WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2009 WAIRC 01180

DELIVERED : TUESDAY, 10 NOVEMBER. 2009

FILE NO. : FBA 27 OF 2006

Appellant

AND

Director General, Department of Education and Training

Respondent

ON APPEAL FROM:

Jurisdiction: Western Australian Industrial Relations Commission 

Coram: Commissioner J L Harrison  

Citation: 2006 WAIRC 04786 

File No: U 116 of 2005 

CatchWords:

Industrial Law (WA) – Appeal against decision of the Commission – Claim of unfair dismissal – Complaint about conduct of the Commissioner and Counsel – Consideration of documentary evidence – Decision turns on its own facts – Appeal dismissed

Legislation:

Industrial Relations Act 1979 (WA): s23A

Public Sector Management Act 1984 WA: s79(5).

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person

Respondent: Ms R Hartley (of Counsel), by leave

Solicitors:

Respondent: State Solicitor’s Office

Case(s) referred to in reasons:

Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410.

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194.

Gronow v Gronow (1979) 144 CLR 513.

House v King (1936) 55 CLR 499.

Jago v District Court (NSW) (1989) 168 CLR 23

Michael v Director-General, Department of Education and Training (2008) 89 WAIG 1.

Michael v Director General, Department of Education and Training (2008) 88 WAIG 592.

Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79

Norbis v Norbis (1986) 161 CLR 513

Shire of Esperance v Mouritz (1991) 71 WAIG 891.

Undercliffe Nursing Home v Federation Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1985) 65 WAIG 385.

Reasons for Decision

RITTER AP:

The Application, Hearing and Decision

1          On 14 October 2005 the appellant filed a notice of application seeking an order pursuant to s23A of the Industrial Relations Act 1979 (WA) (the Act).  The application was made on the ground that the appellant’s dismissal as a state school mathematics teacher, on 21 September 2005, was ‘harsh, unjust and unreasonable’. The appellant was then teaching at Pinjarra Senior High School although the dismissal was for his substandard teaching performance as a mathematics teacher at John Willcock College in Geraldton (the College) in 2004.  The appellant sought reinstatement and compensation.  The application was defended and proceeded to a hearing.  The appellant was at that stage represented by solicitors and counsel.

2          The hearing took place on 20 and 21 April 2006.  Final written submissions were then filed and reasons for decision were delivered on 24 July 2006.  On the same date an order was made dismissing the application.

The Progress of the Appeal

3          On 14 August 2006 the appellant instituted an appeal against the dismissal of the application.  At that time the appellant was still represented by his solicitors.  The notice of appeal was accompanied by a document setting out 10 “Grounds of Appeal”.  After the filing of the notice of appeal the appellant ceased to retain his solicitors.

4          The appeal was not progressed for a lengthy period of time, for a number of reasons which do not need to be presently set out.  In the latter half of 2007 the appeal was reactivated.  An appeal book and two interlocutory applications were filed on 27 August 2007.  In summary the interlocutory applications were for the Full Bench to receive documents in the appeal which were not in evidence at first instance and to view the video record of the proceedings at first instance.  Both of the interlocutory applications were dismissed (Michael v Director General, Department of Education and Training (2008) 88 WAIG 592).  An attempt to appeal against that decision was dismissed by the Industrial Appeal Court (Michael v Director-General, Department of Education and Training (2008) 89 WAIG 1).

5          After this there were some additional delays in the hearing of the appeal.  Again the reasons for this need not be set out.  Then, pursuant to orders made at a directions hearing the appellant filed a document setting out his amended grounds of appeal.  This occurred on 7 August 2009.  At the hearing of the appeal the appellant elaborated upon and added to his grounds of complaint about the decision at first instance. The appellant said at the beginning of the hearing that his submissions may add to what he had filed. Additionally, due to leave given to the appellant at the hearing of the appeal, documents were filed by the appellant on 20 and 28 August 2009 setting out additional submissions.  The respondent was given the opportunity to respond to the latter documents, but did not wish to do so.  I will later set out the substance of the complaints made by the appellant about the decision at first instance.

Witnesses

6          At the hearing of the application the appellant was the only witness who gave evidence in support of his application.  The respondent called the following witnesses:

(a) Mr Kevin Pilkington, the Principal of the College.

(b) Mrs Kathy Pilkington, the Deputy Principal at Geraldton Senior College and Deputy Principal at the College in 2004.  (Mr and Mrs Pilkington were married).

(c) Ms Jillian Stewart, Head of Mathematics Department at the College.

(d) Ms Vicki Jack, at the relevant time the Manager of Operations at the Mid-West District Education Office of the Department of Education, and at the time of the hearing the District Director of the Pilbara Education District.

(e) Ms Meredyth McLarty, the Acting Principal of Pinjarra Senior High School, when the appellant taught there in 2005.

(f) Mr Peter Burgess who was appointed on behalf of the respondent to investigate the appellant’s alleged substandard teaching performance.

Relevant Dates

7          The following dates are relevant to understanding the process which led to the termination of the employment of the appellant:

Documents

8          A key part of the evidence at first instance was comprised by a large number of documents.  In my reasons for decision in the interlocutory applications, I described the position regarding the documents in the following way:

“64 On the first morning of the hearing on 20 April 2006 the appellant’s counsel said that he had been provided by the respondent with two folders of documents containing ‘about 600 pages’.  Counsel then said the appellant did not ‘have any further documents that we’ll be referring to’ (T6).  The respondent’s advocate then explained some colour co-ordination of the files of documents.  They were then received as exhibit R1 (T6).  The appellant’s counsel said the bundle of documents had been provided ‘yesterday’ and that he had the chance of briefly going through all of them.  He said he did not ‘think that there is anything further that the [appellant] wishes to rely on but, because of the timing of the provision of the documents it may take me a while to go through the examination-in-chief” (T6-7).  The appellant then gave evidence.  The appellant’s examination-in-chief, cross-examination and re-examination were concluded that day.  No other documents were received into evidence that day.

65 The respondent’s witnesses gave evidence the next day.  During their examination in chief, cross-examination and re-examination no additional documents were tendered by either party.

66 At the conclusion of the evidence there was discussion between the Commissioner and the appellant’s counsel about the documents in exhibit R1.  The Commissioner asked counsel whether he took issue with any of the documents (T157).  Reference was made to the lack of any objection at the commencement of the hearing.  Reference was also made to the evidence of the appellant that he did not sign a document said to include his signature (see T157; the evidence was at T61 and T71).  This document was a lesson plan dated 3 August 2004 at page 347 of exhibit R1.  After some discussion the appellant’s counsel said he did not have the original of the document (T159).  There was then discussion about the appellant’s counsel being able to review the original of that lesson plan which could be discussed between advocates after the adjournment for the preparation of written submissions.  (The issue was not raised in the written closing submissions).

67 The appellant’s counsel then informed the Commissioner there was ‘one further document that was referred to in [the appellant’s] evidence-in-chief which we weren’t able to locate … in the bundle of documents that have been provided’ (T159).  Counsel described the document and requested it be received.  This was not objected to by the respondent’s advocate and the document became exhibit A1.  This was a series of notes written by a Ms Ventouras at Pinjarra Senior High School covering the period 27 April 2005 to 29 April 2005. 

68 Just before the proceedings were adjourned there was discussion about a handwritten note by a student called “Holly”.  The appellant’s counsel made a deliberate decision not to tender this document (T161).  This was because he said the evidence of the appellant which the note supported was already sufficiently supported by the document at exhibit R1 pages 436 - 437 which was another handwritten note by “Holly” dated 7 June 2004.”

Reasons – The Evidence

9          In her reasons for decision the Commissioner set out at some length the evidence which was given by the witnesses at the hearing.  Given some of the points relied on by the appellant in support of the appeal, it is necessary to summarise what the Commissioner said about the evidence of the witnesses. 

(a) The Appellant

10       The appellant obtained a Bachelor of Science and Education in Cairo and taught for a number of years in Egypt before coming to Australia.  The Commissioner summarised the appellant’s teaching experience in Western Australia.

11       From his third day at the College the appellant had a poor relationship with Ms Stewart.  Ms Stewart and his sub-school leader Ms Barbara Carey had complained to Mr Pilkington about communication difficulties.

12       In March 2004 Ms Stewart told the appellant that his salary was too big.  She advised him to change to part-time teaching to allow sufficient time to prepare for lessons.  The appellant did not accept this and Ms Stewart then said she would check his lesson plans.  During March and April 2004 he had difficulties with Ms Stewart about the teaching of his classes and she was critical of his lessons.  She attended one of his lessons and took it over.  The appellant became anxious and upset as a result.  Ms Stewart continued to review his lessons and required him to submit his lesson plans to her 24 hours in advance of a lesson.  This was sometimes difficult to achieve.  Ms Stewart did not understand his teaching methods or make positive comments about his teaching.  She was against him because he was earning a high income. 

13       Difficulties continued with Ms Stewart and also Ms Carey and around the end of March 2004 the appellant complained to Mr Pilkington about their treatment of him.  A meeting was arranged with Mrs Pilkington at which the appellant requested a move to another sub-school.  He was informed that this could not occur.  Mrs Pilkington said she would try and fix the problem and then had meetings with the appellant, Ms Stewart and Ms Carey.  An action plan was developed to improve outcomes for the appellant’s students (Exhibit R1 489).  The appellant had difficulties in adhering to the action plan and all of his actions were constantly being reported to Mr Pilkington.  The appellant became depressed and took medication.  The appellant’s line managers planned to destroy him and kick him out of the school.  He was concerned after seeing Ms Stewart and Mrs Pilkington talking after reviewing one of his lessons, instead of independently assessing it.  He disagreed with Ms Stewart about methods of teaching.

14       From early in term 1, 2004 the appellant was stressed and believed his capacity to teach was destroyed by Ms Stewart and Ms Carey.  He was not given any support from Ms Carey when disciplining students.  An example of this was given.

15       Ms Stewart refused to accept year 8 and 9 teaching programmes which he and other colleagues prepared at the start of term 2, 2004. 

16       Mr Pilkington also did not support him.  He observed a lesson and said that the appellant’s students were bored.

17       After the appellant was advised that his teaching performance was unsatisfactory, Mrs Pilkington did not allow him adequate time to meet with his union representative to discuss the issue.  They only met for 45 minutes. 

18       The only complaints made about the appellant were about and/or from three students.  The appellant was discriminated against as his line manager did not treat him in the same way as other teachers when students misbehaved.  Mrs Pilkington preferred the accounts of students about the appellant’s interactions with them.  The appellant complained to Mr Pilkington about Mrs Pilkington and Ms Stewart and requested a new line manager.

19       Nevertheless, during 2004 the appellant’s performance improved and this was illustrated by a letter from a parent who had previously complained about him. 

20       After the appellant complained to Mr Pilkington about Mrs Pilkington reviewing his classes, this ceased.  She was replaced by Ms Jack.  The appellant did not however trust Ms Jack. 

21       There was an issue about the appellant giving reports to his students before they had been reviewed by Ms Carey.  The appellant said he was unaware of the instruction not to do so and completed a written account of the issue (Exhibit R1 322). 

22       The appellant was stressed and ill before he ceased working at the College.  He was taken to hospital by ambulance on 23 August 2004 and had one week off because of illness. 

23       When he returned, Mr Pilkington advised him that he had received a directive that the appellant was not to be left alone in a classroom and was to have an assistant teacher.  On the same day the appellant read complaints made about him by a colleague, Mr Saul Molina.  The appellant wanted to discuss these complaints with Mr Pilkington however Mr Pilkington directed him to leave the school and to report to Ms Jack.  He later visited a general practitioner who said he was unfit for work due to work related stress.  In March 2005 he saw a consultant psychiatrist. 

24       Although the appellant was on a PIP when at Pinjarra Senior High School in 2005, he was told by the principal that his performance was excellent. 

25       In 2005 the appellant was interviewed by Mr Burgess.  He did not trust Mr Burgess and believed he was part of the strategy to terminate his employment. 

26       When cross-examined the appellant said an assistant who sat in on his classes at the College was used to gather evidence against him. 

27       The appellant was asked about a letter written on his behalf by the State School Teachers’ Union about his employment at Mount Magnet District High School.  The appellant said he had not seen the letter before and disputed that his performance was unsatisfactory at Mount Magnet. 

28       The appellant agreed he was given an induction when he commenced at the College and was aware of how it was organised and run.  He also acknowledged that in March 2004 a parent complained about him.

29       The appellant also confirmed discussions with Mr Pilkington about his health at the College.

30       The appellant was asked to refer to any documents which supported his view that he was being harassed and treated unfairly.  He gave an example of a time when Ms Stewart said to him “monkey see, monkey do” about using a text book when teaching.

31       The appellant said he did not sign a lesson plan dated 3 August 2004 which appeared to contain his signature.  He said that it may be a forgery (Exhibit R1 346).

(b) Mr Pilkington

32       Mr Pilkington’s experience as a teacher and principal was summarised.

33       From his observations and feedback from line managers, Mr Pilkington became aware the appellant was having difficulties from early on in term 1, 2004.  He also received informal complaints from parents.  Ms Stewart then had weekly meetings with the appellant who was advised to view the classes of other teachers. 

34       During term 1, 2004 the appellant was subject to the usual performance management processes but by the end of the term his performance had not improved.  Mr Pilkington was a mentor to the appellant in that term and they had a good relationship.

35       When the appellant’s performance did not improve, Mr Pilkington formally notified him on 20 May 2004 that his performance was substandard (Exhibit R1 451).  The appellant’s response did not acknowledge the concerns raised by Mr Pilkington.  Accordingly, Ms Stewart was instructed to agree with the appellant upon a PIP. 

36       There was a meeting on 29 July 2004 to review the appellant’s progress.  The appellant was advised that his performance remained unsatisfactory.  On 2 August 2004 the appellant was advised in writing that he was to be subject to a further review period from 30 July 2004 to 27 August 2004. 

37       Mr Pilkington referred to his interaction with the appellant on 31 August 2004 and the directive to arrange for the appellant to have a support person in his classes.  Mr Pilkington said that on the same day, after the appellant had read Mr Molina’s complaint, he entered his office and abused him using foul language.  Ms Jack was present at the school at the time and telephoned the District Director about what had occurred.  In turn the District Director instructed Mr Pilkington to stand the appellant down with immediate effect.  Due to this the appellant was unable to complete the four remaining days of the second PIP.  Soon after this Mr Pilkington wrote to the appellant and advised him that he had not demonstrated satisfactory performance and he would recommend to the Director General that his performance be investigated (Exhibit R1 241). 

38       Mr Pilkington reviewed one of the appellant’s lessons on 11 August 2004 after Mrs Pilkington was removed from the PIP.  That occurred because the appellant had asked that both Ms Stewart and Mrs Pilkington be removed from assessing the appellant.  After consulting the District Director, Mrs Pilkington was removed from the process for the purpose of transparency, even though Mr Pilkington believed Mrs Pilkington was a highly experienced mathematics teacher who was capable of giving feedback to the appellant.  The appellant was advised of Mrs Pilkington’s removal from the process by letter dated 18 August 2004 (Exhibit R1 296).

39       Mr Pilkington did not solicit complaints about the appellant from parents.  Complaints commenced about the appellant in late term 1, 2004 and they became more serious in term 2, 2004.  There was a group of girls who fell out with the appellant and accordingly there was a cluster of complaints made about him at the same time. 

40       When cross-examined Mr Pilkington said that in term 1, 2004, the appellant’s line managers raised issues with him about the appellant’s literacy level.  This was discussed with the appellant in a friendly and supportive way.  He refused to transfer the appellant to another sub-school because of difficulties in doing so. 

41       Mr Pilkington acknowledged the appellant was intelligent and had a good grasp of mathematical concepts and that he had stated to the appellant that he would be a good teacher at University level or TAFE.  He accepted that he told the appellant that at best he had the ability of a graduate teacher. 

42       Mr Pilkington believed that 20 days was a sufficient period for a teacher to make attempts to improve their performance. 

43       Mr Pilkington said that after a parent made a verbal complaint about a teacher he would ask them to put the complaint in writing if they wished to pursue it further.

(c) Mrs Pilkington

44       Mrs Pilkington’s teaching experience was summarised.

45       Mrs Pilkington said that Ms Stewart raised concerns about the appellant in the first few weeks of term 1, 2004.  The appellant was given a substantial amount of support by Ms Stewart and he was able to access sample lesson plans.

46       When assessment of the appellant’s performance became more formal, Mrs Pilkington reviewed lessons given by him.  She also reviewed lesson plans prior to viewing the lessons, to give the appellant feedback. 

47       Although the appellant was required to submit lesson plans to her prior to the day of lessons which were reviewed, he did not do so.  This made it difficult to provide feedback.  Also, on most occasions the appellant did not complete the necessary self evaluations of the lessons which were given.

48       Mrs Pilkington said that when the appellant’s union representative, Ms Mary Franklin, attended at the College, the appellant was able to meet with her during a double period comprising 106 minutes.

49       Mrs Pilkington did not solicit complaints from parents about the appellant.  Nor did Mrs Pilkington undermine the appellant when disciplining students.  When there was a disagreement between staff and students, she was to act as an arbitrator in the process and required to investigate both sides of the story.  After verbal complaints were made to Mrs Pilkington about the appellant she told parents that if they wanted to take the matter any further they needed to write to Mr Pilkington.

50       The appellant was not prepared to achieve the aims of the PIP and he was focused on putting obstacles in the way of improving his performance.

51       Mrs Pilkington was concerned about the appellant’s level of English literacy.  She discussed this with Ms Stewart.

52       Mrs Pilkington said the appellant had poor classroom management because he was poorly prepared. 

(d) Ms Stewart

53       Ms Stewart’s qualifications and teaching experience were described.  She has been head of mathematics at the College since 1998. 

54       At the commencement of 2004 she discussed the required curriculum framework with the appellant.  Weekly review meetings were arranged so that any concerns the appellant may have had could be discussed.  As the appellant was a new teacher Ms Stewart also assisted him in constructing programmes and developing weekly and daily lesson plans.  The appellant also had access to examples of lesson plans, resource files, library resources and text books.

55       On 20 February 2004 Ms Stewart began to document her discussions with the appellant.  This is because she felt he did not understand the feedback and advice he was being given.  In March 2004 Ms Stewart discussed with the appellant whether he had any difficulties in reading and understanding information given to him.  He said he did not.

56       After concerns arose about the appellant’s teaching performance, Ms Stewart arranged to view some of his lessons to assist him.  She made summaries of these reviews (Exhibit R1 499-503).  The appellant was given feedback but the situation did not improve.  Accordingly an action plan was developed in April 2004 as a strategy to assist the appellant (Exhibit R1 489).  The plan was not successful however and concerns about the appellant remained.

57       Ms Stewart played a key role in the development of the PIP, which was finalised on 10 June 2004.  During the PIP, feedback to the appellant was given by Ms Deb Stone who was trained to assist teachers who experienced classroom management problems (Exhibit R1 427).

58       Ms Stewart said she did not discourage the appellant from using text books but made him aware of other resources which he could use.  Her view was that the curriculum could not be taught from a single text book.  Other teachers were not required to provide her with lesson plans because it was not necessary for them to do so.  The appellant did not take the opportunity which he was given to review other mathematics classes. 

59       Ms Stewart said she did not tell the appellant not to teach the programme which he and other teachers had developed for term 2, 2004. 

60       Ms Stewart said that although she was aware of the appellant’s salary she did not raise that issue with him.  She did not advise him to work part-time. 

61       Ms Stewart observed seven of the appellant’s lessons and took notes about those lessons.  The observations were typed out to give to the appellant.  She gave the appellant 7-10 days’ notice of the lessons to be reviewed by her and other teachers.  The appellant was required to submit lesson plans two days before each lesson but he did not do so.  Although the appellant had a good knowledge of mathematics his problem was teaching and imparting the knowledge to students. 

62       During one class which she observed in term 1, 2004, Ms Stewart starting teaching the students because the lesson had faltered and they did not have any work to do for approximately 20 minutes.  Ms Stewart did not undermine the appellant and she wanted him to succeed. 

63       Ms Stewart said the appellant failed as a teacher because he could not make the connection between the content he had to teach and where the students were at.  The students therefore became disengaged.  The PIP sought to address these issues. 

(e) Ms Jack

64       Ms Jack’s experience was described.  In August 2004 she was asked by her District Director to provide an independent assessment of the appellant’s classroom management and his teaching and learning strategies.  Accordingly, she reviewed two of the appellant’s lessons (Exhibit R1 286-289).  Ms Jack said the appellant had difficulties engaging students in learning and as a result had classroom management difficulties.  When discussing her observations of the lessons with the appellant he became agitated. 

65       Ms Jack gave the appellant written feedback after observing one of the lessons.  She advised the appellant some students were not listening to him.  At the end of one of the lessons, two students spoke to her and requested to be moved to another class. 

(f) Ms McLarty

66       Ms McLarty’s teaching experience was described.  Ms McLarty said the appellant was given particular assistance when at Pinjarra Senior High School because of his prior performance issues.  He was subject to a PIP when at Pinjarra Senior High School.  Ms McLarty’s opinion was that his performance was not satisfactory. 

(g) Mr Burgess

67       Mr Burgess’ qualifications and experience as a public sector investigator were described. 

68       At the end of 2004, Mr Burgess was contracted by the respondent’s complaints management unit to investigate the appellant’s performance.  There was a delay in the investigation because the appellant was ill.  Accordingly Mr Burgess was instructed not to interview the appellant until after he commenced employment at Pinjarra Senior High School on 26 April 2005.  On 18 May 2005 Mr Burgess interviewed the appellant.  A copy of a statement based on the interview was provided on the same date.  That was reviewed by the appellant and returned on or about 13 June 2005.

69       During his investigation Mr Burgess found no evidence of collusion or bias against the appellant by teachers at the College.

70       When cross-examined Mr Burgess said he did not provide the appellant with background documentation given to him by the respondent nor copies of witness statements from people he had interviewed.  This was because these were confidential.  The report completed by Mr Burgess was exhibit R1 45-158.  It concluded that the allegation that the appellant’s performance was substandard was proven.

Reasons - Submissions

71       The Commissioner summarised the written submissions made by the appellant and the respondent at some length.  It is unnecessary to set this out. 

Reasons - The Commissioner’s Findings and Conclusions

72       The Commissioner commenced this part of her reasons by making findings and observations about credibility.  At [106] she said that she had concerns about the evidence given by the appellant.  The Commissioner said he was not convincing in his claims about unfair criticism and support by his line managers.  The Commissioner said the weight of evidence on the issue was against the appellant given the substantial amount of documentation given to him detailing feedback and strategies designed to assist him to improve his performance.  The Commissioner also said that the appellant’s claim about being poorly treated was not corroborated and there was no written or oral evidence supporting the claim that his line managers were acting in concert to conspire against him to ensure that he did not succeed.  A finding was made that the appellant was deliberately not forthcoming when giving evidence in chief about his interactions with Mr Pilkington on 31 August 2004 (Exhibit R1 241).  The Commissioner also said that the appellant’s claim that his teaching performance while at Pinjarra Senior High School was excellent was not supported by the documents relevant to that period.  The Commissioner set out the pages of the relevant documents in exhibit R1. 

73       The appellant’s claim that he did not sign the lesson plan dated 3 August 2004 was doubted as the signature was similar to his signature on other documents.  The veracity of the evidence given by the appellant was therefore doubted. 

74       In contrast the Commissioner said at [107] that all of the evidence by the respondent’s witnesses was given honestly and to the best of their recollection.  Their evidence was consistent with the evidence given by other witnesses for the respondent and supported by documentary evidence.  The Commissioner said that she had no hesitation accepting their evidence.  Also, where there was inconsistency in the evidence given by the appellant and the respondent’s witnesses, the latter was preferred. 

75       The Commissioner then set out her understanding of the legislation and case law relevant to deciding the application.  At [113] the Commissioner referred to the appellant being employed for less than two years when he commenced at the College.  She said that it therefore appeared that he was on probation when terminated.  Clause 12 of the Government School Teachers’ and School Administrators’ Certified Agreement 2004 was cited.  The Commissioner then set out the law with respect to unfair dismissals when an employee was on probation. 

76       The Commissioner then set out issues relevant to the termination of employment of public sector employees where statutory requirements applied.  At [117] the Commissioner set out the “test for determining whether a dismissal is unfair or not”.  Leading authorities of Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1985) 65 WAIG 385, Shire of Esperance v Mouritz (1991) 71 WAIG 891 and Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410, were cited.  The Commissioner said that the appellant had the onus of establishing that his dismissal was, in all the circumstances, unfair.  What needed to be determined by the Commission was whether the right of the employer to terminate the employment was exercised so harshly or oppressively or unfairly as to amount to an abuse of the right.  The Commissioner said the termination of employment in a procedurally unfair way may constitute an unfair dismissal. 

77       At [118] the Commissioner said:

“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 it was appropriate for the [appellant’s] line managers at the College to determine that the [appellant’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 [appellant’s] substandard performance to the respondent for further consideration.  I am also of the view that after the issue of the [appellant’s] substandard performance was referred to the respondent by Mr Pilkington, the respondent dealt with the issues surrounding the [appellant’s] substandard performance in line with the requirements under the [Public Sector Management Act 1994 (WA)] and the respondent reviewed relevant documentation about the [appellant’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 [appellant] due to his substandard performance.”

78       The Commissioner then made findings about the evidence given about the appellant’s teaching performance at the College in 2004.  The Commissioner found that Ms Stewart gave the appellant support in term 1, 2004.  The Commissioner also found that early in that term it became apparent to Ms Stewart, Mrs Pilkington and Ms Carey that the appellant was experiencing difficulties with his teaching and ensuring that his students were properly managed.  The Commissioner found the appellant was given a substantial amount of support and useful feedback.  The Commissioner also found that there was a lack of response by the appellant to the instructions and feedback he received.  Accordingly, Ms Stewart recorded the expectations required of the appellant and gave him copies of this documentation.  Ms Carey and Mrs Pilkington also gave the appellant assistance with lesson planning and feedback to improve his performance.  The Commissioner cited exhibit R1 499-503, 490-498, 489, 467 and 466 in support of this.  The Commissioner found Mr Pilkington also assisted the appellant in term 1, 2004 with both personal and professional issues.  The finding was made that the appellant’s line managers gave him a substantial amount of assistance to improve his performance. 

79       The Commissioner found that by May 2004 it was apparent that the appellant had not made the required improvements in his teaching.  As a result Mr Pilkington decided that the appellant should be subject to a PIP commencing on 14 June 2004 and continuing until 27 August 2004. 

80       The Commissioner found that the respondent complied with the applicable policy requirements when handling both of the appellant’s PIP periods.  At [126] the Commissioner found that “the assistance available to the [appellant] during his PIP formed part of a co-ordinated and systematic process which was designed, in collaboration with the [appellant], to assist the [appellant] 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 [appellant] 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 [appellant]”.

81       The Commissioner cited a number of documents in exhibit R1 to support this finding.  The Commissioner found that the appellant failed to avail himself of assistance which was provided and that in most instances he did provide lesson plans, as required, to Mrs Pilkington and Ms Stewart. 

82       The Commissioner said that the appellant was given sufficient time to demonstrate improvement in his performance.  The Commissioner said that the reduced timeframe of PIP 2 did not disadvantage the appellant because by 31 August 2004 he had already been given the benefit of 36 days of monitoring, support and feedback.

83       By reference to the letter from Mr Pilkington to the appellant dated 31 August 2004, the Commissioner found that the appellant had made little if any progress in the required areas during the PIP timeframe.  The Commissioner said she accepted the evidence of Mr Pilkington about the appellant’s return to school on 31 August 2004.  The Commissioner found that the appellant’s performance would not have improved to the required standard even if he had obtained the benefit of the four remaining days of PIP 2.  This was because there was no evidence that he had demonstrated any improvements in his performance up to 31 August 2004. 

84       The Commissioner found that the appellant was afforded procedural fairness during the PIP process.  The appellant’s claim that Mrs Pilkington made it difficult for the appellant to meet with his union representative was rejected.

85       At [129] the Commissioner also rejected the appellant’s claim that his line managers at the College conspired against him to ensure that he was unable to perform successfully.  The Commissioner also referred to the removal of Mrs Pilkington from the PIP processes and her replacement by Ms Jack.  The Commissioner found Ms Jack to be suitably qualified and independent to give feedback.  The Commissioner noted that after observing two lessons, Ms Jack was of the view that the appellant’s performance was unsatisfactory (Exhibit R1 286-289).  The appellant’s claim that he was not supported when disciplining students was also rejected.  The Commissioner noted there was no evidence to verify those claims.  The Commissioner also did not consider the appellant’s health to be a major issue which negatively impacted upon his performance, as there was no evidence that this was a serious issue until an altercation with a parent on 23 August 2004.  Although the appellant’s health deteriorated towards the end of PIP 2, at that stage he had been given sufficient time to address his performance issues. 

86       A claim by the appellant that the College should have arranged for him to attend a professional development course to improve his level of English literacy was rejected.  The Commissioner accepted Ms Stewart’s evidence that the appellant’s communication problems mainly related to the way in which he presented his lessons and not his accent.  The Commissioner also said, at [131], after reviewing documentation generated by the appellant during his time at the College, in response to issues raised with him, that he had a reasonable grasp of English.  The Commissioner cited 15 documents in support of this finding.

87       The Commissioner found that Mr Pilkington’s conclusion that the appellant was experiencing performance difficulties was supported by a number of verbal and written complaints.  The Commissioner cited the exhibits which supported this conclusion.  The Commissioner accepted the evidence of Mr Pilkington about the complaints he received and that none of the appellant’s line managers solicited complaints from parents.

88       The Commissioner referred to a submission by the appellant that the failure to call Ms Carey should lead the Commission to infer that her evidence would have been unhelpful to the respondent or in the alternative the appellant’s evidence about his interactions with Ms Carey should be accepted.  The Commissioner said that as she had concerns about the credibility of the appellant’s evidence she did not accept his evidence about his interactions with Ms Carey.  The Commissioner also said that she took into account that the weight of the evidence was against the appellant in relation to his views about how he was treated by his line managers at the College. 

89       At [135] the Commissioner said:

“135 I accept Mr Pilkington’s evidence that the [appellant’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 [appellant’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 [appellant’s] substandard performance should be referred to the respondent for consideration.”

90       The Commissioner also rejected the appellant’s claim that his performance at Pinjarra Senior High School was satisfactory.  This finding was supported by documents which the Commissioner cited. 

91       The Commissioner then referred to clause 12.1 of the Certified Agreement about probationary employment.  The Commissioner said that when applying the authorities relevant to probationary employment she found that the appellant 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.  Accordingly the respondent was entitled not to continue to employ the appellant as at 21 September 2005.  Importantly, the Commissioner found that even if the appellant was not on probation at the time he was terminated, that his performance was substandard and therefore it was open to the respondent to terminate his employment. 

92       The Commissioner found that the process undertaken by the respondent to review and effect the appellant’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”.  The Commissioner found that as required under s79(5) of the Public Sector Management Act 1984 (WA), an investigation was undertaken by Mr Burgess into whether the appellant’s performance was substandard.  The Commissioner said that although Mr Burgess did not provide the appellant with background documents given to him by the respondent, this was not raised as an issue by the appellant.  In any event the assertion by the respondent’s representatives that the documents were sent to the appellant in December 2004, prior to being interviewed by Mr Burgess, was not contested.  The Commissioner concluded that Mr Burgess’ investigation was completed in an independent and unbiased fashion.  The Commissioner said at [138] that she had “some difficulty that the witness statements of the persons whom Mr Burgess interviewed were not provided to the [appellant], however as all of the persons Mr Burgess interviewed gave evidence in these proceedings I find that this issue has since been overtaken”.

93       The Commissioner found that after the respondent received the report from Mr Burgess, the findings he made and the documentation relied upon were reviewed.  The respondent then determined that the appellant should be terminated.  The appellant was given the opportunity to respond to this decision and the issue of penalty.  The appellant did so on 9 August 2005 (Exhibit R1 33).  The Commissioner found that after receiving the correspondence and considering the issues raised by the appellant it remained open for the respondent to determine that in all of the circumstances the appellant should be terminated, as his performance at the College had been substandard in two critical areas and the standard of the appellant’s performance remained questionable in three other areas, being planning and preparation, professional characteristics and assessing and reporting of student outcomes.  The Commissioner said these attributes were fundamental to being a successful teacher.  The Commissioner found that in any event it was open for the respondent to terminate the appellant for gross misconduct for the way in which he behaved to Mr Pilkington on 31 August 2004. 

94       The Commissioner concluded at [140]:

“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.”

The Grounds of Complaint

95       As mentioned earlier the appellant made a number of complaints about the hearing at first instance and the decision made.  I have reviewed the appellant’s amended grounds of appeal, the submissions he made at the hearing and the submissions made in the documents filed subsequent to the hearing to discern the categories of complaints made by the appellant.  I will consider each of these in turn.

There are Additional Documents to Prove the Documents Before the Commissioner were Forgeries

96       As set out earlier one of the interlocutory applications to the Full Bench was for it to receive documents additional to those which were in evidence before the Commissioner.  That interlocutory application was rejected.  The appellant did not raise any reasons why the Full Bench should review that decision.  Accordingly this ground of complaint cannot be established.

97       At the hearing before the Commissioner, there was only one document which was alleged to be forged in that the appellant said he did not sign a lesson plan which had the appearance of bearing his signature.  As I have said earlier this claim was not accepted by the Commissioner.  The Commissioner gave her reasons for reaching this finding which in my opinion were open to her.

98       The appellant also complained that the report of Mr Burgess contained a forged version of Mr Burgess’s interview with him.  This is not an issue which was raised at the hearing. It was not the subject of any evidence by the appellant or Mr Burgess.  There was accordingly no evidence before the Commissioner to support the proposition.  The Commissioner did not therefore have to deal with it.  Consequently there is no ground for complaint.

99       In my opinion the grounds of complaint about the decision of the Commissioner which I have just described cannot be sustained.

The Commissioner was Friends with Mrs Pilkington

100    The appellant asserted the Commissioner should not have heard and decided his application because she was friends with Mrs Pilkington.

101    The Commissioner raised her relationship with Mrs Pilkington at the commencement of the hearing.  The Commissioner said:

“At the outset, I do need to raise an issue with the parties.  I have reviewed the list of witnesses and I wish to inform the parties that over 20 years ago I did work with Ms Pilkington at Wanneroo Senior High School.  Now, I was not working in the same faculty.”  (T2).

102    The Commissioner then asked counsel for the appellant and the representative for the respondent whether that presented “any issues for the parties”.  The respondent’s representative said that it was not an issue.  The appellant’s counsel said that he wished to take instructions.  The Commissioner then adjourned so that this could occur.  Upon resumption the appellant’s counsel said he had taken the appellant’s “instructions and we’re happy to proceed” (T2).

103    There was nothing which emerged during the rest of the hearing nor in the reasons of the Commissioner which was relevant to this point.  The appellant’s counsel did not make any complaint about the Commissioner hearing the application.

104    In my opinion there is no substance in this complaint by the appellant.  Firstly it proceeds upon a false premise being that the Commissioner and Mrs Pilkington were friends.  The disclosure, quite properly made by the Commissioner, was simply that she had worked at the same school as Mrs Pilkington some 20 years ago.  No friendship was described.  The appellant suggested that if the Commissioner and Mrs Pilkington had worked together they could or would have remained friends.  In my opinion this suggestion is entirely speculative and there is nothing which supports it.

105    Secondly, as set out in my reasons for decision in the interlocutory applications, the appellant is bound by the way in which his case was conducted at first instance.  As I have said, no complaint was made about the Commissioner hearing the application.  Indeed the appellant’s counsel, having taken instructions from the appellant, advised the Commissioner that they were “happy to proceed”.  Nothing was said at the time by the appellant which indicated that his counsel was not properly informing the Commissioner of his instructions.

106    In my opinion there is no substance in this complaint.

There was a Deal Between the Appellant’s Counsel and the Respondent to Ensure that the Application did not Succeed

107    This ground for complaint can be summarily rejected.  There is no evidence or other information before the Full Bench which would suggest that this was correct.  There is no indication that the appellant’s counsel did not adequately represent him.  He made an opening statement, led the appellant through an extensive examination in chief, cross-examined the witnesses for the respondent and made substantial written closing submissions.  This included the filing of a document entitled “Applicant’s Closing Submissions” on 5 May 2006 containing some 118 paragraphs together with a document described as “Applicant’s Final Submissions” filed on 15 May 2006 which replied to the respondent’s written closing submissions.  In addition, in cross-examining Ms Jack, the appellant’s counsel asked her not to “keep looking” at the respondent’s representative because it created the wrong impression.  Ms Jack replied that she would then look at the Commissioner (T140-141).  This was hardly the conduct of counsel who had a deal with the respondent to ensure that the application did not succeed.

108    In my opinion there is no basis upon which this ground of complaint can be sustained.

The Number and Nature of Documents Before the Commissioner

109    I have earlier set out that the respondent tendered, and the Commissioner received as Exhibit R1, a file with a large number of documents.  This was reproduced by the respondent for the benefit of the Full Bench.  The file contains 570 pages.  The appellant complained that the Commissioner was swayed in making her decision by the volume of documents which was before her.  In my opinion there is nothing to support this contention.  At first instance the appellant’s counsel did not complain about the number or nature of documents in Exhibit R1.  In addition a review of the Commissioner’s reasons, as set out above, reflects that it was the nature and not the number of the documents which the Commissioner relied upon in supporting her reasons and conclusion.

110    The appellant asserted the Commissioner wrongly described the file as containing 600 documents when it only contained 570 pages of documents.  Even if the Commissioner had done this, it would not have been any basis for complaint about her reasons for decision as a whole.  In any event, the Commissioner did not say this in her reasons for decision.  At [4] she simply said that the respondent had “prepared a file of relevant documentation (Exhibit R1)”.  At the hearing, the appellant’s counsel referred to the documents constituting “about 600 pages” (T6).  There was then some discussion about the documents and the Commissioner commented that there were 570 pages (T7).  Accordingly at that time the Commissioner was under no misapprehension as to the number of pages of documents tendered by the respondent and there is nothing in her reasons which suggests that she later misunderstood this.

111    The appellant also complained that a number of the documents were repeated in the file so that it was made to look bigger.  Documents were referred to which the appellant submitted supported this proposition.  Upon examination, as discussed with the appellant during the hearing of the appeal, some of the documents referred to were not in fact repeated.  It is correct however that some were repeated.  For example R1 398-400 was the typed narrative of an appraisal made by Ms Stewart of a lesson of the appellant on 28 June 2004.  The same typed written notes were included as R1 403-405, although there are some signatures on this version of the document which did not appear upon the first.  Similarly R1 401 was a page of handwritten notes of Ms Stewart about a conversation with the appellant.  This document was repeated in the document between R1 408 and R1 409.  (The document does not appear to have its own number).  Again there was some difference in the signatures upon the copies of the documents but otherwise they were the same.  Other examples were given by the appellant which do not need to be separately considered.  There should not have been repeats of documents in the file.  The appellant’s complaint is again however based upon the false premise that the Commissioner in part based her decision upon the volume of documents in the file.  As I have said, there is nothing to suggest that this was so.

112    The appellant also complained that some of the documents were unclear.  Again this assertion is correct.  It only applies however to very few of the documents.  An example is R1 262.  This is a handwritten letter which cannot, in the form in which it has been reproduced for the benefit of the Full Bench, be properly read.  If that was the form in which the document was in the file before the Commissioner, then that should not have occurred.  The Commissioner did not however place any reliance upon this document in her reasons for decision.  Nor, as I have earlier said, did the Commissioner base any part of her reasons upon the volume of the documents.  Again this complaint does not provide any reason for overturning the decision of the Commissioner.

113    The appellant also complained that the file of documents included irrelevant documents.  Again this complaint is correct but it only applies to very few documents.  For example R1 189 was an email between Mr Newman of the Workplace Relations section of the Department of Education and Ms Jack about the return of Education Department property by the appellant and about the house in which the appellant had stayed in Geraldton.  Document R1 190 was an email from Ms Jack to Mr Newman about the painting of the house.  Document R1 188 was a letter from Mr Pilkington to the appellant dated 17 December 2004 about the return of two chairs.  Other examples were given by the appellant.  There are a number of points to be made about this complaint.  Firstly, there were only a few of the 570 pages of documents which were not relevant.  Secondly, I have earlier set out the approach taken to the file of documents by the appellant’s counsel at the hearing.  No complaint was made about the contents of the file.  As I have earlier said, the appellant is bound by the case he presented at trial.  Thirdly, there is no suggestion that the Commissioner based her reasons for decision upon these documents.  None of them were mentioned in her reasons.

114    The appellant also argued that if the Commissioner had properly read the file of documents she would have noted in her reasons that some of the documents were irrelevant.  In my opinion the Commissioner was not obliged to say this in her reasons.  In part this was because no complaint about the relevance of the documents had been made upon the appellant’s behalf.  Also it does not logically follow that because the Commissioner did not mention irrelevant documents in her reasons for decision, she did not consider the file as a whole.  The complaint is not substantiated.

115    To the extent that this submission relies upon the suggestion that the Commissioner was influenced by the volume of documents tendered, I have already rejected that point as set out above.

116    The appellant also had a particular complaint about document R1 221.  This was a tax invoice from Dr Crawford of the Joondalup Drive Medical Centre to the College for a consultation with the appellant on 30 August 2004.  The appellant submitted the document was not relevant and that it should not have been sent to the College without the appellant’s consent (T22).  Again, I do not think the presence of this document in the file of documents before the Commissioner in any way undermines her decision.  The contents of the document are fairly innocuous and it is clear that the Commissioner did not rely upon the document to the detriment of the appellant.

117    In my opinion none of the complaints about documents which I have described can be sustained.

The Witnesses of the Respondent were not Present in Court when the Appellant gave his Evidence

118    The appellant submitted that there was unfairness because the respondent’s witnesses remained out of court when he gave his evidence.  Although I have found the appellant’s submissions on this point a little difficult to comprehend, I think the complaint was that it gave the opportunity to the respondent’s representative to make a note of all of the appellant’s evidence and then discuss this with the respondent’s witnesses before they gave evidence (T8-9).  I do not think there is any substance in this point.  The respondent’s witnesses remaining out of court whilst the appellant gave evidence is an ordinary practice which generally applies during hearings.  There is nothing to suggest that the appellant was unfairly disadvantaged by this.  Indeed if the witnesses were present in court it would have given them a greater opportunity to listen to what the appellant had said and then tailor their evidence accordingly.

The Commissioner Prevented the Appellant from giving Evidence or Objecting to the Evidence of the Respondent’s Witnesses

119    I have reviewed the transcript of the hearing when the appellant gave evidence.  Overall there is no basis upon which to suggest that the Commissioner prevented the appellant from giving the evidence which he wanted to.  There was certainly no complaint to that effect by the appellant’s counsel.  At one point the Commissioner said to the appellant’s counsel that the appellant did not need to go into great detail about the incidents he was describing and so requested that counsel “might be able to move it along a bit” (T37).  The Commissioner then said that she was not trying to limit the number of examples which the appellant wished to go through but she did not need to know “all of the details of who said to whom in relation to every incident” (T37).  Counsel then replied that a lot of the detail was recorded in the letters that the appellant wrote to his line managers and requested the Commissioner read those documents when appropriate.  Counsel then said he only had a few more questions and did not need to go through other incidents in as much detail.  This exchange occurred during the appellant giving lengthy details about his interaction with three students at the College and the interaction of the students with other members of the staff.  I cannot see that on any other occasion the Commissioner inhibited the appellant from giving evidence.

120    Mrs Pilkington, when cross-examined, mentioned discussions she had with Ms Stewart about the appellant’s understanding of English (T112-113).  She referred to a discussion with the appellant about this when he showed her what she described as a “translator” in which “you would put in the word in English and you’d get the corresponding Egyptian or vice versa”.  The appellant then interjected that he “never showed that …”.  The Commissioner interrupted the appellant and said that if he had an issue he should raise it through his counsel and that he should not “shout or become involved in the proceedings when someone else is giving evidence”.  The appellant said he was sorry.  The appellant’s counsel then continued with his cross-examination.  The issue of the translator was not again raised.

121    In my opinion the interjection by the Commissioner was quite appropriate and this appeared to be acknowledged by the appellant in saying that he was sorry for what had occurred.  In any event the issue with the translator was unimportant in the context of the hearing as a whole and did not form a reason for the Commissioner dismissing the application.

122    There was no other occasion when a similar incident occurred.  In my opinion this complaint cannot be sustained.  The Commissioner did not improperly prevent the appellant from giving evidence or objecting to the evidence given by the respondent’s witnesses.

An “Important Conversation” Between the Commissioner and “the Department of Education” was Removed from the Transcript

123    This submission was made in the appellant’s amended grounds of appeal dated 7 August 2009.  No detail was given about the “important conversation”.  There is no evidence to suggest that this has occurred.  The issue was not raised as a reason for the Full Bench to view the video record of proceedings at first instance during the hearing of the interlocutory applications.  (See my reasons in rejecting the interlocutory applications at [124]-[133]).  In my opinion this complaint cannot be sustained.

The Commissioner Assisted Mr Pilkington in Answering Questions

124    I have reviewed the transcript of when Mr Pilkington gave evidence.  I cannot see any occasion on which the Commissioner inappropriately assisted Mr Pilkington in giving his evidence.  On a number of occasions the Commissioner asked questions to obtain clarification or elaboration of what Mr Pilkington was saying.  Examples are at T76, 78, 81, 82 and 84.  There was nothing untoward about this however.  It is an ordinary function of a Commissioner hearing an application to ensure that the evidence is sufficiently clear and detailed for them to be able to properly understand it.  I also note that at T79 the Commissioner stopped the respondent’s representative from inappropriately asking leading questions of Mr Pilkington.  This does not suggest that the Commissioner was seeking to improperly assist Mr Pilkington in the giving of his evidence.  I also note that in the appellant’s closing written submissions at [52] it was said that Mr Pilkington “appeared as a credible witness”.

125    In my opinion there is no substance in this complaint.

The Commissioner did not Stop the “Body Language” Between the Respondent’s Representative and Ms Jack

126    I have earlier referred to this issue to some extent.  It was more fully described in my reasons in dismissing the interlocutory applications at [125]-[129].  Having again reviewed the transcript of this episode, I cannot see that the Commissioner failed to do anything which was required of her to prevent any untoward “body language” or coaching.  Certainly, the appellant’s counsel did not ask the Commissioner to do anything in this respect.  The complaint cannot be upheld.

The Appellant was Prejudiced by Ms Carey not Giving Evidence

127    I have earlier set out the reasons of the Commissioner about this issue.  In my opinion Ms Carey not giving evidence did not work an unfair disadvantage upon the appellant.  Whilst he did not have the opportunity for counsel to cross-examine Ms Carey, neither did the respondent get the benefit of any evidence that Ms Cary could have given in favour of the termination of the appellant’s employment. The primary participants in the review of the appellant’s teaching performance and the PIP process were Mr Pilkington, Ms Stewart, Mrs Pilkington and Ms Jack.  Each of these witnesses gave evidence and were available for cross-examination.  In my opinion this complaint has not been established.

The Education Department were Given Four Months to Provide their Closing Written Submissions

128    This assertion is factually incorrect.  The second and final day of the hearing was on 21 April 2006.  The respondent filed its closing written submissions on 5 May 2006 and a document entitled “Response to Applicant’s Closing Submission” on 12 May 2006.  As I have set out earlier the appellant’s closing written submissions were filed on 5 May 2006 and its final submissions on 15 May 2006.  Accordingly the submissions of both parties were provided within the same period of time and there was no unfairness in this to the appellant.  This complaint must be rejected.

Discrimination

129    In the appellant’s amended grounds of appeal filed on 7 August 2009, point 1(e) was “Discrimination”.  The point was not elaborated upon and cannot be sustained.

There was a Conspiracy by the Staff at the College to Terminate the Appellant’s Employment

130    This issue was raised at the hearing by the appellant.  The Commissioner dealt with the issue and rejected it.  She gave her reasons for doing so.  The Commissioner accepted the evidence of the witnesses of the respondent.  She decided that each gave their evidence honestly and to the best of their recollection.  The Commissioner also commented that their evidence was supported by documents.  In my opinion the Commissioner cannot be shown to have erred in deciding that there was no conspiracy.  There was no evidence, either oral or documentary, which compelled the Commissioner to the contrary conclusion.

The State School Teachers’ Union of Western Australia Worked Against the Appellant

131    This was mentioned in the submissions filed by the appellant on 20 August 2009.  The appellant alleged that the union representative had not properly supported him and that a union officer had submitted forged documents against the appellant.  With respect to both, the appellant complained that there were additional documents which he had, which the Full Bench had refused to consider.  To the extent to which this complaint relates to the dismissal of the interlocutory application about considering additional documents, no more needs to be said about that.  The issue has already been determined.  Quite apart from that, it was no part of the appellant’s case at the hearing that the union had worked against him.  Indeed part of his case was that Mrs Pilkington had wrongly prevented the union from assisting him by not allowing sufficient time for him to meet with a union representative.

132    There was no evidence given at the hearing which would support the contention that the union had not properly assisted the appellant or had worked against him.

133    This complaint has no substance.

Complaint About Exhibit R1 310

134    This document was a typed review of a lesson of the appellant made by Mr Pilkington on 11 August 2004.  The appellant said that to the extent that Mr Pilkington was critical of his lesson, it should have been borne in mind that the lesson presented was one taken from that of his Head of Department.  The appellant did not however give evidence to this effect at the hearing.  In his cross-examination, Mr Pilkington was asked whether he was aware that the appellant was teaching the lesson from materials provided by Ms Stewart (T93).  Mr Pilkington answered that he was not and the issue was not taken any further.  This answer did not establish that the lesson was prepared from materials supplied by Ms Stewart.  In re-examination Mr Pilkington said that irrespective of the source of the information for the lesson,  the method of presentation was inappropriate for the level of students that the appellant had in front of him and was not part of a “sequenced plan” but was “disengaged, it was a one off lesson” (T100).  It appears there was no examination or cross-examination of Ms Stewart about the issue.

135    There was therefore no evidence that the material upon which the lesson was based was obtained from Ms Stewart.  Additionally, as explained by Mr Pilkington, the difficulty with the lesson was not so much the content but the way in which it was conducted.  This is reflected in exhibit R1 310.

136    The appellant also complained that in exhibit R1 310 Mr Pilkington said that the level of the lesson was “primary school”, whereas on another occasion he had said that the appellant ought to teach at TAFE or University level.  In my opinion the second comment does not logically undermine the first.  The level of the lesson could be, and according to Mr Pilkington was, “primary school” even though Mr Pilkington may have also thought the appellant had the capacity to teach at TAFE or University level.

137    In my opinion the complaints made by the appellant about exhibit R1 310 and Mr Pilkington’s evidence are not established.

The Commissioner did not properly take into account the Documentary Evidence

138    This complaint was elaborated upon at length by the appellant during the hearing of the appeal.  In essence, the submission was that if the Commissioner had properly considered the documents contained within Exhibit R1 then she would have come to a different conclusion.  That is, inadequate weight was placed upon the documents within the file.

139    The decision made by the Commissioner involved the making of an evaluative judgment as to whether the dismissal of the appellant was or was not fair.  It was therefore a discretionary decision.  As such, the decision is accorded significant deference by the Full Bench and should only be set aside in limited circumstances.

140    The relevant principles were set out in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

141    As there stated, an appeal against a discretionary decision cannot be allowed simply because the appellate court would not have made the same decision.  The reason why this is so was explained in the joint reasons of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]-[21]. At [19] their Honours explained by reference to the reasons of Gaudron J in Jago v District Court (NSW) (1989) 168 CLR 23 at 76, that a discretionary decision results from a “decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’”.  Instead “the decision-maker is allowed some latitude as to the choice of the decision to be made”.  At [21] their Honours said that because “a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process”.  Their Honours then quoted part of the passage of House v King which I have quoted above.

142    Similarly, Kirby J in Coal and Allied at [72] said that in considering appeals against discretionary decisions, the appellate body is to proceed with “caution and restraint”.  His Honour said this is “because of the primary assignment of decision-making to a specific repository of the power and the fact that minds can so readily differ over most discretionary or similar questions.  It is rare that there will only be one admissible point of view”.  (See also Norbis v Norbis (1986) 161 CLR 513 per Mason and Deane JJ at 518 and Wilson and Dawson JJ at 535).

143    These principles of appellate restraint have particular significance when it is argued, as here, that a court at first instance placed insufficient weight on a particular consideration or particular evidence.  This was considered by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519.  There, his Honour explained that although “error in the proper weight to be given to particular matters may justify reversal on appeal, … disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge”.  This is because, in considering an appeal against a discretionary decision it is “well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion”, and that when “no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight”.  (See also Aickin J at 534 and 537 and Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 at [36]).

144    To support this ground of complaint, the appellant directed the attention of the Full Bench to a number of documents.  It has been necessary to review these documents to consider this ground of complaint.  Having done so, I can say in summary that I do not think that the contents of the documents, considered separately or cumulatively, have the effect that the Commissioner erred in making her findings and decision.  It was open to the Commissioner to accept the oral evidence of the witnesses for the respondent for the reasons she explained.  She was also entitled to rely upon the documents she cited.  The Commissioner not citing the additional documents referred to by the appellant, nor referring to their contents in her reasons, does not in my opinion have the effect that the decision was in error.

145    To properly consider this ground of complaint it is necessary to consider the type of documents which the appellant referred to the Full Bench.

146    The appellant referred the Full Bench to the document on the page after R1 408.  The document was some handwritten notes by Ms Stewart dated 26 June 2004.  The document does not appear to have its own number.  One of the comments made in the document was Ms Stewart saying that her belief was that the appellant’s difficulties originated from his lack of understanding about the educational constructs behind the new curriculum.  She then said that she suspected the appellant found it difficult to build these understandings via the process of professional reading.  She said the complexity of written materials was caused by the fact that English was the second language of the appellant.  The appellant argued, in effect, that this document contradicted Ms Stewart’s claims that she did not think there was an issue with the appellant’s language.  I have referred above to the summary of Ms Stewart’s evidence made by the Commissioner in which she said that she did not raise the appellant’s accent or level of English with anyone at the College and issues were more to do with the manner in which the appellant presented his classes and not his accent.  In my opinion the contents of the document did not necessarily undermine the evidence given by Ms Stewart.  Even if it did, it was to a minor issue in the context of the application as a whole.  The decision of the respondent to terminate the appellant’s employment due to his teaching performance was not based upon his lack of grasp of English but to his teaching performance overall.

147    The appellant also referred the Full Bench to a report by Dr Proud, consultant psychiatrist, at R1 568, dated 2 March 2005.  In the report Dr Proud concluded that the appellant was fit to resume full-time work as a teacher.  The appellant contrasted the contents of this document to the Commissioner’s reasons at [23].  The Commissioner there referred to the appellant visiting a general practitioner who declared him unfit for work due to work related stress.  This was in August 2004.  The contents of Dr Proud’s report are about a different time than that which the Commissioner was talking about at [23].  The report does not undermine what the Commissioner wrote.  In addition, what the Commissioner there wrote was a summary of the evidence of the appellant.  The appellant had said that he had seen Dr Crawford, his general practitioner, who certified him unfit for work from work related stress (T50).  In any event, the Commissioner did not find that the appellant’s dismissal was not unfair on the basis that he had been medically unfit for work.  The opinion was based upon it being open to the respondent to conclude that he was not fit to be employed because of his teaching performance as a whole.

148    The appellant also complained about documents about medical appointments for him.  These documents were at R1 260, 167, 161, 173 and 174.  Whilst it is correct that the Commissioner did not refer to these documents in her reasons, this does not necessarily mean that she did not read the documents.  In my opinion these documents do not contain any significant information which the Commissioner was obliged to refer to.  Their contents did not undermine her findings or conclusion.

149    The appellant also referred to documents which he had written and submitted that if they had been read and properly understood by the Commissioner then she would not have decided the application against him.  I do not accept this submission.  These documents set out the opinions of the appellant about the matters discussed and his understanding of the facts.  The fact that he had written the letters did not oblige the Commissioner to accept their contents, especially when they were contradicted by the oral evidence and documents of the witnesses of the respondent.  It was open to the Commissioner to prefer the respondent’s evidence.  For example at R1 179-185 there was a letter from the appellant dated 7 December 2004 which was said to be in response to a letter by Ms Jack dated 23 October 2004.  The letter covered issues such as the appellant’s interaction with Ms Jack, the complaints by and about the student Lauren, interaction with the Principal about the appellant’s understanding of English, the issue about the signing of school reports, observations of lessons of the appellant by Ms Stewart and Mrs Pilkington and other matters.  This document was referred to by the Commissioner in her reasons at [131].  This was in the context of saying that from a review of the documentation generated by the appellant during his time at the College he had a reasonable grasp of English.  Whilst the Commissioner did not descend to the detail of this document, in my opinion its contents do not establish, either alone or in combination with other documents, that the Commissioner erred in not accepting the appellant’s evidence.

150    The appellant also referred to R1 195-196 which was a letter to the Director General from the appellant dated 19 October 2004.  Again this document was referred to in the reasons of the Commissioner at [131].  In the letter the appellant sought to bring to the attention of the Director General facts which he said were omitted from his file.  Essentially the letter was a series of complaints about Mr Pilkington, Mrs Pilkington, Ms Stewart and Ms Carey.  The letter mainly contained opinions and not much by way of “facts”.  The contents of this document did not require the Commissioner to reach different findings and conclusions to those that she did.

151    Exhibit R1 225-227 was also referred to by the appellant.  This was a letter by the appellant to Mr Pilkington.  The letter involved complaints about Ms Stewart.  It also complained about the conduct of Mr Pilkington.  The letter also referred to complaints made against the appellant by three students and alleged that they had been “egged on” by Mrs Pilkington, Ms Stewart and Ms Carey.  The letter asserted other staff were disgruntled and unhappy because of the appellant’s salary.  The letter also referred to the stress suffered by the appellant.  This letter was also referred to in the Commissioner’s reasons at [131].  Again the contents of the letter do not establish that the Commissioner erred.

152    The appellant also referred to a letter he wrote to Ms Jack dated 20 August 2004 at R1 291.  It was a letter which welcomed Ms Jack to the College.  It said however that Ms Stewart, Mrs Pilkington and Mr Pilkington had made his teaching position “very unpleasant”.  The letter said the appellant had been unfairly treated and judged with prejudice and therefore he did not have any confidence in “anyone from Geraldton”.  He asked to be advised about this.  This letter did not establish that the appellant had been undermined by the personnel he mentioned – it is merely his assertion that this occurred.  The assertion contained in this letter did not have to be accepted by the Commissioner.

153    Exhibit R1 309 was described as a self-evaluation by the appellant.  It was dated both 13 August 2004 and 17 August 2004.  The appellant said in this document that Ms Stewart had a “plan, to finish me after she knows my salary”.  This point was dealt with in the evidence of Ms Stewart as summarised by the Commissioner and set out earlier.  Again the fact that the appellant made this assertion in the document did not prove the assertion was correct.  The Commissioner was entitled to accept the evidence of Ms Stewart on the point.

154    The appellant referred also to a letter to Mr Pilkington which was received on 10 August 2004.  The letter is of five pages.  There is some misnumbering of the pages of the letter in R1 because it is only numbered pages R1 322-325.  The appellant submitted that as the end of the letter was signed by Mr Pilkington, he agreed with its contents.  This is not so however, as next to the signature of Mr Pilkington, he notes that the document has been “received”.  There is no comment about the accuracy of its contents.  The letter referred to the student Lauren, the issue about the signing of the reports, interactions between the appellant and the Principal about complaints, complaints about the teaching methods of Ms Stewart and her comments about the appellant, comments about the difficulties of teaching particular students, issues about the appellant’s understanding of English language and the general lack of support from the personnel of the school.  This document was referred to by the Commissioner at [131] of her reasons in the context earlier described.  Again the contents of the document did not have to be accepted by the Commissioner.  It was, as I have said, open to her to prefer the evidence of the respondent on the issues contained in the letter.

155    The appellant referred the Full Bench to another document written by him which was his response to complaints made by another teacher, Mr Molina.  This document was R1 271-279.  The document was also referred to by the Commissioner in her reasons at [131].  The letter covered some of the interactions between the appellant and Mr Molina and also complains about the appellant’s interaction with Ms Stewart.  The letter also referred to the lack of support received by the appellant from the other mathematics department staff.  The letter discussed the observations made of his lessons by Ms Stewart and Mrs Pilkington and his complaints to Mr Pilkington about them.  He said that there was constant scrutiny on his English language not on his skills as a mathematics teacher.  The letter also discussed the interaction with the parent that led to the appellant being unwell in August 2004.  For the same reasons as set out earlier, the contents of this letter do not show that the Commissioner’s reasons and conclusions were in error.  The Commissioner did not base her decision upon the complaint made by Mr Molina.  Therefore even if the Commissioner did not consider the appellant’s response to that issue, it did not undermine her findings overall.

156    The final document in this category which the appellant referred to the Full Bench was typed notes by the appellant about an observation by Ms Stewart on 25 June 2004 (R1 414-425). The document contained a lengthy discussion about the appellant’s interaction with Ms Stewart and the lesson which she had observed.  The document was referred to in the reasons of the Commissioner at [131].  The same may be said of this document as to the others written by the appellant.  That is, the document contained assertions made by the appellant.  The Commissioner did not have to accept that the contents of the document were accurate.

157    The appellant referred the Full Bench to an apparent contradiction between the documents at R1 212 and R1 222.  The latter document was a workers’ compensation first medical certificate signed by Dr Crawford.  The date of the examination was recorded as being on 3 September 2004.  The document recorded the date of the “injury/disease” as being 30 August 2004.  The document said the appellant was unfit for work from 3 September 2004 to 17 September 2004.  It also said the next appointment for the appellant was on 17 September 2004.  The document at R1 212 contained emails from Ms Jack to Mr Newman and Mr Baker of the Department of Education and Training and a reply from Mr Newman.  They were dated 9 and 10 September 2004 respectively.  The email from Ms Jack referred to the date of the appellant’s “injury” being “20 August 2004”.  The email said that this was of “interest” and that the appellant “was on sick leave at this time”.  As I have said the date of the injury in the workers’ compensation certificate was recorded as 30 August 2004.  The appellant asserted that the date referred to in Ms Jack’s email was a forgery.  I do not accept this.  Ms Jack was not cross-examined on this topic.  It is more likely that she made a mistake in referring to 20 August 2004 rather than 30 August 2004.  In any event the point that she made about the date, that the appellant was on sick leave at that time, was correct.  It may be that the workers’ compensation certificate inaccurately referred to 30 August 2004 as opposed to 31 August 2004.  It is not necessary to determine this however as the documents were of no importance to the reasoning of the Commissioner.

158    The appellant also referred the Full Bench to documents about complaints from the parents of students.  The documents at R1 294 and R1 295 were letters from the mother of Lauren to Mr Pilkington and the appellant.  They were both dated 16 August 2004.  They both referred to improvements which had been made by the appellant since a complaint had been made about him two weeks earlier.  It was submitted that the Commissioner did not consider the contents of these documents as if she did she would not have made her decision.  In my opinion this does not follow.  These documents concern improvement by the appellant from the perspective of one parent over a period of two weeks.  This does not undermine the opinions of the teaching staff at the College who thought the appellant’s teaching performance was inadequate.  Their opinions were supported by Ms Jack.  The appellant also said that the complaints made about him by parents of students were received within a small timeframe.  It was suggested that this was consistent with parents being urged to make complaints about the appellant.  Again this does not logically follow.  These documents and this submission does not establish any error made by the Commissioner.

159    The appellant also referred the Full Bench to a typed comment on a lesson of the appellant’s by Ms Stewart, dated 5 August 2004, and the appellant’s handwritten comments on this document (R1 332).  Ms Stewart’s notes were that the lesson occurred in block four on 5 August 2004.  The comments by the appellant referred to him being in a meeting with Ms Franklin and that they were together when the third block had finished.  The appellant submitted this supported his view that he had only been with Ms Franklin for 45 minutes and not the time period alleged by Mrs Pilkington.  In my opinion, again, this is simply not so.  The Commissioner’s finding that the appellant was not prevented by Mrs Pilkington or others from being assisted by the union is not undermined by the document.

160    The appellant also referred the Full Bench to two references given to him by the Principal and Head of Mathematics at Katanning Senior High School when he taught there in second semester 2003 (R1 537-538).  The appellant is correct in submitting that these were both positive references about him.  The Commissioner mentioned them in her reasons at [5] in describing the appellant’s evidence.  She did not refer to them however in setting out her findings and conclusions.  In my opinion whilst the references were positive they did not to any significant degree undermine the Commissioner’s findings that it was open for the respondent to find that the appellant’s teaching performance in 2004 at the College was substandard.

161    Exhibit R1 432 was a note about the performance improvement plan by Ms Stewart dated 21 June 2004.  In this it said that a lesson plan was to be given to the individual attending the lesson on the day before the lesson.  It was submitted in effect that this contradicted the evidence of Ms Stewart summarised at [74] of the Commissioner’s reasons, which was that the appellant was required to submit lesson plans two days before each lesson.  In my opinion this is a minor point.  Even if Ms Stewart did contradict herself this did not provide any basis for the Commissioner not to accept her evidence generally.  The point does not in any way undermine the findings or conclusions of the Commissioner.

162    Finally the appellant referred the Full Bench to a letter written by the student Holly about the non-signing of the reports issue.  This was at R1 436-437.  The Commissioner did not refer to this document in her reasons.  This is understandable however as this issue did not form the basis for any conclusions that the appellant did not adequately perform as a teacher.  Even if the Commissioner did not consider this document that does not undermine her decision.

163    On this complaint, the issue overall is whether, when the documents referred to by the appellant are considered collectively, they ought to have changed the decision made by the Commissioner.  For the reasons I have set out, they do not have this quality.  This ground of complaint cannot be established.

Conclusion

164    For the reasons I have set out therefore none of the complaints made by the appellant are sustained.  Accordingly the appeal must be dismissed.

165    There is one final point which I would like to make.  As I have set out, the Commissioner said the respondent would also have been entitled to dismiss the appellant as a probationary employee and because of his conduct on 31 August 2004.  The respondent did not base its case on either of these two points.  The appellant did not have the opportunity to respond to them.  Accordingly they should not have been taken into account by the Commissioner without prior notice being given to the appellant, together with the opportunity to respond to them.  These points did not effect the ultimate decision reached by the Commissioner however as they were clearly stated to be alternative bases for her decision.  The Commissioner concluded that the appellant was not unfairly dismissed according to the tests set out in the Undercliffe case and the others I have mentioned.  The Commissioner’s decision, on that basis, has not been proved to be in error by the complaints made by the appellant.

166    As I have said, the appeal must be dismissed.

167    The publication of these reasons and the issuing of the order have been delayed by the Full Bench because the appellant has been overseas. We were advised by the appellant that he was to be overseas in Egypt until 8 November 2009. Accordingly we have not published the reasons and issued the order until now so that the appellant has a full opportunity, if he may wish to do so, to file a notice of appeal in the Industrial Appeal Court within the 21 days permitted by s90(2) of the Act.

BEECH CC:

168    I have had the advantage of reading in advance the reasons of the Acting President.  I agree with them and have nothing to add.

SCOTT C:

169    I have had the benefit of reading the reasons for decision of the Acting President.  I agree and have nothing to add.