WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2017 WAIRC 00021 CORAM :Chief Commissioner P E Scott HEARD : Tuesday, 12 July 2016 Monday, 14 November 2016 Tuesday, 15 November 2016 Wednesday, 16 November 2016 Thursday, 17 November 2016 Friday, 18 November 2016 Wednesday, 21 December 2016 DELIVERED : Friday, 13 January 2017 FILE NO. : U 67 OF 2016 BETWEEN : Jennifer Anderson Applicant AND Director General, Department of Education Respondent CatchWords : Industrial law (WA) - Termination of employment - Unfair dismissal - Teacher - Substandard performance - Performance issues - Performance assessment process - Australian Professional Standards for Teachers - Improvement Action Plan - Transfer for second assessment Legislation : Industrial Relations Act 1979 s 23A, s 29(1)(b)(i) Result : Application dismissed Representation: Applicant : Miss J Anderson Respondent : Mr N van Hattem (of counsel) and Ms A Gifford === REASONS FOR DECISION === ¶1 Miss Anderson was dismissed from her employment as a teacher on the basis that the respondent found that her performance was substandard. She says that: (a) Her performance was not substandard; and (b) She was subject to both substantive and procedural unfairness in the way she was directed to work and the way she was assessed. [Background] [The AITSL Standards] ¶2 The Australian Institute for Teaching and School Leadership (AITSL) Standards apply to teachers in all States across Australia. They 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 their registration, a teacher must be able to meet the ‘Proficient level’ for each focus area for all seven Standards within three years of graduation. There are seven such standards setting out the requirements on teachers at four levels: Graduate, Proficient, Highly Accomplished and Lead. Each Standard contains a number of ‘focus areas’. ¶3 Line managers who are appropriately qualified may determine if a teacher is Proficient across those 37 focus areas within the seven Standards. ¶4 There are also assessors independent of the individual schools, who assess a teacher’s skills and performance according to the Standards. The process for such an assessment includes that an accredited AITSL assessor external to the school, visits the school, observes the teacher’s teaching, examines the teacher’s planning, preparation and assessment documentation, and consults with the teacher’s line manager. Either immediately prior to this assessment process or during it, an Improvement Action Plan (IAP) is put in place. This involves the identification of the performance issues and of resources and supports, feedback and mentoring to assist the teacher to achieve the required level of performance. As the AITSL assessor undertakes a number of assessments over a period of months, the supports and other mechanisms in the IAP ought to be bearing fruit in that the assessor may be able to see an improvement in the performance. ¶5 After the final assessment, an investigator will examine the situation and report to the decision-maker about the teacher’s level of proficiency. [Miss Anderson’s employment history] ¶6 Miss Anderson was employed as a primary school teacher for approximately 27 years since 1989. The history of difficulties associated with her employment include that she was dismissed by the respondent in 1995 on the basis that she was, in the terms used in the appropriate regulations of the time, an inefficient teacher. She challenged that decision in the Industrial Relations Court of Australia (WI 1446 of 1995). In his reasons for decision, Ritter JR accepted that Miss Anderson was an inefficient teacher at the time but found that the processes applied by the employer directly contributed to her inefficiency by undermining her status and capacity, and her self-confidence was dented by the process. He found that she had the potential to be an efficient teacher and that in the circumstances, her termination of employment had been harsh, unjust and unreasonable (Anderson v Minister for Education [1996] IRCA 324, 181 – 182). He ordered that she be reinstated. ¶7 Miss Anderson recommenced her employment in the second semester of 1996. After placements in a number of schools, in 1998, Miss Anderson was transferred to Hampton Park Primary School. ¶8 In 2000, the school’s then principal, Ms Price, raised a number of performance issues with Miss Anderson. For various reasons, a decision was taken not to proceed with the formal process in respect of Miss Anderson’s performance. ¶9 Miss Anderson says that there were no real problems with her performance brought to her attention between 2001 and 2011. [Recent performance issues and processes] ¶10 Mr Paul Neates was the school principal of Hampton Park Primary School from 2002. ¶11 Mr Ross Tyler and Ms Valerie Madigan were deputy principals and Miss Anderson’s line managers at Hampton Park Primary School from 2001 to 2011, and from 2001 to 2009, respectively. They each retired at the end of those periods. ¶12 Mr Glen Purdy and Ms Janet de Jonk became deputy principals in 2011. ¶13 In 2011, Hampton Park Primary School became an Independent Public School. According to Mr Neates, this meant that the school became more accountable and there were greater systems for collecting and analysing student data. Mr Neates says that with the additional information, he became more aware of issues with Miss Anderson’s performance. He says he tried to arrange more support for her, through a mentor, Mrs Kylie Jones. However, according to him, Miss Anderson ended their mentoring arrangement because she asserted that Ms Jones was aligned to Mr Purdy. Miss Anderson’s performance was then assessed and managed within the school. ¶14 Mr Purdy gave evidence that a number of issues arose regarding Miss Anderson’s performance which caused concern. Mr Purdy and Ms de Jonk, as line managers, communicated those concerns to Miss Anderson and observed a number of her classes. Feedback was provided to her including in writing. She responded in writing setting out her own views. ¶15 At the end of 2012, a decision had been made to place Miss Anderson in the role of specialist history teacher for 2013, delivering the new primary school history curriculum across all year groups and teaching some science, art and writing as relief teacher, relieving other teachers undertaking their duties other than teaching (DOTT) time. ¶16 In August 2013, an Employee Development Plan (EDP) was established for Miss Anderson, setting out the particular issues to be addressed and the plan to support her to address them. Meetings were held to deal with issues that arose. ¶17 Miss Anderson’s responses to correspondence and meetings were lengthy and detailed. In them, she provided her perspective on matters where she contested the comments made by her line managers and raised concerns of her own about a range of matters including workload. ¶18 It appears from the evidence that initially Miss Anderson did not actively engage in the EDP, however the union encouraged her to do so. ¶19 In November 2013, Miss Anderson attended a meeting with Mr Purdy to discuss classroom management strategies. Mr Brian Toop attended as Miss Anderson’s support person. The minutes of the meeting indicate that Miss Anderson was dismissive of strategies to assist her, responded in an aggressive manner, would not focus on the purpose of the meeting but kept wanting to focus on her concerns. Mr Purdy indicated that he would end the meeting if she continued to speak to him in an aggressive tone or could not remain on task. He did call the meeting to a close but advised her that despite her behaviour at the meeting, he would be available to discuss the issue of classroom observances, would continue to support her for the remainder of the EDP and would ensure he had a support person at any future meetings. Mr Toop agreed with the contents of these minutes and signed them (Respondent’s volume 1, 123). ¶20 A number of complaints were received from parents in 2013 about Miss Anderson’s teaching and classroom management. ¶21 At the end of 2013, Mr Neates wrote to Miss Anderson saying he was of the view that her performance was substandard. She responded. Mr Neates considered her response, however, he maintained his view and the matter was referred to the Director General. [The first substandard performance investigation] ¶22 In early 2014, Ms Sara Young was appointed to investigate and report on whether Miss Anderson’s performance was substandard. The allegation was that Miss Anderson’s performance was substandard by reference to the AITSL Standard 1 – Know students and how they learn; Standard 4 – Create and maintain supportive and safe learning environments; and Standard 5 – Assess, provide feedback and report on student learning. ¶23 Ms Young found that there had been a performance management process and noted areas of deficiencies in Miss Anderson’s performance in respect of the AITSL Standards. ¶24 Ms Young noted Miss Anderson’s concerns about the fact that she was required to deliver the new history curriculum across the school but had not worked as a specialist teacher prior to 2013. She also noted Miss Anderson’s concern that she did not have a dedicated history classroom and that this may have created difficulties for her. Further, Miss Anderson had complained of an excessive workload. She also provided a letter of support from Mr Norman Paini, Head of Department – Society and Environment at Morley Senior High School and leader of the Morley Network group ‘History and Beyond’. Mr Paini commended Miss Anderson’s ‘professionalism and the diligent way that she has trialled and implemented the Western Australian curriculum across all years at Hampton Park Primary School’. ¶25 Ms Young noted Mr Paini’s comments but placed little weight on them due to what she described as his limited exposure to Miss Anderson’s teaching and the potentially selective information available to him. She found that Miss Anderson’s performance as a specialist primary school history teacher was substandard as alleged in respect of AITSL Standards 1, 4 and 5, noting concerns about a range of issues in Miss Anderson’s performance. She said: These concerns are certainly sufficient to result in a reasonable apprehension about Miss Anderson’s performance meeting the requirements of satisfactory performance for a primary school classroom teacher. Outline of evidence of Ms Sara Young Respondent’s documents, volume 2, page 14 – 15 ¶26 However, she also noted Miss Anderson’s concerns regarding her particular circumstances of being employed as a specialist history teacher when this had not previously been her role and that Mr Neates had already expressed his view of her performance. Mr Purdy and Ms de Jonk had been directly involved in Miss Anderson’s EDP. Therefore I recommend that Miss 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 AITSL standards identified by Mr Neates. Such period would need to allow Miss Anderson the opportunity to demonstrate her performance against the assessment standard and should include an investigative process such that findings about Miss Anderson’s performance would be made at the conclusion of this opportunity. Outline of evidence of Ms Sara Young Respondent’s documents, volume 2, page 15 ¶27 Ms Young said that Miss Anderson ought to be placed in an ordinary teaching role to ensure that the process was not only fair but was seen to be fair, and that she be placed in another school for that period. This recommendation was accepted and Miss Anderson moved to West Balcatta Primary School where she was to be given ‘one further opportunity’ as a mainstream year 3 classroom teacher. She was to receive ongoing support and there would be an assessment by an AITSL assessor. ¶28 In semester 1 2015, Miss Anderson commenced at the West Balcatta Primary School. On 17 February 2015, Ms Renata Owen was appointed as the investigator and Ms Anna Alford was appointed as the AITSL assessor. ¶29 Ms Annalyn Navarrete was the deputy principal and Miss Anderson’s line manager. Ms Hilary Jasper was Miss Anderson’s mentor. ¶30 An IAP was developed for Miss Anderson which set out the relevant standards, the focus areas, the descriptors of satisfactory performance at Proficient level, the types of strategies to be used, and the support to be provided. ¶31 Between February and June 2015, the school received five complaints in writing from parents regarding Miss Anderson’s teaching and assessments. The evidence indicates that it is unusual for parents to make written complaints. ¶32 Ms Navarrete had other concerns including about Miss Anderson’s approach to the NAPLAN testing. ¶33 Ms Alford undertook observations of Miss Anderson’s teaching on 27 March 2015 and prepared an initial assessment dated 30 March 2015 in which she found that Miss Anderson’s performance was not at Proficient level in any of the seven Standards, not merely those in which she was alleged to be substandard. On 29 May 2015, she undertook an interim assessment. Again she found Miss Anderson was not proficient in any of the Standards. Her final assessment, following a school visit on 26 June 2015, resulted in an assessment that Miss Anderson was not proficient in any of the Standards. ¶34 Ms Owen, as the investigator, reported to Mr Clifford Gillam, the Executive Director Workforce for the Department of Education, on the matter and advised that Miss Anderson’s performance was substandard against the AITSL Standards. On 10 December 2015, Mr Gillam wrote to Miss Anderson to inform her that he had reached a preliminary view that her performance was substandard and invited her to respond to that preliminary view. She provided her response on 18 January 2016. On 23 March 2016, Mr Gillam wrote to Miss Anderson confirming his findings and the decision to terminate her employment. [The alleged unfairness] ¶35 In addition to challenging the respondent’s conclusion that her performance as a teacher is substandard, Miss Anderson raised issues in respect of substantive and procedural unfairness, that: (1) She was required to undertake work as a history specialist when she was not adequately trained or resourced; (2) 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; (3) There were inappropriate or unfair criteria in the assessment of her performance in that she was assessed against all AITSL Standards, not just against those in which she was allegedly substandard; (4) Moving her to a different school, to West Balcatta Primary 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. [The law] ¶36 Miss Anderson’s claim is referred to the Commission under s 29(1)(b)(i) of the Industrial Relations Act 1979, relying on the Commission’s powers set out in s 23A of the Act that her dismissal was harsh, oppressive or unfair. ¶37 The law regarding this claim is set out by Brinsden J in Miles & Others t/a The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at 385. 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’. ¶38 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 at 899 per Nicholson J). The distinction between substantive and procedural unfairness is not always useful. Rather, the test set out in Undercliffe is to be applied (see Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 393 at [72] per Heenan J). [Assessment of the evidence] ¶39 I have no hesitation in preferring the evidence of other witnesses where it conflicts with Miss Anderson’s evidence. On a number of occasions, she was evasive, she equivocated to the point of significantly undermining her own evidence, many of her explanations were not plausible and she was inconsistent. An example of this is whether she was required to be at the school 15 minutes before her DOTT time and she finally conceded, after attempting to divert from the issue, that she planned to be there by 8.30 am but sometimes was a few minutes late due to traffic (ts 109, 202). ¶40 Miss Anderson also 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. For example, where Miss Anderson had been required to wear a device which would assist students with hearing disabilities to hear, it was alleged that she rarely did. It was her evidence that based on her own observations the particular student, L, could hear reasonably well. However, he had been properly assessed by the medical profession and a recommendation made that this device be used to ensure that he was able to hear properly. ¶41 In another instance, Ms de Jonk had given Miss Anderson a directive to not spend time calling the roll each lesson. However, she continued to do it till the end of the year because ‘[a]s a professional it was my choice at the beginning of the lesson’ and she disagreed with the directive (ts 123). This issue had an impact on her time management. While it might be argued that it assisted Miss Anderson to become familiar with her students, it was not successful, as I will explain later. ¶42 On the other hand, I found Mr Purdy to be a very impressive witness. The way he described the requirements for teachers to plan, assess and manage their students made those things very clear. ¶43 Ms de Jonk was very clear and was unshaken in her evidence. She gave examples of why Miss Anderson was not actually doing as she was required, of her own approach to dealing with Miss Anderson’s performance and of the assistance provided to Miss Anderson. ¶44 Mr Neates was a credible witness. I found him to be genuine in his concerns and desires to assist Miss Anderson in her performance as a teacher, and his evidence is supported by other evidence. ¶45 I found Ms Navarrete to be very objective, and she believed at the outset of their involvement that Miss Anderson had the potential to be a proficient teacher. ¶46 It is also critically important to note that Miss Anderson did not challenge the Outlines of Evidence and attached documents of Ms Alford, the AITSL assessor, Ms Porter, who gave evidence about the AITSL Standards, or Sara Young, the investigator. In those circumstances, I am obliged to accept that evidence unless it can be demonstrated that there is good reason not to do so. Their evidence was confirmed by other evidence called by the respondent. Therefore, given my conclusions about the unreliability of Miss Anderson’s evidence, I accept their evidence where it conflicts with Miss Anderson’s evidence. [Was Miss Anderson a Proficient teacher?] ¶47 As I noted earlier, the evidence of Ms Alford that Miss Anderson was not a Proficient teacher was not challenged. In the circumstances, I accept that evidence. However, it is also important to note that it is supported and confirmed by a great deal of other evidence covering a range of issues over the whole period from 2011. ¶48 Mr Gillam’s decision appears to be based on Ms Owen’s investigation report. This report traversed the history of Miss Anderson’s employment, from the material covered in Ms Young’s report up to the completion of the report by Ms Alford. ¶49 In the circumstances, it is not my intention to try to address each Standard or focus area where Miss Anderson’s performance was found to be substandard as alleged. Rather, I intend to deal with the evidence of a number of important and central issues which demonstrate the types of problems with Miss Anderson’s performance. These are far from exhaustive. [A lack of organisation and planning] ¶50 In her first observation on 27 March 2015, Ms Alford noted that Miss Anderson was highly disorganised and gave an example. This lack of organisation was noted again in the final report. ¶51 Ms Jasper gave evidence of Miss Anderson’s classroom being disorganised and the NAPLAN testing starting late on each of the days (see Ms Jasper’s notes for 11 to 14 May 2015, respondent’s volume 2, 175). There was a good deal of other evidence of Miss Anderson’s lack of organisation. ¶52 Ms Navarrete also noted that on two occasions Miss Anderson submitted documentation required of her during the Improvement Action Plan late, and on the third occasion, did not submit it at all (ts 393). ¶53 During the course of the hearing of this matter, Miss Anderson clearly demonstrated a lack of planning and organisation. For example, at the end of the third day of the hearing, when there was a discussion about whether any of the respondent’s witnesses were needed for cross-examination by Miss Anderson, she indicated that she did not know who Ms Christine Porter, one of the respondent’s proposed witnesses, was. The respondent had filed and provided to Miss Anderson a detailed outline of Ms Porter’s evidence on 24 October 2016, some weeks before the hearing. By the third day of the hearing, on 16 November 2016, it was apparent that Miss Anderson had not read Ms Porter’s evidence in preparation for the hearing (ts 189). ¶54 Further, almost all of the documents which needed to be referred to during the course of the hearing were available within the documents filed by the parties ahead of the hearing. Miss Anderson’s way of dealing with those documents was to file two bundles of documents, not paginated or organised in a systematic way, and then referring to them each individually by date. Most generously, the respondent’s counsel offered to take the documents away, paginate them and in this way assist in the identification of the documents. ¶55 Also, rather than refer to the documents which had already been filed and which all parties had copies of, Miss Anderson then produced photocopies of those documents she wished to refer to for herself, the Commission, the respondent and the witnesses. She also appeared not to have prepared the questions she wanted to put to the witnesses. [Differentiation of students] ¶56 The expectation of teachers is that they will identify students according to their levels of ability and other impediments to their learning, and set their teaching and learning exercises to meet the needs of all of the students by differentiating the activities and assessments for them both in clusters of students but also as individuals. ¶57 The evidence is clear that Miss 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. Miss Anderson’s differentiation largely focussed on students with individual education plans (IEPs). Then she divided them into the three broad groups of ability. ¶58 Ms Alford noted that Miss Anderson did not make an effort to differentiate the lessons to students of different abilities. Open-ended activities did not meet that test. ¶59 Ms Navarrete said that although Miss Anderson had identified the students’ results from 2014 and divided them according to their reading or spelling age, it did not necessarily show their abilities. Identifying the students in this way does not necessarily lead to a conclusion that they were then taught in a way that met the educational needs and challenges for them as individuals. She also provided for activities aimed at different groups within the class, but there was no demonstration of differentiation for individuals. Also, there was no demonstration of which students were in the different ability groups, what objectives or learning outcomes were set for each ability group, or the difference in assessment or success criteria. Ms Navarrete would have expected to see separate sets of objectives, learning activities and success criteria but they were not obvious. ¶60 Ms Navarrete also said that even if the planning documents suggested differentiation, there were discrepancies between what was in the planning document and what actually happened in the class she observed. ¶61 I gained a clear impression that it was only in the course of the hearing that Miss Anderson came to understand what the requirement to differentiate meant, but then reverted to her previous stand of having actually differentiated when in fact she only did so at the most basic level. ¶62 Although Miss Anderson claims to have not received examples of differentiation until quite late in the process of assessment, it is clear that this information had already been made available some months before that. [Failure to know her students] ¶63 Miss Anderson 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. In June 2013, in front of other students, she mistakenly identified a particular student by saying ‘you’re the one who has a reading disability’. In fact, he did not have a reading disability, and students heard the comment and later commented on or questioned his ‘disability’. Miss Anderson acknowledged the incident but claimed to have to learn 350 students’ names because she was working as a specialist teacher and so taught them for only one hour per week. However, she had already taught many of them as their classroom teacher in earlier years. Also, by the time this incident occurred, she had been teaching the student for many weeks. ¶64 It took Miss Anderson some time to acknowledge in the hearing that she may have made an error in speaking to the child in front of the class and that she had learnt from it (ts 122 – 128). ¶65 There was another occasion in September 2013, where Miss Anderson identified a student, A, by the wrong name and Miss Anderson’s assessments of the student were less than what was expected based on the student’s previous assessments. When this matter was raised with Miss Anderson, she said: [A] is such a quiet and well behaved student I don’t often hear her comment or give her opinion in discussions. With a more determined effort to speak up in class it will be possible to see more of [A]’s personality and the lovely student “she really is”. Respondent’s volume 1, 215 ¶66 In cross-examination, Miss Anderson said ‘if she was a bit more talkative in class’ the student would have been more easily identifiable. She said getting to know someone is a two-way street; it is up to them too, the student was ‘very quiet’ (ts 131). Yet this was in September 2013, after she had been teaching this student for some time. Further, she placed the blame on the student for being quiet as being the reason why she was unable to identify who the student was. ¶67 Also, although this was a time when Miss Anderson was teaching this student as a specialist history teacher, Mr Neates’ email to Miss Anderson indicates that the previous year, Miss Anderson had been involved in year level activities which would have brought her into contact with A (Respondent’s volume 1, 212). [Use of the FM device] ¶68 I noted earlier, in relation to why I chose to prefer the evidence of others where it conflicted with Miss Anderson’s evidence and the issue of her reliance on her professional judgment, an issue regarding a student with a hearing disability. ¶69 In 2010, Miss Anderson was teaching a primary school class which included a student, L, 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’. ¶70 On 11 November 2010, Miss Anderson had an appointment to meet a visiting teacher of the deaf, Sara. Following the meeting, Sara became upset at Miss Anderson’s responses to her regarding L’s placement in the classroom and Miss Anderson not wearing the FM device. Ms de Jonk spoke to both Miss Anderson and Sara about the incident. Sara’s comments contained in an incident report prepared by Ms de Jonk include that Miss Anderson allegedly made the following statements: [L] is not my number 1 priority I have many children who need my time. I have other children whose parents say need to be in the front row so he is in the second row. If you want to take some of the children out and teach them I will have more time to teach [L] and use the FM I am too stressed and busy managing behaviour, speaking to parents, managing horrible children and writing reports to trial the FM microphone and didn’t have time to tum it on and set it up to use in the room. You can’t make me use this thing and if you do I will go on stress leave and it will be your fault. This is not a chalk and talk classroom and so the microphone won’t work. I am not prepared to use the FM 100% of the time. Jennifer advised the [visiting teacher] that time was up and walked out to go back to class. Respondent’s volume 1, 74 ¶71 Miss Anderson provided a response in writing, setting out her version of events. It paints the content of the conversation in a different context, however, it seems to me to be a demonstration that Sara’s complaint was valid, that Miss 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. ¶72 Miss Anderson’s comments included that she had observed L 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. ¶73 In May 2013, the issue of the use of the FM device arose again in respect of another student (ts 109). ¶74 In cross-examination, Miss Anderson said, in effect, 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 said she did wear it on a few occasions, that the student had asked her more than once to wear it, and that ‘I don’t understand why you’re making such an issue out of this’ (ts 110). ¶75 Miss Anderson also claimed that because she did not have her own classroom, she was too busy moving from room to room, packing up and then setting up in a new classroom, thereby making use of the device a low priority. I will comment later on this issue of not having her own classroom and its effect. In any event, the complaint about her not using the device first arose in 2010 when she was a classroom teacher with her own classroom. Therefore, her explanation of having to move from room to room as she did in 2013 lacks validity. ¶76 On 20 May 2013, Mr Purdy met Miss Anderson to discuss her use of the FM device. In his subsequent letter, Mr Purdy noted that Miss Anderson acknowledged that she ‘need[ed] to be more vigilant in attending to the wearing of the FM device.’ He reminded her of the requirement to create ‘an inclusive learning environment’, and said that: ● FM devices must be used in all classrooms that have students that require the devices. ● Your planning needs to ensure you are aware of, and are accommodating all students who require learning adjustments. Discussions with the class teachers will assist you with this. ● Consequencing students for inappropriate behaviour must be in accordance with the school engagement policy at all times. Respondent’s volume 1, 73 ¶77 The evidence suggests strongly that other teachers had no difficulty in wearing the device. [Failure to teach science and a lack of proper assessments] ¶78 Mr Neates became concerned that in 2011, Miss Anderson gave all of her students a C for science. ¶79 Both Ms de Jonk and Mr Neates say that Miss Anderson conceded to them that she had not taught science that semester. ¶80 However, in her email of 14 December 2011 (Respondent’s volume 1, 170), Miss Anderson, amongst other things, said that the 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 in making beanies and scarves. ¶81 I have no hesitation in accepting the evidence of Ms de Jonk, who made notes of a meeting at which Miss Anderson conceded that although she had intended to teach science that semester, she ‘didn’t get it done’ (see Respondent’s volume 1, 143). ¶82 I also accept Mr Neates’ evidence that Miss Anderson implied to him in a meeting with himself and Ms de Jonk that she did not teach science at all. ¶83 I find Miss Anderson’s comments both in the email of 14 December 2011 and her evidence before the Commission to be a creation after the fact, to try to overcome the omission in teaching and the admission of it. [The timeline grading] ¶84 Miss Anderson taught one of her history classes using a timeline which was put up on the board. The students were required to do two things: to copy the timeline and then to come up with some interesting facts. There was a concern that Miss Anderson marked two students’ almost identical pieces of copying quite differently. ¶85 Miss 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. ¶86 However, the evidence demonstrates quite clearly that the students were separately marked for each activity. Therefore, there is no explanation as to why Miss Anderson marked the two timelines so differently other than that she marked them on the basis of their handwriting. This was simply an exercise in copying from the board and not an assessment of their learning in history. Ultimately, she conceded that the two items were separately graded (ts 233). [Classroom management] ¶87 One of the issues where Miss Anderson is said to have a substandard performance is in classroom behaviour management. ¶88 Ms Alford described the students as being disengaged and that Miss Anderson did not use appropriate classroom management strategies. She gave examples of her concerns. ¶89 Ms Navarrete’s observations of Miss Anderson’s classroom management were detailed in her extensive records provided to Ms Owen. Her many concerns include that the classroom had ‘tended to be quite hectic, loud and rowdy … students were off-task’. Miss Anderson made all the students work at the same pace so those who worked fast had to wait for others. This was as opposed to Ms Navarrete’s classroom where students’ individual needs were catered for, including by having additional challenging and extending activities for those who could. ¶90 Miss Anderson relied on evidence from Ms Karen Hearty, Ms Robin Quinn, Mr Brian Toop, Ms Ljiljana Mijativic and Mr Ross Tyler to support her claim that her classroom management was satisfactory. ¶91 Ms Hearty is a school chaplain. She is not a teacher, nor does it appear that, in spite of other qualifications, she is qualified to speak about the requirements on a teacher in respect of classroom behaviour management. She may be able to observe whether students were working quietly or whether there were disruptions, but she is unable to go beyond that. ¶92 Ms Quinn was, until 2009, a pre-primary school teacher. She worked at Hampton Park Primary School for 20 years (ts 238). She would take a shortcut through Miss Anderson’s classroom and would often speak to some of the students, particularly as many of them had been in her classes previously. Her evidence in relation to Miss Anderson’s behaviour management is of limited value given that it related to a period which finished five to six years before Miss Anderson’s dismissal. ¶93 Mr Toop commented that Miss Anderson’s classes, from his observations in walking past them, were quiet. However, he says that some teachers teach very successfully by having their classrooms quiet while others are successful with what he called a rowdy one, and ‘where groups are everywhere and everything’s all over the place’ (ts 281). Taken objectively, Mr Toop’s evidence says nothing of substance about whether Miss Anderson applied appropriate classroom behaviour management skills. From his limited observation, her class was quiet. ¶94 Ms Mijatovic worked as a teacher at Hampton Park Primary School for 26 or 27 years until her retirement in 2012. Her comment about Miss Anderson’s classroom was that the children listened and were well behaved (ts 293). ¶95 Miss Anderson says in her closing statement that Mr Tyler commented satisfactorily on her classroom management and referred to page 306 of the transcript. However, Mr Tyler made no such comment. ¶96 These witnesses’ evidence about Miss Anderson’s classroom behaviour management are of limited, if any, value, particularly given the detailed observations and assessments, with specific examples of problems, which are contained in the evidence of observations by her line managers and assessors, who gave both the specific detail and were qualified to assess what they observed. ¶97 In any event, as Mr Toop explained, successful behaviour or classroom management does not rely on whether students are working quietly or the room is rowdy. It is far more than that. It includes whether students’ inappropriate, albeit quiet, behaviour is tolerated or ignored, or corrected. It includes whether students are behaving in a manner that enables them and others to learn, and reflects whether they are engaged in learning. [Listening to and assessing students’ reading] ¶98 Miss Anderson’s responses to criticism of her performance included that she complied with requirements ‘within reason’. ¶99 The expectation of teachers at West Balcatta Primary School included that the teacher listen to each student read once per week. Miss 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. ¶100 Ms Alford’s report included that ‘Miss Anderson admitted to only having listened to ten students this year because she doesn’t have time to listen to them’ (Respondent’s volume 2, 68). ¶101 Miss Anderson denied having said this to Ms Alford. Miss Anderson says she may not have listened to each student read each week but she used a variety of sources to form her assessments of each of them, albeit that she did not keep formal records of each occasion. ¶102 Ms Navarrete says this was not adequate. Ms Navarrete says that in her own teaching practice, she listens to every student in her class read at least once per week, and those with special needs at least twice per week. She also makes anecdotal records every week. She says that at the end of the year, for each student, she had 40 assessments because she had listened to each of them and made anecdotal records every week. She says that was the standard for West Balcatta (ts 416). ¶103 Having listened to Miss Anderson as she gave her evidence, and particularly with her reference to having listened to the students read in accordance with the requirements on her ‘within reason’, and that she endeavoured to do so, leads me to conclude that it is more likely than not that Miss Anderson did say to Ms Alford that she listened to only 10 students that semester. [Other concerns] ¶104 Ms Alford also observed that Miss Anderson’s lessons had no substance to them. She could not identify any relevant teaching strategies in her lessons and she did not set learning goals for her students. This was echoed in the evidence of other witnesses. [Conclusions regarding whether Miss Anderson was a Proficient teacher] ¶105 Having taken account of all of the evidence, I have no reservations in finding that Miss Anderson’s performance was not Proficient for a teacher of her qualifications and experience. She did not meet the Standards as alleged. Further, she did not meet any of the Standards for a Proficient teacher. ¶106 The question then arises as to whether or not there is some basis for overturning the decision to dismiss due to issues of procedural fairness. [Unfairness in the process] ¶107 I have set out earlier the claims Miss Anderson makes in respect of the assessment process being unfair. [The history specialist role] ¶108 Miss Anderson says that she was not provided with the necessary resources and supports to undertake the additional requirements of the history teacher role. Additional DOTT time of 1 hour and 20 minutes per week was provided to her in 2013, and she did not have to attend all school assemblies. However, she says this was inadequate, given the additional research, preparation, marking and organisational matters required of her. ¶109 Miss Anderson said it was significant that the history teacher role required her to teach 350 students. The initial impression created by Miss Anderson’s submission regarding her timetable was not the reality. The timetable for 2013 contained, amongst other things, 13 history lessons. However, of these, a number were repeated to other classes. Two were for Year 1, four were for Years 2/3, one was for Years 3/4, three were Years 4/5 and three were Years 6/7. Therefore, in effect, 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. ¶110 All teachers do not remain teaching the one year throughout their careers, or even for many years, although some might. A normal classroom teacher may be allocated a different year group than previously and will need to learn the curriculum and undertake the necessary research. I recognise that Miss Anderson was required to deal with and develop a new curriculum. 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 means that this complaint is not valid. There were both benefits and challenges in taking on the new role. ¶111 While there might have been challenges to Miss 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 Miss Anderson. ¶112 Although Miss Anderson complains that she did not elect to be a history specialist and that it was imposed on her, I find that she was not unhappy to do so. Also, following discussions with Miss Anderson and Ms Helen Olivieri from the State School Teachers’ Union, Mr Neates had reason to believe that Miss Anderson would be happy with this role if he had been able to provide her with her own classroom (ts 380). However, this had not been possible at the time. ¶113 Mr Neates gave examples of other specialist teachers at the school who moved from room to room ‘and they did it exceedingly well’ (ts 381). ¶114 Miss Anderson did not have her own dedicated classroom and had to move from room to room. It appears that she had wanted to conduct all of her lessons in the library or the computer laboratory. This had not been feasible. After some equivocation, she finally conceded that she was not able 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. ¶115 I am not persuaded, firstly, that there was any substantive unfairness in Miss Anderson undertaking the history specialist teacher role. Secondly, if there were any aspects of unfairness in this, they were taken into account in Miss Anderson being given additional DOTT time and assembly time, and later, an opportunity, with additional support, to perform a classroom teacher role, yet she failed to perform that role as a Proficient teacher. [Assessment against all Standards] ¶116 It is true that Miss Anderson was assessed against all of the Standards when the allegation against her was that she failed to meet three of them. In Jean Stewart v Director General, Department of Education [2016] WAIRC 00822; (2016) 96 WAIG 1419, this same issue arose. In my reasons for decision in that matter, I noted: 180 The evidence of both Ms Porter and Ms Fielder is that the Standards are interrelated and do not stand alone. They each gave examples. They said that for a proper assessment to be done, the performance needs to be assessed against all Standards. Ms Porter says that ‘[i]t would be artificial to assess the Standards in isolation’. That ‘is why the TRBWA and the Department require teachers to be at the Proficient level across all seven Standards, and an assessor will appraise across all seven Standards, with a focus on the identified Standards of concern’ (Exhibit R6, [34]). I accept the evidence that it is necessary to assess against all Standards for a proper and thorough assessment of performance to be made because the performance against each of the Standards cannot be done in isolation. 181 As it happened, Ms Stewart was unsatisfactory in respect of all Standards. 182 In terms of the decision to terminate, Ms Butler explained in her report to Mr Gillam, and commented that the assessment ought to be in respect of only the two Standards where allegations of substandard performance had been made (Exhibit R11, [36]; ts 338). 183 Mr Gillam’s evidence makes it quite clear that he made his decision based only on the allegations in respect of two particular Standards. He said that had Ms Stewart’s performance been satisfactory in respect of those two Standards but unsatisfactory in the other Standards, he would have not made a decision to dismiss but the matter would then have raised questions about her performance in respect of other Standards. … 187 … I find that, as a teacher, she was required to be proficient against all Standards, and should have been able to demonstrate that proficiency on any day. To meet the Standards both individually and collectively, she needed to be able to do all things required by the Standards at the same time. Performance of one Standard supported performance of others … Stewart v Director General, Department of Education [2016] WAIRC 00822; (2016) 96 WAIG 1419 ¶117 In this case, Ms Porter gave unchallenged evidence of the interrelationship of all of the Standards. Ms Alford gave evidence about her assessments and it is clear that they could not be dealt with without some overlapping. Mr Gillam gave evidence that his decision to terminate was not based on Miss Anderson’s failure to meet the AITSL Standards other than those against which the allegation of her lack of proficiency was made, that is, AITSL Standards 1, 4 and 5. He said that what mattered was that Miss Anderson had not met the three AITSL Standards against which it was alleged that she was not Proficient. Therefore, as with the matter in Stewart, I find that this complaint is not valid. [Transfer and reversion to classroom teacher role] ¶118 Miss Anderson moved to West Balcatta Primary School having had a two year gap since her last classroom teaching role and she then undertook a classroom teacher role in a new school. Her complaint in her claim is that in addition to the two year gap, she had not had the same professional development as other teachers at that new school. However, there was no evidence of the professional development she says she missed out on. ¶119 The issues regarding her performance relate to poor organisation of classes; poor capacity and practice in knowing her students and differentiating her teaching beyond the basic level; problems caused by her failure to be familiar with her students and becoming confused about who they were; her poor assessment practices, and many similar matters. These are skills in which she ought to have been competent by this time in her career. They are the same problems she exhibited as a classroom teacher and as a history specialist teacher at Hampton Park Primary School where she taught for many years. ¶120 Therefore, I find that there is no validity in Miss Anderson’s complaints regarding the transfer. [Related issues] ¶121 While they are not part of her formal grounds in the application, Miss Anderson raised some related issues. [Workload] ¶122 Miss Anderson complains that during the final assessment period, her workload was greater because she had to prepare programming materials ahead of time to present them to the assessor. She asserts that many teachers ‘post-program’. I take this to mean that they do the recording of their teaching program after they have actually delivered the lesson. ¶123 Mr Toop’s opinion was that Miss Anderson being required to hand in lesson plans before the lesson was onerous and was treating her like a first year teacher. ¶124 I find that it is quite reasonable, as well as professional, for a teacher who is being assessed, to be required to prepare their program documentation before they actually deliver the lesson. I am not satisfied that this was an unfair or unreasonable burden on Miss Anderson or that it adversely affected her performance during this assessment period. ¶125 I am of the opinion that two issues contributed to her workload. The first was her lack of organisation. The second was that she spent an inordinate and unjustifiable amount of time composing responses justifying and defending herself against valid concerns. [Assistance and support] ¶126 The evidence is quite clear that there were many occasions upon which both colleagues and line managers offered or actually gave assistance to Miss Anderson in overcoming the difficulties that 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 judgment, or she simply did not follow up on offers of assistance. ¶127 I note that the support items in the 2015 IAP set out that Miss Anderson was to ‘seek and act upon’ a variety of resources including staff. The inference I draw from this is that the onus was on Miss Anderson to seek and act on available resources to enable her to achieve satisfactory performance at the Proficient level for each focus area of each Standard – that is, it was up to her, yet she also received a good deal of support and assistance. ¶128 Ms Navarrete thought Miss Anderson had the potential to be a Proficient teacher, saying there were support mechanisms and people in place who were supportive and very experienced teachers. Miss Anderson received all sorts of support in terms of lesson planning, programming, assessments and feedback. However, Ms Navarrete did not think these supports were necessarily acted upon. Miss Anderson either did not use them or did not follow up when offers were made to her. This is confirmed by the evidence of Ms Jasper. [Conclusion] ¶129 I conclude that the respondent’s dismissal of Miss Anderson on the basis that she was not a Proficient teacher was valid. The processes adopted in the assessments of her performance and in the decision to dismiss have not been demonstrated to have been unfair. ¶130 The application will be dismissed.