Zechner, Marlies v Department of School Education

[1997] FCA 1552

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 4873 of 1995

BETWEEN:

MARLIES ZECHNER

Applicant

AND:

DEPARTMENT OF SCHOOL EDUCATION

Respondent

JUDGE	WILCOX J
DATE:	9 DECEMBER 1997
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  This is an application for review of a decision by a Judicial Registrar upholding the claim of Marlies Zechner that her employment by the Department of School Education was terminated in contravention of Division 3 of Part VIA of the Industrial Relations Act 1988 (now the Workplace Relations Act 1996). The Judicial Registrar ordered reinstatement. At the hearing of the review, additional oral evidence was tendered. I think it casts new light on the issues.

The central issue in the case is whether the Department had a valid reason connected with Ms Zechner's conduct or performance or the Department's operational needs for terminating her employment; specifically, in the context of the evidence in this case, whether there was a reason for terminating Ms Zechner's employment because of her insufficient competence as a teacher.  However, in considering that issue, it is necessary to bear in mind the requirement of procedural fairness embodied in s 170DC of the Act.  Accordingly, the inquiry is limited to the matters that were particularised in the notice of charge and suspension that was served on Ms Zechner on 18 April 1994.

Those charges included two charges arising out of Ms Zechner’s failure to comply with a direction to return an item of Departmental property.  As I indicated to counsel, I would not regard those breaches of discipline as warranting termination.  There seems to be no doubt there was a failure to comply with the direction.  This was not wise behaviour by Ms Zechner, but it is fair to say the matter was not well handled by anybody.  I think her reaction was on the spur of the moment, under some stress.  Although she was wrong, it would not warrant termination of her employment. 

A more significant charge was that of inefficiency in the discharge of her duties as a teacher.  A number of particulars were set out; I need not state them.  They clearly raise Ms Zechner's competence, that is to say whether she had the skills needed by a high school classroom teacher and a personality that allowed her to so exercise those skills that her pupils underwent a meaningful educational experience.  The particulars also raised her interpersonal skills and relationships with students and teachers. 

In regard to all these matters, the evidence is unfortunately overwhelming.  I say “unfortunately” because I have considerable sympathy with Ms Zechner losing her job, particularly at her age.  No doubt, it will be difficult for her to find other employment.   It is also obvious she is a good person, highly motivated with high ideals.  Unfortunately, it is also clear she is not able to translate those qualities into effective teaching. 

Evidence was adduced at this hearing - although not before the Judicial Registrar - of problems Ms Zechner sustained at her previous school, Smith’s Hill High School, where she taught from 1984 until 1992.  This evidence came from Ms Ray Mitchell, who was English head teacher at Smith’s Hill High School from 1984 until early 1989 and was responsible for the English part of Ms Zechner's teaching load.  The other part involved History lessons.  I gather from Ms Mitchell's evidence it was a lesser proportion of Ms Zechner's work than the English classes.  Ms Mitchell is now Principal at Smith’s Hill High School, having been elsewhere during the interim period. 

After Ms Mitchell left Smith’s Hill in early 1989, the position of head English teacher was taken, on a temporary basis, by Paul Trickett.  He was sufficiently concerned about Ms Zechner's performance to prepare notes about it at the beginning of 1990 for the information of the incoming permanent appointee.

Both Ms Mitchell and Mr Trickett swore affidavits for the purposes of the review hearing and gave evidence yesterday.  They were cross-examined in some detail.  I was impressed with each of them.  They were fair.  I think they were not unsympathetic to Ms Zechner, but they also made it clear they have high standards of what is necessary for proper teaching and discipline in a high school.  In my view this is an appropriate approach.  The education of young people is too important for it to be acceptable for anybody to tolerate mediocrity in teaching.

The main point that struck me about the evidence of Ms Mitchell and Mr Trickett was its consistency with the evidence given in relation to Ms Zechner's performance at Kiama High School:  her lack of ability to control the classroom, her failure to give clear directions to her pupils, her idiosyncratic views about some aspects of student assessments and marking and her difficult relationships with colleagues.

I put weight on the Smith's Hill evidence because the suggestion was put to the Judicial Registrar, and gained some acceptance by him, that people at Kiama High School had become antagonistic towards Ms Zechner and “ganged up” on her.  I see no basis for such a conclusion, especially when one finds evidence of similar problems at her previous school.

In relation to Kiama High School, evidence was given to the Judicial Registrar by the Principal, Mr Mark Faulks, the History head teacher, Mr John Shoebridge, the English head teacher, Mr John Watson, and other teachers.  Each of the three named senior teachers sat in on Ms Zechner’s lessons from time to time.  I do not propose to go through the detail of their evidence.  It is sufficient to say each spoke of Ms Zechner’s aggressive attitude towards students, her lack of ability to control classes, the lack of clarity in instructions she gave to her students and the little progress, if any, in learning that seemed to occur in her lessons.

It is also interesting to compare that evidence with the evidence given yesterday by Mr Graham Blunden, who is now retired but was at the time Cluster Director of a number of schools, including Kiama High School.  Mr Blunden was asked by the Director, Personnel, of the South Coast Region of the Department to attend Kiama High School for the purpose of investigating Ms Zechner's performance in the light of an improvement program she had undertaken earlier in 1993.  He sat in on several classes.  He spent time talking to Ms Zechner and other people.  He formed a negative impression of her competence and performance; undoubtedly his report played a part in the later decision to charge her with inefficiency.  Mr Blunden gave detailed evidence as to his observations.  That evidence is consistent with the evidence given by other people about Ms Zechner's performance.

I see no reason to doubt what Mr Blunden said.  I thought Mr Blunden was trying to be fair to Ms Zechner.  He seems to have done everything he could to investigate complaints she made to him about matters that concerned her.  He addressed the issues about her teaching competence, as one would expect of a person of his experience, in a knowledgeable and careful way.  On his evidence, I have to conclude that Ms Zechner was not an effective teacher.  It seems students were wasting their time in her class, at least for significant proportions of time.

Both before the Judicial Registrar and before me, Ms Zechner criticised the Kiama School “executive”, as it is called - the Principal and the two subject masters - for their lack of support of Ms Zechner.  I do not accept that criticism.  When the “executive” realised Ms Zechner had teaching problems, in early 1993, an improvement program was put in hand.  An effort was made to identify the nature of her problems and to suggest ways of overcoming them.  The relevant officers held a series of meeting with Ms Zechner and a representative of the Teacher's Federation.  Finally, on 5 April 1993, a document was produced that set out areas of concern and positive suggestions for overcoming those concerns.  Because some weeks had been occupied in finalising the program, there was then a period of only two months before the program was projected to end, at about the end of May.  Accordingly, Mr Faulks suggested to Ms Zechner an extension for one month.  She did not agree.  This was consistent with her attitude throughout the program:  there was no need for the improvement plan.  The evidence contains a copy of the improvement plan with notes in Ms Zechner’s handwriting.  Those notes are defensive in nature; they generally deny the existence of any problem.  That reaction is consistent with the attitude reported in the evidence of Mr Faulks, Mr Shoebridge and Mr Watson to conversations they had with Ms Zechner; when they suggested problem areas and made suggestions for improvement she said the suggestions were unnecessary.

It seems Ms Zechner did not appreciate the problems she had in the classroom or have an open minded willingness to address those problems.  She took the view she was an experienced and competent teacher, there was no problem, and anybody who suggested to the contrary was wrong.  I find it difficult to accept that everybody else was out of step.

In her evidence Ms Zechner said some of her pupils were ill-disciplined and disruptive in class.  I have no doubt that is true.  However, as Mr Blunden pointed out yesterday, every teacher has some disruptive students.  Reference was made to a system adopted at Kiama High School for putting unduly disruptive students on disciplinary levels; apparently scores go up to five.  These levels were reviewed every fortnight.  Students go on the list, and off the list, and change ranking, according to their behaviour. 

It is clear  Ms Zechner had her share of listed students.  But one of the things Mr Blunden did when he visited the school was to check whether her share was significantly different from the overall proportion of listed students in the school.  He found the overall proportion varied from time to time, but it was about 14 to 15 per cent at the time he was looking at the problem.  Ms Zechner then had 16 per cent. Obviously, this difference is of no statistical significance.  Whilst I am sure Ms Zechner had some problem students, it is part of the job of a teacher, particularly at high school level, to be able to handle disruptive students.  No doubt it is regrettable this is a necessary part of the teaching task but it would be naive to suggest this is something outside the normal expectation and duty of teaching.

I see no reason for believing Ms Zechner was unfairly loaded with disruptive students.  Nor do I see any reason for believing she was unfairly loaded with classes at the lower end of the ability spectrum.  It is true that, in late 1993, she had more low stream classes than the average.  But this was because, at her own request, she had been relieved of her year 11 class at the end of first term that year.  She had great difficulty controlling her year 11 class and Mr Faulks changed the distribution of work so as to have somebody else take over this class.  Obviously it would be undesirable to disturb too many classes during the course of an academic year. 

The suggestion was put by Mr Gruzman, on behalf of Ms Zechner, that the improvement program undertaken in 1993 was a sham and the Department was therefore in breach of its own guidelines and a term of his client's contract of employment.  I do not accept this suggestion.  I think the improvement plan was undertaken in good faith and that a considerable effort was made by Mr Faulks and the two subject masters, with assistance from the Teachers Federation, to develop an improvement plan tailored to Ms Zechner's particular needs.   Its failure is substantially attributable to her own attitude. 

Mr Gruzman argues the Department could have provided extra resources.  I am not clear what additional resources could have been provided, but I do not think there was a resource problem.  The teaching plan set out a number of common sense suggestions as to things Ms Zechner might do, or attempt to do, in order to improve her performance.  Few, if any, of these suggestions were taken up.  Ms Zechner took the view she did not need to change, she was already a competent teacher.

Ms Zechner was asked to attend an in-service training course dealing with problems of different abilities in the classroom.  She attended that course.  Mr Gruzman said she could have been supplied with videos and other teaching aids.  No doubt that is so, presumably such resources were available.  But Ms Zechner did not ask for access to any videos.  Having regard to her negative attitude, it is perhaps not surprising other people did not consciously press such aids upon her.

In the end, I think, the attack on the school must fail.  The case really comes down to whether or not I should accept that Ms Zechner was right, and everybody else was not only wrong but acting in bad faith.  I cannot accept that view of the matter at all.  In my opinion the answer to the central question in the case, Ms Zechner's ability as a teacher, must be unfavourable to her. 

A secondary matter, although one not unimportant in a community such as a school, is Ms Zechner’s relationship with other staff members.  I need not go into this in any detail other than to say it is obvious that those who had to deal with her professionally often encountered problems.  She did not pull her weight in many team efforts.  Perhaps this might have been forgiven if she was very competent in the classroom, but her lack of co-operation must have added to the burden on her supervisors at a time when they also had problems with her classroom performance. 

For me, the central issue is what sort of  service the students obtained from Ms Zechner.  Schools exist for the students, not the teachers.  If Ms Zechner was not effective in teaching students, there was no place for her as a classroom teacher.  Once it was determined this was the position, in my view the Department was fully justified in terminating her employment.  Indeed, its duty to the students required it to take that action.  Whatever personal sympathies there may be for Ms Zechner - and I repeat, I do have those sympathies - I think the Department took the only decision available to it. 

I set aside the orders made by Judicial Registrar Walker on 22 August 1997. In lieu thereof, I order that the application under s 170EA of the Industrial Relations Act be dismissed.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            9 December 1997

Counsel for the Applicant:	A Gruzman
Solicitor for the Applicant:	Boskovitz & Associates
Counsel for the Respondent:	S Benson
Solicitor for the Respondent:	Crown Solicitor
Date of Hearing:	9 December 1997