WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00822

DELIVERED : Thursday, 13 October 2016

FILE NO. : U 211 OF 2015

Applicant

AND

Director General, Department of Education

Respondent

CatchWords : Industrial law (WA) - Termination of employment - Unfair dismissal - Teacher - Substandard performance - Performance issues - Performance assessment process - Australian Professional Standards for Teachers - Improvement Action Plan - Denial of transfer during IAP - Role of mentor and mentee

Legislation : Industrial Relations Act 1979 (WA)  s 29(1)(b)(i)

  Public Sector Management Act 1994 (WA)  Part 5, s 79(1), s 79(3)

  School Education Act 1999 (WA)  s 64, s 239

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr D Stojanoski of counsel

Respondent : Ms S Teoh of counsel and with her Ms J Coates

Reasons for Decision

1         Ms Stewart seeks reinstatement as a teacher.  She was dismissed on the ground that her performance was substandard.  She says that her performance was not substandard, and that the process leading to the decision to terminate her employment was flawed and unfair. 

2         The respondent says that prior to reaching a conclusion that Ms Stewart’s performance was substandard, she applied a fair and reasonable process and denies that the dismissal was either substantively or procedurally unfair. 

Substandard performance

3         Part 5 – Substandard performance and disciplinary matters of the Public Sector Management Act 1994 (PSM Act) applies to teachers employed by the respondent (see s 239 of the School Education Act 1999 (SE Act)).  Section 79(1) of the PSM Act defines substandard performance as: 

[T]he performance of an employee is substandard if and only if the employee does not, in the performance of the functions that he or she is required to perform, attain or sustain a standard that a person may reasonably be expected to attain or sustain in the performance of those functions.

4         Subsection (2) sets out the matters to which regard is to be had in determining whether the performance of an employee is substandard.  They are: 

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

(a) shall be had —

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

(ii) to any duty statement describing; and

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

the functions the employee is required to perform; and

(b) may be had —

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

(ii) to any duty statement describing; and

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

functions similar to those functions.

5         The duties and functions of teachers are set out in very general terms in s 64 of the SE Act, as well as clause 12 – Teachers – Duties, Responsibilities and Attendance Hours of the Teachers (Public Sector Primary and Secondary Education) Award 1993. 

6         Teachers do not have a job description form (see evidence of Director, Workforce Policy & Coordination, Ms Porter [14]), so the Australian Professional Standards for Teachers (the Standards) are used by teacher registration authorities, employers, universities and the State School Teachers’ Union of Western Australia (Porter [12]).  These standards were developed by the Australian Institute for Teaching and School Leadership (AITSL) and have been endorsed by all Directors General and Ministers for Education across Australia. 

7         The Standards are set out in four levels of Graduate, Proficient, Highly Accomplished and Lead.  There are seven Standards with sub‑standards. 

8         Ms Porter gave evidence that all teachers must be registered with the Teacher Registration Board of Western Australia (TRBWA) in order to practice teaching in Western Australia.  She also said: 

A teacher is required to transition to Full Registration with the TRBWA within 3 years of graduation by demonstrating that they meet the Professional Standards for Teachers in Western Australia at the Proficient Level. 

Witness statement of Christine Porter

Exhibit R6, [18]

9         She discussed the process of an assessment of an alleged substandard teacher as taking ‘place during the Improvement Action Plan (IAP) period which usually spans one school term and is intended as an additional opportunity for improvement with ongoing support’ (Exhibit R6, [24]).  An assessor visits the school on two separate days during the IAP period and undertakes classroom observations, interviews the teacher, the principal and other relevant personnel, and examines the teacher’s planning documents. 

Background

10      Ms Stewart commenced employment with the respondent as a teacher, predominantly in early childhood teaching, in 2007.  This was her first job as a teacher since qualifying.  She worked the whole of her employment with the respondent at Kambalda East Primary School, in the Goldfields Region of the State. 

2012

11      In 2012, the school principal, Ms Delfs, came to the view that there were a number of issues related to Ms Stewart’s performance that needed to be addressed.  I note at this point that all teachers are required to meet with their line managers to discuss their performance, to identify areas needing attention or to enhance their performance and ways to address them, including professional development and training.  This is to be distinguished from the process associated with substandard performance. 

12      Ms Delfs’ main concerns with Ms Stewart’s performance were: 

a. classroom management;

b. the provision of teaching and learning programs;

c. planning;

d. running effective classroom assessments;

e. teacher judgements relating to student work; and

f. relationships with colleagues and parents.

Witness statement of Denise Delfs

Exhibit R5, [46]

13      From April to November 2012, Ms Delfs, as Ms Stewart’s line manager, met Ms Stewart on a number of occasions and raised issues regarding Ms Stewart’s performance, provided her with both positive and negative feedback, and identified ways for Ms Stewart to address the concerns.  The meetings and discussions are documented in correspondence between Ms Delfs and Ms Stewart. 

14      Ms Delfs says that in 2012, Ms Stewart received a number of developmental and support opportunities, being: 

a. literacy planning support from Mrs Carmel Stock, Literacy Specialist;

b. attended WAPPA Early Years Writing Professional Learning;

c. work shadowing at O’Connor Primary School (with a focus on classroom management);

d. on‑going support from the Goldfields Behaviour Centre regarding a particular student;

e. support and advice from visiting teachers to inform Individual Education Planning for a particular student;

f. classroom management strategies foundation with Mr Matt Jackowyna;

g. professional learning in DFS working memory;

h. professional learning in Word Shark, Nessy;

i. professional learning in in KBPN Writing Moderation; and

j. whole staff professional development including 1, 2, 3 Magic behaviour management, the Standards, Australian Curriculum: English and on‑entry assessment data analysis.

Witness statement of Denise Delfs

Exhibit R5, [45]

15      Ms Stewart does not challenge that these developmental and support arrangements were put in place. 

16      Whilst Ms Delfs’ notes and correspondence contain some comments of encouragement and recognition of efforts Ms Stewart had made, Ms Delfs says that Ms Stewart did not show much improvement in 2012 despite these support and development arrangements. 

2013

17      In February 2013, Ms Delfs met with Ms Stewart and set out her view of Ms Stewart’s 2012 performance management plan and that she had met some of the performance indicators negotiated.  However, they were quite basic.  She also set out further work Ms Stewart was to do, and support she was to receive from a variety of individuals in relation to particular issues. 

18      Throughout 2013, Ms Delfs continued to meet with Ms Stewart, with her deputy, Mr Walker, and Ms Stewart’s support person, Ms Crothers.  These meetings were for the purpose of dealing with a range of performance issues.  Issues were raised, strategies to address them identified, resources and supports were provided or referred to.  Her subsequent performance was then reviewed, feedback provided, and new tasks and goals set. 

19      In the meeting on 16 May 2013, Ms Stewart asked for a different line manager, saying she felt she was never going to meet Ms Delfs’ expectations. 

20      On 31 May 2013, Ms Delfs wrote to Ms Stewart acknowledging that Ms Stewart’s ‘overall planning shows an emerging understanding of the connection between planning, lesson delivery and assessment’ (Exhibit R5, DD21).  She noted an area of improvement.  She also listed six issues that needed attention.  Ms Delfs also noted that Ms Stewart was struggling to keep track of improvements suggested, and maintain them.  She required Ms Stewart to take advice about planning from either herself or another named person. 

21      Ms Delfs also responded to Ms Stewart’s request for a different line manager to manage her performance.  She said that she believed that she was best placed to remain as Ms Stewart’s performance manager because of Ms Stewart’s specific needs as an early childhood teacher and ‘the journey we are undertaking to improve your performance’ (Exhibit R5, DD21).  She invited Ms Stewart to put her request in writing, stating her reasons if she was unhappy with Ms Delfs’ decision.  No written request was made. 

22      Assessments, feedback and direction to various supports and resources continued through to the end of October 2013. 

23      Ms Delfs says Ms Stewart had the following support and development opportunities in 2013: 

a. Ms Rachel Kelly in Term 1 2013 – Literacy Support;

b. Ms Lois Neagle in Term 2 2013 - Literacy Coach and Specialist from O’Connor Primary School, one on one for three months of 2013;

c. Australian Curriculum professional learning in English, Science and History; and

d. ECE Network professional learning.

Witness statement of Denise Delfs

Exhibit R5, [76]

2014

24      In 2014, Ms Delfs was concerned to improve the pre‑primary students’ prospects, given her concerns about them in Ms Stewart’s class.  Ms Delfs decided that it would be best to remove Ms Stewart from being in charge of her own classroom and to place Ms Stewart in Duties Other Than Teaching (DOTT) and teacher support roles.  As I understand it, this meant that Ms Stewart provided relief teaching for a number of other teachers to enable them to perform their other duties.  Those teachers might remain in the classroom, doing work such as planning, while Ms Stewart took the class.  In this way, Ms Stewart would also receive coaching and mentoring from Ms Manning and Ms Troode, whose classrooms she worked in. 

25      So for term 1 2014, there were no formal classroom observations of Ms Stewart, nor any performance management. 

26      On 30 April 2014, Ms Delfs met Ms Stewart to discuss and prepare Ms Stewart’s performance management plan.  Ms Delfs notes that: 

Her performance management plan provided for the following agreed support: 

a. access to Teacher Development School/Professional Learning Kindergarten;

b. workshadowing at Kalgoorlie Primary School;

c. attending Kambalda West District High School after school sessions in ICT;

d. access to Coaching Accredited Trainer observations;

e. professional learning in coaching conversations (Cambridge)

f. T3 Effective Classroom Observation PL (Cambridge);

g. release for peer observations;

h. mentoring from Mrs Troode; and

i. professional learning in providing feedback to students.

Witness statement of Denise Delfs

Exhibit R5, [82]

27      In this performance management plan, Ms Stewart acknowledged that she was only at ‘Graduate’ level in relation to Standard 2.6; between ‘Graduate’ and ‘Proficient’ level in relation to Standard 5.2, and between ‘Graduate’ and ‘Proficient’ level in relation to Standard 6.3, seven years after graduating as a teacher. 

28      Also in this meeting, they set goals for Ms Stewart to achieve. 

29      Ms Delfs also advised Ms Stewart that she, Ms Delfs, would be on leave in term 2 and she would not be able to observe Ms Stewart in the classroom during that term.  She would therefore resume doing so in term 3. 

30      In 2014, Ms Stewart utilised a number of development and support opportunities: 

a. afternoon sessions on School Development Planning and implementation in Literacy and Numeracy;

b. Effective Peer Observations training;

c. Peer coaching;

d. History Network;

e. IStar Lesson Design, Brightpath (Assessment Tool) Training;

f. Framework for Understanding Poverty Day 1;

g. ICafes @ Kambalda West DHS (using technology in the classroom);

h. ILearn @ Kalgoorlie PS and classroom visits (use of IPads in the classroom);

i. One World Global Education;

j. Teacher Performance and Development (AITSL);

k. Early Year Network (Kalgoorlie);

l. Mentoring from Mrs Manning in literacy;

m. Mentoring from Mr Walker in mathematics; and

n. Modelling of parent meetings by myself, Mr Walker and Mrs Manning.

Witness statement of Denise Delfs

Exhibit R5, [84]

31      Ms Delfs says that late in 2014, after a particular incident and following an observation of Ms Stewart in her classroom, she lacked confidence in Ms Stewart’s ability to manage classroom behaviour and in her overall performance as a teacher.  She reviewed the process that had been undertaken to that point and concluded that every avenue to improving Ms Stewart’s performance had been exhausted, including the provision of a number of mentors, professional learning, targeted observations and workshadowing.  She formed a preliminary opinion that Ms Stewart’s performance was substandard in spite of a significant amount of support and assistance being provided since 2012.  She sought advice as to what she ought to do. 

32      On 5 December 2014, Ms Delfs arranged to meet Ms Stewart with Mr Walker, and Ms Crothers as Ms Stewart’s support person.  She advised Ms Stewart that she believed Ms Stewart’s performance may be substandard in the areas of Standards 4 and 7 for a Proficient teacher level, and that she intended to refer the matter to the Regional Executive Director. 

2015 – The Improvement Action Plan and Investigation

33      On 14 January 2015, Mr Gillam, Executive Director, Workforce for the respondent, wrote to Ms Stewart advising her that he had received a report alleging that her performance may be substandard in regard to Standards 4 and 7; that he intended to cause an investigation, informing her of the possible penalties should there be a finding that her performance was substandard and inviting her to provide a written response to the allegations (Agreed document 3). 

34      On 22 January 2015, Ms Stewart responded, amongst other things, denying that her performance was substandard, setting out aspects of her teaching practice, referring to mitigating factors and requesting a transfer.  In respect of the mitigating factors and the transfer request, she wrote: 

My husband was diagnosed with prostate cancer at the beginning of the year and made redundant in 2014.  As such 2014 was a personally challenging year for me. 

I have been very honest with my Principal about my issues at the school, with the benefit of hindsight I suspect the Principal could not take my candour and has misunderstood my intention to seek her support on occasions.  Because of ongoing concern about my relationship I had requested a change of line manager but this was denied on the grounds that she felt that she was the best placed person to improve my performance.

With this in mind I request a transfer to West Kambalda and a fresh start with my performance assessment in 2015.  I believe this is an achievable request and can be managed as a smooth transition.  The other pre‑primary teacher would just have to travel five or so kms and remain in her existing home as she resides in the same geographical area.

Agreed document 4, page 3

35      Mr Gillam responded on 11 February 2015, saying that he had considered Ms Stewart’s response but it had failed to persuade him that he should not progress the matter.  He did not specifically respond to her request for a transfer. 

36      Mr Gillam proposed in his letter that if Ms Stewart responded denying the allegation of substandard performance, an investigation would be undertaken, between 23 March 2015 and 12 June 2015.  Given that Ms Stewart had just returned to her teaching role from providing DOTT relief in 2014, he proposed to give her a short period to readjust to the pre‑primary classroom environment.  As part of this, he proposed, subject to Ms Stewart’s agreement, ‘prior to commencement of the investigation period, to further assist [her] with some components of [her] alleged substandard performance’ by providing an external mentor. 

37      Mr Gillam then set out the investigation process itself, including the appointment of an assessor, Ms Fielder, and what she would do. 

38      He noted that during the period of support, investigation and observation, Ms Stewart was being provided with a further opportunity to improve her performance and demonstrate that she could attain and sustain a satisfactory level of performance as a teacher.  An IAP would be developed and implemented in conjunction with Ms Delfs.  The IAP would ‘clearly identify those areas in which [Ms Stewart was] required to show improvement, what support and assistance [would be] provided to [her and] how improvement [would] be measured and targets … met’.  Ms Stewart was informed that ‘[i]nformation gathered through the IAP process and any outcomes will be provided to the investigator and will form a part of the investigation’ (Agreed document 5). 

The IAP

39      On 16 March 2015, Ms Coates, Labour Relations Advisor with the Department, sent Ms Stewart an email providing information about the IAP period (Agreed document 6).  It included advice that: 

- The period of the IAP was designed to provide her with an opportunity to demonstrate her ability to ‘attain and sustain the required level of performance in the stated areas of alleged substandard performance’. 

- Ms Delfs would continue to support her, would meet her the next week to discuss the parts relating to the alleged substandard performance and how they relate to the Australian Professional Standards for Teachers; and would be included in the IAP. 

- For each assessment day, she would be required to provide certain documents.

- What would happen during each visit of the assessor. 

- Feedback from the assessor would be provided directly to Ms Delfs but not directly to Ms Stewart. 

- Ms Delfs had arranged for her to have a professional mentor and support person, Ms Manning (Skehan) during the IAP period.  The email said: 

… I encourage you to meet with Ms Manning to formulate an agreed format for the support to be provided.  The support can be, for example, the exchange of information and discussion about various aspects of teaching, including observing your teaching practice, or an offer for you to shadow one of her classes.  It is to your benefit to utilise this mentoring arrangement beyond this first meeting and to actively engage in the arrangement. 

- Concurrent with the IAP period, there would be an investigation into whether or not her performance was substandard.  This would be undertaken by Ms Butler. 

- The Department recognised that it was a stressful time and reminded Ms Stewart that the Department’s employee assistance programme was available to provide confidential counselling, and set out the telephone number of the service provider. 

40      The IAP for the period 23 March 2015 to 12 June 2015 was then established between Ms Delfs and Ms Stewart.  It dealt with Standards 4 and 7.  The focus areas, descriptors of satisfactory performance, strategies and support were set out. 

41      A variety of supports and assistance was provided to Ms Stewart, including support from Ms Colling from the Goldfields Behaviour Centre to assist her to ‘develop and action behaviour management planning for challenging students’ and other outcomes, as requested on 31 March 2015 (Exhibit R8, TMC2).  Ms Colling and a colleague observed Ms Stewart’s classes on 22 April 2015.  Her observations were that: 

a. there was not much behaviour management in the classroom at all;

b. there was very limited structure in the classroom;

c. the children were doing their own thing and not following instructions – for example, some of the children were listening, some were not and the children were not performing the same tasks;

d. the children did not have any boundaries – for example, there were no rules about sitting on the mat or how you behave on the mat and it was evident that the children did not know how to sit on the mat;

e. Mrs Stewart did not attempt to transition the children from one activity to the next;

f. there was no set routine – for example, there was no routine for sitting on the mat such as sit in a circle and put your hand up when you want to speak;

and

g. there were no behaviour management strategies in place or rule structure that was implemented consistently.

Witness statement of Toni Colling

Exhibit R8, [31]

42      In her evidence, Ms Colling gave examples of some of those issues. 

43      Ms Colling undertook a further observation on 1 May 2015, but says ‘that Mrs Stewart’s behaviour management of the class was the same as before, if not worse’, and gave examples (Exhibit R8, [38]).  In her evidence, Ms Colling also commented on Ms Stewart’s performance in accordance with Standard 4.1, 4.2 and 4.3.  She said: 

In my experience as a line manager, I have performed many observations of different teachers.  In my opinion, Mrs Stewart’s performance was at the lowest end of the scale.

Witness statement of Toni Colling

Exhibit R8, [46]

44      Ms Colling says that her colleague, Ms Adams, helped develop a behaviour management plan for Ms Stewart, and these strategies were modelled for Ms Stewart. 

45      Also, in March 2015, Ms Gooding, a Teacher Consultant, Classroom Management Strategies with Statewide Services within the Department of Education, was appointed to provide Ms Stewart with classroom management strategies.  Ms Gooding was the external mentor referred to in Mr Gillam’s letter of 11 February 2015.  She provided that support on four dates in March 2015. 

46      In May 2015, following an incident where Ms Stewart became very upset about the classroom’s Education Assistant’s work and spoke loudly and rudely to Ms Delfs, Ms Delfs decided to provide Ms Stewart with additional assistance, and an additional Education Assistant was to be allocated to Ms Stewart.  Ms Delfs says that due to Ms Stewart’s conduct in the incident, and knowing the pressure Ms Stewart was under, she arranged for her to be relieved and sent her home.  Ms Delfs did not report Ms Stewart’s behaviour. 

47      Ms Fielder, an AITSL accredited assessor, undertook an initial assessment of Ms Stewart’s performance on 24 March 2015 and a final assessment on 9 June 2015.  She reported that Ms Stewart’s performance had improved slightly between the two assessments but that her performance did not meet the Proficient level against any of the seven Standards.  Ms Fielder also presented a Summative Assessment report on 16 June 2015, summarising her assessment of Ms Stewart’s performance in relation to Standards 4 and 7 (Agreed document 11). 

48      Ms Delfs continued to manage Ms Stewart’s performance by meeting with her to discuss her observations of Ms Stewart’s classroom and her documentation. 

The Investigation Report

49      Ms Butler, Principal Labour Relations Advisor, prepared a report to Mr Gillam dated 6 October 2015 (Exhibit R11, MB3).  In this, she brought together the history of the matter and the reports available as a result of steps taken in the IAP and the assessments, and dealt with issues raised with her by Ms Stewart.  She concluded that there was ‘reasonable evidence for [Mr Gillam] to consider making a finding that Ms Stewart’s performance is substandard against’ Standards 4 and 7.  Mr Gillam then received advice from the Manager Labour Relations, and formed a preliminary view that Ms Stewart’s performance was substandard. 

50      Following receipt of the investigation report and advice, Mr Gillam wrote to Ms Stewart a letter dated 22 October 2015.  He informed her that based on consideration of all the documentation, his ‘initial preliminary view’ was confirmed, that Ms Stewart’s performance was substandard.  He also advised that he was of the view that termination of employment was the most appropriate course of action.  He advised Ms Stewart that if she wished to respond to either the findings or the proposed sanction, she was to do so within 10 working days. 

51      Ms Stewart’s lawyers responded by letter dated 17 November 2015 asserting that there was an ‘interpersonality conflict’ between Ms Stewart and Ms Delfs, and challenged the procedural fairness of the process in that Ms Stewart had been assessed against all of the Standards, not just those against which she was alleged to be substandard.  It also raised a concern that Ms Stewart’s support person and mentor, Ms Manning, moved away from the school approximately a week after the IAP and substandard performance process began and another mentor was not provided, and that Ms Stewart ‘received no further support during the process in that regard’.  It said that had Ms Stewart’s request for a transfer to another school prior to any allegations of substandard performance been granted, she may never have been placed on a substandard performance process, or, if she had, the process would have been able to have been undertaken objectively. 

52      The letter also referred to findings of the Expert Review Group (ERG) report into the school in 2012, asserting that this made it reasonable to assume that Ms Stewart had not been properly managed. 

53      It also asserted that the respondent had not taken account of the mitigating factors raised in Ms Stewart’s letter of 22 January 2015. 

54      It then invited the respondent to discontinue the process, or alternatively, to transfer Ms Stewart to another school so that the process could be undertaken again, without Ms Delfs’ involvement. 

55      Finally, the letter asked Mr Gillam to indicate what consideration he had given to the penalty other than dismissal. 

56      Mr Gillam wrote to Ms Stewart a letter of 27 November 2015, terminating Ms Stewart’s employment.  In it, he said that he had taken account of Ms Stewart’s lawyer’s letter but that he was not convinced by any of its comments that he should amend his decision. 

The applicant’s grounds

57      The grounds in support of the application as filed and expanded can be distilled as: 

1. Ms Stewart’s performance was not substandard. 

2. The process leading to the dismissal was unfair because:

(a) There was a reasonable apprehension of bias by Ms Delfs towards Ms Stewart.  As Ms Delfs oversaw the IAP and was involved in the substandard performance process, those processes are unfair. 

(b) Ms Delfs was associated with a number of people who were supposed to support or assess Ms Stewart.  These associations were due to Ms Delfs’ husband being the principal of the school where those people were located. 

(c) Ms Gooding and Ms Fielder, two of the people who were to support or assess Ms Stewart, had a conflict of interest and bias. 

(d) Ms Delfs initially, and the respondent subsequently, unreasonably refused Ms Stewart’s request for a change in line manager and a transfer to another school.  That change of line manager and transfer would have had the effect of allowing Ms Stewart to be objectively assessed, or she may never have been placed on a substandard performance process. 

(e) The person appointed as Ms Stewart’s mentor and support person in the IAP, Ms Manning, moved away from the school very soon after she commenced in that role, and was not replaced. 

(f) The allegation of substandard performance related to two particular standards within the Standards at Proficient Teacher level.  However, Ms Stewart was assessed against all seven Standards.  This denied her procedural fairness. 

3. In 2012, immediately prior to Ms Delfs beginning to raise issues regarding Ms Stewart’s performance, in the ERG report, the school had been the subject of criticism regarding its management in a number of areas.  This is said to lead to a conclusion that the applicant was not properly managed and given the opportunity to develop her skills.  Therefore, if there is any substandard performance, the responsibility for that lay with the school’s management, that is, with Ms Delfs. 

4. The respondent failed to take account of Ms Stewart’s personal circumstances. 

5. Ms Stewart was not invited to bring a support person to the meeting on 1 December 2015, at which her employment was terminated. 

6. The respondent failed to take account of the range of penalties available under s 79 of the PSM Act when deciding to terminate the employment. 

Issues and conclusions

58      The test to be applied to a claim of harsh, oppressive or unfair dismissal is whether the employer has abused its right to dismiss (Miles & Others t/as The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch (1985) 65 WAIG 385; (1985) 17 IR 179). 

59      The various factors which might make a dismissal unfair are set out by Heenan J in Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893 at [72] – [73]: 

72 Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which may constitute harsh, oppressive or unfair dismissal can be given. Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other employment of the individual employee, and the employer’s treatment of past incidents and of other employees. Where misconduct is alleged or relied upon there will be a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate any mitigating circumstances. Factors such as these going to the reasons for the particular dismissal are frequently referred to in the authorities in this area as matters of "substantive" fairness, as opposed to issues of ‘procedural’ fairness which relate to the manner in which the employee was notified of the proposed termination, what opportunity, if any, he or she was given to respond and the time and method employed in effecting the termination. This distinction between substantive and procedural issues going to the question of whether or not a particular dismissal was harsh, oppressive or unfair can be useful in certain cases but it entails the danger of regarding the statutory test as having separate application and different meanings in different contexts. Such an approach must be rejected because, however the issue may arise, the decision for the Commission, or a court in any particular case, is simply whether the individual termination of employment was harsh, oppressive or unfair and that test must always be applied without any gloss. For a criticism of how the distinction between procedure and substance in this area is elusive and how it may be unhelpful and contrary to the true meaning of the statutory phrase, see McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Ltd (supra) at 465.

73 In this State a test which has been adopted by the Commission, and approved by this Court, is to consider whether the dismissal amounted to an abuse of an employer's right to dismiss thus rendering the dismissal harsh or oppressive - Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635; Miles v Federated Miscellaneous Workers' Union of Australia, Hospital Service and Miscellaneous (WA) Branch (1985) 17 IR 179; 65 WAIG 385, IAC and Robe River Iron Associates v The Association of Draughting, Supervisory and Technological Employees, WA Branch (1987) 76 WAIG 1104, IAC. In cases where the alleged harsh, oppressive or unfair nature of the dismissal relates to the procedure followed by the employer in effecting the termination of employment it has been held in this State that a failure to adopt a fair procedure by the employee can lead to a finding that the dismissal was harsh, oppressive or unfair - Bogunovich v Bayside Western Australia Pty Ltd (supra), but a lack of procedural fairness may not automatically have this result - Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891 IAC.

(Emphasis added)

60      I also note that this is a matter referred to the Commission in the circumstances where s 78(2) of the PSM Act applies to the dismissal.  Section 78(5) provides that: 

If it appears to the Industrial Commission or the Public Service Appeal Board that the employing authority failed to comply with a Commissioner’s instruction or the rules of procedural fairness in making the decision or finding the subject of a referral or appealed against, the Industrial Commission or Public Service Appeal Board —

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

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

Assessment of the evidence

61      I found Ms Delfs to be a truthful witness.  Her evidence was consistent and plausible, and was supported by other evidence.  She is highly thought of by her colleagues and appeared to be very professional. 

62      By contrast, Ms Stewart appeared to misunderstand questions asked of her on a number of occasions in cross‑examination.  She gave the impression of not having good comprehension.

63      Ms Stewart made claims about the comments contained in the ERG report without having read the report itself.  She also accepted that the report referred to perceptions of preferential treatment as referred to in the report are not the same as actual preferential treatment. 

64      The evidence regarding Ms Stewart’s level of understanding and her taking a very literal approach to instructions given to her, supports my own observations of her as misinterpreting or misunderstanding in forming ideas and views, and of taking things very literally.  I do not find that she was dishonest.  However, where her evidence conflicts with that of Ms Delfs and Mr Walker in particular, I prefer the latter evidence. 

Ground 1 – Ms Stewart’s performance

65      Ms Stewart called a number of witnesses to give evidence of their experience of her performance.  None of them, with the exception of Kathryn Ryland, was a teacher, nor did they have any real understanding of the requirements of the profession or of the Standards. 

66      Shelly Hepworth was a Teacher’s Aide at the school in 2012 and 2013, and worked with Ms Stewart while Ms Stewart’s Teacher’s Aide was away on sick leave. 

67      She assumed the Standards applied to anyone working at the school, and was not aware that they applied to teachers and not to Education Assistants.  She accepted that she was not qualified to assess a teacher against the Standards. 

68      Lana Normandale knows Ms Stewart because Ms Stewart taught her son.  However, it is not known when this was.  Ms Normandale is not a teacher or involved in teaching. 

69      Jane Doyle’s daughter was in Ms Stewart’s classroom in 2010.  Ms Doyle gave a witness statement in which she, too, commented on Ms Stewart’s performance in respect of Standard 7.  However, this evidence is of no probative value as Ms Doyle’s experience of Ms Stewart related to a period well before Ms Stewart’s performance was being managed or assessed. 

70      Ms Crothers was a Teacher’s Aide.  I will deal with the problems associated with her evidence later.  However, I give it no weight. 

71      Carmen Bowler’s son was in Ms Stewart’s class in 2015.  There is no evidence to indicate that she is in any way qualified to comment on Ms Stewart’s performance. 

72      Kathryn Ryland worked as a teacher in both primary and secondary schools.  Her experience of Ms Stewart’s teaching was for a period of one lesson, as part of a joint peer teaching programme between the high school at which she taught and Kambalda East Primary School. 

73      Ms Ryland’s peer observation of Ms Stewart is of very little assistance in assessing Ms Stewart’s competency given its duration.  Ms Ryland was not aware that Ms Stewart was in charge of a class that was not her own which had its own protocols, behavioural approaches and other regimes set in place, not by Ms Stewart but by the teacher whose class it was.  Ms Ryland also assumed that Ms Stewart had set the classroom up for the morning. 

74      Ms Stewart also suggests that if she was such a poor teacher, she would not have been involved in a peer observation project where Ms Ryland observed her classroom for the purpose of that teacher gaining benefit.  Ms Delfs gave evidence that there was no reason to exclude Ms Stewart from such a project; it did not relate to her performance management.  Ms Stewart may also have gained some insight and benefit from this project by observing another teacher, and by having to reflect on her own teaching as part of that process. 

75      Ms Ryland gave her own assessment of Ms Stewart’s performance as part of her evidence, but it is clear that she is not qualified as an assessor nor is she sufficiently familiar with the Standards as they relate to the requirements of teaching at the level required of Ms Stewart. 

76      On the other hand, a number of witnesses who were experienced as teachers, assessors and teacher managers, gave extensive evidence of Ms Stewart’s performance. 

77      Ms Fielder is an accredited assessor in Early Childhood Education.  She assessed Ms Stewart’s performance as not meeting the standard of proficiency required of a teacher of more than four years’ experience, in not merely the two Standards against which Ms Stewart’s performance was alleged to be substandard, but in relation to all seven Standards, when Ms Stewart had been a teacher for eight years. 

78      Ms Delfs, having worked with Ms Stewart for a number of years, and attempting to improve Ms Stewart’s performance, believed her performance to be substandard in respect of the two Standards and hence instigated the IAP and the investigation. 

79      Mr Walker, a teacher and administrator for more than 25 years, described Ms Stewart as being one of the weakest teachers he had seen in over 25 years of teaching (ts 269). 

80      Ms Manning, who worked with Ms Stewart for some time prior to the IAP, described Ms Stewart as one of the worst in her experience (ts 355). 

81      Ms Toni Colling, a teacher and school administrator for more than 20 years, after observing Ms Stewart’s classroom management, described her performance as being ‘at the lowest end of the scale’ (Exhibit R8, [46]). 

82      In all of the circumstances, the evidence of witnesses called by the respondent about Ms Stewart’s level of performance is consistent and was not undermined in cross‑examination.  I accept that evidence. 

83      Therefore, I have no hesitation in concluding that Ms Stewart’s performance, as a teacher of eight years, was substandard as alleged.  This was so after a significant period of attempts to improve her performance from 2012 to 2015, by Ms Delfs, by the assistance of a number of other people, and by training and development opportunities. 

84      In accordance with the definition of substandard performance under s 79(1) of the PSM Act, she did not, in the performance of the functions she was required to perform, attain or sustain a standard that a person may reasonably be expected to attain or sustain in the performance of those functions.  This assessment is made against written work standards relating to the manner of performance of the functions of a teacher, being the AITSL Standards for a teacher at Proficient level. 

85      This ground is not made out. 

Ground 2(a) – a reasonable apprehension of bias against Ms Stewart by Ms Delfs?

(i) Allegations of targeting by Ms Delfs

86      Ms Stewart cites a number of incidents as being the basis of her claim of apprehended bias.  The first is that in 2012, Ms Stewart says she reported to the Department’s Standards and Integrity section that she had observed Ms Delfs shake a student.  She believed that because of this, Ms Delfs disliked her and began to target her and question her performance. 

87      Mr Donald Brown, then Coordinator Regional Operations, Goldfields Education Office, says that Ms Stewart sent an email to the mandatory reporting service of the Department of Child Protection (DCP).  Ms Stewart was not aware that mandatory reporting to DCP relates only to child sex abuse and thought it related to abuse generally. 

88      Ms Delfs does not dispute that the event occurred.  She says that she received a text message from Ms Stewart stating that the student’s father had rung to complain that his son had been shaken.  Ms Delfs says that she was not aware who made the complaint to Standards and Integrity – that she may have reported it herself or she may have called the District Office about it.  The complaint was not pursued by the parent, and Standards and Integrity took no further action on the issue. 

89      Ms Stewart refers to the second incident which occurred in a staff meeting in about 2013, when ‘Ms Delfs asked the staff to be honest and give her feedback on how they felt when she herself gave feedback to staff’ (Exhibit A5, [28]).  Ms Stewart said that Ms Delfs told the meeting that her supervisor had told her ‘she was very bad at giving feedback to people.  So she asked the forum before the activity…’ (ts 47).  Ms Stewart says she responded in front of the other staff that Ms Delfs would mostly ‘give a negative at the end of the feedback sentence’ (Exhibit A5, [28]).  She believed Ms Delfs did not take this ‘in a good way’.  She says that she believes that since that ‘time Ms Delfs began to seriously target’ her ‘and it became apparent that an interpersonality conflict had developed’ (Exhibit A5, [29]). 

90      Ms Delfs’ explanation is that the ERG report, to which I will refer later, had found that the feedback process at the school was inadequate and a recommendation was made to ‘refresh’ the school’s performance in that regard. 

91      She says that soon after the ERG report was released, on 1 and 2 February 2013 there was school planning day.  The agenda included a session headed ‘Ways to give Feedback:  Peer Review to be presented by Denyse’ (Ms Delfs).  Ms Delfs says that she asked the group how they thought she gave feedback.  She says she did not recall what Ms Stewart’s feedback was, but she asked Ms Stewart’s permission to share her feedback to her with the group.  She says she did not take any response personally. 

92      I accept Ms Delfs’ explanation.  She asked for a response as part of a training session.  Having obtained a response from Ms Stewart, she shared it with the whole group.  It is unlikely, in those circumstances, that she took the response as an affront. 

93      The issue for the Commission is whether, as Ms Stewart asserts, Ms Delfs commenced targeting Ms Stewart as a consequence of these issues. 

The evidence regarding Ms Delfs’ attitude

94      Ms Hepworth was a Teacher’s Aide at Kambalda West District High School in 2011 and at Kambalda East Primary School in 2012 and until June 2013, for 0.6 FTE.  She would fill in as Teacher’s Aide in Ms Stewart’s classroom when Ms Stewart’s Teacher’s Aide was away.  She was unable to indicate how often that was. 

95      Ms Hepworth said she found Ms Delfs very difficult to talk to and, in her experience, ‘Ms Delfs used to be nice to your face but behind your back she would not be a very nice person’ (Exhibit A4, [8]).  She says she was able to witness and was aware that Ms Delfs did not like Ms Stewart and that a personality conflict ‘likely’ existed (Exhibit A4, [9]). 

96      Ms Hepworth said in her witness statement that she was aware in 2012 that an ERG ‘conducted a performance review of [the school] and that at the time it failed a performance review’ (Exhibit A4, [11]).  She also said that she ‘did not notice any changes since the [time] the ERG conducted a performance review … until the time I left the school in 2013.  Nothing in my view changed’ (Exhibit A4, [12]).  Yet, in cross‑examination, she said she did not read all of the ERG report and cannot remember what formal findings were made.  She did not know what strategies were implemented as a result of the ERG ‘but I do know there was a – a big change within the school, you know, after the report’ although she could not recall what the change was.  When pressed on the difference between the evidence in the witness statement and her last comment, she said that there were changes put in place but she did not really notice it (ts 29).  She says she was told that the school was not up to standard and that it was below average.  She saw that as being that the school had failed. 

97      I found Ms Hepworth’s evidence to be of little probative value.  Her credibility was undermined by her comments about matters not within her knowledge or expertise.  It was also undermined by her firstly, denying in her witness statement that there were changes after the ERG report and then saying in her evidence that there was a big change within the school, and her comments referred to earlier about the teaching standards. 

98      Ms Ryland gave evidence in [20] of her witness statement that she came to believe that if Ms Delfs did not like someone, she would target them.  However, Ms Ryland acknowledged that this and another comment negative towards Ms Delfs were based on hearsay or gossip (ts 129 – 130). 

99      Ms Crothers’ evidence was likewise of no probative value.  In fact, it was also very problematic.  She gave evidence by video link from Kalgoorlie.  A witness statement signed by her but undated was filed on 20 June 2016.  After a number of questions in cross‑examination, it became clear that Ms Crothers was referring to a witness statement she had brought with her to the hearing, which differed in some significant aspects from that which had been filed. 

100   Ms Crothers’ witness statement filed on 20 June 2016 contained [23] in which she said: 

I am aware Ms Stewart requested a transfer to another school because of her interpersonality conflict with Ms Delfs …

101   Yet in the witness statement she had brought with her, which she had signed and also dated, and also read out (at ts 142 – 143) she said: 

It would not surprise me if Ms Stewart requested a transfer due to the treatment she was receiving at the hands of Ms Delfs. 

102   Ms Crothers also indicated that she did not remember the date of the meeting she had referred to in [23] as being 16 May 2013, and said she probably got that date from Ms Stewart’s notes. 

103   In [24], she said: 

Ms Delfs acts in a professional manner, but emotion wise she wears staff down and does not have good interpersonal skills.  If Ms Delfs likes you, she gets on well with you, but if she does not then she will make your time at East Kambalda Primary School very difficult.

104   However, in cross‑examination, Ms Crothers said she always got on well with Ms Delfs, she never had a problem with her and she had always been there when she needed to talk to her (ts 139 and 141). 

105   In [25] of her witness statement, Ms Crothers was critical of Ms Delfs’ conduct regarding another teacher, although she cannot recall the date, she agreed that it happened in or before 2010 (ts 280).  She also accepted that she did not know the circumstances surrounding the incident, but accepted that Ms Delfs was doing her job. 

106   She had said she was wary of Ms Delfs because of that incident but said in cross‑examination that she would be wary ‘like I’d be wary of, um, any boss’ (ts 141). 

107   In relation to Ms Delfs, Ms Crothers said in [22] of her witness statement that: 

If Ms Delfs decides she does not like you as a teacher or staff member, then she will be out to get you in any way possible. 

108   When she was asked to read out [22], Ms Crothers suggested that that was not what she intended and she was asked how it should be worded.  She said, ‘I don’t know.  That just seems really harsh.  That’s not the thing that I was trying to get across, that – that – I don’t know what to say about that.  It’s not what I – this is not what I am here about and it just seems like it’s getting out of my hands and I just don’t know how to control it’ (ts 272).  She also said in respect of [22] that it was people who said things to her second hand, ‘I didn’t witness it, so I probably shouldn’t have said it in the first place’ (ts 280). 

109   Ms Crothers explained the process of her witness statement being developed by way of a number of drafts being sent to her for her to correct and return, and of her signing both the one that she referred to initially by video link and the one that was filed.  She says ‘obviously I shouldn’t have done it because I really don’t know what I am doing.  This has just gotten so far away from what – I’m not here to attack Mrs Delfs.  I don’t want to do that.  I wanted to support Jean [Stewart]’ (ts 278).  She eventually said, ‘I shouldn’t have agreed to do this’. 

110   Ms Crothers commented in the witness statement filed in the Commission about the so called ‘interpersonality conflict’ between Ms Stewart and Ms Delfs.  Yet her evidence in cross‑examination was that performance meetings can be difficult.  Ms Crothers accepted that during the meetings she attended with Ms Stewart as her support person, Ms Delfs was quite professional. 

111   She said that in one meeting, Ms Stewart asked for time out as she was upset and Ms Crothers asked her if she wanted to go and have a drink of water, but Ms Stewart decided to stay in the room.  Ms Stewart never requested to not go to class following a performance meeting because she was upset. 

112   Ms Crothers agreed that she and Ms Stewart were friends outside of school and Ms Stewart confided in her. 

113   Therefore, the evidence said to be critical of Ms Delfs brought by the applicant and her witnesses to support her own assertions about Ms Delfs, has been significantly undermined, if not completely negated. 

114   On the other hand, the respondent called evidence from a number of witnesses who support Ms Delfs’ approach as being quite professional and proper towards Ms Stewart. 

115   Mr Walker, the deputy principal, described Ms Delfs as being ‘calm, professional and compassionate’ in performance meetings with Ms Stewart.  He said he felt that she was trying to help Ms Stewart improve.  He recalled Ms Stewart being upset on a couple of occasions but that Ms Delfs would always ask her if she needed some time (Exhibit R7, [17]). 

116   Mr Walker also said that she was the best principal he had worked with and he considered her to be tough but fair and very professional ([42]).  He never saw any bias or preferential treatment by Ms Delfs and did not witness any conflict between Ms Delfs and Ms Stewart, except that Ms Stewart may have been a bit cold and gave an abrupt answer to questions in meetings. 

117   Under cross‑examination, Mr Walker said that during some performance meetings, Ms Stewart would be tearful.  He said that performance conversations were difficult conversations, and contained hard information to hear.  However, Ms Delfs would always make sure Ms Stewart was alright, and would see if Ms Stewart needed some time. 

118   Ms Manning, who was appointed as Ms Stewart’s support person during the IAP commencing 23 March 2015, says that she had a professional, not social, relationship with Ms Delfs.  She did not witness any conflict between Ms Delfs and Ms Stewart, nor did she observe any bias or preferential treatment by Ms Delfs.  Her evidence was largely unchallenged and I found her to be a credible witness. 

(ii) Timing of meetings

119   While it was not a ground of the application, both Ms Stewart and Ms Crothers gave evidence that they believed Ms Delfs deliberately arranged meetings for the issues of Ms Stewart’s performance to be discussed prior to school and that this left Ms Stewart required to go into class in a distressed state.  However, in cross‑examination, Ms Stewart accepted that meetings needed to be either before or after class.  She also agreed that she never asked to be relieved of the obligation to attend class after a meeting due to being upset. 

120   The evidence demonstrates that meetings were arranged at a number of different times during the day, according to the availability of Ms Stewart, her support person, Mr Walker and Ms Delfs. 

121   Further, there was an occasion as outlined earlier in [46], outside of such a meeting, where Ms Stewart became angry and distressed, blamed Ms Delfs for problems she was experiencing and was verbally abusive towards Ms Delfs.  Ms Delfs handled this situation very professionally, and on seeing Ms Stewart’s distress, directed her not to return to the classroom but to go home, and she arranged for another teacher to take over from Ms Stewart.  Directing her to go home was not a punitive measure, but to assist Ms Stewart to recover from her emotional outburst and to not place her in a situation of being in a classroom while she was in that state. 

Conclusions regarding reasonable apprehension of bias by Ms Delfs

122   There is no evidence that Ms Delfs commenced targeting Ms Stewart after either of the two incidents she relies on.  Ms Delfs commenced detailed management of Ms Stewart’s performance in April 2012.  The incident regarding the report of shaking the student occurred in August that year (Exhibit R9, DKB 1), and the comment regarding giving feedback was made in February 2013 (Exhibit R5, [21]). 

123   Given the evidence, I find that there is no basis for concluding that there was a reasonable apprehension of bias by Ms Delfs towards Ms Stewart.  Rather, she had difficult conversations where she was attempting to manage and improve the performance of a teacher under her management.  As Mr Walker says, such information is difficult to hear. 

124   Having observed Ms Stewart as she gave her evidence and having noted the reports about her performance, it is clear to me that Ms Stewart has been searching for reasons why she has come to the point in her career where she has been found to be of substandard performance, and is attributing blame to many others.  There is no evidence beyond Ms Stewart’s assertion that Ms Delfs targeted her.  In fact, her evidence is that Ms Delfs went to a considerable amount of effort to identify areas of Ms Stewart’s performance that required improvement; she provided her with many opportunities for learning and development; gave her positive and negative feedback on her efforts as the process continued; provided her with support and guidance, and gave her every reasonable opportunity to improve.  Yet, in spite of that, Ms Stewart’s performance remained substandard.  It was objectively assessed by Ms Fielder as not meeting the professional standards for a proficient teacher. 

125   As I noted earlier, Mr Walker, Ms Colling and Ms Manning all say that Ms Stewart was one of the weakest teachers in their experience or was at the lowest end of the scale.  Therefore, Ms Delfs’ assessment of Ms Stewart’s performance was correct, and her approach was objective. 

Ground 2(b) & (c):  Ms Delfs’ association with a number of people through her husband being the principal of a school where those people were located

(i) Ms Gooding

126   In 2014, Ms Gooding commenced as a part‑time Teacher Consultant, Classroom Management Strategies (CMS), Statewide Services for the Goldfields Education Region.  At that same time, she held a part‑time teaching position at O’Connor Primary School.  In her CMS role, she said she works autonomously but reports to a line manager located in Perth. 

127   In her capacity as a teacher, she reported to the principal of O’Connor Primary School, Mr Steve Delfs, who is Ms Delfs’ husband. 

128   In 2015, she ceased her part‑time teaching role and worked full‑time as a Teaching Consultant.  Ms Gooding became involved in providing support to Ms Stewart after being contacted by Ms Delfs.  This was prior to the commencement of the IAP process, not during it. 

129   Her involvement with Ms Stewart was part of what Mr Gillam had advised Ms Stewart in his letter of 11 February 2015 would be a period of readjustment to the classroom after her time providing DOTT relief in 2014.  Ms Delfs chose Ms Gooding because the only other available CMS consultant was not at the same level of accreditation as Ms Gooding, and was located at Ms Stewart’s school.  Having assistance from someone located outside of the school was seen by Ms Delfs as being neutral. 

130   Ms Gooding was to be an external mentor, to observe Ms Stewart’s classroom and provide her with confidential feedback.  She observed Ms Stewart’s classroom on four occasions in March 2015. 

131   By the time she undertook this mentoring, Ms Gooding, although still located at O’Connor Primary School, was no longer a teacher reporting to Mr Delfs. 

132   Ms Stewart gave evidence of feeling that Ms Gooding was likely to be biased against her for the reason only that Ms Gooding’s principal was Ms Delfs’ husband.  Aside from this feeling, there is nothing to support a suggestion of anything untoward in Ms Gooding’s involvement.  On the contrary, Ms Gooding’s role was to assist Ms Stewart and to provide her with confidential feedback and guidance.  She was not there to assess her, to report on her in any way or to do anything other than to give Ms Stewart the benefit of her assistance. 

133   As to any relationship between Mr and Ms Delfs and Ms Gooding, the evidence is that they met once on 8 August 2015, so that Ms Gooding could obtain their advice about Malta, where she was preparing to visit.  This was approximately five months after her last contact with Ms Stewart.  There is no other evidence of a personal, as opposed to professional, relationship between them. 

134   Ms Stewart’s suspicion is baseless, and builds on her baseless suspicion of others who sought to guide and help her. 

(ii) Ms Fielder

135   Ms Fielder was appointed by Mr Gillam, not by Ms Delfs. 

136   Ms Stewart says that Ms Fielder’s position as being from O’Connor Primary School where Mr Delfs was principal, compromised her objectivity.  Ms Stewart wrote to the Department objecting to Ms Fielder undertaking the assessment.  She did so on the basis of a possible conflict of interest due to a purported friendship between Ms Fielder and Ms Delfs. 

137   Ms Fielder was asked to provide a statement to Labour Relations of the Department of Education as to the nature of the relationship, if such existed, and whether she believed a conflict existed as a result of the nature of the relationship which could result in bias in her assessment of Ms Stewart’s teaching practice. 

138   Ms Fielder provided a statement to the Department noting that she had known Ms Delfs since 2003 in a professional capacity.  She set out the professional contacts that they had had, and described them as sporadic and needs‑based in a reactive way.  She said she visited Kambalda Primary School on occasions and had met Ms Stewart on a number of occasions, both at her school and at professional events in the network. 

139   She also set out that she had known Mr Delfs over a number of years and had been under his direct leadership for the past six years.  She described their working relationship as excellent and that this working relationship had occasionally called on them to attend similar social events that may have involved their partners but that they did not have a close social network. 

140   She also noted that Mr and Ms Delfs have children of a similar age group to her own and that given the size of the town, they occasionally see each other at social events, however, they are not in a close social network.  She also disclosed a recent social interaction between her daughter and Ms Delfs, whereby her daughter sought advice before travelling overseas to an area where Ms Delfs had previously travelled. 

141   On the basis of this advice, the Department decided to proceed to use Ms Fielder to undertake the assessment. 

142   Ms Fielder is one of only three AITSL accredited assessors in the Department of Education, and the only early childhood education assessor in the Goldfields Region. 

143   Ms Stewart has done no more than raise a suspicion regarding Ms Fielder’s relationship with Ms Delfs through her husband, but I am satisfied with Ms Fielder’s explanation and her professionalism, particularly as she gave her evidence. 

144   I find that there was no personal relationship or allegiance between Ms Fielder and either Ms Delfs or her husband which might raise any reasonable question of bias or conflict on Ms Fielder’s part, such that she should not have undertaken the assessment of Ms Stewart’s performance. 

145   In those circumstances, I find that these grounds are not made out. 

Ground 2(d):  Request for a new line manager and a transfer

146   Ms Stewart asked for a new line manager to manage and assess her performance.  This was on 16 May 2013, during the performance management process and well before the IAP.  Ms Delfs refused the request but invited Ms Stewart to provide reasons in writing for her request.  Ms Stewart did not do so, nor did she raise the matter with the Department until nearly two years later, in January 2015 when she responded to Mr Gillam’s letter in which he advised her of the allegation that her performance was substandard. 

147   The reasons given by Ms Delfs for not changing Ms Stewart’s line manager are that she was the person within the school with the most experience and training in the area that was being assessed – that is, early childhood education.  Mr Walker was not appropriate given his areas of work in upper primary school.  That is a valid reason. 

148   Further, there is no evidence of bias or prejudice on Ms Delfs’ part.  The evidence makes clear that Ms Delfs is highly professional and objective.  There is no evidence that she was harsh or unfair to Ms Stewart.  She was an appropriate person to manage Ms Stewart’s performance. 

149   As to the issue of a transfer, as mentioned above, this was not raised by Ms Stewart until January 2015. 

150   In his evidence, Mr Gillam noted that Ms Stewart had not stated any grounds or provided any evidence to suggest that Ms Delfs had treated Ms Stewart unfairly or was biased against her.  All she wrote in her letter was that she suspected Ms Delfs could not take her candour.  More would be needed for a transfer to another school to be warranted during a substandard performance process.  He explained the desirability of not transferring an employee during a substandard performance process or investigation without good reason.  The evidence available to him of the process to that point did not indicate an issue.  Likewise, these are valid reasons to deny Ms Stewart’s request for a transfer. 

151   Finally, I note that during closing submissions, counsel for the applicant asserted that ‘the applicant made numerous’ requests for a temporary transfer for the purpose of her performance being tested (ts 387).  There appear to have been two, not numerous, such requests.  The first was made in Ms Stewart’s response to Mr Gillam’s letter advising her of the allegations that her performance was substandard and inviting her response (Agreed document 4).  The second was in response to Mr Gillam’s advice that he had formed the view that the performance was substandard (Agreed document 13). 

152   There is no evidence that either a new line manager or a transfer would have made any difference to the outcome, or that their refusal was unfair. 

Ground 2(e):  Ms Manning as support person

153   Ms Manning was appointed as Ms Stewart’s support person and mentor as part of the IAP, commencing on 23 March 2015. 

154   Ms Manning had previously observed Ms Stewart teaching as part of her DOTT relief in 2014. 

155   On 10 March 2015, before the formal commencement of the IAP, at her own instigation, Ms Manning approached Ms Stewart and mentioned that she was to be Ms Stewart’s support person.  She then spent some time working with her and by email on 11 March, sent Ms Stewart a copy of the minutes of their meeting (Exhibit R12, SMS 5). 

156   On Thursday, 12 March 2015 at 4.16 pm, Ms Stewart sent Ms Manning an email marked urgent, asking for Ms Manning to edit her daily workpad planning template to enable her to submit it to Ms Delfs on Monday, 16 March 2015.  Ms Manning sent an email to Ms Stewart on Saturday, 14 March 2015 setting out some feedback and direction. 

157   Ms Delfs arranged for Ms Stewart and Ms Manning to spend a full day together on Monday, 30 March 2015. 

158   Ms Manning appears to have been informed just before the end of term 1, which finished on Thursday, 2 April 2015, that she was to undertake the role of acting Deputy Principal of a school some hundreds of kilometres away.  She was to commence this position at the beginning of term 2, 20 April 2015.  Before her move was announced to the staff, Ms Manning told Ms Stewart of her move. 

159   Ms Stewart said in her evidence that she understood she had lost her formal mentor, but Ms Manning would give her any support on an informal, friendly basis. 

160   Ms Manning says she advised Ms Stewart that she would still be available for support whenever she needed it.  She would return to Kambalda every second weekend and would be happy to meet Ms Stewart, otherwise she was available by phone or email.  Ms Manning says that because of the nature of her new role, she would be more accessible, and could have arranged to come and observe Ms Stewart in her classroom, or for Ms Stewart to shadow her. 

161   At a staff meeting on 31 March 2015, immediately before the end of term, Ms Delfs announced Ms Manning’s impending departure, saying she would be very busy in her new role.  She denies saying that no one was to get in touch with Ms Manning. 

162   The second term commenced on 20 April 2015.  On 23 April 2015, Ms Manning emailed Ms Stewart to let her know that she was still available if Ms Stewart needed anything.  She said she was always available by email, and also provided her mobile number if Ms Stewart wanted a chat (Agreed document 8).  Ms Stewart responded the next morning, saying she would take up the offer. 

163   Not having heard from Ms Stewart for a while, on 19 May 2015, Ms Manning emailed Ms Stewart asking how she was, noting that she had not heard from her for a while and saying ‘just wanted to check you’re alive!!’  She ended the email by saying ‘Remember I’m here if you need anything!’ 

164   Ms Stewart responded three weeks later, on Thursday, 11 June 2015: 

Yes I am still alive.  I only became aware that you were still my support person at another meeting between Denyse and I on Friday the 8th of May, 2015. 

When you sent me the previous message I thought you were sending it as a friend and I appreciated your concern and support.  Because you had commenced[sic] your new job at your new school I didn’t feel like I could impose on your time.  Others from school mentioned you were finding it a very busy time keeping up in your new role. 

I explained to Mrs Delfs that as a consequence of being in the audience on that Tuesday when we were informed of your transfer and new role as deputy principal at Kellerberrin school.  I took it that you were no longer my support person.  At that gathering when you stated that you were willing to help anyone who needed help even when you moved.  Mrs Delfs was very explicit at that time that whilst it was very kind of you that you would be too busy in your new role.  With her stating that this lead[sic] to me feeling like I was set sail in a boat rudderless all through the holidays and the subsequent weeks.

The strain has been enormous and lead[sic] to me to making uncharacteristic choices that I have never undertaken previously.  Mrs Delfs has met with me and dealt with these matters and has informed me that you are only to be used as someone who I can call or email to as support.

Agreed document 8, page 3

and Exhibit A5, Att. 7

165   Ms Manning responded the next Monday morning, on 15 June 2015, saying: 

I am disappointed to hear you didn’t know I was here to support you?  I spoke to you one on one in my room before I announced my new position to the rest of staff, stating that despite me relocating I would still be available to support you via phone or email.  I also mentioned that I would be in Kambalda frequently should you like to catch up.  While I remember Denyse saying I would be busy in my new role I felt this was in response to Kate and I discussing remaining team members in the peer observation.  I also felt that the reply you sent me on the 24th of April stating you would definitely take me up on my offer implied you were aware I was here to support you.

I’m also not sure what staff members informed you I am “finding it a very busy time” as I haven't spoken to any teaching staff there in detail since relocating. 

While my time here is busy, it is a very different busy to the classroom, and as previously stated, I am constantly on email so easily able to reply and offer support. 

I hope that the misunderstanding has been cleared up.  I am more than happy to offer you support via phone, email or face to face meeting (when in the same location) now and at any time in the future. 

Agreed document 8, page 2

166   There is no evidence of Ms Stewart seeking any assistance or support from Ms Manning from 12 March 2015 until the end of the IAP or Investigation, in spite of Ms Manning’s offers of assistance and repeated clarification of her availability.  If there was any misunderstanding on Ms Stewart’s part about Ms Manning’s availability, Ms Manning’s emails of 23 April, 19 May and 15 June 2015 clarify it. 

167   There appears to be a suggestion that an inference ought to be drawn that it was known when Ms Manning was appointed as Ms Stewart’s support person, that she was about to be transferred not only to another school but hundreds of kilometres away.  There is no evidence to support this. 

168   Further, Ms Manning advised Ms Stewart the day before her move was announced to the staff generally that she was moving but she advised Ms Stewart that she would continue to provide her with support.  Whilst I accept that Ms Stewart may have been confused the next day when she heard that Ms Manning was moving and that she would be very busy in her new role, to such an extent that she could not maintain another particular support role unrelated to Ms Stewart’s situation, however, this occurred at the end of term.  Within a week after the return from those holidays, on 23 April 2015, not having heard from Ms Stewart, Ms Manning contacted Ms Stewart by email to confirm that she was still available to support her.  Ms Stewart thanked her for that. 

169   Having not heard from Ms Stewart further for some time, Ms Manning again contacted Ms Stewart on 19 May 2015 to check that she was alright. 

170   It is unfortunate that in the circumstances of Ms Stewart’s husband being very ill and her mother being aged, that Ms Manning asked the question, ‘are you alive?’  Whilst this might have upset Ms Stewart, without Ms Manning knowing of it, this could be seen as nothing more than the use of a common phrase which might have been viewed as being a little thoughtless but it was not malicious. 

171   It was also clear that Ms Manning’s role as support person was to provide support and assistance, but did not necessarily require her to observe Ms Stewart in her classroom.  If she was required to do so, it was possible for that to occur by Ms Manning travelling to Kambalda.  Ms Manning’s husband remained in Kambalda while she moved and Ms Manning returned to Kambalda regularly every second weekend.  While it was argued that Ms Stewart and Ms Manning could not reasonably have met on the weekends for Ms Manning to provide support to Ms Stewart, Ms Manning was willing to do so. 

172   I also note, although it is contentious within the teaching profession, particularly in the public sector, teachers’ work is not limited to school hours, Monday to Friday, and evidence in other cases before me makes clear that teachers regularly work on weekends.  There was nothing to preclude Ms Stewart and Ms Manning getting together if necessary.  In any event, the use of technology would allow Ms Stewart to contact Ms Manning, and Ms Manning to provide her with support if she wished. 

173   The inference in cross‑examination, that Ms Manning could not have assisted Ms Stewart because Ms Stewart could not make or take telephone calls during class, is ludicrous.  It is highly unlikely that Ms Stewart would have sought advice from any mentor or support person, whether they were located at the school or another school close by, during a class. 

174   Ms Porter gave evidence of the type of support that a mentor or support person would provide.  It is notable that the person does not need to be located at the school, and there is a range of types of assistance and support that can be given, including through technology. 

175   I note that in her email on 16 March 2015, Ms Coates explained the role of a mentor, and encouraged Ms Stewart to ‘actively engage in the arrangement’. 

176   The provision of a support person or mentor does not place the onus on the mentor to follow up or pursue contact to further the mentoring or support.  The onus is on the person being provided with support.  Ms Stewart did not make use of the support being provided to her beyond the initial stage.  It was Ms Manning who followed up, not Ms Stewart. 

177   If Ms Stewart had any concerns about a lack of a support person being immediately available to her, she should have raised it.  She did not do so. 

178   This issue was raised in Ms Stewart’s lawyers’ letter of 17 November 2015, asserting that when Ms Manning moved to another school, ‘[n]o explanation was provided to [Ms Stewart] as to whether Ms Manning was to remain as [Ms Stewart’s] mentor and assistance provider’ (Agreed document 13).  This is clearly not so.  It also asserts that Ms Stewart received ‘no further support during the process in that regard’ and this is also not correct. 

Ground 2(f):  Assessment against all Standards

179   The Initial and Final assessments of Ms Stewart’s performance were done by reference to all seven professional teaching Standards.  The Summative Assessment was against only the Standards contained in the allegation. 

180   The evidence of both Ms Porter and Ms Fielder is that the Standards are interrelated and do not stand alone.  They each gave examples.  They said that for a proper assessment to be done, the performance needs to be assessed against all Standards.  Ms Porter says that ‘[i]t would be artificial to assess the Standards in isolation’.  That ‘is why the TRBWA and the Department require teachers to be at the Proficient level across all seven Standards, and an assessor will appraise across all seven Standards, with a focus on the identified Standards of concern’ (Exhibit R6, [34]).  I accept the evidence that it is necessary to assess against all Standards for a proper and thorough assessment of performance to be made because the performance against each of the Standards cannot be done in isolation. 

181   As it happened, Ms Stewart was unsatisfactory in respect of all Standards. 

182   In terms of the decision to terminate, Ms Butler explained in her report to Mr Gillam, and commented that the assessment ought to be in respect of only the two Standards where allegations of substandard performance had been made (Exhibit R11, [36]; ts 338). 

183   Mr Gillam’s evidence makes it quite clear that he made his decision based only on the allegations in respect of two particular Standards.  He said that had Ms Stewart’s performance been satisfactory in respect of those two Standards but unsatisfactory in the other Standards, he would have not made a decision to dismiss but the matter would then have raised questions about her performance in respect of other Standards. 

184   The assessment for the purposes of making a decision about termination of employment was of the two Standards about which the allegations were made.  Ms Stewart’s performance was unsatisfactory in respect of the Standards where it was alleged that her performance was substandard. 

185   Ms Stewart’s counsel also referred to the requirements under the School Education Act Employees (Teachers and Administrators) General Agreement 2014 for teachers not to have an unreasonable workload.  The inference that is sought to be drawn, I think, is that assessing her against all of the standards would have placed an unreasonable workload upon Ms Stewart.  However, there was no evidence relating to workload. 

186   Ms Stewart is reported in the second assessment as saying that the fact of her being assessed against all Standards was distressing as she thought she was being assessed against only Standard 4 and Standard 7.  In responding to questions from Ms Butler, Ms Stewart said that assessment against all proficiencies as opposed to against only the two mentioned to Mr Gillam’s letter had ‘lead[sic] to confusion about where I should be putting my energies and attention’ (Exhibit R11, MB3, INV5).  Was Ms Stewart disadvantaged by this? 

187   Ms Stewart suffered considerable stress while undergoing the IAP and the assessment.  She says she was confused about the assessment.  However, I find that, as a teacher, she was required to be proficient against all Standards, and should have been able to demonstrate that proficiency on any day.  To meet the Standards both individually and collectively, she needed to be able to do all things required by the Standards at the same time.  Performance of one Standard supported performance of others, as demonstrated by Ms Porter’s and Ms Fielder’s evidence. 

188   There is no allegation of any particular detriment, nor any evidence of it, except for confusion and stress.  Given the lengthy history of failed attempts to improve Ms Stewart’s performance before the IAP and the formal assessments, when that particular stress and confusion were not present, I conclude that it did not adversely affect the outcome in terms of Mr Stewart’s actual performance.  Therefore, this ground is not made out. 

Ground 3:  The ERG Report

189   Ms Stewart alleges that Ms Delfs is responsible for not managing her properly and this is reflected in the ERG report, that was critical of the school’s performance management and feedback. 

190   In August 2012, the ERG reported on an assessment of the school and commented on the leadership of the school in respect of performance management. 

191   Amongst its eight major findings was the following: 

5. Regular quality feedback and follow up support, normally associated with performance management processes, is inadequate. This compromises the school’s accountability ethos, staff development and the provision of professional learning.

Witness statement of Jean Stewart

Exhibit A5, attachment 2, page 3

192   By June 2013, a follow up review had been conducted.  Mr Perris, who was responsible for overseeing the implementation of the ERG’s prescribed improvements, wrote to Ms Delfs thanking her and the staff involved, saying that their approach was thorough and professional (Exhibit R2, KCP 2). 

193   By December 2013, the Director General was satisfied that the school had ‘met expectations regarding improvement and sustainability in relation to all findings’ (Exhibit R2, KCP 3). 

194   In any event, Mr Perris clarified that the ERG findings ‘did not relate specifically to the performance of the Principal or Deputy Principal as line managers nor did the Review personally criticise the Principal or Deputy Principal’ (Exhibit R2, [21]). 

195   I note that the ERG report was two years before any action was taken which placed Ms Stewart’s employment in jeopardy.  The issue raised by the ERG report was resolved within six months. 

196   This ground is not made out. 

Ground 4:  Mitigating Factors – Ms Stewart’s husband and mother

197   In her correspondence to Mr Gillam dated 22 January 2015, regarding whether her performance was substandard, Ms Stewart referred to the difficulties she had had in 2014 in respect of the illness of her husband and retrenchment from his job.  She said this made 2014 ‘a personally challenging year for [her]’ (Agreed document 4). 

198   This comment was made at the point where Mr Gillam was deciding whether an IAP and assessment and investigation of her performance were to be undertaken.  He decided to do so, but first, he gave Ms Stewart a period of readjustment in the classroom. 

199   Ms Stewart’s reference to having had a personally challenging year related to 2014.  There was no evidence presented that Ms Stewart’s husband’s circumstances or her aged mother’s needs had any detrimental effect on Ms Stewart during the IAP, assessment or investigation, in 2015. 

200   Ms Stewart gave no indication that she needed support or assistance in respect of either of those circumstances.  She presented herself for work or took leave, but did not provide the reason for the absence as being related to either of those things. 

201   This ground is not made out. 

Ground 5:  Ms Stewart was not invited to bring a support person

202   This ground was not pursued. 

Ground 6:  Alternative penalties

203   Ms Stewart alleges that there was a denial of fairness because Mr Gillam did not consider any alternatives to termination of employment when other penalties were available. 

204   In his letters to Ms Stewart dated 14 January 2015 and 11 February 2015, Mr Gillam set out the penalties available under s 79(3) of the Public Sector Management Act 1994.  However, Mr Gillam was not cross‑examined on that matter. 

205   Therefore, I am unable to draw any conclusion about this ground, except that Mr Gillam appears to have been aware of the range of penalties available. 

Conclusion

206   I have concluded that when assessed objectively, Ms Stewart did not attain or sustain a standard reasonably expected of a teacher, by reference to standards applicable to that role.  Even if there had been a denial of procedural fairness, contrary to my findings, they would not have adversely affected Ms Stewart’s performance in the IAP and assessment process such as to warrant the matter being remitted to the respondent. 

207   The dismissal was not harsh, oppressive or unfair. 

208   The application must be dismissed.