FEDERAL COURT OF AUSTRALIA

Zechner v Department of School Education [1999] FCA 445

INDUSTRIAL LAW – termination of employment - appeal against decision of primary judge which reversed the findings of a Judicial Registrar - appellant's employment terminated for alleged inefficiency in the discharge of her duties as a high school teacher - correctness of primary judge's finding that termination was for a valid reason - whether guidelines and procedures applicable to the assessment of alleged inefficiency were properly implemented - whether alleged failure to follow appropriate procedures resulted in the termination of employment not being for a "valid reason" - whether failure of primary judge to refer to evidence favourable to the appellant constitutes appealable error.

Industrial Relations Act 1988 (Cth)  s 170DC, s 170DE(1), s 170EA

Federal Court of Australia Act 1976 (Cth)  s 18AC

Teaching Services Act 1980 (NSW)  s 83(e)

D’Antuono v Minister for Health (1997) 80 FCR 226

MARLIES ZECHNER v DEPARTMENT OF SCHOOL EDUCATION

NG 1085 OF 1997

BLACK CJ, MOORE & LINDGREN JJ

15 APRIL 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed with no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT

Introduction

1                     This is an appeal by Mrs Marlies Zechner (“Mrs Zechner”) against the judgment of a single judge of the Federal Court of Australia of 9 December 1997.  On 15 December 1995, Mrs Zechner lodged with the Industrial Relations Court of Australia (“IRCA”) pursuant to s 170EA of the Industrial Relations Act 1988 (Cth) (“the Act”) an application for a remedy in respect of what she alleged was the unlawful termination of her employment with the New South Wales Department of School Education (“the Department”).  The application was heard over nine days in April and May 1997 by a Judicial Registrar of IRCA subject to review by a judge of that Court (see s 376 and s 377 of the Act).  On 22 August 1997, for reasons that will be examined in more detail shortly, the Judicial Registrar held that there was no valid reason for the termination of Mrs Zechner’s employment and, seemingly, that the termination had been in contravention of s 170DE of the Act referred to below, and ordered that Mrs Zechner be reinstated and be paid compensation for lost remuneration.

2                     Section 170DE (1) of the Act provided:

An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

3                     It has not been in dispute that the “operational requirements” limb is irrelevant to this case.

4                     Section 170DC provided that an employer must not terminate an employee’s employment for reasons related to the employee’s “conduct or performance” unless:

(a)       the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b)       the employer could not reasonably be expected to give the employee that opportunity.

5                     It has not been in dispute that s 170DC (b) is also irrelevant to this case.

6                     The Act was repealed by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) and replaced by the Workplace Relations Act 1996 (Cth). The 1996 amending Act transferred to this Court proceedings commenced in IRCA but in respect of which that Court had not begun the substantive hearing before 25 May 1997. Mrs Zechner’s proceeding in IRCA was of that kind because the substantive hearing of the Department’s application for review of the Judicial Registrar’s decision, shortly to be mentioned, had not been begun by that date; cf Kumar v Prime Furniture (NSW) Pty Ltd (1997) 75 FCR 477 (Moore J).

7                     On 1 September 1997, the Department filed in this Court an application for a review of the decision of the Judicial Registrar. Section 18AC of the Federal Court of Australia Act 1976 (Cth), which had been introduced by the 1996 amending Act, had given this Court the relevant review jurisdiction as from 25 May 1997.

8                     The review was heard by a judge of this Court on 8 and 9 December 1997.  While the review was a hearing de novo (see Association of Professional Engineers, Scientists, Managers Australia v Deniliquin Council (1995) 58 IR 275), much of the evidence led before the Judicial Registrar was not given afresh in the review.  The significance of this will become apparent later in these Reasons.  The evidence before the Judicial Registrar was, however, treated as evidence in the review, though some additional evidence was called before the primary judge. The hearing before his Honour occupied two days. In ex tempore reasons for judgment delivered following the end of the hearing on the second day, the primary judge set aside the orders of the Judicial Registrar and in lieu ordered that Mrs Zechner’s application under s 170EA be dismissed.

Background facts

9                     The following is a brief chronology of Mrs Zechner’s employment,taken from the evidence, as it relates to the issues arising in this appeal.  In 1983 Mrs Zechner commenced employment with the Department at Smith’s Hill High School where she taught in the English and History departments.  In June 1988 she applied to become a permanent teacher and was on probation from 3 June 1988 to 3 June 1989.  In June 1989 she was appointed a permanent teacher. She was transferred to Kiama High School in 1992. Her evidence before the Judicial Registrar was that she had been transferred because she had made complaints against members of staff at Smith’s Hill High School.  These complaints concerned the alleged sexual abuse of a year seven student, the teaching from a book that she regarded as satanic, the teaching of an activity called “levitation” in the drama curriculum, and harassment she allegedly received from the then History master who took issue with her teaching Bible classes during the lunch period. 

10                  Mrs Zechner taught in the English and History departments at Kiama High School from early 1992 until November 1993, when she went on sick leave due to stress.  On 30 November 1993 Mrs Zechner, accompanied by a police officer, went to the school to collect her teacher’s chronicle (“the chronicle”).  The school principal sent Mrs Zechner a letter requesting that the chronicle be returned.  It was not.  On 18 April 1994 Mrs Zechner received a letter from the Acting Director, Personnel, South Coast Region, informing her of charges against her relating to breaches of discipline.  The first two charges related to the removal of and failure to return the chronicle.  Further charges related to inefficiency in the discharge of her duties.  Mrs Zechner was suspended from duty.  In April/May 1995 an internal Departmental disciplinary proceeding was commenced in relation to the charges. It has not been an issue that in that disciplinary proceeding Mrs Zechner was “given the opportunity to defend herself against the allegations made” for the purposes of s 170DC(a) of the Act.  On 11 July 1995, the officer who conducted the proceeding recommended that Mrs Zechner be allowed to resign from the New South Wales teaching service. She refused this offer and was dismissed on 4 December 1995.

The approach of the Judicial Registrar

11                  The following is an outline of the facts as recounted by the Judicial Registrar and some of the observations he made in relation to them.  The central charge said to found the reason for the termination of Mrs Zechner’s employment was her alleged inefficiency in the discharge of her duties as a teacher.  Expressly, the charges related to alleged inefficiency in 1993.  The evidence before the Judicial Registrar generally related to inefficiency in the period from August 1992 onwards, that is, a period in which Mrs Zechner taught at Kiama High School.  Until that time, Teacher Assessment Review (“TAR”) schedules completed by the principal at Smith’s Hill High School indicated that Mrs Zechner was regarded as efficient, as did a similar review by the principal at Kiama High School undertaken in August 1992.  It was a series of events after August 1992 which were the subject of the hearing before the Judicial Registrar.  The evidence indicates that these incidents consistently involved four key figures: Mrs Zechner; Mr Faulks, who was the principal of Kiama High School; Mr Watson, who was head teacher of English at that school; and Mr Shoebridge, who was its head teacher of History.  Both Mr Watson and Mr Shoebridge acted as Mrs Zechner’s supervisors.

12                  On 15 September 1992, Mrs Zechner was interviewed by Mr Faulks in relation to an incident in which she had allegedly argued with Mr Watson. She did not recall either the meeting or the incident to which it related, although Mr Watson gave evidence before the Judicial Registrar that she had argued with him and had become very upset when he had told her that she was unable to remove certain students from her class because of their misbehaviour.  Mr Faulks recommended to Mrs Zechner that she try adopting a calmer approach.

13                  Mr Shoebridge gave evidence that shortly after this incident he became concerned about the noise coming from Mrs Zechner’s classroom and her aggressive tone towards students.  He said that he spoke with her about what he perceived to be her inappropriate manner and gave her a note that contained standard guidelines for “survival” in the classroom.  Mrs Zechner denied having ever received such a note, although a copy was retained by Mr Shoebridge.  Another memorandum was sent to Mrs Zechner by Mr Shoebridge on 17 November 1992.  It related to an incident the previous day when a student, who had been sent out of Mrs Zechner’s class for misbehaviour, discharged a fire extinguisher in the corridor.  The bell had rung and Mrs Zechner had gone directly to a staff meeting, leaving the room without rearranging the chairs and tables. She said that she told Mr Shoebridge of the incident at the staff meeting, apologised for the behaviour of the student and suggested that he should be disciplined by the principal.  Mrs Zechner later received the notesuggesting that she leave the room in a tidier state and take responsibility for finding out which student let off the fire extinguisher.  She was called to the principal’s office for an interview that afternoon.  The meeting was also attended by Mr Shoebridge.  Mr Faulks’ notes of the meeting recorded, among other things, that Mrs Zechner felt justified in complaining about the tone of the note from Mr Shoebridge.  The notes also indicated that on the morning following the meeting Mrs Zechner “verbally attacked” various members of the English staffroom about having discussed the matter with Mr Shoebridge and that she became “very angry indiscriminately”.

14                  Mr Faulks decided to place Mrs Zechner on a “development programme” and requested that Mr Shoebridge and Mr Watson supply him with a report about her. A report dated 18 February 1993 was supplied by Mr Shoebridge. It was not disclosed to Mrs Zechner until 15 March 1993 at a meeting on that date. The report expressed concern and a lack of confidence in Mrs Zechner’s ability to be an effective teacher.  Mr Shoebridge’s concerns were said to arise from “a limited number of dealings I have had with Mrs Zechner last year and from complaints and comments from students, staff and parents”.  Among the criticisms outlined in the report were Mr Shoebridge’s assessment that Mrs Zechner was “unable to appropriately implement meaningful lessons”, that she lacked the ability to “communicate ideas and information and to develop rapport and confidence” and that many students and parents “do not see her as a fit person to teach”.  Mr Shoebridge noted that he did not “trust her to do certain tasks such as writing tests”, that staff “have to carry her” and that she “tears” into staff in a “hurtful and unprofessional manner”.  He concluded with the observation that he saw “insurmountable problems ahead” and that he did not feel that much would change or could change “because she blames others for her own problems”.

15                  Mr Faulks gave evidence that he then instructed Mr Shoebridge and Mr Watson to prepare an “improvement plan” for Mrs Zechner to be implemented in 1993.  It would appear that in late February or early March 1993, Mr Watson also prepared a document entitled “Support Strategies – Marlies Zechner”.  This document set out what Mr Watson regarded as some of Mrs Zechner’s strengths, including “excellent, detailed preparation”, “conscientious marking”, “efficient record keeping” and “intense concern for student welfare”.

16                  On 3 March 1993 Mr Faulks again called Mrs Zechner in for an interview.  The minutes of this meeting indicate that its purpose was to advise Mrs Zechner that her efficiency was “causing concern”.  Mrs Zechner was not provided with an agenda nor informed of the purpose of the meeting.  The meeting was attended by Mr Watson as well as Mrs Zechner and Mr Faulks.  At the meeting Mrs Zechner was presented with a report prepared by Mr Faulks entitled “Report of the classroom management and teaching strategies of Mrs Marlies Zechner”.  The report noted Mr Faulks’ concern about Mrs Zechner’s “deficiencies in curriculum knowledge”, “difficulties in working with the two faculty teams of which she is a member” and “inability to maintain consistent teacher-pupil relationships”.  It further noted that an increasing number of Year 11 students had requested to be transferred from Mrs Zechner’s class, and that letters and phone calls had been received from parents expressing concern about her teaching methods, negative attitudes to students and promotion of personal religious beliefs in class. 

17                  Two days later, on 5 March 1993, Mrs Zechner replied in writing indicating that she should be presented with a programme suggesting how the list of deficiencies could be overcome.  She also stated that she would like to discuss the matter further in the presence of a delegate from her union, the Teachers’ Federation of New South Wales (“the Federation”), and that she would like to have copies of any letters of complaint received from parents. On the same day she wrote to Mr Blunden, Cluster Director for the Dapto Region of the Department, in response to the report of 3 March 1993. She responded to each of the complaints raised against her, namely, problems with the senior syllabuses, difficulty in working with faculty teams, hostility when questioned about duties, inconsistent teacher-pupil relationships, uncertainty on the part of students as to what was required of them, feelings of failure and inadequacy engendered in students and problems with her year 11 class. 

18                  The requested meeting was held on 15 March and the Federationdelegate, Mr Wilson, recommended that Mrs Zechner, Mr Watson and Mr Shoebridge meet to discuss a further plan.  It was at this meeting that Mrs Zechner was shown Mr Shoebridge’s report dated 18 February 1993 mentioned earlier.  In response, Mrs Zechner wrote to Mr Faulks on 17 March 1993 requesting that Mr Shoebridge present some concrete evidence “substantiating all these hurtful allegations”.

19                  On 5 April 1993 Mrs Zechner was present at a meeting with Mr Faulks, Mr Shoebridge and Mr Watson and was given a “revised improvement plan” prepared by Mr Shoebridge and Mr Watson.  Mrs Zechner had not been consulted in relation to its preparation or contents.  No union delegate was requested to attend and no notes appear to have been made of the meeting.  The document given to Mrs Zechner at the meeting indicated that the revised improvement plan was to operate, in part “retrospectively”, from 4 March to 28 May 1993 inclusive.  Mrs Zechner claimed that she was already doing what was required of her in the plan and that, in any event, nothing had been done to implement the earlier improvement plan for the duration of the time it was said to operate.  Mr Faulks gave evidence that he had left the task of implementing the revised plan to Mr Watson and Mr Shoebridge, but that on 25 and 26 May he observed two of Mrs Zechner’s lessons.  He then arranged a meeting with her on 1 June.

20                  Mrs Zechner asked a Mr Jauncey, another teacher at the school, to act as her independent witness at that meeting.  The minutes taken by Mr Jauncey at the meeting on 1 June indicated that Mrs Zechner complained of intimidation and harassment and that she was not being treated according to the Department’s guidelines.  Mr Faulks stated at the meeting that Mrs Zechner’s revised improvement programme was to be extended until the end of term.  Mr Jauncey also prepared a summary of the meeting in addition to the minutes.  The summary recorded that he had seen no evidence of intimidation or harassment of Mrs Zechner by either Mr Faulks or Mr Watson at the meeting. The Judicial Registrar was sceptical about this summary which was added a week after the meeting, apparently in support of Mr Faulks and Mr Watson, in circumstances in which Mr Jauncey was supposed to be Mrs Zechner’s “independent witness”.  Mr Jauncey admitted in evidence that he had, on occasions, discussed Mrs Zechner with Mr Shoebridge and Mr Watson and that he had remained in the room after she left the meeting.

21                  Mr Faulks gave Mrs Zechner an additional note at the meeting headed “Further work required”.  This document was described by the Judicial Registrar as making no reference to Mrs Zechner’s alleged deficiencies or to strategies designed to enable her to improve.  It also opened up new areas of complaint that were not covered in the revised improvement plan.  Mrs Zechner replied in writing that she refused to accept the extension of the revised improvement plan by a further four weeks, that at no stage were Departmental guidelines followed in relation to the carrying out of that plan and that the “further work” involved new requirements not previously included. She also noted that no effort had been made to inspect her classes until the final week of the twelve week plan, that the five pages of criticism she received did not accord with Departmental procedures and that she had followed all requests to the best of her ability.  Mrs Zechner then went on sick leave for five weeks due to stress. 

22                  Very shortly after Mrs Zechner’s return to work, Mr Faulks conducted a TAR.  His report of this review appeared to indicate that Mrs Zechner had demonstrated a marked improvement during the period of the revised improvement programme.  Mr Faulks stated in the report that Mrs Zechner had been receiving encouragement from both head teachers, including classroom visits, team teaching opportunities and inservice courses.  He also noted that her friendliness and cooperation with staff had improved, as was shown by her participation in staffroom social functions and sharing of resources with other teachers.  On the next page, however, there were essentially adverse observations and the report concluded with a recommendation that Mrs Zechner’s efficiency did not satisfy the requirements for her position.  The report was signed by Mr Faulks and was dated 6 August.  The TAR schedule completed by Mr Faulks of the same date also indicated that Mrs Zechner’s efficiency was in question.

23                  On 20 September 1993 Mrs Zechner was seen by a Government Insurance Office psychologist in relation to a worker’s compensation claim arising from work-related stress.  The psychologist’s report indicated that Mrs Zechner’s allegation of systematic harassment at Kiama High School would need to be investigated independently and that “it would appear prudent to advocate the patient be transferred to a more neutral setting in order for her to remain at work in the long term”.  The Judicial Registrar noted that there was no evidence that these recommendations were ever looked into or implemented.

24                  In October 1993, Mr Blunden attended the school to inspect Mrs Zechner’swork.  He had apparently been aware of the school’s concerns in relation to her since April or May 1992.  Mr Blunden gave evidence before the Judicial Registrar that after being shown the document “Support Strategies – Marlies Zechner” prepared by Mr Watson in late February or early March 1993 (referred to earlier), he had been satisfied that prior to March 1993 the school had implemented an improvement programme in relation to Mrs Zechner.  He also said that it had been his understanding that she had received the benefit of a detailed programme of assistance.  Mr Blunden inspected some of Mrs Zechner’s classes and then made an efficiency review of her dated 25 October. He concluded that he doubted Mrs Zechner’s ability to make effective judgments.  He also noted that although Mrs Zechner had informed him that she was under severe and constant stress, that she saw herself as the victim of a conspiracy and that the school had employed a private investigator to check on her, his inquiries of the principal and head teachers indicated otherwise.  It appears that Mr Blunden was unaware of the psychologist’s report and that a private investigator had in fact been employed to investigate Mrs Zechner’s worker’s compensation claim.  Mrs Zechner was not supplied with a copy of Mr Blunden’s report.

25                  From 9 November 1993 Mrs Zechner again went on sick leave due to stress.  On 30 November 1993 she sent her daughter to the school to collect some of her belongings, including the chronicle. The school refused to hand over the chronicle.  Mrs Zechner arranged for a police officer to attend at the school with her. She collected the chronicle, and refused a request by Mr Faulks that it be returned.  As earlier mentioned, this refusal was referred to in the letter of 18 April 1994 containing the “Notice of Charge and Suspension from Duty”.

Reasons for Judgment of Judicial Registrar

26                  The Judicial Registrar viewed the central issue in Mrs Zechner’s case as concerning the improvement plan or plans and the assessment review procedure and whether Mrs Zechner had been reviewed according to established procedures.  These procedures were to be found in the Departmental TAR schedule. The TAR schedule provided that before a principal might classify a teacher as a person whose efficiency was causing concern, he or she must ensure that the teacher had had the benefit of a detailed programme of assistance.  The relevant parts of the schedule were in evidence before the Judicial Registrar. We will refer to them later.

27                  The Judicial Registrar held that it was patently clear that the procedure in the TAR schedule had not been implemented prior to Mrs Zechner being classified as a teacher “whose efficiency was causing concern” or as a teacher “whose efficiency was in question”.  He further foundthat the procedure had never been carried out at any stage of Mrs Zechner’s employment.  He found that Mr Faulks simply delegated his responsibility as principal in relation to the implementation of the improvement plans to Mr Shoebridge and Mr Watson, knowing that Mrs Zechner had complained that she regarded them as harassing her and as having been involved in some sort of a conspiracy against her.  The Judicial Registrar noted that Mr Faulks knew that Mrs Zechner had read Mr Shoebridge’s adverse report, yet still required Mr Shoebridge to create and supervise her improvement plan.  In relation to the issue of Mrs Zechner’s non-involvement in the preparation of the plan, the Judicial Registrar found that it had effectively been “sprung on her without notice”.  He observed that Mr Faulks had admitted in cross-examination that the improvement plan was a bit lacking and that the school had not complied with the procedure set out in the TAR schedule.  The Judicial Registrar also stated that he found the evidence of Mr Blunden rather unsatisfactory.

28                  The Judicial Registrar held that, in the circumstances, the termination of Mrs Zechner’s employment was not defensible or well founded and therefore was not for a valid reason.  His reasoning is encapsulated in the following passage from his Reasons:

I am satisfied that no proper performance plan had ever been implemented by Kiama High School in accordance with the Teachers’ guidelines.  This plan was an essential and fundamental process which was not adhered to.  Having not followed a proper plan to give assistance to the applicant any further decision relating to any matter concerning her inefficiency was therefore void.  The Principal by delegating his responsibility under the improvement plan was unaware that the applicant had not been offered proper support.  His actions in allowing Mr Shoebridge and Mr Watson to continue in a supervisory role only exacerbated the applicant’s fears that she was being conspired against which effectively caused her to break down.  As far as there being a conspiracy by the teachers to get rid of the applicant I was unable to find any evidence.  However, some of the evidence does excite suspicion. (emphasis supplied)

Reasons for judgment of the primary judge

29                  As noted earlier, the primary judge set aside the orders of the Judicial Registrar and ordered that Mrs Zechner’s application be dismissed.  In his reasons for judgment, his Honour observed that additional oral and affidavit evidence had been tendered at the review which he considered cast “new light on the issues”.

30                  His Honour identified the central issue in the case as being whether the Department had a valid reason for terminating Mrs Zechner’s employment connected with her conduct or performance, and, more specifically, whether there was a reason for terminating her employment because of her lack of competence as a teacher.  His Honour noted that it was necessary to bear in mind the requirement of procedural fairness embodied in s 170DC of the Act.  Accordingly, the inquiry was to be limited to the matters particularised in the notice of charge and suspension of 18 April 1994.  That notice was as follows:

NOTICE OF CHARGE AND SUSPENSION

YOU ARE HEREBY CHARGED with two breaches of discipline within the meaning of Section 83(d) of the Teaching Services Act 1980 in that:

You deliberately disobeyed a lawful order made or given by a person having the authority to make or give the order.

PARTICULARS of the first breach of discipline are that whilst employed at Kiama High School -,

            You failed to comply with an oral direction given by Mr Watson, Head Teacher, English on 30 November, 1993 to return departmental property namely the red teaching chronicle.

PARTICULARS of the second breach of discipline are that whilst employed at Kiama High School –

            You failed to comply with written direction of Mr Marc Faulks, Principal, Kiama High School to return the red teaching chronicle. This direction was sent to you by certified mail and delivered on 2 December, 1993.

YOU ARE FURTHER CHARGED with a breach of discipline within the meaning of Section 83(e) of the Teaching Services Act 1980 in that you were inefficient in discharge of your duties.

PARTICULARS of this breach of discipline are that whilst employed at Kiama High School during 1993 you:-

(i)        failed to consider the individual ability of your students and adapt work for students accordingly for example failure to utilise a variety of assessment methods or to mark consistently.

(ii)       failed to develop, maintain and demonstrate effective classroom management of your classes in particular 7GS, 8GS, 10H4, 9H3, 8BW.

(iii)      failed to follow Kiama High School’s English Departments discipline policy – for example you failed to handle disciplinary problems personally and resorted to sending your students to other teachers for discipline.

(iv)             failed to develop and maintain a positive learning environment for your classes in 1993 in particular Year 11, 2 unit English, (first term only), 8GS, 10H4, 9H3, 7GS, 8BW.

(v)               failed to develop maintain and demonstrate effective interpersonal skills with students and teachers.

(vi)             failed to demonstrate an understanding of the 7 – 10 English syllabus and Year 11 2 Unit English course.

(vii)     On 5 April, 1993 you failed to involve yourself in a corporate marking meeting in which year 11 essays were to be marked.

You are directed to reply to me in writing within (14) days of the date of the charges either admitting or denying the truth of the charges and giving any explanation you desire in regard thereto.

AND FURTHER being charged with breaches of discipline YOU ARE HEREBY SUSPENDED FROM DUTY without pay until the charges have been dealt with.

31                  In relation to the first charge (removing and refusing to return the chronicle), the primary judge considered that this breach of discipline was not of sufficient significance to warrant the termination of Mrs Zechner’s employment.  He observed, however, that the second charge (inefficiency in the discharge of the duties of a teacher) was of greater significance. His Honour stated that such a charge clearly went to the issue of competence, that is, whether Mrs Zechner “had the skills needed by a high school classroom teacher and a personality that allowed her to so exercise those skills that her pupils underwent a meaningful educational experience”.  In relation to these matters, the primary judge observed that the evidence was “unfortunately overwhelming”. He held that it was clear that Mrs Zechner was not able to translate her positive qualities, such as being highly motivated and having high ideals, into effective teaching.

32                  Some of the primary judge’s conclusions appear to have been substantially based on evidence that had not been before the Judicial Registrar.  In addition to all of the evidence before the Judicial Registrar and a transcript of the hearing before him, the primary judge had before him affidavits and oral evidence from two witnesses who had not been called before the Judicial Registrar, namely, Ms Mitchell and Mr Trickett.  Ms Mitchell had been English head teacher at Smith’s Hill High School from 1984 until early 1989 and Mr Trickett had temporarily replaced her in that role from 1989 to 1990.  The evidence of Ms Mitchell and Mr Trickett along with that of Mr Blunden, the Cluster Director, was of particular significance to his Honour. Ms Mitchell and Mr Trickett gave evidence that was, in the view of the primary judge, consistent with evidence given in relation to Mrs Zechner’s performance at Kiama High School.  It tended to establish her lack of ability to control the classroom, her failure to give clear directions to her pupils, her idiosyncratic views about some aspects of student assessment and marking, and her difficult relationships with colleagues.  His Honour observed:

I put weight on the Smith’s Hill evidence because the suggestion was put to the Judicial Registrar, and gained some acceptance by him, that people at Kiama High School had become antagonistic towards Mrs Zechner and “ganged up” on her.  I see no basis for such a conclusion, especially when one finds evidence of similar problems at her previous school.

33                  Mr Blunden gave detailed evidence of his observations when he inspected Mrs Zechner’s teaching methods in late 1993.  He said that he had formed a negative impression of her competence and performance, an impression which his Honour noted was consistent with evidence given by other witnesses.  His Honour observed that Mr Blunden’s efficiency report on Mrs Zechner would have played a part in the Department’s decision to charge her with inefficiency.  The primary judge saw no reason to doubt the evidence of Mr Blunden, who, he said, addressed the issue of Mrs Zechner’s teaching competence in a knowledgeable and careful way.  His Honour decided that on Mr Blunden’s evidence the conclusion was inevitable that Mrs Zechner was not an effective teacher.

34                  The primary judge rejected Mrs Zechner’s submission that there had been a lack of support from the Kiama High School “executive”, that is, Mr Faulks, Mr Watson and Mr Shoebridge.  His Honour observed, contrary to Mrs Zechner’s criticisms, that the “executive” had put in place an improvement programme to assist Mrs Zechner’s teaching problems.  Effort was made to identify the nature of her problems and to suggest ways of overcoming them.  For example, the revised improvement plan of 5 April 1993 set out areas of concern and positive suggestions for overcoming them.  The primary judge further noted that when Mr Faulks suggested that the improvement programme be extended, Mrs Zechner refused.  This attitude, his Honour observed, was consistent with Mrs Zechner’s attitude throughout the programme, namely, that there was no need for an improvement programme at all.  The primary judge concluded:

It seems Ms Zechner did not appreciate the problems she had in the classroom or have an open minded willingness to address those problems.  She took the view she was an experienced and competent teacher, there was no problem, and anybody who suggested to the contrary was wrong.  I find it difficult to accept that everybody else was out of step.

35                  The primary judge also rejected the submission made on behalf of Mrs Zechner that the improvement programme of 1993 was a sham and that the Department was in breach of its own guidelines.  His Honour considered that the improvement plan had been introduced in good faith and that considerable effort had been made by Mr Faulks, Mr Watson and Mr Shoebridge, with assistance from the Federation, to develop a plan tailored to Mrs Zechner’s needs.  His Honour concluded that the plan’s failure was “substantially attributable to [Mrs Zechner’s] own attitude”.  The primary judge further noted that few, if any, of the suggestions aimed at improving Mrs Zechner’s performance were taken up by her. 

36                  His Honour saw the question before him as being whether he should accept that “Mrs Zechner was right, and everybody else was not only wrong but acting in bad faith”.  He did not.  We will return to this aspect of the primary judge’s reasons later.

37                  His Honour held that in terminating Mrs Zechner’s employment, the Department “took the only decision available to it”.  In his concluding observations, he noted:

For me, the central issue is what sort of service the students obtained from Ms Zechner.  Schools exist for the students, not the teachers.  If Ms Zechner was not effective in teaching students, there was no place for her as a classroom teacher.  Once it was determined this was the position, in my view the Department was fully justified in terminating her employment.  Indeed, its duty to the students required it to take that action.

The nature of the review before the primary judge

38                  It is convenient to make some brief remarks about the nature of a review of the present kind.  As noted earlier, his Honour was exercising the power conferred by s 18AC of the Federal Court of Australia Act 1976.  That section provides for review by a judge of the Court of the exercise of delegated judicial power.  It is part of a scheme that enables delegation of such power to office holders who are not judges to be made in conformity with the Constitution.  The nature of such a review has most recently been considered by a Full Court of this Court in D’Antuono v Minister for Health (1997) 80 FCR 226.  Each member of the Full Court in that case said that the “reviewing” judge is not bound to accept any finding made by the Judicial Registrar, even one which may have depended on the Judicial Registrar’s assessment of the credit of the witnesses.  While the parties may agree that certain findings of the Judicial Registrar be accepted on the review, in the absence of such an agreement the judge must determine the application on the evidence before him or her.

39                  If the judge, with the agreement of the parties, undertakes the review by reference to the transcript of the evidence given before the Judicial Registrar, any finding made by the primary judge by reference only to the transcript is a finding that can as readily be made by a Full Court on appeal.  In such a case it cannot be said that the primary judge gained an advantage from having heard and seen the witnesses.  It may be, as was the case here, that there will be before the judge a mixture of oral evidence, including cross-examination, and evidence derived from the transcript of the proceeding before the Judicial Registrar.  If findings were made by the primary judge which might have been influenced by the hearing of the oral evidence, plainly the usual principles tending against appellate interference apply to any such finding: see, for example, the discussion byBurchett J in Rennie v The Commonwealth (1995) 61 FCR 351 at 353-357.  However, if findings were made that were plainly based only on the evidence in the transcript, again the Full Court is in as good a position as the primary judge to make such findings.

40                  The distinction just mentioned is of some significance in the present appeal because the oral evidence given before the primary judge concerned, in the main, the quality of Mrs Zechner’s teaching at Smith’s Hill High School and the assessment of her teaching at Kiama High School made by Mr Blunden in late 1993.  No additional evidence was called before the primary judge from those directly involved in the process of formulating and implementing the improvement plan or the revised improvement plan, namely Messrs Faulks, Watson and Shoebridge.  Mr Blunden, however, did address this issue in an affidavit prepared for the hearing before the primary judge and he was cross-examined about it.  We will refer to his evidence later.

The issues on appeal

41                  Mrs Zechner was represented by counsel at the hearing before the Judicial Registrar and the primary judge.  On the appeal, however, she appeared for herself.  It is clear that her notice of appeal and written submissions were prepared without the benefit of professional legal assistance. However, Mrs Zechner was generally able to make the points she desired to make forcefully and with considerable clarity.  Nonetheless, given that she is self represented, “the Court must assume the burden of endeavouring to ascertain [her] rights”: see Neil v Nott (1994) 121 ALR 148 at 150.  The Department has, at all relevant stages, been represented by counsel.

42                  The grounds of appeal overlap to some extent.  However, in substance the notice of appeal raises the following grounds:

(i)                  The primary judge erred in not accepting the Judicial Registrar’s findings on disputed questions of fact in circumstances where the Department did not call the relevant witnesses to give evidence in the review.

(ii)                The primary judge erred in not taking into account, and failing to find, that the Department had not complied with guidelines and procedures applicable to Mrs Zechner’s employment and applicable to any consideration of her inefficiency.

(iii)       The primary judge erred in finding that the Department had a valid reason to terminate Mrs Zechner’s employment.

First ground of appeal

43                  Having regard to what we said earlier about the character of a review, the first ground of appeal is untenable. 

Second ground of appeal

44                  The second ground raises an issue of greater substance.  At the heart of it is the question whether the alleged failure of the Department to follow the procedures for the improvement programme resulted in the termination of Mrs Zechner’s employment not being for a valid reason within the meaning of s 170DE(1) of the Act.

45                  Before discussing the approaches of the Judicial Registrar and the primary judge to this question, it is convenient to set out the background to the development of improvement programmes by the Department generally and to consider the nature and purpose of these programmes.

46                  The relevant procedures for developing improvement programmes were set out in a 1991 “Memorandum to Principals” from the Director-General of School Education.  One of the stated purposes of such a programme was to ensure that before a teacher was assessed as one whose efficiency was in question, the teacher was provided with assistance designed to remedy, if possible, deficiencies in his or her skills.  The first five paragraphs of the Memorandum to Principals were as follows:

In keeping with the Schools renewal strategy, increased responsibility for the management and development of staff is being devolved to Regions and schools.   Part of this process will involve the development of a performance appraisal scheme which links teaching responsibilities to school goals and which provides feedback, encouragement and support on a continuing basis.   Whilst the development of this system has a high priority, the consultative implementation and training processes involved means that some time may elapse before it is fully in place.  Until this occurs, the Teacher Assessment Review Schedule will remain an integral part of the present professional development activities of schools, and of the accountability procedures of the system.

The Teacher Assessment Review Schedule (TARS) for staff members at your school is enclosed.

All teachers within your school should have the benefit of an ongoing professional development program which includes a range of activities both in and outside the school, designed to assist teachers to reach their full potential, increase their job satisfaction and enhance the welfare of students.   This schedule can be seen, at present, to be an integral part of this process.   Under the Schools Renewal strategy principals will have greater responsibility for designing human resource development programs to meet the needs of their school and help accomplish the goals of their school plans.

In addition to forming an integral part of the staff development program of the school, the TAR schedule also ensures that there is a formal, annual statement regarding the accountability of teachers to the system and ultimately to the Government and the community.

Details of procedures to be followed in completing the TARS and the steps involved in finalising your decision regarding each teacher on your staff are attached for your assistance.

47                  The material part of the TAR schedule which was enclosed, was as follows:

6.         Teachers whose efficiency is causing concern

6.1              Before writing C [the writing of the letter “C” indicated that the teacher fell into the category of a teacher whose efficiency was causing concern], it is important that the Principal ensure that the teacher has had the benefit of a detailed program of assistance.

6.2       The Principal is asked to ensure that all teachers are given every assistance through advisory, supervisory and support practices.

6.3       Particular attention should be devoted to those teachers who are experiencing difficulties. Where teacher difficulties are identified, they may be attributed to many factors, such as:

(a)       professional problems including classroom management, teacher-student relationships, planning, communication;’

(b)       school management, organisation and system shortcomings;

(c)        personal difficulties being experienced both within and outside the school environment.

6.4       The Principal, in conjunction with appropriate staff, should ensure that:

(a)               an improvement program using all available resources is established for the teacher experiencing difficulty.  This program and an ongoing evaluation of its effectiveness need to be developed in consultation with the teacher;

(b)               the Cluster Director [the relevant Cluster Director was Mr Blunden] should be informed of the program and consulted where appropriate;

(c)               the emphasis is on assisting the teacher to improve;

(d)        all forms of support are used including:

-                     mutual support and encouragement involving formal and/or informal arrangements within the school staff;

-                     a program of professional assistance drawing on the resources of the Department at local and/or regional level;

-           advisory and supervisory assistance from the executive and/or senior members of the staff.

6.5       Where a Principal decides that despite all efforts the teacher’s efficiency is still causing concern, he/she must write a report for the Assistant Director-General (Region) on the teacher’s work.  This report should detail the teacher’s strengths, areas for development and the program of assistance which has been developed.  This report is to accompany the TAR Schedule.

6.6              Before submitting this report, the Principal should give a copy to the teacher who may elect to submit a written statement to the Principal to be sent to the Assistant Director-General through the Cluster Director.

6.7              The Principal must submit another report on the teacher to the Assistant Director-General.  This report should detail the progress made by the teacher following the implementation of the improvement program, and should indicate whether the teacher is now efficient or needs to have his or her efficiency called into question.

6.8       The Principal will give a copy of this report to the teacher who may elect to submit a written statement to the Principal to be sent to the Assistant Director-General (Region).

7.         Teachers whose efficiency is in question.

7.1              Again such a categorisation should only be made after the teacher has had the benefit of a detailed program of assistance and has failed to improve sufficiently.

7.2              The Principal should write a report for the Assistant Director-General (Region) on the teacher’s work. Strengths and weaknesses should be described. This report will accompany the TAR Schedule and will indicate that the teacher’s efficiency is in question.

7.3       Before submitting the report, the Principal will give a copy to the teacher who may elect to submit a written statement to the Principal to send to the Assistant Director-General (Region).

8.         Cluster Director endorsement

The Cluster Director should discuss the Teacher Development Program with the Principal and the methods used in monitoring teacher efficiency.

The Cluster Director should then indicate on the schedule whether or not the programs and methods used in monitoring teacher efficiency are appropriate.

48                  The TAR schedule was accompanied by a document entitled “GOOD TEACHING PRACTICE: AN AGREED STATEMENT OF PRINCIPLES”.  That statement was accompanied by an appendix which provided a sample format for an improvement programme.  The sample was preceded by a statement of its purpose which included the following:

The first component of an improvement program is to identify areas for improvement.  These have been included in these examples.  For each identified area for improvement, agreed outcomes, strategies, support provisions and review of performance must be negotiated. (emphasis supplied)

49                  These notes make plain that the format for an improvement programme was flexible.  However, the sample provided also makes plain that the process was one of ongoing evaluation involving consultation, discussion and negotiation with the teacher in question.

50                  Pages from a “Teachers Handbook” that were in evidence informed readers about the TAR schedule as it applied to permanent teachers such as Ms Zechner, under the classifications “Teachers Whose Efficiency is Causing Concern”, “Teachers Whose Efficiency is in Question”, “Cluster Directors”, “Efficiency Called into Question – Subsequent Action” and “Reconsideration of Determination of Efficiency”. This explanatory material is lengthy. It is reasonable to regard it as, inter alia, protective of the interests of teachers.

51                  These procedures developed by the Department were plainly intended to create a mechanism to assist teachers to remedy deficiencies in their teaching skills.  The existence of the procedures constitutes a recognition that teaching skills may be deficient but that the appropriate remedy, at least in the first instance, may not be dismissal but an attempt at improvement of those skills.  Whether a valid reason existed (relating to a teacher’s capacity) justifying the termination of a teacher’s employment may involve a consideration of whether the procedures had been implemented properly.  Established incapacity after remedial steps are taken provides a surer foundation for a valid reason justifying termination than alleged incapacity before remedial steps might be taken.  That is not to say that if, after the proper implementation of the procedures developed by the Department a teacher still did not have the requisite skills, termination might not be justified.  We will return to this issue later.

52                  Having set out the framework within which improvement programmes are intended to operate, we now turn to consider the issue ofthe implementation of animprovement programme in Mrs Zechner’s case. 

53                  The first improvement plan, headed “Improvement Plan for Mrs Zechner Thursday 4^th March to Friday 28^th May,” was handed to Mrs Zechner by Mr Faulks in the presence of Mr Watson at a meeting on the afternoon of Thursday3 March 1993.  Before its preparation there had been no discussion with Mrs Zechner about the creation of the plan or its contents.  A finding was made by the Judicial Registrar that Mrs Zechner was “presented with a performance plan out of the blue” and that “the complete process was not in accordance with the guidelines issued by the Department”.  No contrary finding was made by the primary judge.  The Judicial Registrar’s findings accord with the evidence. This initial improvement plan was a single foolscap page document.  It concluded “This Improvement Plan will be reviewed during the week ending Friday 28^th May 1993.” On Saturday 5 March 1993, two days after Mr Faulks handed the document to her, Mrs Zechner wrote to Mr Faulks asserting that the Teachers’ Federation had advised her that she must be presented with a “programme suggesting how ... difficulties might be overcome.” Her letter stated that she was “more than happy” to have a meeting about the matter attended by a Federation representative and she suggested the date Monday 15 March.

54                  Mr Blunden gave evidence before the primary judge about the development and implementation of the improvement programme.  Plainly enough he was doing so against a background of procedures as applied to Mrs Zechner which the Judicial Registrar was later to criticise.  Mr Blunden’s evidence concerned steps that had been taken before March 1993 to assist Mrs Zechner.  In his affidavit he said:

It was my understanding by early March 1993 that considerable informal assistance had been given to [Mrs Zechner] to assist her to overcome the perceived limitations identified by members of the Kiama High School Executive.

55                  Mr Blunden referred to a note sent by Mr Shoebridge to Mrs Zechner on 16 October 1992, an interview with Mrs Zechner on 17 November 1992 involving Mr Faulks and Mr Shoebridge and notes of a meeting of 25 November 1992 involving Mr Faulks, Ms Peade, Deputy Principal, and Mrs Zechner.  Mr Blunden also referred to notes Mr Watson had made in late February or early March 1993, Mr Shoebridge’s report of 18 February 1993 and discussions he (Mr Blunden) had had with Mr Watson concerning team teaching that had been provided to Mrs Zechner.  He referred to a number of other matters that need not be detailed.  No findings were made in relation to any of these matters by the primary judge.

56                  In the context of this ground of appealthese various matters can properly be given only limited weight.  An improvement plan is formulated and implemented for a specific purpose.  It is a prelude to the possible assessment of a teacher as one whose efficiency is causing concern.  That has, potentially, great significance for the teacher because such an assessment can lead to dismissal; see s 83(e) and following sections of the Teaching Services Act 1980 (NSW). Accordingly, the procedures laid down for the formulation and implementation of an improvement plan must be the primary focus of the Court’s attention, irrespective of whether less formal assistance was given earlier.  Further, these matters were not expressly relied on by the primary judge in reaching his decision adverse to Mrs Zechner.

57                  At the first meeting (on 3 March) Mrs Zechner had been given a copy of Mr Faulks’ report to Mr Blunden, to which she responded in her letter to Mr Blunden of 5 March.  It may fairly be said that she took issue with most of the criticisms that were made of her in Mr Faulks’ report.  However, her letter to Mr Blunden concluded with the following:

I am more than happy to work on any of my teaching areas which might need improvement.  I am open to fair and constructive suggestions, unlike the report which I consider biased and unfair.  The “improvement plan” only lists deficiencies, rather than making suggestions how possible difficulties might be overcome.

58                  At the second meeting (on 15 March) the representative of the Federation proposed a format for the creation of an improvement plan which involved identifying areas of concern in one column and dealing with “specific actions to overcome difficulties/concerns” in another column.  The Federation representative recommended to the meeting, which was attended by Messrs Faulks, Watson and Shoebridge as well as byMrs Zechner, that Messrs Watson and Shoebridge meet with Mrs Zechner to clarify the improvement plan.  Such a meeting did not take place.  An improvement plan in a revised form was presented to Mrs Zechner at a meeting on 5 April. The Judicial Registrar found that againthere had been no consultation with her as to its preparation or contents.  No contrary finding was made by the primary judge.  The finding was supported by the evidence. 

59                  It was a copy of this revised improvement plan that bore Mrs Zechner’s notes to which the primary judge referred. He said that they were defensive in nature and denied the existence of any problem.  We agree. But on one view that reaction is understandable given the circumstances in which Mrs Zechner was presented with the document.  Moreover, her attitude to those supervising her had been complicated by the revelation and delivery at the meeting on 15 March of Mr Shoebridge’s report of 18 February 1993.  That report was not prepared for the purpose of being shown to Mrs Zechner and in a later written response to it she said that she had been distressed upon reading it.  Indeed, Mr Shoebridge indicated in later correspondence that he was prepared to modify some of the critical remarks he had made in that report after discussions with Mrs Zechner. 

60                  The only classroom assessment made of Mrs Zechner following the provision to her of the revised improvement programme on 5 April was an assessment made by Mr Faulks as a result of his sitting in on an English class on 25 May and a History class on 26 May.

61                  At the meeting on 1 June 1993Mr Faulks proposed that there be an extension of the revised improvement plan for another four weeks.  Mrs Zechner did not agree and set out in writing her reasons for refusing.  The first reason was that at no stage had the Departmental guidelines been followed.  There was substance in this view.  The second was that new requirements had been handed to her at the meeting of 1 June.  This was probably not a valid reason for rejecting the proposed extension.  Another reason given by Mrs Zechnerwas that no effort had been made to inspect her classes until the last week of the twelve week period of the programme.  This, also, was probably not a valid reason for rejecting the proposed extension.  A reasonable explanation, consistent with the evidence of Mr Faulks, for the failure to inspect Mrs Zechner’s classes until the end of the twelve week period is that Mr Faulks wished to allow the improvement programme to run its course before attempting to assess the progress that Mrs Zechner had made during that time.  Mrs Zechner also criticised what she described as five pages of criticisms on the two lessons.  This was a reference to a form of questionnaire that she had been given containing critical comments made by Mr Faulks and inviting response.  They were critical, though some of the comments were framed in a way designed to stimulate thought on Mrs Zechner’s part.

62                  Unlike the primary judge, we would not conclude that Mrs Zechner’s refusal to agree to an extension ofthe period was only because her position was that there was no need for the improvement plan. Another reason was that the programme had been developed and implemented in a way that was at best not entirely consistent with the Departmental guidelines.  After this meeting of 1 June, in substance the die was cast.  Mrs Zechner went on stress leave from 1 June to mid July.  On 5 August Mr Faulks attended one further class conducted by Mrs Zechner and on 6 August he completed a report recommending that her efficiency be determined as not satisfactory.

63                  The primary judge’s account of the development and implementation of the improvement programme by the Department was in summary form.  We agree, however, that there were some findings of fact that do not appear to be sufficiently supported,although they are not, in the circumstances, matters which can be seen to have affected the result.  The first is that there was a series of meetings involving a representative of the Federation.  While it is true that there were meetings involving Mrs Zechner, Mr Faulks and one or more other members of the teaching staff on 3 March, 15 March, 5 April and 1 June 1993, as we read the evidenceit was only at the meeting on 15 March 1993 that a Federation representative was present.  As discussed above, a suggestion that the representative made concerning the preparation of an improvement programme was complied with in one respect but not another.  While Mr Blunden gave evidence of having twice made contact with the Federation later in 1993, the direct involvement of the Federation in the formulation and implementation of the improvement programme was restricted to the one meeting on 15 March, though there was some evidence that the Federation was consulted about the extension of the programme and agreed to it.

64                  It appears the primary judge also understood that Mrs Zechner refused an extension of the improvement plan on 5 April 1993 when it was apparent that it would run for only two more months.  A four week extension was canvassed with her at the meeting on 1 June 1993 to which she would not agree. The primary judge appears to have found that the reason for her refusal to agree was her insistence that there was “no need for the improvement plan”.  As we mentioned above, however, the reasons Mrs Zechner gave were in our viewmore complex than suggested by his Honour and were not necessarilyentirely a manifestation of intransigence.

65                  It can be seen from the summaries of the judgments of the Judicial Registrar and the primary judge given earlier that their focuses were different.  The Judicial Registrar concentrated on the procedures adopted to remedy perceived deficiencies in Mrs Zechner’s teaching skills while the primary judge gave more attention to the evidence concerning the skills themselves.  However, as noted earlier the primary judge did deal with the procedures undertaken for the purpose of remedying perceived deficiencies.  His Honour said at one point in his judgment:

Both before the Judicial Registrar and before me, Ms Zechner criticised the Kiama School “executive”, as it is called – the Principal and the two subject masters – for their lack of support of Ms Zechner.  I do not accept that criticism.  When the “executive” realised Ms Zechner had teaching problems, in early 1993, an improvement program was put in hand.  An effort was made to identify the nature of her problems and to suggest ways of overcoming them.  The relevant officers held a series of meetingwith Ms Zechner and a representative of the Teacher’s Federation.  Finally, on 5 April 1993, a document was produced that set out areas of concern and positive suggestions for overcoming those concerns.  Because some weeks had been occupied in finalising the program, there was then a period of only two months before the program was projected to end, at about the end of May.  Accordingly, Mr Faulks suggested to Ms Zechner an extension for one month.  She did not agree.  This was consistent with her attitude throughout the program: there was no need for the improvement plan.  The evidence contains a copy of the improvement plan with notes in Ms Zechner’s handwriting.  Those notes are defensive in nature; they generally deny the existence of any problem.  That reaction is consistent with the attitude reported in the evidence of Mr Faulks, Mr Shoebridge and Mr Watson to conversations they had with Ms Zechner; when they suggested problem areas and made suggestions for improvement she said the suggestions were unnecessary.

It seems Ms Zechner did not appreciate the problems she had in the classroom or have an open minded willingness to address those problems.  She took the view she was an experienced and competent teacher, there was no problem, and anybody who suggested to the contrary was wrong.  I find it difficult to accept that everybody else was out of step.

Later his Honour said:

The suggestion was put by Mr Gruzman, on behalf of Ms Zechner, that the improvement program undertaken in 1993 was a sham and the Department was therefore in breach of its own guidelines and a term of his client’s contract of employment.  I do not accept this suggestion.  I think the improvement plan was undertaken in good faith and that a considerable effort was made by Mr Faulks and the two subject masters, with assistance from the Teachers Federation, to develop an improvement plan tailored to Ms Zechner’s particular need.  Its failure is substantially attributable to her own attitude.”

Mr Gruzman argues the Department could have provided extra resources.  I am not clear what additional resources could have been provided, but I do not think there was a resource problem.  The teaching plan set out a number of common sense suggestions as to things Ms Zechner might do, or attempt to do, in order to improve her performance.  Few, if any, of these suggestions were taken up.  Ms Zechner took the view she did not need to change, she was already a competent teacher.

66                  As noted earlier, in making the findings he did about Mrs Zechner’s teaching abilities, the primary judge particularly relied on the evidence of Mr Blunden.  In the appeal,however, Mrs Zechner complained thatMr Blunden’s only direct observations of her teaching were made some time shortly before 25 October 1993, which was the date of his efficiency review concerning her teaching skills.  That was some months after the steps had been taken by Messrs Faulks, Watson and Shoebridge to put in place procedures to address the perceived problems or inadequacies in Mrs Zechner’s teaching skills. If those procedures were themselves deficient in material respects, it is conceivable Mrs Zechner’s teaching skills would not have improved for that reason.

67                  As we stated at the beginning of this section, however, the question of law which emerges from this ground of appeal is whether the alleged failure of the Department to follow the procedures for the improvement programme resulted in the termination of Mrs Zechner’s employment not being for a “valid reason” within the meaning of s 170DE(1) of the Act.  The task of this Court is to determine whether the Department’s reason for the termination was valid in the sense that it was “sound, defensible or well-founded” with respect to Mrs Zechner’s capacity or conduct: see Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.  Section 170EDA(1)(a) of the Act placed the onus on the employer to prove that there was a valid reason, or valid reasons, for the termination if the employee alleges, as Mrs Zechner does, that the termination is in contravention of s 170DE(1) of the Act.

68                  The charge against Mrs Zechner which led to her suspension and eventual discharge from the Department was that she was guilty of a breach of discipline within the meaning of s 83(e) of the Teaching Services Act 1980 (NSW) in that she was inefficient in the discharge of her duties.  The question then, is whether the decision to classify Mrs Zechner as inefficient in the discharge of her duties was “sound, defensible or well-founded” with respect to her capacity or conduct.  The implementation of the improvement programme may bear upon this question.  This is because it can be said that by failing to implement the improvement programme in the manner set out in the 1991 “Memorandum to Principals” from the Director-General of School Education Mrs Zechner was deprived of a real opportunity to improve her teaching skills so as torealise a capacity to be an efficient teacher and thereby avoid classification as inefficient.  If so, it may be that termination of Mrs Zechner’s employment was not for a valid reason.  That, of course, is said in the context of an employment situation that provides expressly for performance improvement measures.

69                  The circumstances surrounding the implementation of the improvement programme have been set out at length above.  It is clear that the programme was not implemented consistently with the process set out in the 1991 “Memorandum to Principals”.  However, we are not persuaded that the non-compliance was such as to result in the termination of Mrs Zechner’s employment not being for a valid reason.  As we have indicated, the existence of the improvement programme procedure clearly involves a recognition by the Department that teachers with deficient teaching skills should, at least initially, be given the opportunity to improve their skills, and also a recognition that improvement of those skills may be possible.  But in our view, the evidence shows that Mrs Zechner either wasnot willing to accept the views of othersthat her teaching skills needed improving, or she was incapable of appreciating and understanding there was a need to improve those skills.  Either way the evidence was that her teaching skills did notimprove.  This led to her being classified as inefficient and her eventual dismissal from the Department. 

70                  The evidence, including the evidence accepted by the primary judge, shows, in our view, that the decision of the Department to classify Mrs Zechner as inefficient in the discharge of her duties was “sound, defensible or well-founded” with respect to her capacity or conduct notwithstanding the deficiencies in the implementation of the improvement programme.  Mrs Zechner has failed to demonstrate error on the part of the primary judge in relation to the second ground of appeal.

Third ground of appeal

71                  Like the second ground of appeal, this ground of appeal centres on the question of whether there was a “valid reason” within the meaning of s 170DE(1) of the Act for termination of Mrs Zechner’s employment.  In considering this ground of appeal, however, we are being asked to examine the issue of “valid reason” in light of all the circumstances rather than simply in relation to the implementation of the improvement programme.

72                  It follows from what we have already said that that question is to be answered by considering whether the Department’s reason for termination was valid in the sense that it was “sound, defensible or well-founded with respect to [Mrs Zechner’s capacity or conduct]”.

73                  There was ample material before the primary judge justifying a conclusion that there was a valid reason for the termination of Mrs Zechner’s employment.  It may be accepted that the primary judge did not refer to evidence which painted a more favourable picture of Mrs Zechner’s teaching ability.  That evidence included a reference which she had been given by Mr Mow, a supervising teacher at Smith’s Hill High School who died well before the proceeding in IRCAwas brought.  It also included letters and evidence from students who spoke positively of her teaching ability.  There was also no mention by the primary judge of a succession of positive annual teaching assessments made of Mrs Zechner or of the assessment made of her when her probationary employment concluded and she was appointed as a permanent teacher in 1989. 

74                  But the failure to mention such evidence does not, in our view, constitute appealable error. In particular, it does not signify that his Honour failed to take it into account. Against the positive material had to be balanced the assessments made over a considerable period of time by a number of teachers, both peers and those in supervisory roles, critical (and often highly critical) of Mrs Zechner’s teaching ability.  It may be accepted that there will always be a measure of subjective judgement about such matters.  It may also be accepted that the perceptions of those making assessments can be influenced by a dislike of the person being assessed or feelings of irritation deriving from views that that person holds which are at odds with those of the assessor.  However, in the present case, the material referred to by Mrs Zechner that might suggest that these features were at play in the assessment of her were not, in our opinion, sufficiently compelling to displace or alter the fairly clear picture emerging from the evidence which founded the findings of the primary judge and led him to conclude that there was a valid reason for the termination of Mrs Zechner’s employment.

Other issues

75                  Mrs Zechner raised some other matters in her submissions to us, several of which were not raised before the primary judge.  We have taken them all into account, but it involves appropriate to mention one of them separately as it is a particularly serious allegation.

76                  Mrs Zechner alleged that various of the Department’s witnesses committed perjury while giving evidence before the Judicial Registrar.  Shesubmitted that the starkest example of this was the purported conflict in the evidence given by two witnesses who were teachers at Kiama High School during the time she was also teaching there, regarding whether or not they travelled to Sydney alone or together for the purpose of attending the hearing before the Judicial Registrar.

77                  We have examined the transcript of the evidence carefully and are not persuaded that the evidence referred to by Mrs Zechner is in fact in conflict.  Perjury should not be lightly inferred and the differing answers given by the two witnesses are capable of a perfectly innocent explanation which is that they are referring to different events at different times.  Moreover, in cross examination before the Judicial Registrar it was not put to either witness that a lie had been told, nor was either witness required for cross-examination before the primary judge and it was not submitted before himthat either witness was unreliable.  Experience shows that answers to questions that may at first sight appear to be inconsistent often turn out, on closer examination either of the questions or of the facts, not to be inconsistent at all; that is one of the reasons why it is so important that matters of that nature be dealt with by appropriate questions at the trial.

78                  In our view, these allegations do not provide a sufficient basis on which to attack the primary judge’s findings of fact.

79                  The appeal should be dismissed with no order as to costs.

Associate:

Dated:              15 April 1999