Thomas v NSW Education Standards Authority - [2023] NSWCATAD 41

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Thomas v NSW Education Standards Authority [2023] NSWCATAD 41
Hearing dates: 20 July 2022 and 23 November 2022
Date of orders: 20 February 2023
Decision date: 20 February 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
E Hayes, General Member
Decision:
(1) The decision of NESA, made on 24 February 2021, is varied by removing the requirement that the Applicant’s accreditation is suspended until his name is removed from the Department’s Not To Be Published List to a decision that his accreditation is suspended until the date of the publication of this decision.

Catchwords:
ADMINISTRATIVE LAW – teacher accreditation – suspension of accreditation on the grounds of the Department of Education having placed the Applicant’s name on the Department’s Not To Be Published List – section 24(1)(e)(ii) of the Teacher Accreditation Act 2002 and s 7(1)(e) of the Teaching Service Act 1980

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Education Standards Authority Act 2013 (NSW)
Teacher Accreditation Act 2004 (NSW)
Teacher Accreditation Amendment Act 2021 (NSW)
Teaching Service Act 1980 (NSW)
Teaching Service Regulation 2017 (NSW)

Cases Cited:
Laragy v Victorian Institute of Teaching (Occupation and Business Regulation) [2009] VCAT 2651

Category: Principal judgment
Parties: Michael William Thomas (Applicant)
NSW Education Standards Authority (Respondent)
Representation:
Counsel:
D Fuller for the Respondent
Solicitors:
Applicant self-represented
Lander & Rogers (Respondent)

File Number(s): 2021/00070721

Reasons for Decision

The applicant, Michael William Thomas (Applicant), seeks review of the decision of the respondent, the NSW Education Standards Authority (NESA), made on 24 February 2021, to suspend his provisional teacher accreditation, pursuant to s 24A(1)(a) and 24(1)(e)(ii) of the Teacher Accreditation Act 2004 (NSW) (Accreditation Act).
A person is prohibited from teaching in a registered school (public or private) or an approved centre-based early childhood service in NSW unless they are accredited by NESA, under the Accreditation Act: Accreditation Act s 28. A registered school or an approved centre-based early childhood service is also prohibited from employing a person to teach who is not accredited by NESA: Accreditation Act s 29.
There are five levels of accreditation; provisional, conditional, proficient, highly accomplished and lead teacher level: Accreditation Act ss 30, 31, 32 and 39. The Applicant was accredited by NESA at the provisional level of accreditation, which is the lowest level of accreditation.
Section 24A(1)(a) of the Accreditation Act relevantly provides as follows:

24A Suspension of accreditation
(1) The Authority may suspend the accreditation of a person—
(a) on any ground on which the Authority may revoke the person’s accreditation, or …

Section 24(1)(e)(ii) of the accreditation Act provides as follows:

24 Revocation of accreditation
(1) The Authority may revoke the accreditation of a person on any of the following grounds—
…
(e) the person has—
(i) been dismissed from employment as a teacher (whether on a permanent, temporary, part-time or casual basis) or has resigned from such employment before being dismissed, or
(ii) been included in the list of persons maintained by the Secretary under section 7(1)(e) of the Teaching Service Act 1980 as a person who is not to be employed in the Teaching Service,

because of any misconduct that, in the opinion of the Authority, is of a nature that would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach, …

In determining whether to suspend the Applicant’s accreditation, s 24B of the Accreditation Act requires NESA to consider the following matters (where appropriate):

(a) the nature and seriousness of the conduct concerned,
(b) the frequency of the conduct concerned,
(c) the recency of the conduct concerned,
(d) any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(1)(c)).

Section 7 of the Teaching Services Act 1980 (NSW) (Teaching Service Act) sets out the general functions of the Secretary of the NSW Department of Education (Secretary or Department), which includes the function to prepare and maintain a list of persons who the Secretary determines are not to be employed in the Teaching Service (NTBE list): Teaching Service Act s 7(1)(e). The ‘Teaching Service’ is made up of those persons who are employed by the Department, under the Teaching Service Act, to teach or work in NSW public (i.e. government) schools: Teaching Service Act ss 44 and 47-51.
In 2020, the Applicant, who had previously been granted conditional casual teaching approval by the Department to teach in a public school, was employed as a temporary teacher to teach full time for a school year at a country school in regional NSW (the School): Teaching Service Act s 50. Not long after the Applicant had commenced teaching at the School, the principal of the School (Principal) informed the Applicant that she had concerns about his performance and that he would be placed on a four week performance improvement plan.
The Applicant did not accept that his performance was lacking. Instead, he felt that he was not being given sufficient support and was being harassed and discriminated against by the Principal and the School because of his sexuality. The Applicant lodged an internal complaint against the Principal in March 2020. His complaint was found not to have been established and this was affirmed on internal review. On 11 June 2020, the Principal began monitoring the Applicant’s performance. In late June 2020, the Applicant made a discrimination and bullying complaint, against the Principal and the School, to the Anti-Discrimination Board and SafeWork. He also made an approach to several newspapers and journalists indicating that he had a ‘tip off’ concerning acts of discrimination and bullying by the Department. A journalist from the Australian newspaper contacted the Applicant on 13 July 2020. He was subsequently interviewed by the journalist. Having resigned from the School on 16 July 2020, the Applicant sent a text to the journalist to say that he no longer wished to proceed with the story. After being contacted by the journalist, the Applicant appears to have changed his mind. On 12 August 2020, the Applicant sent another text to the journalist asking him not to run the story as he had been offered a job as a solicitor.
Notwithstanding the Applicant’s text message, on 13 August 2020, the newspaper published the article about the Applicant, the School and the Department. The article published in the newspaper was not that which had been anticipated by the Applicant in that it disclosed a reportable disclosure event he had made in 2012, while a teacher.
On the same day that the newspaper article was published, a delegate of the Secretary, Mark Anderson (Mr Anderson) Regional Director of the Department’s Employment and Conduct Unit (EPAC)), wrote to the Applicant to inform him that consideration was being given to withdrawing his conditional casual teaching approval and placing his name on the NTBE list.
On 21 August 2020, having received a response from the Applicant to his earlier letter, Mr Anderson wrote to the Applicant to inform him of his decision to withdraw his conditional casual approval and that his name would be placed on the Department’s NTBE list due to his:

… [demonstrated] breach of confidentiality and attempts to damage the integrity and reputation of the Department by airing [his] grievances in the media, your inability to objectively self-reflect and assess your performance and accept feedback by supervisors (Standards 6.1, 6.3, 7.1, 7.2): and above all, your failure to protect children by not ensuring a well managed and engaging classroom for all students, I have determined to place your name on the NTBE list for two years. At the end of this time you may apply to the Department for a review of the placement of your name on the NTBE list. In making an application you will be required to demonstrate your suitability to teach.

On 27 August 2020, the Department notified NESA of its decision to withdraw the Applicant’s conditional casual approval and to place his name on the NTBE list.
On 3 September 2020, NESA (per Lynn Kirkby (Ms Kirkby), NESA’s Executive Director, Quality Teaching), wrote to the Applicant to advise him that NESA intended to suspend his accreditation as it was of the opinion that the Applicant’s ‘breach of confidentiality’ was a contravention of the Department’s ‘Code of Conduct’ and that it ‘constitutes misconduct’ which, in the opinion of NESA, was of a nature and seriousness that adversely impacted on the Applicant’s ‘professional standing’. In assessing the nature, seriousness, frequency and recency of the findings of ‘misconduct’ made against the Applicant (s 24B of the Accreditation Act), Ms Kirkby said that NESA had formed the view that the Applicant’s conduct demonstrated a failure to comply with 7.1.2 and 7.2.2 of the Standard Descriptors in the Australian Professional Standards for Teachers (Professional Standards).
On 13 January 2021, having received a response from the Applicant, Ms Kirkby wrote to the Applicant to inform him that NESA had decided to suspend his teacher accreditation for the reasons set out in her earlier letter. In her letter Ms Kirkby said that in reviewing the Department’s ‘Code of Conduct’, NESA considered the following provisions as being relevant to forming its opinion to suspend the Applicant’s accreditation:

paragraphs 4.4, 5.1(vi), 5.1(ix) and 13.5(vi) of the Department’s ‘Code of Conduct’; and

the core values and principles set out in ‘the Code of Ethics and Conduct for NSW government sector employees’.

The Applicant sought internal review of Ms Kirkby’s decision. On 24 February 2021, Paul Daniell (Mr Daniell), NESA’s Executive Director, Strategy and Capability) affirmed the decision of Ms Kirby to suspend the Applicant’s accreditation. In his decision, Mr Daniell determined that the applicant’s suspension should be ‘for the period during which [the Applicant’s] name remains on the NTBE list’.

Proceedings before the Tribunal

The Applicant’s application has had a protracted history, and in our view, involves some complexity, both factually and legally. Furthermore, we understand that it is the first application of its kind to be lodged with the Tribunal.
The application was originally heard by the Tribunal (differently constituted) on 20 May and 6 June 2021.
On 8 September 2021, the Tribunal (differently constituted) published its decision and reasons for decision: see Thomas v NSW Education Standards Authority [2021] NSWCATOD 125 (2021 decision of the Tribunal). In that decision, the Tribunal set aside the decision of NESA and in substitution thereof a decision was made to reinstate the Applicant’s accreditation in accordance with the Tribunal’s reasons for decision.
NESA appealed that decision, and on 13 April 2022, the Appeal Panel allowed the appeal, set aside the orders made by the Tribunal in its 2021 decision, and remitted the ‘whole of the proceedings’ to be ‘reconsidered’ by a differently constituted Tribunal, without further evidence, unless with the leave of the Tribunal, ‘in accordance with the Appeal Panel’s decision’: NSW Education Standards Authority v Thomas [2022] NSWCATAP 110 (Appeal Panel Decision).
We heard the Applicant’s application, on 20 July 2022 and at the end of the hearing we reserved our decision. In early November 2022, at our request, the Registrar forwarded some specific questions we had about the application of s 24(1)(e) of the Accreditation Act and whether it was contended by NESA, that s 24(1)(e) gave it the power to make findings of misconduct that were not made by the Department in its decision to place the Applicant’s name on the NTBE list. To give the parties an opportunity to respond to our questions, the matter was listed for further directions on 23 November 2022. Prior to the directions hearing, NESA provided short written submissions, on which it elaborated at the directions hearing. We have dealt with these questions and NESA’s response below.

The Tribunal’s jurisdiction and role on administrative review

In our view, it is convenient to reiterate the jurisdiction and role of the Tribunal in this application.
First, this application is made under the Tribunal’s administrative review jurisdiction: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 30, which provides that the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator are those provided for in the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
Section 9(1) of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if the enabling legislation provides that applications may be made to the Tribunal for administrative review under the ADR Act of any such decision (or class of decisions) made by the administrator:

in the exercise of functions conferred or imposed by or under the enabling legislation, or

in the exercise of any other functions of the administrator identified by the enabling legislation.

In this case, the enabling legislation is the Accreditation Act, of which s 27 relevantly provides:

27 Administrative review of certain decisions
(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions—
(a) …
(b) the revocation or suspension of the person’s accreditation by the Authority under this Part,
(c) …

(2) A decision of a kind referred to in subsection (1) is not reviewable by any other court or tribunal (including in any proceedings in the nature of disciplinary proceedings or in any proceedings for unfair dismissal).

Hence, the decision the subject of review is the decision of NESA to suspend the Applicant’s accreditation ‘for the period during which his name remains on the NTBE list’.
The Tribunal has no jurisdiction to review the decision of the Department to place the Applicant’s name on the NTBE list. However, as noted by the Appeal Panel in its decision, at [43], the decision of the Department and its reasons for making the decision to place the Applicant’s name on the NTBE list is of relevance to NESA’s ability to suspend the Applicant’s accreditation, on the grounds set out in s 24(1)(e)(ii).
Nor does the administrative review jurisdiction of the Tribunal extend to conducting a ‘review’ as suggested by the Applicant in his administrative review application. That is a function vested in NESA, under s 24A(2) of the Accreditation Act, following a decision to suspend a person’s accreditation. In this case, contrary to s 24A(2), NESA has not conducted any reviews during the time the Applicant’s application for administrative review has been pending before the Tribunal. Yet, since 29 November 2021, it has had the power to assess the Applicant’s suitability to teach, but has not done so: Accreditation Act s 35 and Sch 3 Part 6 cl 19.
The role of the Tribunal on administrative review is to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: ADR Act s 63(1). For this purpose, the Tribunal can exercise all of the functions that are conferred, or imposed on, by any relevant legislation on the administrator (in this case NESA) who made the decision: see ADR Act s 63(2). This means that the Tribunal sits in the shoes of the administrator and decides the matter afresh, as at the date of hearing, which in this case is 20 July 2022.
The orders we can make are those set out in s 63(3) of the ADR Act. These are, an order to affirm NESA’s decision, to vary NESA’s decision, set NESA’s decision aside and make a decision in substitution for that decision, or set NESA’s decision aside and remit it to NESA for reconsideration.
For the reasons that follow, we have decided, that the decision of NESA to suspend the Applicant’s accreditation is the correct and preferable decision. However, we have decided that the decision to suspend the Applicant’s accreditation should be varied so that the suspension is removed as of the date of this decision.
As we have explained below, this does not mean that NESA is prohibited from imposing a condition on the applicant’s accreditation, especially as he is only accredited to the provisional level of accreditation and needs to be accredited to the proficient level within a specified time. This is a matter the Applicant will need to resolve with NESA should he wish to continue to pursue his teaching profession. NESA is also, in the future, able to undertake an assessment as to whether the Applicant is suitable to teach should that need arise. The latter will of course depend on any future conduct by the Applicant.

Material before us

In the hearing before us, NESA, with the consent of the Applicant, prepared an Agreed Bundle of documents (AB docs) containing:

a copy of the exhibits that were before the Tribunal at the original hearing. Included in this material was a copy of the bundle of documents the Applicant had filed and served, on 22 and 27 April 2021, in support of his case;

the written submissions of the Applicant and NESA relied on before the Tribunal at the original hearing; and

a copy of the transcript of the hearing before the Tribunal at the original hearing. In this regard we note that the Applicant gave oral evidence at the hearing, but NESA chose not to cross-examine him.

NESA also provided a supplementary bundle documents (SB docs) documents which contained:

a copy of the s 58 documents that were before the Tribunal at the original hearing;

a copy of further evidence that was before the Tribunal at the original hearing, which included some additional email correspondence, a document of the Department entitled ‘Managing Temporary Teacher Engagements Including Circumstances of Early Cessation’ (‘Temporary Teacher Engagements’ document) and NESA’s internal review decision; and

a copy of the Accreditation Act and the Appeal Panel decision.

NESA also provided short written submissions in response to the questions we had raised, in November 2022, after the hearing in July 2022.
The Applicant has represented himself in these proceedings. While he has a law degree it was evident to us during the hearing on 20 July 2022 and again at the directions hearing on 23 November 2022, that the Applicant has very limited knowledge of the legal principles relating to administrative review generally, including administrative review of administratively reviewable decisions of NESA.

Matters in issue

In the hearing before us, NESA contended that, on remittal, the only issue remaining for determination was the exercise of the discretion in s 24B of the Accreditation Act. As noted above, this involves a consideration of:

the nature and seriousness of the ‘conduct concerned’;

the frequency of the ‘conduct concerned’;

the recency of the ‘conduct concerned’; and

any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(1)(c) of the Accreditation Act.

In this case, the ‘conduct concerned’ is the ‘misconduct’ of the Applicant that gave rise to his name being put on the Department’s NTBE list.
NESA has at all times said that its decision to suspend the Applicant’s accreditation was not based on the Applicant’s performance or lack thereof, or his 2012 disclosure. Instead, its decision was entirely based on the Department’s finding of the Applicant’s ‘demonstrated breach of confidentiality … by airing [his] grievances in the media’.

As we have already noted, in November 2022, we asked the parties whether s 24(1)(e) of the Accreditation Act gave NESA the power to make a finding of ‘misconduct’ when the Department, in its decision to place the name of an accredited teacher on its NTBE list, did not expressly make a finding of ‘misconduct’, let alone a finding that the conduct of concern was a breach of the Department’s ‘Code of Conduct’ or any other applicable legislative provision or policy under which the accredited teacher was employed.
In its response:

NESA agreed that the Department had not made an explicit finding that the Applicant’s ‘demonstrated breach of confidentiality’ was a breach of the Department’s ‘Code of Conduct’. However, it was submitted that such a finding was implicit from the actual terms of the Department’s finding in its decision; and

while s 24(1)(e) does not vest a ‘power’ in NESA, it does require NESA to form an opinion as to whether the misconduct, as identified by the Department in its decision, is of a ‘nature’ that would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach. For this purpose, NESA submitted it is permitted to take into account ‘any matter that is relevant to forming this opinion’ including ‘whether the conduct constituted a breach of the Department’s Code of Conduct’.

We understand NESA’s response to be a concession that s 24(1)(e) does not vest NESA with a power to make findings of misconduct against an accredited teacher. That is, it is conceded that this is a function vested in the Department, in its capacity as the employer or former employer of the accredited teacher whose name was placed on the NTBE list.
In our view, NESA’s concession has been appropriately made given its principal objectives and statutory functions under ss 11 and 12 of the Education Standards Authority Act 2013 (NSW) (ESA Act), and s 6(3) of the Accreditation Act.
In this regard, we note s 6(3) of the Accreditation Act expressly provides that the functions of NESA under that Act, do not extend to industrial matters concerning teachers. Section 6(3) also expressly provides that ‘conditions of employment of teachers’ is an example of industrial matters that NESA’s functions do not extend to.
At the time NESA made its decision and the Tribunal made its decision in 2021, the predecessor to s 6(3) was s 7(5) in the Accreditation Act. That section was in the same terms as s 6(3). However, on 29 November 2021, s 7(5) was omitted and s 6(3) was inserted into the Accreditation Act with the coming into force of the Teacher Accreditation Amendment Act 2021 (NSW) (TA Amendment Act). TA Amendment Act Sch 1 clause 8.
On the other hand, the statutory functions of Secretary of the Department include a function to maintain discipline in the Teaching Service (s 7(1)(f)), and for this purpose the Secretary is given the function of determining the conditions of employment of accredited teachers employed in the Teaching Service: Teaching Service Act s 13(1). The Teaching Service is established under s 44 of that Act and is made up of the government employed accredited teachers. Theses teachers are either appointed to a position or office in the Teaching Service, under s 47 of the Teaching Service Act or they are appointed on a temporary basis under s 50 of that Act. Those who are appointed to a position or office are referred to as an “officer’. The Applicant, as we have noted was a temporary employee.
While NESA has at all relevant times been the only body vested with the power to suspend and revoke a person’s accreditation, the TA Amendment Act did make some significant amendments to the Accreditation Act, including an amendment to make NESA the only body with the power to grant teacher accreditation at all levels of accreditation. Prior thereto, the Department was also an accrediting body for proficient level of accreditation and above.
The TA Amendment Act also inserted a new Division 4 into Part 4 of the Accreditation Act that gave NESA the power to assess a person’s suitability to teach in specified circumstances, including periodically: Accreditation s 35. In assessing a person’s suitability to teach, NESA can require the person to provide further information or undergo a health assessment.
In its contentions as to the proper application of s 24(1)(e) and the meaning of ‘misconduct’ in that section, NESA does not appear to have previously referred to, or considered s 6(3) of the Accreditation Act, the amendments made to that Act by the TA Amendment Act, s 12 of the Teaching Service Act, or the procedures of the Department for managing misconduct by temporary teachers. We are not critical of NESA in this regard – the legislative schemes of the Accreditation Act and the Teaching Service Act do involve some complexity and while our conclusions would not differ, in our view, it is important to take these provisions into account in determining the correct and preferable decision, as at 20 July 2022.

Background

The background and sequence of events are not disputed. For completeness, these are re-iterated below.
First, by way of background, the Applicant is 37 years of age. He grew up in regional NSW. After leaving school he attended university and studied primary school teaching.
In 2010, NESA provisionally accredited the Applicant as a teacher under s 30 of the Accreditation Act. The Department also granted the Applicant conditional casual approval to teach as a member of the Teaching Service: Teaching Service Act ss 44 and 50. The Applicant also secured employment as a temporary teacher in a public school close to where he lived.
In 2012, the Applicant made a disclosure to his then school principal which resulted in the Department withdrawing his casual approval. At the same time, the Department decided that the Applicant’s name would not be placed on the NTBE list on the condition that he agreed not to apply for approval to work in the Teaching Service for 12 months. At around the same time, NESA revoked the Applicant’s provisional accreditation.
The Applicant’s 2012 disclosure was dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). However, the Applicant did not return to the teaching profession until 2019. Instead, between February 2013 and June 2016, the Applicant studied law. He graduated with a law degree and completed the Graduate Diploma of Legal Practice in March 2017. He was subsequently admitted to practice as a solicitor and secured work in this field.
In the meantime, in December 2016, NESA re-instated the Applicant’s provisional accreditation.
Some time prior to August 2019, the Applicant was re-engaged as a temporary teacher in the Teaching Service as he had secured a part-time temporary teacher position at a public school close to where he was living. No concerns were raised about the Applicant’s teaching ability during the time he taught at that school. Instead, he received some complimentary references about his teaching.
At the beginning of the 2020 school year, the Applicant was engaged as a full time temporary teacher to teach full time at the School (the regional country School in regional NSW).

2 March 2020 meeting

Within one month of teaching at the School, on 2 March 2020, the principal (Principal) of the School met with the Applicant to discuss concerns she had about his teaching (AB docs p 234). The minutes of the meeting noted that the meeting was confidential (AB docs p 220). During informal discussions after the meeting, the Principal advised the Applicant that she proposed placing him on a four-week improvement plan to address the matters of concern.
On 7 March 2020, the Applicant attended the mental health facility at the local hospital – he was hospitalised for two days for acute distress due to work related stressors (AB docs p 239). After being discharged, the Applicant remained on sick leave until late March 2020. In April 2020, the Applicant was assessed by Dr Clayton Smith, a Consultant Psychiatrist, on behalf of the Department’s Workers Compensation Insurer (AB docs page 180). Dr Smith assessed that Applicant to have the capacity to undertake his pre-injury employment and that he had ‘made full recovery with psychological therapy alone consistent with the diagnosis of adjustment disorder.’ Dr Smith went on to say that the treatment was appropriate and effective and that the Applicant’s symptoms were in early remission.

Formal complaint made by the Applicant

Prior to being assessed by Dr Smith, on 12 March 2020, the Applicant made a formal internal complaint about the Principal (AB docs p151ff). The complaint centred around the circumstances in which the School Principal had called and then conducted the 2 March 2020 meeting. The Applicant asserted that the Principal had failed to provide him with the necessary supports and breached the Department’s ‘Code of Conduct’ by engaging in ‘bullying or insulting behaviour, including verbal and non-verbal aggression …’
In completing the Department’s proforma ‘Staff Complaint form’ the Applicant marked the box at the end of the form (AB docs p238) that stated “I agree to keep this matter confidential and to only share information when assessing support or independent advice …’.
On 24 March 2020 the Principal sent the Applicant an email to which she attached a letter advising that, due to the uncertainty surrounding the Department’s COVID-19 response she regretfully, needed to cease his temporary contract, as ‘the number of students attending [name] School have decreased (46%) and are expected to further decline in the foreseeable future’ (AB docs p 282). In her letter the Principal said she had been directed to send the letter at the direction of EPAC. Subsequently, the Department advised that no such directive had been given and the Applicant’s temporary contract remained on foot.
On 30 March 2020, Jeremy Mills, the Director, Education Leadership, of the Department provided the Applicant with a written response to his 12 March 2020 complaint (AB docs p 156). In his response, Mr Mill said that the Department did not uphold the Applicant’s complaint, other than acknowledging that the School’s Discipline Code was out of date. The Applicant was otherwise encouraged to ‘continue gaining proficiency’ during the remainder of the year.
On 30 April 2020, the Applicant sought internal review of Mr Mill’s decision (AB docs p 161).
On 21 May 2020, Ruythe Dufty, Relieving Executive Director, School Performance of the Department responded to the Applicant’s internal review application (AB docs p 164). In that response Mr Dufty said he had determined, on the material before him, that the complaint handling process in dealing with the Applicant’s complaint was ‘fair and the outcome was correct’. Mr Dufty also found that the Applicant had been ‘provided appropriate supervision and leadership to ensure good order of the school in accordance with the Department of Education’s expectations …’. Mr Dufty concluded by saying he found no evidence of the Applicant having been bullied, harassed or treated with disrespect.

Performance Plan meeting – 11 June 2020

On 11 June 2020, at a meeting with the Applicant to discuss the proposed performance improvement plan, the Applicant was informed by the Principal that, starting from Monday 15 June 2020, she would commence monitoring his performance for a period of four weeks. She also said that, if during those weeks there was insufficient improvement in his performance, his temporary engagement would be terminated (SB docs p 737).
The Principal is recorded as having concluded the meeting by reiterating that the School wanted the Applicant to be successful in his role as a classroom teacher and that he would continue to be supported in working towards his proficient teacher accreditation. The Principal is also recorded as having noted:

Please note the confidential nature of this meeting and you must not discuss this meeting with staff outside this room as this would be a breach of the Code of Conduct. …

On the same day as the 11 June 2020 meeting, the Applicant, being dissatisfied about the proposed monitoring of his performance, sent three emails. One email was sent to the Secretary of the Department requesting that the Principal’s proposed monitoring of his performance be stopped. The other two emails were complaints of alleged bullying, harassment and discrimination. One complaint was made to the NSW Anti-Discrimination Board and the other complaint was made to SafeWork.

Email of 17 June 2020 to the Secretary of the Department

On 17 June 2020, the Applicant sent an email to the Secretary of the Department (AB docs p 105). In his email, the Applicant again requested that the Principal’s proposed monitoring of his performance be stopped. He also noted that he had made a complaint to the Anti-Discrimination Board and SafeWork NSW. The Applicant went on to say he had provided the Department with four written warnings prior to sending these emails and that he will:

.. [be] contacting various media outlets, including but not limited to the Daily Telegraph, the Australian, the Sydney Morning Herald, Today Tonight and A Current Affair should the support plan not be terminated in the coming days.

Email of 22 June 2020 to journalists

On 22 June 2020, the Applicant sent an email to several newspapers and newspaper journalists (AB docs p 52). The subject matter of the email was ‘Secretary of NSW Dept Education Allows Discrimination & Bullying to Occur Under His Watch’. In the body of his email the Applicant said he had a ‘tip off’ and described what he asserted to be a pattern of ongoing bullying and discrimination made against him, by the Department, the School and the Principal.
On 13 July 2020, a journalist from the Australian newspaper responded to the Applicant’s email.

Applicant resigns from his teaching position

On 16 July 2020, the Applicant resigned from the regional School where he had been engaged to work as a temporary teacher for that year.

August 2020 newspaper article

Sometime after being contacted by the journalist from the Australian newspaper, the Applicant was interviewed by the journalist. On 24 July 2020, the Applicant sent a text message to the journalist and said: ‘After significant further consideration about the ramifications on my reputation in proceeding with the story, I am letting you know I no longer wish to proceed with the story.’
After having sent his text message, the journalist spoke to the Applicant and the Applicant appears to have changed his mind.
On 12 August 2020, the Applicant sent another text message to the journalist in which he said: ‘I have just been offered a job as a solicitor. I ask that you do not run the story any more. Thank you for all your help, Sorry for the inconvenience’.
Notwithstanding the Applicant’s text message, on 13 August 2020, the Australian newspaper published the article about the Applicant and the Department, the School and the Principal (AB docs p 386). As noted above, the focus of the article differed substantially from what the Applicant had intended or expected would be said about him and the allegations of discrimination and bullying he had made against, the Department, the School and the Principal.
The Applicant subsequently took action to have the article removed, including having the article removed from the newspaper’s website. He made a complaint to the Press Council, which found that his complaint had not been substantiated. Nevertheless, the Australian newspaper agreed to permanently remove the article (including from its website) not long after it had been published.

Decisions of the Department

As noted above, on the same day that the newspaper article was published, the Department (Mr Anderson) wrote to the Applicant (AB docs p 387) to inform him that consideration was being given to withdrawing his casual teaching approval and to place his name on the NTBE list. This letter appears to have been written before the article was published.
The Applicant responded to the Department’s letter on the following day (AB docs p 389).
On 21 August 2020, the Department (Mr Anderson), wrote to the Applicant to inform him of its decision to withdraw his casual approval to teach and to place his name on the NTBE list for two years and, that at the end of that period he could apply to the Department to seek review of its decision to place his name on the NTBE list (AB docs p 393).
We have set out the relevant content of this letter and Mr Anderson’s show cause letter below.

Department’s notification to NESA

On 27 August 2020, the Department informed NESA that the Applicant’s name had been placed on the NTBE list (AB doc p 396). NESA was also provided with a copy of the 21 August 2020 decision of Mr Anderson and the Department’s ‘NOT TO BE EMPLOYED ACTION SHEET’ (AB docs p398) which noted that:

the Applicant was found to be ‘unsatisfactory’ and his casual approval was withdrawn; and

the Applicant was placed on the NTBE list because of his continued breach of confidentiality and his attempts to damage the integrity and reputation of the Department by airing his grievances to the media.

Decisions of NESA

On 3 September 2020, Ms Kirkby wrote to the Applicant to advise him that NESA intended to suspend his accreditation (AB docs p 410-411). On 13 January 2021, Ms Kirby wrote to the Applicant to advise that NESA had decided to suspend his accreditation (AB docs p 423).
The applicant sought internal review of the decision of Ms Kirkby, which he was entitled to do. As noted in the introduction, on 24 February 2021, Mr Daniell wrote to the Applicant to inform him that the decision of Ms Kirkby had been affirmed (AB docs p15-19). We have dealt with relevant content of this letter and that of Ms Kirkby below.

NCAT Anti-Discrimination proceedings and SafeWork complaint

After the Department and NESA had made their decisions and before the Applicant lodged this application for review (11 March 2021), the Applicant’s anti-discrimination complaint had been referred to the Tribunal by the Anti-Discrimination Board. Those proceedings were dismissed on 13 April 2021 after a settlement agreement had been reached, at a mediation, between the Applicant and the Department. The terms of the settlement agreement were confidential, but did not result in the Applicant’s name being removed from the NTBE list.
Following the settlement of his anti-discrimination complaint, the Applicant did not press his SafeWork complaint any further.

Decision of the Department

In his 13 August 2020 show cause letter to the applicant (AB docs p 387), Mr Anderson provided the following reasons as to why consideration was being given to the proposed action:

… [I am] informed you failed to demonstrate sufficient improvement in your teaching performance at [name] School and did not demonstrate the required standard of proficiency for a classroom teacher following the provision of support as described in section 3.4 of the Department's Managing Temporary Teacher Engagements Including Circumstances of Early Cessation’.
In order to give you an opportunity to respond to my preliminary view, you are invited to show cause, in writing (and provide any information you consider should be taken into account), as to why I should not take that foreshadowed action. …
I am also aware you have previously made public your feelings and beliefs regarding being subject to an improvement process. Your actions were contrary to the Department's Code of Conduct which applies to all employees, including those in temporary and casual teaching engagements. Further, confidentiality is important for both yourself and those stakeholders involved in the process. I therefore instruct you to maintain confidentiality in relation to this matter, other than seeking advice from appropriate sources such as the NSW Teachers Federation or your legal representative.

In his letter of 21 August 2020, Mr Anderson advised that he had made his decision to cancel the Applicant’s conditional casual approval to teach and to place his name on the NTBE list in the context of ss 5A (protection of children to be paramount) and s 93A (objects of Part 4A) of the Teaching Service Act. In his reasons for decision, Mr Anderson said that he found:

the correct process, as described in section 3.4 of the Department’s Managing Temporary Teacher Engagements Including Circumstances of Early Cessation document, had been used in placing the Applicant on a performance improvement plan;

the improvement process had been administered in a procedurally fair manner and in compliance with Managing Temporary Teacher Engagements Including Circumstances of Early Cessation document and that the requirements set for the Applicant as his improvement process were reasonable and in line with the relevant Australian Professional Standards for Teachers at the level of Proficient – specifically Standards 1, 2, 3 and 4; and

having regard to the concerns raised by the Applicant and the intent of 3.4.6 and 4 in the Managing Temporary Teacher Engagements Including Circumstances of Early Cessation document and weighing these against the support the Applicant received, the opportunity for the Applicant to demonstrate improvement to the level of proficient was there.

As we have already noted, Mr Anderson concluded by saying:

… [Having] concluded that your performance was unsatisfactory, I decided to withdraw your conditional casual approval.
I next considered whether it was reasonable to place your name on the Not To Be Employed List. Given your demonstrated breach of confidentiality and attempts to damage the integrity and reputation of the Department by airing your grievances in the media; …

The decision of NESA

In her letter of 13 January 2021 (AB docs p 423), Ms Kirkby noted that a ‘suspension is an interim decision’ and must be reviewed every three months. She noted that the Applicant’s dispute with the Department had been referred by the Anti-Discrimination Board to the Tribunal. She went on to say, that if a decision is made through NCAT to remove his name from the NTBE list, the grounds NESA relies on in suspending his accreditation may no longer exist.
In his decision of 24 February 2020 (AB docs p15-19), Mr Daniell also found that the Applicant’s breach of confidentiality contravened the Department’s ‘Code of Conduct’ and constituted ‘misconduct’ that was of a nature and seriousness that adversely impacted on the Applicant’s ‘professional standing, integrity and suitability to teach’. In this regard, Mr Daniell found that:

the Applicant’s approach to the media was a contravention of paragraphs 4.4, 5.1(vi), 5.1(ix) and 13.5(vi) of the Department’s ‘Code of Conduct’;

given the abovementioned breaches of the Department’s ‘Code of Conduct’, the Applicant’s behaviour demonstrated a failure to comply with 7.1.2 and 7.2.2 of the Standards; and

based on the reasons for the Applicant’s placement on the NTBE list, the Applicant’s behaviour contravened the ‘the Code of Ethics and Conduct for NSW government sector employees’ which reflected adversely on his professional standing, integrity, and suitability to teach.

The factors considered by Mr Daniell in exercising the discretion in s 24B of the Accreditation Act included the following:

the Applicant’s grievances aired to the Australian newspaper were highly critical of Department and provide an account that he was ‘bullied’ from the teaching profession when the findings of the Department were that the improvement process conducted by the School had been conducted in a procedurally fair manner, were not flawed and the correct process had been used;

the Applicant had provided the media with details of an unrelated matter, namely his 2012 disclosure;

by conflating the facts relating to the 2012 disclosure and the more recent teaching improvement process, the Department could ‘be reasonably assumed to suffer injury to its integrity and reputational damage’;

the Applicant’s submissions of 11 February 2021, which were extensive but mainly referred to matters unrelated to the misconduct under examination. When referring to the relevant misconduct, the Applicant presented inconsistent views. First, he expressed remorse for his actions stating that it was never his intention to deliberately damage the reputation of the Department and that he has ‘learnt from this situation and in doing so [can] assure NESA this will not occur again’. However, contrary to this the Applicant also said that his actions in going to the media ‘were justified and appropriate’. Neither of these views expressed by the Applicant ‘change the material fact that his actions have undeniably caused negative perceptions of his former employer and former colleagues in the national media, which of a nature and seriousness that weigh in favour of suspension of his teacher accreditation’;

the misconduct only occurred once and it occurred recently.

Application of s 24(1)(e) of the Accreditation Act and the meaning of ‘misconduct’

We re-iterate the terms of s 24(1)(e) of the Accreditation Act:

24   Revocation of accreditation
(1) The Authority may revoke the accreditation of a person on any of the following grounds—
…
(e)  the person has—
(i)  been dismissed from employment as a teacher (whether on a permanent, temporary, part-time or casual basis) or has resigned from such employment before being dismissed, or
(ii) been included in the list of persons maintained by the Secretary under section 7(1)(e) of the Teaching Service Act 1980 as a person who is not to be employed in the Teaching Service,
because of any misconduct that, in the opinion of the Authority, is of a nature that would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach,

As noted above, the qualifying words in the last paragraph of s 24(1)(e) equally apply to the circumstances set out in sub-paragraphs (i) and (ii) of that section. The difference being that:

sub-paragraph (i) applies to any accredited teacher who are employed or were employed in the government Teaching Service or any other registered school within NSW; and

sub-paragraph (ii) applies to an accredited teacher in the employ or former employ of the government Teaching Service whose name is included on the Secretary’s (Department’s) NTBE list.

It does not appear to be disputed that the words ‘because of any misconduct’ qualify the circumstances in which sub-paragraph (i) and (ii) apply. That is, sub-paragraph (i) applies where the employer (including the Secretary/Department) make a decision to dismiss the accredited teacher because of misconduct, and sub-paragraph (ii) applies where the Secretary/Department make a decision to place the name of accredited teacher on its NTBE list because of misconduct.
That is, NESA’s power to revoke or suspend a teacher’s accreditation under s 24(1)(e) is predicated on the employer (including the Secretary/Department) having made a decision of the kind referred to above. It is agreed that a decision of this kind is not one that NESA has power to make. However, where an employer (including the Secretary/Department) does make a decision of this kind there is a mandatory obligation on the employer (including the Secretary/Department) to notify NESA of that decision and provide all relevant information on which that decision was made: Accreditation Act s 42B which requires employers to notify NESA of the following decisions he/she it makes and information that he/she it becomes aware of:

decisions to:

start and finalise disciplinary proceedings against an accredited teacher in his/her/its employ;

dismiss an accredited teacher in his/her/its employ for a reason for which the person’s accreditation may be revoked or suspended; and

include the name of an accredited teacher on the NTBE list; and

any information of which the employer is aware, concerning an accredited teacher in its employ, that may be relevant to the grounds on which that person’s accreditation may be revoked or suspended.

Notification of this kind is consistent with NESA’s principal objectives and statutory functions in developing, applying and monitoring teaching quality and professional standards of teachers through the accreditation processes so as to improve student learning: Education Standards Authority Act 2013 (NSW) ss 11 and 12 and the Accreditation Act s 6
Accordingly, we would describe the first step in the application of s 24(1)(e) is for NESA to determine, on the information received from the employer (including the Department) of the accredited person, whether the person was:

dismissed by the employer, or resigned before being dismissed by the employer, because of misconduct; or

included in the Secretary’s NTBE list because of misconduct.

In our view, the word ‘misconduct’ in s 24(1)(e) means a breach of the conditions and obligations under which the accredited teacher was employed by his or her employer. As these may differ between employers, in our view, what constitutes ‘misconduct’ should be construed in the regulatory and contractual context in which the decision of the employer (including the Secretary/Department) was made. In this case, as noted in his decision of 21 August 2020, Mr Anderson made his decision under the terms of the Department’s ‘Managing Temporary Teacher Engagements Including Circumstances of Early Cessation’ document (Temporary Teacher Engagements document), which forms part of the conditions under which the Applicant was employed. We have dealt with this document in more detail below.
The second step in the application of s 24(1)(e) of the Accreditation Act is for NESA to determine, whether, in its opinion the misconduct of the accredited teacher is of a ‘nature’ that would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach.
In our view, contrary to the submissions of NESA, this step does not involve an assessment by NESA of the misconduct of the accredited teacher for the purpose of identifying other possible breaches of the conditions and obligations under which the accredited teacher was employed. Instead, it is an assessment as to whether the conduct (i.e. acts and omissions) that gave rise to the dismissal of the accredited teacher, or the name of the accredited teacher being placed on the NTBE list, is such that, in the opinion of NESA it reflects adversely on:

the professional standing;

the integrity; or

the suitability or competence to teach;

of an accredited teacher, at the Applicant’s level of accreditation.

These are all matters taken into account when NESA accredits a person to teach under Part 4 of the Accreditation Act,
We note s 24(1)(d) contains a similar ground of revocation or suspension where an accredited teacher is found guilty more than once during the period of 5 years immediately before the revocation of an offence, other than an offence under the Accreditation Act. The latter is of itself a ground for revocation or suspension: Accreditation Act s 24(1)(c).
However, under s 24(1)(d), NESA is also required to form an opinion as to whether the offence ‘involves an act or conduct that is of a nature that would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach.’ In forming its opinion under this ground of revocation or suspension, it would not be open to NESA to consider other offences the person may be guilty of. In our view, the same approach should be applied to s24(1(e).

Was the Applicant’s name placed on the NTBE list because of any misconduct?

The Applicant has conceded that the disclosure of his grievances to the media was misconduct, and NESA’s position is that this can be inferred from the findings that were made by Mr Anderson.
We agree that the Applicant’s concession was appropriately made. At the same time, having regard to the statutory functions of NESA and those of the Department, together with the material before us, we find, that the Department’s (Mr Anderson’s) finding of a breach of confidentiality was a finding of misconduct, even though this was not a finding expressly made in his decision.
As noted by the Tribunal in its 2021 decision, Part 4A of the Teaching Service Act makes provision for the management of conduct and performance. The objects of this Part are:

93A   Objects of Part
The objects of this Part are as follows:
(a)  to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service,
(b)  to protect and enhance the integrity and reputation of the Teaching Service,
(c)  to ensure that the public interest is protected.

The meaning of ‘misconduct’ for the purpose of Part 4A is contained in s 93C. It is unnecessary to repeat this meaning other than to say it is broadly defined and would include a breach of the regulations made pursuant to s 100 of the Teaching Service Act and the Department’s ‘Code of Conduct’.
Section 93F in Part 4A of the Teaching Service Act makes provision for how the Secretary (Department) is to deal with an allegation of misconduct made against an ‘officer’. This includes taking disciplinary action and/or remedial action against the ‘officer’. Disciplinary action and remedial action are defined in s 93B(1) for the purpose of Part 4A.
The word ‘officer’ is defined in s 4(1) of the Teaching Service Act to mean ‘a person employed in the Teaching Service other than as a temporary employee’. A ‘temporary employee’ is defined in the same section to mean a person employed under s 50 of that Act. As we have already noted, at all relevant times, the Applicant was a temporary employee of the Teaching Service. Hence, the disciplinary and remedial provisions in Part 4A do not apply to temporary employees of the Teaching Service. Nevertheless, we note that, where an ‘officer’ is dismissed or resigns before being dismissed on the grounds of a finding of misconduct by the Department, that finding would fall within the terms of s 24(1)(e) of the Accreditation Act. This, we note would occur regardless of whether disciplinary proceedings have or have not been conducted by the Department under Part 4A of the Teaching Service Act. The same would apply if the ‘officer’s’ name were placed on the NTBE list.
The Act does not make any further provision concerning the dismissal or termination of accredited teachers employed in the Teaching Service on a temporary basis, nor have we been pointed to any such provision.
However, as we have already noted, Mr Anderson's decision was made under the Department’s ‘Temporary Teacher Engagements’ document (SB docs p1053-1062). This document sets out the conditions of employment for temporary employees in the Teaching Service: see Teaching Service Act s 13 which gives the Secretary a wide discretion to determine the conditions of employment for members of the Teaching Service that have not otherwise been provided by law.
Section 3 of that document provides that a temporary teacher’s engagement may be terminated early in the following circumstances:

(a) the reason or the purpose for the temporary employment no longer applies and all for operational reasons the school no longer requires the services of the temporary teacher (3.1)
(b) there are concerns regarding conduct (3.2)
(c) there are serious misconduct or child protection allegations (3.3)
(d) performance is deemed to be unsatisfactory (3.4)

Section 3.2 of the document notes that the Department’s expectation of all employees, including temporary employees, is that outlined in the Department’s ‘Code of Conduct’. The section goes on to set out the procedures for dealing with conduct of concern. These involve a process of the principal of the school where the accredited teacher has been engaged, monitoring the teacher’s conduct, and if no improvement in the teacher’s conduct, termination of the temporary teacher’s engagement. If the temporary teacher’s engagement is terminated, the principal is required to refer the matter to EPAC who will decided whether the temporary teacher’s casual approval should be retained or not.
If the temporary teacher resigns during the monitoring period, the principal is to refer the matter to EPAC who will decide whether the temporary teacher’s casual approval should be retained or not.
Section 3.3 of the of the document sets out the procedures for dealing with conduct of a temporary teacher that involves an allegation of serious ‘misconduct’ or child protection allegations – examples of serious misconduct are provided in a footnote and includes matters such as assault, drug offences, theft, fraud and serious breaches of Workplace Health and Safety procedures. The document provides that EPAC is to be immediately notified about conduct of this kind. The temporary teacher should also be informed of the following:

that EPAC has been notified, and an investigation will be undertaken by EPAC; and

if EPAC forms the view that the teacher’s temporary engagement should be terminated:

(a) they will be paid 2 weeks’ pay on termination
(b) their approval to teach casually with the Department will be temporarily withdrawn pending the outcome of the investigation
(c) their name may be temporarily placed on the ‘not to be employed’ database
(d) they will be notified of the investigation process, given an opportunity to respond to any allegations, advised about the outcome of that investigation and any further action that may be taken by the Department
(e) depending on the outcome of the investigation, the name may be removed from the ‘not to be employed’ database and their teaching approval reinstated.’

Sections 3.4.1-3.4.6 of the document set out the procedure for managing concerns about performance of a temporary teacher. It is unnecessary to deal with these sections other than to note that Mr Anderson found that the concerns about the Applicant’s performance had been appropriately dealt with under these procedures.
Section 4 of the document provides that on receipt of the documentation from a principal, in accordance with the procedures set out in the document, the Director of EPAC will need to consider whether there are grounds to withdraw the teacher’s casual approval to teach. The following example is given of when EPAC may decide to withdraw a temporary teacher’s casual approval to teach:

Circumstances in which casual teaching approval may be withdrawn include proven misconduct including criminal conviction and when the teacher’s temporary engagement has been terminated from more than one school because their performance has not been satisfactory.

We agree with NESA that it can be inferred from Mr Anderson’s show cause letter to the Applicant and his subsequent notification of his decision, that he had decided to place the Applicant’s name on the NTBE list because of misconduct, which he appears to have regarded as being serious misconduct under the terms of the ‘Temporary Teacher Engagements’ document. That misconduct, as initially explained in the show cause letter, was the Applicant’s conduct in making public his feelings and beliefs regarding being subject to an improvement process, which he went on to explain was contrary to the Department’s ‘Code of Conduct’. Mr Anderson also explained the importance of confidentiality for the Applicant and other stakeholders in the improvement process. In this regard we note para 11 of the Department’s ‘Code of Conduct’ provides as follows:

The Department collect and store a lot of confidential information. Unauthorised disclosures may cause people harm or give an individual or agency an improper advantage.
The Department’s integrity and credibility may be damaged if it cannot keep information secure.

While Mr Anderson could have expressed his findings more clearly, we agree with NESA that, given the context in which he made his finding of a ‘demonstrated breach of confidentiality’ and his decision to place the Applicant’s name on the NTBE list because of that breach, this was in fact a finding of ‘misconduct’.

Is the ‘nature’ of the Applicant’s misconduct such that it would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach

Nature of the Applicant’s misconduct

Given NESA’s concession that s 24(1)(e) does not vest NESA with the power to make findings of misconduct against an employed or former employed accredited teacher, we have some difficulty in accepting NESA’s contention that, in examining the ‘nature’ of the person’s misconduct it can, in effect, look behind the findings of breach made by the employer (in this case the Department) and take into consideration other breaches, not found by the employer, but arising from the same conduct.
The additional breaches relied on by NESA are those under para 4.4, 5.1(vi), 5.1(ix) and 13.5(vi) of the Department’s ‘Code of Conduct’, and the core values and principles set out in the ‘NSW Government’s Ethical Framework for the government sector employees’.
Mr Anderson did not make any reference to, or make findings against the Applicant, regarding the abovementioned paragraphs of the Department’s ‘Code of Conduct’ or the provisions of the ‘Code of Ethics and Conduct for NSW government sector employees’. It was open for him to do so.
The introduction of the Department’s ‘Code of Conduct’, states that the ‘Code’ is based on NSW legislation, regulations and Government policies and procedures, and should be read in conjunction with the ‘Code of Ethics and Conduct for NSW government sector employees’. The latter we note, are principles applicable to all NSW government employees as a condition of their employment, and hence a matter for the Department.
In our view, for the reasons given above, it is not open to NESA, as the accreditation body for all teachers, to independently make findings of breaches of employment conditions and obligations. Nor does NESA’s ‘Interim Revocation, Suspension and Voluntary Cancellation of Accreditation Policy’ (AB docs p 445ff) make any reference to NESA having the power to take into consideration breaches that were not found by the employer.
Nevertheless, as suggested by the word ‘nature’ in the context of s 24(1)(e) NESA is required to examine the conduct (including the surrounding circumstance) on which the employer made its finding of misconduct (i.e. breach) to determine whether it is of the opinion that the person’s conduct the subject of his or her dismissal etc is of a ‘nature that would reflect adversely on a teacher’s professional standing or integrity or suitability or competence to teach’.
In this case, on the material before the Tribunal, there were three occasions, during his employment with the Department, where the need for confidentiality was expressly pointed out to the Applicant. These were:

on 2 March 2020, when the Principal of the School informed the Applicant that his performance improvement process was confidential;

on 12 March 2020, in completing his internal complaint against the Principal, the Applicant acknowledged, by ticking the box at the end of the form that he agreed to keep his complaint confidential and to only share the information contained in his complaint when accessing support or independent advice (AB docs p152): see para 1.4 of the Department’s ‘Complaints Handling Policy’ (AB docs p 617) there is a requirement that all staff involved in a complaint must keep information confidential and only discuss the issues raised in the complaint on a ‘needs to know’ basis; and

on 11 June 2020, when the Principal of the School again informed the Applicant that his performance improvement process was confidential.

The Applicant’s approach to the media was clearly a breach of the abovementioned obligations of confidences that apply to all employees of the Department concerning internal improvement and complaint processes. It is well understood that the integrity of such processes is dependent upon such confidences and a breach thereof has the potential of damaging the integrity and reputation of the Department and those subject to those processes or otherwise involved in them.
Hence, in Mr Anderson’s words, the ‘nature’ of the Applicant’s misconduct, is his demonstrated breach of confidentiality, in an attempt to damage the integrity and reputation of the Department, the Principal and the School by airing his grievances to the media.

Professional standing

Both Ms Kirkby and Mr Daniell formed the opinion that the nature of the Applicant’s ‘misconduct’ would reflect adversely on a teacher’s professional standing. In this regard they both found that conduct of the Applicant that led to his name being placed on the Department’s NTBE list would reflect adversely on a teacher’s professional standing in the following focus areas within standard 7 in the professional engagement domain of teaching, under the Professional Standards that apply to all teachers:

7.1 - meet professional ethics and responsibilities

7.2 - comply with legislative administrative and organisational requirements

In its decision NESA, assessed the Applicant at the ‘proficient’ level of accreditation when he had not reached that level of accreditation and had remained at the ‘provisional’ or ‘graduate’ level of accreditation. Hence, the applicable standard at the ‘graduate’ level of accreditation, is as follows:

STANDARD 7 ENGAGE PROFESSIONALLY WITH COLLEAGUES, PARENTS/CARERS AND THE COMMUNITY
FOCUS    Meet professional ethics and responsibilities
7.1.1   Understand and apply the key principles described in codes of ethics and conduct for the teaching profession.
FOCUS   Comply with legislative, administrative and organisational requirements
7.2.1   Understand the relevant legislative, administrative and organisational policies and processes required for teachers according to school stage

At the ‘proficient’ level of accreditation these standards provide that a teacher meets the codes of ethics and conduct (7.1.2) and understands the implications of and complies with the relevant legislative, administrative and organisational policies and processes (7.2.2).
In our view, nothing turns on the differences in the standards between the ‘graduate’ and ‘proficient’ level of accreditation as conduct of the kind engaged in by the Applicant clearly demonstrated a failure to understand the organisational policies and processes of the Department and thereby, his breach of a lawful direction of confidentiality, amounted to a failure to engage with colleagues professionally and ethically.
Hence, we agree with NESA’s assessment that misconduct of the kind engaged in by the Applicant demonstrated a failure to understand the key principles of confidentiality as described in the Department’s ‘Code of Conduct’: ‘Code of Conduct’ AB docs p528. It also demonstrated a failure to understand the relevant administrative and organisational policies and processes of the Department about internal performance improvement processes and internal complaint processes.

Integrity

The word ‘integrity’ is not defined in the Accreditation Act, and, in our view, it should be given its ordinary meaning of ‘the quality of being honest and having strong moral principles’. This is consistent with the meaning of this term contained at section 2.4 of ‘The Code of Ethics and Conduct for NSW government sector employees’ (AB docs p513).
In our opinion, a failure to engage with colleagues professionally and ethically is conduct that would also reflect adversely on an accredited teacher’s integrity. To be accredited as a teacher is a privilege – it is a position of trust in all respects, including in the accredited teacher’s engagement with colleagues. Hence, we agree that the misconduct of the kind engaged by the Applicant was a breach of that trust.

Suitability or competence to teach

The word ‘teach’ is defined in s 3A(1) of the Accreditation Act. At the time NESA made its decision to suspend the Applicant’s accreditation, that section relevantly provided as follows:

3A Meaning of “teach”
(1) In this Act, teach means—
(a) in relation to a school—to undertake duties that include—
(i) delivering courses of study that are designed to implement the school curriculum under the Education Act 1990, and
(ii) assessing the participation, performance and progress of students in those courses, …

…
whether or not the person who is undertaking any such duties undertakes other duties in the school or centre (such as those of a school executive, school counsellor or ECEC executive).

(2) A reference in this section to undertaking duties in relation to a school … is a reference to undertaking duties on the premises of a school … in the course of providing services conducted by the school or centre.

The November 2021 TA Amendment Act omitted all the words, commencing with the words ‘whether or not’, at the at the end of s 3A(1): TA Amendment Act Sch 1 cl 6 The Amendment Act also inserted a new sub-paragraph (1)(a)(iii) which is in the following terms: ‘supporting and leading the development and implementation of the delivery and assessment of the educational program’.
Again, Ms Kirkby did not find that ‘misconduct’ of the kind that led to the Applicant’s name being placed on the Department’s NTBE list would reflect adversely on a teacher’s suitability or competence to teach.
Having regard to the meaning of the word ‘teach’ and the fact that NESA does not rely on the findings of the Department concerning the Applicant’s performance, we have some difficulty in seeing how it can be said that ‘misconduct’ of the kind that led to the Applicant’s name being placed on the Department’s NTBE list would reflect adversely on an accredited teacher’s suitability or competence to teach.
We note that at the time NESA made its decision, it did not have an express statutory power to assess a person’s suitability to teach. Yet, in its decision, the Department said that, after two years, it was open to the Applicant to make an application to have his name removed from the NTBE list if he was able to demonstrate his suitability to teach.
In response to our question as to the meaning of ‘suitability to teach’ in the context of the Department’s letter, NESA, through its counsel, said that the Department had its own meaning for this term that was of no relevance to the meaning of ‘teach’ in the Accreditation Act. .
We also asked why, if there was a concern about the Applicant’s suitability or competence to teach, NESA had not exercised its powers under s 35 of the Accreditation Act. NESA, through its counsel, said that this provision was not available, as at the time it made its decision.
As we have already noted, s 35 came into force on 29 November 2021: Accreditation Act Part 4 Division 4 s 35. The application of that section extends to offences and conduct occurring before Division 4 of Part 4 came into force: Accreditation Act Sch 3 Part 6 cl 19 – that clause also provides that the provisions in that Division apply to a person accredited under the Act, whether the accreditation is or is not suspended.
We accept that, independent of the current decision to suspend the Applicant’s accreditation, NESA has the power to assess the applicant’s suitability to teach. However, for the reasons we have given, it is difficult to see how the Applicant’s misconduct gives rise to a concern about his suitability or competence to teach arises when his performance as a teacher was not relied on by NESA. Nor, in our opinion, was NESA provided with sufficient information from the Department to form an opinion on the Applicant’s suitability or competence to teach. Yet, it could have sought such information, if available, from the Department under s 7 of the Accreditation Act.
At the same time, on the material before the Tribunal, we accept that NESA’s reliance on the Applicant’s breach of confidentiality was appropriate.

S 24B criteria

There is no dispute that the Applicant’s misconduct in approaching the media and breaching his obligations of confidentiality was serious. This was especially so, when he had already lodged a discrimination complaint to the Anti-Discrimination Board and a bullying complaint to WorkSafe. It was open to him to make these complaints, but instead of waiting for his complaints to be dealt with in these processes he decided to make his approach to the media. What he hoped to be achieved by this approach is unclear, as it could do no more than publicly disclose and expose his personal information and grievances, which the Department had found not to be established. That his own reputation and integrity was at risk by publicly exposing his story appears to have been known to him.
It is not disputed that the misconduct was an isolated incident. However, the Applicant did make a similar threat of going to the media after Ms Kirkby sent her show cause letter of 3 September 2020.
As we have noted above, our role is to determine the correct and preferable decision as at the time of hearing. In this case, the hearing was 20 July 2022, which is almost two years after NESA was notified of the Department’s decision to place the Applicant’s name on the NTBE list.
NESA has not otherwise pointed to any other matter that should be taken into account by the procedures and guidelines in the Professional Teaching Standards. However, we note s 4 of the Accreditation Act which provides that the Act must be administered by applying the principle that, ‘in an action or decision concerning a child or young person, the safety, welfare and wellbeing of the child or young person are paramount’. That section was inserted into the Accreditation Act in November 2021 by the TA Amendment Act 2021 and applies to our determination of this matter.

Is the suspension of the Applicant’s accreditation the correct and preferable decision?

General Principles

In his written submissions, counsel for NESA pointed out that a decision to suspend or revoke a person’s accreditation is primarily protective and not punitive. In this case, a decision to suspend the Applicant’s accreditation is also a deterrent to other accredited teachers who might consider to engage in similar conduct.
In Laragy v Victorian Institute of Teaching (Occupation and Business Regulation) [2009] VCAT 2651, at [14] to [16], the Victorian Civil and Administrative Tribunal described the protective nature of a suspension or revocation of accreditation as follows (citations omitted):

14. Although often termed a ‘penalty’, when considering what determination is appropriate in a professional disciplinary proceeding, the Tribunal should not consider its determination as punishment. As has been indicated in many other cases, the objectives of the determination are primarily the protection of the public and the maintenance of professional standards in the eyes of the public, although the general role of deterrence in protecting the public is a factor to be taken into account in this consideration. Indeed, the available sanctions are by their nature punitive, and the objectives of specific and general deterrence (which serve the protection of the public) depend upon the sanctions having some punitive effect. This principle of deterrence must also, however, be balanced with principles supportive of rehabilitation.
15. It is therefore to be expected that we should choose a sanction with protection of the public as a primary focus, reflecting the specific misconduct of this teacher, but attempting at the same time to establish guidance for the teaching profession as a whole.
16. As in other professional disciplinary cases, we consider the degree to which a person has insight into his or her professional misconduct is also of potential relevance to the determination. In context, this ‘insight’ might be reflected in a variety of ways, such as an understanding of the nature of the misconduct, an acceptance that the conduct was seriously wrong, an appreciation of why the teacher engaged in that conduct, empathy with the consequences, and /or a willingness to take measures to identify risk factors and to avoid similar behaviour.

In her decision, Ms Kirby noted that ‘a suspension is an interim decision’ and it was the responsibility of the Applicant to advise NESA if there was any development that may impact on his suspension.

Submissions of the Applicant

At the hearing before us, the Applicant re-iterated the evidence and submissions he provided to the Tribunal at the original hearing: see 2021 decision of the Tribunal at [29] – [34]. In summary these were as follows:

he had a positive performance report of his time teaching in 2019;

he became extremely unwell following his meeting with the Principal on 2 March 2020. He was admitted to a mental health facility and was subsequently assessed as being fit for work. During the time he was unfit to return to work, he received the letter from the Principal to advise him that his services were no longer required. Receipt of the letter increased his level of anxiety and his mental health deteriorated further, especially when he was informed that EPAC had not instructed the Principal to terminate his employment,

on his return to work in June 2020, he endeavoured to meet the expectations of his performance improvement plan. However, he found the process to be inconsistent and intimidating with no or little support. This he said, made him even more anxious;

he took immediate action to have the article removed from the newspaper’s website, which NESA did not give any consideration to when NESA decided to suspend his accreditation; and

his settlement with the Department regarding his anti-discrimination claim involved, in part, an acknowledgement by the Department that he had been discriminated against by the Principal and the School.

At the hearing before us, the Applicant became very emotional when he explained the circumstances in which he found himself in while teaching at the School. He said he was especially anxious because there was so much job insecurity and uncertainty due to the prevailing COVID-19 pandemic and government restrictions. He said he was committed to teaching as he felt he had a contribution to make. He said that this had been his experience at the first school where he taught in 2019. However, from the time he started at the regional School he was left with the impression that the Principal was intent on getting rid of him because of his sexuality and his 2012 disclosure. He said that, at the time, his level of anxiety was so high that he felt he had no alternative but to approach the media because no one was listening to him.
Nevertheless, the Applicant again acknowledged that his is approach to the media was wrong, a contravention of the relevant provisions of the Department’s ‘Code of Conduct’ and a failure to comply with the requirements of the applicable focus levels in the ‘Australian Professional Standards for Teachers’ and ‘NSW Government’s Ethical Framework’. He said he deeply regrets his actions and said it will not happen again as he has developed new skills to deal with stressful situations that cause his anxiety levels to increase.
He said, that by going to the media, he did not intend to damage the reputation or integrity of the Department, the School or the Principal. However, he now understood that his breach of confidentiality in approaching the media damaged the reputation and integrity of the Department, the School and the Principal.

Respondent

NESA also relied on the written submissions provided to the Tribunal at the initial hearing and some additional submissions following the decision of the Appeal Panel.
In those submissions NESA submitted that the Tribunal could not be satisfied that the Applicant fully appreciated the seriousness of his misconduct, or is genuinely remorseful for it, or fully understands and accepts that the Professional Standards would apply to him if ‘he were to re-join the Teaching Service’. In this regard NESA pointed to the following:

the misconduct of the Applicant was serious in that it involved the Applicant making serious allegations against the Department and several of its staff, about the integrity of the performance management processes, with a view to having them disclosed publicly in the media;

the misconduct was liable to, and calculated to, damage the reputation of the Department and its staff and thereby diminish public confidence in their integrity, contrary to the Department’s ‘Code of Conduct’ and ‘Code of Ethics’;

the misconduct was contrary to the Applicant’s obligation to uphold the standards of the profession (i.e. Standards of Professional Engagement);

the misconduct only occurred once but was fairly recent, and although it did not impact directly upon the welfare of children, the maintaining of public confidence in the integrity and standards of the teaching profession is essential to the effective operation of the NSW school system;

the fact that the Applicant had been successful in having the newspaper article removed did not diminish the seriousness of the misconduct in approaching the media to air his grievances rather than the internal systems that were available to him;

the Applicant’s reliance on the ‘changed circumstances’ demonstrated the Applicant’s lack of insight into the nature and seriousness of the misconduct that led to his suspension;

the Applicant’s failure to show any remorse; and

the Applicant’s lack of insight into his conduct. This lack of insight was demonstrated in the Applicant’s response to NESA’s show cause notice where he again threatened to go to the media if his accreditation was suspended.

At the hearing before us, NESA pointed to the following matters that it asserted were relevant to the exercise of our discretion as to whether the Applicant’s accreditation should be suspended:

the Applicant’s approach to the media was initially made on 22 June 2020, which was the same day the Applicant had sent an email to the Secretary of the Department requesting that he intervene in the proposed performance improvement plan and threatening to go to the media if his concerns were not addressed. Yet the Applicant did not even give the Secretary an opportunity to respond to his concerns, as he had in fact already made an approach to the media; and

the Applicant was, at all times, aware that the discussions he had with the Principal on 2 March and 11 June 2020 were confidential, as were the complaints he had made to the Department about the Department, the School and the Principal.

Consideration

We agree that the circumstances in which the Applicant approached the media in 2020, was serious. However, it was conduct that was at the lower end of seriousness of misconduct by an accredited teacher. While the Applicant’s conduct did not impact directly on the safety , welfare and wellbeing of children, we accept that conduct of that kind can and does indirectly impact on children.
Having observed the Applicant in these proceedings, we accept that, to some extent, the Applicant’s approach to the media was naïve in that he thought it would help to address his concerns and force the Department to move him to another school.
At the same time, we agree that 2020 was a year of considerable uncertainty which affected the anxiety levels of many. In the case of the Applicant, he appears to have approached his career change back to teaching with considerable enthusiasm. However, the events of 2020 changed this enthusiasm as he began to feel vulnerable and fearful of a future with no job security in his chosen profession. Nevertheless, we agree with NESA that this is not an excuse or mitigates his misconduct. It was conduct, as we have found above, that failed to meet the now accepted, Australia wide standards of the teaching profession regarding his understanding of engaging professionally, ethically and responsibly with colleagues and complying with the applicable administrative and organisational policies and processes that apply to all teachers in the Teaching Service.
However, once the article was published the Applicant did take steps to have the article removed. The difficulties in doing so were of course of his own making. But he did persist and the article was removed relatively quickly.
Hence, we agree that his misconduct warranted the suspension of his accreditation.
However, more than two years have now lapsed since the Applicant’s misconduct and during that time we are satisfied that the Applicant now fully understands the consequence of his actions. That is, we are satisfied that he has shown insight and is remorseful. We are also satisfied that conduct of this kind is unlikely to reoccur in that the Applicant understands the importance of maintaining confidentiality in the internal processes of the Department and that there are internal support mechanisms available to teachers who have concerns about such processes, as well as external processes that are available to those who have a complaint about being discriminated against or bullied. In this regard we are not suggesting that the Applicant’s discrimination complaint against the Department was established or had any merit – only the Applicant can know this as it was he who withdrew his complaint after reaching an agreement, in confidence, with the Department.
In our view, the question is how long should that suspension be in operation for. As a general rule a suspension is imposed pending the occurrence of a certain event. For example, pending the determination of criminal proceedings or disciplinary proceedings and also pending the accredited teacher undertaking additional training or medical assessment. In this case, NESA’s suspension was dependent on the Applicant’s name being removed from the Department’s NTBE list, which the Applicant noted could not be done unless he had his accreditation restored. This in turn meant that the suspension of his accreditation would in effect operate as a cancellation.
In our view, the Applicant’s assessment is correct and as a suspension is not intended to operate as a cancellation the requirement that his suspension continue until his name is removed from the NTBE list should be removed. The question is whether the suspension of the Applicant’s accreditation should include any further action the applicant should do to address his misconduct at this time. In our view, given our findings of insight, remorse, that it is unlikely for the Applicant to repeat conduct of this kind, and two years have lapsed since the occurrence of the misconduct and there is no evidence of a similar occurrence of conduct of this kind or any other kind since that time, no further action is warranted and his suspension should cease on the publication of this decision. That is, in our opinion, given the circumstances NESA’s decision to continue the suspension of the Applicant’s accreditation until his name is removed from the NTBE list, is arguably punitive.
This does not mean that NESA is prohibited from imposing a condition on the applicant’s accreditation, or in the future assessing whether the Applicant is suitable to teach. The latter will of course depend on any future conduct by the Applicant.

Conclusion and Orders

For the reasons set out above, in our view, on the material before us and the applicable law (including s 4 of the Accreditation Act), NESA’s 2021 decision to suspend that Applicant’s accreditation was appropriate. However, for the same reasons set out above, we find that the correct and preferable decision, as at the date of hearing the Applicant’s external review application, does not include a decision to suspend the Applicant’s accreditation for the period his name remains on the NTBE list. Instead, we make a decision to vary the suspension decision of NESA so that the Applicant’s suspension ends on the date that our decision is published.
Accordingly, we make the following order:

The decision of NESA, made on 24 February 2021, is varied by removing the requirement that the Applicant’s accreditation is suspended until his name is removed from the Department’s Not To Be Published List to a decision that his accreditation is suspended until the date of the publication of this decision.

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

Registrar

Decision last updated: 20 February 2023

Medium Neutral Citation:	Thomas v NSW Education Standards Authority [2023] NSWCATAD 41
Hearing dates:	20 July 2022 and 23 November 2022
Date of orders:	20 February 2023
Decision date:	20 February 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member E Hayes, General Member
Decision:	(1) The decision of NESA, made on 24 February 2021, is varied by removing the requirement that the Applicant’s accreditation is suspended until his name is removed from the Department’s Not To Be Published List to a decision that his accreditation is suspended until the date of the publication of this decision.
Catchwords:	ADMINISTRATIVE LAW – teacher accreditation – suspension of accreditation on the grounds of the Department of Education having placed the Applicant’s name on the Department’s Not To Be Published List – section 24(1)(e)(ii) of the Teacher Accreditation Act 2002 and s 7(1)(e) of the Teaching Service Act 1980
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Education Standards Authority Act 2013 (NSW) Teacher Accreditation Act 2004 (NSW) Teacher Accreditation Amendment Act 2021 (NSW) Teaching Service Act 1980 (NSW) Teaching Service Regulation 2017 (NSW)
Cases Cited:	Laragy v Victorian Institute of Teaching (Occupation and Business Regulation) [2009] VCAT 2651
Category:	Principal judgment
Parties:	Michael William Thomas (Applicant) NSW Education Standards Authority (Respondent)
Representation:	Counsel: D Fuller for the Respondent Solicitors: Applicant self-represented Lander & Rogers (Respondent)
File Number(s):	2021/00070721