Appeal against a decision of the Commission in matter no. U 67 of 2016 given on 13 January 2017

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2017 WAIRC 00792

DELIVERED : FRIDAY, 8 SEPTEMBER 2017

FILE NO. : FBA 2 OF 2017

Appellant

AND

Director General, Department of Education

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Chief Commissioner P E Scott

Citation : [2017] WAIRC 00022; (2017) 97 WAIG 72

File No. : U 67 of 2016

Catchwords : Industrial Law (WA) - Appeal against decision of Commission dismissing a claim that a teacher was dismissed on grounds of substandard performance - Application to adduce additional evidence - Principles considered - No error demonstrated - Turns on own facts

Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(i), s 49(2), s 49(4)(a)

School Education Act 1999 (WA) s 239

Public Sector Management Act 1994 (WA) s 78(2), s 79(3)(c)

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : Mr N van Hattem (of counsel) and Ms A Gifford

Solicitors:

Respondent : State Solicitor for Western Australia

Case(s) referred to in reasons:

Anderson v Minister for Education [1996] IRCA 324

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

Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040

House v The King [1936] HCA 40; (1936) 55 CLR 499

Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291

Merredin Customer Service Pty Ltd as trustee for Hatch Family Trust t/a Donovan Ford/Merredin Nissan and Donovan Tyres v Green [2007] WAIRC 01150; (2007) 87 WAIG 2789

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

Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Shire of Esperance v Mouritz (1991) 71 WAIG 891

Stewart v Director General, Department of Education [2016] WAIRC 00822; (2016) 96 WAIG 1419.

Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437,

Reasons for Decision

SMITH AP:

The appeal and the order appealed against

1         This appeal is instituted under s 49(2) of the Industrial Relations Act 1979 (WA) (the IR Act) against a decision made by the Chief Commissioner in U 67 of 2016 delivered on 13 January 2017 dismissing application U 67 of 2016.

2         Application U 67 of 2016 sought to challenge a decision to dismiss a teacher on grounds of substandard performance which was referred to the Commission by a teacher, Ms Jennifer Anderson, under s 29(1)(b)(i) of the IR Act, pursuant to s 239 of the School Education Act 1999 (WA) and s 79(3)(c) and s 78(2) of the Public Sector Management Act 1994 (WA).  Ms Anderson claims that she has been harshly, oppressively or unfairly dismissed by the Director General, Department of Education (the Director General).  At first instance, she sought an order for reinstatement and an order for remuneration lost between the termination of her employment and reinstatement.

Background - facts relevant to the disposition of the appeal

3         Ms Anderson was employed as a primary school teacher in the Department of Education (the Department) for almost 27 years.  She was employed from 24 July 1989 to 23 March 2016.

4         Ms Anderson's history of employment was not without its difficulties.  In 1995, she was dismissed by the Director General.  She challenged that decision in the Industrial Relations Court of Australia.  Judicial Registrar Ritter found after hearing the matter that Ms Anderson was an inefficient teacher.  However, he also found that:

(a) the processes applied by the Department directly contributed to her inefficiency by undermining her status and capacity, and her self-confidence was dented by the process; and

(b) she had the potential to be an efficient teacher.

5         In the circumstances, Ritter JP found the termination of her employment had been harsh, unjust and unreasonable and ordered that she be reinstated:  Anderson v Minister for Education [1996] IRCA 324 [181] - [182].

6         Ms Anderson recommenced her employment in the second semester of 1996 and, after several placements, she was transferred to Hampton Park Primary School in 1998 where she taught until the end of 2014.  Ms Anderson worked as a year 3 teacher in the junior primary section of Hampton Park Primary School for 10 years.  In 2010, she was asked to move from junior primary to middle primary where she undertook teaching of a year 4 class in 2011 and 2012.  In 2013 and 2014, she taught history to grades 1 to 7 as a specialist.

7         Ms Anderson was transferred to West Balcatta Primary School to a year 3 classroom teacher position in semester one of 2015.

8         In 2000, the principal of Hampton Park Primary School, Ms Price, raised a number of performance issues with Ms Anderson.  However, no formal process was instituted in respect of Ms Anderson's performance in respect of those matters.

9         Ms Anderson was not the subject of any formal substandard performance process until 2013.  During the hearing at first instance and on appeal Ms Anderson claimed that no performance issues were brought to her attention between 2001 and 2012.  She relied upon performance management feedback reports completed with her supervisors during this period to show that her performance was satisfactory.

10      In 2002, Mr Paul Neates became the school principal of Hampton Park Primary School.  In 2011, Ms Anderson's line managers changed when Mr Glen Purdy and Ms Janet de Jonk became deputy principals at the school.  In that year, Hampton Park Primary School became an Independent Public School which resulted in greater systems for collecting and analysing student data.  As a result, Mr Neates became more aware of issues with Ms Anderson's performance.  In 2011, Ms Anderson attended professional development as Ms de Jonk was of the opinion that Ms Anderson was struggling with differentiating students (exhibit R7).

11      At the end of 2011, it was brought to Mr Neates' attention by Ms de Jonk that Ms Anderson had given all of her students a C for science.  Mr Neates and Ms de Jonk asked Ms Anderson why the marks were the same for each of the children and Ms Anderson told them that:

(a) she had intended to teach science but did not get it done; and

(b) in the first semester she had been busy organising for the range of children and the ability she had in the room and she did not feel she had time to allow for science to be taught and at the end of the year she just did not get it done again.

12      Ms Anderson, however, denied that she told Ms de Jonk and Mr Neates that she had not taught science in 2011.  She sent an email to them on 14 December 2011 in which she stated that her students considered the tensile, absorbency and thermal qualities of wool as part of an integrated theme for art, science, technology and enterprise when they learned the skill of weaving, casting off and sewing when making beanies and scarves for a school technology fete (ts 24 and ts 130).

13      During 2011, Mr Neates attempted to arrange more support for Ms Anderson through a mentor, Ms Kylie Jones.  Ms Jones was the curriculum leader.  However, Ms Anderson ended that mentoring arrangement and Mr Purdy and Ms de Jonk as line managers dealt with a number of concerns arising out of Ms Anderson's performance and took steps to observe a number of her classes.  They provided feedback to her in writing and she responded in writing setting out her views.  The issues raised with her at that time were (ts 364):

(a) the behaviour of and managing the behaviour of students in her class;

(b) concerns around her assessment process of grading and lack of feedback to the children; and

(c) an inability by her to differentiate the learning process for different students.

14      In 2012, Mr Purdy attempted to arrange a collaborative arrangement for Ms Anderson by allocating a teaching 'buddy' in the classroom next door to her providing her with work with other teachers in her classroom wing.  He also tried to give her some more flexibility with her teaching duties.  However, in mid-2012, Mr Purdy reported to Mr Neates some serious issues with Ms Anderson's performance.  In particular, it was reported to Mr Neates that Ms Anderson struggled to teach children with any manner of disability, did not have strategies to teach children with behavioural difficulties and was poorly organised in general.  Mr Neates formed the impression that Ms Anderson could only deliver a lesson providing for one ability group that her delivery of a lesson did not take into account the different learning styles that students have.  As soon as she had a group of children at different ability levels, she required an educational assistant (exhibit R8 - outline of evidence, Paul Neates).

15      In the middle of 2012, Mr Neates asked all of the staff what they would like to teach in 2013.  Ms Anderson was one of two teachers who did not reply.  The other teacher was on long service leave and he responded after he returned from leave.  At that time, the staff at the school had discussed moving into the new national Australian curriculum standards.  As a result, history and science were two new areas they wished to move into specialist roles.

16      The reason why Mr Neates decided to appoint Ms Anderson as a history specialist were (exhibit R8):

(a) other middle school teachers had been more responsive in their preference to stay as classroom teachers;

(b) Ms Anderson had an inability to differentiate curriculum and he formed the view that by focussing on a single subject might help her to develop knowledge and skills supporting a more varied teaching and learning style and an opportunity for Ms Anderson to refine her skills, develop assessment strategies and differentiate her curriculum;

(c) the specialist role represented a general development opportunity, application of the new curriculum also meant development of assessment and reporting, where Ms Anderson also needed to improve;

(d) the opportunity to repeat lessons as a history specialist was great.  Thus, the planning work of a specialist teacher is less than required of a classroom teacher because lessons were to be repeated three or four times in the school each week; and

(e) he understood that Ms Anderson had an interest in history, in particular Ms Anderson was eloquent and had more interest in social studies type syllabus than for example science.  Consequently, he was of the opinion that teaching history was a subject Ms Anderson could succeed in.

17      As a result of his opinion, Mr Neates placed Ms Anderson in the role of a specialist history teacher for 2013 to deliver the new primary school history curriculum across all year groups.  She was also required in 2013 to teach some science, art and writing as a relief teacher and relieve other teachers undertaking their duties other than teaching time (DOTT) (ts 365 - 366).

18      To carry out the role of history specialist, in addition to the DOTT time allocated to all primary school teachers, Ms Anderson was allocated an additional one hour and 20 minutes DOTT time in 2013.

19      In 2013, Ms Anderson's weekly teaching requirements were as follows (exhibit R3 - Sara Young's investigation report; Timetable 2013 (AB 22)):

(a) four history lessons being one history lesson repeated to two year 1 classes, one history lesson repeated to four year 2/3 classes, one history lesson repeated to four year 4/5 classes and one history lesson repeated to three year 6/7 classes;

(b) one art lesson repeated to two year 1 classes;

(c) two sessions in the computer laboratory (30 minutes each) to two year 2/3 classes; and

(d) one science lesson in semester one and one art lesson in semester two as DOTT relief to a year 6/7 class.

20      Ms Anderson did not wish to take up the position of a specialist history teacher in 2013.  She sought to lodge a grievance pursuant to cl 40 of the School Education Act Employees' (Teachers and Administrators) General Agreement 2011 (the 2011 Industrial Agreement) against the transfer to the position as she wished to remain a classroom teacher (exhibit A12 - appellant's documents and transcript pages, p 83).  Ms Anderson, however, later abandoned the grievance, only insofar as it was a direction to her to take up the position and she commenced work as a history specialist in 2013 at Hampton Park Primary School.

21      Ms Anderson claimed that she was not provided with necessary resources and support to undertake the additional requirements of the history teacher role and she sought to address this through the grievance she had lodged pursuant to cl 40 of the 2011 Industrial Agreement.  Her complaints were that a number of issues caused her difficulty in delivering the history curriculum.  These were:

(a) she did not have a classroom of her own to establish a history environment (ts 108);

(b) she was required to bring a suitcase trolley into every class of materials which required her to unpack it to prepare those materials prior to commencing any lesson and pack those materials up after the lesson had finished (ts 112 - 113);

(c) she had insufficient class sets of hands-on material resources for the children to use in the history classes.  She only had one 'Pearson' topic book to share amongst the students.  She was forced to use a 'chalk and talk' delivery where she read from the topic book and put historical pictures on the whiteboard (ts 130);

(d) she was not able to use the library or the computer laboratory for her 14 classes as the times those were available as vacant did not correlate with her class times (ts 169);

(e) her photocopying allowance was insufficient to copy worksheets for the children;

(f) one hour and 20 minutes extra of DOTT time than a classroom teacher was insufficient to cover marking of student work as well as organisational matters, together with time to research and prepare new content, activities, teaching aids and assessments in a whole school program (AB 75); and

(g) there was no preparation of the school or herself for the implementation of the new history curriculum during 2012 and 2013 (AB 74).

22      Her contentions were disputed by her line managers.  Mr Purdy's evidence was that there was very little change in the history curriculum with the introduction of the national Australian curriculum as many aspects of the course were present in the society and environment curriculum which teachers were familiar with.  In his opinion, it was the same content with a different allocation (exhibit R6 - outline of evidence, Glen Purdy).  Mr Purdy also said that:

(a) to implement the history curriculum staff had to attend the Morley Network Group once per school term in lieu of attending a staff meeting;

(b) in teaching the history program, Ms Anderson identified the Pearson program as a resource and the school purchased it;

(c) he was not aware of any request for resources from Ms Anderson that were refused (exhibit R6); and

(d) other specialist teachers who did not have a dedicated classroom in the school delivered their curriculum successfully (ts 381).

23      Ms Anderson requested to carry out history lessons in the library and computer laboratory rather than the students' classrooms.  However, this request was refused.  Mr Purdy said, however, it was possible for Ms Anderson to book individual classes in the library and computer laboratory, but she could not book all of her classes in these rooms.  Consequently, Ms Anderson was required to move from classroom to classroom to deliver the history curriculum.  Mr Purdy said, however, that the library and computer laboratory had timetables and Ms Anderson was able to book time in these rooms, but she was not given priority for these rooms over any other classes (exhibit R6).

24      Mr Neates continued to receive complaints about Ms Anderson's performance between February 2013 and June 2013.  Consequently, a decision was made by Mr Neates to place Ms Anderson on an employee development plan, which was at that time the formal plan used to assess whether a teacher's performance was substandard.  The implementation of the employee development plan was delayed for some time.  It appears that was because Ms Anderson wished to pursue the grievance process to resolve her complaints about the difficulties she says she had in delivering the history curriculum.

25      Ms Anderson maintained at the hearing of this appeal that she continued to pursue the lodgement of a grievance under cl 40 of the 2011 Industrial Agreement in respect of these matters and did not withdraw her grievances.  The Department did not, however, accept that her grievances could be dealt with under cl 40.  It took the view that pursuant to cl 40.2 the grievances Ms Anderson sought to raise dealt with her performance and such were excluded from the grievance resolution procedure provided for in cl 40.

26      In October 2013, the employee development plan recommenced following a lawful order to Ms Anderson to participate in the process.  On 1 November 2014, a request was made by Ms Anderson and approval given for her to not attend weekly assemblies and to add that time to her DOTT time.

27      The employee development plan was completed on 5 December 2013 and Mr Neates wrote to Ms Anderson on 6 December 2013 advising her that he was of the view that her performance was substandard in that she did not meet three Australian Institute for Teaching and School Leadership (AITSL) Standards (the Standards) which apply to teachers in all states across Australia.  There are seven Standards setting out the requirements on teachers at four levels.  The levels are graduate, proficient, highly accomplished and lead.  Each Standard contains a number of focussed areas.

28      The Standards are used by the teacher registration authorities, including the Teachers Registration Board of Western Australia.  A teacher must be registered with the Board in order to practice in Western Australia.  To maintain registration, a teacher must be able to meet the 'proficient level' for each focus area for all seven Standards within three years of graduation.

29      Mr Neates alleged that Ms Anderson's performance was substandard in that she did not meet the following Standards to a proficient level (exhibit R3 - Sara Young's investigation report):

(a) know students and how they learn (Standard 1) - Her performance was alleged to not meet this standard in that she had not demonstrated strategies to cater for the range of students that are present in the classroom.  Also, she demonstrated a limited understanding of Department and school policy and school processes in regard to identifying and implementing existing plans for students at educational risk (SAER);

(b) create and maintain supportive and safe learning environments (Standard 4) - It was alleged her performance did not meet this standard in that she had demonstrated a limited range of strategies to engage and maintain students therefore students had remained disconnected for long periods; and

(c) assess, provide feedback and report on student learning (Standard 5) - It was alleged her performance did not meet this standard in that the lack of differentiation in lessons had raised serious doubts on the fairness of assessment for a number of students.  Also, she had not 'moderated' grades and had changed several grades when Ms Anderson knew they were to be challenged which called into question their reliability and validity.

30      Ms Anderson provided a response to her alleged deficiencies in relation to these three Standards.  Mr Neates considered her response.  However, he maintained his view and the matter was referred to the Director General.

31      In early 2014, Ms Sara Young, acting manager, labour relations of the Department, was appointed to investigate and report on whether Ms Anderson's performance was substandard.  In her investigation, Ms Young considered a large number of documents which were provided to her in her role as investigator, including performance management documents, employee development plans, meeting minutes, student and parent complaints and queries and emails.  Following a review of all of the documents, Ms Young put a series of questions to Mr Neates, Mr Purdy and Ms Anderson.  Each provided written answers to those questions.  After considering all of that material, Ms Young had regard to a number of issues which Ms Anderson contended either impacted on her ability to teach effectively or on the fairness of the assessment of her performance.  These were:

First among these is the requirement to deliver the new history curriculum across the school. Ms Anderson had not worked as a specialist teacher prior to 2013 however she did attend history professional development in March and August 2013, received support from the school Curriculum Leader, was a part of the Morley History Network and undertook a visit to Sawyers Valley Primary School (teacher development school for history) in November 2013. Nevertheless Ms Anderson was employed as a general primary school classroom teacher and she did not choose to become a specialist history teacher. The role of a specialist teacher, while having the same basic pedagogical requirements as an ordinary classroom teacher, is undertaken in a different context. My [sic] Anderson also says that it is simply not fair to assess her in the first year of a new role and implementing a new curriculum. It could also be argued that the performance concerns related to differentiation and assessment in particular were likely to be exacerbated in a situation where Ms Anderson was required to deliver curriculum to and assess some 320 individual students.

Secondly Ms Anderson raises the issue that she did not have a dedicated history classroom and that this created difficulties. While it is accepted that this is not an ideal situation it is a matter of practicality and whether it is more disruptive to have whole classes moving rooms or the teacher. There are some circumstances where having classes move is unavoidable however this is not one of them. It is noted that a specific DOTT room and space has been made available to Ms Anderson.

Thirdly Ms Anderson raises the issue of her lack of a dedicated EA [education assistant] resource, an issue raised by her on a number of occasions from 2011 onward. The allocation of EA resources is determined in accordance with Departmental policy, identified student needs and school funding. It is not practice to provide specialist primary school teachers with a dedicated EA resource, nor is such resourcing provided to middle primary classroom teachers. If Ms Anderson contends that she is unable to fulfil her duties at a satisfactory level without the provision of such a resource, this lends weight to the allegation that her performance is substandard.

Fourthly Ms Anderson complains of the excess workload she has had over the period of the EDP [employee development plan], in significant part because of the large number of emails received from Mr Purdy, her line manager. I accept that there have been a large number of emails over this period. However I also note that Ms Anderson has felt a need to produce long and often very detailed replies to each email and that these replies, often disputing the content of preceding emails, have had a tendency to result in further emails. To a significant extent it could be said that Ms Anderson is the architect of her own misfortune. Matters were further complicated by Ms Anderson's lodgement [sic] of a grievance about the process in the course of the EDP. The actual requirements of the EDP in terms of meetings, classroom observations, submission of daily workpads and review of IEPs [individual education plans for students], was in my opinion within the normal expectation of such a process. Ms Anderson was required by Mr Neates to justify some of her assessments at the end of the EDP however this should have required little more than the submission of marked student work samples.

Finally Ms Anderson refers to the assessment of her teaching skills and delivery of the new history curriculum in a letter of support by Mr Norman Paini, Head of Department - Society & Environment at Mt. Lawley Senior High School and Leader of the Morley Network group 'History and Beyond' (see attachment 19). The letter indicates that Mr Paini has met with Ms Anderson on five (5) occasions at network meetings and commends Ms Anderson's 'professionalism and the diligent way that she has trialled [sic] and implemented the Western Australian curriculum across all years at Hampton Park Primary School.' Mr Paini indicates that Ms Anderson has participated in professional development, has been given resources and has shared ideas on assessments and students work samples. Mr Paini states 'I am certain that Jennifer does know her students and that the outcomes she has achieved in teaching 'History' in this trial year are more than satisfactory.' Finally Mr Paini states that he has seen Jennifer's assessments and feedback on students' learning and in his experience they are above expectations. It is noted that Mr Paini is not a primary school teacher, has not observed Ms Anderson in the classroom and has viewed only a selection of documents provided by Ms Anderson. It is interesting that Mr Paini comments on Ms Anderson's feedback on student's [sic] learning from the work samples provided because none of the work samples provided to me contained any feedback comments. Overall given Mr Paini's limited exposure to Ms Anderson's teaching practice and the potentially selective nature of information provided to him, I am able to place no weight on Mr Paini's opinion.

32      After considering Ms Anderson's complaints, Ms Young found that she had some concern about the performance assessment of substandard performance being undertaken in the first implementation year of the new history curriculum.  However, she noted that Ms Anderson is an experienced teacher, has had professional development related to the new curriculum and was provided with sound support.  Further, it was her view that sufficient and appropriate evidence had been gathered and assessed to allow a proper determination to be made about Ms Anderson's performance as a specialist primary school history teacher.  She then found Ms Anderson's performance as a specialist primary school history teacher against two Standards to be substandard as follows (exhibit R3):

Know students and how they learn (AITSL Standard 1)

• Has not demonstrated strategies to cater for the range of students that are present in the classroom;

• Has demonstrated a limited understanding of Department and school policy and school processes in regard to identifying and implementing existing plans for SAER students.

Assess, provide feedback and report on student learning (AITSL Standard 5)

• The lack of differentiation in lessons has raised serious doubts on the fairness of assessment for a number of students.

• Has not 'moderated' grades and changed several when Miss Anderson knew they were to be challenged which calls into question their reliability and validity.

33      Ms Young found Ms Anderson's performance could not be said to be substandard against Standard 4.  She found that (exhibit R3):

Although the documentary evidence before me indicates that there are significant issues of concern about Ms Anderson's performance against the following teaching standard the evidence is not sufficient to allow me to make a finding that Ms Anderson's performance is substandard against this standard:

34      Ms Young also found that she was unable to make any definitive findings about Ms Anderson's performance in the context of an ordinary primary school classroom teacher given that there was no significant performance management process undertaken in 2012 and that the teaching context of a specialist teacher is different to an ordinary classroom teacher.  Consequently, Ms Young recommended that Ms Anderson be placed in an ordinary primary school classroom teacher's role and be given an opportunity to demonstrate that she is able to attain and sustain a satisfactory standard of performance against the three Standards identified by Mr Neates.

35      Ms Young also recommended that Ms Anderson be allowed a fresh opportunity to demonstrate her performance against the Standards in a new school.  This was because Mr Neates had already expressed a clear view about the standard of Ms Anderson's performance and both deputy principals, Mr Purdy and Ms de Jonk, had been directly involved in Ms Anderson's employee development plan which led to Mr Neates forming the opinion Ms Anderson's performance was substandard.

36      In the first semester of 2015, Ms Anderson commenced employment as a year 3 teacher at West Balcatta Primary School.

37      On 17 February 2015, Ms Renata Owen, who is employed as a principal labour relations advisor by the Department, was appointed as the investigator and Ms Anna Alford, an associate principal (deputy principal of Kinross Primary School), and accredited by AITSL as an assessor, was appointed to independently assess Ms Anderson's performance.

38      At West Balcatta Primary School, Ms Annalyn Navarrete, a deputy principal, was Ms Anderson's line manager.  Ms Hilary Jasper was appointed as Ms Anderson's mentor.  Ms Anderson was given an improvement action plan, which was structured around the relevant focus areas of the Standards.

39      On 17 February 2015, Ms Anderson was sent a letter from the labour relations section of the Department with a copy of her improvement action plan.  She was also advised that Ms Navarrete (who surname at that time was Puerhingher) would be her line manager.  The individual improvement action plan described for Ms Anderson the level of performance required for the achievement of the proficient level of certain focus areas under Standards 1, 4 and 5.  It also contained examples of strategies and support mechanisms which were to be available to assist Ms Anderson in achieving the required level of proficiency.

40      Ms Anderson was given two weeks to settle into the school.  She was provided with support and her performance was assessed.  Ms Alford visited West Balcatta Primary School on three occasions for the purposes of evaluating and assessing Ms Anderson's performance of her teaching duties.  The initial assessment was undertaken on 27 March 2015, an interim assessment was undertaken on 29 May 2015 and the final assessment was undertaken on 26 June 2015.  On each occasion Ms Alford assessed Ms Anderson's performance against each seven Standards as not achieved.  However, the substandard performance assessment of Ms Anderson's performance by the Department was only formally assessed against Standards 1, 4 and 5.

41      In an investigation report made on 7 December 2015, Ms Owen, after having regard to all of the documents provided to her, including Ms Young's investigation report of Ms Anderson's performance at Hampton Park Primary School, together with reports from Ms Navarrete and other documents and a written response from Ms Anderson to questions put to her by Ms Owen made the following findings and recommendations to Mr Clifford Gillam, the executive director workforce of the Department (exhibit R2):

Based on a review of the information provided, including Ms Sara Young's report of the process at Hampton Park Primary School, I am satisfied that the overall performance management process and the subsequent substandard performance process has been undertaken in accordance with policies and standards and that Ms Anderson has been afforded procedural fairness. In my view the three (3) assessor's reports and the time Ms Anderson spent at West Balcatta Primary School will be critical to you in making a decision as to whether Ms Anderson's performance is substandard.

I am satisfied that whilst at West Balcatta Primary School:

• Ms Anderson was provided with a mainstream year 3 primary school class in accordance with recommendations following the process undertaken at Hampton Park Primary School.

• A detailed Improvement Action Plan (IAP) was developed and provided to Ms Anderson. The IAP was explained to Ms Anderson in detail by her line manager at West Balcatta Primary School, Ms Puerhingher and included a discussion of the AITSL Standards and what was required of Ms Anderson to meet the Standards.

• Ms Puerhingher explained in detail to Ms Anderson the process in which she would participate including details of the support she would receive and the resources available to her.

• Ms Puerhingher met with Ms Anderson regularly, both on a formal and informal basis. Parent complaints were brought to Ms Anderson's attention. The complaints were discussed with her and she was provided with assistance in addressing the parents' concerns.

• Ms Puerhingher conducted classroom observations of a number of different classes and provided detailed feedback to Ms Anderson, including suggestions on how to improve her performance in various aspects of her teaching, assessment and behaviour management processes.

• Support was made available to Ms Anderson in the form of a mentor, Ms Hilary Jasper. Ms Jasper provided support in the form of informal chats as most of the support was provided through the year 3 collaboration meetings which occurred weekly.

• Ms Anderson's performance was assessed by an external assessor, Ms Anna Alford. Ms Alford is a highly experienced Deputy Principal at Kinross Primary School and formally a primary trained classroom teacher. Ms Alford conducted three classroom observations and provided detailed feedback to Ms Anderson via Ms Puerhigher [sic].

Ms Anderson was given the opportunity to either meet with the investigator or provide written responses to the questions at attachment 2. The questions were aimed at determining if Ms Anderson was satisfied with the process undertaken at Balcatta Primary School. No usable responses were provided.

Taking into account all of the above, I advise that there is reasonable evidence for you to consider making a finding that Ms Anderson's performance is substandard against the following AITSL standards:

• Standard 1 - Know Students and how they learn

1.5 Differentiate teaching to meet specific learning needs of student across the full range of abilities.

• Standard 4 - Create and maintain supportive and safe learning environments

4.2 Manage classroom activities

4.3 Manage challenging behaviour

• Standard 5 - Assess, provide feedback and report on student learning

5.1 Assess student learning

5.2 Provide feedback to students on their learning

5.4 Interpret student data

5.5 Report on student achievement

Findings made by the learned Chief Commissioner at first instance which are relevant to the disposition of this appeal

42      In her reasons for decision, the learned Chief Commissioner set out the points raised in Ms Anderson's claim.  These were:

(a) Her performance as a teacher was not substandard.

(b) She was required to undertake work as a history specialist when she was not adequately trained or resourced.

(c) As a history teacher, there were practical impediments to her performance because she was not allocated a classroom, and therefore she was required to carry extensive amounts of material from room to room including up and down stairs.

(d) There were inappropriate or unfair criteria in the assessment of her performance in that she was assessed against all Standards, not just against those in which she was allegedly substandard.

(e) Moving her to a different school and assessing her as a classroom teacher, was unfair, firstly given that she had spent the immediately preceding period as a history specialist, and secondly that she had not received the same professional development as the teachers at the new school, and therefore was disadvantaged.

43      The learned Chief Commissioner had regard to the legal principles which governed whether a finding should be made that the termination of Ms Anderson's employment was harsh, oppressive or unfair.  These are:

(a) The question for the Commission is whether the employer's legal right to terminate the contract of employment has been exercised so harshly or oppressively against the employee as to be an abuse of that right:  Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.

(b) The failure to provide a fair process may lead to a finding that the dismissal was harsh, oppressive or unfair (Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635) but a lack of procedural fairness may not automatically have that result:  Shire of Esperance v Mouritz (1991) 71 WAIG 891, 899 (Nicholson J).

44      The learned Chief Commissioner made a number of findings going to the credibility of the witnesses.

45      Firstly, she found she had no hesitation in preferring the evidence of other witnesses where it conflicted with Ms Anderson's evidence.  The reason she did so was because Ms Anderson:

(a) was on a number of occasions evasive;

(b) equivocated to the point of significantly undermining her own evidence;

(c) gave many explanations which were not plausible;

(d) was inconsistent; and

(e) relied heavily on using her own professional judgement, even when it contradicted the professional judgement of others where they had expertise and she did not.

46      The learned Chief Commissioner found:

(a) Mr Purdy to be a very impressive witness;

(b) Ms de Jonk was very clear and unshaken in her evidence;

(c) Mr Neates was a credible witness; and

(d) Ms Navarrete to be very objective.

47      Of critical importance, the learned Chief Commissioner noted that Ms Anderson did not challenge the outlines of evidence and attached documents of Ms Alford or Ms Young.

48      In these circumstances, the learned Chief Commissioner found she was obliged to accept the evidence of Ms Alford and Ms Young unless it could be demonstrated that there was good reason not to do so.  She also found their evidence was confirmed by other witnesses called by the employer.  Therefore, given her conclusions about the unreliability of Ms Anderson's evidence, she accepted their evidence where it conflicted with Ms Anderson's evidence.

49      In light of the fact that Ms Anderson did not challenge the evidence of Ms Alford and Ms Young, the learned Chief Commissioner found that Ms Anderson was not a proficient teacher.  She also observed that it was important to note that the findings made by Ms Alford were supported and confirmed by a great deal of other evidence covering a range of issues.

50      The learned Chief Commissioner then set out the evidence of a number of important and central issues, which were not exhaustive, which demonstrated the types of problems with Ms Anderson's performance that arose from 2010.  These findings can be summarised as follows:

(a) Ms Alford had noted in her report that Ms Anderson was highly disorganised.  Ms Jasper also gave evidence of Ms Anderson's classroom being disorganised and the NAPLAN testing starting late on each of the days.  On two occasions Ms Anderson submitted documentation required of her during the improvement action plan late and on the third occasion she did not submit it at all.  During the course of the hearing, Ms Anderson clearly demonstrated a lack of planning and organisation.  For example, it was apparent Ms Anderson had not read at least one of the Department's written outline of evidence in preparation for the hearing.

(b) Ms Anderson did not understand or implement teaching which differentiated between students or catered for the different levels of ability except in the most basic way.  Ms Anderson's differentiation largely focussed on students with individual education plans (IEPs).  The learned Chief Commissioner gained a clear impression that it was only in the course of the hearing that Ms Anderson came to understand what the requirement to differentiate meant when in fact she only did so at the most basic level.

(c) Ms Anderson failed to know her students.  She mistook some students for others during lessons and in assessments of their work, at a time when she ought to have been familiar with them.

(d) Ms Anderson relied heavily on her own professional judgment even when it contradicted the professional judgment of others when they had expertise and she did not.  In particular:

(i) In 2010, Ms Anderson was teaching a primary school class which included a student who had a hearing disability.  He was to be assisted to hear by his teachers wearing a lapel microphone and monitor referred to in the documents as a FM device.

(ii) On 11 November 2010, Ms Anderson had an appointment to meet a visiting teacher of the deaf.  Following the meeting, the visiting teacher made a complaint about Ms Anderson not wearing the FM device.  Ms de Jonk spoke to Ms Anderson about the incident.  The visiting teacher prepared an incident report which alleged Ms Anderson made a number of comments which included that the student in question was not her number one priority, she was too stressed and busy, managing behaviour, speaking to parents, managing horrible children and writing reports, to trial the FM microphone and did not have time to turn it on and set it up to use in the room.  Ms Anderson provided a response in writing to the complaint made by the visiting teacher.  It painted the content of the conversation in a different context, but was a demonstration that the complaint was valid, that Ms Anderson appeared either disinterested or callous in respect of this student's needs, assumed that she knew best as to what was appropriate for this student and that her priorities were elsewhere than in assisting this student.  Her comments included that she had observed the student interact in a variety of settings and, in her opinion, he did not fit into that category of student who was disadvantaged by her not using the FM device. She made up her mind about his needs, contrary to the assessments that had been made by others, notably the medical profession, regarding his needs.

(iii) In May 2013, the issue of the use of the FM device arose again in respect of another student (ts 109).  When giving evidence Ms Anderson was asked why she did not wear the device.  In response, Ms Anderson said that with all she had to do in setting up the class, and as a history specialist without a dedicated classroom, her priority was not for her to wear the FM device. She also said she did wear it on a few occasions, that the student had asked her more than once to wear it, and that she, Ms Anderson, did not understand why it was such an issue (ts 110).

(iv) In 2011, Ms Anderson gave all her students a C for science.  Both Ms de Jonk and Mr Neates gave evidence that Ms Anderson conceded to them that she had not taught science that semester.

(v) Ms Anderson taught one of her history classes using a timeline.  The students were required to do two things; to copy the timeline on the classroom board and then to come up with some interesting facts.  There was a concern that Ms Anderson marked two students' almost identical pieces of copying quite differently.  Ms Anderson initially said that she marked the two separate pieces of work, one being a timeline and the other being for the students to identify some interesting facts, as part of the same total assessment and therefore two students whose timeline activity was almost identical received different marks because of their other assessable piece.  However, the evidence demonstrated quite clearly that the students were separately marked for each activity.

(vi) One of the issues where Ms Anderson is said to have substandard performance is in classroom behaviour management.  Ms Alford described students as being disengaged and that Ms Anderson did not use appropriate classroom management strategies.  Ms Navarrete's observations of Ms Anderson's classroom management were detailed in her extensive records provided to Ms Owen.  Her many concerns include that students were off task and Ms Anderson made all the students work at the same pace so those who worked fast had to wait for others.

(vii) Ms Anderson relied on evidence from Ms Karen Hearty, the school chaplain, retired teacher Ms Robin Quinn, Mr Brian Toop, Ms Ljiljana Mijativic and Mr Ross Tyler to support her claim that her classroom management was satisfactory.  However, the learned Chief Commissioner found their evidence to be of limited, if any, value.  Ms Hearty is not a teacher.  Ms Quinn retired from Hampton Park Primary School five to six years before Ms Anderson's dismissal.  Mr Toop simply made observations that Ms Anderson's class was quiet.  Ms Mijativic made a similar observation.  Mr Tyler made no comment that Ms Anderson's classroom management was satisfactory.

(e) Ms Anderson's responses to criticism of her performance included that she complied with requirements 'within reason'.  The expectation of teachers at West Balcatta Primary School included that the teacher listen to each student read once per week.  Ms Anderson said that she did this 'within reason' and that she endeavoured to do so.  Other evidence included that she had the parent helpers in her classroom listen to and perform some type of assessment of the students' reading.  However, Ms Alford's report was that Ms Anderson admitted to only having listened to 10 students in the semester because she did not have time to listen to them.

(f) Ms Alford also observed that Ms Anderson's lessons had no substance to them.  Ms Alford could not identify any relevant teaching strategies in Ms Anderson's lessons and Ms Anderson did not set learning goals for her students.

51      The learned Chief Commissioner found that having taken account of all of the evidence before her she had no reservations in finding that Ms Anderson's performance was not proficient for a teacher of her qualifications and experience.  She also found that Ms Anderson did not meet the Standards as alleged and did not meet any of the Standards for a proficient teacher.

52      The learned Chief Commissioner turned to the question of whether there was some basis for overturning the decision to dismiss Ms Anderson due to issues of procedural fairness.

53      The learned Chief Commissioner dealt with the claims Ms Anderson makes in respect of the assessment process being unfair.  In respect of the history specialist role, she made the following findings:

(a) Ms Anderson complained she was not provided with the necessary resources and supports to undertake the additional requirements of the history teacher role and the additional DOTT time of one hour and 20 minutes per week provided to her in 2013, together with some school assembly time, was inadequate, given the additional research, preparation, marking and organisational matters required of her.  Ms Anderson also said it was significant that the history teacher role required her to teach 350 students.  However, in effect, whilst she had 13 classes a week she was not preparing for 13 lessons but for five lessons, some repeated up to four times.  A normal classroom teacher would need to prepare for all classes throughout the week, with some exceptions.  A normal classroom teacher may not be assessing the work of 350 students, but of the same much smaller group of students for many varied pieces of work.

(b) Ms Anderson was required to deal with and develop a new curriculum.  Yet, all teachers have to adjust to new or altered curriculum requirements and to new teaching and assessment methods.  However, the assistance she received, the additional DOTT time and assembly time, and her participation in the network of history teachers meant that this complaint was not valid.

(c) While there might have been challenges to Ms Anderson taking on the history teaching role, it ought to have been within the capacity of a proficient teacher to do so in the circumstances that applied to Ms Anderson.

(d) Although Ms Anderson complains that she did not elect to be a history specialist and it was imposed on her, she was not unhappy to do so.  Following discussions with Ms Anderson and Ms Helen Olivieri from the State School Teachers' Union (SSTU), Mr Neates had reason to believe that Ms Anderson would be happy with this role if he had been able to provide her with her own classroom.  However, this had not been possible at the time.

(e) Mr Neates gave examples of other specialist teachers at the school who moved from room to room and they did it exceedingly well.

(f) Ms Anderson did not have her own dedicated classroom and had to move from room to room.  It had not been feasible for her to conduct all of her lessons in the library or the computer laboratory.  However, had she made arrangements, she could have taught at least some of those lessons in either location.  Her lack of organisation would have been an impediment to her, but that was a matter of her own making.

54      After considering these matters, the learned Chief Commissioner found that she was not persuaded that there was any substantive unfairness in Ms Anderson undertaking the history specialist teacher role.  She also found if there were any aspects of unfairness in this, they were taken into account in Ms Anderson being provided additional DOTT time and assembly time, and later an opportunity, with additional support, to perform a classroom teacher role.  Yet, she failed to perform as a proficient classroom teacher.

55      Ms Anderson also complained that she was assessed against all of the Standards when the allegation made against her was that she failed to meet three of them.  The same issue was considered by the learned Chief Commissioner in Stewart v Director General, Department of Education [2016] WAIRC 00822; (2016) 96 WAIG 1419.  In that matter, the learned Chief Commissioner found that a teacher is required to be proficient against all Standards and should have been able to demonstrate proficiency in those Standards on any day [187].

56      The learned Chief Commissioner found Ms Porter gave unchallenged evidence of the interrelationship of all of the Standards.  She also observed that:

(a) Ms Alford gave evidence about her assessments and it is clear that they could not be dealt with without some overlapping; and

(b) Mr Gillam gave evidence that his decision to terminate Ms Anderson's employment was not based on her failure to meet the Standards other than those against which the allegation of her lack of proficiency was made, that is, Standards 1, 4 and 5.

57      The learned Chief Commissioner then found that:

(a) there was no evidence of any professional development Ms Anderson claimed she missed when she moved to West Balcatta Primary School after having a two-year gap since her last classroom teaching role;

(b) the issues relating to Ms Anderson's performance at West Balcatta Primary School were the same problems she exhibited as a history specialist teacher at Hampton Park Primary School where she had taught for many years.  Therefore, the learned Chief Commissioner found there was no validity in Ms Anderson's complaints regarding the transfer;

(c) two issues contributed to her workload.  The first was her lack of organisation.  The second was she spent an inordinate and unjustifiable amount of time composing responses justifying and defending herself against valid concerns; and

(d) both colleagues and line managers offered and gave assistance to Ms Anderson to overcome the difficulties she was experiencing in her performance.  However, she either dismissed many of those suggestions and recommendations on the basis that they did not meet her own professional judgement, or she simply did not follow up on offers of assistance.

58      In the circumstances, the learned Chief Commissioner concluded that the dismissal of Ms Anderson on the basis that she was not a proficient teacher was valid and that the processes adopted in the assessments of her performance and in the decision to dismiss had not been demonstrated to have been unfair.  Accordingly, an order was made that the application be dismissed.

59      Although it is not referred to in the learned Chief Commissioner's reasons for decision, Ms Anderson did not take issue with anything that Ms Owen had to say.  Ms Owen's outline of evidence, together with her investigation report, was tendered into evidence without objection as exhibit R2 (ts 189 and 192).

Grounds of appeal

60      The grounds of appeal set out in the notice of appeal refer generally to points of law and contain a narrative of issues referred to documents tendered as exhibits and other documents before the Commission at first instance, but not tendered into evidence.

61      From the matters stated in the notice of appeal, three grounds of appeal emerge.  These are:

(a) Ground 1

62      The learned Chief Commissioner erred in failing to accord sufficient weight, or significance, to the fact that, when Ms Anderson's performance was formally assessed in 2013, she did not have access to sufficient resources, training in the new curriculum, use of a designated classroom and sufficient access to the school library or computer laboratory to implement and teach the new history curriculum.

(b) Ground 2

63      The learned Chief Commissioner erred in failing to find that Ms Anderson was not required to be 100% proficient in all areas of teaching the new history curriculum during the trial phase of introducing the curriculum.

(c) Ground 3

64      The learned Chief Commissioner erred in failing to take account of relevant considerations, namely:

(a) Ms Anderson lodged grievances pursuant to cl 40 of the 2011 Industrial Agreement regarding the lack of resources, training and support to implement the new history curriculum;

(b) the SSTU assisted Ms Anderson in her attempts to pursue the grievances;

(c) the Hampton Park Primary School administration, the district office and the head office of the Department did not accept the grievances;

(d) contrary to the finding made by the learned Chief Commissioner, Ms Anderson, at all material times, continued to pursue the grievances; and

(e) if Ms Anderson had been allowed to pursue the grievance procedure provided for in cl 40 of the 2011 Industrial Agreement, her complaint about working conditions, lack of resources and training would have been addressed which would have enabled her to deliver the new history curriculum proficiently.

65      It is of critical importance to the disposition of this appeal that Ms Anderson does not seek to challenge the findings made by the investigators that her performance at West Balcatta Primary School was substandard.

The appellant's submissions

66      Ms Anderson made a submission that in Western Australian primary schools, classroom teachers work with a one year level/age group on a daily basis for the whole school year.  The classroom teacher covers a variety of subjects generally during the school day.  The resources needed for teaching specific lessons are located in the classroom when a teacher is teaching a particular theme or topic, so they are close at hand and available at different times during the day.  To deliver each lesson a classroom teacher requires hands on materials, visual prints, charts, posters, books, digital technologies and other age appropriate resources that are located in the school's teacher resources area.  The use of a variety of resources is encouraged in order to appeal to the different learning styles of individual students.  Without a variety of resources that are age and subject appropriate, the kinds of learning activities, teaching methods and assessments that can be carried out are restricted.

67      Ms Anderson argues that it is not possible for one person to transport all of the resources normally stored in a classroom to deliver a curriculum from room to room on an hourly basis.  She says that having one designated classroom that is large enough to accommodate a class of students and all of the teaching materials needed to cover a variety of subjects and teaching aides suited to individual learning styles is the 'norm' in primary schools.

68      During 2013 and 2014, she was not provided with a designated classroom for teaching history at Hampton Park Primary School.  Her designated area for keeping materials was a room that she shared with an Aboriginal education assistant, the Italian and Mandarin LOTE teachers and the school chaplain.  The room was used by teachers in their DOTT time and by other teacher assistants bringing small groups of children into the room.  The room was also used by the uniform shop which took up half of the space which was open to the public, parents and children.

69      Ms Anderson says that she was directed to carry with her any materials she needed for history lessons.  In each one hour lesson, she visited a classroom that had been set up and resourced by its classroom teacher for a particular age group and the topics they were covering.  Whatever Ms Anderson planned to use for the history lesson had to be bought with her, unpacked and packed up after each one hour lesson.  Thus, she says it was not possible to provide the students in each class with a variety of history resources.

70      Ms Anderson disputes Mr Neates' evidence that there are other specialist teachers who delivered their curriculum going from room to room and they did it exceedingly well without a classroom of their own to work in.  In her submissions to the Full Bench, Ms Anderson made a submission that the drama teacher and the English second language teacher had designated classrooms.  She also made a submission about the physical education teacher being able to store physical education materials on the oval.  However, Ms Anderson was unable to point to any evidence given by her in these proceedings about these matters.  Further, she conceded that she did not challenge the evidence of Mr Neates when he was cross-examined in respect of this issue.

71      In respect of the assessment of students, Ms Anderson said that the criticism of her assessments of student work was that she was not providing a range of assessments.  Yet, she claims that history is a literacy subject so the assessments she was doing were pen and paper or paper and pencil type activities.  Ms Anderson also said she was directed by Mr Purdy not to carry out literacy-based assessments of history, but given that history is a literacy-based subject, it made her assessment tasks impossible.  She also claims:

(a) she had not received training as a history specialist teacher; and

(b) they were in a trial phase of introduction of the new history curriculum and there were not appropriate resources available to her to use to teach which left her unable to meet the demand for a range of assessments of students in those circumstances.

72      Ms Anderson also complained that she had a lack of access to the library or the computer laboratory to provide the children with research skills.  She said she was able to take some books out of the library, but she was unable to take a class set of library books out of the library on a trolley.  She said she asked Mr Purdy if she could do that and he refused.  Yet, she also said that there were no class sets of history reading material for the new curriculum as such items had not been purchased.  She did, however, say there was still a lot of material in the library which was similar to the topics that she was attempting to teach.

73      At the end of 2012, the administration of the school promised Ms Anderson that they would provide her with sufficient resources.  She claimed that the promise was not honoured and all she had to work with was the Pearson teaching guide and the use of a photocopier for which she was criticised for using photocopiable activities.  Yet, she said, the Pearson guide was the only teacher reference material that they could use to implement the new history curriculum.  The Pearson program published topic books for use for each individual student for purchase for each school level and she had asked for them, but they were not purchased.  In addition, Ms Anderson complained although they were in a trial introductory phase, she was blamed for a 'lacklustre' program, but the real reason the children were not receiving a variety of content, activities and strategies was because of the lack of resources that were available to her.

74      Ms Anderson also complained that she had an inordinate workload in 2013 and 2014 in delivering the history program.  She said she was expected to carry out all of the practical preparation of the three-year trial phase as well as having a full program up and running to teach history from grades 1 to 7.  Ms Anderson said that usually when a new curriculum is introduced in a trial phase teachers are not put under the pressure of delivering everything from the start of the program.  They are given time to experiment, to collaborate, to talk and modify activities and create the program over a period of time.  As a result of the demands of implementing history activities throughout the whole school, she said without adequate resources there was not time for her to start looking for professional development in other subject areas so her professional development during those two years got behind other primary school teachers.

75      Aside from the workload of creating the history program Ms Anderson said she was directed to read through all of the IEPs for the at-risk students in the school (about 70 students) and she was directed to show in her documentation differentiation or modification of teaching methods for each of those students.  She argues to prepare or modify activities for the 70 students throughout the school created an unreasonable workload.

76      Ms Anderson also claimed that the evidence established that:

(a) she was not provided with any instruction in the first semester of 2013 on what the school wanted in the history program, no targets, no goals, were set;

(b) there was no performance management provided to her and no negotiation with her line manager as to what they wanted to see achieved with the history program;

(c) there were no areas of weaknesses in her performance identified in that first semester;

(d) her performance management reviews from 2001 until 2012 kept by the school record that her performance was satisfactory;

(e) in her performance management plan in her first semester in 2013 there was nothing relevant in that program for the history teaching role; and

(f) there was no comment or assessment about behaviour management, curriculum content or strategies or any targeted comments to address in any particular area until the last day of term two in 2013 when she was told that she would be on an employee development plan the following term to assess whether her performance was substandard.

77      Ms Anderson argued that it was harsh to criticise her assessments of the students' work in the substandard performance review, in circumstances where there was a lack of practical means to carry out the program.  It was particularly so, given that the school had implemented the 'making consistent judgment standards' process for the previous seven years, it was unfair to expect her to assess 350 students to the expectations of every classroom teacher.  The 'making consistent judgment standards' is a strategy to address the fact that teachers teaching the same content in each same year level may not always come up with the same grade.  Consequently, the strategy requires teachers to consult and reach a consensus of opinion about the content of a subject and means of assessment which also would include the student materials that are sent home to parents and families.  She said that this strategy was not used when she delivered the new history curriculum as she was the only person teaching history at the school.  Yet, the administration had made it very clear to her that they were not happy with her grading of student work from grade 1 though to grade 7.  She said this was an unfair criticism because the entire responsibility of the program had been put on her shoulders and she was the one who had to identify which skills and content of the history curriculum taught to each year level and to assess the students' work samples to the skill that she was looking for in a particular activity.  She also said that the principal, Mr Neates, could have asked her to present particular activities with the classroom teachers of each grade and time could have been made for her to do that by the administration to sit down with each classroom teacher to look at students' work samples and activities and discuss with the classroom teacher which particular skill she was covering and what she was hoping to achieve in that activity.

78      Ms Anderson also claimed that other primary school teachers in the district who were implementing the new history curriculum were only experimenting with one history activity a week for their year level so she was the only person in her district who was teaching history lessons each day of the week to all year levels throughout the school without all of the resources that are normally available to other teachers in other subject areas.  In these circumstances, she said it was unfair of the employer to undertake a substandard performance review of her work in 2013.

79      Whilst Ms Anderson concedes that she had had over 10 years' experience teaching year 3 students, she claims there had been substantial changes in teaching strategies and that she had not been trained in the Standards or in the history curriculum.  However, she recognises that her 'skill set' had fallen behind other staff.  Consequently, she informed the members of the Full Bench that in the present circumstances she does not have any wish to be employed by the Department again.

80      During the hearing of the appeal, Ms Anderson was asked the question that, even if the Full Bench accepts all of her submissions that the assessment of her performance whilst carrying out the role of history specialist at Hampton Park Primary School is accepted, given that she does not challenge the findings made by the learned Chief Commissioner that her performance at West Balcatta Primary School was substandard, how do her submissions assist her case.  In response, Ms Anderson said that because she was effectively 'sidelined' for two years from mainstream primary school teaching, a lot of changes to the requirements of teaching with the introduction of national curriculum occurred in that period and whilst she was focussing only on history and trying to cope with an impossible workload, the changes made to the delivery of curriculum in other subject areas and training that other classroom teachers received, were missed by her.  She also argued that the fact that each school targets professional development for staff to meet the needs of their particular community, when she went to teach at West Balcatta Primary School she should not have been compared with other year 3 teachers at the school because she had not received the same professional development as the West Balcatta Primary School staff.  Consequently, she argues that she did not meet the standard that their staff were working at because she had not been upskilled in the same areas.  Thus, she argues that given that she had not received the same professional development as West Balcatta Primary School staff and because there had been major changes to curriculum, she did not demonstrate the level of proficiency that Ms Alford was looking for.  She also claimed that, if she had received the training in areas that other West Balcatta Primary School staff had received, she could have adapted her teaching methods and her work would have been found to be proficient against the Standards.

81      The main point Ms Anderson seeks to raise in grounds 1 and 2 of the appeal is that a lack of a designated classroom, teaching resource materials, insufficient training in the new history curriculum, lack of support from her line managers through performance management meetings and a high level of work required to deliver the new history curriculum, impacted on her ability to deliver the new history curriculum proficiently.  This point is also made in relation to ground 3 of the appeal, although the point that she seeks to raise is different.  The point that she raises about these matters in ground 3 is that if she had been allowed to pursue the grievance procedure provided for in cl 40 of the 2011 Industrial Agreement, her complaints would have required a negotiation at the school level about what resources should be available to her and would have affected the school's expectations of the standard of curriculum that she was required to deliver.

82      The point of this submission in ground 3 is that, if she had been allowed to pursue the grievance procedure and her complaints had been properly aired, the substandard performance process would never have commenced at Hampton Park Primary School which would have meant that she would not have been subjected to a second substandard performance process at West Balcatta Primary School.  Ms Anderson pointed out that the basis for the grounds of her dismissal relied not only the substandard performance report of her performance at West Balcatta Primary School but on grounds that her performance at that school affirmed the substandard report conclusions made of her performance at Hampton Park Primary School.

Conclusion

(a) Application to have regard to additional evidence

83      The appeal book and a book of documents and transcript pages filed by Ms Anderson on 12 July 2017 contain copies of numerous documents which were not tendered as exhibits in the proceedings at first instance.  All of these documents were produced in the course of the hearing before the learned Chief Commissioner.  At the commencement of and during the course of the proceedings at first instance, Ms Anderson handed to the learned Chief Commissioner and to counsel acting for the Director General a large number of documents in two lever arch files.

84      At the hearing of the appeal, Ms Anderson informed the members of the Full Bench that it was her understanding that all of these documents had been admitted into evidence in the proceedings at first instance.  The effect of her submission was that she did not understand that when individual documents had been given an exhibit number that they were the only documents that were admitted into evidence.  Counsel for the Director General at the hearing of the appeal, Mr van Hattem, conceded that there was some confusion about the tendering of documents in the proceedings at first instance.  He said, however, that the learned Chief Commissioner ruled that each individual document would be identified and its relevance addressed before becoming part of the evidence.

85      Mr van Hattem also made a submission at the hearing of the appeal that he had no objection to Ms Anderson referring to the additional documents she sought the Full Bench to have regard to and to make whatever submissions that she might wish to make.

86      The Full Bench informed the parties at the hearing of the appeal that it would deal with the objection to the documents on the basis that Ms Anderson be allowed to make a submission about the effect of those documents and how it is said they are relevant to the appeal.

87      Section 49(4)(a) of the IR Act does not prohibit the Full Bench from admitting additional evidence.  It does so if the evidence is 'fresh' and where special or exceptional circumstances are made out.

88      In Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291 it was observed [59] - [60]:

The test to be applied by the Commission for admission of fresh evidence on an appeal was for many years set out in the decision of the Full Bench in Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040, 3041 in which the Full Bench held that fresh evidence is only admissible if:

(a) The evidence was not available to the parties seeking to tender it at the time of the trial and the evidence would not have been available to that party with reasonable diligence in the preparation of their case; and

(b) The evidence must be such that it would have had an important influence on the result of the trial and must be credible, but not necessarily beyond controversy.

89      The Full Bench modified this criteria in Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437, when Sharkey P and Kenner C with whom Scott C agreed, said at [8] and [9] that fresh evidence can only be admitted if it is almost certain that, if the evidence had been available and adduced, an opposite result would have been reached.  They also observed that they had put this last condition too low in Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040 and they wished to retract what they said in that case and substitute the stricter criteria. The modified principle was applied by the Full Bench in Merredin Customer Service Pty Ltd as trustee for Hatch Family Trust t/a Donovan Ford/Merredin Nissan and Donovan Tyres v Green [2007] WAIRC 01150; (2007) 87 WAIG 2789 [10].

90      It is clear from a review of the transcript of the proceedings at first instance that the learned Chief Commissioner gave each document that she accepted into evidence an exhibit number.  Email correspondence from the associate to the Chief Commissioner sent to the parties indicate the parties were sent a copy of the index of the exhibits prior to the hearing of closing submissions.

91      At the hearing of the appeal, Ms Anderson informed the Full Bench that at the hearing at first instance she had intended to take a witness, Ms Olivieri, a case manager from the SSTU, to the additional documents that she seeks to put before the Full Bench which show that she lodged and pursued grievances pursuant to cl 40 of the 2011 Industrial Agreement.  However, when Ms Olivieri was called to give evidence, the learned Chief Commissioner ruled that she would not hear evidence about the pursuit of the grievances by the SSTU on behalf of Ms Anderson as, in her opinion, this matter was not relevant to the matter before her (ts 247 - 248).  Consequently, Ms Anderson was not able to put the additional documents relevant to this issue to the witness.

92      To the extent that the additional documents Ms Anderson wishes the Full Bench to have regard to are documents written by Ms Olivieri or documents addressed to Ms Olivieri which relate to the lodgement of grievances by Ms Anderson pursuant to cl 40 of the 2011 Industrial Agreement, I am of the opinion regard for a limited purpose can be had to the documents.  The purpose for which regard can be had to this category of additional documents is to determine whether there is any merit in the argument that the learned Chief Commissioner erred in failing to take account of relevant considerations specified in ground 3 of the appeal, that is, if these documents could or do raise merit in Ms Anderson's argument that if her grievances had been addressed and changes to her work implemented, her performance at Hampton Park Primary School would not have been assessed as substandard.  A determination of this issue necessarily involves a consideration of whether the learned Chief Commissioner erred in ruling that Ms Olivieri's evidence of Ms Anderson's pursuit of the formal grievance process was irrelevant to the question whether Ms Anderson had been denied procedural fairness in the substandard performance process (ts 247).

93      As to the remaining additional documents Ms Anderson seeks to adduce into evidence in this appeal, I am of the opinion these documents should not be admitted.

94      Firstly, at the hearing at first instance, the additional documents were contained with a large volume of bundles of documents produced by Ms Anderson known as the Monday bundle and Friday bundle.  The learned Chief Commissioner made an unequivocal ruling that she would not accept all the documents, but would only admit into evidence documents that the witnesses referred to (ts 187).  The additional evidence Ms Anderson seeks to put before the Full Bench is clearly not fresh as the documents were in her possession and in the hearing room available for her to refer to in her evidence or put to the witnesses when they gave their evidence.  Although there may have been some initial confusion about which documents would be received into evidence when the hearing at first instance commenced, the learned Chief Commissioner clearly identified and caused to be marked each document that she accepted into evidence with an exhibit number.

95      Secondly, in this appeal, the Full Bench invited Ms Anderson to make submissions about the relevance of the copies of the additional documents that were not received into evidence at first instance as exhibits.  Having read the written submissions, whilst it is apparent that the additional documents may appear to relate to issues that were raised in evidence at first instance, other than to refer generally in her written submissions to these documents, no submission was made by Ms Anderson as to why these documents were not referred to by any of the witnesses who gave evidence in the proceedings at first instance.

96      Consequently, with the exception of the documents authored by Ms Olivieri, I am of the opinion that with reasonable diligence the documents could have been referred to by Ms Anderson when she gave evidence in respect of the documents that were created by her or were addressed by her or by other witnesses, in particular by those who authored the majority of the additional documents, who were Mr Neates and Mr Purdy.

(b) Legal principles - harsh, oppressive and unfair dismissal

97      A determination of whether the dismissal of Ms Anderson was harsh, oppressive or unfair turned on an assessment of not only the oral evidence given by witnesses for the parties, but also of the written witness outlines of evidence which were tendered into evidence without objection from Ms Anderson.  In the absence of objection or cross-examination of the matters raised in the outlines of evidence and reports of Ms Alford, Ms Young or Ms Owen, the learned Chief Commissioner was entitled to accept the matters set out in the outlines of evidence and reports of these witnesses.

98      An evaluation of the evidence, which included the written outlines of evidence and reports of witnesses resulted in a finding by the learned Chief Commissioner that she was not persuaded that the dismissal of Ms Anderson was harsh, oppressive or unfair, involves an exercise of discretion.

99      The Full Bench is only empowered to set aside a discretionary decision in limited circumstances.  A discretionary decision cannot be set aside because members of the Full Bench would have exercised the discretion in a different way.  In House v The King [1936] HCA 40; (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ observed (504 - 505):

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

100   A Full Bench is required to accord an evaluative decision made by a Commissioner that a dismissal was, or was not, harsh, oppressive or unfair with significant deference:  Michael v Director General, Department of Education and Training [2009] WAIRC 01180; (2009) 89 WAIG 2266 [139].  In Michael, Ritter AP observed [143]:

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

101   Therefore, to succeed in this appeal Ms Anderson must show that the learned Chief Commissioner erred in law or made a mistake of fact, which error must necessarily go beyond a mere disagreement only on matters of the weight to be given to particular evidence.

(c) Do the grounds of appeal have any merit?

102   The difficulty with the arguments raised by Ms Anderson is that the grounds of appeal and submissions made by Ms Anderson do not challenge the findings of credibility made by the learned Chief Commissioner.

103   The insuperable difficulty Ms Anderson faces in this appeal is that all of her submissions rely upon the acceptance of the validity of her grievances but necessarily require the overturning of findings of credibility made by the learned Chief Commissioner.  In particular, the Full Bench would have to be satisfied that the learned Chief Commissioner erred in finding that Ms Anderson was not a credible witness and erred in finding the evidence of Mr Purdy, Ms de Jonk, Mr Neates, Ms Navarrete, Ms Alford and Ms Young to be credible.

104   The first issue is whether the additional documents that relate to Ms Anderson's pursuit of grievances by the SSTU assists Ms Anderson's complaints that her grievances were valid and should have been addressed to provide her with the resources and training she required and sufficient access to the school library or computer laboratory or a designated classroom to enable her to carry out her duties as a history teacher proficiently.

105   Ms Olivieri sent the following letters on behalf of Ms Anderson:

(a) A letter to Mr Neates dated 2 September 2013 (pages 147 - 148 of book of documents and transcript pages).

(b) A letter to the Director General dated 11 September 2013 (pages 150 - 151 of book of documents and transcript pages).

(c) A letter to Mr Neates dated 17 September 2013 (pages 154 - 155 of book of documents and transcript pages).

(d) A letter to the Acting Director General dated 3 October 2013 (pages 161 - 163 of book of documents and transcript pages).

106   The content of these letters can be summarised as follows:

(a) The SSTU made a submission that the content of Ms Anderson's grievance does not raise issues with the evaluation of her performance but the process of her performance management, which include her workload and logistics she faces in teaching, in particular moving from room to room and no dedicated classroom.

(b) It is legitimate for Ms Anderson to raise her grievance under cl 40 of the 2011 Industrial Agreement.

(c) Mr Purdy has repeatedly refused to convene the required school grievance committee.

(d) Ms Anderson is unable to implement the employee development plan as it comprises an excessive and untenable workload.

107   The Director General did not accept the grievance on grounds that the matters raised in the grievance related to Ms Anderson's performance.  Ms Anderson subsequently participated in the employee development plan.

108   The fact that the SSTU attempted to pursue the grievance process on behalf of Ms Anderson does not assist her arguments for three reasons.

109   Firstly, Ms Young in her report, which was tendered without objection as an attachment to her outline of evidence and without cross-examination by Ms Anderson, had regard to all of Ms Anderson's complaints which formed part of her grievance and found her complaints were without merit.  The learned Chief Commissioner accepted this evidence and in this appeal Ms Anderson does not seek to challenge any finding of credibility.

110   Secondly, the learned Chief Commissioner, after hearing all of the evidence put before her, found Ms Anderson's complaints to be without merit.  In particular, she found that:

(a) all teachers have to deal with and adapt to new curriculum;

(b) Ms Anderson's lack of organisation was of her own making and would have been an impediment to her;

(c) if there was aspect of unfairness to her undertaking the history teacher specialist role she was compensated for this with additional DOTT time and assembly time; and

(d) it ought to have been within the capacity of a proficient teacher to take on the history curriculum role in the circumstances that applied to Ms Anderson.

111   Thirdly, the Department did not act on its substandard performance findings made of Ms Anderson's performance carrying out the history specialist role in 2013.  In the first semester of 2015, Ms Anderson was provided with the opportunity of performing a year 3 classroom teacher's role with support in circumstances where she had 10 years' experience in teaching year 3.

112   In circumstances where no error can be demonstrated in these findings, there is no basis to find that Ms Anderson could have carried out her duties proficiently if her complaints had been accepted and acted on by her line managers and Mr Neates at Hampton Park Primary School.

113   In any event, the fact that Ms Anderson's performance management plans between 2001 and 2012 do not record any substandard performance issues do not assist her case, in the face of clear evidence of complaints made about various issues in 2010, 2011 and 2012 and particularly in the face of her failure to teach her year 4 students science in 2011.  The fact she recorded an assessment of 'C' for science for all her students was a clear indication that there were unacceptable issues going to Ms Anderson's performance.

114   Nor do I accept Ms Anderson's contention that, because she had carried out the role of specialist history teacher for two years prior to being transferred to West Balcatta Primary School to take up a year 3 teaching position, she missed two years of professional development that classroom teachers at West Balcatta Primary School had received, which resulted in her performance at that school being assessed as substandard.

115   This contention cannot be accepted for three reasons.  Firstly, as the learned Chief Commissioner found, no evidence was adduced by Ms Anderson of the professional development she missed out.  Secondly, reports attached to Ms Alford's outline of evidence, the assessor of her performance at West Balcatta Primary School, demonstrate a systematic failure by Ms Anderson to reach a proficient standard in respect of any of the focus areas of the seven Standards required of any teacher within three years of graduation (exhibit R11 and exhibit R5).  Thirdly, as the learned Chief Commissioner found, Ms Anderson lacked proficiency in Standards 1, 4 and 5 in, among other matters, both in her role as a specialist history teacher in 2013 and as a year 3 teacher in 2015 in that she:

(a) demonstrated poor organisation of classes;

(b) had poor capacity and practice in knowing her students and differentiating her teaching beyond the basic level;

(c) failed to be familiar with her students and became confused about who they were; and

(d) had poor assessment practices.

116   When regard is had to the observations of Ms Alford in her reports, it is apparent that many of these issues are matters that are not related to changes in curriculum or changed methods in teaching.  For example, in Ms Alford's report of her visit to Ms Anderson's classroom on 29 May 2015, under the heading 'Standard 4 Create and maintain supportive and safe learning environments', Ms Alford stated:

As indicated in the previous report, Ms Anderson's interactions with students are always polite, however, students constantly interrupt the lesson with avoidance questions and are responded to which impose on teaching time. In the observed lessons there was no evidence of expectations, rules or consequences outlined of any kind, in particular in regard to student's constantly interrupting the lesson.

There was ineffective monitoring of student behaviour during lessons. Students during the reading lesson were constantly chatting and off task. Effective classroom management strategies were not implemented.

117   It is apparent that effective classroom management is a fundamental requirement of all teachers whether they are senior or junior and cannot be said to be part of a teaching strategy that has changed over time or part of changes implemented in 2013 and 2014 to the delivery of curriculum to year 3 students.

118   For these reasons, I am not satisfied that Ms Anderson has made out any of the grounds of appeal as she has not demonstrated that the learned Chief Commissioner erred in the exercise of her discretion to dismiss Ms Anderson's application.

KENNER ASC:

119   The appellant appeals against a decision of the Commission dismissing her unfair dismissal claim, arising from the termination of her employment as a teacher, on the ground of substantive performance. The appellant, a primary school teacher of many years standing, was subject to substandard performance assessments at two primary schools, Hampton Park Primary School and West Balcatta Primary School. The substandard performance process at Hampton Park commenced in early 2014, following concerns in relation to the appellant's performance as a history specialist. The investigation conducted by the respondent, concluded that the appellant did demonstrate substandard performance in at least two standards specified by the Australian Institute for Teaching and School Leadership. These Standards specify levels of performance against seven key criteria. A qualified teacher, with at least three years' experience, must at least demonstrate performance at the 'Proficient' level. The Standards are generic in nature and apply to all teachers and teaching areas.

120   In early 2015, a decision was made to transfer the appellant to West Balcatta as a year 3 general teacher. This was to provide her with a further opportunity to demonstrate meeting the minimum performance requirements of the Standards. The appellant's performance against the Standards at West Balcatta was assessed by a qualified AITSL Standards Assessor, Ms Alford, who is also a deputy principal of a primary school. That assessment, undertaken up to mid-2015, also concluded that the appellant did not demonstrate satisfactory performance to the proficient level, in Standards 1, 4, and 5. Those standards deal with 'Know students and how they learn; Create and maintain supportive and safe learning environments; and Assess, provide feedback and report on student learning', respectively.

121   Following a formal investigation undertaken by the respondent, the decision was made to terminate the appellant's employment for substandard performance.

122   At first instance, the learned Chief Commissioner was not satisfied on the evidence, that the appellant had established that her dismissal was harsh, oppressive and unfair. Crucially, and an insurmountable burden facing the appellant for the purposes of this appeal, is that the learned Chief Commissioner found that the appellant did not challenge the respondent's investigation and conclusion, that she was not a proficient teacher, following the assessment at West Balcatta.  Nor did the appellant attempt to do so on this appeal, despite such a course being fraught with difficulty, given how the appellant conducted her case before the Commission at first instance.

123   In other respects, having had the benefit of reading a draft of the reasons of Smith AP, with which I am in general agreement, the appellant has not established that the learned Chief Commissioner was in error in dismissing her unfair dismissal claim. The appeal must be dismissed.

MATTHEWS C:

124   I have had the benefit of reading the draft reasons of Her Honour, the Acting President.  I agree with those reasons and have nothing to add.