Claimant's Unfair Dismissal Application Rejected by IR Commission

The claimant, an employee of the Department of Education, was dismissed after altering personnel files without approval and failing to disclose a conflict of interest. The Industrial Relations Commission found that this conduct amounted to misconduct warranting dismissal and ruled that the dismissal was not harsh, unreasonable or unjust.

OUTCOME: Dismissed

Industrial Relations Commission New South Wales Medium Neutral Citation: [NAME] v Secretary, Department of Education [2020] [NAME] 1075 Hearing dates: 2, 3 and 4 September 2020 Date of orders: 4 November 2020 Decision date: 04 November 2020 Jurisdiction: Industrial Relations Commission Before: [NAME]: The application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee of Department of Education altered personnel files of wife and sister to add skills and expertise – whether employee had approval to make changes – failure to identify and disclose conflict of interest – conduct amounted to misconduct warranting dismissal – dismissal not harsh, unreasonable or unjust Legislation Cited: Industrial Relations Act 1996 ([NAME]) s 84 Teaching Service Act 1980 ([NAME]) Pt 4A ss 93B, 93C, 93D, 93F Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 [NAME] v Danwer [2013] [NAME] 61 [NAME] v State of New South Wales and Anor [2011] NSWCA 375 [NAME] v Director-General, Department of Education and Communities [2014] [NAME] 1000 [NAME] Sydney Local Health District v Hargreaves [2012] [NAME] 123 Pastrycooks Employees, Biscuit Makers Employees & [NAME] ([NAME]) v [NAME] (No. 3) (1990) 35 IR 70 [NAME] v Commissioner of Police [2016] [NAME] 14 [NAME] v [COMPANY] (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping [1957] AR ([NAME]) 273 [NAME] v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] [NAME] 1012 Category: Principal judgment Parties: [APPELLANT] (Applicant) Secretary, Department of Education (Respondent) Representation: [COUNSEL] (Self) [NAME] of Counsel (Respondent) Solicitors: [redacted] File Number(s): 2020/122674 Publication restriction: No

DECISION 1. [NAME] was employed with the Department of Education ("Department"). In March 2020 he was directed to resign from his employment as a consequence of findings of misconduct which had been made against him. Pursuant to that direction, on 20 April 2020 Mr [NAME] resigned from his employment with effect from 21 April 2020.

2. On 23 April 2020 [NAME] filed with the Office of the Industrial Registrar an Application for Relief in respect of Unfair Dismissal ("Application") pursuant to s 84 of the Industrial Relations Act 1996 ([NAME]) ("Act"). In the Application, Mr [NAME] alleged that the termination of his employment was harsh, unreasonable or unjust. He sought reinstatement to his position or, failing that, re-employment or compensation.

3. Throughout the proceedings Mr [NAME] was self-represented. I endeavoured to follow the guidance given by the Court of Appeal in [NAME] v State of New South Wales and Anor [2011] NSWCA 375 at [309]: "Courts have an overriding duty to ensure that a trial is fair. ...In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented..." (References omitted)

1. In these proceedings that guidance led to me being considerably more active than might otherwise have been the case in assisting Mr [NAME] to present his case. This included putting questions to Mr [NAME] to allow him to properly articulate his case in chief and in "re-examination", and in asking some questions of the only witness for the Department required for cross-examination. I took these steps as I wished to be certain that Mr [NAME] had every opportunity to put his case in full.

Factual context 1. Mr [NAME] commenced employment with the Department in approximately April 2003. In approximately 2006 he took up a position in the Department's Teacher Recruitment Unit. The most recent position he held was as Senior Advisor, School Recruitment.

2. At all relevant times Mr [NAME] duties included identifying candidates for vacant permanent teaching positions in schools. The process which he was required to follow when doing so was explained at some length by Mr [NAME] former manager, [NAME], the Manager, Teacher Recruitment within the Recruitment and Employment Functional Area of the [NAME] of the Department. It is convenient to reproduce some of her evidence, as follows: "3. Despite these changes, since 30 June 2006, Teacher Recruitment's responsibilities have always included: a. managing matters pertaining to permanent teaching staff in the Department's schools, including recruitment and movement of permanent Teaching Service staff in schools, enrolment and entitlement process, and executive classification changes and allocations for the Department's schools; b. managing such matters in accordance with the Teacher Service Act 1980, the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award, and the applicable Staffing Agreement, an industrial agreement made between the Department and the [COMPANY] ([COMPANY]), as in place from time to time (Staffing Agreement); and c. managing transfer applications submitted by permanent staff. … Staffing Codes 9. The Department uses 'Staffing Codes' in determining teachers' suitability for appointment to vacant permanent teaching positions in schools. Staffing Codes are essential in Teacher Recruitment's determination of the recruitment outcome for a permanent teaching vacancy, including offering permanent employment to a [NAME] or the movement of a permanent teacher to another Teaching Service position in a school.

10. Each Staffing Code corresponds to a subject/teaching area, skill or experience that may be required for a teaching position within the Department. For example, the Staffing Code 'PHY' corresponds to the subject/teaching area, Physics, and the Staffing Code 'XSC' corresponds to the teaching skill and/or experience of sports coaching.

11. Broadly speaking, Staffing Codes are: a. recorded on teachers' personnel profiles to indicate what skills, abilities, experience and qualifications those teachers possess, including the subjects/teaching areas they are qualified to teach or have been certified as having sufficient experience to teach; b. used by schools, when declaring a vacant permanent teacher position, to specify the skills, abilities, experience and qualifications, including qualified or certified subjects/teaching areas, they require of a [NAME] for the position; and c. used by Teacher Recruitment to identify suitable candidates for and offer/appoint them to vacant permanent teaching positions in schools by identifying candidates who have the Staffing Codes that match those specified by the school for the position, in addition to other relevant considerations addressed further below. … 13. The Department's policy regarding Staffing Codes is contained in the Staffing Agreement (referred to above at paragraph 3.b) as well as the Staffing Procedure for the Teaching Service in [NAME] (Staffing Procedure).

14. The Staffing Agreement requires the Department to use Staffing Codes for matching candidates to permanent vacant teaching positions. The list of Staffing Codes used by the Department is agreed between the Department and the [COMPANY] and is contained in the Staffing Procedure.

15. Staffing Codes are broadly categorised into two types: a. 'Subject/Teaching Area Codes' (Teaching Codes) - These codes correspond to subjects or teaching areas (such as Mathematics and English). Teaching Codes can be recorded on a teacher's personnel profile as either: i. 'Approved Subject/Teaching Area Codes' (Approved to Teach Codes), which indicate a teacher has been approved to teach the corresponding subjects or teaching areas. Teachers can obtain an Approved to Teach Code by either possessing: 1. the qualifications required for teaching the corresponding subject or teaching area in accordance with the Department's guidelines; or 2. recognised and verified experience in successfully teaching the corresponding subject or teaching areas for a minimum of two years full-time (or the part-time equivalent) within the last 5 years in an Australian education system; or ii. 'Willing to Teach Subject/Teaching Area Codes' (Willing to Teach Codes), which indicate that, while a teacher has not been approved to teach the corresponding subjects or teaching areas in accordance with the requirements set out above at paragraph 15.a.i, the teacher is willing to do so if requested by a Principal and are confident they can do so with an acceptable level of success. A teacher's eligibility for a Willing to Teach Code is assessed by reference to the teacher's experience, given teachers with such a Code are expected to teach the corresponding subject with a level of success acceptable to a Principal. b. 'Skills and/or Experience Codes' (Skills/Experience Codes) - These codes, when recorded on a teacher's personnel profile, indicate the teacher has successfully demonstrated the corresponding skills or experience at a level which equips the teacher to lead and manage whole school-programs that require the relevant skills or experience, across the full range of schools to which the teacher may be considered for appointment. Initial Staffing Codes 16. The Department's Teacher Approvals unit (Teacher Approvals), another unit within the Recruitment Functional Area, is primarily responsible for entering Staffing Codes on teachers' personnel profiles. Teacher Approvals is an entirely separate unit to Teacher Recruitment.

17. The Department maintains an Approved to Teach List. To be eligible to be considered for employment as a teacher in [NAME] public schools, a person must apply to Teacher Approvals, be assessed on the basis of the person's qualifications and other essential requirements and, if deemed eligible by Teacher Approvals, be added to the Approved to Teach List.

18. Teacher Approvals first enter Staffing Codes on a teacher's personnel profile when the teacher is initially approved to teach with the Department. At this initial stage, when Teacher Approvals assesses the teacher's qualifications, Teacher Approvals identify those subjects/teaching areas the teacher is qualified to teach and the Teaching Codes corresponding to those subjects/teaching areas, in accordance with the Department's policies, procedures and guidelines. Teacher Approvals enter those Teaching Codes as Approved to Teach Codes on the teacher's personnel profile.

19. If, at this initial stage, a teacher has requested to be approved to teach a subject/teaching area but does not possess the required qualifications for approval, Teacher Approvals may enter the corresponding Teaching Code as a Willing to Teach Code (rather than an Approved to Teach Code) on the teacher's profile if Teacher Approvals is satisfied the teacher has sufficient qualifications, skills and/or experience to be granted the Willing to Teach Code. … Additional Staffing Codes 21. Throughout a teacher's career, they may develop skills, gain experience or obtain qualifications that may make them eligible for additional Staffing Codes. Teachers can apply to have additional Staffing Codes added to their personnel profile.

22. Additional Staffing Codes cannot be added to a teacher's personnel profile without approval from that teacher's Principal or the Director, [NAME], to whom the Principal reports. An exception to this requirement is where a teacher applies for an Approved to Teach Code on the basis of qualifications (rather than experience). In this case, the application will be assessed by Teacher Approvals in a similar manner to paragraphs 17 to 19 above. Apart from this exception, all other applications for Staffing Codes, including applications for Approved to Teach Codes on the basis of experience (rather than qualifications), must be approved by the applicant's Principal or Director, [NAME] before the Codes can be added to teachers' personnel profiles." (Emphasis in original) 1. [NAME] [NAME] [NAME] is Mr [NAME] wife and [NAME] [NAME] [NAME] is his sister. [NAME] [NAME] and [NAME] [NAME] are employed as teachers in the Department. Since 2007 [NAME] [NAME] has been employed at the Macarthur Girls High School ("MGHS"). [NAME] [NAME] has been employed at the John Palmer Public School ("JPPS") since 2012.

2. In October 2017 [NAME], the Principal of the MGHS, received information from another member of staff at the school to the effect that [NAME] had represented to other teachers that Mr [NAME] could influence the Department's recruitment processes, including by conducting background checks or adjusting staffing codes to help them match upcoming vacancies.

3. That information set in train a process through which Mr [NAME] conduct, and in particular his activity in relation to adjustments to the staffing profiles for [NAME] [NAME] and [NAME] [NAME], was investigated. By letter dated 19 October 2017 Mr [NAME] was informed by [NAME], the Executive Director of the Department's Employee Performance and Conduct unit, that he was the subject of an investigation and that pending the outcome he was to be assigned to alternative duties.

4. In a letter dated 8 August 2018, [NAME], the investigator appointed to conduct the investigation, informed Mr [NAME] that he was investigating the following allegations: "While engaged as a Clerk (various grades) working in Teacher Recruitment Branch, you engaged in conduct that could amount to misconduct in that you.

1. On or about 4 June 2007 you, failed to identify and/or disclose a conflict of interest, either actual or perceived, when you entered skills codes on the Personnel profile of [NAME] [NAME] [NAME], who is your wife.

2. On or about 4 June 2007 entered the skill codes AGR (Agriculture), FTY (Food Technology), SFE (integrating technology), SFG (Awareness of gender equity), SFN (understanding of NESB students), SFT (understanding of gifted and talented) on your wife's ([NAME] [NAME] [NAME]) personnel profile without a formal request, or approval from her Principal or your supervisor to do so.

3. On or about 3 October 2007, failed to identify and/or disclose a conflict of interest, either actual or perceived, when you matched your wife, [NAME] [NAME] [NAME], to position 65897, classroom teacher at Macarthur Girls High School. Resulting in her appointment to this position.

4. On or about 16 January 2009 you failed to identify and/or disclose a conflict of interest, either actual or perceived, when you matched your sister, [NAME] [NAME] [NAME] to position 18776, classroom teacher at Wentworthville Public School. Resulting in her appointment to this position.

5. On or about 14 October 2011 entered the skills codes DAN (Dance), DRM (Drama), CCO (Computer Coordinator), SPO (Sport) and VIA (Visual Arts) on your sister, [NAME] [NAME] [NAME]'s personnel profile without a formal request, or approval from her Principal or you supervisor to do so. Resulting in her being matched to position 16355, classroom teacher at John Palmer Public School.

6. On or about 29 February 2016, entered skills codes GAT (Gifted and talented), ICT (information communication technology), MMA (Multimedia) and XSC (sports coaching) on your wife, [NAME] [NAME] [NAME]'s personnel profile without a formal request, or approval from her principal or your supervisor to do so." (Sic)

1. In a further letter dated 1 July 2019 Mr [NAME] informed Mr [NAME] that the investigation had been expanded to include the following further allegations: "While engaged as a Clerk (various grades) working in Teacher Recruitment Branch, you engaged in conduct that could amount to misconduct in that you.

7. On or about 17 August 2015 entered the skills code CIR (Choir) on your sister, [NAME] [NAME] [NAME]'s personnel profile without a formal request, or approval from her Principal or your supervisor to do so.

8. On or about 29 February 2016, entered skills codes ICT (information communication technology) and MUS (Music) without a formal request, or approval from her Principal or your supervisor to do so."

1. Throughout the investigation Mr [NAME] was represented by his union, the Public Service Association of [NAME] ("[NAME]"). With the [NAME]'s assistance, Mr [NAME] made written submissions in response to the allegations.

2. In a letter dated 12 December 2019 [NAME] [NAME] informed Mr [NAME] that she had sustained all of the allegations, with the exception of allegation 4. She advised Mr [NAME] that the most serious disciplinary action that she was considering was directing him to resign from the Department. Mr [NAME] was invited to make a submission in response to the letter.

3. Mr [NAME] submission was sent to [NAME] [NAME] under cover of a letter from the [NAME] dated 29 January 2020. In that letter the [NAME] requested that Mr [NAME] be permitted to meet with the decision-maker prior to the making of the final decision. 4. [NAME] [NAME] acceded to this request and on 5 March 2020 met with Mr [NAME], who was accompanied by [NAME] of the [NAME].

5. On 6 March 2020 Mr [NAME] sent an email to [NAME] [NAME] and Mr [NAME] attaching further information for their consideration.

6. On 10 March 2020 [NAME] [NAME] wrote to Mr [NAME]. She stated that she had considered all of the material including Mr [NAME] written response forwarded by the [NAME] on 29 January 2020, the matters raised at the interview on 5 March 2020 and the additional material forwarded by Mr [NAME] on 6 March 2020. She confirmed that her findings of misconduct would stand. She directed Mr [NAME] to resign from his position with the Department and that if he failed to do so within 14 days he would be dismissed.

7. On 20 April 2020 Mr [NAME] resigned from his employment with effect from 21 April 2020.

8. On 23 April 2020 [NAME] [NAME] sent a further letter to Mr [NAME], by email, which included the following: "In circumstances where an employee has been directed to resign as a disciplinary action, it is usual practice to place the employee's name on the list of persons not to be employed by the department ([NAME]). It has come to my attention that I did not include that advice in your final letter. This was an oversight and one for which I apologise. I have arranged for your name to be placed on the [NAME]. …"

1. Also on 23 April 2020 Mr [NAME] filed the Application.

Relevant legal principles 1. Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust".

2. It is not in dispute that despite having resigned pursuant to a direction that he do so, Mr [NAME] was "dismissed" for the purposes of the Act. For completeness I observe that I consider this to be the case, having regard to the reasoning in [NAME] v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] [NAME] 1012.

3. It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in [NAME] v Danwer [2013] [NAME] 61: "21. …It has been said those words constitute a 'tautological trinity' ([NAME] v [COMPANY] (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in [NAME] v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in [NAME]: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

1. To be entitled to any remedy under the Act the onus is on Mr [NAME] to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR ([NAME]) 273.

2. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: [NAME] v Commissioner of Police [2016] [NAME] 14; [NAME] v [COMPANY] (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & [NAME] ([NAME]) v [NAME] (No. 3) (1990) 35 IR 70 at 83-84.

3. The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the Department to make out its case "in a convincing way": [NAME] Sydney Local Health District v Hargreaves [2012] [NAME] 123 at [29].

4. Mr [NAME] employment was regulated in part by the Teaching Service Act 1980 ([NAME]). Part 4A of the Teaching Service Act contains provisions informing the process by which conduct and performance in the Teaching Service is to be managed. Relevantly for present purposes, the Teaching Service Act provides as follows: 1. "misconduct" is defined as including an employee "engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action": s 93C(1)(b); 2. "disciplinary action" is defined as follows: 93B Definitions (1) In this Part: disciplinary action, in relation to an officer, means any one or more of the following: (a) dismissal from the Teaching Service, (b) directing the officer to resign, or to be allowed to resign, from the Teaching Service within a specified time, (c) reduction of the officer's salary or demotion to a lower position in the Teaching Service, (d) the imposition of a fine, (e) a caution or reprimand. 1. the Secretary of the Department may issue guidelines for the purposes of, amongst other things, dealing with allegations of misconduct against officers as a disciplinary matter: s 93D(1); 2. if an allegation is made that an officer may have engaged in any misconduct, the Secretary may either deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, take remedial action, or both: s 93F(1); 3. after dealing with an allegation of misconduct as a disciplinary matter in accordance with Pt 4A and the procedural guidelines, if the Secretary is of the opinion that the officer has engaged in any misconduct, the Secretary may decide to take disciplinary action with respect to the officer: s 93F(2).

1. An allegation of misconduct under the Teaching Service Act requires assessment of the conduct concerned against the provisions of that Act, not against the common law definition of misconduct: [NAME] v Director-General, Department of Education and Communities [2014] [NAME] 1000.

2. Pursuant to s 93D of the Teaching Service Act the Department has promulgated a document titled "Guidelines for the Management of Conduct and Performance" ("Procedural Guidelines").

Consideration 1. Before considering the particular allegations that were made against Mr [NAME], it is necessary to emphasise one point. As explained by [NAME] [NAME] in the passages reproduced at [6] above, the process adopted by the Department to fill vacant teaching positions essentially involves matching teachers to vacancies through the use of Staffing Codes. A school will determine the Staffing Codes to be applied to a particular vacancy.

2. Staffing Codes attached to a position are given a numerical value, with the total of all of the codes giving a "Perfect Match Score". The Department's system essentially ranks teachers on the database according to the numerical value of their qualifications as compared to the Perfect Match Score.

3. The greater the number of codes attached to a position, the smaller will be the pool of teachers qualified for the vacancy. Conversely, the more Staffing Codes a teacher has on their personnel profile the greater their chances of being matched to a vacancy.

4. Mr [NAME] did not dispute that he had entered Staffing Codes to [NAME] [NAME] and [NAME] [NAME] personnel profiles as alleged. He also accepted that this conferred an advantage on them by improving their prospects of being matched to vacant positions. As will be seen, each of [NAME] [NAME] and [NAME] [NAME] were able to benefit from this competitive advantage.

Allegations 1 and 2 1. Allegations 1 and 2 relate to Mr [NAME] conduct in adding six skills codes to [NAME] [NAME] personnel profile on 4 June 2007.

Allegation 1 1. Allegation 1 alleges that in entering the skills codes on [NAME] [NAME] personnel profile Mr [NAME] failed to identify and/or disclose a conflict of interest. The Department relied on several iterations of a "Code of Conduct" that it said applied to Mr [NAME] during his employment, which contained particular provisions relating to the identification and avoidance of conflicts of interest. Mr [NAME] disputed that he had received training on the Code of Conduct. There is no evidence on which I could properly find that the documents were ever provided to Mr [NAME].

2. It is not, however, necessary to explore the extent to which Mr [NAME] was aware of, and should be regarded as bound by, the Code of Conduct. During the hearing Mr [NAME] ultimately accepted that he had placed himself in a position of conflict by entering codes on the profiles of [NAME] [NAME] and [NAME] [NAME]. [1]

3. Even without that admission I would have had no hesitation in finding that Mr [NAME] had a conflict of interest in accessing and amending his wife's and sister's profile. I consider that he would have known this even if he was unaware of the Code of Conduct. Mr [NAME] had worked in Teacher Recruitment since 2006. Throughout these proceedings he demonstrated an in-depth knowledge of the processes that he was required to follow and administer in his role. Mr [NAME] would have known that by his conduct he may have been, or be seen to be conferring a benefit on his wife and sister in the form of enhanced employment or transfer opportunities.

4. This is borne out by his acceptance under cross-examination that, to use the term adopted by [NAME] [NAME] during the meeting on 5 March 2020, amending [NAME] [NAME] and [NAME] [NAME] profiles "looked dodgy". [2]

5.

For these reasons, I find that allegation 1 is made out.

Allegation 2 1. Allegation 2 alleges that Mr [NAME] entered the skills codes onto [NAME] [NAME] personnel profile without either a formal request or approval to do so. Mr [NAME] claimed that he was acting on a written request that had come from MGHS, at which [NAME] [NAME] worked, to update the codes on her profile. 2. [NAME] [NAME] called into question whether such a request was ever made. In summary, she deposed as follows: 1. [NAME] [NAME] was approved to teach in Biology, Chemistry and Science from approximately 1 December 2006. 2. [NAME] [NAME] commenced employment as a temporary teacher at MGHS on 5 February 2007.

3. Eligibility for new Staffing Codes generally requires a teacher to demonstrate a few years of the corresponding skills or experience, yet [NAME] [NAME] apparently managed to qualify for the additional six skills codes within four months of commencing employment.

4. There is no record of [NAME] [NAME] holding any qualifications, performing any duties or demonstrating any skills during the period February to June 2007 that would make her eligible for the skills codes added to her profile by Mr [NAME] on 4 June 2007.

5. There is no record at MGHS of [NAME] [NAME] ever applying for or providing evidence of her eligibility for the additional codes. Further, there is no record of MGHS considering or approving an application by [NAME] [NAME] for the codes.

1. Specifically in relation to the addition on the AGR (Agriculture) code to [NAME] [NAME] profile, Mr [NAME] stated that it had been on his wife's profile since she was first approved to teach, although under the heading "willing to teach". He stated that on 4 June 2007 he did not "add" Agriculture but simply "reconfirmed" it.

2. There is no evidence that [NAME] [NAME] profile contained Agriculture prior to June 2007. Rather, in a letter to [NAME] [NAME] from the Department dated 24 August 2005, which was included in Mr [NAME] evidence, [NAME] [NAME] appears to have been advised that her approval to teach Agriculture was subject to her undertaking additional studies. There is no evidence that she did so. Further, in an email to Mr [NAME] sent on 28 June 2019 [NAME] [NAME] made reference to the code needing to be added, allegedly following a suggestion to this effect from her head teacher.

3. Further, [NAME] [NAME] deposed that she could not locate any record of [NAME] [NAME] teaching or assisting in teaching Agriculture in 2007. The teaching timetables from MGHS in 2007 are inconsistent with [NAME] [NAME] having been involved in teaching Agriculture. 4. [NAME] [NAME] was not called to give evidence. There was nothing to suggest that [NAME] [NAME] was not available to give evidence if required.

5. I am not satisfied that in entering the new codes on [NAME] [NAME] profile on 4 June 2007 Mr [NAME] was acting in accordance with the request that he had received from the MGHS. To the contrary, I find that he did so without a formal request or approval to do so. Further, there is no evidence that there was a proper basis on which Mr [NAME] should have added the codes to [NAME] [NAME] profile. Allegation 2 is made out.

Allegation 3 1. Allegation 3 relates to Mr [NAME] conduct in matching [NAME] [NAME] to a permanent teaching position at MGHS on or about 3 October 2007, without identifying and/or disclosing a conflict of interest in doing so.

2. As already observed, in 2007 [NAME] [NAME] was employed in a temporary position. Mr [NAME] accepted in his oral testimony that he was aware at the relevant times that [NAME] [NAME], like many other temporary teachers, was hoping to secure a permanent position.

3. For further context I note the following facts:

1. On 19 June 2007 and 10 September 2007 Mr [NAME] ran a matching search through the Department's system for position number 65897 at MGHS, being a permanent Science teacher position ("Position").

2. On 13 September 2007 MGHS declared the Position to be vacant.

3. Mr [NAME] ran a matching search for the Position on 25 September 2007.

4. Also on 25 September 2007 Mr [NAME] placed a call to [NAME], the Relieving Principle of the MGHS. For reasons which remain unexplained, Mr [NAME] decided to add Agriculture to the skills required for the Position. I digress to observe that Mr [NAME] could not be called to give evidence due to illness. Mr [NAME] evidence regarding this conversation was opaque.

5. Mr [NAME] ran a further matching search for the Position which resulted in [NAME] [NAME], [NAME] [NAME] and one other teacher achieving a Perfect Match Score.

6. On the same day Mr [NAME] took the paperwork to [NAME] [NAME], then the Assistant Director, Staffing Services. He claimed that he declared to [NAME] [NAME] his relationship with [NAME] [NAME] and that she asked him to leave the paperwork with her. The documentation was subsequently returned to him by [NAME] [NAME], who was then relieving as Manager, Staffing Services (Teacher Recruitment). [NAME] [NAME] approved the appointment of [NAME] [NAME] to the Position. Mr [NAME] deposed that [NAME] [NAME] was already aware of his relationship with [NAME] [NAME]. 7. [NAME] [NAME] was appointed to the Position with effect from 29 January 2008.

1. At the outset, and consistent with the observations at [36]-[37] above, it is impossible to avoid the conclusion that Mr [NAME] had a conflict when recruiting for a position that not only would his wife would be interested in, but was at the school at which she worked. The extent to which Mr [NAME] was aware that his position was compromised is borne out by his admission in oral evidence that he did not let Mr [NAME] know that his wife was one of the teachers who might qualify for the Position because he did not want to influence the outcome – either by prejudicing his wife's application or placing any pressure on Mr [NAME] to appoint his wife to the role. To my mind this shows an awareness of Mr [NAME] to the fact that there was a conflict and that his position was compromised.

2. Mr [NAME] could not recall why he had conducted searches for the Position on 19 June and 10 September 2007. He said it could only have been to look for a position for a scholarship order, for a case managed placement or to respond to Ministerial correspondence. He denied that he did so simply of his own volition. However, in circumstances where Mr [NAME] accepted that he was aware that the Position (being permanent) was one that his wife would want, a conclusion that [NAME] [NAME] was "keeping an eye on things" for the benefit of his wife is difficult to resist. 3. [NAME] [NAME] deposed that if Mr [NAME] had not altered [NAME] [NAME] profile on 4 June 2007 she would not have been considered for the permanent position at MGHS.

4. I accept that Mr [NAME] disclosed to [NAME] [NAME] that the preferred [NAME] for the Position was his wife and that [NAME] [NAME], who approved the appointment, was aware of that relationship. However, what he did not disclose was that he was aware of the vacancy at MGHS and that his wife was interested in the Position; that his wife's profile included Agriculture as a result of changes he had made on 4 June 2007; that he had placed a call to Mr [NAME], which resulted in Agriculture being added to the skills required for the Position (this is despite the fact that the timetables for MGHS in 2007 and 2008 do not disclose any need for the teacher appointed to the Position to hold Agriculture qualifications); and, that he had not disclosed to Mr [NAME] that one of the potential candidates for the Position was his wife.

5. In the circumstances it is not enough for Mr [NAME] to rely on the fact that he disclosed his relationship when presenting the results of the matching search to [NAME] [NAME]. The result was itself tainted by conflict.

6. In all of the circumstances, Mr [NAME] should have removed himself from the recruitment for the Position altogether. At the very least he should have disclosed the conflict before taking any steps to run matching searches for the Position. Waiting until the results were in, after having apparently played a part in influencing those results, does not meet Mr [NAME] obligations.

7. For completeness in relation to this allegation I observe that Mr [NAME] relied on an email that he had sent to a manager in the Department in 2005 in which he had disclosed his relationship with [NAME] [NAME]. That evidence does not take Mr [NAME] very far. It could not properly be said that notifying a single manager of his marital relationship at a particular point in time obviated the need to disclose it as and when required during the course of his employment.

8. I am satisfied that allegation 3 has been made out.

Allegations 5, 6, 7 and 8 1. All of these allegations really come down to the same thing: that Mr [NAME] improperly entered skills codes onto the profiles of [NAME] [NAME] and [NAME] [NAME], in the absence of a formal request or approval from their Principals, or Mr [NAME] supervisor, to do so.

2. The Department led uncontroverted evidence from [NAME] [NAME] and [NAME], the Principal of JPPS from 2008 to 2018, that teachers seeking to add Staffing Codes to their profiles must obtain the approval of their Principal. This would require the teacher to demonstrate that they had acquired the skills or expertise necessary to become eligible for the additional Staffing Code.

3. There was no suggestion that either [NAME] [NAME] or [NAME] [NAME] had requested or approved the addition of the Staffing Codes referred to in allegations 5, 6, 7 and 8 to the profiles of [NAME] [NAME] or [NAME] [NAME] respectively. Rather, Mr [NAME] accepted that he had acted of his own volition.

4. Mr [NAME] defended his conduct on the basis that in entering the codes he was merely effecting a translation from an old system to the current one. That is, there was a previous system which did not refer to Staffing Codes but to "Areas of Expertise". The Department went through a process of translating teachers' skills and expertise from the former Areas of Expertise to the current Staffing Codes. Mr [NAME] had done this for a number of teachers. He decided of his own volition to update the profiles for his wife and sister. He stated that he did not add any skills or expertise to their profiles that they did not already possess. 5. [NAME] [NAME] gave evidence that the migration of codes from the previous system to the current one was done on a Department-wide basis, rather than teacher-by-teacher. Mr [NAME] drew my attention to an instance from November 2016 where he had amended the codes for an individual teacher to align them with the new system. On balance I consider it more likely that the translation to the new system would have been dealt with "across the board", recognising that there might have been instances where individuals needed to be dealt with on an exceptions basis.

6. Even if I were to accept that Mr [NAME] was acting on a genuinely held but mistaken belief that he was simply updating the profiles for his wife and sister in order to comply with the new code structure and to make the profiles more accurate, it does not adequately explain why he did so when he has acknowledged in these proceedings that it placed him in a position of conflict of interest. As observed at [35] above, Mr [NAME] ultimately accepted in these proceedings that he had placed himself in a position of conflict by entering codes on his wife's and sister's profiles. However, he was unwilling to acknowledge that he should not have accessed the profiles of his wife and sister, but rather have forwarded any changes to somebody else to attend to.

Allegation 5 1. Allegation 5 refers to Mr [NAME] having entered the skills codes DAN (Dance), DRM (Drama), CCO (Computer Coordinator), SPO (Sport) and VIA (Visual Arts) on [NAME] [NAME] personnel profile on 14 October 2011.

2. On 13 October 2011, the day before, the JPPS had declared a vacancy for a permanent teaching position. The Staffing Codes for that position included DAN and DRM. This coincidence of events calls into question the veracity of the explanation offered by Mr [NAME] for his conduct.

3. When a matching search was conducted on 6 December 2011, [NAME] [NAME] was the only [NAME] with a Perfect Match Score. [NAME] [NAME] deposed that had Mr [NAME] not entered the DAN and DRM Staffing Codes to [NAME] [NAME] profile, she would have been disregarded as a [NAME] for the position.

4. I am satisfied that allegation 5 has been substantiated.

Allegations 6, 7 and 8 1. Allegations 6 and 8 refer to Mr [NAME] having added codes to his wife's and sister's profiles on 29 February 2016. On the evidence they should refer to 29 January 2016. Nothing turns on this as Mr [NAME] did not dispute that he had entered the codes referred to in each of the allegations.

2. Allegation 6 refers to the skills codes GAT (Gifted and Talented), ICT (Information Communication Technology), MMA (Multimedia) and XSC (Sports Coaching) being added to [NAME] [NAME] profile. [NAME] [NAME] has been the principal of MGHS since 2010. She deposed that: 1. [NAME] [NAME] had not applied for any Staffing Codes at any time after 2010. [NAME] [NAME] had never received or approved any application by [NAME] [NAME] for the codes added to her profile on 29 January 2016; and 2. in any event, she did not consider that [NAME] [NAME] was eligible for those codes and would not have approved any application by [NAME] [NAME] for them.

1. The only concession that Mr [NAME] was prepared to make in relation to this evidence is that [NAME] [NAME] was not qualified to have been assigned the skills code XSC (Sports Coaching) and that he should not have added that code to her profile. Even so, Mr [NAME] concession seemed more about the technical requirements of the code rather than accepting that there was any impropriety in what he had done.

2. Mr [NAME] contended that because [NAME] [NAME] was not going for a job at the time he added codes to her profile in 2016, she was not advantaged. This does not bear scrutiny. Mr [NAME] accepted that the more skills a teacher has on their profile the more competitive they will be when a vacancy arises. In particular, he conceded that sending a request to add codes to his wife's profile "improves [her] employability in the department system". [3] That is the advantage that [NAME] [NAME] derived in and after 2016.

3. Allegation 7 refers to the skills code CIR (Choir) being added to [NAME] [NAME] profile on 17 August 2015. Allegation 8 refers to the skills codes ICT (Information Communication Technology) and MUS (Music) being added to her profile on 29 January 2016. 4. [NAME] [NAME] deposed that: 1. between 2008 and 2018 she was the sole person responsible for approving Staffing Codes at JPPS; 2. she has no recollection of discussing with [NAME] [NAME] or approving any application by her for the CIR, ICT and MUS Staffing Codes; 3. had [NAME] [NAME] applied for the CIR Staffing Code in or around August 2015, [NAME] [NAME] would likely have considered her to be eligible; and 4. during [NAME] [NAME] time at [NAME] [NAME] did not demonstrate the requisite level of skill or experience required to be eligible for the ICT and MUS Staffing Codes. 1. [NAME] [NAME] was not called to give evidence. There was nothing to suggest that she was not available to give evidence if required.

2. In light of all of the evidence, I do not accept Mr [NAME] contention that he did not add any skills or expertise to the profiles of [NAME] [NAME] or [NAME] [NAME] that they did not already possess. For this reason, and in the absence of any request or approval from the relevant Principal for additional Staffing Codes to be added to those profiles, I find that allegations 6, 7 and 8 have been substantiated.

Procedural fairness 1. Other than as set out below, Mr [NAME] did not suggest that there was any procedural deficiency in the process that resulted in his dismissal. It seems clear that he was given every opportunity to respond to the allegations against him, noting that he had the benefit of [NAME] representation throughout the investigation. There is no basis on which it could be said that the Department failed to comply with the Procedural Guidelines.

2. Mr [NAME] did, however, take issue with the length of time it took for the investigation to be completed. He was notified of the commencement of the investigation on 19 October 2017 and was only informed of the outcome on 10 March 2020. This is a legitimate criticism. I have difficulty conceiving of any situation in which an investigation of more than two years would be required, but it is certainly not this case. That said, in the circumstances of this case, I do not consider that the period over which the investigation was conducted results in the dismissal being harsh, unreasonable or unjust.

3. Mr [NAME] also took issue with the fact that he was not notified that he was to be placed on the "Not to be Employed list" until after he had received notice of termination. As noted at [19] above, [NAME] [NAME] acknowledged this oversight in her letter to Mr [NAME] of 23 April 2020. I do not consider that this results in the dismissal being harsh, unreasonable or unjust.

Further considerations 1. In considering Mr [NAME] conduct, it is difficult to avoid the conclusion that he was acting to advance his wife and sister in their employment with the Department. Were it not for his actions, neither [NAME] [NAME] nor [NAME] [NAME] would have been considered for, much less obtained, the positions they each now hold. It stretches credibility to argue that the timing of his actions and the recruitment for the relevant positions was purely coincidental. This is compounded by the fact that Mr [NAME] has added Staffing Codes to [NAME] [NAME] and [NAME] [NAME] personnel profiles for which they were not eligible.

2. Despite this, Mr [NAME] has shown very little appreciation that he has done anything wrong. His concession that he was in a position of conflict when entering codes to his wife's and sister's personnel profiles came very late in the proceedings. He did not accept that he had acted inappropriately in his dealings with Mr [NAME], other than to say that he might do things differently in future.

3. Mr [NAME] alleged that the Department's Employee Performance and Conduct unit had breached its own guidelines. He had applied for another position in the Department and was apparently successful until the hiring manager was informed of the investigation. He claimed that the Employee Performance and Conduct unit had divulged this information. [NAME] [NAME] explained under cross-examination that it is standard practice in the Department for the fact of investigations, but not the details of the matters being investigated, to be made available to hiring managers as part of probity checking. I do not consider that the Department has engaged in any conduct in this regard that would render the dismissal harsh, unreasonable or unjust.

Conclusions 1. I am satisfied that the Department has established that Mr [NAME] engaged in the conduct referred to in the allegations against him and that such conduct amounted to misconduct within the meaning of s 93C(1) of the Teaching Service Act. That misconduct provided a proper basis for the taking of disciplinary action against him under s 93B, including the direction made by [NAME] [NAME] that he resign from his employment.

2. Having regard to Mr [NAME] circumstances, and in particular his length of service, I do not consider that his dismissal was either disproportionate to his misconduct or otherwise harsh. The dismissal was not affected by any procedural defects.

3. It follows that I find that the dismissal was not harsh, unreasonable or unjust.

Order 1. I order that the Application be dismissed. [NAME] Commissioner

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Endnotes 1. Tcpt, 4 September 2020, p 23(46-50) 2. Tcpt, 3 September 2020, p 70(25-27) 3. Tcpt, 3 September 2020 p 44(22-24)

Amendments 12 May 2021 - Paragraph 26 deleted the word "ISLHD" to read "Department" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2021