Waqa v TAFE Commission

[2008] NSWSC 808

CITATION:	Waqa v TAFE Commission [2008] NSWSC 808
HEARING DATE(S):	6 June 2008
JUDGMENT DATE :	8 August 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) The amended summons filed 6 February 2008 is dismissed. (2) The plaintiff is to pay the defendant's costs as agreed or assessed.
CATCHWORDS:	JUDICIAL REVIEW - remedial action - teacher
LEGISLATION CITED:	Supreme Court Act 1970 Technical and Further Education Commission Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Craig v South Australia (1994-95) 184 CLR 163 Kioa v West (1985) 154 CLR 550 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
PARTIES:	Mhairi Waqa (Plaintiff) TAFE Commission (Defendant)
FILE NUMBER(S):	SC 30123/2007
COUNSEL:	S Free (Plaintiff) S Flanigan ( Defendant)
SOLICITORS:	McLachlan Thorpe (Plaintiff)
LOWER COURT DATE OF DECISION:	22 January 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

FRIDAY, 8 AUGUST 2008

30123/2007 - MHAIRI WAQA v TAFE COMMISSION

JUDGMENT (Judicial review – remedial action - teacher)

1 HER HONOUR: By amended summons filed 6 February 2008, the plaintiff seeks firstly, a declaration that the purported decision of the defendant on or about 22 January 2007 to take remedial action against the plaintiff was invalid and of no effect; secondly an order that the decision be set aside.

2 The plaintiff is Mhairi Waqa. The defendant is the TAFE Commission (“TAFE”). The plaintiff relied upon her affidavit dated 14 November 2007.

Judicial review

3 Section 69 of the Supreme Court Act 1970 provides:

“(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.”

4 The scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals is taken from Craig v South Australia (1994-95) 184 CLR 163 at 179:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

5 This was later clarified in the case of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351:

“”Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

Background

6 Ms Waqa has been involved in teaching hairdressing at TAFE since 1978. In 2005, Ms Waqa was employed as a teacher of hairdressing in the North Coast Institute of TAFE Commission (TAFE). Ms Waqa received a letter dated 24 May 2005 from Patricia Field, the head teacher of the hairdressing section at the TAFE. The letter raised a number of incidents that had occurred between February 2005 and May 2005. The incidents related to Ms Waqa’s conduct in relation to students and colleagues at the TAFE. Ms Waqa was invited to respond in writing to the matters raised in the letter. Ms Waqa provided a detailed written response to the TAFE. Ms Waqa was subsequently invited to attend a meeting with Ms Field and Ziggy Mireis, the acting Faculty Manager, to discuss the matters raised in the 24 May 2005 letter.

7 On 28 July Ms Waqa received an email from Mr Mireis that outlined the purpose of the meeting and indicated that the meeting was “not a disciplinary discussion”. Ms Waqa, together with Malcolm Ogg (her Teachers Federation representative), met with Ms Field on 3 August 2005.

8 On 15 August 2005 Ms Waqa received a letter from Ms Field. The letter indicated that Ms Waqa had the right to use the TAFE complaint handling procedure if she disagreed with Ms Field’s treatment of the matter.

9 Ms Field and Ms Waqa again met on 10 October 2005 to discuss Ms Waqa’s employee assessment. On 12 October 2005 Ms Field completed an Assessment-Annual Review Form for Ms Waqa. The assessment indicated that, in Ms Field’s opinion, Ms Waqa had not been demonstrating satisfactory conduct. The report did not raise any issue with Ms Waqa’s satisfactory work performance.

10 On 18 October 2005 Ms Waqa wrote an email to Neil Black, the TAFE Institute Director, regarding her adverse assessment. Mr Black dealt with the email as a complaint by Ms Waqa against Ms Field within the meaning of the TAFE’s Responding to Suggestions, Complaints and Allegations Policy. Judy Felix, a private consultant, was appointed by Mr Black to investigate and report on the complaint.

11 Ms Felix’s report dated 20 November 2005 concluded that Ms Waqa’s allegations were not made out and that Ms Field had acted appropriately. The report also raised some matters and suggestions in relation to Ms Waqa’s conduct. The report specifically made recommendations as to the management of Ms Waqa by TAFE. Mr Black accepted the report and implemented its recommendations, which included the provision of support services for Ms Waqa.

12 One of the recommendations adopted was that Ms Field should continue to work with Ms Waqa in regard to her performance as provided by the section of the Managing Director’s Determination – 1996 – Discipline which is headed “Maintaining Satisfactory Performance”.

13 In February 2006 Ms Waqa was removed from teaching duties at the TAFE and assigned to project work. Throughout 2006 Ms Waqa participated in measures to give effect to the recommendations in Ms Felix’s November 2005 report. In June 2006 Ms Waqa corresponded with Michael Callaghan, the Acting Faculty Manager, regarding the possibility of mediation to facilitate her reintegration to teaching. In response, Mr Callaghan indicated that mediation was not an appropriate option as there was no ongoing dispute between Ms Waqa and Ms Field to resolve.

14 On 3 July 2006 Ms Waqa lodged an appeal from the November 2005 decision of Ms Felix in respect of Ms Waqa’s complaint against Ms Field. This avenue of appeal is provided for in the Responding to Suggestions, Complaints and Allegations Policy. The appeal was directed to Elizabeth McGregor, the Acting Institute Director. In response, Ms McGregor indicated that she would treat the appeal as a fresh complaint as more than six months had passed since the decision in question.

15 The complaint received by Ms McGregor was dealt with by Ms Ruth Gallagher, a project officer. Ms Gallagher provided a report dated 14 August 2006. The report ultimately recommended that the complaint be dismissed. Ms McGregor accepted the recommendations in Ms Gallagher’s report and on 8 September 2006 she requested that Michael Callaghan, the Acting Faculty Manager, and Geoff Baldry, the Director of Educational Programs, provide her with recommendations with regard to Ms Waqa’s continued work arrangements with TAFE. On the same day Ms McGregor wrote to Ms Waqa advising her that following the investigation by Ms Gallagher, and acceptance of that report, that her complaint was dismissed (a copy of that report was attached). Ms McGregor also advised Ms Waqa that a copy of the report had been forwarded to Mr Callaghan and Mr Baldry as they were to provide her with recommendations in regard to her continued work arrangements.

16 On 25 September 2006 Ms Waqa emailed Mr Baldry and Ms McGregor. She asked them whether they had discussed her continued work arrangements. She stated, “to move forward I would like to know what I will be doing next term. I would like to go back to the section/teaching if at all possible.”

17 In response to the request from Ms McGregor, Mr Baldry prepared a memorandum dated 12 December 2006. Amongst other matters, the memorandum recommended that remedial action be taken against Ms Waqa. Ms McGregor accepted the recommendations in the memorandum and formally decided to take remedial action against Ms Waqa (“the decision”).

18 By letter dated 22 January 2007, Ms McGregor wrote to Ms Waqa advising that she had received the recommendation from Mr Baldry and that she had carefully considered the issues in the matter, in particular:

“(a) informal performance management commenced by Trish Field,
(b) your complaint against Ms Field,
(c) the report of Mr Peter Notley in relation to that complaint,
(d) your subsequent complaint in regard to Mr Notley’s report,
(e) Ruth Gallagher’s determination in respect of this latter complaint, and
(f) Ms Judy Felix’s earlier advice that she was not able to continue coaching sessions with you.”

19 Pursuant to s 22D(1) of the Technical and Further Education Commission Act 1990, it was decided that remedial action be taken.

20 The letter continued:

“…The remedial action I propose is:

· the issuing of a warning letter to you that certain conduct is unacceptable

· implementing a plan addressing unsatisfactory performance

· mentoring

· monitoring of your conduct and performance

Warning : you are officially warned that your behaviour toward staff has been contrary to the DET Code of Conduct. This behaviour has included:
- entering other teachers’ classes without reasons or explanation and staying there
- questioning teachers about their methods in front of their students
- swearing at a teacher
- entering another teacher’s class and giving instructions to students contrary to the instructions given by the class teacher
- criticising and putting down others both to their face and behind their back
- not acknowledging or taking on board colleague concerns
A copy of the Code is attached for your information, and in particular I bring your attention to Section 17 Respect for people and property .
It is expected that upon your return to duty in the Hairdressing Section at the Coffs Harbour Education Campus, you will conduct yourself in a manner that will promote cooperation and harmonious relations among colleagues. You are advised that failure to do so may lead to the implementation of disciplinary action.
Improvement Plan : you will be required to undertake a ten week improvement program on your return to duty, designed to address issues previously raised with you in relation to classroom management and team communication. In terms of the procedure for Managing Unsatisfactory Performance this program is negotiated by the supervisor and the staff member.
Mentoring : I will ask Michael Callaghan to work with you to identify a suitable mentor who will be able to assist you through this process.
Monitoring of conduct and performance : Michael Callaghan and Trish Field will be monitoring your conduct and performance during the improvement program period and beyond to ensure you are satisfying expectations in this regard.
I have asked Michael Callaghan to meet with you prior to the commencement of the new teaching year with a view to determining your work arrangements until such time as the improvement program is fully developed. The improvement program to be negotiated will be documented and clearly indicate:
- areas of performance where difficulties have been identified
- standard of performance required
- time frame of the program
- possible strategies to overcome the areas of concern
- support to be provided
- specific indicators to demonstrate improvement
- process for monitoring and feedback
- timetable for formal review meetings
Mr Callaghan is also arranging for support for both staff of the Section and yourself with a view to:
- implementation of a conciliation process aimed at improving individuals’ team skills,
- developing an agreement to manage future problems and conflict within the team.
Work arrangements in place before the current vacation period commenced will remain in place until the conciliation process has been completed and the improvement program developed.”

21 Ms McGregor held the position of Institute Director. She has delegated power to exercise the power of the Director General in relation to authorising inquiries (Ex 1).

22 It is Ms McGregor’s decision to formally take remedial action against Ms Waqa that is sought to be reviewed in this court.

The Act

23 Section 22D of the Technical and Further Education Commission Act reads:

“22D Definitions

(1) In this Part:

disciplinary action , in relation to a member of staff, means any one or more of the following:

(a) dismissal from the Government Service,

(b) directing the member of staff to resign, or to be allowed to resign, from the Government Service within a specified time,

(c) except in the case of a senior executive officer—reduction of the member of staff’s salary or demotion to a lower position in the Government Service,

(d) the imposition of a fine,

(e) a caution or reprimand.


misconduct —see section 22E.

procedural guidelines means the guidelines in force from time to time under section 22F.

remedial action , in relation to a member of staff, means any one or more of the following:


(a) counselling,

(b) training and development,

(c) monitoring the staff member’s conduct or performance,

(d) implementing a plan addressing unsatisfactory performance,

(e) the issuing of a warning to the staff member that certain conduct is unacceptable or that the staff member’s performance is not satisfactory,

(f) transferring the staff member to another position in the Government Service that does not involve a reduction of salary or demotion to a lower position,

(g) any other action of a similar nature.


senior executive officer has the same meaning as in the Public Sector Employment and Management Act 2002.

(2) In this Part, a reference to an allegation that a member of staff may have engaged in misconduct includes a reference to the appropriate Division Head being made aware, or becoming aware, by any means that the staff member may have engaged in misconduct.”

24 Section 22H of the Act, under the heading “Dealing with an allegation of misconduct”, provides:

“(1) If an allegation is made to the appropriate Division Head that a member of staff may have engaged in any misconduct, the appropriate Division Head may do either or both of the following:

(a) deal with the allegation as a disciplinary matter in accordance with the procedural guidelines,

(b) take remedial action with respect to the staff member.
(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the appropriate Division Head may, if the Division Head is of the opinion that the member of staff has engaged in any misconduct, decide to take disciplinary action with respect to the staff member.
(3) Before any disciplinary action is taken with respect to a member of staff under this section, the staff member must be given an opportunity to make a submission in relation to the disciplinary action that the appropriate Division Head is considering taking.
(4) Even though the appropriate Division Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Division Head may, at any stage of the process:
(a) decide to take remedial action with respect to the member of staff concerned as well as dealing with the allegation as a disciplinary matter, or
(b) decide to take remedial action with respect to the staff member instead of dealing with the allegation as a disciplinary matter, or
(c) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter.
(5) A decision under this section by the appropriate Division Head to take remedial action with respect to a member of staff does not, if it appears to the Division Head that the member of staff may have engaged in any misconduct while the remedial action is being taken, prevent the Division Head from dealing with the alleged misconduct as a disciplinary matter under this section.”

Breach of common law principles of procedural fairness

25 Ms Waqa submitted that she was not afforded procedural fairness, in particular by not being given an opportunity to make submissions, when Ms McGregor decided to take remedial action in relation to Ms Waqa in early 2007. It was submitted that Ms Waqa has an inherent right to procedural fairness where a decision would affect her rights and interests as an employee, including by affecting her reputation and jeopardizing her livelihood.

26 Section 22H of the Act provides for certain matters and procedures where disciplinary action or remedial action is to be taken against a staff member. Definitions of these actions are provided in s 22D. It is clear that taking disciplinary action is a more severe intervention than remedial action. Disciplinary action can include dismissal of the staff member from the Government Service whereas remedial action is focussed on improving the work environment and work performance by implementing certain intervention strategies. Remedial action is focussed on helping a staff member; disciplinary action is focussed on reprimanding a staff member.

27 Section 22H(3) specifically provides that when disciplinary action is taken with respect to a member of staff under s 22H, the staff member must be given an opportunity to make a submission in relation to the disciplinary action. It gives the employee the right to be heard before adverse action is taken against them. This subsection is at odds with the submissions made by Ms Waqa that procedural fairness must be afforded when remedial action is to be taken against a staff member. If Parliament had intended procedural fairness to be afforded to a staff member prior to remedial action being taken, it could have included such a provision. Further, if procedural fairness were to be provided as an inherent right prior to remedial action, then why would there be a need to specifically provide for such a right in relation to disciplinary action?

28 It is my view that there is no inherent right to procedural fairness prior to remedial action being taken. Remedial action is intended to help the staff member; it does not affect the rights and interests of a staff member, nor does taking such action affect a staff member’s reputation or livelihood. Taking remedial action does not deprive Ms Waqa of some right or interest or the legitimate expectation of a benefit [see Kioa v West (1985) 154 CLR 550 at 582 per Mason J (as his Honour then was)]. This ground of review must fail.

Breach of procedural fairness through non-compliance of Guidelines

29 Ms Waqa submitted that there was a breach of procedural fairness through non-compliance with guidelines in relation to Ms McGregor’s decision to implement remedial action with Ms Waqa in early 2007.

30 Part 4.2 of the Guidelines for the Management of Conduct and Performance (“the Guidelines”), under the heading “Procedural Fairness”, provides:

“A fundamental rule of procedural fairness is that a person be advised of the allegations against them and have an opportunity to reply to them.
This rule in relation to allegations of misconduct is reflected in section 93D and 93F of the Teaching Service Act 1980, section 22F and 22H of the Technical and Further Education Commission Act 1990 and section 30 and 32 of the Education (School Administrative and Support Staff) Act 1987. The procedural guidelines are to ensure that an officer or permanent employee:
• to whom an allegation of misconduct relates is to be advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken;
• must be given an opportunity to respond to the allegation; and
• must be provided with a subsequent opportunity to make submissions in relation to disciplinary action that the decision maker is considering taking.

Further, the guidelines give an opportunity for the officer or permanent employee to request a meeting with the decision maker prior to a final decision on the action to be taken.”

31 The guideline provides that when an allegation of misconduct is made against an employee the employee is to be advised in writing of the alleged misconduct, made aware that the allegation may lead to disciplinary action being taken, and be given an opportunity to respond to the allegation. Where disciplinary action is being considered, the employee must be provided with a subsequent opportunity to make submissions. Finally, the guideline provides that the employee is to be given an opportunity to meet with the decision maker prior to a final decision being taken.

32 The allegations of misconduct that Ms McGregor acted upon in deciding to implement remedial action with Ms Waqa are summarised in the memorandum of Geoff Baldry dated 12 December 2006. The memorandum states:

“Having regard to:

- Ms Field’s unsuccessful attempts to informally performance manage Mhairi
- Ms Felix’s advice and her decision that she could no longer provide coaching, and
- The language used by Mhairi’s [sic] in her further appeal, which appears to reinforce that she remains unaware of both what Ms Field was trying to achieve in performance managing her, as well the behaviours that were causing concern


I am concerned that there does not appear to have been any improvement in Mhairi’s performance, at least having regard to her behaviours toward staff.

In the circumstances I believe further, more formal, action is required to address these concerns.”

33 The memorandum continues:

“To my mind, Mhairi’s behavioural problems are issues that the guidelines treat as allegations of misconduct. The issues surrounding these problems have now been independently investigated on two separate occasions. Accordingly, I do not see any purpose being served by further reviews or investigations, nor do I see the matter being a disciplinary one at this stage. The guidelines do provide for the implementation of remedial action in cases of allegations of misconduct, and a determination that misconduct has occurred does not have to be made for remedial action to be imposed by a decision maker.
Accordingly, I recommend that remedial action be implemented to address Mhairi’s behavioural concerns, including formal counselling and issuing of a warning.”

34 The “behavioural problems” raised in the memorandum relate to matters that had been discussed at some length, over a number of periods, with Ms Waqa. A meeting between Ms Field, Ms Waqa and Malcolm Ogg on 3 August 2005 was held specifically to discuss these matters. At the meeting Ms Field raised numerous concerns in relation to Ms Waqa’s classroom management, issues with staff, and team communication. Ms Waqa was well aware of the complaints made against her and was provided, over a number of occasions, with the opportunity to make submissions in relation to these complaints. Furthermore, two independent investigations had been conducted into these matters. Ms Waqa was aware that the investigations were taking place and she was provided with the opportunity to provide input into the process.

35 In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ concluded at [37]:

“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs . A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

36 It cannot be said that the conduct that founded Ms McGregor’s decision to implement remedial action would have come as a surprise to Ms Waqa. There had been a number of meetings, correspondences, and reviews over almost a two-year period throughout which Ms Waqa was provided with ample opportunity to be involved in the decision making process. Ms Waqa was afforded procedural fairness throughout this process. Having a decision maker come to a decision, which does not accord with views of Ms Waqa, does not in itself indicate that Ms Waqa was denied procedural fairness. There was no practical injustice occasioned to Ms Waqa. In my view she was not denied procedural fairness. This ground of review must fail.

Error of Law

37 Ms Waqa submitted that in order for s 22H to be enlivened, and to thereby implement remedial action, the decision maker must find that a member of staff has been guilty of misconduct. It was submitted that it would be an error of law for the decision maker to implement remedial action before a finding of misconduct had been made.

38 It is plain from the wording of s 22H(1) that a mere allegation of misconduct is sufficient to enliven the implementation of remedial conduct under s 22H(1)(b). Section 22D provides definitions for Part 6A of the Act. Section 22D(2) provides that:

“In this Part, a reference to an allegation that a member of staff may have engaged in misconduct includes a reference to the appropriate Division Head being made aware, or becoming aware, by any means that the staff member may have engaged in misconduct.”

39 Ms McGregor was the Division Head at the relevant time. She received the memorandum dated 12 December 2006 from Mr Baldry that made the allegation of misconduct. Having received the allegation of misconduct, it was open to Ms McGregor to implement remedial action. This ground of review must fail.

40 Ms Waqa lost no opportunity to advance her case. In my view Ms Waqa was afforded procedural fairness., There was no error of law. The claim brought by Ms Waqa fails. The amended summons filed 6 February 2008 is dismissed.

41 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

The Court orders:

(1) The amended summons filed 6 February 2008 is dismissed.

(2) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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