WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Edward Michael

APPLICANT

-v-

Director General, Department of Education and Training

RESPONDENT

CORAM Commissioner J L Harrison

HEARD 20 and 21 April 2006

WRITTEN

SUBMISSIONS 15 may 2006

DELIVERED MONday, 24 july 2006

FILE NO. U 116 OF 2005

CITATION NO. 2006 WAIRC 04786

Catchwords Termination of employment - Harsh, oppressive and unfair dismissal - Issues in relation to applicant’s performance - Procedural fairness considered –Principles applied - Applicant not harshly, oppressively and unfairly dismissed - Application dismissed - Industrial Relations Act 1979 (WA) s 29(1)(b)(i) – Public Sector Management Act 1994 (WA) s78, s 79(3) and (5)

Result Dismissed

Representation 

Applicant Mr S Millman (of counsel)

Respondent Mr D Barnes

Reasons for Decision

1         This is an application by Edward Michael (“the applicant”) pursuant to s29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”).  The applicant alleges that he was unfairly terminated from his employment as a teacher with the Director General Department of Education and Training (“the respondent”) on 21 September 2005.  The respondent denies that the applicant was unfairly terminated.

Background

2         The applicant was employed by the respondent as a full time teacher at John Willcock College (“the College”) in Geraldton at the start of the 2004 school year.  As the College only enrols Year 8 and Year 9 students the applicant taught mathematics to these year groups.  On 20 May 2004 the applicant was formally advised by the College Principal, Mr Pilkington that he was not performing to a satisfactory level.  The applicant was then subject to two Performance Improvement Plans (“PIP”) between 14 June and 28 July 2004 (“PIP 1”) and 30 July and 27 August 2004 (“PIP 2”) respectively.  PIP 2 lasted sixteen of the required twenty days because the applicant became unwell during the last week of PIP 2 and when he returned to the College on 31 August 2005 he was involved in an incident which led to him being directed to attend the local District Office.  The applicant did not return to the College after this date.  The applicant taught at Pinjarra Senior High School (“PSHS”) from 26 April 2005 onwards and by letter dated 5 July 2005 the applicant was advised that the respondent intended to terminate his employment.  Prior to the applicant’s termination he was given the opportunity to provide written submissions about the respondent’s intended actions and on 9 August 2005 his representative did so on his behalf (Exhibits R1/41 and 33-36).

3         The applicant is seeking reinstatement to his former position and compensation for lost remuneration.

4         The respondent prepared a file of relevant documentation (Exhibit R1).

Applicant’s evidence

5         The applicant completed a Bachelor of Science and Education in Cairo and taught for a number of years in Egypt prior to coming to Australia in late 1990.  In 1999 the applicant taught at Mount Magnet District High School (“MMDHS”) for approximately six months and in 2003 he taught during Terms 3 and 4 at Katanning Senior High School (“KSHS”) teaching mathematics across years nine to twelve.  The applicant tendered two references relevant to his appointment at KSHS (Exhibit R1/537 and 538).

6         The applicant gave evidence that as early as his third day at the College his relationship with his head of department Ms Jillian Stewart was poor.  The applicant gave evidence that he was aware that Ms Stewart and his sub-school leader Ms Barbara Carey complained to the College’s Principal Mr Kevin Pilkington about communication difficulties between them and the applicant.

7         The applicant gave evidence that in March 2004 Ms Stewart approached him and told him that his salary was ‘too big’ and she advised him to change to part time teaching to allow him time to prepare for lessons.  In response the applicant told Ms Stewart that he was an experienced teacher and that he had plenty of time to do his job properly.  The applicant stated that Ms Stewart then advised him that she would check his lesson plans.  The applicant stated that he was the only teacher required to submit his lesson plans to Ms Stewart and the applicant gave evidence that he told Mr Pilkington about Ms Stewart’s comments.  The applicant stated that during March and April 2004 he had difficulties with Ms Stewart about how to teach his classes and he stated that Ms Stewart was critical of his lessons.  The applicant stated that Ms Stewart attended one of his lessons and took it over and as a result he became anxious and upset.  The applicant stated that Ms Stewart continued to review his lessons and required him to submit his lesson plans to her twenty four hours in advance of the lesson.  The applicant stated that he was told off on one occasion when he did not submit a lesson plan 24 hours prior to the lesson that he was to undertake the following Monday.  The applicant stated that it was sometimes difficult to give his lesson plans to Ms Stewart prior to each lesson as he was often busy.

8         The applicant stated that he was hurt when Ms Stewart told him how to teach each lesson and he felt bad when Ms Stewart criticised him and the applicant stated that Ms Stewart tried to destroy every point he made about how to teach his students.  The applicant maintained that Ms Stewart did not understand the teaching methods he used and he claimed that she did not make any positive comments about his teaching.  The applicant maintained that Ms Stewart was against him because he was earning a high income.

9         The applicant stated that Ms Stewart did not give him a syllabus or a programme to follow and the applicant stated that another teacher described Ms Stewart as a ‘crazy lady and we don’t know what she wants to do’.  The applicant stated that Ms Stewart continued to judge his teaching and never accepted his lesson plans and ‘she never do anything’ (transcript page 42).

10      The applicant stated that around the end of March 2004 he complained to Mr Pilkington about Ms Stewart and Ms Carey’s treatment of him and Mr Pilkington then arranged for the applicant to have a meeting with the Deputy Principal Ms Kathy Pilkington.  The applicant stated that he told Ms Pilkington that he wanted to move to another sub-school and was told that he could not do so.  The applicant stated that Ms Pilkington told him that she was sorry that Ms Stewart and Ms Carey were treating him badly and that she would try to fix this problem.  The applicant stated that two weeks after this meeting with Ms Pilkington she had meetings with the applicant and Ms Stewart and the applicant and Ms Carey.

11      The applicant stated that there were internal difficulties within his sub-school because of personality conflicts between staff.

12      The applicant stated that once he had to leave the school to attend the bank and after this absence he was required to notify the school of his absence and sign off to that effect which he did.  The applicant stated that he was then advised by Ms Carey not to leave the school without notifying her.  The applicant stated that he was subject to an action plan in relation to this issue and targets were also agreed between the applicant, Ms Stewart, Ms Carey and Ms Pilkington to improve outcomes for his students (Exhibit R1/489).  The applicant stated that it was difficult for him to teach because he had to adhere to these provisions.  The applicant maintained that all of his actions were constantly being reported to Mr Pilkington and the applicant stated that because of this he was depressed and took medication.  The applicant claimed that his line managers had a plan to destroy him and to kick him out of the school.  The applicant stated that he had no hope of continuing at the school after seeing Ms Stewart and Ms Pilkington talking after reviewing one of his lessons instead of independently assessing his lesson.

13      The applicant maintained that Ms Stewart told him to change the way in which he taught and not to use textbooks when teaching his students.  The applicant also maintained that Ms Stewart was unable to impart basic knowledge to students.

14      The applicant stated that from the start of Term 1, 2004 he felt stressed and he believed that his capacity to teach was destroyed by the actions of both Ms Stewart and Ms Carey.  The applicant stated that he was not given any support by Ms Carey when disciplining students and he gave an example of an incident when he removed a laptop computer from a student for one week and an incident where a student swore at the applicant and was suspended by the Principal.  The applicant stated that Ms Carey overturned the decision to suspend the student who swore at him and he claimed that this student then gave the applicant a hard time.  Ms Carey also returned the laptop computer to the student after one day and this resulted in the student not respecting him after this.  The applicant maintained that Ms Carey was duplicitous towards the applicant.

15      The applicant stated that at the start of Term 2, 2004 he worked with other colleagues to prepare year 8 and 9 teaching programmes and he stated that Ms Stewart refused to accept these programmes.

16      The applicant stated that Mr Pilkington observed one of his lessons and told him that his students were bored and the applicant maintained that the Principal never supported him and told him that he was a bad teacher.

17      The applicant stated that after he was advised that his performance was unsatisfactory Ms Pilkington did not allow him to meet with his union representative in the first two teaching periods on the day the representative attended the College and he was told he would have to meet in the third period as he was not teaching in this period.  The applicant stated that this meant that they only met for 45 minutes which was insufficient.

18      The applicant claimed that complaints made against him by parents and students related to the same three students.  The applicant believed that he was being discriminated against as he was not treated the same way by his line managers as other teachers when students misbehaved.  The applicant stated that on a number of occasions he felt victimised, particularly when Ms Pilkington preferred the accounts of students about the applicant’s interactions with them.  At one point the applicant complained to Mr Pilkington about Ms Pilkington and Ms Stewart and asked that he be given a new line manager.

19      The applicant maintained that during 2004 his performance improved and this was reflected in a letter from a parent who had previously complained about him and the applicant maintained that Ms Pilkington had asked this student’s parents to lodge the initial complaint against him.

20      The applicant stated that Mr Pilkington removed Ms Pilkington from reviewing his classes after he complained about her and he stated that he did not trust Ms Vicki Jack who replaced Ms Pilkington.

21      The applicant acknowledged that he gave reports to his students before they were reviewed by Ms Carey but he claimed that he was unaware of an instruction that Ms Carey needed to review them prior to giving them to his students.  The applicant completed a written account of the situation in relation to these reports (Exhibit R1/322-325).

22      The applicant stated that in the period prior to ceasing work at the College he had a number of days off due to stress and the applicant stated that after he was taken to hospital by an ambulance on 23 August 2004 he had one week off work because of illness.

23      The applicant stated that when he returned to teach at the College on 31 August 2004 Mr Pilkington told him that he could not be left alone in the classroom.  The applicant stated that he initially resisted this directive but he stated that when Mr Pilkington told him that he had received a directive that the applicant was not to be left alone he accepted having an assistant teacher.  The applicant stated that soon after he returned to the College on this date he read complaints made about him by a colleague Mr Saul Molina.  The applicant stated that he wanted to discuss Mr Molina’s complaints about him with Mr Pilkington however Mr Pilkington told him to leave the school and he was told to report to Ms Jack at the District Office.  The applicant stated that he later visited a general practitioner who declared him unfit for work due to work-related stress.

24      On 2 March 2005 the applicant attended a consultant psychiatrist (see Exhibit R1/568-9).

25      The applicant agreed that he was on a PIP when he was at PSHS in 2005 and he claimed that he was told by the Principal of PSHS that his performance was excellent.

26      The applicant stated that in 2005 he was interviewed by Mr Peter Burgess who completed a report about his performance at the College and the applicant stated that he did not trust him and he believed that he was part of the respondent’s strategy to terminate him.

27      Under cross-examination the applicant maintained that an assistant who sat in on his classes at the College was used to gather evidence against him.

28      The applicant was asked about a letter written on his behalf by the State School Teachers’ Union (“the SSTU”) in December 2001 about his employment at MMDHS (Exhibit R1/508).  The applicant stated that he had not seen the letter before and he stated that the reference in this letter to his performance being unsatisfactory at MMDHS was incorrect and he stated that if this was the case he would not have been re-employed by the respondent.  The applicant maintained that he left his position at MMDHS because of a non-work related conflict with another staff member, that his departure had nothing to do with his performance and that he was not provided with any documentation about his performance.

29      The applicant agreed that he was given an induction when he commenced at the College and he stated that he was aware of how the College was organised and run.  The applicant was aware that in March 2004 a parent complained about him.

30      The applicant stated that after he commenced employment at the College he spoke to Mr Pilkington on an informal basis about his health but he could not remember the exact dates of those discussions and he stated that on a number of occasions he told Mr Pilkington that he was stressed and this was affecting his ability to undertake his work.  The applicant was asked to detail any documents that supported his view that he was being harassed, bullied and treated unfairly by staff at the College and the applicant cited as an example the time that Ms Stewart told him ‘monkey see monkey do’ in relation to using a text book when teaching mathematics.

31      The applicant maintained that a lesson plan dated 3 August 2004 was not signed by him and when asked if the signature on this plan was a forgery the applicant stated that it may be (see Exhibit R1/346-347).

32      The applicant understood that he would be appointed to a long term position at PSHS at the end of 2005.

Respondent’s evidence

33      Mr Pilkington has been the Principal at the College for approximately three years and he was previously the Principal of Albany Senior High School.  Mr Pilkington has taught for 31 years.  Mr Pilkington stated that the College has five sub-schools consisting of year eight and nine students and has five sub-school leaders as well as Heads of Learning Areas for each main subject area.  The College has approximately 700 students and three Deputy Principals one of whom was the respondent’s partner Ms Pilkington.  Mr Pilkington stated that the role of the sub-school leaders was to induct and support teachers about managing student behaviour, to liaise with parents and to support students.  Mr Pilkington stated that teachers at the College worked collaboratively and that a substantial amount of support was given to teachers.

34      Mr Pilkington stated that early in Term 1, 2004 the applicant was experiencing difficulties and Mr Pilkington stated that he was aware of this from feedback he was given by the applicant’s line managers and from his own observations.  Mr Pilkington stated that later in Term 1, 2004 he also received informal complaints from parents about the applicant.

35      Mr Pilkington understood that the applicant was inducted in the usual manner by Ms Stewart and Ms Carey and the applicant was therefore aware of the day to day processes and procedures expected of him.  Mr Pilkington understood that when the applicant started to experience difficulties Ms Stewart had weekly meetings with him and the applicant was advised to view the classes of other teachers.

36      Mr Pilkington stated that the applicant was given the opportunity to undertake professional development courses but he did not avail himself of this option.

37      Mr Pilkington stated that in Term 1, 2004 the applicant was subject to the College’s normal performance management processes and he stated that by the end of Term 1, 2004 the applicant’s performance had not improved.

38      Mr Pilkington stated that the applicant saw him as a mentor and that in Term 1, 2004 he had a good relationship with the applicant, they had many discussions and he tried to assist the applicant on an informal basis.

39      Mr Pilkington stated that when the applicant’s performance did not improve and the applicant made no effort to act on the advice given to him to improve his performance he formally notified the applicant on 20 May 2004 that his performance was substandard and the applicant was invited to respond to Mr Pilkington’s views about his performance (see Exhibit R1/451-456).  Mr Pilkington stated that as the applicant’s response did not acknowledge the concerns raised by Mr Pilkington he then instructed Ms Stewart to liaise with the applicant to agree on a PIP.  Mr Pilkington stated that even though the applicant’s performance was deficient in five areas he chose the two most critical areas for the applicant to concentrate on.

40      Mr Pilkington stated that a meeting was held with the applicant on 29 July 2004 to review his progress and the applicant was advised that his performance remained unsatisfactory and the applicant was advised on 2 August 2004 in writing that he was to be subject to a further review period from 30 July 2004 through to 27 August 2004.  Mr Pilkington stated that when the applicant returned to the College on 31 August 2004 he wanted to have a meeting with him to discuss the completion of his PIP which still had four days to run because the applicant had been on sick leave during PIP 2.  Mr Pilkington stated that he was instructed by his District Office to arrange for the applicant to have a support person in his classes and did so and advised the applicant of this when he returned to the College.  Mr Pilkington stated that he had left some documents in the applicant’s pigeon hole for him to review on his return including a complaint about the applicant made by Mr Molina.  Mr Pilkington stated that after the applicant read Mr Molina’s complaint he entered Mr Pilkington’s office and abused him using foul language.  Mr Pilkington stated that Ms Jack was visiting from the District Office at the time and after she heard the applicant abusing Mr Pilkington she called the District Director who contacted Mr Pilkington on his mobile phone and told Mr Pilkington to stand the applicant down with immediate effect and to escort him off the premises which he did.  Mr Pilkington stated that because the applicant had been removed from the College as a result of this incident the applicant was unable to complete the four remaining days of PIP 2.  Mr Pilkington stated that soon after this incident he wrote to the applicant confirming the events of 31 August 2004 and he advised the applicant that he had not demonstrated satisfactory performance and that he would recommend to the Director General that the applicant’s performance be investigated (see Exhibit R1/241).

41      Mr Pilkington stated that the applicant was required to notify Ms Carey when he left the College during the day because he was often absent during his non-teaching hours and returned  late to his classes.  Mr Pilkington stated that this requirement only applied to the applicant and no other staff member.

42      Mr Pilkington stated that even though he has a background in teaching English and Drama he believed he was capable of assessing and giving feedback to teachers teaching in different subject areas.  Mr Pilkington stated that he reviewed one of the applicant’s lessons on 11 August 2004 at short notice after Ms Pilkington had been removed from the applicant’s PIP process.  Mr Pilkington stated that the applicant had asked that both Ms Stewart and Ms Pilkington be removed from assessing him as part of his PIP and after consulting his District Director, Ms Pilkington was removed from the process for the purpose of transparency even though Mr Pilkington believed that she was a highly experienced mathematics teacher who was capable and competent to give feedback to the applicant.  Mr Pilkington stated that Ms Pilkington’s removal from the PIP process was confirmed in a letter to the applicant dated 18 August 2004 (Exhibit R1/296-7).  Mr Pilkington stated that Ms Jack was then brought in to view some of the applicant’s classes in place of Ms Pilkington.

43      Mr Pilkington stated that the applicant raised his health issues with him and the applicant said he found the process and people involved stressful.

44      Mr Pilkington denied that he solicited complaints about the applicant from parents and Mr Pilkington stated that the College policy in relation to complaints was that if a parent had a problem he or she should first approach the teacher concerned.  Mr Pilkington stated that complaints about teachers rarely came to him directly.  Mr Pilkington stated that it was rare that complaints about teachers were received in Term 1 and Mr Pilkington stated that he had some informal complaints about the applicant in late Term 1, 2004 and these complaints became more serious in Term 2, 2004.  Mr Pilkington was aware of a group of girls who fell out with the applicant and as a result at one point there was a cluster of complaints made about the applicant at the same time.

45      Under cross-examination Mr Pilkington stated that in Term 1, 2004 the applicant’s line managers raised issues with him about the applicant’s literacy level and he stated that he discussed this issue with the applicant in a friendly and supportive way.  Mr Pilkington stated that he refused to transfer the applicant to another sub-school because it was difficult to swap teachers, there was a need to keep a gender balance in sub-schools, it meant swapping the applicant with another teacher and too many students would be inconvenienced.

46      Mr Pilkington stated that during the time that the applicant was at the College he had a number of informal discussions with the applicant over and above what he would normally have with other teachers.

47      Mr Pilkington stated that if the applicant’s performance had been satisfactory in the two areas specified in his PIP he would not have remained on the PIP even though he was experiencing difficulties in three other areas.

48      Mr Pilkington acknowledged that the applicant was intelligent and had a good grasp of mathematical concepts and he stated that he once advised the applicant that he would be a good teacher at University level or TAFE.

49      Mr Pilkington stated that he had managed approximately six teachers under the respondent’s Managing Unsatisfactory and Substandard Performance of Teaching Staff and School Administrators document (“the Policy”) and he stated that two of these teachers improved their performance and two teachers left teaching.  Mr Pilkington confirmed that he told the applicant that at best the applicant had the ability of a graduate teacher.  Mr Pilkington stated that he believed that twenty days was a sufficient period for a teacher to make attempts to improve his or her performance or at least endeavour to show a desire to improve.

50      Mr Pilkington commented on the College’s processes when a parent lodged a complaint about a teacher.  Mr Pilkington stated that after he received a verbal complaint he would ask a parent to put the complaint in writing if the parent wished to pursue the matter further.

51      Mr Pilkington stated that the applicant was treated as a new teacher when he commenced employment at the College and he was monitored under the College’s normal performance management processes.

52      Ms Pilkington has taught for twenty eight years, twenty of those as a classroom teacher in the area of mathematics and she has previously worked as a Deputy Principal at North Albany Senior High School and the College.  Ms Pilkington is currently a Deputy Principal at Geraldton Senior College.  Ms Pilkington was Ms Stewart’s line manager when the applicant commenced employment at the College.

53      Ms Pilkington stated that she first had concerns about the applicant when he did not attend assembly on the day school commenced in 2004.  Ms Pilkington stated that in the first few weeks of Term 1, 2004 Ms Stewart raised concerns with her about the applicant and they discussed appropriate support for him.  Ms Pilkington stated that she was aware that in Term 1 the applicant was given a substantial amount of support by Ms Stewart and that he was able to access sample lesson plans.  When an assessment of the applicant’s performance became more formal Ms Pilkington reviewed pre-arranged lessons given by the applicant.  Ms Pilkington stated that at the time she reviewed the applicant’s lesson plans prior to him conducting these lessons to give the applicant feedback, she then viewed the lessons and provided constructive comments to the applicant about the lesson.  Ms Pilkington stated that a lesson plan template was agreed between the applicant and Ms Stewart to assist the applicant (see Exhibit R1/346).

54      Ms Pilkington stated that she reviewed a lesson plan of a lesson the applicant was to give on 11 August 2004.

55      Ms Pilkington stated that even though the applicant was required to submit his lesson plans to her prior to the day of the lesson he did not do so and this made it difficult to give him feedback and she stated that on most occasions the applicant did not complete the necessary self-evaluations of the lessons he gave.

56      Ms Pilkington stated that the applicant had a meeting with his union representative Ms Mary Franklin on the day she was scheduled to be at the College.  Ms Pilkington stated that she asked staff members to give her notice several days in advance if they wished to have a meeting with their union representative so that a specific time could be set aside.  Ms Pilkington stated that the applicant was allocated to meet with Ms Franklin during his Duty Other Than Teaching (“DOTT”) time and Ms Pilkington stated that she refused the applicant’s request to meet Ms Franklin during his class time as this required the use of a relief teacher.  Ms Pilkington stated that the applicant was not denied the opportunity to meet Ms Franklin and she understood that he met with her during a double period comprising 106 minutes.

57      Ms Pilkington stated that she did not solicit complaints from parents about the applicant and she stated that she was not aware of any students ganging up on the applicant.  Ms Pilkington stated that she did not recall meeting three students to discuss the applicant and leaving them alone in an interview room and Ms Pilkington stated that she did not undermine teachers when they disciplined students.  Ms Pilkington stated that her role was to support staff as well as students and she was an arbiter in the process and she was required to investigate both sides of the story.  Ms Pilkington stated that after verbal complaints were made to her about the applicant she told the parents concerned that if they wanted to take the matter further they needed to write to the Principal.  Ms Pilkington could not recall specific students complaining about the applicant but she stated that when students had issues with a teacher she asked them to write out their complaints so that their issues were clear.

58      Ms Pilkington stated that the applicant was not prepared to achieve the aims of his PIP and she believed the applicant focussed on putting obstacles in the way of improving his performance.

59      Ms Pilkington could not recall having a meeting with the applicant in Term 1, 2004 to discuss his complaints about Ms Stewart and Ms Carey.  Ms Pilkington stated that she had many discussions with the applicant and that most were about his personal life and problems.

60      Ms Pilkington stated that she was concerned about the applicant’s level of English and Ms Pilkington was aware that the applicant had difficulty at times reading and understanding English.  Ms Pilkington stated that she had discussions with Ms Stewart about this issue.

61      Ms Pilkington stated that the applicant had poor classroom management because he was poorly prepared.

62      Ms Pilkington stated that on the day the applicant was taken to hospital by ambulance on 23 August 2004 he was agitated and anxious and wanted a cigarette even though smoking was banned at the College.  Ms Pilkington stated that she located a cigarette for the applicant and when the applicant stated that he was having difficulty lighting the cigarette she told the applicant that she would hold the cigarette for him but not light it.

63      Ms Stewart has been employed by the respondent for 33 years and she has a science degree majoring in maths and psychology and has a Masters of Educational Administration.  Ms Stewart has been the Head of Department of Mathematics at the College since 1998, she line manages all maths teachers at the College and Ms Stewart stated that she links up early with teachers who are new to the College particularly overseas trained teachers, as well as graduates.

64      Ms Stewart stated that at the start of each year she notifies teachers about the required curriculum framework and did so with the applicant.  Ms Stewart stated that she organised weekly review meetings with the applicant to go over any concerns he may have had.  Ms Stewart stated that she was also aware that beginning teachers need assistance constructing programmes and developing weekly and daily lesson plans and she therefore dealt with these issues with the applicant at these meetings.

65      Ms Stewart stated that she was unaware if the applicant was subject to any racial vilification by his students.

66      Ms Stewart stated that on 20 February 2004 she started to document her discussions with the applicant because she felt that he did not understand the feedback and advice that she was giving him.  Ms Stewart stated that in March 2004 she asked the applicant whether he had any issues with reading and understanding the information given to him and she maintained that the applicant said he was not experiencing any problems.  Ms Stewart stated that maths teachers at the College met weekly and she stated that they worked within a friendly and supportive environment where teachers were willing to share their ideas.  Ms Stewart stated that the applicant had access to lesson plans on the computer relevant to the curriculum framework, computer support activities as well as two resource files and library resources.  Sets of textbooks were also in classrooms to assist the applicant with his lessons.

67      Ms Stewart stated that after concerns arose about the applicant’s performance she arranged to view some of the applicant’s lessons to assist him and Ms Stewart made summaries of these lesson reviews (see Exhibit R1/499-503).  Ms Stewart stated that the applicant was given useful feedback but he did not act on suggestions or even remember some of this feedback and that as a result an action plan was developed in April 2004 as one of the strategies to assist the applicant (see Exhibit R1/489).  Ms Stewart stated that this plan was not successful and concerns about the applicant’s performance remained.

68      Ms Stewart stated that she played a key role in the applicant’s PIP which was finalised on 10 June 2004.  Ms Stewart stated the PIP was manageable and that sufficient resources were available to the applicant to deal with his performance problems.

69      Ms Stewart stated that during the applicant’s PIP feedback was given to him by Ms Deb Stone who was specially trained to assist teachers experiencing classroom management problems (Exhibit R1/427-428).

70      Ms Stewart stated that she did not raise the applicant’s accent or level of English with anyone at the College and that the issues were more to do with the manner in which the applicant presented his lessons, not his accent.

71      Ms Stewart stated that it was her view that a teacher could not teach the current curriculum from one textbook.  Ms Stewart stated that she did not discourage the applicant from using textbooks but she made the applicant aware of a number of useful resources including computer resources, library and classroom text book sets that he could use.  Ms Stewart maintained that she did not tell the applicant not to use text books and she said three sets of texts books were available for the applicant to use.  Ms Stewart stated that it was not her role to provide the applicant with lesson plans as this was part of his role as a teacher.  Ms Stewart stated that it was unnecessary that other teachers provide her with lesson plans as she was aware that they were being accountable.  Ms Stewart maintained that as the applicant was often confused during her meetings with him she wrote down what they had discussed for the applicant.  Ms Stewart stated that even though the applicant had the opportunity to review other maths teachers’ classes and relief would have been provided for him and Ms Stewart provided the applicant with the timetables of other maths teachers the applicant did not avail himself of this option.

72      Ms Stewart stated that she was aware that a number of teachers collaborated on a teaching programme for Term 2, 2004 including the applicant and she stated that she was happy with the programme that was developed.  Ms Stewart maintained that she did not tell the applicant not to teach from this programme.

73      Ms Stewart stated that she did not advise the applicant to work part time and Ms Stewart stated that even though she was aware of the applicant’s salary she claimed she did not raise the issue of the applicant’s salary with him.

74      Ms Stewart stated that she observed seven of the applicant’s lessons and took notes about these lessons and after each lesson she typed out her observations to give to the applicant.  Ms Stewart stated that she gave the applicant 7 to 10 days notice of which lessons would be reviewed by her and other teachers and Ms Stewart stated that even though the applicant was required to submit lesson plans two days before each lesson he did not do so.  Ms Stewart stated that the applicant had a good knowledge of mathematics and that his problem was teaching and imparting this knowledge to students.

75      Ms Stewart stated that whilst observing one of the applicant’s classes in Term 1, 2004 she started teaching the students because the lesson had faltered and the students did not have any work to do for approximately twenty minutes.  Ms Stewart stated that she did not undermine the applicant and that she wanted the applicant to succeed as a teacher.  Ms Stewart stated that she had a discussion with the applicant about teaching the topic of square roots and she showed him a teaching method for this concept which had been successful in the past for her and she did not believe she was being critical of the applicant when discussing this concept with him.  Ms Stewart stated that the applicant was given supportive advice at all times and Ms Stewart stated that whenever a suggestion was made about how the applicant could improve his performance he took it as a personal criticism.

76      Ms Stewart maintained that the applicant failed as a teacher because he was unable to make the connection between the content he had to teach and where students were at and that as a result students became disengaged and the PIP put in place for the applicant specifically sought to address these issues.

77      Ms Jack was the manager of operations for the respondent’s Midwest District Office in 2004 and she has had extensive experience in education as a secondary science and mathematics specialist and giving support to teachers, she has worked at the tertiary level and has taught mathematics to difficult and disengaged students.  Ms Jack is currently the District Director of the Pilbara Education District.

78      Ms Jack stated that in August 2004 she was asked by her District Director to provide an independent assessment of the applicant’s classroom management and teaching and learning strategies and that as a result she reviewed two of his lessons (Exhibit R1/286-289).  Ms Jack stated that she arranged which lessons to review with the applicant prior to the lesson taking place and Ms Jack stated that even though the applicant had an understanding of mathematical concepts he was teaching he had difficulty engaging students in learning and as a result had classroom management difficulties.  Ms Jack stated that when she had a discussion with the applicant after she observed his lessons the applicant was initially calm however he then became agitated.  Ms Jack stated that this behaviour was in line with observations from the local member of parliament Mr Shane Hill about the applicant and she understood that Ms Franklin would not deal with the applicant on a one on one basis any longer because of his behaviour (see Exhibit R1/201).  Ms Jack stated that after observing one of the applicant’s lessons she gave him written feedback about the lesson and told the applicant that some students were not listening to him.  Ms Jack stated that she did not tell the applicant that he was not suited to be a high school teacher.  Ms Jack stated that at the end of one of the lessons she observed, two students spoke to her and said that they had asked to be moved to another class.  Ms Jack stated that every time the applicant requested documents from her they were provided and she was aware that the applicant had a meeting with the District Director after he requested this meeting.

79      Ms Meredyth McLarty has been a teacher for 32 years and was the acting Principal at PSHS when the applicant commenced teaching there on 26 April 2005.  Ms McLarty stated that special consideration was given to the applicant’s situation when he commenced teaching at PSHS.  Ms McLarty stated that because of the applicant’s prior performance issues the applicant was given two year nine classes to assist in his preparation and he had the assistance of a supernumerary teacher and she stated that teachers at PSHS were not aware that this teacher was allocated to assist the applicant.  At the time the applicant ceased working at PSHS Ms McLarty was of the view that the applicant’s performance was not satisfactory.  Ms McLarty confirmed that the applicant was subject to a PIP when he was at PSHS.

80      Mr Burgess has had extensive experience undertaking investigations under the Public Sector Management Act 1994 (“the PSM Act”) during the last six years.  He has a Bachelor of Business qualification majoring in Human Resource Management and Industrial Relations as well as a Masters Degree Business Administration.  At the end of 2004 he was contracted by the respondent’s Complaints Management Unit to investigate the applicant’s performance and even though he was instructed to commence this process on 10 December 2004 as he had difficulty contacting the applicant and due to the applicant’s illness he was instructed not to pursue interviewing the applicant until after the applicant commenced employment at PSHS on 26 April 2005.  Mr Burgess stated that on 18 May 2005 he interviewed the applicant and gave him a copy of his statement on that date and the applicant reviewed the statement and returned it on or about 13 June 2005.  Mr Burgess stated that when he commenced his interview with the applicant he was initially agitated but he soon calmed down.  Mr Burgess stated that during his investigation he found no evidence of collusion or bias against the applicant by teachers at the College.

81      Under cross-examination Mr Burgess stated that he did not provide the applicant with background documentation given to him by the respondent nor did he provide the applicant with copies of witnesses’ statements of the persons he interviewed as these were confidential.  Mr Burgess stated that his normal practice was to interview the person the subject of the investigation last unless someone else is identified by that person for further interview.  The report completed by Mr Burgess is at Exhibit R1/45-158.

Submissions

Applicant’s submissions

82      The applicant argues that the respondent’s decision to terminate him was unfair.

83      The applicant submits that he was employed by the respondent from 1999 through to September 2005 under a number of rolling fixed term contracts and therefore had an ongoing expectation of employment with the respondent.

84      The applicant argues that a number of issues contributed to him experiencing difficulties at the College.  The applicant argues that soon after he commenced employment at the College at the start of 2004 he experienced difficulties with Ms Stewart and Ms Carey and these problems made it difficult to work at the College and had a resultant negative impact on his performance.  The applicant claims that Mr Pilkington never addressed his concerns about his line managers, he argues that Mr Pilkington treated him unfairly when he denied him a transfer to a different sub-school and the applicant claims that he received contradictory information from Mr Pilkington about his teaching ability.  The applicant argues that Ms Pilkington invited students to complain about him, he believed that Ms Pilkington was deliberately looking for reasons to criticise him and the applicant claims that Ms Pilkington’s evidence was deliberately framed to paint the applicant in the worst light possible and that she made up evidence.  Concerns about the applicant’s standard of English literacy were never addressed by the College as he did not undergo any training or professional development or receive any assistance to improve his level of English and the applicant believes that his treatment at the College negatively impacted on his health.  The applicant argues that after he was advised by Ms Stewart to work part time and refused to do so Ms Stewart reviewed the applicant’s classes closely.  The applicant was upset by the requirement to provide Ms Stewart with lesson plans for each lesson he taught and this contributed to a difficult working environment for the applicant.  The applicant also argues that Ms Stewart made no effort to overcome her communication breakdown with the applicant.  The applicant was further disadvantaged as he was not provided with a programme or syllabus and Ms Stewart ordered the applicant not to use the mathematics textbook.  The applicant argues that he was undermined when Ms Stewart criticised his teaching which in one instance occurred during of one of the applicant’s classes and the applicant argues that his attempts to discipline students were undermined by Ms Carey.  The applicant claims that criticisms levelled against him were trivial and minor and argues that he was singled out because he was the only person who had to seek permission from his sub-school leader to leave the school premises.  The applicant argues that the decision not to transfer him to an alternative sub-school was inflexible and the applicant claims that he was unable to participate in any off campus professional development.  The applicant also argues that the professional development that was offered to the applicant was of a general nature and not specific to the respondent’s concerns about the applicant’s teaching.

85      The applicant submits that the evidence given by the applicant’s line managers was disingenuous when they stated that their aim was to assist the applicant to become a satisfactory teacher and the applicant claims that he was given insufficient support to improve his teaching.

86      The applicant argues that Ms Jack lacked sufficient independence to be involved in the applicant’s PIP process and the applicant argues that as Ms McLarty did not observe any of the classes taught by the applicant she was therefore unable to comment about his performance.

87      The applicant argues that the failure to call Ms Carey as a witness invites an inference that the evidence that she was likely to give would have damaged the respondent’s case and applicant argues in the alternative as there was no evidence to contradict the applicant’s evidence about his interactions with Ms Carey the applicant’s evidence must be accepted.  The applicant argues that this is also the case for Ms Beth Aitken who was the applicant’s Principal at PSHS.

88      The applicant argues that the respondent failed to provide the mandated minimum number of days for the PIP and claims that the outcome of the PIP was pre-determined.

89      The applicant submits that the respondent failed to take into account a number of relevant considerations when deciding to terminate him.  The applicant was a very experienced teacher who was well versed in the area of mathematics, the applicant’s difficulty in developing a rapport with students was due to a lack of support when disciplining students and constant petty criticisms and the respondent failed to take into account the lack of support networks available to the applicant in Geraldton and at the College.  The respondent also failed to take into account the stress related condition that the applicant was suffering and the effect that the applicant’s medical condition was having on his ability to perform his duties, the availability of alternative remedies and the applicant’s improved performance whilst teaching at PSHS.  The applicant argues that a number of considerations should have been taken into account by the respondent when deciding to terminate the applicant including Ms Pilkington’s antipathy towards the applicant as evidenced by her lack of support and efforts to invite complaints from students about the applicant and the applicant argues that there was an apprehension of bias on Ms Pilkington’s part and that she supported the efforts of her friend Ms Stewart in undermining the applicant and persuading her husband Mr Pilkington to assist in achieving the predetermined outcome of the applicant’s PIP.  Even though Ms Pilkington was removed from the PIP process this occurred late in the PIP process.

90      The applicant argues that he was disadvantaged as Mr Burgess did not provide any of the witness statements to him, the applicant claims that Mr Burgess was not sufficiently independent to conduct a proper review and the applicant maintains that a complaint made by a parent at the College should not have been investigated as part of the review undertaken by Mr Burgess.

91      The applicant argues that prior to reaching a decision to terminate him the respondent did not adequately consider the applicant’s future employment prospects which are substantially reduced given that the respondent is the largest employer of teachers in the State.  The applicant argues that the respondent failed to make use of alternative remedies and failed to provide the applicant with particulars about the basis upon which a decision was made to terminate him.  The applicant submits that his difficulty teaching Year 8 and 9 students ought to have been taken into account when determining an appropriate penalty, for example allowing the applicant to teach upper school classes in another school.

92      The applicant is seeking reinstatement of his employment and compensation for loss of earnings.

93      The applicant requests an opportunity to make submissions about final orders if the Commission finds that he has been unfairly terminated.

Respondent’s submissions

94      The respondent argues that it had good reason to terminate the applicant and did so using an appropriate process.  The respondent maintains that it was appropriate to terminate the applicant as he was unable to demonstrate the capacity to discharge the inherent functions of a teacher and the obligations on him pursuant to s64 of the School Education Act 1999.

95      The respondent argues that the applicant was subject to an extensive, fair and well supported process which was designed to address significant concerns about the applicant’s inability to undertake his duties and there was no corroboration of the applicant’s claim that he was a victim of a process designed to undermine him or that he was treated unfairly.  The respondent argues that despite assistance and support the applicant failed to demonstrate any significant improvement in his performance and on this basis the respondent had no alternative but to terminate the applicant.

96      The respondent argues that the applicant was not disadvantaged by the non receipt of annexures to Mr Burgess’ report as he was given these documents as an attachment to a letter from Mr Alby Huts to the applicant dated 10 December 2004 and the respondent argues that Mr Burgess did not place any significance on the complaint by a parent that the applicant claims should not have been investigated.

97      The respondent argues that there was no bias shown against the applicant during his time at the College as a result of the close personal relationship between a number of the teachers at the College and the respondent argues that there is no documentation associated with the applicant’s difficulties at the College confirming any bias.  The respondent claims that as five different employees monitored the applicant’s performance this demonstrated the efficacy of the process.  Furthermore, Ms Pilkington was removed from the process in August 2004 at the applicant’s request and an experienced maths teacher from outside of the College provided an independent review of the applicant’s performance.

98      The respondent’s witnesses from the College testified that at all times the aim of the applicant’s PIP was to support the applicant to become a satisfactory teacher and a range of steps were taken to ensure a positive outcome for the applicant.  The respondent argues that the applicant was offered both general professional development courses and courses which would specifically address concerns that had been raised with him and claims that the applicant did not avail himself of these opportunities.

99      The respondent argues that the applicant did not formally raise the issue of his health problems contributing to his poor performance at any time with his line managers and that any reference the applicant did make to health issues was made in passing and the respondent maintains that when the applicant raised concerns about his health it was never raised as an issue that would impact on the process relating to the management of his performance.

100   The respondent maintains that the applicant was subject to a reasonable performance review process and the respondent argues that the reduction of four days of the applicant’s PIP 2 was unavoidable and arose as a result of the applicant’s actions as he was unable to return to the College after 31 August 2004.  The respondent argues that it was not possible for the applicant to complete PIP 2 because of his altercation with Mr Pilkington and the resultant direction that he remain away from the College.  There was therefore no opportunity for PIP 2 to run its full course.  Notwithstanding the lack of four extra days for the applicant to improve his performance the respondent argues that this did not materially affect the process as there was no evidence that improvements had been noticed in the applicant’s performance during PIP 1 and PIP 2.  The respondent maintains that the applicant was fully informed about the respondent’s concerns about his performance during the PIP process and the time leading up to his termination and he was given the right of reply at each stage of this process.

101   The respondent argues that Ms Stewart and Ms Carey worked hard to support the applicant and there was no evidence to support the applicant’s claim that Ms Stewart advised him to switch to part time employment.  The applicant was only required to submit lesson plans once formal procedures for the managing of his unsatisfactory performance commenced and Ms Stewart gave evidence that the applicant was encouraged to use text books.  Ms Stewart gave evidence that the applicant was offered support to improve his English but he chose not to take up this option and the respondent argues that the allegations concerning the applicant’s teaching difficulties centred on the core functions of teaching and did not relate to his command of English.  Additionally, the applicant was required to seek permission from his sub-school leader to leave the school because he continually breached his duty of care by returning late to the school grounds.

102   The respondent argues that Mr Pilkington had a reasonable basis not to transfer the applicant to a different sub-school and this refusal did not have a negative impact on the applicant being able to demonstrate being a successful teacher.  The respondent argues that the evidence does not sustain the applicant’s argument that parental complaints against the applicant were solicited and Mr Pilkington’s reference to advising parents to put their complaints in writing was an explanation about the College’s policy when complaints are made about teachers.

103   The respondent argues that the evidence demonstrates that the applicant experienced similar difficulties at PSHS that he experienced at the College and the respondent argues that Ms McLarty was in a position to make an accurate and unbiased judgement as to the applicant’s teaching capabilities when he taught at PSHS.

104   The respondent argues that the process adopted to review the applicant’s performance and assist him to improve during PIP 1 and PIP 2 ended with the applicant not being able to demonstrate any capacity to discharge the inherent functions of a teacher and on this basis the respondent had no option but to terminate the applicant.

Findings and conclusions

Credibility

105   I listened carefully to the evidence given by each witness and closely observed each witness.

106   I have concerns about the evidence given by the applicant.  In my view the applicant was not convincing when he claimed that the support given to him by his line managers to assist him with his performance was inappropriate and that his performance was constantly being unfairly criticised.  I find that the weight of evidence on this issue is against the applicant’s claim given the substantial amount of documentation given to the applicant detailing feedback and strategies designed to assist the applicant to improve his performance which in my view were based on realistic assessments of the applicant’s performance.  I also doubt the applicant’s evidence that he was denied access to resources to effectively teach his classes as again the weight of evidence in this regard was against the applicant.  The applicant made a number of assertions about being poorly treated by his line managers at the College yet no evidence was tendered to corroborate these claims and there was no written or oral evidence supporting the applicant’s claim that his line managers at the College were acting in concert to conspire against him to ensure that he did not succeed.  In my view the applicant was deliberately not forthcoming when giving evidence in chief about his interactions with Mr Pilkington on 31 August 2004 which indicates that the applicant was not being candid when giving evidence about this incident (see Exhibit R1/241).  Additionally, the applicant’s claim that his teaching performance whilst at PSHS was excellent was not supported by the documents relevant to the period he taught at PSHS (see Exhibit R1/554, 543-553, 541-554, 533-4, 526-530, 522, 521, 520, 518-19, 517,514-15).  I also doubt the applicant’s claim that he did not sign a lesson plan dated 3 August 2004 as his signature on this document is similar to his signature on other relevant documents (transcript page 93).  In the circumstances I doubt the veracity of the evidence given by the applicant.

107   I find that the evidence given by all of the respondent’s witnesses in these proceedings was given honestly and to the best of their recollection and in my view each witness gave evidence which was considered and furthermore was consistent with the evidence given by other witnesses for the respondent.  Also a significant amount of documentary evidence supported the evidence given by these witnesses.  On this basis I have no hesitation accepting their evidence.

108   In the circumstances where there is any inconsistency in the evidence given by the applicant and the respondent’s witnesses I have no hesitation in preferring the evidence given by the respondent’s witnesses.

109   Section 78 of the PSM Act, which is contained in Part 5 of that Act and is headed ‘Substandard Performance and Disciplinary Matters’, outlines the rights of appeal to the Commission for relevant employees and there was no dispute and I find that the applicant is a relevant employee for the purposes of these proceedings.

110   In Geoffrey Johnston v Ron Mance, Acting Director General of Department of Education (2002) 83 WAIG 1553 at 1557 Kenner C discussed the approach which should be taken by the Commission with respect to a referral under s78(2) of the PSM Act.  Kenner C stated the following:

“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.”

111   I respectfully agree with the reasoning of Kenner C and find that in this instance, given the nature of this appeal, the Commission can review the respondent’s decision to terminate the applicant as a hearing de novo.

112   Section 79(3) of the PSM Act 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.”

and s79(5) of the PSM Act reads as follows:

“(5) If an employee does not admit to his or her employing authority that his or her performance is substandard for the purposes of this section, that employing authority shall, before forming the opinion that the performance of the employee is substandard for those purposes, cause an investigation to be held into whether or not the performance of the employee is substandard.”

113   The applicant had been employed by the respondent for less than two years when he commenced at the College and it appears therefore that the applicant was on probation when he was terminated (see Clause 12 of the Government School Teachers’ and School Administrators’ Certified Agreement 2004).  The law relating to unfair dismissals when an employee is on probation was considered by the Full Bench in East v Picton Press Pty Ltd (2001) 81 WAIG 1367.  At page 1369 of this decision, the President set out the following principles from East Kimberley Aboriginal Medical Service v The Australian Nursing Federation, Industrial Union of Workers Perth (2000) 80 WAIG 3155:

"Again, the following principles apply -

(a) The employer, throughout the period of probation, retains the right to see whether he/she wants the employee or not in his/her employment.

(b) (i) The employer is entitled to consider the employee as if the employee was still at first interview with the following modifications in this case.

 (ii)  There was an identifiable contract of employment for a period, indeed, a fixed term, including a period of probation of three months.  This advances the matter beyond a notional first interview situation.

(c) Probation is an extension of the selection process, a period of learning and a time for attention, assessment and adjustment to standards of performance and conduct. (Inherent in that is that it is a time for teaching, training and counselling.)

(d) (i) However, a probationary employee knows that he/she is on trial and that he/she must establish his/her suitability for the post.  The employer, on his side, must give the employee a proper opportunity to prove him/herself, but he/she reserves the right to determine the employment with appropriate notice provided he has reason for so doing (see Sommerville v Brinzz Pty Ltd Clerk Vehicle Repair Industry [1994] SAIRComm 8 (31 January 1994), citing Re J M Hamblin v London Borough of Ealing (1975) IRLR 354 and see Hutchinson v Cable Sand (WA) Pty Ltd (FB)(op cit)).

 (ii)  Further, an employee on probation can expect to be counselled and informed that she/he is not meeting the required standards of performance, to be given reasonable training in this respect, and to be warned of the possible consequences of a failure to improve.  Provided this is done, an employee who is on probation would have little cause to complain if a decision was taken during the course of or at the end of a probationary period to terminate the employment (see Sommerville v Brinzz Clerk Vehicle Repair Industry (op cit), citing Hull v F F Seeley Nominees Pty Ltd (1988) 55 SAIR 550 at 562).

(e) (i)  Consonant with those principles, a probationary employee is able to seek reinstatement, but an employer is entitled to terminate a probationary employee more easily, e.g length of service is not a factor generally, because probationary employment is for a finite period and, in that period, assessment, training and acquisition of skills and demonstration of ability can occur.  In addition, any genuine question of compatibility between employer, employee and other employees can be assessed. (This is not a comprehensive inventory of such matters.)

(ii) However, probation is not a licence for harsh, oppressive, capricious, arbitrary or unfair treatment of a probationer (see Hutchinson v Cable Sands (WA) Pty Ltd (FB)(op cit) and the cases cited therein)."

114   In Rosanne Isidora Van Den Broeck v Highway Gynaecology (2000) 81 WAIG 319 at 319 Beech C (as he then was) stated the following:

“A period of probation is a period at least where the employee is to be assessed as being suitable for the job.  The employee knows that he or she is on trial and must establish his or her suitability for the post.  The employer, for its part, must give the employee a proper opportunity to prove him or herself, and an employee on probation can expect to be counselled and informed that if that (sic) he or she is not meeting the required standards of performance dismissal may occur.  An employee is also entitled to receive reasonable training as well as a warning of a possible failure to improve.”

115   As the rights, duties and obligations between employers and employees in the public sector are governed by statute, where it is established that mandatory statutory requirements have not been met, steps taken and decisions arrived at may well be held to be ultra vires and invalid (see Re Kenner; Ex-Parte Minister for Education [2003] WASCA 37 at para 24 per Olsson AUJ [Parker and Templeman JJ agreeing] and also Civil Service Association of WA Incorporated v Director General, Department of Consumer and Employment Protection [2002] 82 WAIG 952).

116   In Public Employment Industrial Relations Authority v Ors v Public Service Association of New South Wales (re Scorzelli and Ors) (1993) 49 IR 169 at 184 the issue of the requirement to adhere to mandatory provisions contained in statutes and regulations covering the Public Sector was canvassed.  In this decision, the Full Court concluded:

“In our opinion the requirement of cl 27(2) to provide particulars is mandatory having regard to the purpose and nature of the whole scheme; that scheme reflects the seriousness of the subject matter of disciplinary action and its consequences The structure of the process afforded by the PSM Act and Regulation, namely, the division of the process into a preliminary inquiry (before or after a charge is made), the provision of a report of the results of the inquiry and, if it is decided to proceed further with the inquiry, the notification to the officer in writing of the charge (or any amended or further charge) AND the particulars thereof AND a copy of the report BEFORE proceeding further with the inquiry make it abundantly clear that it is fundamental and a condition precedent to subsequent action that the prior procedures be scrupulously observed. Indeed it may be considered that the legislative scheme is overly detailed and intricate. But that simply confirms the importance which the legislation attaches to the subject matter. The scheme is obviously designed to ensure that the officer concerned is given every opportunity of answering any allegations and/or charges made and that they are thoroughly investigated. For those purposes to be fulfilled it is necessary for the officer to be fully aware of the precise charge and its component particulars so that the officer may properly defend or answer them. In our opinion, the legislative scheme offers a more streamlined, less legalistic, procedure than that which obtained under the Public Service Act 1979, but it cannot be construed as imposing no, or only a partial, duty to comply with its requirements, breach of which could result in a slipshod, "cavalier" ((sic) to use Hunt J's adjective in Etherton v Public Service Board [1983] 2 NSWLR 297; 6 IR 323 attitude to procedure.”

117   The test for determining whether a dismissal is unfair or not is well settled.  The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant as outlined by the Industrial Appeal Court in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385.  The onus is on the applicant to establish that the dismissal was, in all the circumstances, unfair.  Whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right needs to be determined.  A dismissal for a valid reason within the meaning of the Act may still be unfair if, for example, it is effected in a manner which is unfair.  However, terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair (see Shire of Esperance v Mouritz (1991) 71 WAIG 891 and Byrne v Australian Airlines (1995) 61 IR 32).  In Shire of Esperance v Mouritz (op cit), Kennedy J observed that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust.

118   I have considered the evidence given in these proceedings and reviewed the substantial amount of documentation tendered at the hearing.  On the evidence before me I find that it was appropriate for the applicant’s line managers at the College to determine that the applicant’s performance was substandard in the areas of teaching skills, planning and preparation, professional characteristics, assessing and reporting on student outcomes and classroom management skills and that as at 31 August 2004 it was open to Mr Pilkington to refer the issue of the applicant’s substandard performance to the respondent for further consideration.  I am also of the view that after the issue of the applicant’s substandard performance was referred to the respondent by Mr Pilkington, the respondent dealt with the issues surrounding the applicant’s substandard performance in line with the requirements under the PSM Act and the respondent reviewed relevant documentation about the applicant’s performance including the report completed by Mr Burgess and I find that the respondent took into account relevant considerations prior to determining that it was appropriate to terminate the applicant due to his substandard performance.

119   Paragraph 2 sets out the background to this application.

120   I find that prior to coming to Australia in late 1990 the applicant taught mathematics for a number of years in Egypt and I accept that the applicant has qualifications in the area of mathematics.

121   It was not in dispute that the applicant was initially appointed by the respondent as a temporary teacher at MMDHS from 17 May 1999 to 22 December 1999 and this was extended to 19 December 2001 on 11 August 1999 (see Exhibits R1/509 and 510).  However, it appears that the applicant’s temporary contract was terminated at the end of 1999 due to an unsatisfactory performance report (Exhibit R1/508).  Even though the applicant gave evidence that his performance at MMDHS was not unsatisfactory given my views on witness credit I reject this claim.  The applicant next taught at KSHS for five months on two fixed term contracts (21 July 2003 to 19 December 2003).  I find that the applicant was then appointed on a two year fixed term contract to teach mathematics at the College from 29 January 2004 onwards however the applicant only remained at the College until 31 August 2004 when he was stood down by the respondent.

122   I find that immediately after commencing employment at the College the applicant’s immediate line manager Ms Stewart gave the applicant the standard induction for new teachers and she also gave the applicant extra support in Term 1, 2004 as the applicant was to some extent unfamiliar with teaching in Western Australia.  I find that this support consisted of Ms Stewart regularly spending time with the applicant to assist him to become familiar with College procedures and to ensure that the applicant was aware of what was expected of him as a mathematics teacher with respect to lesson planning and classroom management.

123   I find that early in 2004 it became apparent to the applicant’s line managers, specifically Ms Stewart, Ms Pilkington and Ms Carey that the applicant was experiencing difficulties with his teaching and ensuring that his students were appropriately managed.  I find that when these deficiencies became apparent the applicant was given a substantial amount of support and useful feedback by experienced and qualified teachers under the College’s standard performance management processes.  I also find that given the applicant’s lack of response to instructions and feedback Ms Stewart recorded the expectations required of the applicant and gave the applicant copies of this documentation.  I also find that Ms Carey and Ms Pilkington gave the applicant assistance with his lesson planning and feedback in order to improve his performance and meet the needs of his students (see Exhibits R1/499-503, 490-98, 489, 467, and 466) and I find that Mr Pilkington also assisted the applicant in Term 1, 2004 with both personal and professional issues.

124   I find that in addition to feedback and support designed to assist the applicant to improve his performance he was given a substantial amount of assistance by his line managers to help him to cope with the general demands of teaching at the College including issues such as report writing.  I find that the applicant’s line managers, in particular Mr Pilkington, Ms Pilkington and Ms Stewart handled issues relating to the applicant’s personal and teaching issues in a considered, sympathetic and professional manner and even though Mr Pilkington rejected the applicant’s request to transfer to a different sub-school I accept Mr Pilkington’s evidence that this move would have been disruptive to both staff and students.

125   I find that by May 2004 it became apparent to the applicant’s line managers that the extensive support, feedback and assistance already given to the applicant had not resulted in the required improvements and the applicant was continuing to experience difficulties with his teaching particularly in the area of classroom management and ensuring that students were learning the requisite curricula and in meeting the general requirements of a teacher at the College.  I find that as a result Mr Pilkington decided that the applicant should be subject to a PIP which commenced on 14 June 2004 and continued until 27 August 2004.  I find that even though Mr Pilkington had serious concerns about the applicant’s performance in five main areas – planning and preparation, assessing and reporting on student outcomes, teaching skills, classroom management skills and professional characteristics – he decided to allow the applicant to focus on two of these areas during the PIP process and I accept Mr Pilkington’s evidence that if the applicant showed improvement in these two areas the PIP process would have ceased and the applicant would have continued teaching at the College.

126   I find that the respondent complied with the requirements under the Policy when handling both of the applicant’s PIP periods.  The Policy states that when a PIP is established it shall address identified areas of unsatisfactory performance and assist the employee to obtain a satisfactory standard of performance.  Page 5 of the Policy states that a PIP is to allow for the person subject to the PIP to have his or her performance monitored in a structured way and this person is to be provided with advice and assistance for the duration of the PIP and the Policy requires that an employee be given feedback about his or her progress during the PIP process (see appendix 4.2 of the Policy which sets out a pro forma document to assist in this regard).  I find that the applicant’s PIP was finalised in consultation with the applicant and with the applicant having the assistance of a support person and I find that his PIP was specifically designed to assist the applicant to meet the required performance standards in the two areas identified.  I find that the assistance available to the applicant during his PIP formed part of a co-ordinated and systematic process which was designed, in collaboration with the applicant, to assist the applicant to improve his performance in the required areas.  I find that Ms Pilkington, Ms Stewart and Ms Jack provided appropriate and relevant feedback to the applicant during his PIP so that he could improve his performance within the required timeframes and that Ms Stone, who was specifically trained to assist teachers with classroom management difficulties, also gave feedback to the applicant (see Exhibits R1/444-5, 441, 439, 433-5, 432, 429-431, 427-8, 426, 411-14, 409-10, 408, 403-5, 401, 398-400, 387-97, 374-86, 364-71, 363, 362, 356-60, 354, 354A, 353, 346-51, 339-342, 338, 336, 332-4, 331, 328-30, 326, 321, 312-18, 310, 304-7, 298-9, 296-7, 292 and 286-90).  I find that whilst at the College and in particular during the PIP process the applicant was given the opportunity and time to review lessons given by other teachers but he failed to avail himself of this assistance and I also find that as part of the monitoring and support process undertaken by the applicant’s line managers to assist the applicant, he was required to submit lesson plans to Ms Pilkington and Ms Stewart for feedback prior to giving his lessons, however notwithstanding this support in most instances the applicant failed to comply with this requirement.

127   I reject the applicant’s complaint that because of the reduced timeframe of PIP 2 he was denied a proper opportunity to demonstrate the required improvements in his performance.  I find that the applicant was given an adequate timeframe to improve his performance during both PIP 1 and PIP 2 and it is my view that the reduced timeframe of PIP 2 did not disadvantage the applicant.  As at 31 August 2004 the applicant had already been given the benefit of 36 days of monitoring, support and feedback to improve his performance before he left the College on 31 August 2004, as opposed to the standard 20 days, and based on Mr Pilkington’s assessment of the applicant’s performance in his letter to the applicant dated 31 August 2004 I find that during this extended PIP timeframe the applicant made little if any progress in the required areas.  Furthermore, I find that it was because of the applicant’s poor behaviour and lack of co-operation that eventuated in the applicant failing to complete PIP 2.  I accept the evidence given by Mr Pilkington that the applicant returned to school on 31 August 2004 after having a week off on sick leave after an altercation with a parent and that soon after commencing work that day the applicant became upset after becoming aware of a complaint made about him by a fellow maths teacher, Mr Molina.  I find that the applicant left his classroom and went to Mr Pilkington’s office and abused and threatened Mr Pilkington using foul language.  I find that when Ms Jack overheard this altercation she phoned the District Director who contacted Mr Pilkington on his mobile phone and told Mr Pilkington to stand the applicant down from teaching at the College with immediate effect and to escort him off the premises, which he did.  In the circumstances it is my view that the applicant cannot now complain about his inability to complete the full period of PIP 2.  It is also clear from documentation tendered in these proceedings that the applicant was not allowed to return to the College as the respondent had a concern for the welfare of the applicant’s students and his colleagues given the applicant’s aggressive and threatening behaviour towards Mr Pilkington (see Exhibit R1/214, 219-20, 229, 232, 240, 241 and 244-50).  In any event I find that the applicant’s performance would not have improved to the required standard if he had worked the four remaining days of PIP 2 as there was no evidence that the applicant had demonstrated any improvements in his performance up to 31 August 2004 whilst undergoing PIP 1 and PIP 2.

128   I find that the applicant was afforded procedural fairness during the PIP process.  I find that the applicant was given the opportunity to discuss feedback about his lessons with his line managers after they reviewed his lessons and I find that the applicant had a support person in attendance at the meeting to review his performance held on 29 July 2004.  The applicant also had a meeting with a SSTU representative to discuss his situation and I accept Ms Pilkington’s evidence that she did not make it difficult for the applicant to seek out and obtain assistance from his union representative.  In the event the applicant gave evidence that he had a meeting with Ms Franklin for 40 minutes and Ms Pilkington gave evidence that the applicant met Ms Franklin for nearly two hours.

129   I reject the applicant’s claim that his line managers at the College conspired against him to ensure that he was unable to perform successfully at the College and that as a result he had no chance of convincing his line managers that his performance could improve.  I find that apart from these claims by the applicant, whose evidence I have found to lack credibility, there was no evidence that there was any conspiracy between Mr Pilkington and Ms Pilkington notwithstanding their close relationship, nor any collusion between Ms Pilkington and Ms Stewart to disadvantage the applicant.  In any event, and at the applicant’s request, Ms Pilkington was removed from the PIP process and replaced by Ms Jack who I regard to be a suitably qualified and independent person to give the applicant feedback.  I find that Ms Jack was sufficiently removed from the process to be able to make an objective assessment about the applicant’s performance and it was her view that the applicant’s performance was unsatisfactory after observing two of his lessons (see Exhibit R1/286-89).  I also reject the applicant’s claim that he was not supported when disciplining students as there was no evidence to verify these claims.  I do not consider the applicant’s health to be a major issue which negatively impacted on his performance as there was no evidence that this was a serious issue until the applicant’s altercation with Mr Jackson on 23 August 2004.  Even though the applicant’s health deteriorated towards the end of PIP 2 I conclude that by this stage the applicant had been given sufficient time to address any performance concerns and issues.  The applicant gave evidence that he felt stressed by the PIP process however it is my view the applicant must take some responsibility for this situation given his lack of co-operation with what was expected of him during the PIP process.  I also take into account that there was no evidence tendered at the hearing confirming that the applicant had been in receipt of workers’ compensation payments as a result of the actions of the respondent or the way in which he was treated by his line managers whilst at the College.

130   The applicant made a number of claims about poor treatment by his line managers at the College and he claimed that as a result this resulted in him experiencing difficulties at the College and he therefore claimed that the problems he experienced teaching his student were not of his own making.  I find on the evidence that the applicant had difficulty accepting useful and positive feedback about how he could improve his performance and it is my view that the applicant was reluctant to meet a number of the expectations required of him with respect to his teaching.  I also find that the applicant made little effort to comply with College procedures and processes as evidenced by his refusal at times to return to the College in time for his lessons when he left the college to attend to personal matters and I reject the applicant’s assertion that he was singled out by having to let Ms Carey know that he was leaving the College during work time.  In reaching this view I accept Mr Pilkington’s evidence that the requirement on the applicant to advise Ms Carey when he was leaving and returning to the school arose because the applicant was often absent from the College during his DOTT time and when he returned he was sometimes late for his classes.

131   I reject the applicant’s claim that the College should have arranged for the applicant to attend a specific professional development course to improve his level of English literacy as I accept Ms Stewart’s evidence that the applicant’s communication problems mainly related to the way in which the applicant presented his lessons and not his accent.  Additionally, it is my view that after reviewing documentation generated by the applicant during his time at the College in response to issues raised with him by his line managers at the College that the applicant had a reasonable grasp of English (see Exhibit R1/566-7, 565, 532, 442-3, 414-25, 335, 327, 322-25, 271-79, 253-5, 225-7, 195-6, 191, 186-7 and 179-85).

132   I find that during the applicant’s time at the College, including Term 1, 2004, a number of verbal and written complaints were made about the ineffectiveness of the applicant’s teaching by a number of parents which in my view supports Mr Pilkington’s conclusion that the applicant was experiencing ongoing performance difficulties (see Exhibits R1/461-5, 343, 337, 303, 269-70, and 266).  I accept Mr Pilkington’s evidence that parents complained to him about the applicant and that the applicant was informed about these complaints and I also accept Mr Pilkington’s evidence that it was unusual for parents to complain about a teacher in Term 1 of a school year.  I reject the applicant’s claim that the only complaints made against him by parents and students related to one group of students who were effectively ganging up on him as I accept Mr Pilkington’s evidence that over a reasonably lengthy period of time a number of other parents approached him with complaints about the applicant.  I also find on the evidence that none of the applicant’s line managers, including Mr Pilkington, solicited complaints from parents about the applicant and that the applicant’s line managers did not undermine the applicant when dealing with disciplinary issues concerning the applicant’s students.

133   I reject the applicant’s claim that he had an ongoing expectation of work with the respondent as he was employed by the respondent on a series of fixed term contracts as the applicant was not employed by the respondent on end to end contracts prior to commencing employment at the College.  In any event the applicant’s ongoing employment with the respondent was subject to the applicant demonstrating satisfactory performance.

134   The applicant maintained that the failure to call Ms Carey to give evidence should invite the Commission to infer that her evidence would have been unhelpful or in the alternative the applicant’s evidence about his interactions with Ms Carey should be accepted.  As I have serious concerns about the credibility of the applicant’s evidence in general I do not accept the applicant’s evidence about his interactions with Ms Carey.  In reaching this view I also take into account that the weight of evidence is against the applicant in relation to his views about how he was treated by his line managers at the College.

135   I accept Mr Pilkington’s evidence that the applicant’s performance had not improved to a satisfactory standard as at 31 August 2004 and I therefore find that it was open to Mr Pilkington to determine that the applicant’s performance was substandard in the areas of teaching skills, planning and preparation, professional characteristics, assessing and reporting on student outcomes and classroom management skills and that the applicant’s substandard performance should be referred to the respondent for consideration.

136   I reject the applicant’s claim that his performance at PSHS was satisfactory.  I find that documentation tendered at the hearing confirmed that the applicant was unable to fulfil a range of day to day requirements on him as a teacher when he taught at PSHS (see Exhibits R1/514-522, 526-30, 533-4 and 541-55).  In my view these documents clearly indicate that the applicant was experiencing performance difficulties at PSHS similar to the performance issues he had at the College and some documents also confirm that the applicant had difficulty accepting feedback and advice about his lessons which was also the case during the applicant’s time at the College.

137   The agreement provides at Clause 12.1 that all employees appointed by the respondent shall be employed on probation for a period not exceeding two years, with an option to extend this period for two further terms.  The applicant had been employed by the respondent for approximately twelve months prior to being appointed at the College and I therefore find that the applicant was on probation during 2004.  When applying the authorities relevant to probationary employment I find that the applicant was given sufficient opportunity and support to demonstrate that he was able to fulfil the teaching and professional standards required of him at the College and that he was given sufficient feedback and assistance to meet these requirements.  I find that the applicant also had the opportunity to attend professional development sessions to assist him with his teaching and could review other teachers’ lessons however the applicant did not avail himself of these opportunities.  In all of the circumstances it is my view that the applicant has not demonstrated that his probationary status warranted the respondent continuing to employ him as at 21 September 2005.  In reaching this view I also take into account that the applicant had prior experience teaching mathematics as he had taught in this area for several years prior to coming to Australia.  In the alternative if the applicant was not on probation at the time he was terminated I find that in any even the applicant’s performance was substandard and in the circumstances it was therefore open to the respondent to terminate the applicant.

138   I find that the process undertaken by the respondent in order to review and effect the applicant’s termination in the main conformed with the required statutory elements and that some minor omissions in the process were not such as to invalidate the whole process.  I find that as required under s79(5) of the PSM Act an investigation was undertaken by Mr Burgess into whether or not the applicant’s performance was substandard.  I accept that Mr Burgess interviewed the applicant using a fair process and that after the interview the applicant was given a copy of this statement to review and to make any alterations.  Even though Mr Burgess did not provide the applicant with background documents provided to him by the respondent this was not raised as an issue by the applicant.  In any event the assertion by the respondent’s representative that these documents were sent to the applicant in December 2004 prior to being interviewed by Mr Burgess was not contested by the applicant.  I accept that Mr Burgess did not place any reliance on the applicant’s altercation with a parent, Mr Jackson, when forming the view that the applicant’s performance was substandard and I conclude that Mr Burgess’ investigation was completed in an independent and unbiased manner.  I have some difficulty that the witness statements of the persons whom Mr Burgess interviewed were not provided to the applicant, however as all of the persons Mr Burgess interviewed gave evidence in these proceedings I find that this issue has since been overtaken.

139   I find that after the respondent received the report of the investigation undertaken by Mr Burgess it reviewed the findings made by Mr Burgess and documentation relevant to the applicant’s performance and behaviour and determined that the applicant should be terminated.  After reaching this conclusion the applicant was then given the opportunity to respond to this decision and to the issue of penalty and did so on 9 August 2005 (see Exhibit R1/33).  I find that after receiving this correspondence and considering the issues raised by the applicant it remained open for the respondent to determine that in all of the circumstances the applicant should be terminated as the applicant’s performance at the College had been substandard in two critical areas and the standard of the applicant’s performance remained questionable in three other areas planning and preparation, professional characteristics and assessing and reporting on student outcomes which are fundamental to being a successful teacher.  In any event I find on the evidence that notwithstanding that the applicant’s performance was substandard it was open for the respondent to terminate the applicant for gross misconduct as it is my view that the applicant misconducted himself and breached his contractual obligations to the respondent when he abused and threatened Mr Pilkington using foul language on 31 August 2004.  I have reached this conclusion on the basis that it is my view that the applicant’s actions towards Mr Pilkington on this date were inappropriate, unprovoked and unwarranted.

140   In the circumstances and when applying the relevant authorities I find that the applicant’s claim that he has been unfairly terminated is without merit and should be dismissed.