A DISPUTE REGARDING ALLEGED UNFAIR DISMISSAL

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES The State School Teachers Union of W.A. (Incorporated)

APPLICANT

-v-

Paul Albert, Director General, Department of Education and Training

RESPONDENT

CORAM Commissioner J L Harrison

HEARD 10 AND 11 August 2006, 19 September 2006, 17 October 2006

DELIVERED FRIday, 19 january 2007

FILE NO. CR 83 OF 2005

CITATION NO. 2007 WAIRC 00020

Catchwords Industrial Law (WA) - Termination of employment - Harsh, oppressive and unfair dismissal - Issues in relation to employee’s performance – Procedural fairness considered – Principles applied – Applicant not harshly, oppressively and unfairly dismissed – Application dismissed - Industrial Relations Act, 1979 (WA) s 29(1)(b), 44(9) and 80C; Public Sector Management Act, 1994 (WA) s 78(1) and (2), 79(3) and (5); School Education Act 1999 (WA) s 235(1)(b) and 239

Result Dismissed

Representation 

Applicant Mr S Millman (of counsel)

Respondent Ms R Hartley (of counsel)

Reasons for Decision

1         On 12 May 2005 the State School Teachers’ Union of WA (Inc) (“the union”) (“the applicant”) lodged an application pursuant to s44 of the Industrial Relations Act 1979 (“the Act”) claiming that one of its members Ms Patricia Heppolette had been unfairly terminated by Mr Paul Albert, Director General of the Department of Education and Training (“the respondent”).  The respondent denies that Ms Heppolette was unfairly terminated.  As conciliation proceedings did not resolve the claim the matter was referred for arbitration under s44(9) of the Act.  The schedule of matters referred for hearing and determination is as follows:

“The applicant maintains that the respondent’s dismissal of Ms Patricia Heppolette on 15 April 2005 was harsh, unfair, oppressive and unlawful.

The applicant seeks the following orders –

1. That Ms Heppolette’s termination be quashed.

2. That Ms Heppolette be re-instated to her former position with the respondent with no loss of salary, continuity of service or entitlements.

3. That the respondent is prevented from conducting any further investigations in relation to Ms Heppolette’s employment at Padbury Senior High School.

The respondent opposes Ms Heppolette’s reinstatement and claims that her termination was fair and lawful.

Grounds

The applicant maintains that Ms Heppolette’s dismissal is harsh, unfair, oppressive and unlawful in that:

(a) Ms Heppolette has worked for the respondent since 1993 as a fixed-term contract teacher and from 2002 as a permanent teacher and her performance was judged as being good and competent throughout this period.

(b) Whilst working at Padbury Senior High School Ms Heppolette was discriminated against on the grounds of her race.  As a result the respondent therefore failed to comply with its responsibilities under s8 of the Public Sector Management Act, 1994 (“the PSM Act”).

(c) Whilst Ms Heppolette was at Padbury Senior High School students were removed from Ms Heppolette’s class without her consent and a Year 12 class was taken from Ms Heppolette under duress and without due process.

(d) The respondent failed to deal with two grievances lodged by Ms Heppolette contrary to the provisions of the PSM Act and Clause 112 – Grievance Resolutions Procedures of the Government School Teachers’ and School Administrators’ Certified Agreement, 2004.

(e) The respondent acted inappropriately and without good cause when it moved Ms Heppolette from the ‘Performance Management’ regime to the ‘Substandard or Unsatisfactory Performance’ regime, notwithstanding Ms Heppolette’s noted improvements.

(f) The respondent denied Ms Heppolette natural justice and procedural fairness during the ‘Performance Management’ and the ‘Substandard or Unsatisfactory Performance’ processes as her contentions were disregarded and not given proper and due weight.

(g) The respondent acted in breach of its policy regarding ‘Managing Unsatisfactory and Substandard Performance of Teaching Staff and School Administrators’ when it failed to extend the Performance Improvement Plan without good reason.

(h) The Investigator’s report into Ms Heppolette’s alleged substandard performance, pursuant to s.79(1) of the PSM Act was biased and flawed.

(i) The respondent failed to take into account that Ms Heppolette continued to teach at Padbury Senior High School until the end of the 2004 school year and that after Ms Heppolette transferred to Kelmscott Senior High School in 2005 she taught without any performance issues being raised until her termination in April 2005.”

(Memorandum of matters referred for hearing dated 12 August 2005)

Background

2         The following details were attached to the initial application and were largely not in contest.  Ms Heppolette completed a Master of Arts in English Literature and a Master of Education in India in 1976.  During 20 years of teaching English in India Ms Heppolette was also a head of an English department for 17 years and spent three years as an Acting Deputy Principal.  No issues were raised concerning Ms Heppolette’s teaching ability in India.  In 1993 Ms Heppolette came to Australia and between 1994 and 1998 she worked as a relief teacher except for the period April 1996 to December 1996 when she worked at Rockingham Senior High School as a full time temporary teacher.  No issues were raised about Ms Heppolette’s performance during this period.  In 1999 Ms Heppolette worked full-time with the respondent in South Hedland, her performance was assessed whilst at this school and no concerns were raised about her performance.  Ms Heppolette worked at Narrogin Senior High School for part of 2000 and in 2001 Ms Heppolette undertook relief work at various schools.  In 2002 Ms Heppolette worked at three different high schools, Mount Lawley, Forrestfield and Morley Senior High Schools (“MSHS”) and at the end of 2002 she attained permanency which was confirmed in writing at the beginning of 2003.  In 2003 Ms Heppolette worked at Hampton Senior High School (“HSHS”) and at the beginning of 2004 Ms Heppolette was transferred to Padbury Senior High School (“PSHS”).  Whilst at PSHS Ms Heppolette underwent a Performance Improvement Plan (“PIP”) from 30 June 2004 until 11 August 2004 and at the end of this process her line managers at PSHS determined that her performance was unsatisfactory.  An investigation of Ms Heppolette’s performance was then undertaken by Mr Gordon Marshall in November and December 2004 and he determined that Ms Heppolette’s performance was unsatisfactory.  Ms Heppolette was terminated in April 2005.  After finishing teaching at PSHS at the end of 2004 Ms Heppolette taught at Kelmscott Senior High School (“KSHS”) during Term 1, 2005.  After the applicant applied for an interim re-instatement order pending the hearing and determination of this matter the Commission re-instated Ms Heppolette to her former position on an interim basis on 18 July 2005.  From July 2005 Ms Heppolette taught for one month at Armadale Senior High School (“ASHS”) she then took sick leave.  During 2006 Ms Heppolette has been teaching at Ballajura Community College (“BCC”).

Applicant’s evidence

3         Ms Heppolette gave evidence that when she commenced at PSHS as an English teacher in Term 1, 2004 she was not given an induction.

4         Ms Heppolette stated that after approximately four days at the school she was told by the head of the English department Ms Wendy Cody that four or five students had problems with her accent and wanted to be transferred to a different class.  Ms Heppolette told Ms Cody that she would speak louder and clearer in class and Ms Heppolette stated that these students were then transferred and she was advised of this once the transfers had taken place.  Ms Heppolette stated that she felt undermined by the removal of the students and believed she was not given a fair chance to demonstrate that she could teach these students.  Ms Heppolette stated that the removal of the students was unusual as teachers were normally given a period of time to develop a rapport with students.  Ms Heppolette stated that the removal of the students led to the situation snowballing as other students then wanted to leave her class.

5         Ms Heppolette stated that some of the students in her year 9 and 10 classes were very disruptive on an ongoing basis.  Ms Heppolette stated that a year 9 student called her a “curry-muncher” and she stated that he was one of a number of extremely disruptive year 9 students in this class.  Ms Heppolette stated that her year 10 English class was a low ability group of 33 students with a large number of male students and Ms Heppolette stated that she needed support to teach the students in this class.  Ms Heppolette stated that one student called her a “bitch” five times and initiated a petition against her and Ms Heppolette stated that even though she spoke to Ms Cody about problems with the students she did not get much support from her.

6         Ms Heppolette stated that she used a range of behaviour management strategies to deal with problem students in her classes but she was unable to access a “buddy” system whereby a student would be removed and placed in a different class and she was not told why she was denied this option.  Ms Heppolette stated that even though she was able to use the “buddy” system later on in the year the students had already developed difficult behaviour patterns by this point in time.  Ms Heppolette stated that her line managers did nothing about the students who were misbehaving in her classes and that as a result the poor behaviour of some of her students escalated.  Ms Heppolette stated that she was only once offered the opportunity to attend a professional development course and she could not recall what it was about.  Ms Heppolette stated that she did not attend this course because she was unwell.

7         Ms Heppolette stated that in May 2004 she felt pressured to give up her year 12 Senior English class and Ms Heppolette stated that her line managers also wanted to take away her year 11 Tertiary Entrance Examination (“TEE”) class but she did not want to give up this class.  Ms Heppolette stated that she was coping well with this class and she maintained that she had no problems with the students in this class.  Ms Heppolette stated that Ms Cody encouraged students to complain about her and she stated that her line managers believed the student’s version of events about issues in preference to her views.  Ms Heppolette stated that on one occasion a student called Joshua was told by Ms Cody to solicit complaints from other students about her and she stated that when he returned to class after speaking to Ms Cody he announced this to the other students in the class.

8         Ms Heppolette stated that she was allocated Mr Gerard Morris to be her mentor in March 2004 and she stated that he assisted her with her year 8 class.  Ms Heppolette stated that this was her best class and that the students in this class did well.  Ms Heppolette stated that a report completed by Mr Morris dated 1 June 2004 about her performance was not seen by her until PSHS determined that her performance was unsatisfactory in August 2004.

9         Ms Heppolette stated that by June 2004 her professional relationship with Ms Cody had deteriorated and that as a result they did not speak to each other.  Ms Heppolette stated that she lodged a grievance about the treatment of her by her line managers with the PSHS principal, Mr Graeme Benson on 17 June 2004 and she stated that he did not deal with this complaint nor was a consultative committee established to review her complaint.

10      Ms Heppolette stated that she took stress leave in early June 2004 because she felt that she was being bullied by her line managers and Ms Heppolette stated that when she returned to work she received a letter from PSHS’s Deputy Principal Ms Annemarie Mony de Kerloy stating that her performance was unsatisfactory (see Exhibit A3/A33).  Ms Heppolette stated that she responded in detail to Ms Mony de Kerloy’s view that her performance was unsatisfactory and only received a cursory response back from Ms Mony de Kerloy which she claimed did not address the issues she had raised in her response.

11      Ms Heppolette stated that during her PIP Mr Morris observed ten to fifteen classes, Ms Cody attended less than five or six classes and Ms Mony de Kerloy did not observe any of her lessons.  Ms Heppolette stated that after she was given a letter stating that her performance remained unsatisfactory on 20 August 2004 she responded to this letter and Ms Heppolette stated that she was shocked at this point to be told that her performance was unsatisfactory.

12      Ms Heppolette stated that after her PIP ceased, she continued teaching five classes.  Ms Heppolette stated that a new mentor Ms Kathleen Bertei was appointed to give her feedback and Ms Heppolette stated that she was present in all of her classes.

13      Ms Heppolette stated that no concerns were raised with her about her performance when she taught at KSHS and Ms Heppolette stated that she had no performance problems when she worked at ASHS.  Ms Heppolette stated that this was also the case at BCC in 2006.

14      Under cross-examination Ms Heppolette stated that prior to commencing at PSHS in 2004 she was given a copy of her timetable and she attended a general staff meeting where she was introduced to the school’s policies and procedures.  Ms Heppolette stated that she did not have a formal individual induction about working at PSHS.

15      Ms Heppolette stated that the most difficult class she taught was her year 9 class and Ms Heppolette claimed that she utilised a range of strategies to build a rapport with her students in this class and Ms Heppolette maintained that she established a disciplinary process for all of her classes.  Ms Heppolette claimed that one year 9 student, Tim Taylor was particularly disruptive and she claimed that she was given little support to deal with him despite asking Ms Cody for assistance.  After reviewing memos written by Ms Cody in late February 2004 about this student Ms Heppolette acknowledged that she received some support to deal with this student however she claimed that she was not given any support to deal with his name calling.  Ms Heppolette stated that she did not fill out student behaviour forms unless a student’s behaviour was extreme.  Ms Heppolette stated that she was told by Ms Cody not to use the “buddy” system and send students to other classes and she stated that when Tim Taylor was sent to another class this was at Ms Cody’s initiative.  When questioned about another student, Alana Uncle, Ms Heppolette maintained that Ms Cody did not speak to this student about swearing at her and Ms Heppolette stated that another colleague Ms Sharyn Baillie spoke to Alana Uncle about her inappropriate behaviour in this regard.

16      Ms Heppolette maintained that she did not need Mr Morris to assist her with her year 8 class and Ms Heppolette stated that she wanted support for her year 9 class in the same way that other teachers at PSHS had received support with difficult students.

17      Ms Heppolette reiterated that she gave up her year 12 class under duress and she stated that prior to this occurring she received a letter from Ms Cody stating that she had no confidence in Ms Heppolette teaching year 12 students.  Ms Heppolette maintained that the minutes of the meeting held on 7 May 2004 to address concerns about her classes were inaccurate and she claimed that she did not suggest dropping her year 12 class during this meeting.

18      Ms Heppolette stated that the year 10 class she taught had a substantial number of low ability students and she stated that it would have assisted her if some students were removed from this class.

19      Ms Heppolette again claimed that Ms Cody sought out complaints from students about her and that she had admitted this.  When it was put to Ms Heppolette that Ms Cody was not soliciting complaints but was asking students to put complaints in writing so they could be shown to Ms Heppolette, Ms Heppolette responded by saying that Ms Cody had never stood by her and that she never demonstrated that she had faith and confidence in her.  Ms Heppolette stated that the only complaints given to her by her line managers were one from some year 12 girls and one from the parents of a year 10 boy.

20      Ms Heppolette stated that even though the length of her PIP was short she agreed to the timeframe.  Ms Heppolette believed that the outcome of the PIP process was predetermined and she stated that she had no faith in the process.  When it was put to Ms Heppolette that during her PIP she should have observed lessons and provided lesson observation sheets prior to the lessons, Ms Heppolette stated that she wanted to have a colleague Ms Baillie as her peer support teacher but she was told that her support teacher had to teach a mix of upper and lower school students.  Ms Heppolette stated that she did not review any other teacher’s classes during her PIP because few classes were available for her to review when she was free.  Ms Heppolette stated that she was offered the opportunity to review a social studies lesson but she did not believe this was appropriate.  Ms Heppolette stated that there were also problems with people viewing her lessons such as when Ms Mony de Kerloy was unavailable to attend a pre-arranged lesson as she had to attend a funeral.  Ms Heppolette stated that she took the PIP process seriously and that she did submit a lesson plan to Ms Cody even though it was just prior to the start of the lesson.

21      Ms Heppolette stated that she was aware of two complaints of a racist nature made about her when she taught at KSHS and Ms Heppolette reiterated that she had no problems with her performance whilst at BCC.

22      Ms Heppolette maintained that she tried to work with Ms Cody until she made it clear to her that her approaches were unwanted and Ms Heppolette stated that she was hurt by the way Ms Cody treated her and she believed that Ms Cody wanted to get rid of her.  Ms Heppolette stated that when Ms Bertei assisted her from September 2004 onwards until the end of 2004, she had a passive role and that she took notes about Ms Heppolette’s performance and gave her feedback about her lessons.  Ms Heppolette stated that she showed her lesson plans to Ms Bertei.

23      Ms Baillie has been a teacher for 18 years and for the last nine years has taught at PSHS.  She has a Bachelor of Arts in English and a Diploma of Education and she has taught across years 8, 9, 11 and 12.  She is currently a year 12 co-ordinator at PSHS.  In 2004 Ms Baillie taught English at PSHS and was the year 11 co-ordinator and in this role she worked with Ms Heppolette.  Ms Baillie reviewed a statement she gave to Mr Marshall who investigated Ms Heppolette’s performance in late 2004 and Ms Baillie stated that this was an accurate summary of her views and her discussions with Mr Marshall (see Exhibit A3/B 111-112).

24      Ms Baillie stated that she was not aware that the grades that Ms Heppolette allocated to her year 11 students were inaccurate and she stated that Ms Heppolette’s year 11 students’ exam results were consistent with the grades of the classes of other year 11 teachers.

25      Ms Baillie stated that it was difficult for Ms Heppolette to undertake her duties because she lacked a networking group at PSHS and Ms Baillie stated that Ms Heppolette taught in a block of classrooms which was some distance from the English teaching block and that as a result she did not have ready access to classroom resources.  Ms Baillie stated that an experienced teacher would have been disadvantaged teaching in this isolated environment.  Ms Baillie stated that she was prevented from assisting Ms Heppolette during her PIP as Ms Mony de Kerloy told her that she was unable to be Ms Heppolette’s support person as she was teaching only upper school classes.  Ms Baillie stated that she did have a year 8 class at the beginning of 2004 and she stated that she has had substantial experience teaching lower school classes.  Ms Baillie was of the view that Ms Heppolette was not given the same support that was given to another teacher at PSHS who was experiencing similar difficulties and Ms Baillie stated that she had previously been involved as part of a support team for a colleague who was experiencing difficulties.

26      Ms Baillie stated that it was unusual to remove students from classes, but she acknowledged that this occurred sometimes due to timetable changes or if students had ongoing behaviour problems.  Ms Baillie stated that if a student was moved without a teacher being consulted this could undermine a teacher’s rapport with students.  Ms Baillie stated that she encouraged Ms Heppolette to contact the union in April or May 2004 because she believed that obstacles were being put in Ms Heppolette’s way which interfered with her day to day teaching.  Ms Baillie stated that she was aware that a colleague had a meeting with the principal Mr Benson on Ms Heppolette’s behalf but she stated that she was not aware of any specific action taken by Mr Benson after this meeting.

27      Under cross-examination Ms Baillie stated that she believed Ms Heppolette was subject to bullying at PSHS which she defined as “interfering with your right to get on with your ability to walk into a classroom and teach for the day” leading to a distressing situation (transcript page 96).  Ms Baillie claimed that Ms Cody and Ms Mony de Kerloy bullied Ms Heppolette and she stated that she saw instances of this and would have been unhappy if this had happened to her.  By way of example she stated that she once observed Ms Heppolette approaching Ms Cody to ask her a question and saw Ms Cody shooing her away and dismissing her with unpleasant body language.  Notwithstanding this comment Ms Baillie stated that Ms Cody may have been in a hurry to go somewhere and she agreed that teachers and line managers at schools are often busy.

28      Ms Baillie stated that teachers disliked students being removed from their classes if they were not given a reason for the change and Ms Baillie stated that a formal request to remove a year 12 student from a class should be taken seriously.  Ms Baillie stated that when this situation had happened to her she had a meeting with Ms Cody and the student’s parent.  Ms Baillie stated that it would be appropriate for a teacher, parent and the head of a department to discuss relevant issues prior to a student being shifted.  Ms Baillie stated that she did not observe Ms Heppolette’s classes in 2004 but it was her view that there were no issues with the assessment levels of Ms Heppolette’s year 11 students.  Ms Baillie stated that she enjoyed working at PSHS and that she had no issues working with Ms Cody and she stated that she believes Ms Mony de Kerloy respects the work that she does.

29      Under re-examination Ms Baillie stated that Ms Cody is still her line manager and she felt uncomfortable criticising her.

30      Ms Baillie stated that when a student raises a complaint about a teacher it has been her experience that the teacher is given the opportunity to discuss and clarify why an issue exists and to determine a resolution and Ms Baillie stated that it was unusual for a student to be transferred to another class without the move being discussed with the teacher.  Ms Baillie stated that if students were encouraged to complain about a teacher this could generate additional complaints and she stated that it was unusual for students to be encouraged to complain about a teacher.  It was Ms Baillie’s view that Ms Heppolette was treated differently to other teachers who had similar performance issues.

31      Mr Morris has taught English for 26 years and has a Batchelor of Arts and a Diploma in Education.  He has taught at PSHS for 16 years and is currently on secondment to the Curriculum Council.  In 2004 he was a level 3 teacher at PSHS and 0.1 of his load was allocated to mentor Ms Heppolette.

32      Mr Morris stated that he believed that Ms Heppolette stopped teaching her year 12 class as her line managers were concerned that some students had asked to be shifted out of her class and he understood that her line managers were concerned about this.

33      Mr Morris stated that when he mentored Ms Heppolette he saw improvements in her performance and Mr Morris confirmed that he gave Ms Heppolette feedback about her teaching performance while she was undertaking her PIP (see Exhibits A3/A118-121 and A3/A125-129).  Mr Morris stated that even though there were some improvements in Ms Heppolette’s performance during her PIP he could not comment on whether or not she had made sufficient improvements as this was not part of his role.  Mr Morris confirmed that he was not in attendance at a meeting held on 20 August 2004 to review Ms Heppolette’s PIP.  Mr Morris believed that the removal of the year 12 class from Ms Heppolette should have been handled differently and Mr Morris stated that if he had been dealing with a student who wanted to shift out of a class he would have interviewed the student to determine the reasons for wanting to shift.

34      Under cross-examination Mr Morris stated that before Ms Heppolette’s PIP commenced he had only observed Ms Heppolette’s year 8 classes and he confirmed that one of Ms Heppolette’s classes had approximately 32 students.  Mr Morris was questioned closely about the removal of the year 12 English class from Ms Heppolette.  Mr Morris stated that he was not involved in this decision but he assumed that the class had been taken from Ms Heppolette because of complaints from students.  When it was put to Mr Morris that Ms Heppolette had given up this class Mr Morris stated that if this was the case it would be consistent with Ms Heppolette’s attitude at the time whereby he believed she abided by what PSHS administrators wanted her to do and he was of the view that she would have given up the class ‘to make things better’ (transcript page 122).  Mr Morris stated that he was aware that some students had complained about Ms Heppolette and wanted to move to another class.  Mr Morris stated that he did not believe that Ms Heppolette understood all of the feedback that he gave her about her classes during the PIP and he stated that it was unusual for a teacher to be given the amount of support that Ms Heppolette received.

35      Ms Bertei is currently teaching English at Balcatta Senior High School and she has qualifications in education and medical science.  Ms Bertei has taught on and off with the respondent as an English teacher since 1983 and in total for six years.  Ms Bertei taught at PSHS from September 2004 through to December 2004 and Ms Bertei stated that she was initially advised that she would be team teaching with Ms Heppolette and she assumed that she would be sharing the teaching responsibilities with her.  Ms Bertei stated that after two weeks she was told by Ms Mony de Kerloy to observe Ms Heppolette’s lessons and provide feedback to her and she was told not to discipline students or have any input into Ms Heppolette’s lessons other than to assist her with her lesson planning.  Ms Bertei stated that she assisted Ms Heppolette with the lesson preparation of all of her classes including a year 11 TEE class, year 9 and 10 English classes and two year 8 English classes.  Ms Bertei stated that the year 10 class taught by Ms Heppolette was an extremely difficult group to manage and she confirmed that there were 33 students, predominately boys, and that this class had a number of low ability students.

36      Ms Bertei stated that she was involved in an incident whereby a student claimed his hand was cut when a piece of paper was removed from him and she stated that Ms Heppolette was not involved in this incident as claimed by Ms Cody (see Exhibit A3/B87-88).  Ms Bertei stated that the English department at PSHS was not a friendly or happy place and she believed that this atmosphere did not facilitate Ms Heppolette raising issues with Ms Cody.  Ms Bertei also stated that problems between Ms Heppolette and Ms Cody had a negative impact on the English department.  Ms Bertei was disappointed when she became aware after two or three weeks at PSHS that she was possibly involved in a process which could lead to Ms Heppolette’s dismissal and when advised of this she spoke to Ms Mony de Kerloy who reassured her that she was there to assist Ms Heppolette.  Ms Bertei understood from what she had been told that Ms Heppolette was going to be terminated and Ms Bertei stated that she was told that Ms Heppolette was incompetent in some areas and she believed that PSHS had already determined that Ms Heppolette should be terminated.

37      Ms Bertei stated that Ms Heppolette was experiencing some difficulties when she first started working with her but over time her performance improved especially with respect to lesson preparation.  Ms Bertei stated that she did not feel sufficiently skilled to supervise Ms Heppolette and she believed that PSHS could have done more to assist her, for example allowing her to attend professional development or refresher courses.  Ms Bertei was aware that some students made personal remarks about Ms Heppolette and she nominated one student, Ryan, who towards the end of Term 4, 2004 had called Ms Heppolette a “nigger”.  Ms Bertei stated that this student had “Googled” Ms Heppolette’s name and came across a report in the media about Ms Heppolette and he told this to other students.  Ms Bertei stated that nothing was done about this at the time and she felt that Ms Heppolette was not given enough support.  Ms Bertei stated that it would have been difficult for Ms Heppolette to refer students to Ms Cody given the problems between her and Ms Cody.

Respondent’s evidence

38      Ms Mony de Kerloy has been the Deputy Principal at PSHS since 2001 and has been a substantive deputy since 1997 and she commenced her teaching career with the respondent in 1977.  Ms Mony de Kerloy stated that at the beginning of 2004 teachers were involved in one or two days of personal development before students commenced.  Ms Mony de Kerloy stated that the performance management process at PSHS, which normally takes place over two years, was an opportunity for staff to grow and pursue their aspirations and as part of this process areas which required support were identified.

39      Ms Mony de Kerloy stated that in the first week of Term 1, 2004 an unusual amount of comments from students and parents were made about Ms Heppolette.  Ms Mony de Kerloy stated that criticisms included concerns about the clarity of instructions given by her to students as well as classroom management problems.  Ms Mony de Kerloy stated that after discussing these issues with Ms Cody, Mr Morris was appointed as Ms Heppolette’s mentor on 8 March 2004.  Ms Mony de Kerloy stated that this support was a big commitment by PSHS and was an unusual step.

40      Ms Mony de Kerloy stated that she was told by Mr Morris and Ms Cody that Ms Heppolette only sometimes responded to feedback.

41      Ms Mony de Kerloy stated that on 7 May 2004 a meeting was held with Ms Heppolette about the problems she was experiencing and Ms Mony de Kerloy stated that at this meeting Ms Heppolette suggested that she drop her year 12 class in line with a suggestion Ms Heppolette had made the previous day.  Ms Mony de Kerloy agreed with her and she stated that this removed a stressful situation from the school (see Exhibit R1/R10-12).

42      Ms Mony de Kerloy stated that after relinquishing her year 12 class Ms Heppolette’s performance deteriorated further.  She gave by way of example a situation whereby two students had left Ms Heppolette’s room and when she returned them to her class it was in chaos.  Ms Mony de Kerloy stated that in early June 2004 Mr Morris prepared a report about Ms Heppolette’s performance and Ms Mony de Kerloy stated that after receiving this report she notified Ms Heppolette by letter dated 9 June 2004 that her performance was unsatisfactory and Ms Heppolette responded (see Exhibit R1/R14-17 and R1/R18-21).  Ms Mony de Kerloy stated that she then met with Ms Cody to consider Ms Heppolette’s response and a meeting was then held with Ms Heppolette on 22 June 2004 to consider further action.  Ms Mony de Kerloy stated that Ms Heppolette was then placed on a PIP.

43      Ms Mony de Kerloy stated that as part of the PIP process it was Ms Heppolette’s responsibility, in consultation with Ms Cody, to draw up a schedule of lessons to be observed, Ms Heppolette was required to supply lesson plans 24 hours in advance and she was asked to select a peer support person who had to be teaching upper and lower school students so that Ms Heppolette could observe his or her classes.  Ms Mony de Kerloy stated that Ms Heppolette did not negotiate times for Ms Mony de Kerloy to observe her classes and she stated that when she could not attend one lesson that she was set down to observe, Ms Heppolette did not renegotiate a new time.  On 5 and 7 July 2004 Ms Mony de Kerloy generated memos about her concerns about Ms Heppolette not complying with all of the requirements of the PIP process and she stated that she believed that Ms Heppolette was not co-operating with the PIP process.

44      Ms Mony de Kerloy confirmed that a meeting was held on 20 August 2004 to review Ms Heppolette’s PIP and she stated that after this meeting Ms Heppolette was advised that her performance remained unsatisfactory.  Ms Heppolette responded to this advice on 25 August 2004 and Ms Mony de Kerloy sent a further letter to her on 30 August 2004 stating that she would be recommending to the respondent that Ms Heppolette’s performance be investigated in accordance with the Public Sector Management Act 1994 (“the PSM Act”) (see Exhibit R1/R39-42).

45      Ms Mony de Kerloy confirmed that Ms Heppolette had lodged grievances against herself, Ms Cody and Mr Benson.

46      Ms Mony de Kerloy stated that she made every effort to comply with the respondent’s Managing Unsatisfactory and Substandard Performance of Teaching Staff and School Administrators Policies and Procedures (“the Policy”).

47      Ms Mony de Kerloy stated that after Ms Heppolette’s PIP finished her situation deteriorated further and she stated a crisis point was reached as she continued to receive complaints about Ms Heppolette from parents and students and petitions were also being generated by students about Ms Heppolette.  As PSHS had a concern for the safety of students Ms Heppolette’s line managers considered the possibility of a support teacher for Ms Heppolette.  Ms Mony de Kerloy stated that in order to put this in place PSHS had to demonstrate to the respondent that the situation required dramatic action in order to obtain funding for this person and this led to Ms Bertei being employed to assist Ms Heppolette for the rest of 2004.

48      Ms Mony de Kerloy denied that Ms Heppolette was discriminated against on the basis of her race and claimed that there was no basis for this allegation.  Ms Mony de Kerloy also claimed that Ms Heppolette was given more support than any other teacher at PSHS.  Ms Mony de Kerloy denied that Ms Heppolette was unable to use the “buddy” system and she assumed that Ms Heppolette chose not to avail herself of this option.  Ms Mony de Kerloy was of the view that it was unnecessary to get Ms Heppolette’s consent to move students out of her classes and she stated that students are moved for a variety of reasons and if it was on the basis that a parent asked for the student to change classes then PSHS had to provide this service to students and parents.  Ms Mony de Kerloy stated that she had a number of requests from parents to remove their children from Ms Heppolette’s classes.  Ms Mony de Kerloy stated that she did not force Ms Heppolette to give up her year 12 English class nor did she deny that Ms Heppolette could use Ms Baillie as a support person but she stated that Ms Heppolette was required to have a support person who taught lower school so that she could observe their classes.  Ms Mony de Kerloy conceded that she did not review any of Ms Heppolette’s classes even though she was scheduled to do so.  Ms Mony de Kerloy stated that she was unable to review one of Ms Heppolette’s classes as she had a funeral to attend and she declined to review the other scheduled lesson as Ms Heppolette’s lesson plan was not given to her 24 hours in advance.

49      Ms Mony de Kerloy stated that there was no point in extending Ms Heppolette’s PIP because she, Ms Cody and Mr Benson had decided that in their professional opinion it was not in anyone’s best interest for this to occur.

50      Ms Mony de Kerloy stated that she did not tell Ms Heppolette the names of the students who had complained about her because the students believed that Ms Heppolette would harass them for complaining to Ms Mony de Kerloy and Ms Cody.

51      Ms Mony de Kerloy stated that she believed that Ms Heppolette was treated fairly and was given every opportunity to improve her performance and it was her view that Ms Heppolette chose not to do what was asked of her.  Ms Mony de Kerloy believed that Ms Heppolette does not have the necessary instructional or behaviour management skills to teach nor does she have the attributes or empathy required of a teacher.

52      Under cross-examination Ms Mony de Kerloy denied that she solicited written complaints from students about Ms Heppolette.  Ms Mony de Kerloy stated that she recalled receiving letters of complaint about Ms Heppolette in early May 2004 and she recalled speaking to students about their concerns but was unsure in which order this occurred.  Ms Mony de Kerloy stated that she was not in the habit of asking for students to make written complaints about teachers.  Ms Mony de Kerloy agreed that a number of students were transferred from Ms Heppolette’s class on or before 11 February 2004 and that she was responsible for authorising these transfers.  Ms Mony de Kerloy stated that these students were transferred after complaints were made by parents and students and Ms Mony de Kerloy stated that the transfers were effected after meetings were held with parents and students and she stated that it was unnecessary to involve Ms Heppolette in these meetings.  Ms Mony de Kerloy stated that it was PSHS’s standard policy not to discuss a student’s move with the teacher involved.  Ms Mony de Kerloy stated that she had no difficulty with Ms Heppolette’s accent and she stated that she did not discuss this issue with Ms Cody.  Ms Mony de Kerloy stated that despite what was written in Ms Cody’s memo of 6 February 2004 the main issue with Ms Heppolette was the clarity of the instructions that she issued and the sequence of her instructions and not her accent.

53      Ms Mony de Kerloy stated that she had discussions with the local district office representative Ms Jo Wilson towards the end of Ms Heppolette’s performance management process to ensure that the Policy was complied with and Ms Mony de Kerloy stated that Ms Heppolette’s performance was assessed from 17 March 2004 onwards when she signed a performance management plan.  When it was put to Ms Mony de Kerloy that Ms Baillie had no issue with the progress of students in Ms Heppolette’s year 11 class Ms Mony de Kerloy stated that she understood that as a year 11 coordinator, Ms Baillie dealt with student pastoral care and academic performance issues and her role was not to monitor Ms Heppolette’s performance and Ms Mony de Kerloy stated that it was not Ms Baillie’s role to assess and judge Ms Heppolette’s teaching ability.  Ms Mony de Kerloy stated that Ms Baillie was not Ms Heppolette’s support person during the PIP process as she was not teaching any lower school classes at the time of Ms Heppolette’s PIP and Ms Mony de Kerloy then stated that Ms Baillie could have assisted Ms Heppolette during the PIP but Ms Heppolette needed to identify an additional support person.  Ms Mony de Kerloy did not believe that this was an inflexible application of the Policy and Ms Mony de Kerloy stated that it was the right decision in the circumstances and she stated that she clarified this point with a district office representative prior to making this decision.

54      Ms Mony de Kerloy stated that the letter sent to Ms Heppolette dated 9 June 2004 advising her that her performance was unsatisfactory was drafted by both Ms Mony de Kerloy and Ms Cody (Exhibit A3/A47).  When it was put to Ms Mony de Kerloy that this letter refers to problems that Ms Heppolette had with her year 12 class and that she was not teaching this class at the time the letter was written Ms Mony de Kerloy stated that she relied on Ms Cody for details to be included in the letter detailing her unsatisfactory performance.  Ms Mony de Kerloy stated that in any event the letter dealt with problems that Ms Heppolette had experienced up to that point in time and that problems that Ms Heppolette had with her year 12 class were only one of the many concerns about Ms Heppolette’s performance.  Ms Mony de Kerloy stated that she had in all probability seen a report completed by Mr Morris about Ms Heppolette and she understood that the report was the result of a request by Ms Cody for an update about Ms Heppolette’s performance (see Exhibit A3/A118-121).  Ms Mony de Kerloy stated that it was unnecessary to involve Mr Morris in the meeting held on 22 June 2004 to implement Ms Heppolette’s PIP or the review meeting held on 20 August 2004 because he had already given written feedback about her performance and the meetings were private and confidential.

55      Ms Mony de Kerloy again stated that she did not review any of Ms Heppolette’s lessons during the PIP period because Ms Heppolette failed to renegotiate a time to see one of her lessons when she was unable to attend at the time set down and she did not attend another lesson she was scheduled to attend because Ms Heppolette did not give her the lesson plan 24 hours prior to the lesson.  Ms Mony de Kerloy stated that Ms Heppolette’s PIP period was not extended because she believed the timeframe was adequate for Ms Heppolette to demonstrate the required improvements and she believed it was not in anyone’s best interests to extend her PIP as there had been no improvement in Ms Heppolette’s performance and her performance remained unsatisfactory.  When it was put to Ms Mony de Kerloy that Mr Morris noted an improvement in Ms Heppolette’s performance during the PIP Ms Mony de Kerloy stated that this was only in relation to one lesson and she stated that an observer can affect the outcomes in a lesson and Ms Mony de Kerloy then stated that even though Mr Morris maintained that Ms Heppolette had improved, her overall performance was still lacking and that her problems were insurmountable.  Even though Ms Heppolette requested that her PIP be extended Ms Mony de Kerloy believed that this was unnecessary.  When asked why Ms Mony de Kerloy did not take a more active role in reviewing Ms Heppolette’s performance during the PIP Ms Mony de Kerloy stated that prior to the PIP commencing Ms Heppolette had lodged grievances against Ms Mony de Kerloy, Mr Benson and Ms Cody and she did not want to be accused of harassment.  Ms Mony de Kerloy stated that she did not dislike Ms Heppolette however she questioned her teaching skills.

56      Under re-examination Ms Mony de Kerloy maintained that one of the main problems with Ms Heppolette’s teaching was the clarity of her instructions to students and not her accent and Ms Mony de Kerloy maintained that Ms Heppolette had not been prejudged before she had a chance to prove herself as an effective teacher.

57      Ms Cody has been the Head of English at PSHS since 2002 and she has taught for approximately 30 years.  Ms Cody stated that she met Ms Heppolette at the end of 2003.  Ms Cody stated that in the first week of Term 1 in 2004 she received complaints from parents and students about Ms Heppolette and Ms Cody stated that by the end of the first week of Term 1, 2004 she had started documenting issues concerning Ms Heppolette.  When year 12 students initially raised issues about Ms Heppolette Ms Cody stated that the complaints were about her accent and after clarifying with the students they stated that it was also that they did not know what they were supposed to do.  Ms Cody stated that she discussed the issues raised with Ms Heppolette and she stated that at the time she was receptive to strategies Ms Cody proposed.  Ms Cody stated that Ms Heppolette also had problems with her year 9 class and when she approached Ms Cody for assistance she told Ms Heppolette about the school’s Behaviour Management in Schools policy (“BMIS”) which dealt with the process for dealing with students who had disciplinary problems and Ms Cody stated that she did not go into great detail about this policy with Ms Heppolette because this was dealt with for approximately one hour as part of professional development for all staff at a meeting held at the beginning of Term 1.  Ms Cody stated that under this policy disciplinary issues are initially required to be dealt with at the class room level if possible and any misconduct is to be documented within a reasonable timeframe after the incident.  Ms Cody stated that after Ms Heppolette raised further issues about classroom discipline she reinforced the necessity for Ms Heppolette to follow the school’s BMIS policy.  Ms Cody denied that Ms Heppolette was not able to use the “buddy” system where students were sent out to another class.

58      Ms Cody stated that as early as March 2004 Ms Heppolette requested that a number of students be removed from her year 9 class.

59      Ms Cody stated that she became particularly alarmed when a year 12 student who would normally have no difficulties complained about Ms Heppolette in early March 2004.  After receiving this complaint Ms Cody formally wrote to Ms Heppolette and Ms Cody stated that she did not identify this student to Ms Heppolette as the student was uncomfortable about complaining about Ms Heppolette.  Ms Cody stated that she identified some strategies in this letter to assist Ms Heppolette (see Exhibit R2/RC19-21).

60      Ms Cody stated that she had a meeting with Ms Heppolette on 12 March 2004 about the problems she was experiencing and she documented what occurred at this meeting (see Exhibit R2/RC26).

61      Ms Cody stated that Ms Heppolette required more than the usual support she normally gave to teachers and she stated that she only occasionally acted on the advice given to her.  Ms Cody stated that on 17 March 2004 a performance management plan was put in place for Ms Heppolette which included access to professional development (see Exhibit R2/RC30-34).

62      Ms Cody stated that during Term 1 she had requests from students in Ms Heppolette’s classes to have their work re-marked and she stated that Ms Heppolette was reminded that she had to annotate each student’s work and give them feedback as to why they had achieved the grade that she gave them.  By way of example Ms Cody commented on an essay completed by a student that Ms Heppolette had marked (see Exhibit R2/RC76-84).  Ms Cody stated that complaints about Ms Heppolette from students and parents were ongoing during Term 1, 2004 and she maintained that she did not solicit these complaints.  Ms Cody stated that a number of complaints were from year 12 students and she stated that this was unusual as students find it difficult to complain (see Exhibit R2/RC51-55).  Ms Cody stated that on 29 April 2004 she had a meeting with Ms Heppolette and discussed concerns about her year 12 class (see notes of this meeting Exhibit R2/RC41-42) and Ms Cody stated that as the problems concerning Ms Heppolette were ongoing Ms Cody referred the issue of Ms Heppolette’s performance to Ms Mony de Kerloy.  Ms Cody stated that she later became concerned when Ms Heppolette chastised some female students who had complained about her (see Exhibit R2/RC48-49).  Ms Cody stated that she was very concerned about one student who spoke to her who was very anxious and another student in Ms Heppolette’s year 12 class who claimed that he wanted to leave in the middle of the year.  Ms Cody refuted that Ms Heppolette’s decision to give up a year 12 senior English class was made under duress.

63      Ms Cody stated that at the end of March 2004 she observed one of Ms Heppolette’s year 9 lessons (see notes of the lesson Exhibit R2/RC40-43).

64      Ms Cody confirmed that Ms Heppolette was due to undertake professional development on 14 June 2004 however she did not attend due to illness (see Exhibit R2/RC62).  Ms Cody stated that a complaint from a parent dated 26 May 2004 was given to Ms Heppolette as it was a serious complaint and after this complaint Ms Cody stated that she spoke to the student and his parents and later had a discussion with Ms Heppolette (see Exhibit R2/RC68 and RC70-72).

65      Ms Cody stated that she made every effort to interview students when they complained about Ms Heppolette to determine whether or not they were genuine complaints or if the students were just jumping on the bandwagon.

66      Ms Cody stated that during Ms Heppolette’s PIP she was required to provide her lesson plans 24 hours in advance of the lesson to be reviewed and Ms Cody stated that Ms Heppolette frequently handed her lesson plans in late (see Exhibit R2/RC112).

67      Ms Cody stated that she observed one of Ms Heppolette’s lessons on 1 July 2004 and she stated that the students were in control of this lesson and not Ms Heppolette (see Exhibit R2/RC113-117).  Ms Cody stated that she had further concerns with Ms Heppolette’s performance including the incorrect assessment of student work, insufficient annotation on student work and classroom disruption by students and Ms Cody stated that she spoke to Ms Heppolette about these concerns (see Exhibit R2/RC119 and notes of this meeting Exhibit R2/RC120).  Ms Cody stated that on another occasion Ms Heppolette assessed a student too highly and there were no annotations on the student’s work (see Exhibit R2/RC124-125).  Ms Cody stated that on some occasions Ms Heppolette correctly assessed a student’s work however there was insufficient feedback on the student’s work.

68      Ms Cody stated that she completed running notes on the progress of Ms Heppolette’s PIP and Ms Cody gave evidence that she was also the author of a document dated 19 August 2004 which highlighted the key aspects of Ms Heppolette’s unsatisfactory performance (see Exhibit R2/RC142-144 and Exhibit R3/RC146-147).

69      Ms Cody maintained that Ms Heppolette was not discriminated against on the grounds of her race and she found it offensive to be asked that question and Ms Cody maintained that she did not make any hasty judgements about Ms Heppolette but she stated that she had to deal with students and parents complaining about Ms Heppolette from the first week of Term 1.  Ms Cody stated that the level of support given to Ms Heppolette was unprecedented.  Ms Heppolette had access to the “buddy” system as well as day to day classroom management strategies, Ms Heppolette’s class was relocated to another block to be closer to other classes, Mr Morris was appointed on a 0.1 basis to be her mentor and during semester 2 Ms Heppolette had a full time mentor.  Ms Cody maintained that everything possible was done to ensure that the student concerns about Ms Heppolette were genuine and Ms Cody stated that she was experienced enough to know when a student was lying.  Ms Cody stated that it was not up to a teacher to remove students from a class and Ms Cody stated that Ms Heppolette requested that a number of students be moved from her year 8, 9 and 10 classes.

70      Ms Cody stated that Ms Heppolette was given every opportunity to improve her performance but she did not reach the required standard and Ms Cody stated that she was concerned for Ms Heppolette’s students.

71      Under cross-examination Ms Cody stated that Ms Heppolette’s PIP was precipitated by a series of events and she maintained that prior to this Ms Heppolette was given every opportunity to improve her performance.  Ms Cody stated that she was unaware that a student called Ryan had called Ms Heppolette a ‘nigger’.  Ms Cody confirmed from her notes that Ms Mony de Kerloy had asked students for written documentation about Ms Heppolette and Ms Cody stated that she told a student called Joshua that if other class members had issues with Ms Heppolette to see her (see Exhibit A3/A10).  Ms Cody stated that not all students in Ms Heppolette’s year 12 class who complained about Ms Heppolette were moved out of this class and Ms Cody stated that during Semester 1, 2004 an informal moderation of student performance in Ms Heppolette’s year 12 class was conducted.

72      Ms Cody confirmed that during Ms Heppolette’s PIP she observed two lessons and she stated that one observation lasted only 15 minutes because of a school assembly.  Ms Cody stated that prior to Ms Heppolette commencing her PIP she observed two of Ms Heppolette’s lessons, one of which was a year 9 class.

73      Ms Cody agreed that Tim Taylor was a difficult student and that a student by the name of Alana Uncle in year 10 was argumentative.  Ms Cody stated that she was unaware that any students had made racist comments about Ms Heppolette.

74      Ms Cody stated that Ms Baillie could have been a support person for Ms Heppolette during her PIP however Ms Heppolette was required to nominate a lower school teacher as well, in line with the Policy.  Ms Cody stated that in her running sheet summary of Ms Heppolette’s performance during her PIP she did not expand on Mr Morris’s review of Ms Heppolette’s lessons because it was a summary only and she stated that she had no pre-conceived view about Ms Heppolette’s performance when it was pointed out to her that the briefest summary she completed was for the most effective lesson completed by Ms Heppolette.  Ms Cody was of the view that even though Mr Morris had noticed some improvements in Ms Heppolette’s performance these improvements were occasional and Ms Heppolette’s performance remained inconsistent and Ms Cody stated that she believed that there had been some improvements in Ms Heppolette’s performance during the PIP however they were insufficient.

75      Ms Cody again maintained that Ms Heppolette could use the “buddy” system and it was unfortunate if she had the perception that she could not.

76      Under re-examination Ms Cody stated that the marks given by Ms Heppolette to students were not of major concern and that the main issue was the lack of feedback given to the students and the reasons for a particular mark being allocated to a student, otherwise a mark was of no use.

77      Mr Marshall completed an investigation into Ms Heppolette’s alleged substandard performance (see Exhibit A3/B63-B119).  Mr Marshall has had extensive experience in public sector management and human resource management over many years.  Mr Marshall maintained that he was not biased when completing the report nor was the report flawed and Mr Marshall stated that he followed all of the required procedures and he was under no specific directions from the respondent as to how to conduct his investigation.  Mr Marshall stated that he did not examine any material relating to Ms Heppolette in the period prior to February 2004 or after August 2004 other than speaking to some people referred to him by Ms Heppolette.  When asked why he interviewed Ms Mony de Kerloy and Ms Cody together he stated that this procedure can be advantageous when people are working together on a particular issue.  When it was put to him that this could lead to a perception of the possibility of collusion Mr Marshall stated that he would have been aware if this was the case.  Mr Marshall stated that he was satisfied with his decision to interview both Ms Mony de Kerloy and Ms Cody together given the amount of documentation involved.

78      Mr Rodney Nunn is the Vice Principal of the senior campus at BCC and he has been working at this school for ten years.  He was previously a head of the vocational education and training department and he has had approximately 30 years teaching experience.  Mr Nunn gave evidence about Ms Heppolette’s performance in 2006 after receiving feedback from the English head of department at BCC, Ms Sue Wallace.  Mr Nunn stated that it came to Ms Wallace’s attention in the first week of Term 1 that there were issues with the running of Ms Heppolette’s classes.  Mr Nunn stated that since that time issues have arisen with respect to Ms Heppolette’s performance and he has spoken to her about his concerns.  Mr Nunn stated that a number of issues have been raised with both himself and Ms Wallace and Mr Nunn stated that student services staff had also raised concerns about Ms Heppolette and a number of parents and their students have asked to change from Ms Heppolette’s classes.  Mr Nunn stated that five students have been moved from Ms Heppolette’s classes.  Mr Nunn stated that it was not uncommon for a parent to request a change of class and he stated that Ms Heppolette was advised about these changes.  Mr Nunn stated that Ms Heppolette is under the usual performance management process at BCC and he stated that a PIP has not been initiated for Ms Heppolette because he understood Ms Heppolette was at the school for a fixed term.  Mr Nunn stated that when enquiries were made as to whether or not it was appropriate to monitor Ms Heppolette’s performance more closely BCC was advised that she was ‘under a process’ and he stated that because of this BCC had endeavoured to manage Ms Heppolette’s classes.  Mr Nunn stated that in early 2006 Ms Wallace raised the issue of Ms Heppolette’s ability to manage her classes with him and she told him that she required a lot of support and Mr Nunn understood that Ms Wallace also raised these issues with Ms Heppolette.  Mr Nunn believed that demonstration lessons had also been given to Ms Heppolette.  Mr Nunn stated that he believed Ms Heppolette’s students were behind in their learning because of her absences from BCC and because of her performance problems and he stated that BCC had ensured that during Ms Heppolette’s absences experienced staff members were teaching her classes.  Mr Nunn stated that professional development had been offered to Ms Heppolette.

79      Mr Nunn stated that a meeting was held between Ms Heppolette and Ms Wallace about work not being returned from Term 1 on 25 August 2006 and Mr Nunn stated that at this meeting Ms Heppolette disagreed that there were substantial problems with her classes.  Mr Nunn stated that Ms Heppolette’s classroom management skills and her teaching and learning skills were not up to the level required and he stated that when Ms Heppolette was given the opportunity for assistance she did not see her performance deficiencies as an issue.  Mr Nunn stated that Ms Wallace told him that Ms Heppolette had an unrealistic expectation of her teaching abilities and she believed she was performing at a level 3 standard whereas Ms Wallace believed that she was not up to a level 1 standard which was the standard of a beginning teacher.  Mr Nunn stated that if Ms Heppolette continues to be employed at BCC a substandard performance process could be instituted against her and he stated that BCC is currently seeking advice about instituting a formal process.

80      Under cross-examination Mr Nunn stated that he had not formally observed Ms Heppolette’s classes but he stated that he had visited her classes and Mr Nunn stated that he was unaware if any formal documentation had been given to Ms Heppolette about her performance.  Mr Nunn stated that both he and other teachers had spoken to individual students about issues concerning Ms Heppolette and Mr Nunn stated that the students told him that they had difficulty understanding Ms Heppolette’s instructions.  Mr Nunn also stated that because of the issues with Ms Heppolette, Ms Wallace has had to intervene and restructure her classes to assist Ms Heppolette.  Mr Nunn stated that only two or three other students have complained at BCC this year about staff other than Ms Heppolette and he stated that some students have been transferred from other teachers’ classes for various reasons.

81      Ms Glennis Freeman has had 21 years experience teaching and is currently a moderation officer with the curriculum council and in 2005 she was acting head of department in English at KSHS in Term 1.  Ms Freeman worked with Ms Heppolette during Term 1, 2005.  Ms Freeman stated that she kept a running sheet for each of her staff members including Ms Heppolette.  Ms Freeman stated that as early as week one of Term 1, 2005 concerns were raised with her about Ms Heppolette’s teaching.  Ms Freeman stated that in one instance a colleague whose son was in one of Ms Heppolette’s classes told her that students were not doing anything in the class and Ms Freeman stated that complaints were constantly being made about Ms Heppolette but she did not write them all down.  Ms Freeman stated that she had never had as many complaints about a teacher before and she stated that the problems with Ms Heppolette were out of the ordinary and unusual.  Ms Freeman stated that because of the number of complaints about Ms Heppolette she spent a lot of time dealing with them and she stated that because Ms Heppolette was teaching a TEE class she was concerned for these students.  Ms Freeman stated that Ms Heppolette did not provide her interim reports on time and Ms Freeman stated that she also raised other performance issues with Ms Heppolette.  Ms Freeman also claimed that a number of students were frightened of Ms Heppolette and Ms Freeman stated that because Ms Heppolette was often late to class this caused disruption at KSHS.  Ms Freeman stated that when it appeared that students were not doing any work in their classes, Ms Heppolette was asked to provide information about her teaching programs, course outlines and student work samples.  When asked to comment on Ms Heppolette’s performance Ms Freeman stated that she had never worked with anyone who was so unsatisfactory and unprofessional and Ms Freeman stated that she was concerned about the lack of student productivity and students having to catch-up after Ms Heppolette left KSHS.  Ms Freeman stated that she would not want to teach with Ms Heppolette and that it would be unfair on students to have her continue as a teacher.

82      Under cross-examination Ms Freeman stated that she did not observe any of Ms Heppolette’s classes and Ms Freeman stated that she gave Ms Heppolette informal notes by way of feedback but that she did not give her any formal notification about concerns with her performance.

Applicant’s submissions

83      The applicant argues that Ms Heppolette was unfairly terminated and that Ms Heppolette should be reinstated to a permanent position and be given compensation for loss of earnings.

84      The applicant argues that Ms Heppolette was unfairly terminated for a number of reasons.  The application claims that the respondent breached a number of the requirements of the Policy when dealing with Ms Heppolette’s PIP, the applicant claims that there were a number of flaws in Mr Marshall’s investigation, the applicant argues that the respondent failed to provide proper professional development to Ms Heppolette during 2004 and that she was not given sufficient opportunity to answer allegations about her performance and the applicant claims that the respondent failed to consider alternatives to termination before dismissing Ms Heppolette.

85      The applicant argues that Ms Mony de Kerloy and Ms Cody had a predetermined view about Ms Heppolette’s performance prior to placing her on the PIP and in support of this claim the applicant relies on Ms Heppolette not being allowed to have her nominated support person assist her during the PIP and the teacher who observed most of her classes, Mr Morris, was not part of the PIP review process.  The applicant also claims that Ms Cody deliberately omitted to include positive comments made by Mr Morris about Ms Heppolette’s lessons in her summary of Ms Heppolette’s performance during the PIP and the applicant claims that the respondent did not take into account that Ms Heppolette demonstrated some improvement during the PIP process.  The applicant argues that Ms Heppolette was not afforded a ‘fair go all round’ and in the absence of any conclusive evidence that Ms Heppolette’s performance was substandard the applicant submits that it was not open to the respondent to terminate Ms Heppolette’s employment under s79(3) of the PSM Act.

86      The applicant maintains that Ms Heppolette’s performance improved during 2004 and the applicant relies on the evidence of Mr Morris and Ms Bertei in this regard.

87      The applicant maintains that Ms Heppolette had difficulties with Ms Cody soon after commencing employment at PSHS.  Within two weeks of the start of the school year Ms Cody sanctioned the transfer of students out of her class thereby undermining her authority over the students who remained in her class and the applicant argues that this affected Ms Heppolette’s ability to develop a rapport with her students.  The applicant maintains that when Ms Cody and Ms Mony de Kerloy invited students to make written complaints about her this also undermined Ms Heppolette’s efforts at effective classroom management.  The applicant claims that Ms Heppolette was unable to participate in moderation processes for some months and Ms Baillie gave evidence that Ms Heppolette was unable to access the same level of networking and support as other teachers at PSHS had been given and Ms Baillie believed that Ms Heppolette was performing adequately but had obstacles put in her way on a daily basis.

88      The applicant claims that Ms Heppolette was only notified of two complaints from students when she taught at KSHS and that no performance issues were raised with her whilst at BCC nor did she receive any formal notification or documentation about her alleged substandard performance at this school.  Further, Ms Heppolette was not given the opportunity during the hearing to contest whether or not her performance was substandard at this school.

89      The applicant claims that the evidence given by all of the respondent’s witnesses except Mr Marshall lacked credibility and should be given little if any weight.  The applicant argues that Ms Mony de Kerloy presented her evidence in a manner designed to paint Ms Heppolette in the worst possible light and the applicant argues that Ms Mony de Kerloy was evasive at times when giving evidence that was supportive of Ms Heppolette.  The applicant also argues that Ms Mony de Kerloy was unable to give evidence in support of a number of claims that she made, for example, she was unable to identify the relevant standard to be applied before deciding whether or not a second PIP period should be instituted.  Given these doubts about Ms Mony de Kerloy’s evidence and as this was the first time that she had responsibility for implementing a PIP the applicant argues that little weight should be attached to her evidence.  The applicant therefore submits that Ms Heppolette’s evidence should be preferred to the evidence given by Ms Mony de Kerloy.  The applicant argues that where Ms Cody’s evidence differs from the evidence given by other witnesses that her evidence should not be preferred.  The applicant claims that parts of Ms Cody’s evidence was inconsistent with evidence given by other witnesses and the applicant also argues that some of Ms Cody’s evidence were vague and she could not recall specific events.  The applicant submits that the evidence of Ms Freeman should be given little weight as she did not provide Ms Heppolette with any formal documentation concerning any alleged unsatisfactory performance nor was Ms Heppolette cross-examined in respect to any alleged unsatisfactory performance whilst at KSHS.  The applicant submits that little or no weight should be attached to Mr Nunn’s evidence as Ms Heppolette was not cross-examined about her alleged poor performance whilst at BCC and if there were concerns about her performance at BCC they should have been particularised to Ms Heppolette prior to the hearing and put to Ms Heppolette at the hearing.

90      The applicant has reservations about the independence of the investigation by Mr Marshall.  Ms Cody and Ms Mony de Kerloy were interviewed by him at the same time and as their evidence was significant with respect to the conclusions reached by the investigator this was inappropriate.  Mr Marshall did not comment on Mr Morris’ absence from the PIP nor was any mention made of Ms Baillie not participating as a support person.  Mr Marshall was aware that if Ms Heppolette had demonstrated some improvements in her performance then she would have been entitled to a second period of monitoring and the applicant argues that his investigation was a rubber stamp for the actions that had occurred at PSHS in relation to Ms Heppolette.  The applicant also claims that there was little or no evaluation by Mr Marshall as to whose evidence should be preferred over the evidence given by others.

91      The applicant submits that the respondent failed to take into account a number of relevant considerations when it decided to terminate Ms Heppolette, including Ms Heppolette’s satisfactory performance prior to 2004, the effect that the removal of a number of students from Ms Heppolette’s class at the beginning of 2004 had on her ability to develop a rapport with students, Ms Heppolette’s satisfactory performance at BCC and the fact that Ms Heppolette is now denied employment by the largest employer of teachers in this state.  The applicant argues that there were alternatives to Ms Heppolette being terminated including transferring Ms Heppolette to an alternative school as there was no evidence suggesting that there were any concerns about her performance at HSHS and MSHS and there was no documentary evidence confirming concerns about Ms Heppolette’s performance when she taught at BCC.

Respondent’s submissions

92      The respondent argues that its decision to dismiss Ms Heppolette for substandard performance was fair, reasonable and lawful and maintains that both the oral evidence of the witnesses and documentary evidence given in these proceedings supports this claim.

93      The respondent argues that evidence given at the hearing proves conclusively that Ms Heppolette’s performance during her time at PSHS in 2004 was substandard.  The respondent argues that Ms Heppolette was deficient in numerous key areas of teaching including planning and preparation, assessing and reporting on student outcomes, teaching skills and classroom management skills and the respondent maintains that despite the concerted efforts of a number of staff at PSHS to assist Ms Heppolette she failed to show any sustained improvement during 2004.  The respondent also argues that throughout Ms Heppolette’s Performance Management process through to the PIP and beyond she was afforded procedural fairness and natural justice at all times.  The respondent argues that given Ms Heppolette’s ongoing substandard performance the respondent was left with no choice but to terminate her and claims that allowing Ms Heppolette to continue teaching would have compromised the education of the students she was teaching.

94      The respondent concedes that the Commission has jurisdiction to hear this application.  Ms Heppolette was not a Government Officer as provided under s 80C of the Act however as a teacher employed under s235(1)(b) of the School Education Act 1999, Ms Heppolette was entitled under s78(2) of the PSM Act to refer the decision to terminate her to the Commission as if the decision was an industrial matter mentioned in s29(1)(b) of the Act.

95      The respondent argues that the Commission can review its decision to terminate Ms Heppolette as a hearing de novo and relies on the decision of Commissioner Kenner in Geoffrey Johnston v Mr Rod Mance, Acting Director General, Department of Education (2002) 83 WAIG 1553:

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

The respondent relies on this decision being cited with approval in a number of matters before the Commission including Margaret Webb v Director General, Department of Education (2004) 84 WAIG 132 at 136 and Anca Flynn v Paul Albert, Director General Department of Education and Training (2005) 85 WAIG 770 at 777.

96      The respondent argues that as the applicant is challenging both the procedure followed by the respondent and the merits of the decision to terminate Ms Heppolette then the Commission is not limited to determining the reasonableness of the decision to terminate Ms Heppolette but after having conducted a hearing de novo the Commission can make a fresh decision based on all of the available evidence.

97      The respondent maintains that the procedure followed by it in terminating Ms Heppolette was fair and in the alternative if the Commission finds that this is not the case the Commission can “cure” any alleged procedural defects by substituting a fresh decision to that of the respondent’s decision (see Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158).

98      The respondent argues that little weight can be attached to the performance appraisal of Ms Heppolette when she taught at MSHS in 2002 as Mr McInerney was unavailable to be cross-examined.

99      The respondent argues that there was no evidence that Ms Heppolette was discriminated against on the grounds of her race when she taught at PSHS.  The respondent does not dispute that students were removed from one of Ms Heppolette’s classes soon after the start of the 2004 school year, however, the respondent argues that both Ms Mony de Kerloy and Ms Cody stated that it was standard practice at PSHS not to obtain a classroom teacher’s consent prior to a student being transferred out of his or her class nor were requests acceded to without question.  Additionally, Ms Heppolette sometimes requested that certain students be removed from her class.

100   The respondent disputes that it failed to deal with two grievances lodged by Ms Heppolette and maintains that Mr Benson responded to Ms Heppolette’s first grievance, dated 17 June 2004 on 21 June 2004 and after receiving further information about this complaint Mr Benson again responded to Ms Heppolette on 2 July 2004.  The respondent claims that Mr Benson dealt with Ms Heppolette’s second grievance lodged on 23 June 2004 by letter dated 29 June 2004.

101   The respondent argues that there was a substantial amount of evidence confirming that it was appropriate to move Ms Heppolette from her Performance Management agreement to the Unsatisfactory and Substandard Performance process.  Ms Cody gave evidence about Ms Heppolette’s ongoing performance problems (see Exhibit R2/RC22-28, 37-39, 41-42, 47-49, 51-55, 66-87, 89-90 and 95-96) and despite repeated requests and explanations, Ms Heppolette failed to properly implement PSHS’s Behaviour Management in Schools policy and procedure.  There was evidence that a high number of students and parents raised concerns about Ms Heppolette’s teaching performance and Ms Heppolette continued to experience difficulties despite being given assistance by Ms Cody about the clarity of her instruction to students.  Ms Cody also had issues with Ms Heppolette providing detailed and meaningful feedback to students when marking their work and no improvements were made in this area prior to her PIP commencing.

102   The respondent argues that Ms Heppolette was aware of the specific concerns about her performance prior to undertaking the PIP because a detailed explanation was given to Ms Heppolette about concerns about her performance at PSHS on 9 June 2004 and the respondent submits that the decision to refer Ms Heppolette’s performance to the District Director was appropriate based on her ongoing unsatisfactory performance.

103   The respondent maintains that Ms Heppolette was treated fairly at all times by Ms Mony de Kerloy and Ms Cody and issues raised by Ms Heppolette were properly considered by Ms Mony de Kerloy and/or Ms Cody.

104   The respondent argues that Mr Marshall carried out a thorough, fair and objective assessment of Ms Heppolette’s performance and the respondent maintains that his investigation was not biased and flawed.  The respondent maintains that even though Ms Heppolette remained teaching at PSHS this was only after Ms Bertei was appointed to assist her which was an unusual step and constituted a significant impost on the respondent’s resources and even if it can be argued that Ms Heppolette remained at PSHS without incident in Term 4 she did so with the assistance of a full time mentor.

105   When Ms Heppolette taught at KSHS Ms Freeman kept a running sheet of concerns about her performance and Ms Freeman wrote to Ms Heppolette asking to see her about a number of issues.  Mr Nunn gave evidence that problems with Ms Heppolette’s performance were brought to his attention by the head of English at BCC as early as the first week of school in 2006 and Ms Heppolette specifically denied that she was experiencing any problems at BCC.  Mr Nunn stated that staff at BCC had been told to manage Ms Heppolette’s performance issues and staff at BCC went to substantial efforts to assist Ms Heppolette to improve her performance.  Additionally, Mr Nunn understood BCC was precluded from instituting any formal performance processes against Ms Heppolette.  Mr Nunn also gave evidence about Ms Heppolette’s perceived lack of understanding about her shortfalls as a teacher and he stated that Ms Heppolette’s performance was of such concern that the Principal was now looking into whether or not a formal performance review process would be initiated against Ms Heppolette.

Findings and conclusions

Credibility

106   I listened carefully to the evidence given by each witness and closely observed each witness.  I have concerns about some of the evidence given by Ms Heppolette.  I find that even though some of Ms Heppolette’s evidence was consistent with evidence given by other witnesses as well as some of the documentary evidence given in these proceedings it is my view that at times Ms Heppolette was not convincing and was not being as candid as she could have been when testifying about her performance at PSHS.  In particular I am of the view that Ms Heppolette was being unrealistic when she claimed that the concerns raised by her line managers at PSHS about her performance were minimal and caused by factors over which she had little control, such as dealing with a significant number of difficult students, and that she was given little support and feedback by Ms Cody to assist her with her problems.  In reaching this view I take into account the substantial amount of documentation tendered at the hearing detailing the difficulties that Ms Heppolette was experiencing with respect to managing students and the substantial amount of written evidence tendered at the hearing confirming that Ms Heppolette was given a significant amount of feedback about improvements she could make in a range of areas including the effective management of some of her more difficult students and how to improve the clarity of her instructions to students and giving appropriate feedback when assessing students (see Exhibit R2/RC6, 11, 16, 19, 26, 27-28, 37, 39-40, 41, 47 and 73 and Exhibit A3/A14, A47-50).  I also find that at times Ms Heppolette’s evidence was inconsistent.  For example, when Ms Heppolette testified about the support she received to deal with students who were difficult to manage such as Tim Taylor Ms Heppolette initially claimed in evidence-in-chief that she had no support from Ms Cody to help her deal with him yet in cross-examination she conceded that this was not true (see Exhibit A3/A15 and A80).  Ms Heppolette also claimed that she regularly used the PSHS classroom management process (BMIS) yet there was documentation indicating that the contrary was the case (see A3/A9, A34 and A99).  In the circumstances I have major concerns about the credibility of the evidence given by Ms Heppolette about her performance at PSHS.

107   I am of the view that in the main the evidence given by Ms Mony de Kerloy was credible and I find that her evidence was given to the best of her recollection.  Even though Ms Mony de Kerloy was not as forthcoming as she could have been about soliciting written complaints from students about Ms Heppolette it is my view that not a great deal turns on this as it is clear that a number of senior students complained about Ms Heppolette soon after she commenced teaching at PSHS and it is my view that it is not an unreasonable proposition to put to students to detail any concerns they may have about their teacher in writing.  I am therefore of the view that Ms Mony de Kerloy’s actions in this regard did not constitute the soliciting of complaints from students about Ms Heppolette.  I also reject the applicant’s claim that Ms Mony de Kerloy deliberately tailored her evidence to misrepresent Ms Heppolette’s teaching attributes.  I accept that Ms Mony de Kerloy is an experienced administrator within the Western Australian education system who has also taught for many years and I find that given this experience she is well placed to judge a teacher’s performance, including that of Ms Heppolette, and in the circumstances I find that Ms Mony de Kerloy did not set out to deliberately discredit Ms Heppolette.

108   In my view Ms Cody was a credible witness who gave evidence that was clear, considered, consistent and forthright and her evidence was supported by a substantial amount of documentation.  I also accept that Ms Cody is a head of department who has had substantial experience teaching English and is a teacher of many years standing who has been involved in a range of areas related to the English curriculum, such as the assessment of TEE English students.  I therefore find that Ms Cody was well placed to assess Ms Heppolette’s performance.  In the circumstances I accept her evidence.

109   I find that the evidence given by all of the other witnesses in these proceedings was given honestly and to the best of their recollection and I therefore have no hesitation in accepting their evidence.

110   As I have doubts about the evidence given by Ms Heppolette about her teaching performance I rely on the evidence of the other witnesses who gave evidence in these proceedings and an analysis of the events and documentary evidence in order to reach conclusions relevant to this issue.

111   Section 78 of the PSM Act, which is contained in Part 5 of that Act and is headed ‘Substandard performance and disciplinary matters’, outlines the rights of appeal to the Commission for relevant employees and there was no dispute and I find that Ms Heppolette is a relevant employee for the purposes of these proceedings and that the terms of s78 of the PSM Act applied to Ms Heppolette.

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

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

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

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

…

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

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

114   Section 79(3) of the PSM Act reads as follows:

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

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

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

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

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

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

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

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

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

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

118   I have considered the evidence given in these proceedings and reviewed the substantial amount of documentation tendered at the hearing.  On the evidence before me it is my view and I find that the decision made by the respondent to terminate Ms Heppolette based on her performance at PSHS during her PIP was unfair for a number of reasons.

119   Paragraph 2 sets out the background to this application and Ms Heppolette’s employment history as a teacher.

120   I find that Ms Heppolette is a well qualified teacher who has had an extensive career teaching in both Western Australia and India.  I find that at the end of 2002 Ms Heppolette attained permanent status whilst at MSHS after having her performance reviewed and assessed and it appears she taught without incident during 2003 at HSHS.

121   It was not in dispute and I find that when Ms Heppolette commenced teaching on a full time basis at PSHS she initially taught one year 12 Senior English class, one year 11 TEE English class, and a year 8, 9 and 10 English class and in May 2004 Ms Heppolette ceased teaching her year 12 senior English class and was allocated to teach an additional year 8 English class.

122   It is clear that substantial issues with respect to Ms Heppolette’s performance came to the attention of Ms Heppolette’s line managers soon after she commenced employment at PSHS in 2004.

123   I find on the evidence that from the commencement of 2004 Ms Heppolette experienced difficulties teaching her year 12 class as it was not in dispute that in the first two weeks of Term 1, 2004 some of Ms Heppolette’s senior students claimed that they had difficulty comprehending her instructions.  As a result of these complaints some students requested that they be shifted from Ms Heppolette’s class and Ms Mony de Kerloy transferred these students to another class without consulting Ms Heppolette.  Even though I accept that teachers are not always consulted when a student requests a change of class at PSHS and Ms Cody liaised with Ms Heppolette at the time to assist her to communicate more effectively with her year 12 students, which appeared to be the main cause of the students’ problems with Ms Heppolette, I find that the unilateral removal of some students from Ms Heppolette’s year 12 class within the first two weeks of school could well have had a negative impact on Ms Heppolette’s standing with her students and as a result could have undermined her ability to teach this class.  In any event however Ms Heppolette ceased teaching this class in May 2004 and even though this was unfortunate in my view there was ample evidence confirming that students in this class were experiencing a range of difficulties during the period that Ms Heppolette taught these students (see Exhibit R2/RC6, 18, 19-28, 37, 35, 39-41, 47-49, 51-53, 55 and 64).

124   I find that when it became clear to Ms Cody that Ms Heppolette was also experiencing difficulties teaching her other classes Mr Morris was appointed to be her mentor teacher to assist her on a 0.1 basis, which allowed Mr Morris to review two to three of Ms Heppolette’s classes each week which is a considerable amount of time and give Ms Heppolette feedback about how she could improve her performance.  I find that Mr Morris gave Ms Heppolette regular feedback in Term 1 and Term 2, 2004 about how she could better manage her students and teach effectively and I find that as Mr Morris is a highly experienced and capable senior teacher he was in a position to give Ms Heppolette a substantial amount of useful feedback about how she could improve her teaching and classroom management even though Mr Morris concentrated in the main on assisting Ms Heppolette with her year 8 class due to timetable constraints (see Exhibit A3/A114-123).  Whilst this may have been unfortunate for Ms Heppolette as I accept that this was a class where she was experiencing the least difficulty, notwithstanding this there was evidence that Mr Morris gave Ms Heppolette strategies for lesson preparation, planning and delivery for her other classes (see report June 2004 Exhibit A3/A118-121).

125   I find that after a substantial amount of time, support and feedback was given to Ms Heppolette by Mr Morris and Ms Cody during Semester 1, 2004 Ms Heppolette’s performance had not improved to the required standard.  I accept that Ms Heppolette’s line managers then decided that Ms Heppolette should be removed from PSHS’s standard performance management process and be placed on a PIP.  Even though Ms Baillie believed that Ms Heppolette was teaching her year 11 class effectively during this period it is clear that she was unaware of the range of concerns raised with Ms Cody from students in this class or of the difficulties being experienced by Ms Heppolette in her other classes (see Exhibit R2/RC29, 34-38, 54 and 62-63).

126   Ms Heppolette’s PIP was based on the following:

“Annmarie stated that the following areas would form the basis of the Performance Improvement Plan:

1 Classroom Management Skills

2 Assessing and Reporting Student Outcomes

3 Teaching Skills

4 Planning and Preparation

and that satisfactory performance in each of the areas identified above is:

1 Behaviour Management practices are effective and documentation of student misbehaviour is consistent with the school’s BMIS policy.

2 Student outcomes are assessed comprehensively and they are given regular and adequate feedback on their progress.

3 Students understand instructions given.

4 Students’ interests and needs are reflected in learning program.”

(extract from Exhibit R2/RC105)

127   As I accept the evidence of Ms Cody and Ms Mony de Kerloy, which is supported by a substantial amount of documentary evidence, I find that when the PIP process commenced Ms Heppolette was experiencing difficulties in a range of areas including behaviour management, assessment of student work, clarity of instructions and using appropriate learning strategies.  I also find that despite being aware of the PSHS BMIS strategy Ms Heppolette failed to regularly use the steps required under this process and in my view this failure contributed to some of the difficulties Ms Heppolette was experiencing managing her students and I also reject Ms Heppolette’s claim that she was denied access to the buddy system given my views on witness credit.  In the circumstances I accept that the areas of concern identified on Ms Heppolette’s PIP were appropriate.

128   It is not in dispute that Ms Heppolette’s PIP commenced on 30 June 2004 and ceased on 11 August 2004, which was the minimum period of 20 days as provided for in the Policy, and one review meeting was held on 20 August 2004 which was attended by Ms Mary Franklin and Mr Chris Sharpe from the union, Ms Mony de Kerloy, Ms Cody, Ms Heppolette and Ms Sheryl Holmes, a secretary.  It was also not in dispute that Ms Cody reviewed two of Ms Heppolette’s lessons, Ms Mony de Kerloy did not review any lessons although she was scheduled to do so, Mr Morris reviewed 10 lessons and no other teacher/line manager at PSHS reviewed any of Ms Heppolette’s lessons during the PIP.

129   It appears that on or about 20 August 2004 after considering Ms Heppolette’s progress during the PIP that Ms Mony de Kerloy and Ms Cody determined that Ms Heppolette’s performance remained substandard and on 30 August 2004 Ms Heppolette was formally advised that the issue of her substandard performance would be referred to the respondent for further action and correspondence to this effect was generated by PSHS.

130   I find that Ms Heppolette was treated unfairly when some of the requirements of the Policy with respect to the handling of her PIP were not adhered to by her line managers and it is also my view that Ms Heppolette was denied access to a fair and reasonable process during the PIP even though Ms Mony de Kerloy took steps to ensure that PSHS complied with the Policy and sought advice from the District Office about how to manage Ms Heppolette’s PIP process.

131   The Policy states that when a PIP is established it shall address identified areas of unsatisfactory performance and assist the employee to attain a satisfactory standard of performance (see Exhibit A4).  Page 5 of the Policy states that a PIP is to allow for the person subject to the PIP to have his or her performance monitored in a structured way and this person is to be provided with advice and assistance during the duration of the PIP and the Policy requires that an employee be given feedback about his or her progress during the PIP process (see Appendix 4.2 of the Policy which sets out a pro-forma document to assist in this regard).  I accept that the areas in which Ms Heppolette was expected to improve were realistic and relevant given the performance difficulties that Ms Heppolette had been experiencing at PSHS in Semester 1, 2004 however I find that the PIP put in place to assist Ms Heppolette to reach the required level of performance did not adequately specify realistic support, assistance and feedback so that Ms Heppolette could improve her performance within the specified timeframe as required under the respondent’s Policy.  There was also no specific provision in the PIP for Ms Heppolette to access professional development relevant to the areas of concern about her performance during the PIP and even though feedback was given to Ms Heppolette by Mr Morris and on one occasion by Ms Cody during the PIP about her progress and how she could improve her performance in general in my view this was insufficient to satisfy the requirement under the Policy that teachers should be provided with sufficient information and relevant support to reach the required level of performance during the PIP.  I also find that Ms Heppolette should have been assisted with arranging to review other relevant teachers’ lessons which could have been of benefit to her and in my view no effort was made by Ms Cody or Ms Mony de Kerloy to facilitate this assistance.  Additionally, no review meeting was held with Ms Heppolette during the PIP to give her feedback about her progress to date which in my view would have been valuable to Ms Heppolette to ensure that she was aware of how she could meet the requirements of the PIP within the set timeframe.

132   In my view Ms Heppolette was treated unfairly when Ms Baillie was not accepted to be her support person.  There is nothing in the Policy requiring that a support person teach the same year levels as the person undergoing a PIP and I am of the view that given Ms Baillie’s experience and her rapport with Ms Heppolette she could have helped Ms Heppolette to deal with some of her performance problems and how best to handle the requirements of her PIP.  Even though there was some discussion when the PIP was established that Ms Heppolette’s support person should teach upper and lower school subjects, because of the impasse about who should fill this role Ms Heppolette was denied access to and feedback from a support person thereby compromising Ms Heppolette’s right to appropriate feedback and support.

133   The final decision about whether or not Ms Heppolette’s performance was substandard and whether or not insufficient improvements had been made by her with respect to her performance was made by Ms Cody and Ms Mony de Kerloy.  I am of the view that the small number of lessons viewed by Ms Cody (none were viewed by Ms Mony de Kerloy) was insufficient for Ms Cody and Ms Mony de Kerloy to categorically establish that Ms Heppolette’s performance was substandard and had not improved during the PIP process.  Ms Mony de Kerloy complained that it was Ms Heppolette’s responsibility to contact her to arrange a follow up lesson after she was unable to review one of Ms Heppolette’s lessons and she refused to review another lesson because Ms Heppolette did not submit the required lesson plan in advance of her lessons as required under her PIP.  The Policy requires that it is necessary that a teacher’s performance be properly evaluated before judgements are made about the performance standard of the teacher concerned and as only two lessons were reviewed by Ms Cody and none by Ms Mony de Kerloy it is my view that this was insufficient observation and monitoring of Ms Heppolette’s performance in order to reach a realistic conclusion that Ms Heppolette had not made the required improvements and to give adequate feedback about how the required performance improvements could be made.  I accept that Mr Morris reviewed a number of Ms Heppolette’s lessons during the PIP process however he had no input in the determination of whether or not Ms Heppolette’s performance was satisfactory or had improved sufficient to warrant the extension of the PIP.  I also note that he was of the view that Ms Heppolette had made some improvements in some of the lessons that he observed during Ms Heppolette’s PIP (see Exhibit A3/A124-129 - Mr Morris’ lesson evaluations during PIP).

134   I accept that from the commencement of Term 1, 2004 Ms Cody endeavoured to deal with the concerns raised about Ms Heppolette’s performance in a consultative and professional manner, and documentation prepared by Ms Cody about her dealings with Ms Heppolette during Term 1, 2004 in my view reflects this professional approach.  It is also clear however that tensions arose between Ms Heppolette and Ms Cody and this was reflected in the tone of some of Ms Cody’s correspondence to Ms Heppolette in Term 2, 2004 (see Exhibit R2/RC91, 92 and 97).  It was also clear that Ms Heppolette’s relationship with Ms Mony de Kerloy was deteriorating by May 2004.  As a result of these tensions Ms Heppolette lodged grievances against Ms Cody and Ms Mony de Kerloy and later Mr Benson.  I find that as tensions existed between Ms Heppolette and Ms Cody and Ms Mony de Kerloy by the end of Term 1, 2004 steps should have been taken to at least have an additional person reviewing Ms Heppolette’s performance during her PIP.  Even though it is my view that Ms Heppolette’s grievances mainly concerned the way in which Ms Cody and Ms Mony de Kerloy dealt with issues about Ms Heppolette’s performance, which in my view were legitimate interactions which were in the main professionally handled, and I accept that Mr Benson dealt with these grievances, it is my view that once grievances were lodged by Ms Heppolette against the line managers who were handling her PIP then steps should have been taken by Mr Benson to ensure that either an additional person was put in place to assess Ms Heppolette during her PIP or Ms Cody should have been replaced as the main person dealing with and assessing Ms Heppolette during her PIP.  As this did not occur I find that the PIP process was therefore tainted.

135   It is my view that Ms Heppolette should have had her PIP extended after she demonstrated some improvements in her performance, as confirmed by the feedback given to Ms Heppolette by Mr Morris during the PIP, as the Policy provides for a PIP to be extended when a teacher’s performance improves.

136   Given the above deficiencies in the way in which Ms Heppolette’s PIP was conducted, the lack of access to an impartial overview of the process and the lack of relevant and sufficient professional development, feedback and review given to Ms Heppolette I find that she was not given a fair opportunity to improve her performance and was not given a fair go all round with respect to the handling of her PIP.  Having reached this conclusion it is my view that it was not open to the respondent to continue the process of investigation which resulted in the respondent forming the view that Ms Heppolette should be terminated.

137   If I am wrong in reaching this view, which I do not concede, I find that the investigation conducted by Mr Marshall into whether or not Ms Heppolette’s performance was unsatisfactory was inadequate.  It is my view that if Mr Marshall had undertaken a proper investigation of the application of the Policy and the requirements contained in the Policy he should have found that Ms Heppolette was denied the opportunity to have Ms Baillie as a support person, that Ms Heppolette’s PIP should have been extended on the basis that some performance improvements had been made by her and that Ms Heppolette’s PIP did not give her adequate support, feedback and access to professional development to assist her to meet the required performance standards.  I am also of the view that Mr Marshall erred when he interviewed Ms Cody and Ms Mony de Kerloy together as their comments and views about Ms Heppolette’s performance were critical to the outcome of the investigation and interviews about their conclusions about Ms Heppolette’s performance should have therefore been conducted separately.

138   Having reached the conclusion that the respondent did not properly manage Ms Heppolette’s substandard performance process I am required to determine the appropriate remedy in this instance.  After carefully considering the evidence about Ms Heppolette’s performance throughout all of 2004 and since that time and when taking into account my views on witness credit I am not satisfied that in all of the circumstances Ms Heppolette should be reinstated to her former permanent position with the respondent or transferred to a new school to be given another opportunity to demonstrate satisfactory performance as a teacher.

139   I am aware that Ms Heppolette has had an extensive career in teaching and she is a well qualified teacher.  Given this background it is surprising that Ms Heppolette has experienced ongoing and significant difficulties with her teaching and classroom management from 2004 onwards.  I have already found that Ms Heppolette experienced a range of difficulties teaching her classes in 2004 in the lead up to her PIP and I am of the view that these problems were not rectified during her PIP and thereafter when she had full-time assistance from Ms Bertei.  Ms Heppolette was given a substantial amount of feedback throughout 2004 about how to improve her classroom management and teaching skills by Ms Cody and Mr Morris and Mr Morris noted that notwithstanding this support Ms Heppolette continued to experience difficulties with behaviour management, lesson structure, teaching skills, active listening and setting deadlines for students as confirmed in his interview with Mr Marshall (see Exhibit A3/B91).  Additionally, Ms Bertei reviewed all of Ms Heppolette’s lessons in the period after Ms Heppolette’s PIP was completed until the end of 2004 and gave Ms Heppolette ongoing feedback and advice about how she could improve her teaching and she identified a substantial range of areas where Ms Heppolette continued to experience difficulties during Terms 3 and 4, 2004 (see Exhibit A3/B104-109 – interview with Mr Marshall).

140   I find that Ms Heppolette continued to experience difficulties in 2005 and 2006 in meeting the basic requirements of a teacher even though she received a substantial and inordinate amount of support, feedback and assistance during 2004 to improve her performance.  As I accept the evidence of Mr Nunn and Ms Freeman without reservation I find on the evidence that Ms Heppolette experienced performance difficulties during 2005 and 2006 when she taught at KSHS and BCC and I find that these problems were similar to the difficulties she experienced whilst teaching at PSHS.  I have no reason to doubt Ms Freeman’s assessment that Ms Heppolette’s performance was very unsatisfactory and not up to the required standard expected of a teacher when she taught at KSHS in Term 1, 2005 and that problems such as clarity of instruction and managing students were apparent from the commencement of the 2005 school year.  I also accept Mr Nunn’s claim that if Ms Heppolette continued to be employed at BCC a further PIP could be instituted against her as Ms Heppolette’s classroom management and teaching and learning skills were not up to the level required of a beginning teacher.  In reaching this view I note Mr Nunn’s evidence that Ms Heppolette was given assistance to improve her performance such as viewing demonstration lessons and I am of the view that Ms Heppolette had a fresh opportunity at BCC to demonstrate her abilities as a successful teacher but was unable to meet this challenge.

141   I reject the applicant’s complaint that Ms Heppolette was denied procedural fairness on the basis that she was not given an opportunity to respond to the performance difficulties the respondent maintained she experienced at KSHS and BCC.  Even though the specific details of the difficulties Ms Heppolette experienced whilst teaching at these schools and relevant exhibits were not put to Ms Heppolette during cross-examination Ms Heppolette was given an opportunity to give evidence about whether or not she was experiencing performance problems at these schools in both examination-in-chief and cross-examination and when asked if performance issues had been raised with her whilst teaching at these schools she denied that any concerns had been raised with her about her performance.  As I prefer the evidence of Ms Freeman and Mr Nunn to that of Ms Heppolette’s evidence with respect to Ms Heppolette’s performance I reject Ms Heppolette’s claims that no performance issues were raised with her when she taught at KSHS and BCC.  Furthermore, the applicant did not request the opportunity to recall Ms Heppolette after Ms Freeman and Mr Nunn gave their evidence to refute the evidence they gave about Ms Heppolette’s performance.

142   When applying the authorities relevant to a claim of unfair dismissal and when taking into account the Commission’s powers to review a decision to terminate an employee as a hearing de novo I find that since 2004 onwards Ms Heppolette has not been performing at the level required and expected of a teacher within the Western Australian government school system notwithstanding substantial ongoing support, assistance and feedback being given to her about how her performance could and should improve.  Even though the respondent is the major employer of teachers in Western Australia in all of the circumstances I find that the applicant’s claim that Ms Heppolette was unfairly terminated is without merit and should be dismissed.

143   An order will now issue dismissing the application.