Employer defends termination, cites performance issues and attendance
The New South Wales' Industrial Relations Commission (IRC) recently dealt with an unfair dismissal case involving a long-serving assistant principal at a public school.
The case highlighted the complexities of performance management processes and the challenges of balancing employee rights with the consideration of the specific industry’s needs.
The dispute centred around whether the dismissal of the assistant principal was harsh, unreasonable, or unjust. The case delved into issues of disability discrimination, age discrimination, and the fairness of performance improvement programs.
It raised important questions about the standards expected of the staff, and the processes for addressing performance concerns.
Background of the case
The worker had been employed in the NSW Teaching Service for over 34 years, including as an assistant principal since 2012. In 2019, the school principal began raising concerns about the worker's performance.
This led to informal performance management processes, followed by a formal Executive Teacher Improvement Program (ETIP) in 2021.
The ETIP involved multiple observations and assessments of the worker's teaching and leadership skills over 10 weeks. Out of 27 observations, the worker was assessed as satisfactory on only six occasions.
Following the ETIP, the principal recommended that the worker had not demonstrated sufficient improvement. This ultimately resulted in the worker's dismissal from the Teaching Service in July 2022.
Employer’s performance concerns
The initial concerns about the worker's performance were raised by the school principal in Term 1 of 2019. These concerns related to both the standard of teaching and performance as an executive teacher. The principal attempted to address these issues through informal support and feedback throughout 2019 and 2020.
In October 2020, a new acting principal took over and continued to manage the performance concerns. The acting principal arranged for mentoring and support to be provided to the worker, including observations of leadership skills and programming by other staff members.
Despite these efforts, the acting principal determined that the worker's performance had not improved to the required standard. This led to the decision to implement the ETIP in May 2021.
Implementation of the performance improvement plan
The ETIP was designed to address Teaching Standard 3 and Executive Criteria 1, 3, and 4. These standards relate to planning and implementing effective teaching and learning, as well as demonstrating educational leadership skills.
During the ETIP, five different observers assessed the worker's performance across various tasks, including:
- Lesson planning and delivery
- Program development
- Data analysis
- Leadership in team meetings
- Providing feedback to other teachers
The worker received written feedback after each observation, and weekly review meetings were held with the acting principal to discuss progress and provide support.
Key arguments presented
The worker argued that the performance concerns were unfounded and that the entire process was tainted by disability and age discrimination.
She claimed the principal and acting principal were biased against her and had orchestrated a process designed to result in dismissal. The worker also contended she wasn’t given adequate support or clear guidance on how to improve.
The employer, the NSW Department of Education, maintained that there were genuine performance issues that had been properly identified and addressed through appropriate processes. They argued the worker was given ample opportunity and support to improve but failed to demonstrate the required standards consistently.
Analysis of performance management process
The Commission examined the performance management processes implemented, including:
- Informal support and feedback provided from 2019-2021
- The decision to place the worker on a formal ETIP
- The design and conduct of the 10-week ETIP
- Feedback and support provided during the ETIP
- The assessments and observations carried out
While some minor procedural issues were identified, the Commission ultimately found the ETIP was conducted appropriately and fairly overall. The Commissioner stated:
"I am satisfied that the ETIP was conducted appropriately and fairly. I find that the ETIP was not affected by bias or predetermination."
Consideration of discrimination claims
The worker alleged she had been subjected to disability discrimination due to periods of sick leave, and age discrimination. However, the Commission was not persuaded by these arguments, finding:
"I am not satisfied that either [principals] discriminated against [the worker], whether on the basis of disability or age. I do not accept [her] contention that [the employer was] biased against her and embarked on a process calculated to ensure that she was placed on, and would fail, an ETIP, so as to secure her removal from the Teaching Service."
The Commission noted that there was insufficient evidence to support the worker's claims of discrimination. The employer's actions were found to be based on genuine performance concerns rather than any discriminatory motives.
Balancing employee rights and child protection
A key consideration for the Commission was section 5A of the Teaching Service Act, which requires that the protection of children be the paramount consideration in any decision. The Commissioner noted:
"The protection of children extends to protecting them from less than competent teaching. [The worker] accepted under cross-examination that a teacher must meet the Teaching Standards and that if, having received support to do so, they are unable to demonstrate that competency, 'they shouldn't be there'."
Ultimately, the Commission dismissed the unfair dismissal application, finding the dismissal was not harsh, unreasonable or unjust. In reaching this conclusion, the Commissioner emphasised:
"The overwhelming impression from the evidence is that [the worker] took umbrage at being placed on the ETIP, considered it unnecessary and as a consequence did not properly engage with it."
“These considerations argue against the dismissal being harsh,” the Commission said.
The case highlights the importance of clear communication, documentation and procedural fairness in performance management processes. It also underscores the need for employees to engage constructively with improvement programs, even if they disagree with the process.
