Appeal against a decision of the Commission in Matter No. U 29 of 2013 given on 3 September 2013

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 00074

DELIVERED : TUESDAY, 4 FEBRUARY 2014

FILE NO. : FBA 14 OF 2013

Appellant

AND

Mr Patrick Guretti

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S M Mayman

Citation : [2013] WAIRC 00785; (2013) 93 WAIG 1416

File No. : U 29 of 2013

CatchWords : Industrial Law (WA) - appeal against order made by Commission - teacher dismissed on grounds of substandard performance - employer claimed the finding that the process adopted by the employer was unfair ought to be set aside - in the alternative, employer claimed any failure to accord procedural fairness should have been set aside and the issue whether the teacher's performance was substandard should have been decided on the merits - nature and scope of a hearing referred to the Commission under s 78(5) of the Public Sector Management Act 1994 (WA) considered - new point sought to be raised on behalf of employer in the appeal that investigation conducted by a deputy principal - employer bound by further and better particulars and conduct of case - warnings to be given to employee whose performance is alleged to be substandard considered - Commission did not err in finding that the employer did not adopt a fair procedure

Legislation : Industrial Relations Act 1979 (WA) s 6(c), s 22B, s 26(1)(a), s 26(1)(b), s 26(1)(c), s 27(1)(a), s 27(1)(ha), s 27(1)(v), s 29(1)(b), s 29(1)(b)(i), s 49

Public Sector Management Act 1994 (WA) s 3, Part 5, s 78, s 78(2), s 78(2)(b)(i), s 78(3), s 78(5), s 78(5)(a), s 78(5)(b), s 79, s 79(1), s 79(2), s 79(3), s 79(5)

School Education Act 1999 (WA) s 239, s 240

Public Sector Reform Act 2010 (WA), Act No 39 of 2010, s 95

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr D Matthews

Respondent : Mr S Millman and with him Mr D Stojanoski

Solicitors:

Appellant : State Solicitor's Office

Respondent : Slater & Gordon

Case(s) referred to in reasons:

Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824

Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635

DVG Morley City Hyundai v Fabbri [2002] WAIRC 07057; (2002) 82 WAIG 3195

House v The King (1936) 55 CLR 499

Johnston v Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Margio v Fremantle Arts Centre Press (1990) 70 WAIG 2559

Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68

Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266

Minister for Education v Liquor Hospitality and Miscellaneous Union, Western Australian Branch [2011] WAIRC 00818; (2011) 91 WAIG 1839

Palermo v Rosenthal [2011] WAIRC 00069; (2011) 91 WAIG 129

Case(s) also cited:

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Barlaw Pty Ltd v Crouch [2013] FCA 961

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd (No 2) [2013] QSC 174

Shire of Esperance v Mouritz (1991) 71 WAIG 891

Trans Petroleum Australia Pty Ltd v White Gum Petroleum Pty Ltd [2011] WASC 150

Wallis Nominees (Computing) Pty Ltd v Pickett [2013] VSCA 24 (20 February 2013)

Reasons for Decision

SMITH AP:

Introduction

1          This is an appeal brought under s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision made by the Commission under s 29(1)(b)(i) of the Act on 3 September 2013 declaring that an employee of The Director General, Department of Education (the Director General), Mr Patrick Guretti, had been unfairly dismissed.  Mr Guretti was employed by the Director General from January 2005 until 31 January 2013.  At the time Mr Guretti's employment was terminated he was a science teacher at the Kalgoorlie Boulder Community High School (KBCHS).

2          His employment as a teacher was terminated on grounds of substandard performance.  Mr Guretti seeks reinstatement of his employment.

3          At the hearing at first instance, the Director General denied that Mr Guretti was unfairly terminated and sought an order that the application be dismissed.

The Evidence

4          Mr Guretti holds a Bachelor of Science in Chemistry and a Bachelor of Education Secondary.  He completed his qualifications in 2004.  During his final year of study he was selected to receive a final year teaching scholarship valued at the sum of $20,000.  The conditions of the scholarship were that he had to take up a position in the country for a period of three years with the Department of Education.

5          On 31 January 2005, Mr Guretti was employed by the Director General as a science teacher at KBCHS.  In 2005 and in 2006, his head of department was Mr Max McFarlane.  In August 2006, Mr Guretti was granted permanency.  In 2007, Ms DeGrace became Mr Guretti's head of department.

6          At the end of 2007, having completed the requirements of his scholarship, Mr Guretti made an application to transfer from Kalgoorlie to Perth on compassionate grounds.  The grounds of his application were that both his mother and mother-in-law had serious health issues and that he and his wife needed to be close to their mothers.  Mr Guretti's application for a compassionate transfer was granted.

7          Between 2008 and the end of 2009, Mr Guretti was employed in a number of metropolitan schools.

8          On 26 November 2010, Mr Guretti was informed that the maximum period of a three year compassionate transfer had come to an end and that his application for relocation had not been approved for 2011.  He was required to make a decision whether he would resume his position at KBCHS or relinquish his substantive position and his permanency with the Department and seek a fixed term appointment in Perth.  Mr Guretti applied to transfer his substantive position from Kalgoorlie to Perth.  His motivation to transfer arose from the medical issues his mother was confronting and the fact that his wife had permanent employment in Perth.  His primary concern was he did not wish to return knowing the difficulty of dealing with students in Kalgoorlie (AB 120).  His application for a transfer was unsuccessful.

9          On 16 December 2010, Mr Guretti informed the Department that he wished to relinquish his substantive position and his permanency and obtain a fixed term position in the metropolitan area.  In January 2011, Mr Guretti had a change of heart and on 14 January 2011 he advised the Department that his circumstances had changed leaving him available to reapply for the science teacher position at KBCHS that he had recently relinquished.

10       In an email sent to Ms Maxine Spalding from the Department on that date, Mr Guretti said that he had spoken to Ms Victoria Bogensperger at KBCHS and that she was keen to have him back at the school.  He also advised Ms Spalding in the email that he sought to reverse the relinquishment of his permanency.  The application was granted and he returned to KBCHS in the beginning of the school year in 2011.

11       From the beginning of the school year in 2011, Ms DeGrace was Mr Guretti's line manager and Ms Cattaway was the line manager of Ms DeGrace.

12       It is common ground that all teachers employed by the Education Department, including those at KBCHS, engage in a performance management process.  Mr Guretti, with the assistance of Ms DeGrace, completed a performance management plan on 23 March 2011.  The plan had four key elements:

SELF REFLECTION: Staff member reviews their own performance by self-reflection, in preparation for a planning meeting to be held between the staff member and the performance manager.

PLANNING MEETING: Meeting to clarify expectations, roles, responsibilities and what is to be evaluated during the review phase of the process. Outcome of the meeting will be a performance agreement.

IMPLEMENTATION; ONGOING FEEDBACK AND SUPPORT: Formal and informal discussions occur between staff member and manager to facilitate progress towards achieving the performance agreement.

REVIEW: Staff member will be required to demonstrate accountability for their performance, discuss outcomes of planned development and be provided with an evaluation of their performance. A review report will be prepared in consultation with the staff member (AB 477).

13       From the time Mr Guretti returned to school, both Ms Cattaway and Ms DeGrace became concerned that Mr Guretti was having difficulties with getting students into the classroom and getting them to listen and pay attention.  Both Ms Cattaway and Ms DeGrace decided that they needed to provide more support to Mr Guretti to improve his teaching practice.  They formed the view that the major areas for improvement were curriculum and the learning environment.  The aspect of curriculum Ms DeGrace was concerned about related to teaching practice, which was how to engage students in the classroom.  Her concern about the learning environment was that Mr Guretti needed to improve his use of classroom management strategies.  These are strategies designed to give teachers skills in managing classroom behaviour of students to elicit co-operation so that students follow teacher instructions (behaviour management) (AB 310, 346 and 464).  To address these matters, Ms DeGrace and Ms Cattaway decided to put in place a performance action plan for Mr Guretti.  The performance action plan was developed by Ms DeGrace and signed by Mr Guretti on 30 November 2011.  It is common ground that the implementation of the performance action plan was 'escalation' of performance management (AB 129).  Under the heading of 'Curriculum' in the performance action plan it was stated that the focus was to use a variety of instructional strategies to engage students and monitor achievement.  One of the matters also stated under this heading was to undertake training in tactical teaching in 2012.  The plan set out details of strategies of action to be taken to achieve improvement, resources and support that could be used, success indicators and when would action be taken to achieve these strategies (AB 463 - 465).

14       When Mr Guretti first returned to the school in February 2011, he was unable to teach one of his science classes and one of the English teachers undertook that class as a relief teacher.  Mr Guretti received feedback from the teacher who was the head of English in an email regarding the class that the head of English had taken for relief.  In that email positive comments were made about Mr Guretti taking the 'kids' literacy levels into account and differentiating tasks for them'.

15       Mr Guretti had undertaken a classroom management and instructional strategies course in 2006.  He gave evidence that that course assisted him in improving his classroom management.  He said he was proposing to take the tactical teaching course in 2012 as he thought the course was an extension on the tactics and strategies in which to implement the curriculum.  However, he was unable to undertake that course.  When it was run in Term 3 of 2012 he was on sick leave for the whole term after having knee surgery.

16       After the performance action plan was agreed to by Mr Guretti, Ms Cattaway and Ms DeGrace conducted a series of formal classroom observations and provided detailed written reports after they conducted most of the observations.  In Ms Cattaway's notes prepared by her in July 2012 she recorded that she and Ms DeGrace conducted (AB 531 - 532) 10 formal classroom observations and associated debrief meetings after the performance management action plan was put in place.  Four classroom observations occurred in 2011 and seven in 2012.  The last classroom observation occurred on 2 May 2012 (AB 531 - 532).  Whilst Ms Cattaway's notes record that she conducted 11 classroom assessments, one of which was informal, with Ms DeGrace, Mr Guretti's evidence was that there were eight classroom visits (AB 137).  Ms Cattaway also recorded in her notes that written feedback was given on nine occasions from 18 November 2011 until 2 May 2012 and that there were two classroom observations that occurred where verbal feedback was provided and that was on 13 February 2012 and 12 March 2012.  She also recorded that there were 10 meetings with Mr Guretti to discuss performance management on the following occasions (AB 532):

17       Ms Cattaway gave evidence that she formed the opinion in early 2012 there was no marked performance improvement by Mr Guretti and that his performance was substandard.  Ms Cattaway said she provided Mr Guretti with the opportunity to carry out a refresher course in classroom management strategies (CMS), but he had declined to do so.  She also offered him formal 'professional learning' and provided him with a book called 'Beyond Monet'.  She gave him lots of feedback and he worked with Miranda Hamilton who supplied support.  He was also provided with support by Ms Hansen and Aneela Nawaz.  Mr Guretti was keen to undertake some graduate lesson design and graduate modules.  However, Ms Cattaway was unable to arrange for him to carry out those modules.  It was her view that tactical teaching course would not assist him in the areas which they had identified that he had deficiencies in.  She said that tactical teaching is about literacy strategies and they did not identify literacy strategies as an area needing improvement in his performance management plan.

18       Sometime in 2012, Mr Guretti requested a change in line manager and nominated Associate Principal John Foeken.  Ms Cattaway made some enquiries of Mr Foeken.  Mr Foeken told her he did not want to carry out the role as he was a level 4 and he thought another level 3 may be suitable, if their workload would enable them to take it on.  Ms Cattaway spoke to Mr Guretti about that and Mr Guretti told her that he would get back to her.  Then Mr Guretti went on leave which was probably at the time at which he had his knee reconstruction.

19       When Ms DeGrace gave evidence she said that during 2011 and 2012 there was not a lot of professional development available, however, that there was a 'Barry Bennett' course.  Apparently Barry Bennett is well known in education.  He has produced a number of books on classroom management, co-operative learning and how to engage students in the classroom.  She was aware that Mr Guretti was offered the opportunity to take a Barry Bennett course, but he did not do so.  She said she could not recall if he was on sick leave at the time that course was available.  She said, however, that she was aware that he had completed the course previously.

20       When Mr Guretti gave evidence he was asked what feedback he had received about his performance and he said it varied depending upon the person.  He said the feedback he received from Ms DeGrace was not positive.  The feedback he received from Ms Hansen, from whom he received informal mentoring and support, was a 'mixed bag'.  Ms Hansen was also a science teacher.  He received positive feedback from Ms Nawaz and Ms Hamilton and positive and negative feedback from Ms Cattaway.

21       Five written performance evaluation reports were tendered into evidence that were prepared by Ms Cattaway and/or Ms DeGrace.  These performance evaluations took place between 28 November 2011 and 2 May 2012.

22       On 29 March 2012, Mr Guretti met with Ms Cattaway.  In notes prepared by Ms Cattaway she recorded that (exhibit Education 12, AB 518):

(a) Mr Guretti requested one person to conduct classroom assessments every two weeks.

(b) Mr Guretti told her he appreciated the written feedback and said Ms Hansen was a great resource.

(c) Mr Guretti said that the last 'COM' really opened his eyes and that he sees the process of changing two years of bad habits.

(d) She presented Mr Guretti with the Department's employee performance policy and she discussed what she felt they were at and discussed what could be expected from this point.  In particular, she discussed the possibility of the substandard performance process.

23       Despite the fact that Mr Guretti informed Ms Cattaway that he thought his teaching performance was improving, Ms Cattaway and Ms DeGrace had a contrary opinion.

24       When Mr Guretti gave evidence he said that he vaguely recalled the meeting on 29 March 2012.  He agreed that he had received a copy of the employee performance policy at that meeting.  He also agreed that Ms Cattaway discussed the possibility of proceeding with substandard performance process.  He said he read through portions of the document so as to make himself familiar with the process, but he could not recall the specifics of the policy (AB 245).

25       On 11 June 2012, Ms Cattaway provided to Mr Guretti a letter in which she stated that his performance was deemed to be substandard in a number of areas.  In the letter she said:

In line with the Department's Employee Performance Policy (copy attached) I write to inform you that given the context of KBCHS I consider you are not performing to a satisfactory standard as a Teacher - Level 2.

In particular, your performance is deemed to be substandard in the following areas:

CURRICULUM

• Use of student's prior knowledge to make deliberate and intentional selection of content and instructional strategies to maximise student learning.

• The design and implementation of assessment strategies, in line with the Principles of Assessment, to inform planning and provide timely feedback to students.

• Preparation of individual lessons and topics planning in sufficient detail to work effectively with students.

• The use of clear and explicit instructions to ensure smooth transitions between activities; eliminate 'dead time' and prevent inappropriate behaviour.

LEARNING ENVIRONMENT

• Maintaining responsibility for student behaviour through the effective use of behaviour management strategies that establish and maintain a safe and orderly environment for all students and promote learning.

• Maintaining an acute awareness of what your students are doing at all times to ensure you can intervene in a timely manner to prevent potential behaviour issues.

• Establishing and maintaining high standards in terms of students' behaviour and learning.

Satisfactory performance in each of the areas identified above would be indicated by:

CURRICULUM

• Clear articulation of the evidence used to inform the selection of content matching student needs and discuss the reasons why specific instructional strategies have been chosen.

• Demonstration of a comprehensive (multiple kinds and sources of evidence) assessment program including daily informal formative assessment and formal assessment tasks to monitor and provide feedback of progress throughout a topic.

• Preparation of individual lessons and topics including sufficient details (i.e. outcomes for students, instructional strategy, time frame, higher order questions, use of organizers etc) to be able to work effectively with students.

• Consistent use of clear and explicit instructions to ensure there are smooth transitions between activities; no 'dead' time and minimise inappropriate behaviour.

LEARNING ENVIRONMENT

• The use of a range of CMS strategies (low key responses, bumps, informal contracts etc), in line with KBCHS' Behaviour Management Policy, to manage low level classroom behaviour without compromising duty of care. When behaviours become persistent there is evidence of collaboration with L3 administrators to identify and apply effective interventions.

• Maintaining an acute awareness of what your students are doing at all times so that you intervene in a timely manner to prevent potential behaviour issues.

• Establishment and implementation of clear expectations of student behaviour and engagement such that a safe and productive learning environment is achieved and maintained. This would include ongoing follow up of inappropriate behaviour in such a away [sic] that positive student behaviour and engagement is elicited.

I invite you to provide in writing an explanation for your substandard performance in the areas listed. Your reply must be delivered within 10 working days of the date of this letter.

In the case that your explanation provides reasonable grounds for the alleged substandard performance I will discuss with you the support available for you to bring your performance to a satisfactory level. In the case that your explanation does not provide reasonable grounds for the alleged substandard performance the matter will be referred to the Director General.

I understand this matter may be distressing for you. Please be aware that additional support is available to you and your immediate family through the Department's Employee Assistance Program. Should you wish to avail yourself of these services, please contact Prime, Employee Assistance Services on 1800 674 188. A brochure is attached (AB 519 - 520).

26       As required by the letter, Mr Guretti provided Ms Cattaway with a detailed written response on 2 July 2012.  The response comprises some seven typewritten pages in which he addressed each of the dot points raised in Ms Cattaway's letter.  Among other matters he raised, he stated that:

(a) The offer of tactical teaching professional development had not yet been available to him and he had not had the opportunity to attend any formalised professional development linked to the action plan that was put in place in 2011.

(b) There had been an insufficient number of performance management meetings as agreed by the school, in particular the performance management action plan stated that the curriculum leader and the associate principal would visit his classes on alternate weeks, but this had not occurred.  There had only been four observations undertaken in his classes in 2012 and the last classroom observation had been carried out on 2 May 2012, almost six weeks prior to receiving the letter notifying of progression to substandard performance and that this was six weeks of missed opportunity to work with his observers to continue to improve on performance concerns.

(c) The school had not provided adequate resources to support and assist him.

(d) The performance management action plan's expectations were unrealistic, excessive and unreasonable.

(e) He requested an alternative line manager.  He acknowledged that Ms DeGrace had acted in good faith in undertaking her duties, but believed the breakdown of their personal relationship inhibited a truly effective performance management process and he requested that Ms Hansen assume the role of his line manager as she had with a number of science teaching staff.

(f) He is a proficient teacher who has worked at high performing schools such as Rossmoyne Senior High School and at no time was his performance or practice questioned.

(g) He had been an active participant in the performance management action plan and was aware it could lead to substandard performance process, but at no time was it explained to him what the substandard performance process meant, nor was there any indication from his line manager that recent efforts being made had reached their end and that things were progressing to substandard performance.

(h) He had sought counselling to assist him to deal with the anxiety and stress of this performance management process.  He felt that the relationship with Ms DeGrace had deteriorated to the point where it was no longer workable.

(i) The success indicators identified in the performance management action plan had been either met or were developing.  Specifically one of the issues he raised was that after his students had sat their first science exam their results showed a reasonably normal distribution of grades and that given that the exam was formal and common to all students, this gave him a clear indication of where the students were placed and his ability as a teacher (AB 467 - 468).

27       Mr Guretti then went on in the remainder of the letter to respond to the specific points raised by Ms Cattaway.

28       On 6 July 2012, Ms Cattaway responded to Mr Guretti as follows:

I refer to my previous letter dated June 11, 2012 and receipt of your response dated July 2, 2012 concerning substandard performance.

Having considered your response, the reasons you presented failed to persuade me that I should not progress this matter. As a result, I have referred the matter to the Director General. The Director General or nominee will investigate the alleged substandard performance in accordance with section 79 of the Public Sector Management Act 1994 (WA).

An investigator will contact you in due course. You may elect to have a support person present as an observer at any meeting.

Again, please be advised the Department of Education provides a free and confidential counselling service, PRIME, should you wish to use it. PRIME may be contacted on 9492 8900 or 1800 674 188 for regional areas.

Your cooperation in this matter is appreciated (AB 521).

29       No explanation was given to Mr Guretti as to why the matters in his response letter dated 2 July 2012 were not regarded as a reasonable explanation (AB 272).  Nor was any response given to Mr Guretti about the points raised by him in his letter.

30       When Ms Cattaway gave evidence she said that she considered Mr Guretti's response and she created detailed notes on each of the points that he raised.  She put this into a document which is titled 'Reflections in regards to Response Letter from Patrick Guretti dated July 2, 2012' (AB 311, 325 - 326).  However, Ms Cattaway did not provide these notes to Mr Guretti.  She said in her evidence that the document was produced for her purposes only and it was not designed to be given to anyone else.  She did, however, include the document in the folder which was sent to the Regional Executive Director (AB 325).

31       The Director General sent a letter dated 9 August 2012 to Mr Guretti advising him that she had received a report from the Regional Executive Director, Goldfields Education Region which alleged his performance was substandard with respect to the functions that he, Mr Guretti, was required to perform (AB 522 - 523).  The letter from the Director General referred to the letter sent by Ms Cattaway on 11 June 2012 and repeated the issues which had been identified by Ms Cattaway as issues of substandard performance.  The Director General also advised Mr Guretti in the letter that in accordance with s 79(5) of the Public Sector Management Act 1994 (WA) (the PSM Act), Ms Sherina Bhar, Senior Labour Relations Advisor with the Department of Education, had been appointed to undertake an investigation into his alleged substandard performance.  The Director General then stated:

The investigation will be conducted in a fair, proper and objective manner and will, in the first instance, conduct a review of documentation already available. Should Ms Bhar require further clarification she may, amongst other things, conduct interviews with, and obtain relevant documentation from you and other appropriate persons. The investigator will establish the facts relating to the alleged substandard performance and appropriate records of the investigation will be kept.

At the conclusion of the investigation a report will be provided to me outlining the investigator's findings. You will also be provided with a copy of the report and with an opportunity to respond to any allegations made during the investigation.

Please note that should further contact with you be required you are entitled to have present during any interviews or meetings a representative capable of providing advice and/or support to you. The representative is not, however, entitled to participate or represent you in discussions unless the investigator considers it appropriate. You have the right to refuse to attend any interviews or meetings should you wish to do so. 

The investigator will prepare a report for my consideration to assist me in forming an opinion as to whether or not your performance is substandard for the purposes of section 79 of the Act. If I form the opinion that your performance is substandard pursuant to section 79(1) of the Act, I may impose one or more of the penalties outlined in section 79(3) of the Act. Under the provisions of the Act, I may:

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

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

(c) terminate the employment in the public sector of that employee (you).

32       On 13 August 2012, Ms Bhar was directed by the Director General in accordance with s 79(5) of the PSM Act to investigate the matter of the alleged substandard performance by Mr Guretti and was asked to prepare a report for consideration by the Director General to assist her in forming an opinion as to whether or not Mr Guretti's performance was substandard.  In the letter dated 13 August 2012, Ms Bhar was directed by the Director General that the report should include the following:

(a) background to the matter;

(b) records of any interviews carried out;

(c) statements of any witnesses;

(d) any relevant file notes, notes of meetings, correspondence or other relevant documentation; and

(e) her findings (AB 538).

33       It is common ground that no steps were taken by Ms Bhar to interview Mr Guretti or seek any information from him.  Nor did she make any assessment of Mr Guretti's performance.  Her inquiry was limited to whether the teaching staff and KBCHS had provided Mr Guretti with procedural fairness and complied with the policies of the Department and the standards.  However, it appears that Ms Bhar was provided with information from Ms Cattaway and it appears some other documentation was provided to Ms Bhar from the school.  This is apparent from a memorandum sent to the Director General from Mr Keith Dodd, the Director of Labour Relations, dated 12 November 2012.  In that memorandum, Mr Dodd stated as follows:

BACKGROUND

Mr Guretti is employed as a teacher (Level 2) at Kalgoorlie-Boulder Community High School (KBCHS).

Mr Guretti was first appointed to the teaching staff at KBCHS on 31 January 2005 and was subsequently appointed in a permanent capacity by KBCHS on 29 January 2007.

In October 2007, Mr Guretti made application for a compassionate transfer for family reasons and held various fixed term placements in the Perth metropolitan area (including Governor Stirling Senior High School, Swan View Senior High School, Rossmoyne Senior High School, Mirrabooka Senior High School and Kalamunda Senior High School) before returning to his substantive position at KBCHS in January 2011. On his return to KBCHS, he was appointed to the position of Science Teacher.

There is some evidence of performance issues in 2006, 2007 prior to Mr Guretti transferring out of KBCHS but no evidence of any in his other placements, albeit those terms were fairly short in duration.

Management at KBCHS state that performance issues arose almost immediately upon Mr Guretti's return to KBCHS.

Between 30 September 2011 and 11 June 2012 a series of meetings were held with Mr Guretti to discuss his performance and to provide advice, guidance, the opportunity and support needed to meet the required standard of performance.

Within that period there is considerable documented evidence to show that Mr Guretti's [sic] was not performing to the required standard. This included difficulties Mr Guretti had with behaviour management of students in his classroom, selection of lesson content, instructional and assessment strategies, planning, assessment of students and student feedback, and organisational skills.

The school identified concerns with Mr Guretti's performance shortly after he recommenced at KBCHS in 2011. Unfortunately, there was some delay in being able to develop and implement a performance management plan with Mr Guretti until September of that year, mainly due to difficulties with arranging meetings with Mr Guretti.

From September 2011 onwards, Mr Guretti was provided with both formal and informal support and assistance by various key members of the teaching staff at KBCHS. Unfortunately, these efforts did not assist in improving Mr Guretti's performance.

In March 2012, the Ms Kylie Cattaway, Deputy Principal, advised Mr Guretti that his performance was unsatisfactory and that the sub-standard performance process would likely commence.

A letter relating to his unsatisfactory performance was issued to Mr Guretti on 11 June 2012. Specifically, the letter advised him that his performance was deemed to be unsatisfactory in the following areas:

CURRICULUM

• Use of student's prior knowledge to make deliberate and intentional selection of content and instructional strategies to maximise student learning.

• The design and implementation of assessment strategies, in line with the Principles of Assessment, to inform planning and provide timely feedback to students.

• Preparation of individual lessons and topics planning in sufficient detail to work effectively with students.

• The use of clear and explicit instructions to ensure smooth transitions between activities; eliminate 'dead time' and prevent inappropriate behaviour.

LEARNING ENVIRONMENT

• Maintaining responsibility for student behaviour through the effective use of behaviour management strategies that establish and maintain a safe and orderly environment for all students and promote learning.

• Maintaining an acute awareness of what your students are doing at all times to ensure you can intervene in a timely manner to prevent potential behaviour issues.

• Establishing and maintaining high standards in terms of students' behaviour and learning.

Mr Guretti was offered the opportunity to respond to the allegations and provided a detailed and lengthy response on 2 July 2012. He raised a number of alleged deficiencies in the performance management process which were found to be unsubstantiated.

Mr Guretti was informed on 6 July 2012 that his response did not provide reasonable grounds to explain his unsatisfactory performance and that the matter would be referred for investigation.

THE INVESTIGATION

By letter dated 13 August 2012, you appointed Ms Sherina Bhar, Senior Labour Relations Advisor, to undertake an investigation pursuant to section 79(5) of the Public Sector Management Act 1994 in relation to Mr Guretti's alleged substandard performance.

I have attached a copy of Ms Bhar's investigation report (Attachment 1). The following is a summary of a number of pertinent points to be considered:

• There is substantial documentation to demonstrate that Mr Guretti was given considerable support and assistance in an attempt to assist him to attain and sustain a suitable level of teaching.

• Mr Guretti was provided with extensive feedback, both written and verbal, and support in the performance management process.

• Mr Guretti had numerous opportunities to demonstrate that he was able to reach the standard that was required. He failed to do so.

Initially, the investigator was of the view that there was insufficient information to be able to form a conclusion on the evidence provided. However, after seeking further clarification and documents from the school, the investigator was able to complete the investigation. The additional information has been included in the original referral file.

The investigator ultimately concluded the performance management and substandard performance process have been undertaken in accordance with relevant policies and Standards and complied with the principles of natural justice.

CONCLUSION

Having evaluated all the information provided by the school administrators and the investigator, I have determined that there is sufficient evidence to find Mr Guretti's performance is substandard.

RECOMMENDATION

It is recommended that a letter be sent to Mr Guretti advising of the Department's receipt of the investigation report and providing him with an opportunity to respond to the report.

The attached letter is provided for your consideration (AB 539 - 541).

34       Despite the fact that it appears that Ms Bhar's investigation report was annexed as an attachment to that memorandum that was sent to the Director General, Ms Bhar's investigation report was not tendered into evidence in the proceedings at first instance after counsel for Mr Guretti objected to the tender of the report.  Nor was Ms Bhar called to give evidence.

35       When Mr Dodd gave evidence it was put to him that the first time Mr Guretti was advised his performance was substandard was in June 2012.  In response, Mr Dodd said 'up until that point … there's an onus on the school to make sure that they make reasonable attempts to try and get the person up to a satisfactory performance level.  And that may involve, I think, coaching, mentoring, providing additional training, professional development' (AB 390).  He did go on to say, however, that it was his understanding that Mr Guretti had been advised through meetings and discussions with his line manager prior to June 2012 that 'there were issues around his performance … And that may well lead to … a substandard performance process' (AB 390).

36       After Ms Bhar completed her report, Mr Guretti was provided with a copy and was provided with an opportunity to respond to the report.  Mr Guretti did so under cover of a letter from his solicitors dated 7 December 2012.

37       In a letter dated 20 December 2012, the Director General informed Mr Guretti that she intended to terminate his employment as a teacher with the Department of Education.  He was provided with an opportunity to provide written submissions concerning the action that she proposed to take.  However, no submission was made by Mr Guretti or on his behalf.

38       On 31 January 2013, Mr Guretti was sent a letter from the Director General in which she informed Mr Guretti that she had formed the opinion that his performance was substandard within the meaning of s 79(1) of the PSM Act and she maintained the view that termination of his employment was the most appropriate action in his case.  She also informed him that he would be paid until 22 February 2013 as payment in lieu of notice.

Other evidence about the performance of Mr Guretti as a teacher

39       Mr Ronnie Lava Naidoo gave evidence on behalf of Mr Guretti.  Mr Naidoo has been a teacher for 31 years in South Africa, New Zealand and Australia.  He had been employed at KBCHS for seven years, including working at the Goldfields Transition Centre which is an offsite facility for children with behavioural issues.  He is also involved in a special scheme for Aboriginal children with specialist literacy and numeracy needs.  He attended a classroom observation with Ms DeGrace on one occasion and Ms Cattaway on another.  On a number of other occasions he was present in a classroom when Mr Guretti was teaching science to some of Mr Naidoo's students.  Mr Naidoo testified that he had no obvious concerns about Mr Guretti as a teacher when he observed Mr Guretti teaching.

40       Mr Naidoo also gave evidence of difficult behavioural issues at KBCHS.  In particular, he said that the level of violence, distraction of staff and other students and bullying of the students at KBCHS were the worst that he had ever encountered in his years of teaching.

41       Ms Ruth Susan Kane also gave evidence on behalf of Mr Guretti.  She too made positive comments about Mr Guretti's performance as a teacher.  She is also employed at KBCHS.  She has been a head of department in the area of technology and enterprise and her teaching area is food science.  She is a workplace representative of the State School Teachers' Union of Western Australia.  In 2012, she carried out a relief lesson for Mr Guretti when he was away.  In her opinion, Mr Guretti had left a solid lesson, a seating plan, the students knew what they were doing, she understood the lesson and understood the content that Mr Guretti needed to deliver.  She also observed one of Mr Guretti's classes.  In her opinion, during the observation Mr Guretti did everything he was supposed to do.  He had a seating plan, lesson introduction, body of the lesson, conclusion to the lesson and the students were listening and well behaved (AB 189).

42       When asked about behaviour of students at the school, Ms Kane said that 95% of the students of KBCHS are well behaved.  She did, however, say that if you do not have good classroom management process, the students will set the kitchen on fire; or they will blow up the laboratory; or attack you with a drill (AB 192).

43       Mr Max Douglas McFarlane also gave evidence on behalf of Mr Guretti.  He is a science teacher of some 37 years standing and was at the time of giving evidence employed at Shenton College.  He was the head of department of the middle school at KBCHS in 2005 and 2006 when Mr Guretti was first appointed as a science teacher.  During the time he supervised Mr Guretti as a line manager he observed that Mr Guretti had issues with student control which was similar to the issues that he, Mr McFarlane, had had when he first started teaching.  He said, however, he did not recall Mr Guretti being tardy.  His opinion is that Mr Guretti had a good rapport with the students and had an effectiveness of delivery.  Mr McFarlane also described the Kalgoorlie students as being much more difficult than students in the metropolitan area and described the students at Kalgoorlie as 'a law unto themselves'.  Mr McFarlane was however surprised that Mr Guretti was made permanent in 2006 as he felt Mr Guretti needed more mentoring.  He said, however, that Mr Guretti was on the right track.  He also said that he thought Mr Guretti needed some assistance, but he was not surprised that Mr Guretti was having difficulty with student control.  Mr McFarlane said that classroom management is much more difficult at KBCHS compared to most other schools.

44       Mr Stephen Bradley Holyoake is the acting head of department for physical sciences at Rossmoyne Senior High School.  He too gave evidence on behalf of Mr Guretti.  Mr Holyoake observed Mr Guretti's performance whilst he worked in Perth.  Mr Holyoake was the acting head of department for six months in 2009 at Rossmoyne Senior High School when Mr Guretti was employed at Rossmoyne Senior High School on a fixed term contract for one term.  At that time, Mr Holyoake was Mr Guretti's line manager.  Rossmoyne Senior High School is a school that has high achieving students from a reasonably high socioeconomic background.  Mr Holyoake gave evidence that although Rossmoyne Senior High School has a few students that are challenging, in general, student management is quite easy at Rossmoyne Senior High School.  When asked to comment about Mr Guretti's performance, he said that he did not observe that Mr Guretti had any difficulty with classroom management, although he did give Mr Guretti advice about certain aspects of teaching and he regarded Mr Guretti as a developing teacher.  Mr Holyoake provided a reference which was tendered as an exhibit in the proceedings at first instance.  In the reference Mr Holyoake stated as follows:

I worked with Patrick in the capacity of his line manager in 2009 when he was appointed to Rossmoyne Senior High School as a Physical Sciences teacher. During his tenure at the school Patrick always showed good grooming and was a punctual and conscientious member of staff. He showed enthusiasm for his teaching and he completed his non-teaching duties such as reporting and entering marks in a reasonable and timely fashion.

He demonstrated the capacity to develop rapport with the students he taught and he endeavoured to cater to their different learning styles. I recommend Patrick as a reliable teacher with a sound knowledge of his subject who was willing to take and act upon advice when it was provided.

Please contact me for further details if required (AB 444).

Evidence about a comment alleged to have been made by Ms Hansen

45       Mr Naidoo gave evidence that he had heard Ms Hansen display displeasure at Mr Guretti returning to the school in 2011.  He said he heard Ms Hansen say on a social occasion about Mr Guretti's return to Kalgoorlie, 'Why the hell did he come back?' (AB 175).

46       When Ms Hansen gave evidence she was asked when she found out that Mr Guretti was returning to KBCHS whether she said something at Friday afternoon drinks like, 'Why is he coming back?'  In reply, Ms Hansen said she did not recall saying that.

47       Other than finding that the evidence of Mr Naidoo about this issue was preferred, the Commissioner made no other findings about this evidence.  In my opinion, no adverse finding should have been made against Ms Hansen by the Commission in respect of this aspect of her evidence as the matter was not properly put to her.  What was put to Ms Hansen in cross-examination was not only vague but is different to what Mr Naidoo said Ms Hansen had said on the occasion in question.

Conduct of the hearing – examination and cross-examination of Mr Guretti

48       In examination-in-chief, Mr Guretti was taken through each of the performance evaluation reports prepared by Ms Cattaway and/or Ms DeGrace and he identified what he said were positive comments about his performance.  When cross-examined, Mr Guretti conceded that the areas of teaching that had been identified as problematic and needed work to be undertaken for him to be able to gain improvement were those areas set out in the performance management action plan.  He also conceded that the performance management action plan was not part of the usual performance management plan (AB 226).  He was then cross-examined about a performance management plan he signed on 6 September 2007 and a performance evaluation that took place on 12 June 2007.  It was then put to Mr Guretti that there were performance issues with respect to his work leading up to the period prior to him leaving KBCHS on compassionate leave.  Mr Guretti did not concede this point.  He, however, did concede that similar issues were raised with him in the performance management action plan in 2011.  He said, however, it has to be similar because it is all related to performance management and designed for improvement of a teacher (AB 231).  Mr Guretti was then cross-examined extensively about the comments that could be said to be negative in the performance evaluation reports that were prepared in 2011 and 2012.

Matters that were agreed and matters stated in the Director General's further and better particulars

49       A statement of agreed facts was provided to the Commission which stated as follows:

1. The Applicant was employed by the Respondent as a science teacher at Kalgoorlie Boulder Community High School ('KBCHS') from 31 January 2005 to 31 January 2013.

2. The Applicant was permanently appointed as a teacher at KBCHS on 11 August 2006.

3. The Applicant's period of employment at KBCHS was not continuous. The Applicant made an application in October 2007 for compassionate transfer back to Perth for family reasons. This application was granted and the Applicant held various fixed term placements in the Perth Metro area.

4. The Applicant returned to KBCHS in January 2011.

5. On 11 June 2012 Ms Kylie Cattaway, Deputy Principal KCHS wrote to the Applicant and notified the Applicant that his performance was alleged to be substandard.

6. The Respondent placed the Applicant on a substandard performance process on 11 June 2012.

7. KBCHS referred the allegations of substandard performance of the Applicant to the Respondent on 6 July 2012.

8. The Respondent developed a performance management plan (PMP) and the Applicant was required to focus on two areas for improvement:

a. Curriculum; and

b. Learning Environment.

9. The PMP was signed by the Applicant in September 2011.

10. The PMP stated that the Curriculum Leader and the Associate Principal will conduct classroom observations on alternate weeks.

11. The Respondent did not contact or invite the Applicant to participate in an interview as part of the alleged substandard process.

12. Via letter dated 13 August 2012, the Respondent notified the Applicant that an investigator was appointed to undertake an investigation into the Applicant's alleged substandard performance process.

13. During the alleged substandard performance process, in term 3 of 2012, the Applicant took a period of sick leave for a knee operation (AB 30 - 31).

50       Prior to the matter being heard, a request for further and better particulars of the Director General's notice of answer and counter proposal was made of the representatives of the Director General on behalf of Mr Guretti.  Particulars were provided on 30 April 2013.  The following particulars material to this appeal were stated on behalf of the Director General as follows:

(a) Mr Guretti was a recipient of final year teaching scholarship which is offered in a number of teaching areas based on need and demand in particular areas, both learning and geographical, and is dependent on the incumbent undertaking to teach in those areas for a specified period of time after completing their teaching qualifications.

(b) Mr Guretti was granted compassionate transfer and placed in the following schools from January 2008 to January 2011 (AB 19 -29):

(c) Mr Guretti was notified in writing by KBCHS that his performance was alleged to be substandard on 11 June 2012.

(d) The Director General denies that the first occasion during Mr Guretti's employment that his performance was put in issue was when he received written notification that his performance was alleged to be substandard.  Mr Guretti was provided with a copy of the Employee's Performance Policy in a meeting with the Deputy Principal, Ms Kylie Cattaway, on 29 March 2012.  During this meeting Ms Cattaway discussed the substandard performance process with Mr Guretti in relation to his own performance and outlined to him what the process would involve.

(e) The substandard performance process commenced on 11 June 2012.  The Department's employee performance policy requires an employee to be notified in writing that his or her performance is considered substandard as the first step of the substandard performance process.

(f) Ms Cattaway met with Mr Guretti on 29 March 2012 to discuss his possible progression to the substandard performance process.  Therefore, Mr Guretti was aware of the possibility from this date, if not earlier.

(g) Classroom observations were conducted on:

Classroom observations were put on hold from 2 May 2012 as student reports were due.

Classroom observations were carried out by both Ms Cattaway and the curriculum leader, Ms Adele DeGrace, as provided for in the performance management plan.

(h) Mr Guretti was informed by letter from the Director General dated 13 August 2012 that if the investigator required further clarification from him and/or other appropriate persons, he may be invited to participate in an interview.  There was no obligation on the investigator and/or the Department to invite Mr Guretti to participate in an interview if it was deemed not to be required.  Mr Guretti had already been provided with an opportunity to respond to the allegations when put to him and he had provided a detailed response which was duly considered.

(i) Mr Guretti was further provided with the opportunity to respond to the investigation report before the investigator's findings were accepted, and he provided through his lawyers further submissions at that point which had also been considered by the Director General before a penalty was imposed.

(j) Ms Melinda Hansen, teacher in charge of science at KBCHS, did not attend Mr Guretti's classes as part of the substandard performance process.  She was identified as a resource for Mr Guretti to utilise as part of the ordinary performance management process.  This was documented in the performance management plan.

(k) Mr Guretti was notified in writing that his performance was substandard and proposed the termination of his employment as the most appropriate action on 20 December 2012.  Prior to this notification, Mr Guretti's performance was only 'alleged' to be substandard.

(l) Alternatively, Mr Guretti was first notified by KBCHS that his performance was alleged to be unsatisfactory on 11 June 2012.

(m) Mr Guretti was provided with a copy of the investigation report and an opportunity to respond to the findings on 14 November 2012.

(n) Confirmation of Mr Guretti's permanency was withheld for a period of one semester at the end of 2005, as Mr Guretti was deemed to have failed to demonstrate a satisfactory standard of performance.

(o) The lack of evidence regarding performance between 2008 and 2011 is largely because Mr Guretti sought compassionate transfer and was placed on numerous fixed term contracts in Perth schools for short fixed term periods.  When an employee is on a temporary placement, performance and/or substandard performance management is not always practicable given the process takes a significant length of time to complete.

(p) Mr Guretti's performance was assessed up to 11 June 2012.

The Commissioner's findings at first instance

51       After considering the evidence and the submissions made by the parties, the Commissioner made the following findings:

(a) Mr Guretti gave his evidence in a considered and confident manner.  There was nothing in his evidence that could be considered untruthful or improbable.

(b) The other witnesses gave their evidence clearly and to the best of their ability.  Mr Naidoo's evidence about a critical comment Ms Hansen made about Mr Guretti returning to Kalgoorlie, the evidence given by Mr Naidoo in respect of this issue was preferred.  However, all other evidence given by Ms Hansen is accepted.

(c) The rights, duties and obligations between employees and employers in the public sector are governed by statute.  Section 79 of the PSM Act provides a right of appeal to the Commission for relevant employees, including, Mr Guretti.  In Johnston v Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553, Kenner C found that in an appeal instituted under s 78 of the PSM Act, the Commission can review the employer's decision to terminate an employee as a hearing de novo.

(d) Mr Guretti was aware that the representatives of the Director General had concerns about his performance, but it is not accepted that Mr Guretti knew the degree of concern the representatives had regarding his employment.  In particular, it is not accepted that on 29 March 2013 Mr Guretti became aware his employment was in jeopardy.  Ms Cattaway said in evidence that she discussed with Mr Guretti on that day the possibility of a substandard performance process.  Exhibit Education 12 is a handwritten note by Ms Cattaway written sometime after meeting with Mr Guretti.  This note indicates she had presented the employee performance policy to Mr Guretti.  When Mr Guretti was asked whether he recalled the meeting, his words were 'Yes, vaguely' (ts 171, AB 241).  Whilst Ms Cattaway warned Mr Guretti of the substandard performance process in March 2012, Ms Cattaway was unsuccessful in transmitting the seriousness of the situation to Mr Guretti insofar as there being a consequence for Mr Guretti's employment.  In making this finding, regard is had to exhibit applicant 17 in which it is stated:

I have been an active participant in my Performance Management Action Plan and was aware it could lead to substandard performance process, but at no time was it explained to me what the Substandard Performance process meant nor was there any indication from my line manager that recent efforts being made had reached their end and that things are now progressing to Substandard Performance (AB 468).

(e) It is accepted that:

(i) Mr Guretti received a copy of the employee performance policy at the meeting on 29 March 2012;

(ii) The employee performance policy is a 16 page document which contains a number of terms which can be regarded as 'jargon'.  To be fully understood, the document has to be read in conjunction with relevant legislation, departmental policies, awards, enterprise bargaining agreements and public sector standards;

(iii) Even if Mr Guretti read the policy in its entirety, he would not be aware that his employment was in jeopardy;

(iv) Ms Cattaway may have understood that she warned Mr Guretti.  However, given Mr Guretti's evidence that he understood he was making good progress, clearly that was not the case.

(f) Ms Cattaway gave direct evidence that she failed to consider Mr Guretti's written response contrary to the provisions of the employee performance policy.  When Ms Cattaway gave evidence she agreed her response to Mr Guretti's letter was short and said she was anxious to follow the correct procedure and in doing so had followed a 'sample' letter.

(g) The Commission has been asked by counsel for Mr Guretti to draw an adverse inference as a result of the Director General not calling the investigator to give evidence:  Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

(h) The Director General must be able to demonstrate that it afforded Mr Guretti natural justice and procedural fairness in the investigative process.

(i) At no stage did the investigator put any question, email, interview, or telephone Mr Guretti.  Similarly, there was no contact with Mr Guretti's union representatives or those persons who had attended observations in his classrooms at his request.

(j) It is accepted that seemingly, the investigator did consider Mr Guretti's correspondence of 2 July 2012 (exhibit applicant 17).

(k) There are numerous pages of notes outlining questions from the investigator to Ms Cattaway.  Many of the questions would have been better answered by Mr Guretti as they were questions as to how Mr Guretti felt, not how Ms Cattaway considered he felt.

(l) With the exception of having read his letter of 2 July 2012, Mr Guretti seems to have been excluded from the investigation.  Having made that finding, it is not considered necessary for every employee to be interviewed in such circumstances, but clearly for the scope of the information being sought in this investigation, including Mr Guretti's requests to change his line manager, there were some significant requests being made by Mr Guretti.  An interview, courtesy correspondence, an email or certainly communication by telephone at the very least would have been useful and would have allowed Mr Guretti to feel as if he had been part of the investigative process.

(m) The investigation failed to identify that the school had specific behavioural issues with children.  Evidence was given by a number of witnesses, including Mr McFarlane, Mr Holyoake, Mr Naidoo and Ms Kane that there were problems amongst the children.

(n) In the section 'performance issues' of the investigation report forwarded by the Director General to Mr Guretti on 14 November 2012, the investigator stated that the evidence indicated that Ms Hansen had compiled comprehensive notes about her interaction with Mr Guretti relating to identified performance issues.  Until reading this report Mr Guretti had not been made aware that Ms Hansen was involved in his performance management.  Nor had Mr Guretti been involved in any discussions with her about her alleged concerns, or seen any evidence of her concerns.  As this was new information that had come to light and had never been raised in any previous meetings, conversations or correspondence, he felt that he was disadvantaged in his ability to defend these.  These circumstances relating to Ms Hansen's involvement in Mr Guretti's performance management without his understanding are somewhat alarming.

(o) It is critical in an investigation such as the one overseen by the investigator that the process is perceived to be fair and substantively fair.  In this matter, the perception is that the investigation was one sided, made more so by excluding the investigator from the giving of evidence.

(p) Clause 4.3 of the Director General's employee performance policy requires that normally a substandard performance management is not to be commenced unless an employee has been:

(i) previously advised what aspects of their performance are considered unsatisfactory; and

(ii) given a reasonable opportunity and assistance to improve to a satisfactory standard.

Mr Guretti was not given a 'reasonable opportunity' to improve his performance because he did not know what 'substandard' meant until such time as he received the letter from Ms Cattaway on 11 June 2012.  Whilst he responded to Ms Cattaway's letter in comprehensive form, he was shortly thereafter advised by the Director General that an investigator was to be appointed and accordingly there was no opportunity for Mr Guretti from 11 June 2012 to improve his performance, even though he remained employed by the Director General through to February 2013. 

(q) There were delays caused by Ms DeGrace in getting Mr Guretti's performance plan implemented in an appropriate amount of time.

(r) Mr Guretti had a legitimate expectation to be provided with all the details associated with the investigation before the report was actually concluded.  In other words, Mr Guretti had a right to know what the case was against him:  Kioa v West [1985] HCA 81; (1985) 159 CLR 550.  For example, Ms Hansen appears to have made a significant contribution in a negative sense about which Mr Guretti knew nothing, which was a denial of natural justice.

(s) The Director General failed to follow procedural fairness in that:

(i) Mr Guretti was given no opportunity to improve his performance once advised he may be moved onto the substandard process;

(ii) Ms Cattaway did not consider Mr Guretti's detailed response of 2 July 2012 (exhibit applicant 17) contrary to the Director General's policy;

(iii) the investigative process gave the impression it was one sided as apart from the investigator advising in writing (Director General's discovery documents 306) she had read Mr Guretti's letter of 2 July 2012 (exhibit applicant 17) the investigator had no contact with any persons associated with Mr Guretti;

(iv) the investigation was limited in the evidence it considered;

(v) Ms DeGrace failed to treat Mr Guretti with sensitivity and consideration in her observations as a line manager, contrary to the Director General's policy;

(vi) there was a failure by the school to assist Mr Guretti to understand his role and responsibilities in relation to the performance management process;

(vii) the investigator relied on details which were never presented to Mr Guretti which is fundamentally unfair;

(viii) Mr Guretti asked on more than one occasion to change his line manager, a request that was overlooked; and

(ix) it appears that the Director General based its view on Mr Guretti's substandard performance on only four observations (contrary to its own policy), the last one undertaken on 2 May 2012, some four weeks prior to the correspondence of 11 June 2012, an observation whereby no feedback was sought from Mr Guretti.

(t) Little regard was had to the several years that Mr Guretti spent as a teacher in metropolitan schools with no issues being raised regarding his performance.  The Director General had no regard to the promptness with which Mr Guretti gained his permanency following commencing his employment at KBCHS.

(u) One of the criticisms raised in the report was the lack of professional development Mr Guretti had undertaken, yet the school was aware he had signed up to the second stage of tactical training in term three, 2012.  Mr Guretti had to withdraw because of knee replacement surgery which meant that he was absent from school.  The fact that Mr Guretti marked five classes of exams while on sick leave at the request of one of the teachers (some 100 exams) was simply overlooked in the investigation report.

(v) In all of the circumstances, Mr Guretti was not given a fair go all round and was unfairly terminated.  The onus of proving whether a dismissal is harsh, oppressive or unfair rests with Mr Guretti.  On the balance of probabilities Mr Guretti has demonstrated the dismissal was unfair in that the Director General failed to adopt a fair procedure when seeking to place Mr Guretti on a substandard performance procedure pursuant to s 79 of the PSM Act.  Mr Guretti has discharged the onus in proving that the dismissal was unfair.

The grounds of appeal

52       The grounds of appeal contain two grounds.  The first is that the Commissioner failed to accord the Director General procedural fairness.  However, at the hearing of the appeal this ground was abandoned.  The second ground of appeal is that the Commissioner's reasons for decision demonstrate that she failed to properly consider the Director General's case and the evidence led in support of it.  In support of this ground of appeal, the notice of appeal contains lengthy particulars of what are said to be errors in findings made by the Commissioner.  The particulars of ground 2 are as follows:

The Commissioner:

(a) erred in finding at [157] of her reasons for decision that the delay in the respondent commencing the initial performance management plan was the fault of Ms Adele de Grace when such a finding was not supported by or was against the evidence led (see T 224, 236);

(b) having found at [144] of her reasons for decision that the respondent 'was aware that the respondent had concerns about his performance' and that Ms Kylie Cattaway, in a meeting on 29 March 2012, 'did warn [the respondent] of the substandard performance process' and gave the respondent a copy of the relevant policy, the Commissioner failed to adequately explain why the school based substandard performance investigation was inadequate or unfair;

(c) erred in finding at [147] and [159] of her reasons for decision that Ms Kylie Cattaway had given no or inadequate consideration to the respondent's letter dated 2 July 2012 when such a finding was against the evidence (T 177, 178, 241; Education Exhibit 19);

(d) erred in finding at [151] of her reasons for decision that the school based investigation had made insufficient allow for 'specific behavioural issues with children' at the school when a finding that there were material behavioural problems among students at the school was against the evidence (see T 119 and note Mr Stephen Holyoake had never taught at the school) and failed to adequately explain, or explain at all, the relevance of any behavioural problems among students to a finding that the school based investigation process was flawed;

(e) erred in finding at [152] of her reasons for decision that Ms Melinda Hansen had 'involvement in [the respondent's] performance management' which finding was against the evidence that Ms Hansen did not performance manage the respondent (see T 68, 281);

(f) erred in finding at [152] of her reasons for decision that Ms Melinda Hansen's 'involvement in [the respondent's] performance management [was] without [the respondent's] understanding [and] somewhat alarming' in circumstances where Ms Melinda Hansen was the teacher in charge of science teachers, the respondent having been a science teacher, and in circumstances where the respondent was aware that he had to have 'regular weekly check ins' with Ms Melinda Hansen as part of his initial performance management plan (T 68; Applicant Exhibit 15);

(g) erred in her findings at [159] in relation to the 'investigation' and the 'investigator' by misunderstanding the role of the person referred to as the 'investigator' in the reasons for decision and in particular by not understanding that the investigator did not conduct the substandard performance investigation but only reviewed the school based investigation;

(h) erred in finding at [149] and [150] of her reasons for decision that the 'investigator' had acted unfairly in failing to do certain things, such as interview the respondent, without adequately understanding the role of the investigator;

(i) erred in making findings in relation to the role and conduct of the investigator by reference to the investigator's report which was not in evidence before her;

(j) erred at [158] of her reasons for decision, if the notes of Ms Melinda Hansen were to be taken into account despite them not being in evidence, in characterising them as amounting to 'a significant contribution in a negative sense about [the respondent]';

(k) failed to give any or adequate weight to the respondent having been provided with the investigator's report, and invited to make comment upon it, prior to being dismissed and accordingly failed to give any or adequate weight to the fact that the decision maker gave the respondent the opportunity to be heard on all material matters prior to making the decision about which the respondent complained;

(l) erred in finding at [159] of her reasons for decision that Ms Adele de Grace had 'failed to treat [the respondent] with sensitivity and consideration' without giving reasons for such a finding and when such a finding was against the evidence;

(m) erred in finding at [159] of her reasons for decision that the appellant had 'failed to follow procedural fairness in that [the respondent] asked on more than one occasion to change his line manager, a request that was overlooked' without giving reasons why this was a failure to follow procedural fairness;

(n) erred in finding at [160] of her reasons for decision that the appellant had had insufficient regard for 'the several years that [the respondent] spent as a teacher in metropolitan schools with no issues being raised regarding his performance' when proper regard was not had to the length of the periods of employment in those metropolitan schools; and

(o) failed to give any or adequate consideration to the evidence of the respondent led from Ms Kylie Cattaway, Ms Adele de Grace and Ms Melinda Hansen of support and assistance provided to the respondent in an attempt to improve his performance.

53       The Director General seeks orders that the appeal be upheld and that the matter be remitted for further hearing and determination before a different Commissioner.

54       It is contended on behalf of the Director General that the Commission having found there had been a failure to comply with the rules of procedural fairness on the part of the Director General, the Commissioner should have, instead of making a declaration or order at that point, proceeded to decide the reference under s 78(5)(a) of the PSM Act on its merits.

55       The Director General, with respect, offers no criticism of the Commissioner for deciding not to proceed to decide the matter on the merits.  The hearing before the Commissioner at first instance was not in any meaningful way about the merits of the matter.  Thus, the Commissioner could not have sensibly made a decision on the merits on the evidence before it.  The evidence before the Commissioner at first instance was overwhelmingly about process and procedural fairness.

56       The Commissioner erred in making its findings about whether the Director General herself and through her representatives complied with the rules of procedural fairness and says this matter should be completed by a hearing on the merits being conducted before the Commission differently constituted.  Thus, the effect of the Director General's ground of appeal in ground 2 is to say the Commissioner's reasons for decision demonstrate that she failed to properly consider the Director General's case and the evidence led in support of it in relation to the matter of whether there had been a failure to comply with the rules of procedural fairness.

57       At the heart of the Director General appeal are two central points.  Firstly, once procedural fairness issues had been identified, the Commissioner failed to hear the matter de novo and go on to determine whether in fact Mr Guretti's performance as a teacher was substandard.  The second point is an argument that the Commissioner erred in finding that the Director General failed to adopt a fair procedure when seeking to place Mr Guretti on a substandard performance procedure pursuant to s 79 of the PSM Act.

Submissions made on behalf of the Director General as to whether there was a hearing on the merits before the Commissioner at first instance

58       On behalf of the Director General the following submissions are made:

(a) When counsel for Mr Guretti opened his case, counsel alleged that 'the way in which the substandard performance process was handled was critically lacking in procedural fairness and natural justice' (AB 81).  Counsel did not open on the basis that Mr Guretti intended to demonstrate that he was not actually performing at a substandard level.

(b) When Mr Guretti was taken through the performance management action plan, he baldly asserted without supporting documentary evidence and generally without elaboration that he had either achieved the desired state of performance or was progressing towards achieving the desired state (AB 132 - 135).  In examination-in-chief, Mr Guretti was also taken through the written classroom observation documents and asked to identify whether there was any positive feedback in the documents and read out some of the positive feedback (AB 150 - 159).  Whilst it is conceded that such an exercise was not irrelevant to the merits of the matter there was little elaboration of what might be meant by the feedback and the negative feedback was not addressed or explained by Mr Guretti at all.  In any event, the evidence can only be properly understood in light of the evidence of the authors of the documents.

(c) The merits of whether Mr Guretti's performance was substandard was only dealt with to a limited extent.  Other than a failed attempt in cross-examination of Mr Guretti to introduce a document touching upon Mr Guretti's performance in 2005 and a failed attempt to cross-examine Mr Guretti in respect of performance issues raised in 2007, the Commissioner did not hear much in the way of evidence about Mr Guretti's performance prior to his return to KBCHS in 2011.

(d) The only examination of Mr Guretti on the merits of whether the criticisms of him by Ms Cattaway and Ms DeGrace were validly made, was raised in the re-examination of Mr Guretti.  Mr Guretti gave evidence that the written classroom observation assessment of a lesson that he took on 2 May 2012 and the criticisms made in that report were not justified.  In particular, Mr Guretti said the lesson involved matter, solids, liquids and gases, and what happens to particles in the air.  He said the idea behind the lesson was to show the demonstration to the students and get them to write down their predictions of what they thought was happening in the demonstrations, and whether they could explain it (AB 266 - 268).  In the observation report of this lesson comment was made by Ms Cattaway that she did not hear or see Mr Guretti establish prior knowledge of the students.  Mr Guretti said there was a specific planned reason for not doing so.  He said he did not wish to establish prior knowledge, because if he did, that would have influenced the answers of the students and therefore he would not elicit from them what they understood from the demonstrations.  Other than this evidence, it is contended that there was no assessment of the merits of the matter.

(e) In all other respects, Mr Guretti simply made comments without any elucidation, without elaboration, that his teaching performance had improved and was continuing to improve.

(f) As to Mr Guretti's other witnesses who gave evidence at the hearing about his performance:

(i) The evidence given by Mr McFarlane and Mr Holyoake could not have assisted the Commission in determining the merits of the matter which were solely confined to whether or not Mr Guretti was performing at the required level in 2011 and 2012.

(ii) The evidence of Mr Naidoo and Ms Kane also did not assist.  With respect to Mr Naidoo, he is a fellow teacher who sat in on two formal classroom evaluations as a support to students.  On other occasions he observed Mr Guretti's classes when he (Mr Naidoo) was assisting struggling students.  Of relevance to the merits of the matter, Mr Naidoo gave evidence that he did not believe there were obvious concerns with Mr Guretti's teaching and that Mr Guretti tried to maintain the behaviour management as best he could, which was a task the rest of the teachers faced (AB 173 and 185).  The evidence of Ms Kane was of limited value to the Commission in deciding the merits of the matter as she delivered one relief lesson on behalf of Mr Guretti in term 3 of 2012.

(g) The Director General had met the evidential burden upon her by leading evidence, both oral and documentary, from the persons who performance managed Mr Guretti.  The Director General had come to the conclusion that Mr Guretti's performance was substandard.  In this regard, the oral evidence of Ms Cattaway and Ms DeGrace was enough to discharge the evidential burden.  The onus then moved to Mr Guretti to show that the dismissal was harsh, oppressive or unfair.

(h) Although counsel for Mr Guretti, in closing submissions before the Commissioner at first instance, submitted that 'the essential question, we say, is whether or not, in fact, on the basis of the evidence, there is sufficient information for you to find that the applicant's performance was substandard, as was alleged by the respondent' (AB 399), this question was not adequately addressed in the evidence.  Whilst Ms Cattaway and Ms DeGrace gave evidence touching upon the substantive merits of the matter, it is conceded that there was not enough evidence before the Commissioner to consider the merits.  Their evidence simply touched upon the identification of issues of concern with Mr Guretti's performance, the fact that Mr Guretti did not show consistent improvement in 2012 and that further professional development was not going to address Mr Guretti's deficiencies.  While Ms DeGrace gave evidence that she did not know how many of Mr Guretti's students had passed in 2012, whether this undermined or affected her view that Mr Guretti was not performing at the required level was not explored with her.  Similarly, Ms Hansen gave evidence under cross-examination that Mr Guretti's students achieved marks that were a little bit lower than other teachers.  This evidence was also of no assistance to the Commission.

(i) Counsel for Mr Guretti also submitted that referrals of the type before the Commission 'can be held as a hearing de novo' (AB 404).  However, the matter did not proceed as a hearing de novo in which the Commission was presented with full primary evidence as to whether or not Mr Guretti's performance was substandard, and the Commissioner was not in a position to answer the question whether or not Mr Guretti's performance was substandard.

(j) The Director General says that if the Commissioner had confined herself to the question whether Mr Guretti's employment was substandard, the Commissioner could have only correctly found that the Director General had discharged its evidential burden and that Mr Guretti had not discharged the onus upon him to show the termination of his employment was harsh, oppressive or unfair because, on the evidence before the Commission, the Commissioner could not have held that the Director General's opinion of Mr Guretti's performance was wrong.  However, the Commissioner did not confine herself to the question of the merits, or deal with the question at all, and it is submitted, properly so.  The hearing before the Commission was about the process and the Commissioner was correct to decide the matter on the basis of its consideration of the matter of procedural fairness (although the Director General submits that the decision was wrong) and not to go on to determine the matter on the merits.

(k) Whilst the decision in Johnston v Mance, Acting Director General Department of Education found that matters referred to the Commission pursuant to s 78(2) of the PSM Act are not restricted to a consideration of the reasonableness of the employer's conduct but may review the employer's decision de novo, the correct position is one that was effectively adopted in Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824 (which has support in the cases referred to by Kenner C in Johnston v Mance, Acting Director General Department of Education), is that the party who brings a referral to the Commission sets out the grounds upon which the decision is being challenged and those grounds determine the nature of the hearing that occurs.  In some matters, a party bringing a referral against a decision of substandard performance will simply say that they were not performing at a substandard level and the Commission should determine the matter for itself on a hearing de novo.  In that case, the Commission can put to one side procedural matters and determine the issue that is really in dispute.  In other matters, the party complaining may say, 'Yes, there were breaches of procedural fairness which make the conclusions of the employer unreliable or unfair'.  If the party wishes to confine themselves to procedural issues they may do so, although it is clear the Commission, since the insertion of s 78(5) into the PSM Act in late 2010, may (but it would appear not must) proceed to determine the issue on the merits.

(l) The Director General says, by appeal ground 2, that the Commissioner erred in relation to the procedural matters and submits that the matter should now be heard, on the merits, before the Commission differently constituted.  What was left undone in this proceeding was to explain to the Commissioner exactly how you assess a teacher as being substandard and how that should be determined.

The essence of points made in the particulars to ground 2 of the appeal

59       On behalf of the Director General, an argument is put that if the evidence before the Commissioner had been properly analysed, a finding would have been made that Mr Guretti was accorded procedural fairness.  In support of this submission, the Director General attempts to make two points.  The first is that the investigation that was conducted pursuant to s 79(5) of the PSM Act was an investigation conducted by Ms Cattaway at the school and that Ms Cattaway had provided Mr Guretti with procedural fairness in conducting her investigation into whether Mr Guretti's performance as a teacher was substandard.  This contention is directly raised in grounds 2(g), 2(h) and 2(i) of the particulars to ground 2 of the appeal.  The second point is that the key findings made by the Commissioner relating to process were all findings of fact that were either not open for her to have made on the evidence or, alternatively, were matters that were irrelevant.  In particular, that the advantage enjoyed by a decision maker at first instance was not properly enjoyed or used and there was a palpable misuse of the advantage of hearing the evidence at first instance.

60       As to the first point, it is submitted on behalf of the Director General that the report which was prepared by Ms Bhar was a 'review' of the investigation conducted by Ms Cattaway.  Whilst the Director General and others in the Department describe Ms Bhar's review as an investigation, it is said that the evidence established the fact that the investigation was conducted by Ms Cattaway over a long period of time.  As an expert educator and the Deputy Principal of the school, she was the person who was best placed and qualified to make an assessment of whether Mr Guretti's work as a teacher was substandard.  In particular, the review conducted by Ms Bhar was simply a review as to whether Ms Cattaway and others at the school had conducted the investigation in a manner that was procedurally fair to Mr Guretti.  Ms Bhar was not in a position to investigate the matter of Mr Guretti's substandard performance or not.  The school was in the position to do so and did so.  Consequently, it is argued s 79(5) of the PSM Act was complied with.  An investigation was done and Ms Bhar did something more.  She audited the investigation and the Department misdescribed what had been done, and that did not assist the Commissioner as the Department misdescribed the review as an investigation.

Public Sector Management Act 1994 (WA)

61       The termination of employment of a teacher on grounds of poor performance is codified by the operation of s 239 of the School Education Act 1999 (WA) and s 78(3), s 78(5) and s 79 of the PSM Act.  Section 239 of the School Education Act applies the powers to deal with substandard performance under s 79 of the PSM Act to members of teaching staff and the Director General.  Under s 240 of the School Education Act in addition to the actions that may be taken under s 79(3) of the PSM Act, the Director General may also transfer a member of the teaching staff to another category of employee.

62       Section 79(1), s 79(2), s 79(3) and s 79(5) of the PSM Act provide:

(1) For the purposes of this section, the performance of an employee is substandard if and only if the employee does not, in the performance of the functions that he or she is required to perform, attain or sustain a standard that a person may reasonably be expected to attain or sustain in the performance of those functions.

(2) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether or not the performance of an employee is substandard, regard — 

(a) shall be had — 

(i) to any written selection criteria or job specifications applicable to; and

(ii) to any duty statement describing; and

(iii) to any written work standards or instructions relating to the manner of performance of,

the functions the employee is required to perform; and

(b) may be had — 

(i) to any written selection criteria or job specifications applicable to; and

(ii) to any duty statement describing; and

(iii) to any written work standards or instructions relating to the manner of performance of,

functions similar to those functions.

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

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

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

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

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

63       Pursuant to s 78(3) of the PSM Act, a teacher whose employment is terminated may refer the decision to do so to the Commission as if that decision or finding were an industrial matter mentioned in s 29(1)(b) of the Act.  Of importance in this matter, s 78(5) provides that if it appears to the Commission that the employing authority failed to comply with the rules of procedural fairness, the Commission:

(a) is not required to determine the reference or allow the appeal solely on that basis and may proceed to decide the reference or appeal on its merits; or

(b) may quash the decision or finding and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process.

64       In Ayling I explained the difference between an appeal heard stricto sensu and a hearing de novo and then I considered the findings made by Kenner C in Johnston v Mance, Acting Director General Department of Education.  At [129] - [132] I said:

In an appeal stricto sensu, the body hearing the appeal only considers whether the decision appealed was correct when given. The law and facts which existed at the time the decision was made are considered and fresh evidence is not taken into account unless there is power to do (See the discussion in Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 (FC)). In a hearing de novo the body hearing the appeal hears the matter anew. In Marantelli SE The Australian Legal Dictionary (Melbourne: Hargreen Publishing, 1980), the learned author observed that in a hearing de novo the body:

must determine the legal position of the parties as at the date of the re-hearing and not as at the date of the original hearing. It must therefore apply itself to the circumstances as they exist when the appeal is heard. This means that the court may consider fresh evidence and any changes in the law which have taken place since the case was heard at first instance (Civil Procedure, 'Appeals Stricto Sensu and Appeals by Way of Rehearing').

In Johnston v Mance Kenner C at [25]-[27] held:

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

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

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

Different considerations may apply of course in cases where it is alleged that a dismissal was unlawful, for example, on the grounds of a failure by the employer to comply with a mandatory statutory requirement.

The grounds of appeal and the statement of claim seek only to review the decision made by the inquirer and the penalty imposed on the applicant on grounds of procedure or failing to take into account relevant considerations or taking into account irrelevant considerations. None of the grounds directly raise the issue that when all relevant facts and circumstances are considered the applicant did not commit a breach of discipline. In ground 12 of the Statement of Claim, the applicant specifically contends that the inquirer came to unreasonable conclusions on the basis of the material before him. The submissions made on behalf of the applicant have been substantially directed as to whether the investigator, the inquirer and the respondent erred in law and in fact which is the basis of an appeal stricto sensu. If this matter was truly heard de novo then any errors made by the decision makers would be irrelevant and it would not be necessary for the applicant to prove any error as the Commission would exercise its discretion without regard to any procedural error.

With respect I am not sure that the approach adopted by Kenner C is correct insofar as he concludes that matters referred to the Commission pursuant to s 78(2) of the PSMA, are not restricted to consideration of the reasonableness of the employer's conduct, but may review the employer's decision de novo. The reason why I question this approach is that the nature of proceedings referred under s 78(2) requires a review of decisions made following the consideration of the conduct of an employee by an employing authority in respect of events that have past and require a consideration of circumstances that existed when that conduct occurred. Notwithstanding my reservations about the analysis of Kenner C in respect of the nature of a hearing of a matter referred under s 78(2) of the PSMA, it is not necessary for me to conclusively express an opinion in respect of this matter as notwithstanding the statement made by the applicant's counsel at the outset of the hearing that the Commission should hear this matter de novo, the way in which the appeal has been in part conducted on behalf of the applicant has been to treat the appeal as an appeal stricto sensu, supplemented by oral evidence from the applicant. No objection has been made on behalf of the respondent that the Commission should not have regard to the evidence given by the applicant in these proceedings. Consequently, I intend to consider his oral evidence given in these proceedings together with the documentary evidential material collected by the respondent and oral evidence given by the respondent's witnesses.

65       After the decision in Ayling s 78 of the PSM Act was amended by s 95 of the Public Sector Reform Act 2010, Act No 39 of 2010, which inserted s 78(5) of the PSM Act.  In my opinion, s 78(5) ends the debate about the nature of a matter referred to the Commission under s 78 of the PSM Act.  The nature of a hearing will depend not only on the grounds set out on behalf of the person who brings the referral to the Commission, but also any matters agreed or pleaded in dispute in the respondent's notice of answer and counter proposal.

66       A referral of a matter of termination of employment on grounds of substandard performance found pursuant to s 79 of the PSM Act to the Commission under s 29(1)(b)(i) of the Act, in the absence of consent by the parties or at least by a party aggrieved by a decision on grounds that include alleged breaches of procedural fairness would not usually enliven a hearing de novo, so as to enable a matter to be determined on its merits without regard to any breaches of procedural fairness.

67       In a matter that has been referred by a public sector employee or a former public sector employee to the Commission under s 78(2)(b)(i) of the PSM Act, following a decision being made by an employing authority that the employee's performance is substandard and the penalty imposed by the employing authority is either a reduction in the level of classification or termination of employment, where any matter of breach of procedural fairness is raised, the Commission is empowered with the discretion not to determine the reference solely on the basis of a breach of rules of procedural fairness.

68       Pursuant to s 78(5) of the PSM Act, when the Commission determines a reference, it is empowered with the discretion to:

(a) allow the reference on the basis of a failure to comply with the rules of procedural fairness (s 78(5)(a)); or

(b) leaving the procedural issues aside, to decide the matter solely on the merits (s 78(5)(a)); or

(c) if the matter is a disciplinary matter, quash the decision and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process (s 78(5)(b)).

69       It is, however, arguable that as matters of substandard performance do not appear to be matters of 'discipline' in Part 5 of the PSM Act, s 78(5)(b) has no application to a referral of a decision made under s 79(3) in respect of substandard performance.  Section 3 of the PSM Act defines 'substandard performance' to mean performance which is substandard within the meaning of s 79 and 'breach of discipline' is defined in s 3 of the PSM Act as a breach of discipline referred to in s 80 of the PSM Act.  However, for reasons that follow, it is not necessary to resolve this issue in this appeal.

70       In this matter the Commissioner allowed the reference solely on the basis of a failure to comply with the rules of procedural fairness.  I am of the opinion that whilst she made a number of errors of fact and law, when regard is had to the established facts and s 79(5) of the PSM Act, it was open for her to do so.

Was the 'investigation' required by s 79(5) of the PSM Act conducted by Ms Cattaway – Particulars in ground 2(g), 2(h) and 2(i)

71       To answer the question whether the Commissioner erred in determining the reference solely on the basis of the rules of procedural fairness, it must first be determined whether it is open on behalf of the Director General as a matter of fact or law to contend in this appeal that the investigation required by s 79(5) of the PSM Act was an investigation conducted by Ms Cattaway and that investigation complied with the requirements of s 79(5).  In my opinion, when regard is had to the facts of this matter, such a contention is not open at law or in fact.

72       Firstly, prima facie, when regard is had to the particulars provided on behalf of the Director General prior to the hearing at first instance and to the conduct of the hearing on behalf of the Director General this is an argument that should not be open to raise in this appeal.

73       It is a well-established principle that a party is bound by the conduct of his or her case.  In Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68, the Full Court of the High Court observed:

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (71).

74       The statement of agreed facts and the further and better particulars specifically plead that:

(a) the substandard performance process commenced on 11 June 2012 in accordance with the employee performance policy;

(b) this process had begun after Mr Guretti had been notified in writing that his performance was substandard; and

(c) Mr Guretti was first notified that his performance was alleged to be unsatisfactory on 11 June 2012.

75       Whilst the Commission is not a court of pleadings, the principles of case management demand that parties be bound by their particulars unless those particulars are amended.  In Palermo v Rosenthal [2011] WAIRC 00069; (2011) 91 WAIG 129, Beech CC and I held that the provisions of object s 6(c), s 22B, s 26(1)(a), s 26(1)(b), s 26(1)(c), s 27(1)(a), s 27(1)(ha) and s 27(1)(v) of the Act, together with the requirements of procedural fairness and the provision of a fair hearing, establish the following statutory case management regime that:

(a) Matters should be dealt with in a way that eliminates delay with a minimum of legal form and technicality but allows for a proper and just consideration of matters;

(b) When managing a matter the Commission should have regard not only to the interests of each party but to interests of the public in the efficient use of resources of the Commission;

(c) There should be a fair and reasonable opportunity to both parties to each present their case. A determination of what is fair and reasonable in the circumstances of a matter should have regard to the matters raised in (a) and (b) above and:

(i) The parameters of relevant matters set by the particulars given by each party in the application, notice of answer and any other particulars.

(ii) What is reasonably required for the efficient presentation by each party of their case.

(iii) The principle that each party should not be left in any doubt about what is alleged against them and the opposing case they are required to meet ([80](a) - [80](c)).

76       In Palermo, Beech CC and I also observed:

The Commission is not a court of pleadings. It is required by s 26 of the Act to act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal form. However, the nature of an enquiry under s 23(1) of the Act is not inquisitorial in the sense that the Commission can undertake an enquiry outside the bounds of particulars. Particulars of a claim and corresponding particulars of defence to a claim are necessary to avoid a trial by ambush. Such particulars need not be drafted with any finesse or to the same extent as required in a court of pleadings but must leave the opposing party in no doubt as to what is alleged so as to enable the opposing party to know what case he or she is required to meet. Proceedings brought by an employee under s 29(1)(b) of the Act are adversial in nature and as such, once particulars are given each party is entitled to run their case on the basis that the particulars set the boundaries of relevant issues in dispute. Unless an application to amend particulars is granted, a party should be bound by the particulars they have provided ([73]).

77       In Minister for Education v Liquor Hospitality and Miscellaneous Union, Western Australian Branch [2011] WAIRC 00818; (2011) 91 WAIG 1839, the Full Bench considered the circumstances when the Commission in an appeal can or should entertain a point not taken at first instance.  At [23] - [26] I said:

The principles upon which a court can exercise its discretion to allow a point being raised for the first time on appeal was considered by the High Court in Water Board v Moustakas (1988) 180 CLR 491 by Mason CJ, Wilson, Brennan, Dawson JJ where their Honours observed (497 - 498):

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.

In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged. In Leotta v Public Transport Commission (N.S.W.), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ. observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (N.S.W.), Jacobs J., with whom the other members of the Court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularizing the existing issue had emerged at the trial and had been litigated.

It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal.

…

It is true that in Maloney it was recognized that in 'very exceptional cases' a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant (footnotes omitted).

In H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 Branson and Katz JJ notably said [7] and [8]:

As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe (1986) 162 CLR 1 at 7:

'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.'

In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.

When assessing whether it would be expedient in the interests of justice to allow a new point to be raised Branson and Katz JJ also had regard to whether the point had any merit [9].

From these passages the following principles guide when a finding could be made that it is expedient and in the interests of justice to entertain a point:

(a) The point must be one of construction or of law and not be met by calling evidence.

(b) In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance.

(c) In very exceptional cases an omission to put a case formulated on appeal may not be conclusive. The opportunity to assert the new case should be granted only where the interests of justice require it and such a course can be taken without prejudice to the defendant.

(d) Consideration of the interests of justice should extend to a consideration of relevant matters beyond the interests of the parties to the interests of other litigants and efficient case management.

(e) When assessing the interests of justice, the merit of the new point sought to be raised is a relevant consideration.

78       In this matter it is apparent that the new point that is sought to be raised could perhaps be said to be one of construction and not one to be met by the calling of further evidence.  However, the new point has no merit.

79       Pursuant to s 79(5) of the PSM Act, prior to the employing authority forming the opinion that an employee's performance is substandard two steps must occur.  Firstly, the provision contemplates that allegations of substandard performance must be put to the employee and the employee must not admit that his or her performance is substandard.  After the denial is made, the employing authority must cause an investigation to be held into whether or not the performance of the employee is substandard.

80       Whilst it may be open to the Director General as an employing authority to delegate her powers and functions under s 79(5) of the PSM Act in this matter, she did not do so.  The only investigation she caused to be held was the appointment of Ms Bhar to investigate.  The Director General did not appoint Ms Cattaway to investigate.  Whilst prior to Mr Guretti being provided with the letter dated 11 June 2012 from Ms Cattaway, the assessment of Mr Guretti's performance had been assessed by Ms Cattaway, her assessment cannot be characterised as an investigation within the meaning of s 79(5) of the PSM Act.  Prior to the commencement of an investigation, an assessment of performance of an employee would have to necessarily be made.  Unless there is some prima facie evidence of substandard performance, it would be inappropriate for an employing authority to cause an investigation into the performance of an employee.  In any event:

(a) Ms Cattaway's assessment of Mr Guretti's performance was conducted as part of the performance management process that applies to all teachers employed by the Director General;

(b) The Director General had regard to the investigation report prepared by Ms Bhar and the Director General did not act on the basis that Ms Cattaway had conducted an investigation.

81       For these reasons, I am of the opinion that this new point should not be entertained by this Full Bench and that, in any event, grounds 2(g), 2(h) and 2(i) are not made out.

Did the Commissioner err in finding that the Director General did not adopt a fair procedure under s 79 of the PSM Act?

82       The determination made by the Commissioner that the termination of employment of Mr Guretti was unfair is a discretionary decision.  A discretionary decision cannot be set aside on appeal simply because members of a Full Bench would have exercised the discretion in a different way.  Error must be demonstrated:  House v The King (1936) 55 CLR 499.  In Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266, Ritter AP summarised the well-established principles ([140] - [143]):

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.'

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.

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).

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]).

83       When the findings made in the reasons for decision are reviewed, it is apparent that the Commissioner did err in making some findings of fact.  However, in my opinion, she did not err in the penultimate finding that the termination of the employment of Mr Guretti was unfair on grounds of failing to provide procedural fairness.

84       The Director General says that findings challenged in each of the paragraphs of the particulars to ground 2 are material errors made by the Commissioner which, separately and together, led the Commissioner to the erroneous conclusion that procedural fairness had not been accorded to Mr Guretti.  Although the Commissioner found that the procedure adopted by the Director General was unfair, it is apparent from the facts of the matter and the reasons of the Commissioner at first instance, that her findings of unfairness in the procedure of s 79 substandard performance was unfairness in the acts and processes put in place by the Director General and her representatives in the Department and schools.

Errors of law and fact made by the Commissioner

85       The Commissioner did make a number of errors.  However, none of these errors are material to the finding that the substandard performance procedure adopted by the Director General was unfair.

(a) Particulars in ground 2(a), ground 2(l), ground 2(m) and ground 2(o)

86       The finding in [157] of the Commissioner's reasons for decision that Ms DeGrace caused delays in getting Mr Guretti's performance plan implemented in an appropriate time, is said to be an error on two grounds:  there was no evidence to support such a finding; and, secondly, this finding led to a view that the process was flawed (ground 2(a)).  Having read the transcript of the evidence of the hearing at first instance, I agree that no evidence was given by any of the witnesses in support of this finding.  Nor was it put to Ms DeGrace that she had ever caused delays.  The only relevant evidence was the evidence of Ms Cattaway that Ms DeGrace was struggling to find times to meet with Mr Guretti to develop a performance management plan so she (Ms Cattaway) gave Mr Guretti some 'relief' (which I assume is time away from classroom duties) and she assisted in getting the plan completed (AB 307).  However, I am not satisfied that these findings are material.  In respect of the finding that there was a delay in the implementation of the performance management plan, the implementation of a performance management plan was and is a condition of employment of all teachers employed by the Director General.  Nor am I satisfied that this finding is relevant to a finding that the substandard performance procedure adopted by the Director General was unfair.

87       Ground 2(l) challenges the finding that Ms DeGrace failed to treat Mr Guretti with sensitivity and consideration in her observations as a line manager, contrary to the employee performance policy, on grounds that no reasons were given for making this finding and the finding was against the evidence.  During oral submissions in the hearing of the appeal, counsel for Mr Guretti conceded this ground and said the evidence at its highest was that there was an interpersonal conflict between Mr Guretti and Ms DeGrace.  It is also said by counsel for Mr Guretti that this error is not material because the failure to provide Mr Guretti procedural fairness is so significant that it is irrelevant whether or not Ms DeGrace treated Mr Guretti with sensitivity and consideration (ts hearing appeal 70).  This later submission, in my opinion, should be accepted.  For reasons that follow, the finding that Mr Guretti was not given an opportunity to improve his performance after he was informed that his performance was substandard is a finding that was not only open on the evidence, but is a fundamental failure of procedural fairness that is supported by the evidence that stands uncontradicted.  For these reasons, grounds 2(a) and 2(l) fail.

88       Other grounds that also fail for the same reasons are grounds 2(m) and 2(o).  In ground 2(m) the Director General raises the issue that the Commissioner erred in finding that the Director General had failed to follow procedural fairness by overlooking Mr Guretti's request to change his line manager.  When making this finding, the Commissioner gave no reasons why the circumstances of Mr Guretti's request for a line manager resulted in a failure to provide procedural fairness.  Whilst this is a clear error in reasoning, the error is not relevant to, or material to the fundamental failure to provide procedural fairness to Mr Guretti.

89       In ground 2(o), it is argued that little if any regard was had to the evidence of support and assistance provided to Mr Guretti in an attempt to improve his performance.  Whilst this point is arguable, given that the assistance provided was provided as part of the performance management process that applies to all teachers, and whilst Mr Guretti may have received a high level of assistance, this point is not relevant to, or material to the fundamental failure to provide procedural fairness to Mr Guretti.

(b) Particulars in ground 2(c)

90       In this particular, the findings made that Ms Cattaway had given no or inadequate consideration to Mr Guretti's letter dated 2 July 2012 when such a finding was against the evidence (AB 65, [147] and AB 69, [159]).  This particular is made out.  Ms Cattaway analysed Mr Guretti's response to the letter she sent to him dated 11 June 2012 in a significant amount of detail and set out her criticisms of his response in a six page document headed 'Reflections in regards to Response Letter from Patrick Guretti dated July 2, 2012' which Ms Cattaway says was a document which she regarded as notes for her personal use (AB 311 and 325).  She did not provide her notes to Mr Guretti.  However, she provided a copy to her Regional Executive Director (AB 325).  Whilst the Commissioner clearly erred in finding that Ms Cattaway did not consider Mr Guretti's detailed response in his letter of 2 July 2012, contrary to the employee performance policy, this error, in my opinion, is not material.

(c) Particulars in ground 2(d)

91       In [151] of her reasons for decision the Commission found that:

One of the identified areas of concern relating to Mr Guretti in the investigation was 'the learning environment'.  The Commission finds the investigation failed to identify that KBCHS drew specific behavioural issues with children.  Evidence was given by number of witnesses including Mr McFarlane, Mr Holyoake, Mr Naidoo and Ms Kane that there were problems amongst the children:

What was the student behaviour that made the students difficult?‑‑‑Right.  They - generally lack of - seeing a lack of desire to actually learn anything.  They were there because the law said they had to be there a lot.

Yes?‑‑‑They would run in any out of the classrooms.  Wouldn't - wouldn't attack the teacher as much as just feel they had the right to leave and come whenever they wanted to and - and damage things if they wanted to.

(ts 14)

92       The Director General properly points out that Mr Holyoake did not teach at KBCHS.  Nor did he give evidence about the behaviour of students at KBCHS.  His evidence was that at Rossmoyne Senior High School whilst the behaviour of some students is challenging, by and large student management is quite easy.  Leaving this issue aside, the contentions, however, about this finding are that:

(a) The finding that there were specific behavioural issues with children was against the evidence as Ms Kane testified that 95% of the students were well behaved;

(b) The relevance of this evidence was not explained other than a suggestion that sufficient account was not taken of 'specific behavioural issues with children'; and

(c) The poor behaviour of students is not relevant to the performance of a teacher as part of a teacher's performance is an ability to deal with students with 'behavioural issues'.

93       Whilst I agree that the behaviour of students was not relevant to the issues raised in respect of procedural fairness, in my opinion, the issue would be relevant to the question of merit; that is whether Mr Guretti's performance as a teacher was substandard.  Mr Holyoake's evidence could also be relevant when considering merit, as it appeared from his evidence that Mr Guretti may not have had any difficulty with classroom management at Rossmoyne Senior High School.  The evidence of Ms Kane about this matter would also be relevant to the issue of merit.  However, as counsel for the Director General points out, the Commissioner did not consider whether Mr Guretti's performance as a teacher was, in fact, substandard.

(d) Particulars in ground 2(e), ground 2(f) and ground 2(j)

94       In [152] of her reasons for decision, the Commissioner said:

In the section Performance Issues of the investigation report written by the investigator and forwarded by the director general to Mr Guretti on 14 November 2012 the investigator states the evidence indicates:

Ms Hansen has compiled comprehensive notes about her interaction with Mr Guretti relating to identified performance issues.

Mr Guretti notes in his correspondence written on behalf of his counsel written on 7 December 2012 that:

Up until reading this report, I have not been made aware that Ms Hansen was involved in my performance management.  I have not been involved in any discussions with her about her alleged concerns, nor have I seen any evidence of her concerns.  As this is new information which has come to light and never been raised in any previous meetings, conversations or correspondence, I feel that I am disadvantaged in my ability to defend these.

(Department of Education document 294)

The Commission finds the circumstances relating to Ms Hansen's involvement in Mr Guretti's performance management without his understanding to be somewhat alarming.

95       At [158] the Commissioner found:

The Commission finds that Mr Guretti had a legitimate expectation to be provided with all the details associated with the investigation before the report was actually concluded. In other words Mr Guretti had a right to know what the case was against him, Kioa v West. As an example Ms Hansen appears to have made a significant contribution in a negative sense about which Mr Guretti knew nothing which was, in my opinion, a denial of natural justice.

96       In respect of these particulars of ground 2 of the grounds of appeal, the following points are made on behalf of the Director General:

(a) Ms Hansen was not involved in the performance management process.  She was a teacher in charge of science at KBCHS in 2012.  She was, however, a person who Mr Guretti spoke to about his performance;

(b) The findings made in [152] and [158] were about matters contained in Ms Bhar's investigation report and notes made by Ms Hansen.  Neither of these documents were admitted into evidence and neither Ms Cattaway nor Ms Hansen were cross-examined about the content of these documents.  Nor were any submissions made by either party at the hearing at first instance about the contents of these documents.

97       When a matter is heard by a tribunal, where the matter proceeds by the giving of evidence on oath and the evidence of the witnesses can be tested by cross-examination, the matter should only be determined by the tribunal on the evidence before it.

98       Any regard to evidentiary material that does not form part of the evidence in such a hearing is a breach of a fundamental rule of procedural fairness and would usually constitute a serious miscarriage of justice, justifying an order being made to quash a decision of the Commission.

99       At the hearing at first instance counsel on behalf of Mr Guretti objected to the tender into evidence of the report prepared by Ms Bhar on grounds that the author of the report had not been called to give evidence.  In light of the objection, the advocate acting for the Director General did not press his request to tender the report (AB 382).  In circumstances such as these when the tender of a document is in effect withdrawn, the document should have been removed from the file of the Commission and returned to the party from whom the document originated.  Also, any other documents or material which has been handed to the Commission during a hearing that is not tendered into evidence should not, in the ordinary course, be retained by the Commission.  Although it is pointed out on behalf of the Director General that the notes of Ms Hansen were not introduced into evidence, there is nothing in the reasons for decision of the Commissioner that suggests that she had seen or had regard to the content of these notes.  The fact that Ms Bhar had regard to notes prepared by Ms Hansen was in evidence.  After Mr Guretti received a copy of Ms Bhar's report he wrote a letter to Mr Dodd.  This letter was tendered into evidence as exhibit applicant 18.  In the letter Mr Guretti stated:

In the 'performance issues' section of the report, there is a statement which refers to me being 'regularly supported by Ms Melinda Hansen' and that there are 'compiled, comprehensive notes about her interactions with Mr Guretti relating to identified performance issues'. Up until reading this report, I have not been made aware that Ms Hansen was involved in my performance management. I have not been involved in any discussions with her about her alleged concerns, nor have I seen any evidence of her concerns. As this is new information which .has come to light and never been raised in any previous meetings, conversations or correspondence, I feel that I am disadvantaged in my ability to defend these (AB 474).

100    The Commissioner should not have had regard to the contents of the report prepared by Ms Bhar.  By doing so the Commissioner clearly erred.  However, this error was not in the circumstances of this matter material as the reference to notes made by Ms Hansen in the report prepared by Ms Bhar was also referred to in exhibit applicant 18.

(e) Particulars in ground 2(n)

101    In appeal ground 2(n) it is contended that the Commissioner had insufficient regard for the several years that Mr Guretti spent as a teacher in metropolitan schools with no issues being raised regarding his performance, when proper regard was not had to the length of the periods of employment in those schools.  It is argued on behalf of the Director General that the fact that Mr Guretti had no performance issues raised at other schools was neutral in relation to whether he was performing at the material time and in the future at the required level.  The difficulty with this submission is that in support of the case that Mr Guretti's performance was poor, evidence was adduced about his performance from the time he was first employed as a teacher.  In these circumstances, and the fact that both Ms Cattaway and Ms DeGrace were concerned about Mr Guretti's performance shortly after he returned to work at KBCHS in 2011, the fact no complaints were made about his performance during the series of metropolitan placements is a finding that was open.  This finding, however, is not a finding that relates to any of the findings relating to procedural fairness

Findings which support the finding that the substandard performance process adopted was unfair

102    The findings of breaches of procedural fairness that were, in my opinion, properly made by the Commissioner are challenged in the particulars to ground 2 in particular (b) and particular (k).

(a) Particulars in ground 2(b)

103    The Director General says that having found that Mr Guretti was aware that the Director General had concerns about his performance and that Ms Cattaway, in the meeting on 29 March 2012, warned Mr Guretti of the substandard performance process and gave him copies of the employee performance policy, the Commissioner failed to adequately explain why the school based substandard performance investigation was inadequate or unfair.  The finding is challenged on grounds that such a finding is inconsistent with the finding that Ms Cattaway was unsuccessful in transmitting the seriousness of the situation to Mr Guretti, insofar as there being a consequence for his employment.  It is argued that Mr Guretti was aware of the consequences and should have been aware.

104    In my opinion, this finding must be read in context.  In the opening sentence to [144] the Commissioner found that Mr Guretti was aware that his employer had concerns about his performance but what is not accepted is that Mr Guretti knew the degree of concern about his performance.  When regard is had to the evidence, it was open to the Commissioner to make this finding.  Until Mr Guretti received Ms Cattaway's letter dated 11 June 2012, Mr Guretti had not been asked to admit or deny his performance was substandard.  In any event, Ms Cattaway's evidence was simply that she had discussed the possibility of a substandard performance process (exhibit Education 12, AB 518).  Her evidence was that at the meeting on 29 March 2012:

I did talk to him about the areas that I was concerned in.  So I sort of talked about three or four areas that I was concerned that there wasn't progress in, and then went through the policy, where we were at and – yeah, what was coming up or what could be coming up. 

So Mr Guretti was provided with a copy of the employee performance policy that we've referred to earlier, exhibit Education 11, and he would have had, fully available to him that policy to understand the processes involved, in your view?‑‑‑In the meeting I – I did talk through the policy.  Wouldn't have gone through it with a fine-toothed comb but I did go through it, show him where I perceived we're at, what comes next in the policy and left him with that copy of that policy to takeaway with him (AB 308).

105    A discussion about 'the possibility of substandard performance process' is not sufficient to put an employee on notice that their continuing employment is in jeopardy if their performance does not improve.  It has been long established that industrial fairness requires that an employee whose performance is said to be poor be given a fair and specific warning that he or she risked dismissal if his or her performance did not improve:  Margio v Fremantle Arts Centre Press (1990) 70 WAIG 2559, 2561.  In DVG Morley City Hyundai v Fabbri [2002] WAIRC 07057; (2002) 82 WAIG 3195 [93] - [100], Sharkey P made it plain that if an employee is dismissed without informing an employee of the allegation against him or her, or his or her faults (unsuitability or incompetence); that he or she risked dismissal and giving him or her a chance to remedy defects in his or her performance, the termination of employment will not only be procedurally unfair, but substantially unfair.  Mere discussions and proposals are not sufficient:  Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635, 3644 (Sharkey P).

106    Whilst it was open to find that Mr Guretti had been given notice of deficiencies in his performance, he was not warned prior to being given an opportunity to address the alleged deficiencies that his employment was in jeopardy if his performance was assessed as substandard.  At the point in time when he was informed his performance was substandard (when he received the letter dated 11 June 2012), all practical assessments of his work had ceased.  Given that prior to that time he was being performance managed in accordance with the policy that required all teachers to be performance managed, albeit perhaps not in such an intensive way or as 'escalated' as Mr Guretti's performance was being managed, a warning that his employment was at risk and an opportunity to improve his performance should have been given to Mr Guretti after 11 June 2012.  However, this did not occur.  No classroom observation occurred after 2 May 2012 and only one meeting occurred after 11 June 2012.

(b) Particulars in ground 2(k)

107    In ground 2(k) it is contended that to the extent that Ms Bhar's investigation report was relevant, the Commissioner erred in not having regard to the fact that Mr Guretti was provided with a copy of the report and given the opportunity to comment on it.  The difficulty with this particular of ground 2 of the appeal is that it can go nowhere.  Although the investigation report was not in evidence, it is conceded on behalf of the Director General that Ms Bhar did not investigate whether Mr Guretti's employment was, in fact, substandard.  In light of that concession, the submission that the substandard investigation process is fair or that the Commissioner did not err in finding that the Director General failed to adopt a fair procedure cannot be upheld.

108    Section 79(5) of the PSM Act requires that prior to an employing authority forming an opinion that the performance of an employee is substandard, that an investigation is to be held into whether or not the performance of the employee is substandard.

109    Whereas in this matter the employee is a teacher whose performance is monitored and assessed as part of a performance management process that applies to all teachers, it is not sufficient for the Director General to rely upon material gathered in that process unless that material forms part of an independent assessment which is made by a person qualified to make such an assessment after it has been put to the teacher that his or her performance is substandard and after the teacher has not admitted substandard performance.

110    As no investigation had been conducted in the manner required by s 79(5) of the PSM Act, it is my opinion that it would not be appropriate to quash the decision the subject of this appeal to hear and determine on the merits whether Mr Guretti's employment as a teacher was substandard prior to the termination of his employment.  The reason why I am of this opinion is that the Commissioner did not err in finding that Mr Guretti was not afforded an opportunity of improving his performance after the allegation of substandard performance was put to him.

111    In any event, the purported 'investigation' by Ms Bhar and the assessment by Ms Cattaway (if capable of being regarded as in investigation) were flawed.  After Mr Guretti was notified that Ms Cattaway regarded his performance as substandard he was not provided with the analysis or the particulars of the fact which Ms Cattaway relied upon in her determination made in June 2012 that his performance was substandard.  The letter sent to Mr Guretti on 11 June 2012 contains no factual particulars of substandard performance.  The particulars were contained in notes made by Ms Cattaway in the document dated 2 July 2012 (exhibit Education 19, AB 531 - 537).  Mr Guretti was not provided with this document or any document to comment on during the 'investigation' conducted by Ms Bhar or during Ms Cattaway's assessment of Mr Guretti's performance.

112    For these reasons, I am of the opinion that an order should be made to dismiss the appeal.

BEECH C.C.

113    I have had the advantage of reading in draft form the reasons for decision of Her Honour the Acting President.  I agree with those reasons and have nothing to add.

HARRISON C

114    I have had the benefit of reading the reasons for decision of her Honour, the Acting President.  I agree with those reasons and have nothing to add.