emailed Mr David Marshall, ECU, forwarding her earlier report about Ms Knee’s circumstances, as follows:
“...Here is my first report to Glenda. Since then I have spoken further to Sally and colleagues in the School of Education.
She claims she did state she felt “bullied”. She also indicated she had no intention of returning to the school under any circumstances. I mentioned to her that the email she provided to me indicated she did indeed know the consequences of withdrawing and she agreed that this was so.
I spoke with Janeen Thomsett who indicated her response was to suggest that Sally needed to work it out at the School and withdrawing from a school was not the first option. Indeed the University Colleague then spoke to the teacher and later that week, emails indicated the [sic] Peter Prout was keen to meet with everyone at the school to see if the issues could be resolved, behaviours discussed and work renegotiated. He used the work [sic] “advocate” at the school.
Sally did not wish to return to the school. It is appropriate, even in the difficult circumstances of an experience of “bullying” to work to resolve issues locally first including checking that the intention is bullying and seeking corrective action on the part of the other person. I have little else to add. I know Sally would have liked a different set of options, but these were not unreasonable in my view and she was well informed of the consequences of the decision she made...”On 21 July 2011 Ms Rebecca Antonio, Manager, Student Fees Office, ECU, emailed Ms Knee regarding her request for further information about lodging an appeal against ECU’s decision, as follows:
“...As advised in our correspondence dated 14 July 2011, applications for Withdrawal Without Penalty are considered and approved in line with government legislation and guidelines through the Department of Education, Employment and Workplace Relations which provide in the guidelines that reflect on the back of each application form. These guidelines refer to circumstances which are outside of student’s control, occur on or after the financial census date making it impracticable for the successful completion of the requirements of the unit of study. Such circumstances must be substantiated by independent supporting documentation.
Your application for unit PPA4350 Final Professional Practice was not approved on the grounds that contrary to your earlier claim that the circumstances were beyond your control, it is believed that a reasonable outcome could have been negotiated but as you had indicated that you had no intention of returning to the school under any circumstances, it made it impracticable to work things out and reach a negotiated settlement. As per your earlier statement, you made this decision being fully aware of the consequences of withdrawing despite being advised by the Professional Practice Coordinator that withdrawing from the school was not the first or preferred option.
We have been advised that ECU staff had expressed their desire to work with your to improve the situation and the school and offered you mediation support to work with you on strategies to make the placement a success and the mitigate the behaviours. These offers were also made at meeting with Dr Lowe on 1 November 2010 and later with the Program Director Dr Prout on 5 November 2010. We understand that ECU staff had approached the teacher and that the Program Director was keen to meet with everyone at the school to see if the issues could be resolved, behaviours discussed and work renegotiated.
We also noted that the supporting documentation referred to information you yourself had provided to the Psychologist, rather than a diagnosis or opinion of the author (i.e.: “Ms Knee perceived...” “Ms Knee reported experiences...” “Ms Knee came to feel...”).
We have been advised that the Executive Dean of the Faculty, Professor Cherednichenko has independently investigated your claims and has discussed her finding with you.
As you are aware, you may certainly appeal the decision and due to the delay in responding to your query of the 14th we would certainly extend the 28 day closing period if required.
I hope this information is of assistance, however should you require any further queries please don’t hesitate to contact me.”On 22 July 2011 Dr Hughes provided ECU with a written account (at Ms Knee’s request) of a consultation he had with Ms Knee, on 3 November 2010, as follows:
“...Sally reports that she has recently had an appeal rejected (against an automatic fail issued by ECU last year for withdrawal from her final placement).
She requests that I detail the content of consultation of 3rd November, where she expressed her concerns to me. Sally tells me she determined that it would place her mental health in jeopardy if she were to continue with the placement.
I documented in my notes of the 3rd of November 2011 that Sally reported:-been prac for 3 weeks (ie this would have been the 4th week)
-uni advised pt to withdraw as she was unhappy to continue there due to bullying:
-isolated; supervisor (teacher at the school …. that pt was matched with) was disapproving if pt was talking to other teachers/staff (through her body language)
-not able to talk to other music teacher (pt was going to take classes following on from his & wanted to find out what he’d already taught so she could follow on from them or at least ensure not duplicating)
-2nd day at school – supervisor took a yr 11 class; used a system of rhythms that pt unfamiliar with was scoring who the ‘loser’ was – ‘a cross on the board each time a student made a mistake’ drew pt into the exercise’ pt reports that stem was complex; she also had crosses put next to her name
-Pt reports that supervisor was telling her in from of students that it ‘has to be good’ as these are our top students’
-Also made pt taking yr 12 classes just before their final exams (was a contemporary music class (pt classically trained))
-No resources supplied
Pt reports being very upset by a student who as (sic) getting very anxious
d/w teacher/university colleague (staff member from uni who visits) –this person does some relief & short-term contract work there – feels she has a conflict of interest – couldn’t represent pt’s best interests.
Pt did ultimately tell university colleague her concerns; she did listen sympathetically; she advised she’d pass this onto prac office; they said pt was over-reacting& paranoid ‘just go in & be positive’ pt was told
Pt feels she was unable to work due to being so distressed by situation
Additionally Sally also reports to me today that:-days after consultation of 3/11/10 – course director offered mediation, but wouldn’t acknowledge that Sally was being bullied; he kept asking if sally could have done anything to make things better, didn’t indicate that teacher shouldn’t have done what she did
-Reports being asked to write an exam outside of syllabus content for year 11s....”
On 16 August 2011 Ms Knee applied for a reconsideration of ECU’s decision regarding her applications for withdrawal from the Unit without academic and financial penalty.
On 16 September 2011 ECU notified Ms Knee of its decision, confirming its earlier decision (dated 14 July 2011), not to re-credit Miss Knee’s SLE or remit her HECS-HELP debt in respect of the Unit. That letter stated, in part:
“...I regret to inform you that your application has been declined on the grounds that a reasonable outcome could have been negotiated, but as you had indicated that you had no intention of returning to the school under any circumstances, it made it impractical to reach a negotiated settlement....”
On 22 October 2011 Ms Knee applied to the Tribunal for review of ECU’s decision dated 16 September 2011. The reasons for Ms Knee’s application are as follows:
“ECU failed to notify me of the decision regarding the appeal within 20 working days of receiving the application as stipulated in the submission instructions. ECU received the application on 07/03/11 and acknowledged receival [sic] via email on 15/03/11. ECU failed to notify me of the outcome until 14/07/11, 92 working days after receival [sic]. A subsequent appeal of this decision was rejected on 16/09/11.”.
Ms Knee’s motivation for applying to the Tribunal for a review of ECU’s decision is set out in her Witness Statement, dated 20 April 2012, at [163-164], as follows:
“163. I was upset that the bullying, ECU’s response, and their award of a failing grade would probably negatively affect the way I am able to live my life, options available to me and the occupations I am able to work in.
164. It is my intention to apply to study Postgraduate Medicine. When completing the application process, I am required to declare any units of study that I have ever failed. Failing units of university study puts candidates at a significant disadvantage when competing against other candidates for limited spaces in postgraduate medical programs. It is doubtful that I will ever be eligible for entry into a postgraduate medical program unless ECU concedes that the special circumstances of bullying I experienced prevented me from satisfying the unit requirements and amends my academic record accordingly. I am serious in my intent to become a medical practitioner and have completed the GAMSAT postgraduate entrance exam. I believe that if the failing grade awarded by ECU is removed from my academic record that I would be capable of gaining entry to a postgraduate medical degree.”
ISSUES
The issue for determination by the Tribunal is whether Ms Knee’s SLE should be re-credited and her HECS-HELP debt remitted in relation to the Unit. This requires consideration of whether there are “special circumstances” that applied to Ms Knee for the purposes of section 79-1(1)(c) and section 79-5 of the Act.
LEGISLATION
Re-crediting a person’s SLE – “special circumstances”
Section 70-1 of the Act explains the meaning of SLE as follows:
“Student Learning Entitlement (or SLE) is needed for many of the forms of assistance under this Act. In these cases, units of study that a person enrols in must be covered by the person's SLE.
Broadly speaking, a person starts with an SLE equivalent to 7 years of full-time study. This is reduced as the person undertakes units of study as a Commonwealth supported student (but it can be re-credited in some circumstances).”
Each unit of study has an “EFTSL value” which is determined by the higher education provider: section 73-15(1) of the Act.
Division 76 of the Act explains when a person's SLE is reduced. Ordinarily, a person's SLE is reduced if, at the end of the census date for a unit of study, the person is enrolled in the unit. The reduction takes effect immediately after the “census date” for the unit of study: section 76-1(3) of the Act.
A person’s SLE can be re-credited under Division 79 of the Act. Specifically, section 79-1(1) of the Act sets out the circumstances in which the higher education provider must, on the Secretary’s (i.e. the Respondent’s) behalf, re-credit a person’s SLE with an amount equivalent to the “EFTSL value” of the unit of study. There are a number of criteria set out in subsection 79-1(1). Relevant to this application, is the issue whether the criterion in section 79-1(1)(c) of the Act is met, namely that:
“the provider is satisfied that special circumstances apply to the person (see section 79-5).” [Emphasis added]
A “Note” to section 79-1 of the Act explains that a HECS-HELP debt relating to a unit of study will be remitted if the SLE in relation to the unit is re-credited.
Section 79-5 of the Act provides:
“(1) For the purposes of paragraph 79-1(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application is satisfied that circumstances apply to the person that:
(a) are beyond the person’s control; and
(b) do not make their full impact on the person until on or after the census date for the unit of study in question; and
(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
(2) The Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.” [Emphasis added]
Guidelines on “special circumstances”
Section 238-10(1) of the Act provides that the Minister may, by legislative instrument, make “guidelines” of various kinds and section 79-5(2) of the Act provides that a decision of a higher education provider under section 79-5 of the Act “must be in accordance with any such guidelines”.
On 21 July 2004 the then Minister for Education, Science and Training, Mr Brendan Nelson, made the “Student Learning Entitlement Guidelines” (SLE Guidelines), for the purposes of section 79-5(2) of the Act, pursuant to section 238-10 of the Act.
The SLE Guidelines were gazetted on 27 July 2004 and they are a “legislative instrument” within the meaning of section 5 of the Legislative Instruments Act 2003. As a legislative instrument, the status of the SLE Guidelines can be contrasted with that of a Ministerial or departmental policy, which is not a form of subordinate legislation and which decision-makers are not bound to apply but may take into account: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Chapter 5 of the SLE Guidelines addresses “special circumstances” as follows:
“5.1 PURPOSE
5.1.1 The purpose of this chapter of the guidelines is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(a) are beyond the person’s control (paragraph79-5 (1)(a) of the Act); and
(b) do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph79-5 (1)(b) of the Act).
5.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
5.5.1 The higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
5.5.5 This situation must be unusual, uncommon or abnormal.
5.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
5.10.1 The higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:
(a) before the census date, but worsen after that day; or
(b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or
(c) on or after the census date.”
The SLE Guidelines (which were made on 21 July 2004) were repealed by the Student Learning Entitlement (Repeal) Instrument 2011 (Repeal Instrument), commencing 1 January 2012. This Repeal Instrument was registered on the Federal Register of Legislative Instruments on 2 February 2012.
According to the Explanatory Statement to the Repeal Instrument:
“Chapters 2 and 5 [i.e. “special circumstances”] of the SLE Guidelines contain matters still relevant to the operation of the Act and these are to be provided for in the Administration Guidelines.”
The reason for the repeal of the SLE Guidelines was that the Act was amended by the Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Amending Act) to, inter alia, repeal the SLE (including the re-crediting of SLEs) effective 1 January 2012. Item 9 of Part 1 of Schedule 2 of the Amending Act inserted new sections 36-20 to 36-23 into the Act to replace sections 79-1, 79-5, 79-10 and 79-15 of the Act (which dealt with the re-crediting of SLE) and which were repealed as part of the repeal of Part 3.1 of the Act: see Item 14, Schedule 2, Part 1 of the Amending Act.
On 28 November 2011, Mr Chris Evans, Minister for Tertiary Education, Skills, Jobs and Workplace Relations, made the “Administrative Guidelines 2012” (Administrative Guidelines) for the purposes of the Act, pursuant to section 238-10 of the Act. The Administrative Guidelines came into effect on 1 January 2012. The Administrative Guidelines are a “legislative instrument” within the meaning of section 5 of the Legislative Instruments Act 2003 and are registered on the Federal Register of Legislative Instruments.
The ‘new’ section 36-21 of the Act obliges higher education providers to make their decisions in relation to “special circumstances” in accordance with the Administrative Guidelines. That is, for units of study with a census date on or after 1 January 2012, a “special circumstances” matter will be governed by the ‘new’ version of the Act. Item 38 of Schedule 2 of Part 2 of the Amending Act relevantly provides:
“The amendments made by this Schedule [i.e. Schedule 2] apply in relation to units of study whose census dates are on or after 1 January 2012.” [Emphasis added]
Chapter 3 of the Administrative Guidelines, titled “Special Circumstances”, provides, in part:
“3.1 PURPOSE
3.1.1 The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(a) are beyond the person’s control (paragraph 36-21(1)(a) of the Act);
(b) do not make their full impact on the person until on or after the census date for the unit of study in questions (paragraph 36-21(1)(b) of the Act; and
(c) make it impracticable for the person to complete the requirements of the unit of study during the period which the person undertook, or was to undertake, the unit (paragraph 36-21(1)(c) of the Act).
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
3.5.5 The situation referred to in paragraph 3.5.1 must be unusual, uncommon or abnormal.
3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL OR AFTER THE CENSUS DATE
3.10.1 A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur;
(a) before the census date, but worsen after that day; or
(b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or
(c) on or after the census date.
3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1 A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:
(a) medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or
(b) family/personal circumstances. For example, death or severe medical problems within a family, or unforseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or
(c) employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or
(d) course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged be either not being able to complete the unit, or not being given credit towards other units of the course.”
Thus, Chapter 3 of the Administrative Guidelines, to a large extent, replicates Chapter 5 of the SLE Guidelines on “special circumstances”. However, at [3.15] the Administrative Guidelines addresses circumstances that make it impracticable for a person to complete the requirements of the unit (see section 79(1)(c) of the Act), whereas the SLE Guidelines did not.
Law to be applied as at date of Tribunal’s decision or earlier
As a threshold issue, the Tribunal must determine whether to the SLE Guidelines, which applied as at the date of ECU’s decision, or the Administrative Guidelines, which apply as the date of the Tribunal’s decision on review (at which time the SLE Guidelines no longer exist). This issue is considered below.
However, irrespective of how the Tribunal decides this threshold issue, the ultimate issue for determination in this application remains whether there are any “special circumstances” in Ms Knee’s case warranting her SLE being re-credited and her HECS debt being remitted. This requires an assessment of whether Ms Knee’s “circumstances” satisfy the requirements of sections 79-1(1)(c) and 79-5 of the Act.
In Re Costello and Department of Transport (1979) 2 ALD 934 the Tribunal considered a matter where:
·an applicant for a senior commercial pilot licence had failed to satisfy the Secretary of a requirement specified under the Air Navigation Regulations and as notified in a particular Air Navigation Order (ANO);
·Issue 6 of the ANO was in force at the time the licence application was lodged and the Secretary decided to refuse the application; and
·after the Secretary’s decision, and before the Tribunal had heard the matter, Issue 6 of the ANO was replaced by Issue 7.
In deciding whether it should apply Issue 6 or Issue 7 of the ANO to the decision under review, the Tribunal stated (at pp 943-945):
“... Where the relevant law at all material times is the same, no problem arises as to the law to be applied. But where, as in the present matter, the law has been changed between the date of the administrator's decision and the decision of this Tribunal, it seems to us that the question as to the law to be applied by the Tribunal must be resolved by having regard:
(i)to the nature of the decision under review; and
(ii)to the provisions of the legislation by which the change in the law is effected (cf Quilter v Mapleson (1882) 9 QBD 672).
The nature of the decision under review may require the Tribunal to consider the facts and circumstances before it in the light of the law at some anterior date in order to form an opinion as to the accrued rights or liabilities of the applicant (see, for example, s 132 of the Customs Act 1901 as to liability for customs duty). A subsequent change in the law will not affect the matter unless it is expressed to apply retrospectively (cf Quilter v Mapleson, supra)...
But where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege, we have concluded that, unless the amending law otherwise provides we should apply the law as amended as at the date of our decision...
In the present case, there is nothing in the relevant legislation which attributes any special significance, for the purpose of our review, either to the date of the application for a licence or the date of the Secretary's decision to refuse to grant the licence. Neither, in our view, are there any circumstances which have occurred giving the applicant any accrued right to have his application determined according to the law as it stood at the time when the application was lodged or when the Secretary's decision to refuse the licence was given. The question before us is simply whether the applicant satisfies us that he meets the required medical standard [in the ANO]. That is a state of present satisfaction having regard to the present facts and circumstances and the present law.
When Issue 7 of ANO 47.3 replaced Issue 6, Issue 7 was expressed to be “effective forthwith”. There were no transitional provisions preserving the continuing operation of Issue 6 for any purpose whatsoever. In the circumstances, there being no authority for us to continue to apply Issue 6 and as the question before us requires us to determine the applicant's present entitlement to a licence, we have concluded that we should apply Issue 7 of ANO 47.3.”
What was said in Costello, as to the applicable law to be applied by the Tribunal when there has been a change of law between the date of the original decision and the date of the Tribunal’s decision, has been referred to as the ‘general rule’ in such circumstances.
For example, in Baum and Secretary, Department of Education, Employment and Workplace Relations (2008) BC200810597 Deputy President Forgie stated at [42]:
“... The general rule is that the law that is applied is that in force at the date the decision is reviewed. That general rule may be altered by legislation either explicitly or implicitly but it is a rule that also has an exception. Whether the exception applies so that the decision must be reviewed at some earlier time depends on the nature of the decision, the law under which it was made and any transitional provisions in the legislation by which the amendment to the relevant legislation was effected. The Tribunal must look to the repealing legislation in order to determine whether there are transitional provisions or whether it is intended to operate retrospectively. If there are no such provisions, there must still be a consideration of the repealed legislation to determine whether a right has accrued under that repealed legislation.”
There is nothing in the Repeal Instrument to indicate that the SLE Guidelines (which were repealed on 1 January 2012) were to continue to apply to matters such as this one.
It might be argued that Ms Knee has an “accrued right” to have her application for re-credit of her SLE determined in accordance with the SLE Guidelines, as in force as a legislative instrument, at the time of ECU’s decision. A number of cases have addressed this issue in the context of “accrued rights” arising under the Veterans’ Entitlements Act 1986 (VEA).
For example, in Repatriation Commission v Keeley (2000) 98 FCR 108 the Full Federal Court decided that Ms Keely had an ‘accrued right’ to have her entitlement to a pension under the VEA determined by reference to a “Statement of Principles” (SOP) in force at the time she lodged her claim for a pension. That was so despite the original SOP having been revoked and replaced by another SOP, by the time the Tribunal reviewed the Commission’s decision. The earlier SOP was more favourable to Ms Keeley than the later SOP (and hence Ms Keeley argued for the application of the earlier SOP).
In reaching their conclusion, Lee and Cooper JJ stated at [35]:
“When the respondent lodged her claim for a pension under the Act, the respondent obtained a right to have that claim determined under the Act according to law. The right that accrued was a right to which s.50 [of Acts Interpretation Act 1901] applied...”
and, further, at [46]:
“Unless a contrary intention is clearly disclosed [in the repealing or amending legislation], it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the [VEA], it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a [SOP] more beneficial to a claimant than the terms of a [SOP] that replaced the former [SOP] after the decision has been made, is to be conducted as if the former [SOP] had not been revoked...”
However, when a later Full Court of the Federal Court came to consider this issue in the matter of Repatriation Commission v Gorton [2001] FCA 1194, the SOP in force at the time the Tribunal made its decision was more favourable to Mr Gorton than the SOP in force when he claimed a pension for incapacity. While the three presiding judges each delivered separate judgments, each came to the conclusion that the Tribunal must first look to the SOP that is in force at the time it is reviewing the decision.
In Repatriation Commission v Williams [2001] FCA 1195, the Full Federal Court considered another situation where a subsequent SOP was more favourable than that in place at the time of the Commission’s decision. The Full Federal Court upheld a decision of Wilcox J, at first instance, which had remitted the matter to the Tribunal on the basis that it was open to Mrs Williams to rely on the subsequently issued SOP: see Williams v Repatriation Commission [2001] FCA 601. Wilcox J stated at [71]:
“.... I hold that the applicant has a vested right to rely upon SOP 80 of 1998, if she wishes. However, consistently with Gorton, she also has the right to put a case based on SOP 38 of 1999. I agree that, to use the vernacular, this means that the applicant “has it both ways”. But there is nothing unusual about that. This is the position in any case where a person acquires a vested right prior to the commencement of amending legislation; the person can rely on the vested right or, in common with everyone else, elect to rely on the new legislation.”
What is apparent from the cases cited above is that the Federal Court has adopted the position that where applicant has an “accrued right” to have their claim determined in accordance with the relevant SOP in force at the time of the Commission’s decision, a later SOP may nevertheless be applied when the Commission’s decision is under review in circumstances where the later SOP is more favourable to the applicant concerned.
In the case of Ms Knee (who arguably has an “accrued right” to have her application determined in accordance with the SLE Guidelines), the Tribunal considers that it would be more favourable to her if the Tribunal were to apply the law in force as at the date of the Tribunal’s decision on review and that it is permissible for it to do that. As such, the Tribunal should take into account Chapter 3 of the Administrative Guidelines in making its decision on the existence of “special circumstances” in this case. Chapter 3 of the Administrative Guidelines reflects current government policy in deciding “special circumstances” matters and there is no cogent reason for the Tribunal not to take it into account in reaching its decision: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).
The content of Ms Norris’s above e-mail is consistent with the Ms Thomsett’s verbal evidence before the Tribunal.
Based on the evidence before the Tribunal, Ms Norris conducted herself as a “University Colleague” in accordance with the ECU Guidelines. There is nothing to suggest that she had a “conflict of interest”, as asserted by Ms Knee. The idea that Ms Norris has a “conflict of interest” seems to be imagined by Ms Knee and is yet another example of her apparent lack of self-confidence and belief in her own abilities. It was Ms Knee’s decision not to report the alleged “names on the board” game to Ms Norris. Had Ms Knee reported the alleged incident to Ms Norris, Ms Norris would have been afforded the opportunity to properly follow up on the alleged incident with Ms Knee’s mentor teacher.
ECU failed to respond appropriately & expeditiously when Ms Knee reported the alleged “bullying”
In relation to Ms Knee’s assertion that ECU failed to respond appropriately and expeditiously when she reported the alleged bullying, Ms Knee’s Witness Statement (dated 20 April 2012) states, in part:
“01/11/10
The next morning on Monday 01/11/10 shortly after 7:30am I called Ms Norris to notify her that I would be absent from my placement that day. I told her I was “sick.” I did not feel able to tell her the real reason I was unable to attend that day. She asked what was wrong. I lied and said I had a cold and was feeling unwell.
At approximately 7:45am on 01/11/10 I telephoned music secretary [blank] in [the School] music office. I asked her to please tell [my mentor teacher] that I was sick and unable to come to the school for the day. [The music secretary] said she would pass on the message.
At approximately 7:50am on 01/11/10 I called Dr Lowe’s office number at ECU. It rang out and did not go through to his voicemail.
At approximately 7:50am, immediately after attempting to call Dr Lowe, I telephoned Dr Prout’s ECU office number. He did not pick up the phone. I wanted to get help from either Dr Lowe or Dr Prout as soon as possible. I left a voicemail message for Dr Prout. I said that I had called in sick to my placement that day, was having a horrible time on my practicum at [the School] and wanted to talk to him about it. I also said that I had tried to telephone Dr Lowe but couldn’t get through to him. I asked Dr Prout to call me back and left my phone number.
Immediately after leaving a message for Dr Prout, I telephoned Dr Lowe again. I felt desperate for help. Dr Lowe answered the call. I told him that I had called in sick that day and was being bullied by my mentor teacher. I described to him what had occurred during the “names on the board” incident, how she refused permission when I requested it to allow me to speak to the other music teacher at the school regarding the lessons I was preparing for him and that [my mentor teacher] was isolating me.
Dr Lowe said that I needed to talk to my university colleague about this and not him. I told Dr Lowe that I did not feel able to discuss the bullying with her because she had a conflict of interest. I explained that I thought so because she had done paid work at the school and had multiple sons enrolled at [the School]. I said that I had lied to Ms Norris a few minutes earlier and said that I was sick because I did not feel able to discuss the bullying with her. Dr Lowe became very angry when I suggested that Ms Norris had a conflict of interest. He began yelling at me and I started crying. He said, “You’re being ridiculous” and that there was no conflict of interest. I remember saying to him through tears that there was a conflict of interest because she received money from [the School]. Dr Lowe insisted that there was no conflict of interest because that she was paid by ECU to act in my best interests. I replied by saying that when she was paid by [the School] was paid to act in the school’s best interests.
Dr Lowe said that from ECU’s point of view, no conflict of interest existed. He repeatedly insisted that there was no conflict of interest. He said there was no way around it, I couldn’t bypass the standard university process and had to seek a resolution through my university colleague. Dr Lowe said the University would not help me by organising a placement at an alternative school or speaking to my mentor teacher unless I reported my problems to Ms Norris. I told him that I would report the bullying to my university colleague. I really wanted to pass Final Professional Placement and graduate that year.
I spent some time crying after my conversation with Dr Lowe. I was scared about having to discuss the bullying with Ms Norris and having to admit that I lied to her about being ill. After a while I managed to compose myself and call Ms Norris on her mobile. She answered and I asked if she had time to talk. Ms Norris said she was just about to teach a class but would call me back.
Later that day either I called Ms Norris again or she called me back, I am unable to remember. I told her that I had lied earlier when I had said I was sick and the real reason I was absent from my placement that day was because I was being bullied by my mentor teacher. She took notes during our telephone discussion.
I told Ms Norris about the “names on the board” incident and that [my mentor teacher] had isolated me by refusing me permission when I requested it to speak to the other teacher in the music department. I told her that [my mentor teacher] treatment of me had made me feel “humiliated” and “isolated.” I reminded Ms Norris that I notified her during our first meeting that a “serious incident” had occurred and that I didn’t feel able to discuss it in the staff room. I told her that the “names on the board” incident was what I was referring to during that discussion.
During the phone call I also described the incident during which [my mentor teacher] had said I had to “…up your game.” I also told Ms Norris that a conflict existed between [my mentor teacher] and [the other music teacher] and that she disapproved of me talking to him. I also told her how she had refused me permission to speak to him about the lessons I was preparing for his classes. I said that I felt very isolated at the school because of her. Ms Norris said that the bullying needed to be looked into, and that Ms Thomsett needed to be informed of what I had just told her.
Later in the afternoon of 01/11/10, Ms Thomsett telephoned me. She said that Ms Norris had contacted her. I told Ms Thomsett that I was being bullied by my mentor teacher. I described the “names on the board” incident and the meeting during which [my mentor teacher] had said that I had to “…up your game.” I also told her that I had lied to Ms Norris about being sick and had not initially felt able to report the bullying to Ms Norris. I told Ms Thomsett that the reason I had lied was because she had a conflict of interest and why I thought this was so. I said that the reason I also did not feel able to discuss the “names on the board” incident with Ms Norris earlier was because of her conflict of interest. Ms Thomsett made no comment about the conflict of interest at this time.
Ms Thomsett cut our telephone conversation short before I had finished describing all of [my mentor teacher’s] inappropriate behaviours. Ms Thomsett said that she had to attend a meeting on the other side of the university campus but would call me back later.
During our telephone conversation, although she did not say so, I knew Ms Thomsett was taking notes. She kept trying to verbally summarise what I was saying. I did not agree with her summaries and felt she was trying to minimise my experience. I was upset because I thought she would be writing the inaccurate summaries she was trying to get me to agree to. At no stage during the phone call did Ms Thomsett say that [my mentor teacher’s] behaviours were inappropriate or that the incidents that I reported to her were unacceptable.
Later in the evening of 01/11/10, Ms Thomsett telephoned me back. She did not give me the opportunity to continue my story or tell her any more of what had happened to me during my placement at [the School]. She said that the “up your game” incident just sounded to her like “a throwaway comment.”
Ms Thomsett said that I could return to my placement at [the School]. She said that this was my “best option.” She made no suggestion that [my mentor teacher] would be spoken to about her behaviours before I was to return. Ms Thomsett said that completing my placement at the school was a fantastic opportunity because the school had a lot of money and resources. She told me that I could withdraw instead but would receive an automatic fail. She said that because this would mean I would have failed a core unit that I could be excluded from the course but that she could request that I be allowed to return to the course. She told me that I might be able to complete the unit in the second term of school in 2011.
Ms Thomsett said I was upset and not well and so I shouldn’t make such an important decision regarding my practicum immediately. I was crying during the phone call. She told me to call her the next day to notify her of my decision. She also said that I could ask my GP for a medical certificate and letter. I told her that I didn’t think that would help because I wasn’t actually sick.
………….
02/11/10
On 02/11/10 Ms Thomsett telephoned me to ask if I had made any decisions regarding my placement. I told her that I could not return to [the School] with my mentor teacher under the present circumstances. She then said that I had to withdraw from the unit. At this time ECU had not offered mediation, to speak to [my mentor teacher] about her inappropriate behaviours, or to address my reports of bullying in any way.
I recall that during this conversation, when I made reference to the fact that [my mentor teacher] had bullied me, Ms Thomsett seemed quite offended. She said that [my mentor teacher] had, “Been a great friend of ECU for many years. I was very upset following this phone call and cried.
03/11/10
................
On 03/11/10 I telephoned the “prac office” and requested a meeting with Ms Thomsett later that day. I wanted to engage her help to allow me to complete Final Professional Placement even though she had previously instructed me to withdraw. Ms Thomsett agreed to a meeting at 3:45. I asked my friend Sarah Mills Menogue to come with me.
On 03/11/10, before my meeting with Ms Thomsett, I attended an appointment with my General Practitioner, Dr Glynn Hughes (“Dr Hughes”). During the consultation I described to him the bullying I had experienced in detail including specific incidents, [my mentor teacher’s] behaviours and how these made me feel. I remember that the details I recounted to him were disjointed and out of sequence. I was upset when I was talking about the bullying and I remember feeling very tired during the appointment.
I also described ECU’s response so far to the bullying, that I had been offered the option of returning to complete my placement with my mentor teacher or withdrawing from the unit and receiving an automatic fail. I said that when I said to Ms Thomsett that I was unable to return the school under the present circumstances, she had told me that I must withdraw from the unit. Dr Hughes provided a medical certificate covering the dates from Monday 01/11/10 until Wednesday 03/11/10.
At 3:45 I attended a meeting as arranged with Ms Thomsett in her office at the ECU Mt Lawley campus. Sarah Mills Menogue was present throughout its duration. I told Ms Thomsett that I was unhappy because my reports of bullying had not been taken seriously. She said that I had a very light teaching load. She showed me another student’s classroom teaching timetable and told me that I had it very easy because I did not have to teach as many classes as the other student.
…………….
I told Ms Thomsett during the meeting that my actual workload on placement was very heavy because I was conducting the Chapel Choir, Concert Choir, Junior Jazz Band, [the School] Concert Band, had to work on writing the Year 11 2B Western Art Music Exam, had written instrumental parts for Advance Australia Fair and [the School’s] hymn, planned a workshop for students who were going to join the Senior School music program the following year and many other tasks that I was responsible for that did not directly involve the classes I had been allocated to teach. Ms Thomsett said I was very lucky to have such small classes. I told her I did not feel very lucky because I was being bullied.
Ms Thomsett told me that nobody had ever been bullied by [my mentor teacher]. I remember saying that I know that she had bullied me. I couldn’t understand why Ms Thomsett wasn’t helping me. I had told her that I was being bullied and described the bullying behaviours to her, specific incidents that had occurred, and how these had made me feel. She seemed to be very defensive of [my mentor teacher].
Ms Thomsett said that she did not know [my mentor teacher] personally but Dr Lowe did so she’d speak to him about the bullying. I was upset that she seemed to be assessing my reports of bullying on the basis of ECU staff member’s opinion of [my mentor teacher’s] character rather than the behaviours/incidents I reported and how they’d made me feel. She said that [my mentor teacher] might not have had any intention of bullying or know that any of her behaviours had made me upset. Ms Thomsett seemed to place a lot of importance on the intent of the bully rather than the occurrence of bullying behaviours.
During the meeting I reminded her that I had felt unable to approach Ms Norris about the bullying because she had a conflict of interest and why I thought she had a conflict of interest. Ms Thomsett said that there was no conflict of interest. She also told me that I had not acted professionally by informing [my mentor teacher] I was going to be absent from my placement via text message instead of telephoning her. I told her that I had felt too scared of [my mentor teacher] to speak to her.
During the meeting, I requested an alternative placement in order to complete the requirements of the unit and graduate from my Graduate Diploma that year. She said that it was almost certain that I would not be given another placement and would not graduate if I left the placement at [the School]. She repeated that I had two options regarding the unit. She told me I could return to my placement with my mentor teacher at [the School]. She made no offer to speak to my mentor teacher about the behaviours I reported before I returned. Ms Thomsett said I could return to my placement the following morning if the school would have me back. She said I could also withdraw from the unit but that this would result in an automatic fail.
At no time during the meeting did Ms Thomsett say that [my mentor teacher’s] behaviours as I had reported them were inappropriate or that any of the bullying incidents I had described were unacceptable. She made no offer or suggestion that my reports of bullying would be addressed before or if I was going to return to my placement the following morning. I felt really upset that ECU were not supporting me and would not acknowledge that I was being bullied.
05/11/10
On Friday, 05/11/10 I attended the ECU Mt Lawley campus for a meeting with Dr Peter Prout in his office as I had requested to discuss the difficulties I had reported on placement and to attempt to engage him in a solution. I started to try and describe to him the bullying incidents that had occurred while on placement including the “names on the board” incident but Dr Prout discouraged me from continuing. He said that I’d already told all that to Ms Thomsett and Dr Lowe. I told him that I really wanted to finish the unit so I could graduate that year. When I said that I was being bullied by my mentor teacher he said, “That’s just your perception.” He repeated these words on a number of occasions during the meeting when I made reference to the fact that my mentor teacher was bullying me.
I asked Dr Prout for an alternative placement at another school. He said that I would not be granted another placement and that I would receive an automatic fail for the unit if I did not complete my placement at [the School] that year and would be unable to graduate.
Dr Prout said that I could return to my placement at [the School] if the school would have me. He said he could set up a mediation session at the school between me and [my mentor teacher] on Monday, 08/11/10 if my mentor teacher agreed before returning to my placement to complete the unit after this session. I told him that being in a room with my mentor teacher was a really scary thought for me. He asked me to tell him right away whether or not I was willing to participate in mediation on Monday. I told him that I needed more to time to decide whether I could go through with mediation. He told me to call him later that day and notify him of my decision.
I asked Dr Prout if I returned to my placement and my teaching and other performance criteria in the unit were satisfactory whether I would be able to pass the unit and graduate from my course that year. Dr Prout said that he could not guarantee that I could graduate since I had been absent from my placement for so long. He said that I would “really grow” from the experience of participating in mediation with [my mentor teacher]. I did not agree that I would. I was very frightened about seeing [my mentor teacher].
I told Dr Prout that I was upset that nobody would acknowledge that I was being bullied. I told him that I did not think the university’s response had been appropriate. When I mentioned the word “bullied” he said, “That’s just your perception.” He also said that ECU’s response had been appropriate and all staff had also acted appropriately.
I told Dr Prout that I was unhappy that ECU would not acknowledge that Ms Norris had a conflict of interest. Dr Prout said that this was “just your perception” and that there was no conflict of interest. Dr Prout asked me if there was anything I could have done to have improved the relationship between me and [my mentor teacher]. I felt like he placed the burden of responsibility for me feeling unable to return to my placement entirely on me. He seemed unwilling to acknowledge the possibility that [my mentor teacher’s] inappropriate behaviours were the reason I felt this way.
During the meeting, I told Dr Prout that I had personally witnessed [my mentor teacher] bully 2 other staff members that she was superior in position to. (Now that I am more aware of the definition of bullying, I now know that I actually personally witnessed her bully 3 employees at [the School]). Dr Prout responded by saying, “But we’re talking about you.” I believe it was after this point that he asked me if there was anything I could have done to improve the relationship. I felt like when I tried to assert my rights as an ECU student or point out the responsibilities of ECU staff, he would criticise me or make other comments to make me feel insignificant.
I recall that once during the meeting after describing how [my mentor teacher’s] behaviours had made me feel, he said that, “Life is tough…” and that lots of people in the world have problems. He seemed to be trying to minimise my experience.
Dr Prout said that perhaps [my mentor teacher] had not intended to make me feel humiliated or upset by her actions. Based on my conversation with him, he seemed to define bullying based on the intent of the perpetrator and not their behaviours or the effect that they had on the victim.
I felt extremely upset following the meeting. I remember lying on my carpet in my living room at home and crying.
I felt very frightened about participating in mediation with [my mentor teacher] and Dr Prout. My fears were made more severe because Dr Prout would not acknowledge that my mentor teacher had acted inappropriately despite the behaviours that I had made him aware of. I was scared that if I did participate in mediation that my concerns would not be addressed and that [my mentor teacher] would gain confidence that she was able to continue abusing her power over me. I thought that her bullying behaviours would worsen after mediation and feared she may seek retribution.
Later in the afternoon of 05/11/10, I telephoned Dr Prout as agreed. I told him I needed more time to decide whether I felt able to participate in mediation on the following Monday. I said that I would be seeing someone the next day that I thought could help me to make the decision. I asked him if I could email him on the weekend. Dr Prout said I needed to email him to notify him of my decision by the afternoon of the next day (06/11/10).
06/11/10
On Saturday 06/11/10, I attended an appointment with my clinical Psychologist Paul Jeffery. Sarah Mills Menogue drove me to the appointment and was present with me in the room during the consultation. I had been attending appointments with Paul Jeffery during the duration of my placement. During that time I had reported many of [my mentor teacher’s] behaviours to him and how they had made me feel including the “names on the board” incident.
During the appointment I discussed how the bullying had made me feel as well as how I felt about participating in mediation with [my mentor teacher] and returning to complete my placement with her. Paul Jeffery did not give his opinion regarding whether or not I should engage in mediation or finish my placement at [the School]. I recall during the consultation that [he said] it was not his role to do so. He said that this was entirely my decision but that he saw his role as allowing me to discuss the options so that I could make my own decision.
After my appointment I decided that I would not return to [the school] to complete my placement or participate in mediation with [my mentor teacher] and Dr Prout on Monday. I did not feel able to cope at that time with having to be in a room with [my mentor teacher] and Dr Prout. I believed that if I did participate in mediation that Dr Prout would not acknowledge that I had been bullied, or that [my mentor teacher’s] were inappropriate and that he would try to minimise my experience as he had previously.
Dr Prout failed to consider the possibility that I had been bullied or that the behaviours I described and the effect they had on me constituted bullying. I considered this fundamental to having the issue addressed. He already had all the information he needed both in writing and as I had told it to him to enable him to assess [my mentor teacher’s] behaviours as such. I believed that participating in mediation or completing my placement with [my mentor teacher] would have been disastrous to my mental health and wellbeing.
After my appointment [on 6 November 2010][ I sent an email to Dr Prout, Ms Thomsett and Ms Norris which said: “I’ve decided that I won’t return to [the School] for my placement or mediation because I feel intimidated in my mentor teacher’s presence.”
In the days and weeks that followed, the bullying I had experienced and ECU’s response continued to affect my wellbeing. I continued to experience symptoms of anxiety, a racing heart, and difficulties both falling and staying asleep.”
Therefore, the evidence before the Tribunal is that on Monday 1 and Tuesday 2 November 2010 (being 14 school days after the commencement of her teaching practice placement at the School on 11 October 2010) Ms Knee reported by phone and email exchange with ECU staff, that she was having some problems with her mentor teacher on her practice placement at the School.
ECU staff responded to Ms Knee’s complaints as follows:
·Dr Lowe, Ms Norris Ms Thomsett discussing with Ms Knee her concerns about her placement at the School by telephone (on Monday 1 November 2010);
·Ms Thomsett discussing with Ms Knee her concerns about her placement at the School by telephone (on Tuesday 2 November 2010);
·Ms Thomsett meeting with Ms Knee (on Wednesday 3 November 2010) to discuss her concerns regarding her placement at the School and to discuss the various options available to her;
·Dr Prout meeting with Ms Knee (on the morning of Friday 5 November 2010) to discuss her concerns regarding her placement at the School and to offer Ms Knee a mediation session at the School between Ms Knee’s mentor teacher and Ms Knee on Monday 8 November 2010; and
·Dr Prout discussing (on the afternoon of Friday 5 November 2010) whether Ms Knee would accept his offer of mediation between Ms Knee and her mentor teacher.
However, by email dated Saturday 6 November 2011, Ms Knee declined ECU’s offer of mediation and notified ECU of her decision to withdraw from the Unit, stating that she was aware that as a consequence she would be awarded a fail grade for the Unit.
Based on the evidence, ECU staff responded appropriately and expeditiously to Ms Knee’s concerns about her practical placement at the School and, in particular, her allegations of “bullying” by her mentor teacher. Specifically, the Tribunal notes that within 4 school days of Ms Knee first reporting her complaints to ECU staff, a senior member of staff at ECU, Dr Prout (Coordinator Graduate Diploma of Education (Secondary)) met with Ms Knee and offered to conduct a mediation between Ms Knee and her mentor teacher with the hope that Ms Knee’s issues could be resolved and that she could continue her practical placement at the School and complete the Unit. Unfortunately for Ms Knee, she declined Dr Prout’s offer. ECU staff were anything but dismissive of Ms Knee’s claims of “bullying” by her mentor teacher.
Further, according to Ms Thomsett’s Witness Statement (dated 2 March 2010), and her verbal evidence before the Tribunal, it was impossible for ECU to, as requested by Ms Knee, arrange an alternate placement, at another school, for Ms Knee at that late stage in the school year.
Cancellation of Ms Knee’s enrolment in the Unit without her consent
According to Ms Knee’s Witness Statement (dated 20 April 2012):
“On 10/11/10 I received am email saying, “Your request to withdraw from PPA4350 – Final Professional Practice has been processed and you have now been withdrawn from the unit. As you withdrew after the Academic Penalty date, the unit will appear on your record as “WF – Withdraw Fail”. Please be aware that as your request was also made after the financial penalty date, you remain liable for the tuition fees.”
I was surprised to receive this email. I did not make a request at any time to be withdrawn from Final Professional Practice as claimed by ECU in the email. The email quoted above notifying ECU staff members that I could not return to the school because I felt “…intimidated in my mentor teacher’s presence” was used in the “prac office’s” request to terminate my enrolment in the unit without my consent. This action resulted in me receiving an academic penalty of a failing grade in the unit as well as being made liable for all fees for the unit.
I was upset by ECU’s cancellation of my enrolment. It was my intention to contact ECU and try and engage them in an alternative solution that did not require mediation or that I return to my placement with [my mentor teacher] and would not result in an academic penalty. At the time my enrolment was terminated, I did not feel resilient enough to be able to cope with meeting [my mentor teacher].
By terminating my enrolment in Final Professional Practice, ECU prevented me from being able to complete the unit. It was the University’s actions that made me liable for student fees, resulted in “Withdrawn Fail” appearing on my academic record for the unit and destroyed any possible chance of me being able to complete the requirements of the unit. The University’s action to terminate my enrolment was beyond my control.
After I received email notification that ECU had terminated my enrolment without my consent, I became extremely upset. My symptoms of anxiety became more severe. I can remember spending large amounts of time curled up in a ball on my carpet in my living room and crying uncontrollably. I did not feel able to attempt to engage with ECU any further to try and seek a resolution to enable me to pass the unit. I did not feel able to cope.”
The evidence before the Tribunal is that following Ms Knee’s email to Dr Prout, dated Saturday 6 November 2011, ECU staff acknowledged her decision to withdraw from her teaching practice placement at the School by emails dated 8 November 2010 and took steps to formally process her withdrawal from the Unit on 9 November 2010. This is supported by Ms Thomsett’s verbal evidence before the Tribunal. There was no evidence to indicate that ECU withdrew Ms Knew from the Unit, without her consent.
The Tribunal notes that Ms Knee’s academic transcript for ECU (dated 18 November 2011) reveals that she has a history of withdrawing from units but, until this incident, has never received a “Withdraw Fail” grade for a unit she has withdrawn from, presumably because in the past she has withdrawn from the unit concerned before the applicable “census date”. That is, for the course “023 Certificate IV in Music [Classical]” Ms Knee withdrew from one unit. For the course “A12 Advanced Diploma of Performing Arts (Music)” Ms Knee withdrew from 17 units and for the course “V67 Bachelor of Performing Arts (Music)” Ms Knee withdrew from 10 units.
Termination of her enrolment in the Unit prevented Ms Knee from having the opportunity to achieve a passing grade in the Unit
As a result of Ms Knee’s decision to withdraw from her professional practice placement at the School she was not able to achieve a passing grade for the Unit.
Section 79-5 of the Act
(i) Were Ms Knee’s circumstances beyond her control?
In determining whether Ms Knee’s “circumstances”, as described above, were circumstances which beyond her control, the Tribunal must also ask itself whether:
(i)a reasonable person would consider that the circumstances were not due to Ms Knee’s action or inaction (either direct or indirect) and for which she was not responsible; and
(ii) Ms Knee’s situation was unusual, uncommon or abnormal.
Having regard to the evidence before the Tribunal, the Tribunal considers that Ms Knee’s circumstances:
(a) were not beyond Ms Knee’s control as she could have, among other things:
· withdrawn from the Unit prior to the Census Date; or
· participated in a mediation with Dr Prout (ECU) and her mentor teacher in order to address any perceived ‘issues’ on Ms Knee’s part regarding how the mentor teacher was conducting the Unit.
and her failure to do so was due to action and/or inaction on her part; and
(b)did not represent circumstances that were ‘unusual, uncommon or abnormal’. As Ms Thomsett stated in verbal evidence, it is very common for pre-service teachers to feel very stressed and pressured when undertaking their final teaching practice placement because their conduct is constantly being observed and assessed by their mentor teacher. Ms Knee’s circumstances were no different. What differentiated Ms Knee’s circumstances appears to be her own insecurity or low self-esteem and her self-doubt about her own ability to complete the Unit successfully.
Did Ms Knee’s circumstances make their full impact on or after the Census Date?
As stated above, Ms Knee’s practical placement at the School commenced on 11 October 2010, the “census date” for the Unit was 23 October 2010. However, Ms Knee did not properly report her concerns regarding her placement at the School and, in particular, her allegations of “bullying” by her mentor teacher to ECU staff until 1 and 2 November 2010 (being after the “census date” for the Unit), at which time the ECU responded appropriately to Ms Knee’s complaint. As such, the Tribunal finds that Ms Knee’s circumstances had made their full impact by the “census date”.
Did Ms Knee’s circumstances make it impracticable for her to complete Unit?
Based on the facts and evidence before the Tribunal, the Tribunal finds that Ms Knee’s circumstances did not make it impracticable for her to complete the Unit.
It was the Ms Knee’s decision to cease her teaching practice placement (her last day that she attended the School being Friday 29 October 2010), which resulted in her failing the Unit, in circumstances in which it was reasonable and practicable for her to continue with and complete the Unit. In particular, the Tribunal notes that on Friday 5 November 2010, prior to her withdrawal from the Unit on Saturday 6 November 2010, Ms Knee was offered mediation with her mentor teacher by Dr Prout (ECU) on Monday 8 November 2010. Such mediation may have resulted in the resolution of Ms Knee’s issues with her mentor teacher and her successful completion of the Unit.
CONCLUSION
The Tribunal considers that Ms Knee’s circumstances, as set out above, do not constitute “special circumstances”, as contemplated by section 79-1(1)(c) and section 79-5 of the Act (and as described in the Administrative Guidelines). Consequently, the Tribunal finds that the ECU’s decision not to re-credit the Applicant’s SLE or remit her HECS-HELP debt for the Unit should be affirmed.
DECISION
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding 129 (One Hundred and Twenty Nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh.
(sgd) D Brodie........................................................................
Administrative Assistant
Dated 27 June 2012
Date of hearing 14 and 15 May 2012 Date final submissions received 4 June 2012 Applicant’s Representative Ms Sally Knee (Self-represented) Respondent’s Representative Mr Shane Maundrell
Legal Branch, DIISRTE
4
4
0