Details 

Created: 18 September 2019

The Full Bench has unanimously dismissed an appeal against a discretionary decision of the Commission that found that the dismissal of a teacher for substandard performance was not unfair. For an appeal against a discretionary decision to be made out it must be shown that there was an error in the learned Commissioner's decision-making.

The Full Bench considered five grounds of appeal raised by the teacher and found that none of them had been made out.

The Full Bench first found that it was open to the learned Commissioner to conclude that the teacher's performance had been correctly assessed. The Full Bench reached this conclusion after it noted that:

1. the Teacher Registration Board levels of Provisional Registration and Full Registration were directly linked to the "Graduate" and "Proficient" performance measures administered by the Australian Institute for Teaching and School Leadership (AITSL).
2. it was open to the learned Commissioner to find that the teacher's performance was substandard.
3. the appellant complained that the respondent failed to call an important witness at first instance. The Full Bench said that the appellant knew that the witness was not going to be called and never raised an issue or requested to have this witness called.
4. the learned Commissioner did not need expertise or qualifications in the particular subject matter when he heard and considered the evidence.
5. a report into the particular school by an expert review group which was issued before the appellant taught at the school was not relevant.

Secondly, the Full Bench held that the learned Commissioner was correct to find that the teacher had had many opportunities to know and understand the issues about his performance and received a significant amount of support to improve. Any procedural unfairness in the performance management process occurred early on and had not been raised as an issue by the appellant. The Full Bench added that even if this ground was established, it would not be significant enough to uphold the appeal.

Any alleged inconsistency between the oral evidence and the data, when put into context and weighted by the learned Commissioner, was found by the Full Bench as not being significant enough to cause the decision to be overturned. The Full Bench added that the weight given to the evidence at first instance is a part of the discretion afforded to the learned Commissioner.

In a fourth ground, the Full Bench held that the learned Commissioner had considered the evidence of assistance given to the teacher and if there was any improvement in his classroom's behaviour and found that any change in the teacher's performance was not enough to bring him to a satisfactory level.

A final ground of appeal challenged the description of a witness as an expert. The Full Bench determined that the witness was an experienced maths teacher and qualified AITSL assessor who was an expert in assessing performance against the relevant performance measures, even though he had no training in substandard performance.

The Full Bench noted that further issues raised by the appellant at the hearing did not directly relate to the grounds of appeal and commented that for evidence of staff turnover to be considered, there needed to be a clear link between the issue of staff retention and the teacher's performance.

The decision can be read here.