100318997

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MARGARET WEBB

APPLICANT

 -v-

 DIRECTOR GENERAL DEPARTMENT OF EDUCATION

RESPONDENT

CORAM COMMISSIONER S WOOD

DELIVERED FRIDAY, 9 JANUARY 2004

FILE NO APPLICATION 347 OF 2003

CITATION NO. 2004 WAIRC 10441

_______________________________________________________________________________

Catchwords Reduction in classification – Penalty imposed on deputy principal – Allegations of sub standard performance – Statutory scheme in relation to discipline - procedural fairness –Application dismissed – Industrial Relations Act 1979 (WA) s 23A & 29(1)(b); Public Sector Management Act 1994 (WA) s 78 & s 79

Result Application dismissed

Representation

Applicant Mr M Farrell as agent

Respondent Ms K Jack and with her Mr J Steadall

_______________________________________________________________________________

Reasons for Decision

1         This is an application made pursuant to s.78(2) of the Public Sector Management Act 1994 (“the PSMA”) seeking redress for Ms Margaret Webb, previously a deputy principal at the Cable Beach Primary School, against the decision by the Director General Department of Education and Training to reduce her own classification to that of class room teacher level 2.3.  This reduction took effect on 10 March 2003 and since that time Ms Webb has been able to teach at Looma Remote Community School.  The application says as follows:

“To appeal under s.29b of the Industrial Relations Act by virtue of the provision of s.78(2) of the Public Sector Management Act 1994, for orders to reverse the decision of the respondent to reduce the classification of the applicant.” 

2         The schedule to the application is as follows:

“1. In a letter dated 15 January 2003 the Director-General of Education advised the applicant that he was about to impose a finding and intended penalty because of alleged substandard performance. [attachment 1]

2. The applicant responded in a letter dated 7 February 2003. [attachment 2]

3. By letter dated 24 February 2003 the Director-General of Education reduced the classification level of the applicant from Deputy Principal (3.3), to that of a classroom teacher (2.3). [attachment 3]

4. The applicant maintains that throughout the process she was denied natural justice.

5. The decision of the Director-General of Education is wrong.”

3         The matter was brought on for conference on 13 May 2003 and could not be settled in conciliation.  The matter was then listed with the consent of the parties for 16 and 17 September 2003 in Perth as the location and timing was convenient to both parties.  On 29 August 2003 the applicant filed an outline of submissions which state as follows:

“1. Ms Webb was not afforded natural justice in the process of evaluation of her alleged unsatisfactory performance by the Principal of Cable Beach Primary School in that:

• Despite there being a performance improvement plan there was no regular review of the plan.

• There was little discussion throughout the evaluation process.

• The focus of the Principal’s assessment only concerned issues detrimental to Ms Webb.

2. In conducting the review of Ms Webb’s performance the Principal formed a view that Ms Webb had not demonstrated satisfactory performance prior to giving Ms Webb the opportunity to respond to a number of incidents.

3. Ms Webb’s responses were not discussed by the Principal with Ms Webb to either clarify or provide feedback.

4. There was not an objective assessment by the Principal of the performance improvement plan agreed at the commencement of the process.

5. The investigation by Mr Yates was deficient in that he was guided by a flawed process.

• Mr Yates’ conclusion that the process “appeared procedurally fair” lacks rigor in that in that there should have been an objective assessment as to the fairness of the process.

• Mr Yates adopted the confirmation by Ms Saunders that the statutory requirements had been met instead of making his own determination.

• Not all matters considered by Mr Yates in his determination were put to Ms Webb.

• Some issues were put to Ms Saunders and not to Ms Webb.

• One issue was put to Mr Laurie Andrew and not Ms Webb.

• Mr Yates adopted the view of Mr Andrews with regard to the process and the officers involved.

6. No credit was given for any demonstrated improvement whatsoever.

7. It is because of the above flaws in the process, in particular the denial of natural justice that Ms Webb seeks an order to quash the decision of the Director General of Education and Training.”

4         The parties at hearing submitted a statement of agreed facts [Exhibit A1].  These agreed facts are as follows:

1. Ms Margaret Webb commenced employment as a Level 1 teacher on 9 April 1980 at Kalumburu Remote Community School until 7 September 1980.

2. Ms Webb’s service history following her initial appointment follows:

08/09/1980 - 31/01/1983 Level 1 Teacher at North Tom Price Primary School

01/02/1983 - 31/01/1988 Level 1 Teacher at La Grange Remote Community School

01/02/1988 - 30/01/1989 Level 1 Teacher at Sorrento Primary School

31/01/1989 - 28/01/1991 Level 1 Teacher at Fitzroy Crossing District High School

29/01/1991 - 31/12/1991 Acting Level 3 Principal at Glen Hill Primary School

01/01/1992 - 31/12/1993 Level 3 Principal at Glen Hill Primary School

01/01/1994 - 31/01/1995 Level 3 Principal at Jungdranung Remote Community School

01/01/1996 - 31/12/1997 Level 3 Deputy Principal at Fitzroy Crossing District High School

01/01/1998 - 09/03/2003 Level 3 Deputy Principal at Cable Beach Primary School

10/03/2003 - Current Level 2 Teacher at Looma Remote Community School

3. On 31 January 2001 Ms Linda Saunders commenced as Principal of Cable Beach Primary School.

4. Ms Saunders provided a letter dated 28 January 2002 to Ms Webb prior to the commencement of the 2002 school year.

5. Ms Webb received a letter dated 3 May 2002 from Ms Saunders.

6. Ms Webb was Acting Principal whilst Ms Saunders was on leave from 26 June 2002 to 21 July 2002.

7. Ms Webb received a letter dated 26 July 2002 from Ms Saunders.

8. Ms Saunders handed a letter to Ms Webb on 5 August 2002.

9. Ms Webb furnished an undated response, which was received by Ms Saunders at 8:30am on 8 August 2002.  A meeting was held at 9:00am same date and attending were Ms Saunders with support person Dean Finlay from District Office, and Ms Webb with nominated Union support person Mr Herzog (on speaker phone).  Meeting suspended at the request of Mr Herzog and next meeting scheduled for 9 August 2002.

10. By letter dated 15 August 2002 to Ms Saunders, Ms Webb requests withdrawal of letter dated 5 August 2002.

11. Ms Webb received a letter dated 19 August 2002 from Ms Saunders.

12. On 26 August 2002 an Unsatisfactory Performance Meeting was held with Ms Webb, Ms Saunders, Mr Herzog (Telephone) and Mr Finlay present.

13. On 3 September 2002 the first review meeting took place with Ms Webb, Ms Saunders, Mr Herzog (telephone) and Mr Finlay present.  The purpose of the meeting was to review the plan, review weekly activities, establish and review strategies and discuss support.

14. Ms Saunders changed the review meeting to 16 October 2002 by written correspondence dated 20 September 2002.

15. By letter dated 16 October 2002, Ms Saunders advised Ms Webb that after monitoring and reviewing her performance from 26 August 2002 to 15 October 2002, that Ms Webb had not demonstrated satisfactory performance. Ms Webb was given copies of specific incidences numbered 1-15 and provided with an opportunity to respond.  All incidences contained a description of the incident, the area of concern, the recommendations for improvement and an area for Ms Webb to respond.

16. By memorandum to Ms Saunders dated 17 October 2002, Ms Webb requested an extension to address incidences after her computer malfunctioned.

17. Mr Laurie Andrew, District Director sends letter to Director General dated 22 October 2002 informing of the report on Ms Webb’s unsatisfactory performance.

18. On 22 October 2002, the Ms Saunders received an undated letter from Ms Webb furnishing a response to the performance incidences, in reference to the letter dated 16 October 2002.

19. By letter dated 22 October 2002, Ms Saunders advised Ms Webb that after consideration of her response, she had not demonstrated satisfactory performance and that a recommendation to the Director General to investigate her performance will be made.

20. By letter dated 12 November 2002, Ms Webb writes to the Director General regarding the 22 October 2002 letter.

21. By letter dated 22 November 2002, the Director General authorised an independent investigator, Murray Yates, to investigate and report on the allegations of substandard performance raised against Ms Webb

22. By letter dated 22 November 2002 the Director General advised Ms Webb that an independent investigator had been authorised to investigate the allegation of substandard performance raised against her.

23. On 24 December 2002, the independent investigator submitted a report and findings to the Director General.  The investigator formed the view that the performance of Ms Webb was substandard, in accordance with s 79 of the Public Sector Management Act 1994, and that the process has been procedurally fair.

24. By letter dated 15 January 2003, the Director General advised Ms Webb:

• that having received and considered the report of the independent investigator and Ms Saunders, it had been determined that her performance was substandard within the meaning of section 79(1) of the Act.

• that he intended to impose an action of a reduction of classification for Ms Webb from deputy principal (Level 3.3), to that of a classroom teacher (Level 2.3).

• a copy of the report was provided and the opportunity to furnish a written submission in relation to either the report and/or intended penalty.

• if she wished to place any further matters before the Director General she should respond within 10 working days.

25. By letter dated 24 January 2003, Mr Peter Denton, Manager Complaints Management Unit (CMU) advised Ms Webb to commence work for term 1, 2003 at the Kimberley DEO, until such time that the matter of unsatisfactory performance had been finalised

26. By letter dated 4 February 2003, Mr Denton sent clarification to Ms Webb regarding comments and terminology used in the report by Murray Yates.

27. Ms Webb furnished a written response on 7 February 2003, through the SSTUWA, to the letter from the Director General dated 15 January 2003, requesting a review of the decision that her performance is substandard.

28. By letter dated 24 February 2003, the Director General advised Ms Webb that:

• after considering her response to the matter, her employment classification would be reduced from deputy principal (Level 3.3), to that of a classroom teacher (Level 2.3) effective from 10 March 2003, pursuant to section 79(3) of the Act.

• she has a right to appeal the decision to the Industrial Relations Commission.

• confidential support services were available for her use.

29. Ms Webb commenced as a Level 2 Teacher at Looma Remote Community School 10 March 2003.

LEGISLATIVE

5         Section 78 of the PSMA is contained in part 5 of that Act headed substandard performance and disciplinary matters.  Section 78 provides for appeal and reference.  Subsection (2) reads as follows:

“(2) Despite section 29 of the Industrial Relations Act 1979, but subject to subsection (3), an employee who — 

 (a) is not a Government officer within the meaning of section 80C of that Act; and

 (b) is aggrieved by a decision referred to in subsection (1)(b),

 may refer the decision mentioned in paragraph (b) to the Industrial Commission as if that decision were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.”

6         Ms Webb is not a government officer for the purposes of the Industrial Relations Act, 1979 (“the Act”). Section 80C of that Act makes it plain that the definition of a government officer does not include a teacher and hence is not subject to the Public Sector Arbitrator.  Section 78(2)(b) refers to subsection 1(b) of the PSMA.  For the purposes of this matter the decision taken within 1(b) is the decision under s.79(3)(b).  Section 79(3) of the PSMA reads as follows:

“(3) Subject to subsections (4), (5) and (6), an employing authority may, in respect of one of its employees whose performance is in the opinion of the employing authority substandard for the purposes of this section — 

 (a) withhold for such period as the employing authority thinks fit an increment of remuneration otherwise payable to that employee;

 (b) reduce the level of classification of that employee; or

 (c) terminate the employment in the Public Sector of that employee.”

7         Clearly the matter before the Commission is a decision by the Director General to reduce the level of classification of Ms Webb. 

8         On 6 August 2002 my fellow Commissioner, Kenner C issued a decision in Geoffrey Johnston v Ron Mance, Acting Director General of Department of Education WAIG 83 WAIG 1553, whereby the parties sought declaration by the Commission in respect of a number of jurisdictional questions.  I respectfully agree with Kenner C’s reasoning in that judgment.  Specifically Kenner C says: 

“I adopt this approach for the purposes of this matter.  In my opinion, the reference to s 29(b) in s 78(2) of the PSMA must be regarded as a drafting or printing slip, and should be read as s 29(1)(b), which in my opinion, would accord with the intention of the parliament when the PSMA was enacted.” 

This in my view is clearly the case and for the purposes of the matter before me is a matter pursuant to s.29(1)(b)(i) of the Industrial Relations Act being a claim of unfair dismissal and not a claim for denied contractual benefits pursuant to s.29(1)(b)(ii) of the Industrial Relations Act.  This point is not obvious by the Act however, seemingly s.29(1)(b)(i) could only operate in respect of a matter within s.79(3)(c) of the PSMA being a decision to “terminate the employment in the Public Sector of that employee.”  It may be in some context seen that a decision within s.79(3)(b) namely, a decision to “reduce the level of classification of that employee” may be seen somehow as a denied contractual benefit by virtue of a breach of some contractual obligation.  However, I consider it unlikely that this was what was intended.  It would appear more likely that the intention of the Act was to apply s.29(1)(b)(i) to the provision of s.79(3)(b) and treat the reduction in the level of classification as if the employee had been dismissed from the earlier and superior classification.

9         The applicant at hearing was questioned by the Commission as to the remedy sought.  This is not apparent in the application.  Other than the applicant seeks the Commission to “reverse” the decision of the Director General.  At hearing the applicant sought that the Commission quash the decision of the Director General.  This is the remedy apparent in matters of appeal before the Full Bench as per s.49(5)(b) of the Act.  However, the remedies that the Commission may apply in matters of unfair dismissal are contained within s.23A of the Act.  These remedies are:

“(1) The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.

(2) In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —

 (a) at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and

 (b) had been so employed for a period of less than 3 months.

(3) The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

(4) If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re‑employ the employee in another position that the Commission considers —

 (a) the employer has available; and

 (b) is suitable.

(5) The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —

 (a) an order it considers necessary to maintain the continuity of the employee’s employment;

 (b) an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.

(6) If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.

(7) In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —

 (a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal;

 (b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and

 (c) any other matter that the Commission considers relevant.

(8) The amount ordered to be paid under subsection (6) is not to exceed 6 months’ remuneration of the employee.

(9) For the purposes of subsection (8) the Commission may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.

(10) For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.

(11) An order under this section may require that it be complied with within a specified time.

(12) The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.”

10      The parties were requested by the Commission to make submission as to the powers of the Commission to effect a remedy in this application.  The applicant seeks an order to quash the decision of the Director General of Education and Training.  The order in the applicant’s view would include an order to reinstate Ms Webb to the position of Deputy Principal of Cable Beach Primary School and be paid an amount of money being the difference in salary rates between the levels.  This would reinstate the applicant to her former position without loss.  Therefore, in the applicant’s mind, s.23A of the Act must be followed and provides that Ms Webb is to be reinstated to her Level 3.3, as the Deputy Principal of Cable Beach Primary School, without loss of pay from 10 March 2003.  The respondent argues that the remedies are limited to those in s.23A of the Act and that reinstatement is impracticable.  They submit that if the Commission finds for the applicant then the applicant should be re-employed as a Level 3 Deputy Principal, the location to be determined.

11      There are aspects of this matter which do not seem to fit comfortably within the s.23A of the Act.  Similarly a decision under s.79(3)(a) of the PSMA would not comfortably fit the remedies provided in s.23A of the Act.  With this in mind I consider that the provisions taken together must logically be read so as to provide for the Commission to simply, if the merits of the application warrant such action, quash the decision of the Director-General (as per a normal appeal process) or to effect any of the remedies as provided for under s.23A of the Act.  I note that the prime remedy under s.23A is reinstatement and subsections 3 and 5 enable the Commission to ensure that the employee concerned has not lost remuneration in the period between the decision of the employer and the decision of the Commission.  This would seemingly lead to the same result as a quashing of the decision.  However, this is not the only remedy provided and it is clear in my view that the provisions when taken together do not in any way limit the remedies available under s.23A.  This could mean simply that compensation is ordered or re-employment in another position, or any other ancillary or incidental order that the Commission thinks necessary.

12      Kenner C in the Johnston decision deals with this matter more eloquently and states: 

“Given that s 78(2) is a deeming provision enabling individual employees to refer the prescribed matters to the Commission, in my view, those matters are not limited to claims of unfair dismissal or contractual entitlements.  This construction is also supported by the use of the words “Despite section 29 of the Industrial Relations Act 1979” in the introductory part of ss 78(2) and (3), to the effect that the matters able to be referred are not limited to those specified in s 29(1)(b)(i) and (ii) of the Act.” 

He then addressed the question

“what approach should be taken to a referral to the Commission of a matter pursuant to section 78(2) PSMA?  In particular is it the case that the Commission may only interfere with the decision of the employer where it is considered that the employer acted unreasonably or may the Commission review the decision de novo and substitute its own view?” 

Kenner C states:

“Whilst s 78(2) does not refer to an “appeal” to the Commission, it seems plain enough from the language in the section as a whole, that it is concerned with challenges to a decision taken by the employer in relation to which the employee is “aggrieved”.  Reference to “aggrieved” is made in s 78(1)(b) dealing with appeals to the Public Service Appeal Board, and also in ss 78(2)(b), (3) and (4) dealing with referrals to the Commission.  In my opinion, given the nature of the proceeding contemplated by s 78 of the PSMA, a matter referred to the Commission pursuant to s 78(2) by an aggrieved employee from one of the nominated decisions, is to be dealt with in the same manner as a matter referred under s 78(1) of the PSMA.  That is, I do not consider that such a proceeding ought to be regarded as an “appeal” in the strict sense, as that issue was discussed by the Full Bench in Milentis.  Nor is it the case in my opinion, that the Commission is limited to determining only the reasonableness of the employer’s decision.

In other words, depending upon the nature of the challenge to the decision under review, such a proceeding may involve the Commission re-hearing the matter afresh or it may only be necessary to consider the decision taken by the employer “on such record of the proceedings below as comes up to it, supplemented or not by evidence”: Ormsby.  It would seem to be the case therefore, that consistent with the reasoning of the Full Bench in Milentis, the decision of the employer is not to be totally disregarded in the Commission hearing and determining the matter.

Furthermore, it also seems to me that if the referral to the Commission pursuant to s 78(2) of the PSMA involves an allegation of harsh, oppressive or unfair dismissal, then, consistent with the referral of such a matter to the Commission pursuant to s 44 of the Act, s 23A should apply to such matters in terms of the relief to be granted.  Such a matter, although referred to the Commission under s 78(2) of the PSMA, would nonetheless constitute “a claim of harsh, oppressive or unfair dismissal” for the purposes of s 23A of the Act and any relief to be granted.  In my opinion, it would be incongruous if this were not to be the case, as claimants commencing proceedings under ss 29(1)(b)(i) and 44 would be entitled and limited to the remedies under s 23A if successful, whereas those under s 78(2) of the PSMA would not be so limited, for example, as to matters of compensation for loss and injury.  Given the scheme of the Act in relation to such matters, I do not think parliament could have intended such an outcome.  Different considerations may apply of course in cases where it is alleged that a dismissal was unlawful, for example, on the grounds of a failure by the employer to comply with a mandatory statutory requirement.”

“Therefore, matters referred to the Commission pursuant to s 78(2) of the PSMA are not restricted to consideration by the Commission of the reasonableness of the employer's conduct, but the Commission may review the employer's decision de novo, as the circumstances warrant and determine the matter afresh and substitute its own decision for the employer's decision if that is appropriate.”

I respectfully agree with the reasoning of Kenner C.

13      I cover this ground also because this matter involves a finding on behalf of the employer of sub-standard performance by Ms Webb and her subsequent reduction in classification.  Ms Webb was removed from her position at that time, not her employment.  The PSMA requires that the employer follow a number of steps when dealing with such a question.  I do not recite the provisions as it is not necessary to do so.  The applicant does not allege that these steps were not followed and hence the decision of the employer may somehow be unlawful.  The applicant instead alleges that Ms Webb was denied procedural fairness in a number of ways.  The applicant’s case is based solely on these grounds.  Matters that come to the Commission under s.29(1)(b)(i) often give rise to the considerations expressed in the decision of the Industrial Appeal Court in Undercliffe Nursing Home –v- Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch 65 WAIG 385; and Shire of Esperance –v- Peter Maxwell Mouritz 71 WAIG 891.  Put simply a broader consideration applies in determining the fairness of the matter and issues of procedural unfairness may not of themselves be sufficient to warrant an overturning of an employer’s decision by the Commission.

EVIDENCE

14      Ms Webb says that she acted as principal of the school from 26 June to 21 July 2002.  Her duties in that time included those of principal plus her “students at educational risk” brief which she performed as deputy principal.  There was a red card system which operated for the 127 of 475 student population who were identified as students in the educational risk category.  She says that this task comprised 0.6 of her brief in terms of time.  She says the principal Ms Saunders had no issues with her performance prior to her acting as principal.  She says Ms Saunders indicated to her “she wanted me to take up the principalship to prove to the rest of the staff that she had total confidence in me” (Transcript p.18).  She says Ms Saunders had also not given her any indication that her performance was unsatisfactory at the beginning of the year or prior to a letter sent to her on 3 May 2002.

15      On 26 July 2002 Ms Saunders handed Ms Webb a letter.  Ms Webb did not respond to the letter but responded to a subsequent letter of 5 August 2002, she says within two to three days.  She says Ms Saunders did not discuss her response with her.

16      Ms Saunders wrote to Ms Webb on 16 October 2002.  In that letter she states:

“Having monitored and reviewed your performance over the period of 26th August to the 15th October 2002, I wish to inform you that you have not demonstrated satisfactory performance.

In particular, I consider your performance remains unsatisfactory in the following areas: Interpersonal skills and professionalism, organisation skills, effective working relationships.”

 Attached to that letter were a series of incident reports, totalling 15 in all.  Ms Webb says that Ms Saunders had not gone through with her and discussed those incident documents prior to receiving that letter.  Ms Webb said that she responded to Ms Saunders letter on 22 October 2002.

17      Ms Webb says that a red card incident is where someone comes and advises administration that  a teacher urgently needs assistance with a student.  Then the principal or one of the deputies attends to the matter immediately.  The red cards involved about 10 to 12 of the most “pointy” children in the school who could cause this trouble.  Ms Webb says that she invariably had to handle most of the red cards because Mr Green’s office was inaccessible and in another block.  Hence the registrar and secretary would bring the matters straight to her.  She says she was the first port of call for a red card student.  This required her to drop everything and each red card generated about two to three hours of work.  Ms Webb says after her initial response on 22 October, Ms Saunders did not discuss her performance with her about the incidences.  She says that she handed a letter to Ms Saunders at 7:30am on 22 October and received a reply from Ms Saunders about 1:30 pm that day.  Ms Saunders came in and gave her the letter and said “I’m sorry to do this, Margie, to you.” And Ms Webb says Ms Saunders burst into tears.  In relation to incident 13 Ms Webb says that she discussed with Ms Saunders her approach at the time of the incident.  This discussion happened over a period of time as it involved a number of incidences of a child attacking another.  She says Ms Saunders did not discuss the matter with her after she received the incident report. 

18      Ms Webb received a letter on 22 November advising her that an investigator, Mr Yates, had been appointed to investigate her alleged substandard performance.  She says Mr Yates rang her and advised her that he was coming to Broome and she could talk to him about anything that she needed to.  She says the next time she spoke to Mr Yates was in the conference room at the Mangrove Hotel and he asked her to tell him her perspective.  She proceeded to read through the whole process of what had happened and put her case.  The interview went for about 4 hours and it was taped.  She says she spoke to Liz Parriman who advised her Mr Yates had indicated to her that he had given Ms Webb and Ms Saunders the right to furnish a list of people who had to be interviewed.  Ms Webb says she felt dumbfounded by this and felt that everything was going bad.  She rang Mr Yates and advised him what Ms Parriman had said.  She said “you did’nt give me that right” and Ms Webb says that Mr Yates replied “Don’t you dare tell me who to interview and how to do my job.  Who do you think you are?” (Transcript p.32).  She says that Mr Yates was rude to her and hung up.

19      Ms Webb says that in relation to the incidences Mr Yates simply made one comment and said, “well don’t you think you were inefficient” in relation to leaving a piece of paper on the photocopier.  Ms Webb replied that she was only human.  She says his manner shocked her as he struck her as a very polite professional person up to that point.  She says that Mr Yates did not ask her opinion on the procedures followed.  He did indicate to her that whatever she wanted to talk about they would talk about.

20      In Mr Yates’ report at item 4.4 it says:

“Ms Parriman’s observation and opinion is that Ms Webb does not always attain, and does not maintain the standard expected of a deputy principal”.

Ms Parriman was a teacher’s aide in the educational risk team.  Ms Webb says that Ms Parriman’s comments were not put to her when Mr Yates interviewed her.  Ms Webb says that Ms Parriman felt that she was out of her depth in the role because she had no educative or theoretical framework to make judgments about her performance.  Ms Webb complains that certain comments that Ms Parriman was alleged to have made were not put to her by Mr Yates.  Ms Webb says also that Ms Parriman later clarified in a statutory declaration to the Director General that she did not say that.  She says that Ms Parriman indicated to her that she told Mr Yates that Ms Webb likes to partake in alcohol two or three times a week.

21      Ms Webb says that Mr Yates’ report is also incorrect in that he indicated that Ms Parriman had been involved in the process at Ms Webb’s request.  Ms Webb says that Ms Parriman refused to be her support person because it was too difficult between Ms Webb and Ms Saunders.

22      In Mr Yates’ report at item 4.7 he refers to, “reports from Cable Beach Primary School about the intent of a number of teaching staff to walk out of the school if Ms Webb returns there in 2003”.  Ms Webb says this was not put to her.

23      Ms Webb with the assistance of the union representative, Mr Frank Herzog, signed off on a performance improvement plan with Ms Saunders.  Ms Webb says that she fulfilled the requirements of the performance improvement plan under continued counselling, including anger management by attending sessions with Sister Leone.  She says that Sister Leone advised her that she did not need to attend any more.  Ms Webb says that she asked Sister Leone to confirm that for her just prior to the date of hearing [Exhibit A2].  Ms Webb says that she also was required to and did give feedback to her line manager when dealing with students at educational risk.

24      In relation to the strategy “to revisit strategies for managing custodial or court issues for students” Ms Webb says Ms Saunders and she did not discuss strategies in their weekly meeting; they only discussed pressing issues concerning students.  In relation to developing guidelines for case conferences Ms Webb says she spoke to Ian Monger and Ann Lord and a document was developed.  Ian Monger was the district office psychologist.  Ann Lloyd was the acting psychology team leader at district office.  Ms Webb says that she would speak to Mr Monger daily about issues.  She says Mr Monger did not talk to her about her role being ineffective or inefficient at any time.  Ms Webb says that Ms Saunders was always welcome to attend the SAER team and she often used to duck in and out and lend her knowledge or support to a situation.  Ms Webb was to journal her activities regarding SAER and she says she did so for every incident with a student.  She would also do a yearly report on students.  Her document was an overview which was done twice a year.

25      Ms Webb says also that the item, “reschedule admin meetings, two per week” was done, however, Ms Saunders and her did not discuss issues of Ms Webb’s ineffectiveness or inefficiency but just issues to do with students.  Ms Webb says also that Ms Saunders was to document any accusations but this did not happen and Ms Webb says she did not even know about them.  Ms Webb says:

“she would tell me who - - “Four or five staff members said this, this, and this about you,” not who, when or where.  And I saw no documentation.” (Transcript p.52-53).

She says the process was to have one formal meeting per week and that did not occur.

26      Ms Webb says that during the monitoring period she received one instance of positive feedback from Ms Saunders regarding the handling of the behavioural problem with a little boy.  Ms Webb says that she would get on average four or five red cards a day and sometimes up to eight.  In relation to what happened with red cards Ms Webb says:

“You would drop everything that you were doing, go to the classroom, consult with the teacher, release the teacher and take the class if it was of such a nature.  If it was too - - if it was too hard for the teacher you would take the scenario yourself and remove the child into the admin area.  You would consult the parents.  You would consult with the teacher.  You would do research into the situation.  You would set up a behaviour modification plan in consultation with the parents, the team - - SAER, psych and other relevant experts depending on the issue.  If it was a severely disabled child you would have the paediatrician and the other support people so then you would, of course, be documenting the whole scenario and working with the teacher.” (Transcript p.55, 56-57).

27      Ms Webb says it was extremely stressful working with the situation.  She says parents were very happy with her performance in relation to the students at educational risk.  She says they trusted her.  Ms Webb says she does not recall any real complaints being put to her by Ms Saunders from any parents over the monitoring period.

28      Under cross-examination Ms Webb says that she did not ask to be acting principal.  She says she was acting principal for 9 working days as vacation fell within the period of time when she acted.  She said during that time an incident arose regarding Mrs Cilia.  She says this matter was mentioned in the incidences report.

29      Ms Webb says that a meeting did not occur with Ms Saunders on 29 April 2003 where her performance was discussed.  She has no recollection of a letter regarding this meeting.  Ms Webb denies that Ms Parriman was her support person in the performance review between August and October 2002.  She says Ms Saunders listed her as such but she was not.

30      Ms Webb says that a meeting did occur on 6 May 2002 between Ms Saunders and herself.  Ms Webb says that Ms Saunders did comply with point 6.1 of the policy which requires that any concern about a performance of a member of the teaching staff shall be addressed by the principal during the course of normal performance management process.  In relation to a later letter of 26 July 2002 Ms Webb says that she was given a chance to respond in writing to allegations about substandard performance.  But Ms Webb says that matters were not discussed with her.

31      Ms Webb says in early August she tried to get a meeting with Ms Saunders to discuss her performance but she was busy and their working relationship was very strained at that stage.  She says she wanted to give her documentation on the Mrs Cilia issue but she could not get any time with her.  She says Ms Saunders would not meet with her.  Ms Webb says she would not meet without a support person with her, ie Mr Herzog.  In relation to the matter of 19 August 2002 Ms Webb says that:

“I understand what this says, but I did give her an explanation and she did not discuss those explanations, so how does she know they’re adequate” (Transcript p.77). 

Ms Webb challenged the instigation of the performance improvement plan.  She says there was a strain between Ms Saunders and herself and hence the department put in an ancillary principal Mr Gary Sanderson.  There was a meeting scheduled for 10 September 2002.  Ms Webb says she was unable to attend due to ill health.  Ms Webb says she did not take up the opportunity to reschedule that meeting because she was too busy.  Ms Webb says that Ms Saunders had already made a decision so there did not seem to be any point.  Ms Webb says she was still talking to Ms Saunders about the SAER process but not the improvement plan.  She says the SAER process was part of the performance appraisal plan.  She says she was talking to her everyday about this.  She says she was receiving support in relation to her role as the SAER manager.  Ms Webb says she was provided with instant reports from Ms Saunders throughout her performance review.  She said she was responding to them in her note book computer but her note book computer broke down.  She was also too busy in her job to respond to Ms Saunders straight away.  Ms Webb says she gave her responses to Ms Saunders on 22 October and then to the district director.

32      Ms Webb says she was not opposed to an investigator being appointed.  She trusted that a fair process would happen.  Ms Webb says that after she had been interviewed by Mr Yates she said that she felt that the time that he had afforded her was fair and good but she felt that something was amiss.  Apart from one little incident he had been polite and respectable.  Then her concerns were alerted when Ms Parriman indicated that Mr Yates had told her that she was supposed to be given an opportunity to furnish a list of people whom he could speak to.  She says that she was satisfied that she put all that she wanted to Mr Yates.

33      Ms Webb says that Ms Saunders met her obligations under the performance improvement plan by providing support outlined in the plan.  However, Ms Webb says that she did not have time to discuss with Ms Saunders about the incidences (transcript p.93).  She was talking to Ms Saunders all the time about the SAER students and other issues in the school.  Ms Webb agrees that there was a file kept with records of her ongoing performance.  She says that she looked at it three or four times.  However, she says:

“It was so negative, I needed to keep on going, I didn’t even bother to go back into her office again” (Transcript p. 94-95). 

She says she did not bother talking to Ms Saunders as “I already knew where she was coming from with the first couple of incidences”.

34      Ms Webb says in answer to whether there was any discussion about her performance during the regular administration meetings:

“Well, that's a really hard one, really, Ms Jack, because my whole job was being done every day and the - - the performance improvement plan was based on my job so I guess you could say elements of my performance in my role related to this anyway, and it was discussed in the context of it, but we were not formally looking at my performance appraisal in those meetings and that made us both very comfortable to talk about things with a better degree of respect and a better rapport.” (Transcript p.97-98).

35      Ms Webb says that she responded to the report of the independent investigator through her union on 10 February 2002.  Ms Webb says that these tests required in the departmental policy on managing satisfactory and substandard performance appeared to be complied with on paper (Transcript p.100).

36      Under re-examination Ms Webb says the letter of 5 August 2002 from Ms Saunders was withdrawn.  At the meeting of 9 August Ms Saunders hung up on Mr Herzog.  The meeting on 3 September 2002 was the last meeting which everyone participated.  There was no meeting after that because she says they were very busy and Frank was very busy on the road.  She says as matters were not raised by Ms Saunders with her she assumed that she had given a satisfactory explanation and things were fine.  Ms Webb says that she assumed there was going to be a meeting at some stage to finalise the process.  Ms Webb says that she has been given procedural fairness on paper but in reality she was not.

37      Mr Murray William Yates gave evidence that he was appointed to investigate the matter by the Director General of the Department of Education (DOE) on 22 November 2002.  He was provided with a package of documents from the Complaints Management Unit of the DOE and a booklet from DOE entitled managing unsatisfactory and substandard performance of teaching staff and school administrators.

38      Mr Yates says that his understanding of the statutory requirements regarding substandard performance is that in accordance with section 79 of the PSMA the employee must maintain and sustain performance levels and if the department feels that this is not occurring, the department can then put to the employee that they are not achieving those standards and appoint a person to undertake an investigation into the performance issues and provide a report.

39      At the end of the investigation he determined that the process was fair and met all of the requirements set out by statute and the department’s policies.  Mr Yates’ view was that Ms Webb’s performance had been substandard.  He formed that view with some comfort and also that the process conducted by the department was correct.

40      Upon being given the package Mr Yates says that he spent a few days going through the documents to obtain an understanding of what the documents contained.  He travelled to Broome and conducted a series of interviews with relevant persons.  He says that he was satisfied from the weight of evidence, from the documents and the persons interviewed that the process was fair and that Ms Webb’s performance seemed to be substandard.

41      Mr Yates says that in his initial conversation he advised Ms Webb of who he was, that he had been appointed by the Director General, that he would be coming to Broome to conduct an investigation and that he wished to obtain her views on the allegations that had been made.  He told her that she could have a support person.  He indicated to Ms Webb that it was an opportunity for her to put her side across.

42      In relation to the first paragraph at page five of his report Mr Yates says that as far as the process and the fairness of the process went the statutory requirements and the department’s policy had been met.  He says that in discussions with Ms Saunders he asked her about the process, which got her talking about the process.  He was satisfied that every effort was made to follow the process and this was supported by the documents.  He says that he formed the view based on what Ms Saunders said rather than in response to a direct question.

43      Mr Yates says that the documents speak for themselves, however he did not wish to accept them in isolation and so he spoke to persons in Broome about the process.  Their answers supported the documents which made him believe the documents were truthful.  He did not think it would be prudent to reinvestigate every incident and the idea of the investigation was to determine whether there had been substandard performance.  He says integral to this was being satisfied with the documentation.  He says that he saw no good purpose in interviewing and raising issues with staff, parents and students.  He took a holistic approach:

“So I did take the view that the holistic approach was the only way to do it so that we didn't lose things in the detail, and that holistic approach was to say, "Well, putting aside all of the specifics of the incidents, here are the incidents; here are how they've been handled?  Do they stack up?"  And by "stack up" I'm saying do they stack up to the - - the procedures that needed to be met, and I arrived at a firm and comfortable view that they had been” (Transcript p.179).

44      He says that during the investigations a person had put to him that Ms Webb may have a drinking problem.  He put this to Ms Webb who responded by saying that she had a medical condition that made her very sick very quickly and that prevented her from drinking too much.  He also says that he challenged Ms Webb’s statements in relation to some of the incidents but he did not put any accusations to her.

45      He says he has a standard script to remind Ms Webb that she was entitled to copies of the tapes.  He says that he asked her if she had anything further to put and after a long discussion she was satisfied she had put all she needed to.  He says that she used words to the effect that she was happy with the way she had been dealt with.  A few days after leaving Broome he received a call from Ms Webb complaining of the process.  He says he tried to discuss the matter with Ms Webb, was unable to and terminated the call.  He says that conversation did not impact upon his report and that he had already worked on a draft of the report.  He says that he raised it as an issue in his report at 5.3 as he believed it would be remiss not to, but that it played no part in the report.

46      Under cross examination he says that his investigation tested the documentation against the department’s policy and he was satisfied that procedural fairness had been afforded against the policy and the statutory requirements.  He also says that he did not dig into the events of incidents, he did however speak to selected witnesses including Ms Webb about the incidents and how they had been addressed.  He says:

“what I'm talking about there is if there's a note of a meeting, I was satisfied that that note was made by Ms Saunders and that that accurately reflected what happened” (Transcript p.184). 

He further says that Ms Webb provided details of the incidents.

47      In relation to the letter of 16 October he says that perhaps Ms Saunders could have worded the letter better, but that it did not raise any alarm bells in his mind as he was looking at the overall fairness of the process.  He says that he cannot isolate that one letter from the overall process.  He says following discussions with Ms Saunders he concluded that she had gone about the process fairly and capably and that she had done a good job and had not predetermined the matter.

48      In his discussion with Ms Webb he says that he said to her “the floor is yours” and asked her to put all matters to him.  He says that he challenged her along the way and at stages asked her for further information.  He says that she gave him a lot of information and that not all of it was relevant.  He says that he cannot remember if he asked her whether there were other person that he should interview, but that it is something that he does ask.  He says that he did not record all of the interviews as he was only testing the veracity of the documents and the people associated with them.

49      Ms Linda Joy Saunders gave evidence that in the previous year she had dealt with an employee with unsatisfactory performance and that she is familiar with the department’s policy on managing unsatisfactory and substandard performance.

50      She wrote to Ms Webb on 28 January 2002 outlining her concerns regarding emotional responses to situations.  She says that she raised performance concerns informally throughout term 1 and also at a meeting on 19 April in regards to an incident the previous day.  At that meeting she provided to Ms Webb the same letter of 28 January with some hand written notes on it.  She says that the letter was given as the same issues were involved, that is emotional responses to matters.  Ms Saunders says that she became concerned over the school holidays and spoke to the district office.  She held a meeting with Ms Webb at the school on 5 May and handed her a letter dated 3 May and a copy of the 2001 performance improvement plan.  Ms Saunders said that she revisited that plan and showed Ms Webb that she had concerns even though she had been satisfactory and highlighted areas that were still of a concern.

51      She says that the running records are very detailed notes and they document every interaction.  It records when incidents occur, whether it is positive or negative, it also records whether any action was taken, ie calling a meeting or handing out information.

52      She says that Ms Webb responded to her letter of 26 July on 8 August.  Following receipt of that response a meeting was held with Ms Webb and Frank Herzog on 9 August, she says that several issues were discussed but Mr Herzog became hostile and the meeting was terminated with a further meeting to be conducted the following day.  She says that on the following day Ms Webb did not attend the meeting as she had been advised by her union not to.  In relation to the running record during the monitoring period there should be opportunities for Ms Webb to get support from various persons, through admin meetings and any tasks that Ms Saunders is to attend to.  She says that whenever there was an incident it would be written down and provided to Ms Webb.  She says that Ms Webb was to provide any positive factors about her performance and these were placed into the file.  When there was a good action from Ms Webb it was termed “record” and was written on the sheet.  In regards to the administration meetings she says that there were to be two a week and that it was difficult to get all the people along to the meetings.  Ms Webb missed a number of meetings due to being double booked and she noted this. 

53      She says that on 2 September 2002 she provided to Ms Webb incidents 1 to 6 and they were discussed.  Incidents 7-11 were provided on the 13th and incidents 12 to 14 on the 27th.  On 16 October she went to Ms Webb’s office and handed her a letter [Exhibit A1, tab 15].  They had a discussion about the matter and Ms Webb asked her to leave.  Ms Saunders denies bursting into tears.  She says that Ms Webb was given time to compile a response.  She says that she contacted the district office to advise that Ms Webb’s response would be delayed and was advised that they had received a response.  She says she then went to the district office and went through Ms Webb’s response in relation to each incident and the notes and found that the response was vexatious and more of a personal attack than a response to the incidents.  She says that she went through each incident to see if there was some explanation for Ms Webb’s behaviour but there was not one.  After going through Ms Webb’s response and spending some time going through things and through the action she says that she could see no other decisions but to find Ms Webb unsatisfactory.  She says that she was already at the district office and she informed Laurie of her decision, put part of the report to him and went back to school.

54      Under cross examination Ms Saunders says that in relation to the performance management process she documented everything that she thought was relevant.  In relation to [Exhibit R2] she says that to pick out the positives in the list one needs to look for the phrase “record” or to look at the comments that speak for themselves.  On 27 August she says Ms Webb was working on the SAER risk register and responded to a number of red cards and that she was working well, it was positive.  She says that the tick relates to her following through the action.  On 30 August she says that the prior administration meeting things had been “awful” between Ms Webb and “Bob”.  The administration meetings were part of Ms Webb’s performance management plan and this one had gone well, it was positive and she noted “Record”.  On 2 September she says that Ms Webb had planned lessons for the year 1’s, which was good to see as in the past Ms Webb arrived late to class and her lessons were haphazard.

55      In regards to being late for class Ms Saunders questioned Ms Webb.  Some of the reasons were that Ms Webb had double booked herself and another was that she had taken a boy home.  She says that Ms Webb was to attend to class and an admin meeting but instead took a boy home on the basis that he was sick when in fact he had stolen a wallet.  Ms Saunders says that she advised Ms Webb that she disagreed with her strategy and the matter remained unresolved.  She says that Ms Webb failed to act on the advice that she gave her and simply did what she wanted.

56      She says that it was not possible to get closure on any incidents to do with Ms Webb’s performance as she did not accept any advice.  Ms Saunders says that very few matters were resolved due in the main to Ms Webb’s inability to get along with other staff.  She says an incident would occur, there would then be a meeting between herself and Ms Webb where the matter would be discussed and the parties would attempt to reach some sort of understanding.  She says, “I’d think there was some understanding and after that there wasn’t” (Transcript p.138).

57      She sought advice from the district office on alternative strategies on a regular basis and she says through the performance improvement plan she encouraged Ms Webb to seek assistance elsewhere.  She says that she spoke to Steve Dean and Dean Finlay at the Complaints Management Unit and their response to her was to “keep trying, you’re the expert”, or, “try this”.  Ms Saunders says that she came to the view that she was unable to see how she could help Ms Webb, however, she kept trying.  She had been through the process the previous year with Ms Webb when she was helpful and constructive.  However during this process Ms Webb had been obstructive, difficult and unwilling to accept any advice.

58      She says in relation to [Exhibit R2] record means to write down, it records both positive and negative matters.  She says that Ms Webb did not improve her performance she simply did something in line with her duties, but her performance did not improve.  Ms Saunders says the [Exhibits R1 & R2] are the running record of what occurred at each of the steps of the Departments Policy on managing unsatisfactory and substandard performance of teaching staff and school administrators.  She says that she was frustrated during the process as she was unable to have open communication with Ms Webb and the interaction became very negative.  She says that three meetings were held on 26th, 3rd and 10th, however Ms Webb was not in attendance for the meeting on the 10th.  She says that she did not call any further meetings as Ms Webb did not follow through on them.

59      In relation to the 10 September meeting Ms Webb was away from the 9th to the 20th when she returned it was to difficult to schedule a further meeting in the last week of school as Ms Webb and she were very busy and Ms Saunders did not feel she needed to call one.  She says that the monitoring period had ended by the next term.  She says that she did not call meetings as she believed that Ms Webb had had enough opportunity to respond and improve her performance if she wished to.

60      Ms Saunders says that her responsibility as a principal was to provide Ms Webb with all the support she could in terms of people, resources and time and she openly encouraged her to obtain some counselling.  She says that she was no longer her counsellor or mentor.  She says that she was unable to help Ms Webb, that she could not provide the help that Ms Webb needed.  Ms Webb needed a counsellor that she could talk to and help her through her emotional responses and Ms Saunders was not prepared to do that.  She was prepared to do everything within a principal’s responsibilities.

61      At the conclusion of the process Ms Saunders did not call any meetings to review the performance improvement plan.  Ms Saunders says that she reviewed the plan comprehensively in making the final determination.  She used the monitoring column to conduct the review. 

62      In relation to the letter of 16 October the attachments relate to matters that were put to Ms Webb on previous occasions.  Ms Saunders says that her intention was for Ms Webb to respond and discuss the issues to do with her interpersonal organisation and effective working relationship skills.  She says that Ms Webb had not responded to the 15 incidents throughout the process and she was quite surprised when she responded at the end.  On each of the incidents there is a recommendation.  She says that she encouraged Ms Webb to give a response to each incident but she did not.

CONCLUSION

63      Having seen each witness give evidence I conclude that I have some considerable confidence in Ms Saunders’ evidence and much less confidence in the evidence of Ms Webb.  Ms Saunders directly answered each question and was clear and consistent in her views.  Ms Webb in my view was less direct and consistent.  I accept also the evidence of Mr Yates which was undiminished by cross-examination.

64      The case made by the applicant is that she suffered a lack of procedural fairness in terms of the process adopted by firstly Ms Saunders and then the investigator, Mr Yates.  In summary, Ms Webb says that Ms Saunders followed the procedure as outlined in the departmental policy only on paper but not in practice.  She complains that whilst Ms Saunders and she would on a daily basis discuss issues to do with the SAER program, Ms Saunders would not discuss matters related to Ms Webb’s performance improvement plan.   She says also that their relationship was very strained.

65      The denial of procedural fairness in relation to Ms Saunders is based, on the submission of the applicant, on three points.  The applicant submits that Ms Saunders did not complete a regular review of the plan, did not engage in much discussion with Ms Webb during the evaluation process and concentrated only on issues detrimental to Ms Webb.  In saying this the applicant complains that Ms Saunders had not given Ms Webb proper opportunity to respond before completing her review, had not undertaken sufficient formal discussions (the last being on 3 September 2002), had made up her mind about Ms Webb’s performance before the review period had completed and had not been sufficiently supportive of Ms Webb.

66      Exhibit R2 is a running record of events kept by Ms Saunders during the performance review period.  Ms Saunders says that issues marked “record” were examples of positive comment.  From a plain reading of the document there are a number of positive comments registered.  So clearly Ms Saunders was, at least for the purposes of assessment, keeping track of both the positive and negative aspects of Ms Webb’s performance.  Whether these matters were communicated directly to Ms Webb as positive encouragement is a different matter.  But again there are comments in that document (for example on 29 August 2002) which indicate also that Ms Webb was advised of her positive endeavours.  Irrespective, the review period is clearly a period of weighing up the overall performance of an employee and on the face of [Exhibit R2], this is exactly what Ms Saunders was engaged in doing. 

67      It is clearly a source of real complaint by Ms Webb that Ms Saunders did not discuss matters with her on a regular basis.  My impression of Ms Webb, having seen her give her evidence, is that she was offended by this approach of Ms Saunders.  Ms Webb says that they did discuss work issues but not specifically the problems with her performance and the incidences recorded about her performance.  I have greater confidence in the evidence of Ms Saunders and in the documents which record the flow of behaviour.  I am confident that there was ongoing discussion about Ms Webb’s performance.  There was clearly little discussion about the recorded incidences.  Ms Saunders says that Ms Webb was in effect not interested in discussing these.  There was also no formal meeting after 10 September 2002.  I consider that Ms Webb’s protest about a lack of discussion must be seen as either exaggerated or wrong. 

68      The applicant submits that the, “whole purpose of the Performance Improvement Plan therefore is to provide an opportunity for the parties to have an ongoing dialogue in a supportive manner”.  I consider that this submission is misguided.  The whole purpose of the Plan is to ensure that the employee’s performance returns to an adequate level.  Whilst it may be more appropriate that this occurs through encouragement and support, this can often be a subjective thing which focuses attention on the process of review rather than the intended outcome, namely to improve performance.  The Department’s policy gives managers instruction as to how to manage unsatisfactory performance.  It is clear and obvious when one reads the whole of the policy that the use of a Plan is a formal step in ensuring that performance which has not improved previously, is given special attention and assessment in a formal way.  If that does not work then other steps are to be undertaken.

69      I make this distinction as I consider that it is important in this matter.  One could normally expect a manager to encourage and support a subordinate in attaining the desired level of performance.  However, this approach may not be possible under a Plan where the employee is formally under challenge.  Put bluntly the onus under a Plan is on the employee to improve or else other corrective action may be taken.  Ms Webb complains that Ms Saunders was purely negative and did not address matters in discussion with her.  Ms Saunders says that she did everything she could as a principal to assist Ms Webb.  Having now had the opportunity to read all of the information and records I consider that Ms Saunders account to be a much more accurate summary of what transpired between Ms Webb and her.  I am less concerned about whether a number of formal meetings occurred; the absence of which must in part be attributed to Ms Webb’s attitude to the process. 

70      The Department’s policy on “Managing Unsatisfactory and Substandard Performance” is contained within Exhibit A1.  I do not go to all the detail of the policy, however, the policy outlines the steps to be taken in managing substandard performance and the purpose behind each step.  Step 4 in relation to the Plan states:

“This Plan must be in place for a minimum of 20 working days for teaching staff before their performance is formally reviewed.  The principal or line manager may choose to extend this period.  Such a decision rests with principals and line managers and will depend upon the nature and extent of the unsatisfactory performance and what constitutes a reasonable period in which to improvement.

The requirement for formal review should not preclude more regular monitoring and feedback.  This may consist of less-structured interactions, formal meetings, memoranda, notes or records of discussions.  Records must be kept of all observations or interactions.”

And later:

“Advice and assistance may take the form of counselling, training, mentoring, district office advice, central office advice, or relief for teaching staff to allow them to address areas of concern.  Monitoring may include examination of work reports, evaluation of written work, evaluation of plans, classroom observation, discussion of relevant issues or observation of specific tasks.”

This all serves as a guide only

71      It is not clear to me how in a procedural sense any of the components of the policy were not followed by Ms Saunders.  Certainly the Plan was formulated in conjunction with Ms Webb, all observations were recorded, all material was available to be viewed by Ms Webb and she had the opportunity to respond to any material.  The policy calls for review of the performance and suggests regular feedback or clarification but does not mandate some arrangement whereby formal and regular meetings must be conducted by the line manager.

72      The policy also refers to the requirements for procedural fairness and states that it involves a process in which:

• “decision makers act fairly and provide reasons for decisions;
• the person affected is given a fair hearing;
• all parties to a matter have the opportunity to put their case where an adverse decision or finding is made; and
• all relevant arguments are considered and irrelevant arguments excluded.”

73      Ms Webb says that there were two meetings between Ms Saunders, Mr Hertzog and her in formulating the Plan; a third meeting was postponed as Mr Hertzog was not available and that she was advised by him not to meet Ms Saunders without him being present.  Ms Webb complains that Ms Saunders never sat down and discussed the incidences with her (except incidence 13).  She also complains that on 22 October 2002 Ms Saunders, without any discussion about the letter which Ms Webb had submitted that morning, handed a reply to Ms Webb.  The letter informed Ms Webb that her performance was not adequate and the matter would be referred to the Director-General.  At first sight and given the evidence of Ms Saunders in cross-examination, which is highlighted by the applicant in closing submissions, these complaints would appear to have some force.  However, one must view the circumstances as a whole.  Ms Saunders was clearly experiencing some frustration in her dealings with Ms Webb and in arranging meetings to discuss progress on the Plan.  In addition it is Ms Webb’s evidence that the relationship between them was strained and Ms Webb considered all the comments to be negative.  My conclusion on having heard the evidence is that Ms Webb was less than receptive to entertaining discussion on her performance.

74      As to the serious issue of Ms Saunders having concluded her assessment prior to having Ms Webb’s response to the allegations against her, again this complaint would on its face appear to have substance and be counter to affording Ms Webb procedural fairness.  However, Ms Saunders’ evidence which I accept is that she read all of Ms Webb’s response and it was vexatious and did not explain Ms Webb’s behaviour.  It is noteworthy that a theme in Ms Webb’s response is the untruthfulness of Ms Saunders.  Ms Webb replied on 22 October 2002 to Ms Saunders letter of 16 October 2002 in which she informed Ms Webb that her performance during the review period had not been adequate and outlined the areas of substandard performance and the incidences involved.  Ms Webb stated:

“I am shocked at your use of power as the principal to always cloud the truth in an (sic) out of context manner to reflect what you want to say.  A principal can say what ever they like about a staff member and has the power to manipulate staff and other variables to show one up in what ever light that suits.  All the incidents that follow will high light how the process was based on lies and a whole lot of negatives thrown together to make me look bad.”

75      Ms Webb then went on to provide her comments on the majority of the incidences.  The two points that I would make are that firstly on a reading of Ms Webb’s responses whilst there are a number of detailed responses as to how she viewed the actual incidences, there are also many challenges to Ms Saunders in terms of effectively accusing Ms Saunders of concocting the situations or allegations.  Ms Saunders evidence is that Ms Webb was obstructive, difficult and unwilling to accept advice.  Having seen both give evidence, having read all the material and especially Ms Webb’s response of 22 October, I would have to conclude that I have considerable sympathy for Ms Saunders’ view of the approach adopted by Ms Webb.  It is a view that found resonance with Mr Yates as well, albeit put in much stronger terms.  The other point is that given this context and the responses of Ms Webb then there was little presented by Ms Webb that could legitimately alter Ms Saunders view of her performance.  I do not therefore conclude that somehow Ms Saunders has prejudged Ms Webb in the manner in which she engaged in the review of the Plan.

76      More fundamentally, I would have to conclude that it is more probable that Ms Webb’s performance, on all the material before me, was in fact substandard.  Now this is not how the parties present the matter.  The applicant’s complaint centres entirely on a denial of procedural fairness on several grounds.  For the reasons expressed I do not find that Ms Saunders afforded Ms Webb a lack of procedural fairness.  However, the other point which must be addressed is whether if Ms Saunders could be said to be right then does it matter and would the result be different in any event if a better process had been adopted.  I note that the applicant is not arguing that there was anything unlawful in the process.  This comment applies equally to the process of investigation.  Put simply I consider the result would have been the same and it is Ms Webb’s view of the situation, her performance and her approach to her assessment that needed to alter.

77      The policy covers the requirements of an investigation and specifies that it must be conducted by a suitably qualified person who must review the process to ascertain whether it was procedurally fair, must review all records including the Plan and correspondence, must interview the parties concerned and must “form an opinion as to whether the employee’s performance is substandard”.  It is said by the respondent that Mr Yates is experienced in the process of investigation and his qualifications to undertake the investigation are not challenged by the applicant.

78      The applicant instead complains that:

“The investigation by Mr Yates was deficient in that he was guided by a flawed process.

• Mr Yates’ conclusion that the process “appeared procedurally fair” lacks rigor in that in that there should have been an objective assessment as to the fairness of the process.
• Mr Yates adopted the confirmation by Ms Saunders that the statutory requirements had been met instead of making his own determination.
• Not all matters considered by Mr Yates in his determination were put to Ms Webb.
• Some issues were put to Ms Saunders and not to Ms Webb.
• One issue was put to Mr Lauire Andrew and not Ms Webb.
• Mr Yates adopted the view of Mr Andrews with regard to the process and the officers involved.”

79      Ms Webb’s chief complaint in evidence is that Mr Yates did not advise her that she could submit a list of people for him to interview and that matters which were adverse to her were not put to her.  She was mostly commendatory of the discussion which he undertook with her and considers that she had adequate opportunity to put to him all the issues which she wanted to.  The discussion went for about four hours.

80      The comments which I have made in respect of whether one could conclude that Ms Webb’s performance was in fact substandard are appropriate to the investigation aswell.  However, in relation to whether Mr Yates afforded Ms Webb procedural fairness in his investigation I would conclude that he did for the following reasons. 

81      Mr Yates completed the task he was mandated to do.  He needed to make his own determination as to the fairness of the process and whether Ms Webb’s performance was substandard.  His conclusions are stated in section 5 of his report as follows:

“5.1.Investigator’s opinion

In relation to the allegation of the substandard performance of Ms Margaret Webb I am satisfied that her performance is substandard in accordance with s 79 of the Public Sector Management Act 1994, and that the process has been procedurally fair with demonstrable good will and intent having been exhibited by the Cable Beach Primary School Principal Ms Linda Saunders.

5.1.1. Comments and Observations – Ms Webb

The following comments and observations about Ms Webb are made to assist the Director General in his deliberations.

Mr (sic) Webb expressed a number of times in our interview that she has a love of her profession and is committed to her students.  She also sees herself as a role model for Aboriginal students and members of the school community.  This is an admirable and ideal role.  It is sad and unfortunate that Ms Webb’s conduct does live up to her view of herself as a role model, and does not demonstrate an ability to attain and maintain her own declared standards and ideals.

The evidence analysed and gathered indicates that Ms Webb falls short of being an effective deputy principal.

It is an observation of Ms Webb that her conduct is impulsive, capricious and lacking in judgement.

Another observation of Ms Webb is that she makes many claims about the conduct and thoughts of other people, but when challenged to provide evidence (even anecdotally) to support her claims she is found to be making hollow and unfounded assertions.

It is probable that Ms Webb will never understand or accept that she has conducted herself in such a manner as to bring allegations about her performance.”

82      Leaving aside some difference on the specific wording used by Mr Yates, I would agree with his overall consideration as stated in 5.1 of his report.  It cannot be said that he failed to make up his own mind in respect of the question he was asked to address.  Instead he expressed his concluded view both simply and forcefully. 

83      It is the case that a circumstance could arise whereby a principal has been unfair and biased in their conduct toward a staff member.  The process of investigation is designed in part to overcome this possibility before a final judgement is made by the Director-General.  Mr Yates’ approach to the investigation was fairly comprehensive and certainly an adequate basis for flushing out whether some bias or contrivance was displayed by Ms Saunders.  He concluded to the contrary.  I do not conclude that somehow Mr Yates has offended the dicta concerning the role of an investigator expressed in the decision of Trudy Ruth Cull v Commissioner, State Revenue Department 82 WAIG 377.

84      I equally do not consider it relevant, nor the task of Mr Yates, to put directly to Ms Webb each and every complaint made about Ms Webb during the process of investigation.  Ms Webb knew the case which she faced and had approximately four hours to put across her views.  A process which, at its conclusion, she was largely happy with.

85      For all the reasons expressed I would dismiss the application.