Bauer v Workers’ Compensation Regulator [2026] QIRC 43

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bauer v Workers’ Compensation Regulator [2026] QIRC 043 PARTIES: Bauer, Lina Appellant v Workers' Compensation Regulator Respondent CASE NO: WC/2023/69 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 19 February 2026 HEARING DATES: SUBMISSIONS: 29 July 2024 – 2 August 2024 Appellant's closing submissions: 25 September 2024 Respondent's closing submissions: 1 November 2024 MEMBER: Caddie IC HEARD AT: Thursday Island ORDERS: 1. The Appeal is dismissed. 2. An application for costs, if any, should be made by the Workers' Compensation Regulator within 28 days. CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – Appeal of decision to reject application for compensation - psychiatric or psychological injury – whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – -- 1 of 57 -- 2 where injury arises from management action – whether management action is reasonable and taken in a reasonable way – where Teacher on temporary engagement expressed interest in being made permanent – where feedback was provided about classroom management ability – where the employee's expectations led to their perceptions of management action as being unreasonable – where management action does not have to be perfect to be reasonable - where the management action taken was reasonable and undertaken in a reasonable way - appeal dismissed. LEGISLATION AND INSTRUMENTS: Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 11, 32 Directive 15/20 Positive Performance Management CASES: Carlton v Workers' Compensation Regulator [2017] ICQ 1 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Department of Agriculture and Fisheries v Workers' Compensation Regulator [2020] QIRC 097 Gilmour v Workers' Compensation Regulator [2019] QIRC 22 Motlap v Workers' Compensation Regulator [2020] QIRC 196 Prizeman v Q-Comp [2005] ICQ 43 Tuesley v Workers' Compensation Regulator [2021] QIRC 071 Watson v Foxman (1995) 49 NSWLR 315 -- 2 of 57 -- 3 APPEARANCES: Ms L. Bauer, appearing in person as the Appellant. Ms L. Willson of counsel, instructed by the Respondent. Reasons for Decision Introduction [1] Ms Lina Bauer ('Ms Bauer') appeals a decision of the Workers' Compensation Regulator ('the Regulator') dated 14 April 2023 to reject her application for compensation in respect of a psychological injury. [2] At all material times, Ms Bauer was employed by the Department of Education in the role of Teacher at Tagai State College, Thursday Island ('the College'). Her employment was on a fixed-term temporary basis. Ms Bauer contends the injury was caused by the way she was treated by 'supervisors' at the College, particularly arising from a permanence review process and her subsequent complaint. [3] The review decision subject of the appeal held that the claim for compensation was excluded by the operation of s 32(5) of the Workers Compensation and Rehabilitation Act 2003 (Qld) ('WC Act'), as the psychological injury was determined to have been sustained through reasonable management action taken in a reasonable way. Issues for determination [4] Appeals to the Commission are a hearing de novo whereby the matter is heard afresh.1 [5] The onus rests on Ms Bauer to persuade the Commission that she has suffered a compensable injury in accordance with the WC Act. [6] It is agreed that Ms Bauer was a 'worker' within the meaning of the WC Act.2 [7] Following the medical evidence of Dr Tim Robinson (General Practitioner) given at trial, the Regulator conceded that Ms Bauer suffered a psychological injury arising out of, or in the course of, her employment, and that the employment was a 1 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031. 2 Workers Compensation and Rehabilitation Act 2003 (Qld) s 11. -- 3 of 57 -- 4 significant contributing factor to the injury.3 For this reason, the evidence of Dr Robinson will not be considered further in this Decision. [8] Further, the Regulator accepted that the injury arose out of management action.4 One question remains [9] The remaining question for determination is whether the injury arose out of reasonable management action taken in a reasonable way, or Ms Bauer's perception of it, so as to exclude the injury from being compensable under s 32(5)(a) and (b) of the WC Act. [10] Ms Bauer must prove on the balance of probabilities that the question should be determined in her favour. [11] The Statement of Facts and Contentions ('SOFC') of Ms Bauer filed on 12 October 2023 sets out the factors Ms Bauer says render any management action unreasonable: • that the positive performance management principles had not been followed regarding 'detailing, describing and managing employee work performance'; and • the psychological 'hurt' was 'caused by' the 'unreasonable, unjust, biased and unfair actions of the management team'. [12] No stressors were nominated by Ms Bauer so the SOFC generally set the bounds of the case before the Commission.5 Accordingly, Ms Bauer's additional claims at trial and in closing submissions regarding alleged workplace bullying and discrimination are not within scope of the appeal and will not be considered further. Witnesses [13] At Hearing, the Appellant appeared as a witness for her case and in addition called the following witnesses: • Dr Tim Robinson, General Practitioner; • Mr Damien Broderick, Teacher;6 • Ms Jess Miller, Teacher;7 and 3 T3-7 ll 35-44. 4 Submissions of the Regulator, filed 1 November 2024, [9], [87]-[90]. 5 Carlton v Workers' Compensation Regulator [2017] ICQ 1, [18] (Martin P). 6 Mr Broderick's evidence related to the confirmation of permanent status following a probationary period. This scenario was not relevant to Ms Bauer's claim and was not probative of the matters to be determined in this appeal. -- 4 of 57 -- 5 • Mr Levi Dugger, Head of Department (former HOD of Ms Bauer). [14] The evidence of Mr Damien Broderick and Ms Jess Miller involved objections on relevance, with the Regulator submitting that their evidence did not assist the Commission in determination of this matter.8 Those matters were ruled on at trial.9 [15] The Regulator also characterises the evidence of Mr Levi Dugger as being general and not probative of the matters in question.10 [16] Appearing at Hearing as witnesses for the Regulator were: • Ms Suberia Bowie, Head of Campus; • Mr Patrick Fortescue, Head of Department (HPE, the Arts Technologies and Languages); • Ms Sarah Moss, Head of Department (English and Humanities); • Mr Matthew Arkell, Union Representative and Teacher; and • Mr Michael Ward, Executive Principal. [17] Ms Bauer questioned the credibility of evidence given by Ms Bowie in particular. Some of the questions relate to the content of the evidence which Ms Bauer rejects as lies as she does not agree with it, and some identify inconsistencies within the evidence. [18] I adopt the approach to fact finding outlined by VP O'Connor in Motlap v Workers Compensation Regulator:11 [36] In assessing the evidence, let me respectfully adopt the approach of McKenna J who described his fact-finding process in a paper delivered at the University College, Dublin in 1973: This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the 7 The evidence of Ms Miller largely related to her own experiences which were not relevant to the appeal. Her evidence has only been considered where relevant to the matters to be determined. 8 Submissions of the Regulator, filed 1 November 2024, 2. 9 Only evidence relevant to the matters at issue in the appeal will be considered in this Decision. 10 Submissions of the Regulator, filed 1 November 2024, 2. 11 Motlap v Workers' Compensation Regulator [2020] QIRC 196, [36]. -- 5 of 57 -- 6 true from the false by these more or less objective tests, I say which story seems to be the more probable, the plaintiff's or the defendant's ? [19] The principle expressed in Watson v Foxman by McLelland CJ is also relevant:12 Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. [20] The evidence adduced and examined will only be considered as relevant to the question to be determined. The uncontested events [21] The relevant evidence in this appeal relates to the following events said to be causative of the injury: • Meeting of 22 July 2022 between Ms Suberia Bowie (Head of Campus) and Ms Lina Bauer to discuss Ms Bauer's wish to be made permanent and relevant feedback. • Meeting of 27 July 2022 to discuss the evidence upon which the Heads of Department (HODs) drew their conclusions in the feedback reports about Ms Bauer, relied upon by Ms Bowie. The meeting was attended by Ms Bowie, Ms Sarah Moss (HOD), Mr Patrick Fortescue (HOD) and two QTU representatives - Mr Arkell and Mr Jeloudev. • Executive Principal, Mr Michael Ward's handling of the complaint first lodged with Ms Bowie and forwarded to him on 24 July 2022 and further related complaint lodged with him by Ms Bauer on 31 July 2022. Relevant factual background [22] Ms Bauer had a long history of employment as a teacher in Queensland, interstate and overseas.13 She came out of retirement to work as a temporary teacher at Bwgcolman Secondary School, Palm Island in 2021. Ms Bauer held provisional teacher's registration. [23] Ms Bauer commenced employment with the Tagai College on Thursday Island in June 2021 on a temporary contract that was extended to December 2022. [24] Ms Bauer taught Drama and English at the College for Year levels 7,8 and 9. 12 Watson v Foxman (1995) 49 NSWLR 315, 318-319. 13 Submissions of the Appellant, 25 September 2024, 14. -- 6 of 57 -- 7 Email correspondence by the Appellant: Concerns about classroom behaviour [25] An important backdrop to the following events is the fact that between March and June of 2022, Ms Bauer raised various concerns regarding student behaviour by email to members of the management team. [26] These emails will be extracted and examined later in this Decision. Process for permanent conversion [27] In May of 2022 Ms Bauer was approached by Ms Yolanda McLean, the Head of School, to ascertain Ms Bauer's intentions going forward at the College.14 [28] On 5 June 2022, Ms Bauer emailed Ms Suberia Bowie, Head of Campus, and Ms McLean, and advised she had applied to transition from provisional registration to full registration as a Teacher in Queensland.15 [29] On 11 June 2022, Ms Bauer emailed Ms Bowie to inform her she had advised Ms McLean she would stay at the College for another year until December 2023.16 Ms Bowie's reply, sent 13 June 2022, asked Ms Bauer to advise her intentions regarding staying on as a temporary employee or seeking conversion to permanence. The email states that if permanence is sought Ms Bauer and Ms Bowie would need to meet. Ms Bauer replied on the same date confirming permanency is what she wanted.17 [30] To progress Ms Bauer's permanence request, Ms Bowie liaised with Mr Patrick Fortescue, Ms Bauer's line manager and HPE/Arts Technology HOD,18 and Ms Sarah Moss, English/Humanities HOD, and organised a template Teacher Permanency HOC Report be completed. [31] Mr Fortescue completed his report on 18 July 2025 and Ms Moss completed her report on 22 July 2025. Both were forwarded to Ms Bowie. [32] On 18 July 2022, Ms Bauer received an email invitation from Ms Bowie to attend a meeting scheduled for 22 July 2022. The meeting notice had the subject header of 'Permanency Application' and listed the purpose as being "to give feedback on permanency application".19 14 T1-7 l1 15-16. 15 Exhibit 50. 16 Exhibit 2. 17 Exhibit 2. 18 Mr Fortescue was the HOD and Ms Bauer's line manager in 2021. Ms Sarah Moss commenced at Tagai College in January 2022. 19 Exhibit 33. -- 7 of 57 -- 8 Meeting of 22 July 2025 [33] Ms Bauer attended the meeting with Ms Bowie on 22 July 2025. Ms Bauer confirmed at Hearing that she understood the meeting would involve feedback and that she had done some preparation on that basis.20 [34] At the meeting, Ms Bauer was informed of the contents of the permanency reports completed by Mr Fortescue,21 and Ms Moss.22 The tenor of both reports was that while aspects of Ms Bauer's performance as a teacher were good or sound, 'significant' improvement in classroom behaviour management skills was required. [35] The report produced by Mr Fortescue dated 18 July 2022 is extracted below:23 Quality teaching in the provision of education and training for all students Lina's curriculum knowledge and expertise in the field of Drama is at a satisfactory level. In lessons I have observed she attempts to engage students consistently throughout the lesson in the content. Lina's classroom behaviour management requires significant improvement. We are continuing to work with Lina in improving her ability to self-manage the classroom environment through ESCM's and classroom PBL practices. Lina is enthusiastic about preparing and planning for her classes. Lina is very punctual with her assessment and reporting handed in on time. Demonstrates collegiality and flexibility and the ability to work well as part of a team Lina struggles with change and the complex education environment of our school. She often rejects or has a very closed attitude towards change and growth. Lina can negatively influence others around her with her negative opinions about department driven decisions and direction. Lina also needs to work on her professional relationships and treating colleagues with respect. She can often come across as demanding and disrespectful in conversations which has led to several disputes and altercations. Lina often waits until after conversations are finished to send emotionally charged emails which escalates problems. Lina sometimes completes tasks and will follow instructions of a supervisor when asked. Understanding, respecting and responding to school and community protocols Lina is already living in an isolated area, and to my knowledge is coping fine with the small community environment. Working with parents and the community in partnership to improve educational outcomes for all students, in particular Indigenous students This is part of Lina's everyday work here at Tagai State College. She tries to engage parents, however, often sends emails to parents that are not productive and in the best interest of the student. This has led to several parent complaints/concerns. Lina does work well with teacher aides. 20 T1-87 l 30. 21 Exhibit 10. 22 Exhibit 13. 23 Exhibit 10. -- 8 of 57 -- 9 [36] The report compiled by Ms Moss dated 22 July 2022 is extracted as follows: Quality teaching in the provision of education and training for all students Lina's curriculum knowledge within English is of a sound level. She does regularly attempt to modify and adjust teaching and learning to the complex needs of our students. Lina competently plans and assesses for her classes meeting deadlines, though at times does not follow protocols. Lina struggles with managing classroom behaviour and regularly reaches out for support in tier 1 level that should be addressed within the classroom. Though she is improving in this space. Demonstrates collegiality and flexibility and the ability to work well as part of a team Lina develops good repour (sic) with her colleagues, though at times can be unpredictable and unprofessional if she is unhappy about something. This can at times come across as disrespectful and negatively impact those around her. Understanding, respecting and responding to school and community protocols Of my knowledge Lina does not struggle living in the remote community we are in. Working with parents and the community in partnership to improve educational outcomes for all students, in particular Indigenous students Of my knowledge Lina works well with support staff. She has a tenuous relationship with students, often finding it hard to move through problems with them. I am unaware of how she interacts with parents. [37] Ms Bauer did not agree with the feedback contained in either report and expressed this at the meeting, later referring to the reports as 'fallacious, malicious and libellous' and unable to be supported by any evidence. [38] The contemporaneous meeting notes taken by Ms Bowie recount the discussion as follows:24 During the interaction/meeting Suberia Bowie Head of Campus: • Read through the Permanency Report feedback to Lina Bauer from Head of Department of English/Humanities Sarah Moss and Patrick Fortescue HPE/Arts Technology the following points were highlighted to her: o She required significant improvements in managing classroom behaviour and she struggles with managing classroom behaviour. o She develops good relationships with some of her colleagues, though at times can be unprofessional if she is unhappy about something. This can at times come across as disrespectful and negatively impact those around her. • Stated that she was concerned about the Levels of Achievement for her Semester 1 8 English class which had low outcomes. During the interaction/meeting Lina replied: • The statements in the Permanency report feedback from the Heads of Departments were not true she does not have an issue with managing classroom behaviour. • The levels of achievement for her Semester 1 year 8 English class is beyond teacher control. 24 Exhibit 20. -- 9 of 57 -- 10 • Suberia needs to interview the students and Marcella Mosby the teacher aide in the class to find out about her classroom behaviour management. • Suberia to set up a meeting with QTU representative and the HODs to further clarify their feedback on her classroom behaviour management and when she was disrespectful to staff. In order to assist Lina Bauer to improve their permanency report, Suberia Bowie: • Asked her if she needed support in managing classroom behaviour through providing a coach. Lina refused coaching in Behaviour management. • Asked her if she received an Explicit Instruction professional development last year at our campus. Lina replied she has received training at her previous school Bwgcolman Community School in 2021. At the end of the meeting Suberia Bowie stated that: • She will organize a meeting with the two Heads of Department and a QTU representative to clarify their feedback. • She will interview her Semester 1 students and Marcella Mosby her Teacher Aide to seek feedback on her ability to manage classroom behaviour. • She will not approve her permanency if she does not improve in her classroom behaviour management. [39] At Hearing, Ms Bauer agreed the notes contained an accurate record of the meeting.25 [40] Following the meeting on 22 July 2022, Ms Bowie emailed Ms Bauer the meeting notes and HOC reports produced by the HODs. A meeting request was also sent for 27 July 2022 with Patrick Fortescue and Sarah Moss, to further 'clarify their feedback' and Mr Matt Arkell as the QTU representative. 26 [41] On 24 July 2022, Ms Bauer replied by email to Ms Bowie, Mr Jeloudev (QTU representative) and another recipient, reproduced below:27 Dear Admin Team, My application to transition to permanency has been placed on hold SOLELY on the report written by the HODs namely Pat Fortescue and Sarah Moss. The report is fallacious, malicious and libellous. It is full of inaccuracies, generalisations and most of all there is no solid evidence to support the report. What is most damaging is that Suberia, the leader of the school, should allow people who make promotion decisions to write unprofessional documents of this nature and furthermore, to form a conclusion based on this report alone. I wish to say here that for the moment, I have declined to have any more meetings with Suberia, Pat Fortescue and Sarah Moss. Instead, I am asking the admin team to arrange for a meeting chaired by Mike Ward or Yolanda McLean where: 1- Pat and Sarah provide proof and witnesses to support the statements they have made in the report 25 T1-97 ll 14 – 26. 26 Exhibit 21. 27 Exhibit 21. -- 10 of 57 -- 11 2- Suberia give cause as to why she made the decision to defer the transition until I have fulfilled the requirements that were stated in the report. 3- Lina to provide evidence and witnesses and her refutations of the report. What is written in the report is defamatory and very upsetting. I wish to clear my good name. I will also be writing to Mike Ward and Yolanda to seek advice. … [42] Ms Bauer characterised this email as constituting a complaint under the Complaints Management Process.28 [43] On 25 July 2022, Ms Bowie replied to Ms Bauer and advised she had passed the email correspondence onto Mr Ward and Ms McLean. She advised Mr Ward had replied to say he was unavailable and had reiterated that 'the first step is for [Ms Bowie] to meet with you and the HODs to clarify their feedback…it is our responsibility as leaders to give you feedback and to provide assistance to improve your capability'.29 Meeting of 27 July [44] On 27 July 2022, a meeting to discuss the feedback occurred, attended by Ms Bauer, Ms Bowie, Ms Moss, Mr Fortescue, Mr Arkell and a second union representative requested by Ms Bauer, Mr Adrian Jeloudev. [45] Meeting notes, recorded contemporaneously by Mr Arkell,30 set out that the purpose of the meeting was to discuss the 'permanency feedback form' given to Ms Bauer in the previous meeting at Ms Bauer's request for further clarification and union involvement. The meeting notes detail that the minutes of the meeting were to be sent to Mr Michael Ward, Executive Principal, following the conclusion of the meeting. [46] Ms Bowie read out the reports and highlighted 'areas of concern.' Mr Fortescue's feedback about concerns regarding the ability to manage classroom behaviour and Ms Moss's concerns regarding the ability to manage tier one behaviour were identified as the areas of concern. [47] The meeting notes record that Mr Fortescue emphasised that the report was a holistic perspective of 'everything' and is recorded as stating that lesson observations were good but concerns were raised following the emails sent by Ms Bauer about student behaviour. [48] A number of emails by Ms Bauer to various members of staff raising issues or requesting assistance were read through and discussed at the meeting. 28 T1-39 l 36-41. Exhibit 22, which is the Complaints management process relied upon by Ms Bauer. 29 Exhibit 21. 30 Exhibit 58. -- 11 of 57 -- 12 [49] The notes record the following exchange after discussion of the emails: • LB ('Lina Bauer') stated that SB ('Suberia Bowie') has refused to give permanency because of false reports sent to her by HOD's and that she is an experienced teacher and the reports are a smear on her name and professionalism • LB explained that PF ('Patrick Fortescue') has only observed her once in the classroom and that his report is a generalisation and not factual • LB then read a report from a formal observation that happened on Palm Island where the report was all positive • LB stated again that she has sent numerous emails and that she has had little reply to these emails • LB stated there is no evidence to back up what is written in the report by the HOD's • LB stated that the HOD's have not spoken to LB about classroom management… • LB then read a report that students from Palm Island had written showing that she was highly respected and regarded by all students • LB stated that teachers at the high school are tired and admin are not helping teachers • LB said she is frustrated because SB has not looked at anything other than the reports that the HOD's have written. She has not spoken to students, YLC's or other staff members • PF explained to LB that she does good things in the classroom • LB asked PF not to talk about those things as they were there to talk about the negative feedback from the report • LB said that one class's behaviour should not stop her getting permanency • PF showed LB emails that LB had sent about classroom management in 3 different classes. PF explained that the emails showed LB is struggling with behaviour management in all 3 classes. PF explained that this is what he used to write his report • PF said that moving forward the school needs a really clear process for how LB will progress to permanency • SB agreed with PF • … • LB rejected that she needed extra support in class and that this alone should not be used to reject her application for permanency • PF explained that they were trying to help her now and this this is what he was talking about the report where he said that she struggles to work with colleagues in a professional manner… • SB explained that this is all of the feedback that she has and that she is not rejecting LB's application for permanency • SB said that to be ticked off for permanency LB needed to show improvement • LB stated that everything said in the meeting was an assumption and that everyone assumed that she can't handle her classes • … • LB rejected that she needs to work on her behaviour management -- 12 of 57 -- 13 • LB pointed out that PF said in his report that LB struggles to cope with change and complexity of education in the Torres Straits. LB said that she has taught all around the world so how is she not able to accept change and the context here • LB once again rejected the reports written by PF and SM • LB once again rejects the fact that she needs extra help with behaviour management • SB said that moving forward she will ask for feedback from YLC's, TA's and students • LB asked why this was not done in the first place. LB said that information should have been gathered from multiple sources and triangulated before the first meeting was held • LB stated that the reports written by HOD's were a generalisation and that they were wrong and that they were a defamatory swipe at her professional name • SB said that she needs to make a decision on LB's permanency before the deadline based on the evidence that she has • SB said that she is happy to sit down with LB and go through the behaviour management process with her. But if LB fails to follow the process she will have to put it in her report • LB said that this should have been done before the first meeting and this would not have happened if the process had been done properly the first time • LB said that she rejected both reports written by HOD's • SB tells LB that her permanency has not been rejected. • LB once again states that she rejected statements written by HOD's. LB states that her application for permanency should not be based on the reports written by HOD's • SB asked LB when would be a good time next week to meet. LB said that she would not be meeting alone. SB asked AJ (Mr Adrian Jeloudev) whether he would be able to attend a meeting next week. AJ accepts • LB then stated she is no longer concerned about getting permanency and that she is wanting a meeting to talk about what was written in the reports by the HOD's • SB then stated she wants it written in the minutes that LB does not want a meeting moving forward about the way to progress her permanency • LB stated that the meeting she wanted was to talk about the way that the HOD's have attached (sic) her name and professionalism in their reports • No time was made for the next meeting [50] The Regulator contends these notes constitute an accurate reflection of the meeting as they were made contemporaneously and there were no discrepancies between these notes and the evidence given by witnesses.31 Ms Bauer contended her email to Mr Ward of 31 July 2022 detailing her issues with the meeting accurately reflected the events of the meeting,32 but did not dispute the validity of the meeting minutes taken by Mr Arkell. [51] Mr Arkell's perspective on this meeting was explained in witness evidence at Hearing as follows: 31 Submissions of the Regulator, filed 1 November 2024, [30]. 32 T1-47 ll 1-2. -- 13 of 57 -- 14 Permanency was never taken off the table. Permanency was always there. It was just around forming a process for Lina to get permanency.33 [52] At hearing, Ms Bauer agreed that at the meeting, Mr Fortescue stated that the 'school needs a clear process to show how Lina Bauer would progress to permanency', and that Ms Bowie had stated that the application for permanency was not rejected, but that Ms Bauer would be required to demonstrate improvement before the application would be accepted.34 [53] At Hearing Ms Bauer described herself at the close of the meeting as 'shocked' and 'outraged'.35 [54] On 31 July 2022, Ms Bauer emailed Mr Ward to express concerns about the conduct of the meeting as follows:36 • The moderator (Ms Suberia Bowie) was 'biased' towards the perspective of Mr Patrick Fortescue and asked 'leading questions.' • The emails from Ms Bauer requesting support as discussed in the meeting 'supported rather than negated' Ms Bauer's case. • A breach of confidence occurred in the meeting by way of Mr Fortescue telling Ms Bowie that Ms Bauer had raised concerns about the number of times Ms Bowie visited her classroom. • That 'hearsay and second-hand information' about an alleged dispute between Ms Bauer and another staff member was discussed when this was based on hearsay information. • Mr Fortescue and Ms Moss failed to follow the 'line management process for complaints' as 'neither approached me to discuss what they saw fit to include in a formal report'. 37 [55] Ms Bauer's email to Mr Ward, expressed that her concern was now primarily to clear her name and 'investigate the breach in confidence', with the matter of permanency described as 'secondary'. Mr Ward responded on 2 August 2022 as extracted below: Dear Lina, … 33 T4-89 ll 14-17. 34 T1-126 ll 30-33. 35 T1-86 l 44; T1-46 l 32. 36 Exhibit 25. 37 Complaints in this context related to negative feedback about her performance. -- 14 of 57 -- 15 My heart aches reading the various emails and notes associated with the concerns raised in your email. I will only share a few thoughts about all this, as I am aware you may be exploring the possibility of some time off work, and if so, that must be your priority. If this is the case, I am assuming it is to look after your wellbeing and consider what you will do moving forward, so I don’t want to add too much more other than to offer some thoughts and advice. … Permanency and staff development/performance are two separate processes. I acknowledge that permanency is not your primary concern. This part of things will take care of itself if and when you are interested, as it is put in place by the Department of Education separately from individual schools and colleges, and usually happens now without any specific advice from the school, but not always. The Department also decides the placement location for offers of permanency, although normally it is in the most recent location… With that put to one side, it leaves us with the feedback and reports that were prepared. I will say upfront that I expect ALL staff to be open to feedback and reflective conversations regarding their work performance. This is common practice everywhere and needs to be ongoing. I model it myself and seek it out from my own supervisors. Feedback and development conversations should be a relatively straight forward process. If there is disagreement about the content, as in your case, I expect the next step to be respectful communication of this, the beginning of a new conversation and agreement around the next steps as part of an ongoing process of observation, professional dialogue and feedback. Essentially, you need to take up the opportunity to engage in the process and if you feel it necessary, demonstrate that stated concerns are not correct. The reports and meeting notes are for these internal processes only, and are not shared with the Department or others so there is no risk of professional reputation damage. I can ask the others if there is any additional information or evidence to support the comments in their reports, but this should be shared with you as part of a respectful and ongoing development process. This is all meant to be a supportive process that is honest and productive… [56] Ms Bauer responded later that day as follows: … I agree that teaching is a continuing process of reflection and professional growth and must be informed by feedback and respectful dialogue by all. This is my point. The report was full of generalisations. It is not respectful to write a professional report in such a fashion. How can a professional dialogue be held when the mediator, Ms Bowie, was being subjective and asking leading questions to prove Fortescue's negative arguments against my person? … Who holds the supervisors accountable for breach of confidentiality? I know. Talk to the union or hire a lawyer. I will talk to the union first. Who holds the supervisors accountable for accepting unsubstantiated statements to form the basis of their conclusion that Ms Bauer requires more professional development in 1. classroom management and 2. Developing respectful relationship with colleagues… What must be noted is that NO evidence was given with the reports. Those produced in the second meeting only proved what I was being accused of? … -- 15 of 57 -- 16 [57] Ms Bauer at Hearing contended that Mr Ward's response to her complaint was not reasonable and contended that Mr Ward had 'totally ignored what I complained about…the supervisors'.38 [58] On 8 August 2022 Ms Bauer did not attend work and has not returned to date.39 [59] On 8 August 2022, Ms Bauer emailed Mr Ward under the header 'Duty of Care' to express her disappointment with the handling of her request for assistance and advised she felt the senior management of the College had failed in their duty of care towards her, causing her to experience 'isolation, despair and great sadness.'40 In that email, Ms Bauer informed Mr Ward of her intention to seek a transfer to a different school. [60] Mr Ward replied later that day and confirmed he had in fact followed up her concerns with the leadership team and let Ms Bauer know he was awaiting what she decided to do regarding leave.41 [61] On 9 August 2022 Ms Bauer attended Dr Erin Jeffrey seeking a medical certificate for her absence the previous day.42 Dr Jeffrey completed a medical certificate certifying Ms Bauer had a medical condition/issue and was unfit for work from 08/08/22 to 20/08/22. [62] On 13 August 2022 Ms Bauer emailed Mr Ward to lodge a further formal complaint alleging that the correct process was not followed in relation to her earlier complaints. [63] On 15 August 2022, Ms Bauer attended an appointment with Dr Tim Robinson, who completed a Work capabilities checklist: Teachers. The checklist set out that Ms Bauer was unfit for work from 15 August 2022 to 12 September 2022.43 Ms Bauer explained at Hearing that she felt, at this time, that she could not return to work.44 [64] On 19 August 2022, Mr Ward responded to Ms Bauer's correspondence and advised that they should not discuss work matters until Ms Bauer received medical clearance to return to work.45 [65] On 1 September 2025 Ms Bauer lodged an application for compensation in respect of a psychological injury sustained through 'incidents at work have now made her Anxious and very stressed'. 38 T2-9 l1 1-12. 39 Submissions of the Regulator, filed 1 November 2024, [84]; T1-81 ll 1-15. 40 Exhibit 26. 41 Exhibit 26. 42 T1-77 l 46; T1-78 ll 1-9. 43 Exhibit 12. 44 T1-179 l 46. 45 Exhibit 26. -- 16 of 57 -- 17 [66] On 25 October 2022 WorkCover advised of their decision to reject the application for compensation because of the operation of s 32(5) of the WC Act. [67] On 3 November 2022 Ms Bauer sought a review of the WorkCover decision, and on 13 April 2023, the Regulator advised of their decision to uphold the decision of 25 October 2022. [68] On 16 May 2023 Ms Bauer lodged an appeal against the decision in the Queensland Industrial Relations Commission ('the Commission'). Date of injury [69] The Regulator draws my attention to the decision of her Honour Hartigan DP in Tuesley v Workers' Compensation Regulator to emphasise the importance of establishing the date Ms Bauer sustained an injury in order to properly examine the factors said to be causative of that injury.46 [70] The Regulator contends that, as Ms Bauer left the workplace on 8 August 2022, attended Dr Erin Jeffrey on 9 August 2022 and attended Dr Tim Robinson on 15 August 2022, where she obtained a work capabilities checklist, the date of injury is 8 August 2022. If the Commission does not agree, they submit in the alternative that the date of injury is 15 August 2022, which is the date of the work capabilities checklist. They say that neither date will bear on the outcome of the issues for determination in this appeal. [71] The date of injury confines what can be relevant to my consideration of reasonable management action for the purposes of the personal injury being sustained.47 In an email from Ms Bauer to HR on 30 August 2022 Ms Bauer states:48 I did return to school after the Teacher permanency interview with the Head of Campus on 22 July and after the 27 July meeting with the Head of Campus and 2 Heads of Department. On 8 August (about 3 weeks after the first interview) I knew for certain that I could not return to school without putting my mental wellbeing at risk. [72] I conclude the date of injury was 8 August 2022. The uncontested events outlined in paragraph [21] are all relevant to the determination of the appeal. Relevant Principles and Statutory provisions [73] Section 32(5) of the WC Act relevantly sets out the meaning of 'injury' as follows: 32 Meaning of injury (1) An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. 46 [2021] QIRC 071, [12]. 47 Tuesley v Workers' Compensation Regulator [2021] QIRC 071. 48 Exhibit 29. -- 17 of 57 -- 18 (2) However, employment need not be a contributing factor to the injury if s 43(2) or 35(2) applies. (3) Injury includes the following: (a) A disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) An aggravation of the following, if the aggravation arises out of, or in the course of, employment, and the employment is a significant contributing factor to the aggravation – (i) A personal injury; (ii) A disease; (iii) A medical condition, if the condition becomes a personal injury or disease because of the aggravation. (4) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances – (a) Reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) The worker's expectation or perception of reasonable management action being taken against the worker; (c) Action by the Regulator or an insurer in connection with the worker's application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way – • Action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • A decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the workers' employment [74] Section 32(5) excludes a psychological injury arising out of, or in the course of, reasonable management action taken in a reasonable way, from the statutory understanding of 'injury'. The examples provided in s 32(5) exemplify which actions are 'appropriately deemed management actions'.49 [75] For the purposes of s 32(5) of the WC Act, 'management action' should be understood as something distinct to the everyday duties and tasks involved in the Appellant's employment.50 His Honour O'Connor VP has set out that the 'exclusory action' in s 32(5) of the WC Act relates to 'specific management action directed to the appellant's employment itself as opposed to action forming part of the everyday duties and incidental tasks of the appellant's employment'.51 [76] The Regulator draws my attention to State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator where it is set out that when the employer performs a 'specific action' or 'actions concerning a specific 49 Gilmour v Workers' Compensation Regulator [2019] QIRC 22 ('Gilmour'), [75] (O'Connor VP). 50 Gilmour [2019] QIRC 22, [79] (O'Connor VP). 51 Ibid. -- 18 of 57 -- 19 issue' with an employee then this is likely to have the characteristics of 'management action'.52 [77] The Regulator argues that the management action taken in this matter was reasonable management action and undertaken in a reasonable way. The task the Commission must undertake when assessing reasonable management action has been articulated by Martin J in Davis v Blackwood:53 The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable. [78] His Honour Merrell DP considered in State of Queensland (Department of Agriculture and Fisheries) v Workers Compensation Regulator that three things must be shown in order for s 32(5)(a) to be enlivened:54 • That there was reasonable management action; and • That it was taken in a reasonable way; and • That the 'action' gave rise to the disorder. [79] The relevant events said to constitute management action in this matter are the meetings of 22 July and 27 July, and the management response to the complaints and concerns raised by Ms Bauer.55 [80] It is not disputed that Ms Bauer suffered a psychological injury arising out of, or in the course of, her employment, and that the employment was a significant contributing factor to the injury.56 [81] The enquiry in this case relates to whether the management action was reasonable and taken in a reasonable way. [82] On these matters, Merrell DP has explained further the nature of the enquiry before the Commission (citations omitted):57 [25] The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental. Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively. 52 [2020] QIRC 097 [58]-[64], (Merrell DP); Submissions of the Regulator, filed 1 November 2024, [87]. 53 Davis v Blackwood [2014] ICQ 9, [47]. 54 [2020] QIRC 97,[22]. 55 Submissions of the Respondent, filed 1 November 2024, 11. 56 T3-7 ll 35-44. 57 State of Queensland (Department of Agriculture and Fisheries) v Workers Compensation Regulator [2020] QIRC 97. -- 19 of 57 -- 20 [26] Reasonableness does not necessarily equate with "industrial fairness" although considerations of "fairness" will always be relevant. An imperfection in management action may not justify the characterisation of the management action as unreasonable. Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable. [27] Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case. It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct. [28] However, the reasonableness of action by management has to be considered "… in connection with the worker's employment" which requires consideration of all disparate elements which contribute to the injury. In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable. However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified. [29] Such a global view may be justified where there are repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing. [83] Ms Bauer bears the onus to establish on the balance of probabilities that the injury did not arise out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with Ms Bauer's employment or the Ms Bauer's expectations or perceptions of reasonable management action being taken against the her.58 Was the management action reasonable? Permanency Process [84] Despite Ms Bauer's contention in submissions and at Hearing that she did not apply for permanency;59 it is clear on the evidence that by email on 13 June 2022 she confirmed to Ms Bowie her desire to be made permanent. It was clear from the email exchange that a meeting would need to occur between Ms Bauer and Ms Bowie regarding any permanency request. [85] This is what led to Ms Bowie convening the meeting with Ms Bauer on 22 July 2022. The purpose of the meeting in the invitation was to give feedback on the permanency application. [86] Ms Bauer gave evidence that while she was not clear about the process for the meeting, she understood some kind of 'performance appraisal'60 would be occurring 58 Prizeman v Q-COMP [2005] ICQ 43. 59 For example, T3-30 – T3-31; Submissions of the Appellant, filed 25 September 2024, 2. 60 Ms Bauer variously seeks to characterise the permanence process and outcomes as promotion, performance appraisal, performance management etc. The underlying catalyst for the impugned actions (howsoever described) was her request to be made permanent. -- 20 of 57 -- 21 and had done her own preparation – sending an email and gathering documents for the meeting. Ms Bauer indicated she approached the meeting with optimism.61 [87] On 21 July 2022, Ms Bauer emailed Ms Bowie as follows, attaching a picture of her "trophy" – a banner created by former students thanking Ms Bauer for her work:62 Good afternoon Suberia , I sent you this in preparation for the meeting at 9 a.m. tomorrow. I know I should be talking about PBC, moderation and transitions but I would rather show off my trophy. This is one of my most treasured possessions. I received this from the students at BwgColman Secondary, Palm Island. [88] Ms Bowie undertook her own process of gathering feedback in preparation for the meeting. This involved asking Ms Bauer's line manager Mr Fortescue and the other relevant HOD, Ms Moss, to complete a template report with set criteria headed 'Teacher Permanency HOC Report 2022' to add to her own consideration for discussion with Ms Bauer at the permanency feedback meeting. [89] There was uncontroverted evidence from Ms Bowie at Hearing that this template report contained the departmental teacher standards required for consideration in relation to permanency.63 The purpose of the meeting was to discuss the feedback gathered with Ms Bauer. [90] Notwithstanding Ms Bauer's vehement disagreement with the content of the reports and Ms Bowie's reliance on the report feedback to 'reject her permanence request', it was reasonable for management to set a meeting with Ms Bauer to discuss feedback relevant to that request. [91] The need for a meeting had been foreshadowed to Ms Bauer by email. The meeting request itself listed the purpose of the meeting as being to discuss feedback. The mutual understanding of this purpose was confirmed by both parties undertaking steps to prepare. [92] The meeting of 22 July 2022 was reasonable management action. Whether it was taken in a reasonable way is a separate question to be considered later in this decision. [93] During the meeting on 22 July 2022 Ms Bauer insisted a second meeting be convened with the HODs, in order that evidence and particulars to justify their feedback could be put, along with Ms Bauer having an opportunity to defend the 61 T1-11 ll 22-26. 62 Exhibit 3. 63 T3-30. -- 21 of 57 -- 22 'allegations'. Ms Bowie agreed inter alia to organise that meeting and include QTU representation as requested. [94] By 24 July 2022, Ms Bauer had changed her mind about meeting with Ms Bowie and the HODs and had expressed a preference to meet instead with the Executive Principal Mr Ward and Ms McLean.64 However, Ms Bauer accepted Mr Ward's view that it was appropriate for the feedback process to be undertaken with the local management representatives in the first instance in that the meeting on 27 July proceeded as originally planned. [95] By the time the meeting on 27 July occurred, Ms Bauer had prepared a rebuttal document to the HOD reports,65 and the HODs had documented the evidence relied upon in forming their impugned feedback in the permanency reports.66 [96] Notwithstanding Ms Bauer's fervent disagreement with the feedback and rationale provided by the HODs and Ms Bowie, the holding of the meeting on 27 July 2022 constituted reasonable management action. Whether this reasonable management action was taken in a reasonable way is a separate question to be considered below. Were the meetings of 22 and 27 July 2022 (and related processes) taken in a reasonable way? [97] Ms Bauer contends that any management action taken was rendered unreasonable as the 'positive performance management principles' contained in Directive 15/20 were not adhered to.67 [98] In a closely related submission Ms Bauer contended the Collegial Engagement 2022 document, which provides that teachers at the College should receive coaching and feedback on their teaching practice, was also 'wilfully ignored'.68 [99] Ms Bauer objected to the contents of the permanency reports in that they were not in line with the positive performance management principles and were completed without any consultation with her. [100] Directive 15/20 sets out the Positive Performance Principles are as follows:69 5. Positive performance management 5.1 Section 25A of the PS Act provides that the management of public service employees must be directed towards the positive performance management principles: 64 Exhibit 21. 65 Exhibit 30. 66 Ms Bauer's rebuttal document was tendered as Exhibit 30. Ms Moss's supporting evidence was tendered as Exhibit 14. The evidence taken to the meeting by Mr Fortescue is referenced in Exhibit 56 and Exhibit 57. 67 Submissions of the Appellant, filed 25 September 2025. The positive performance management principles were tendered into evidence as Exhibit 19. 68 Submissions of the Appellant, filed 25 September 2024, 3. 69 Exhibit 18. -- 22 of 57 -- 23 (a) pro-actively managing the personal and professional development of public service employees with a view to continuously building expertise within the public service (b) ensuring regular and constructive communication between public service managers and employees in relation to the matters stated in section 26 (c) recognising the strengths, requirements and circumstances of individual employees and valuing their contributions (d) recognising performance that meets or exceeds expectations (e) providing opportunities and support to employees for improving performance (f) continuously improving performance through the provision of training and development (g) identifying at the earliest possible stage performance that does not meet expectations (h) implementing the matters mentioned in paragraphs (a) to (g) into management practices and policies 5.2 Chief executives are required to integrate the positive performance development principles into their agency's management practices and policies. 5.3 Managers are required to incorporate the positive performance management principles into their management practices. [101] More specifically, the positive performance management principles or process are said by Ms Bauer to have been breached by the following: • Lack of timely identification of performance that did not meet expectations • Lack of recognition and acknowledgement of the employee's value • Lack of ongoing support and development opportunities • Lack of regular and ongoing support and communication Were the principles applied and does this impact whether the management action was taken in a reasonable way? [102] The evidence shows that local school management held the incorrect, 70 but genuine, belief that these principles did not apply to temporary employees.71 The terms of the directive itself make clear the principles apply to all employees as follows:72 3. Application 3.1 This directive applies to all public service employees (except chief executives, senior executives and senior executive equivalents) as defined in section 9 of the PS Act, including public service officers, general employees, and employees engaged on a fixed term temporary or casual basis. [103] Having established that, the question is to what extent that mistaken belief could render the feedback provided as part of the permanence process unreasonable. The 70 Mr Ward gave evidence of the principles applying and that the process undertaken aligned with those principles (even if not consciously applied). 71 T3-72 ll 30-48; T3-74 ll 29-49 – T3-75 ll 1-20. 72 Directive 15/20. -- 23 of 57 -- 24 feedback meeting was not part of any performance cycle. It was in direct response to requested consideration for permanence. Ms Bauer describing the process as the end of a non-existent performance appraisal cycle or performance management does not make it so. [104] I do agree with Ms Bauer that the process had not been spelt out clearly by Ms Bowie before the meeting. Ms Bowie's evidence about what she thought she would have told Ms Bauer before the meeting was confused and contradictory. Ms Bowie ultimately conceded she could not recollect any other discussions or emails prior to the meeting. While she thought she had asked the HODs to discuss the feedback with Ms Bauer, their evidence supports this did not occur. While Ms Bauer asserts this makes Ms Bowie a liar, I do not agree. I consider this an example of recollection being overlaid, often subconsciously, with things a person thinks they would have or should have done.73 If contradictory testimony made all witnesses liars there would be no credible witnesses – even Ms Bauer. [105] As previously considered, Ms Bauer was not expecting further information leading into the meeting as she advised by email she knew the kinds of matters that would need to be discussed and was gathering her own material for that discussion. Further, there is nothing pointed to by Ms Bauer in the positive performance management principles that required direct consultation on the development of the feedback documents prior to the feedback meeting scheduled to discuss feedback. [106] If, as argued by the Regulator and supported by the evidence of the Regulator's witnesses, the feedback gathered was the start of the process that would also involve discussion of how to get Ms Bauer to permanence,74 then the absence of discussion of that feedback with Ms Bauer prior to the meeting (called to discuss the feedback) would be unremarkable. [107] Ms Bauer gave evidence at Hearing that, had she been told about the issues of concern before the meeting, it would have been a different story. For example:75 …if she had told me that, you know, you can't be promoted because we – we saw you on this day and we told you that you should improve in these areas, you know, if she had documents to say that and to show me, 'd say yes, I can understand why you wouldn't want to promote because you've got -you - you told me that I should improve and I haven't done anything about it. I can understand that totally. [108] I accept that the feedback would not have been a surprise at the meeting on 22 July 2022 if it had been raised earlier. However, Ms Bauer's ongoing palpable outrage about the feedback itself, leads me to conclude there were likely no circumstances in which that feedback would have been received and interpreted differently. 73 In the sense described by McLelland J in Watson v Foxman (1995) 49 NSWLR 315, 318-319. 74 Evidence surrounding the 27 July meeting in particular. 75 T1-90 ll 22-27 -- 24 of 57 -- 25 [109] Ms Bauer considers the feedback provided to be an 'attack on her reputation', designed to deliberately undermine her standing as an exceptional teacher. The process to develop and deliver the feedback is asserted to be 'collusion', an 'ambush' and 'criminal'. [110] While there could have been better communication with Ms Bauer about the meeting and the criteria that was relevant to the feedback discussion, I consider this to be an imperfection in the process that does not render the way the action was taken via the feedback meeting unreasonable. [111] It was Ms Bauer's expectation that she would receive only positive feedback and her complete rejection of any of the feedback provided that has led to her conclusions that the entire process was unreasonable. For example, in cross-examination: Did you not expect to have any areas for improvement raised with you?... No, because not at that point, because they hadn't raised anything with me before and everything had been good.76 Can you accept you have room for improvement? All people always have a room for improvement. Why would you not accept, when you spoke to Suberia, that you needed – there was room for improvement for you?--- because she was telling lies.77 [112] Ms Bauer says that feedback needs to be balanced and include recognition of positive contribution and performance and further, that the reports provided by the HODs and their acceptance by Ms Bowie were not based on classroom observations or raised during numerous classroom attendances by Ms Bowie. [113] In submissions, Ms Bauer explained that Ms Bowie had 'been in her classroom more than anyone in management' and specified Ms Bowie attended her Year 7 Drama class, her Year 9 English class and her Year 8 English class (the latter being attended three times).78 Ms Bowie, Ms Bauer notes, was in receipt of 'the many emails I wrote discussing and offering solutions of behavioural issues occurring in my classroom' and 'never mentioned any type of classroom management issues with me'.79 Omission of positive performance reports [114] Ms Bauer highlighted that rather than receive timely feedback about performance issues, all communication 'leading up to the meeting on 22 July was positive'.80 In support of this she refers to: • On June 16, 2022, Ms Bowie was informed by email that Ms Bauer's teaching contract was extended to December 2023;81 76 T1-84 ll 19-21 77 T1-90 - 91. 78 Submissions of the Appellant filed 25 September 2024,2; T3-105 ll 45-50 ; T3-105 ll 0-15. 79 Submissions of the Appellant filed 25 September 2024, 2. 80 Submissions of the Appellant filed 25 September 2024, 2. -- 25 of 57 -- 26 • The 'excellent' lesson observation by Mr Fortescue two months before the 22 July meeting;82 • The 'outstanding' Four Garden Project and the proposal for the Reconciliation and Healing Garden were sent to the administration team and Language and Culture Centre; • The quarterly check in of the Annual Progress Report was 'satisfactory' resulting in an email to members of the K block staffroom she was assigned. [115] Ms Bauer contends that it is 'biased, unfair and unreasonable' that 'all highly positive' reports were 'ignored or mentioned fleetingly'.83 [116] Positive feedback on Ms Bauer's performance, including comments about how she was well-prepared and organised and gave students 'plenty of opportunity to respond' was included in the Classroom Observation Frequency Count conducted by Mr Fortescue. [117] Ms Bauer says it is unfair this was not mentioned in the Teacher Permanency Report by Mr Fortescue. Ms Bauer explains she gave a copy of this to Ms Bowie at the meeting on 22 July, and is dissatisfied with Ms Bowie's explanation at Hearing of why this was not referred to: Yeah. We can use it but this is only one lesson.84 [118] Mr Fortescue's response was similar: This is just a 13 minute snapshot of what you observe.85 [119] In cross-examination of Ms Bowie, Mr Fortescue and Ms Moss each agreed with Ms Bauer that the particular examples she identified were very good, excellent or exceptional, however advised the report was about an overall assessment against the required criteria based on a holistic view. They also squarely rejected Ms Bauer's overall and unwavering contention that no positive feedback had been included in their reports. 81 Exhibit 2 only demonstrates Ms Bauer's intention or desire to stay at the College for 2023. It does not include any letter of approval. It does include an email from Ms Bauer to Ms Bowie stating Ms Bauer's intentions for 2023. Submissions of the Appellant filed 25 September 2024, [2]. 82 Exhibit 5. 83 Submissions of the Appellant, filed 25 September 2024, 5. 84 T3-100 ll 16-19. 85 T4-4 ll 43-45. -- 26 of 57 -- 27 Permanency Reports [120] The permanency reports written by Mr Fortescue and Ms Moss are at the heart of the contested feedback. Ms Bauer argues the managers colluded in the preparation of the feedback. The most highly contested feedback relates to classroom behaviour management followed by Ms Bauer's need to work on her professional relationships and treating colleagues with respect. The alleged failure to follow required protocols is also disputed. Mr Fortescue's report [121] Mr Fortescue gave evidence at Hearing that he received an email from Ms Bowie requesting him to complete the HOC report.86 [122] He considered the following when preparing the report:87 You receive an email?---Yep. Saying to put together – can you fill these in about how Lina Bauer's progressing in the classroom and from your observations as her line manager. So, yeah, I just filled it in. Took everything into consideration. All those subheadings there and - - - Right?--- - - - sent it through to Sube. Did you discuss with anyone anything whilst you were preparing this report?---No. So did you discuss with Sarah Moss anything whilst you were preparing this report?---No. Thank you?---I didn't even know Sarah was going to fill one in. So we were both in the email, but as her line manager I thought I'd be the only one doing it. Okay?---Yeah. Now, in a general sense – because I am going to take you to specific documents. In a general sense what did you base your comments on?---The headings on the side and basically how I thought Lina was progressing - - - All right?--- - - - in achieving those. And did you refer to any evidentiary materials?---Yeah. Almost everything I said in there I could back up with evidence, yeah. [123] The permanency report completed by Mr Fortescue indicated that 'Lina's classroom behaviour management requires significant improvement'. Mr Fortescue detailed in evidence-in-chief that the emails received from Ms Bauer were 'calling out for help in classroom management' and that these formed the basis of this opinion.88 [124] Mr Fortescue further explained: How often, by way of frequency, would you receive emails from Lina Bauer?---Ones that I was cc'd in or to, I'd almost say, yeah, monthly basis at the minimum. And then talking with other people in the leadership team, you’d hear that they might have received an email from Lina that 86 T4-6 ll 44-45; T4-7 ll 4-7. 87 T4-4 ll l 42-47; T4-5 l 88 T4-8 ll 18-20. -- 27 of 57 -- 28 flagged one sort of – like, one set of problems. Definitely ramped up when I was her line manager from 2022 onwards. What date was that? Can you be more specific?---Yeah. I'd say start – January 2022, from memory. So - - - And when you say "ramped up", what does that mean?---So 2021 Levi Dugger was her line manager and – because the faculties changed. Then we moved it to make more sense as school was going to start in 2022. Ramped up, meaning receiving a lot more.89 [125] Mr Fortescue's feedback also detailed his view that Ms Bauer struggled with change and faced some interpersonal difficulties in communicating with colleagues and other staff when upset. [126] Ms Bauer described the comments contained within Mr Fortescue's report as 'unbelievable'.90 [127] Ms Bauer also contended that Mr Fortescue lied in the report about continuing to work with Ms Bauer on improving her classroom management abilities, giving evidence at Hearing that Mr Fortescue never worked with her.91 [128] Ms Bauer highlighted that Mr Fortescue only came into her classroom on one occasion,92 and described her response to the permanency report of Mr Fortescue as follows:93 APPELLANT: I think it's important to look at this because you have the criteria on the left column there. Okay. And then you match that against what they've written. And then when we read the – there was that second meeting, because I objected so much to the way that the evidence was given and how it was just generalisation. Okay. We have a look at it. "Please comment on the extent to which the applicant has successfully demonstrated skills in the curriculum area or specialist area. In particular, comment on curriculum knowledge and expertise in the field." Now, what have I just showed you. Document 4. Does that not show – does that not show curriculum knowledge and expertise in the field? Behaviour management, of course, they picked that up on behaviour management. Because he says, "Lina’s behaviour management requires significant improvement." Now, he just give – they just give – this report they had to write, like, on the 18 th . They were told by Ms Bowie to write a report for me and to, you know, tick up the top whether you would promote me or not, basically up there. I recommended this teacher be appointed permanently.94 They give this report. There's nothing. This was why I object. Actually, I was just so shocked, I put in [indistinct] that much because only when I went back and I was given the report and I said, that is so unbelievable. It’s so unbelievable that, you know, for [indistinct] promoting a teacher. 89 T4-9 ll 2-15. 90 T1-22, L6. 91 T1-22 ll 15-17. 92 T1-20 ll 29-30. 93 T1- 20 – T1-22. 94 The HODs were never asked to indicate whether they thought Ms Bauer should be made permanent. That was a decision for the Head of Campus, following discussion of the feedback with Ms Bauer. This is confirmed in cross-examination of Ms Bowie. -- 28 of 57 -- 29 And I'm thinking because the teachers leave, you know. And we need teachers in here. They need teachers like me, you know, who's – I’m not even here for the money. I’m – I have really retired and everything. I’m just here for the love of teaching. And, you know, the love of these kids. And, you know – and here they are – and they give you – it's just [indistinct] they should go to jail for something like this really. "Lina’s classroom behaviour requires significant improvement. We are continuing to work with Lina in improving her ability to self-manage the classroom." That's a big lie. He's never worked with me. And through classroom PBL practices. And the thing was, you know, in May he observed me. He observed me teach. And he gave me the fantastic – you know, observation count. And that's not mentioned here. Can you see. Now, what does that tell you? "And Lina struggles with change." That's – I'm looking at – there's a question 2. "What evidence have you seen of the applicant's ability to work as part of a team?" I struggle with change and the complex education environment of our school. Hello. I've just come from Palm Island. The second most violent place outside a war zone. And I got some beautiful cards. Beautiful cards from my students. What is he talking about? "And we are continuing to work with Lina." This working with me. There's nothing like that. So they're talking about positive management directive. This is where they – you know, they are supposed to also recognise your talent, right. They're supposed to also say good things about you. And the – like that observation [indistinct] a good one, but he's gone to the opposite. He says that I require significant improvement in my – in my – you know, classroom management. And then he goes, "We are continuing to work with Lina." Now, after this we will go to the – you know, like, the examples that he's given for my inability to manage the classroom. And I tell you, Commissioner, when I was reading through that, it's like – you know, do you know the story of The Emperor's New Clothes? He stated that he was wearing new clothes and everybody believed him, right. And nobody – nobody question it. Until a boy – a young boy told the truth. Said, "Oh, you are naked. You're not wearing anything." But this is exactly like this. See, he's a member of the management team. Okay. They will sit altogether that was informing this case against me. And all he had to do was say Lina's management class is – you know, class management is not good. [129] At Hearing, Mr Fortescue explained the work he did to support Ms Bauer as follows: Okay: We are continuing to work with Lina in improving her ability to self-manage classroom environment through ESCM. What is that?---Essential skills for classroom management. And so there's 10 – basically it's things the teacher's going to do in the classroom to keep students on track without disrupting the learning of everybody. Okay. And if you could just give me a snapshot of what you mean when you say: We are continuing to work with Lina. How did you fit into that statement?---So continuing to work in the sense of coming up with strategies and conversations in the staff room to implement more PBL – PBL practices. What could be worked on with some of these troubles that were stemming from behaviour management. But then also in the lesson obs. So I think some of the feedback in there was more specific around student – describing the behaviour specifically you want the students to show. So an example of that is you can give student feedback saying, "Great work. I love the way you’re doing that", but then it's more powerful if you can go, "Great work. I love the way that you're sitting there upright paying attention. Eyes on the board." So that was the – and everyone can always continue to work on their PBL classroom practices. No one's perfect.95 95 T4-8 ll 13-45. -- 29 of 57 -- 30 [130] Overall, the Regulator submitted that Mr Fortescue gave cogent evidence regarding the rationale for his Report. The Regulator states that the Report speaks for itself in that it clearly provides both positive and negative comments about Ms Bauer's performance, even though Ms Bauer did not accept the report acknowledged any strengths.96 [131] At Hearing, Ms Bauer indicated her perspective was that everything else contained in the report was negated by the feedback that 'significant improvement' in behaviour management was required: So you would have heard her say that so far as Pat Fortescue goes: Lina's curriculum knowledge and expertise in the field of drama is at a satisfactory level. In lessons I have observed, she attempts to engage students consistently throughout the lesson in the content. That's positive?..But it's the one before that, the classroom-that-that-that clouds everything else that is said…. You know, "Requires significant – significant improvement"97 [132] The Regulator highlighted each positive statement in the reports of Mr Fortescue and Ms Moss leading to the following exchange at Hearing: There are lots of good things in that statement would you agree?---No, I disagree because he is – because I'm focussed on that part, you know? which is just one big fat lie to me that I needed enor – what is- what's the word? Significant improvement. So what you're saying, because there is some, that word, significant improvement needed, it takes away from any positivity that's provided? Everything because it's a very big fat lie, yes and that's why Suberia said she would not support my – you know my permanence.98 [133] This exchange confirms my earlier view that the timing of the feedback in the report was unlikely to have altered Ms Bauer's absolute disagreement with and rejection of the feedback, particularly as it related to her capacity to manage classroom behaviour. [134] In a supporting document prepared by Mr Fortescue to present his evidence at the meeting on 27 July 2022, he outlines the basis upon which the positive and negative views in his report had been ascertained.99 While Ms Bauer rejects all of the evidence as inadequate or untrue the document demonstrates his views were based on his own assessment of Ms Bauer's capacity in the role. There is no evidence of collusion. 96 Exhibit 10. 97 T1-91 ll 15-27 98 T1 92 ll 14-23 99 Exhibit 57. -- 30 of 57 -- 31 Ms Moss' Report [135] At Hearing, Ms Moss gave evidence that she had been asked by Ms Bowie to prepare the report and why she had been asked: I was asked because whilst I wasn't her line manager, I – she taught subjects in my faculty, so she taught English classes in my faculty, so that's why I was asked, even though I wasn't her line manager.100 … I believed it was for a permanency or a – like, a probation-type, you know, decision-making, like, yeah.101 [136] At Hearing, Ms Moss gave evidence about her experience in Positive Behaviour for Learning ('PBL') and explained how PBL was linked to the 'tier' behaviour concept:102 It's a behaviour management framework, and I led the team to develop and redesign the entire behaviour management system at Mornington Island State School, which – part of that was then also going to regional training to get training within PBL and becoming the coach at the school, which – it was my job to not only lead the team in developing the processes and systems but also coach the staff in how to implement those PBL systems. I was in that role for the entire rest of the time I was there, so until the end of 2020. Thank you. And could you please just explain to the commission the links between PBL and tiers of support?---Yep. So it's – in PBL, we have a tiered system – there's a tiered system of support which happens in a lot of different – this analogy is used in a lot of different areas. You've got a triangle where you have tier 1, 2 and 3, and so your tier 1 is your – the vast 80 per cent or so of students, and that is the – if you – say it's a tier 1 behaviour or a tier 1 student, it's all tier 1 supports. It's what gets done for the entire class or the entire school, and it's expected that most students will have a small amount of behaviour issues sometimes, and your tier 1 behaviours might be your simple, everyday things like, you know, not – minor disruptions, not – you know, being – minor disrespect, coming late to class, things like that, and your supports that you put in place for those tier 1 behaviours would be having whole – your whole class or whole school systems and processes that you would put in place and your whole class – you know, whole class rules, whole class routines that manage and help to reduce 80 per cent of the low-level behaviours. You've then got tier 2, which is, like, meant to be around 15 per cent of students, and that is, you know, the more complex students that have behaviours that need a more directed, specific approach for them, and that might be things where students – if they don't – a small group of students in your class might need an extra set of, you know, teaching of behaviour or explicit instruction, redirections more regularly, or you know that you might put things in place for a certain group of students, and then tier 3 is your really complex, high needs students who have very, very high and often dangerous behaviours all the time, and that’s about five per cent of students, and those supports you put in place are specifically for those students, so that student in particular, if you have tier 3 supports, it would be they, you know – when that student might have a behaviour plan that is specific for them. That means that when they're escalated, they have a system or a process that they follow, or they have a safe person in the school that they go to, but your – yeah. So your tier 1 is your whole class, everyone, tier 2 is your middle of the road, smaller group, or higher level behaviours, and tier 3 is your individualised, highly complex needs students whose behaviours are dangerous. 100 T4-63 ll 45 – 47. 101 T4-64 ll 7-8. 102 T4-62 ll 1-39. -- 31 of 57 -- 32 [137] Ms Moss further explained who was responsible for dealing with certain tiers of behaviour:103 Yes?---Whereas at Tagai, we have a much larger group of your tier 2 and tier 3, and then also what tier 1 supports might look like at school on Thursday Island at Tagai is different to what that would possibly look like at another school, like where I am now, Cairns. Thank you. Could I just ask you about tier 1 supports and about classroom responsibility. Who was responsible at the school for tier 1 supports in a classroom?---That's the teacher that is assigned to that class on that day and time, so whether that's the classroom teacher or a relief teacher if they've got the class for the day. [138] Ms Moss' report was informed by the following: ... So I used my knowledge from emails that had either been sent directly to me or I had been CC'ed into. I used my own interactions with Lina at school, because she often came to me to talk about stuff that had gone on in her classes. I used information that I had learnt from having meetings with other – the other HODs, or leadership meetings, because we often discussed, you know, what was happening in the school or in classes, and the – what I had learnt from students talking to me at school.104 [139] Ms Moss' report detailed that Ms Bauer competently planned for and assessed her classes but struggled with behaviour management and professional communication. Ms Bauer rejected the comment that she struggled with managing classroom behaviour, stating there was no evidence to support this.105 [140] Ms Bauer stated the following in relation to the feedback given by Ms Moss in the permanency report she compiled: APPELLANT: And again we're looking at the quality of management, you know, directive. You know. And we have to look and say, okay, what does she say. You know, what evidence does she give. This is – you know, like a recorded interview. Is it – you know, data of some kind. The quality of the evidence. And then we look at it. And again they're talking about struggles with managing classroom behaviour and reaches out for support in the tier 1 level that should be addressed in the classroom. And then she adds, "Though she is improving in this space." Now, Sarah has never been to my classroom. And then, you know, and then we go through the evidence that they give. And then we will elaborate on that a bit more. Now, in terms of – you know, knowledge and expertise. It's at a sound level. You know. All right. She doesn't – you know, I guess this is the thing, they should do that when – when they have to give evidence, you know, because there's no evidence. Mrs Bowie is just, you know, going by these statements and then comes up with a conclusion that because I made extreme – what was it…106 [141] In a supporting document compiled by Ms Moss following the meeting between Ms Bowie and Ms Bauer on 22 July 2022, Ms Moss acknowledged that she had not been 103 T4-63 ll 13 – 22. 104 T4-64 ll 18-24. 105 T1-26 ll 39 – 40. 106 T1-26 ll 25-41. -- 32 of 57 -- 33 in Ms Bauer's classroom or observed her teaching, but provided the following justification for the opinions expressed in the report:107 Whilst I have not been in her classroom or observed her teaching there was a number of reasons I believe she struggles with class management. - I was forwarded an email last term from Suberia, where Lina had emailed Suberia a long email where Lina herself describes how she is struggling to manage the students in her classes - Often when I find students wandering around the school, quite regularly they tell me they are meant to be Mrs Bauer's class. This indicates that Lina would be struggling with classroom management, as if she wasn't she wouldn't have so many students always out of class - As explained above in HOD meetings/leadership meetings we often discuss whether there which (sic) classes/teachers are having the most problems with their class or calling the office for support/intervention - Lina is often brought up as someone who regularly calls for support with her class Whilst I have not witnessed her classroom management myself, due to the reasons above, it has been known to me through my role as HOD that Lina struggles managing her classes. My understanding is that when writing a referee report, that it is my opinion of her capability and that the above method is suitable ways for me to draw my opinion… [142] Ms Bauer rejected the comments by Ms Moss as being drawn from the personal experience of Ms Moss: And look at the way – of my knowledge. You know, this is the evidence that she's giving. Of my knowledge. There is no specific reference to things that have happened which could have promoted me. It's all – like, you know, from her personal experience of me. This is what she's written down there. And do you write such comments in documents like this? This is an important document. This – the person that you're writing about is wanting a promotion.108 … But it's nothing new that she has said was observed. You know, there's nothing written. She hasn't come to my classroom to observe me. It's all what other people said or what she experienced. This is what is objectionable about this document.109 [143] Overall, the Regulator submitted that Ms Moss' report speaks for itself and that the assessment by Ms Moss was well-founded, based on objective information and that the conduct was therefore reasonable.110 [144] While Ms Moss' experience of Ms Bauer was more limited, that does not mean her feedback should be completely discounted. Her own direct experience of her interactions with Ms Bauer, at least one email that had been forwarded to her by Ms Bowie and feedback received from students wandering around school, is not an unreasonable basis for her to form the views expressed in the report. The process was open for Ms Bauer to question the feedback about her issues with behaviour management in the circumstance of Ms Moss never having observed Ms Bauer teach. Ms Moss' explanation of how she formed her views was reasonable, and while 107 Exhibit 14, 34. 108 T1-29 ll 5-10. 109 T1-30 ll 33 – 36. 110 Submissions of the Regulator, filed 1 November 2024; Exhibit 13. -- 33 of 57 -- 34 not of the same probative value as those of Mr Fortescue, who was her line manager, they were not 'made up' or evidence of collusion. Both reports [145] Ms Bauer argued that it was on the basis of the feedback provided in the reports alone regarding classroom management and professional communication that the decision was made by Ms Bowie not to approve the request for permanency:111 APPELLANT: And that's why Mrs Bowie said that I cannot promote Lina Bauer because the HOCs have written this about me. I need significant management – classroom management. APPELLANT: And my professional interaction is not - - - APPELLANT: - - - should – could also be improved. APPELLANT: That’s why. And she based it on this report alone. Like that. Written like that. Okay. [146] Ms Bauer highlighted the comment by Ms Moss that Ms Bauer struggled with managing Tier 1 classroom behaviours and argued the relevant behaviours she experienced were Tier 3. Ms Bauer explained her understanding of the tiers of behaviour at Hearing: APPELLANT: Okay. There are three tiers. A tier 1 is, you know, something that the teacher can manage. That's why this is an example of teacher managed and an example of admin managed.112 APPELLANT: So tier 1 is calling out, backchatting, lateness to class. Now, my thing is she's never been to my classroom so she's getting all of this from Pat again, would be my suspicion. Now, examples of admin. Truancy. Leaving class and out of sight. This is tier 3. And I have a picture there of a student walking on the roof. Standing on roof. Now, what was it – because that would tell you the kind of behaviour that we are dealing with at Tagai. It's not tier 1 that I have problems with. It’s the tier 3. The – you know, truancy. The climbing on roofs.113 [147] Ms Bauer drew the Commission's attention to a photograph of a student walking on the roof as an example of the types of behaviour that should properly be categorised as Tier 3 and explained she raised with Ms Moss that behaviour such as truancy, leaving class and being out of sight were not Tier 1 behaviours.114 [148] The following exchange occurred at Hearing during cross-examination of Ms Bauer: Getting children to come in – these students to come into the classroom and sitting down is a tier 1 - - -?---No. - - - issue, isn't it?---Because these students are walking around and they – then they're coming in late and they'll come, enter the classroom, then they run out again. And part of your responsibility as a classroom teacher's to get these tier 1 supports 111 T1-29 ll 21 – 37. 112 T1-32 ll 5-7. 113 T1-32 ll 11-19. 114 Exhibit 16; T1-32 – T1-33. -- 34 of 57 -- 35 working. What you do in order for them to come into class and stay into class? ---That is not tier – tier 1 is – is, you know, when they answer back, you know? Have a look at what tier 1 is. The others, like, truancy, walking in and out, that’s more going towards tier 3 – 2 or 3. But if there's no teaching being done during the class, something's not right?---Definitely. This is Year 8 students. This is – the basis of all my emails that I've written is always about this Year 8. This is the one that Suberia asked me, you know, about their achievement level. Yeah?---This is why. [149] More broadly, Ms Bauer refused to accept at Hearing that she required support managing behaviours in the classroom and further characterised the information regarding her alleged difficulty in managing a classroom as 'lies':115 You took offence to the feedback that Suberia gave you on the 22 nd of July, didn’t you?---Yes. You were shocked, you said?---I was - - - In your evidence-in-chief, did you say you were shocked?---I was shocked, yes. Were you outraged?---Of course. And were – did you classify it as being unbelievable?---It is unbelievable. It's unbelievable to use my email and she didn't even go and you know, ta – it is about student behaviour. You go and talk to the year level coordinators. And did you tell Suberia that you didn’t want any support?---Of course not, no, because she was trying to say that my classroom management was bad, therefore, you need support. You need coaching to go and improve your classroom management and that is not right. I am not having problem with teaching in the classroom. Even if that's what you think, why wouldn’t you just say, yes, I will accept your support - - -?--- Because - - - - - - thank you?--- - - - they have told lies. They have told lies. Why should I say yes to liars and you know, they – you know, they – they've given no evidence and they've said I’m very bad at classroom management, they haven't acknowledged any good thing that I've done. Why should I accept lies? They're the worst.116 [150] Having considered the evidence of Mr Fortescue and Ms Moss I find there is no basis to support the claim of collusion in the development of the permanence reports. Mr Fortescue and Ms Moss confirmed they developed the reports based on their own assessment of Ms Bauer against the criteria. Email correspondence of Ms Bauer regarding classroom management [151] To determine the reasonableness of the feedback contained in the permanence reports and the assessment regarding Ms Bauer's classroom behaviour management (amongst other things) it is necessary to review the emails sent by Ms Bauer to the Admin team. 115 T1-87. 116 T1-86-T1-87. -- 35 of 57 -- 36 [152] The emails span a time period of March to June 2022 and are relevantly set out below. [153] On 9 March 2022, Ms Bauer raised in an email that she had a total of 10 students in her Year 8 and Year 9 English classes that required one-on-one assistance. She also raised concerns that she had not always had the support of Marcella and Jeff (Teacher Aides).117 [154] On 17 March 2022, Ms Bauer corresponded with Mr Matt Arkell, Teacher and Queensland Teachers Union representative to advise that she was uncomfortable with Ms Suberia Bowie, Head of Campus, attending walkthroughs of her classes:118 … I'm particularly concerned about her forthcoming visit to the Year 8A English class (this will be the third time). She was with me today and only two were on time. This is a difficult class and I am very concerned that Suberia may hold me accountable for their truancy and misbehaviours… Also, I think it's abnormal to visit one teacher so many times within the past two weeks. Can I ask that a union rep accompany her in my case? What are my rights here? … [155] That same day Ms Bauer corresponded with other staff (copying in Ms Bowie and Mr Fortescue) to advise she required a teacher aide:119 I need Marcella or a teacher aide to assist in my year 8 and year 9 english classes, especially in the ENG018A English class. I have [student name] who requires a transcriber, [student name] who is on ICP but who requires someone sitting next to him before he can settle down to work. There's [student name], [student name], [student name], [student name], [student name] and [student name] who need to be diagnosed to determine their achievement level… I need a teacher aide for this class, please. [156] On 26 March 2022, Ms Bauer sent the following in response to an email received about a complaint from a carer that Ms Bauer had allegedly locked a student out of class, which Ms Bauer disputed and explained:120 Hi Ben, I replied to the email but it seems like the message was not sent or received so here is what I have to say about this snip. Firstly, is [student name] known for telling the truth? … [student name] came to class late. When I went to open the door to let him in, he ran away. The door is always locked because of truant students from other classes wanting to enter the classroom… …[student name] asked if he could go out for a break. At this point, he normally leaves the classroom whether I give him permission or not… All these details on how he works and relationship building is well and good but I REPEAT that [student name] needs supervision at the BEGINNING of every class. We are going around in circles here. Unless he has someone to help him settle down at the beginning of every lesson, he will be walking around the classroom and will then eventually walk out. 117 Exhibit 4. 118 Exhibit 24. 119 Exhibit 35. 120 Exhibit 36. -- 36 of 57 -- 37 [157] On 28 April 2022 Ms Bauer sent an email titled '8A English, disrespectful, disruption, disobedience, refusal to participate in classroom instructions…' to various staff including Ms Bowie and Mr Fortescue. The email is relevantly extracted below:121 Dear Lisa, This class needs to be taken aside and spoken to. Parents must be brought in to supervise their child. Today, only one student was on time. The others came in dribs and drabs after the second bell… …asked if they could go for a drink. When they were refused, they…decided to leave the classroom anyway. I rang for help and then I asked Marcella to take those boys to be dealt with by admin. There were too many to cope with. No teaching was done today. This is a repeated scenario. Today was the worst of all… [158] Mr Fortescue gave evidence about his response to that email at Hearing as follows:122 And I just want to take you down to that third paragraph, where it says no teaching was done today?---Yeah. Alarm bells. Yeah. … why did you just say "alarm bells"?---Well, no teaching being done and the fact that's followed up with this is a repeated scenario, if could be a – well, in my head I would assume a massive contributor to students not turning up to class and not being on time, or misbehaving could be the fact that no teaching's being done. So if students aren't engaged – like, curriculum and – or academic and behaviour have to work together. And if you're too busy focusing on one, the other one's going to fall down and vice versa. And in this case where it's clearly saying there's no curriculum happening. The behaviour's out of control. And everything in here is basically a call for help. All right. In terms of reporting - - -?---Yeah. - - - of this type of behaviour at school, what processes are in place? ---Yeah. So it's very – the school is very different now. So I'll just think back to what it was like then. The first thing you do is you go on to OneSchool. You record the behaviour incident and then you go and refer it to the appropriate person. Okay. Now, do you know if there was a OneSchool report for this incident?---I – from memory, a lot of the emails I got about these classes and the issues, there was no one school follow-up. Okay?---On occasions there was, but very inconsistent. When we're meant to be recording – especially if it leads to an email like this where the teaching and learning isn't happening in the room, you do expect a minimum of a OneSchool and a referral. [159] On 29 April 2022, Ms Bauer emailed various staff including Ms Bowie and Mr Fortescue detailing issues with a group of students arriving late to her class and leaving seconds after arrival. The email concluded with 'I'm finding it extremely difficult to teach this class'.123 121 Exhibit 37. 122 T4-11 ll 9-36. 123 Exhibit 38. -- 37 of 57 -- 38 [160] On 6 May 2022, Ms Bauer emailed various staff, including Ms Bowie, to raise issues around the conduct of one student and stated 'Yesterday, Marcella and I could not cope…'124 [161] On 8 May 2022 Ms Bauer raised concerns over email regarding a student standing on the roof and walking on books.125 The email is extracted below, with emphasis added: Hi Jess and Lisa, The events below will also be reported on One School. ….Attended class late. Then went out very soon after entry and was later caught walking on the roof. I informed … on Friday. … A cup of lollies was confiscated from … in Period 4…is constantly eating lollies and distributing them to the other students often causing disruption in the process… I have asked for help before in dealing with this class. The behaviours are escalating. One boy walks out and soon all the other boys and sometimes girls, use this as an excuse to do the same or to start walking around in the classroom. Also, I have not had any report back on how the behaviours that I have reported on One School/ID Web have been dealt with at all. I am at a loss at the moment as to what I should do next. I have taken ukuleles in, have included drama games for the last ten minutes of class (especially the 4 th sessions), have changed seating arrangements, have reminded them about the PCL lesson for the week before entry into the classroom, have given tokens as soon as possible, arranged work so the students are achieving at the very start of the lesson, had the lights off and calming music/cultural songs playing, modified tasks so there is more illustration and very little writing as a response to the text… I need help… [162] On 10 May 2022 Ms Bauer emailed the school to raise concerns about a gender imbalance in a Year 7 Drama class that was inhibiting participation by female students and followed this up on 17 May 2022 querying whether 'these unacceptable behaviours were peculiar to the Drama class' and whether there had been a discussion about her concerns.126 [163] On 19 June 2022, Ms Bauer emailed staff, including Mr Fortescue, with concerns regarding the behaviour of students who had returned from suspension and issues with her students leaving the class and failing to return (original emphasis):127 Dear Amin team. There is a discrepancy in the way students are being dealt with regarding unacceptable behaviours that is concerning. Some students take it upon themselves to leave the classroom without permission and to report their dissatisfaction directly to the Admin team in my case to Jess and Matilda and last year, to Jess and Deb. In some cases, these students are returned to the classroom in the same period and the teacher is questioned about what has happened. Sometimes they are returned accompanied by 124 Exhibit 39. 125 Exhibit 16. 126 Exhibit 40. 127 Exhibit 17. -- 38 of 57 -- 39 the admin member but no explanation is given to the teacher. In almost all of these cases, I am not told whether there have been any consequences applied to the breaking of the rules in the first place. There is also more often than not, the assumption that the student is telling the truth and must be dealt with softly in order to de-escalate the behaviour. What I see is that the students are being given permission to break the rules and the "being a friend" approach adopted by the admin member is openly observed by the other students. The teachers' authority is also greatly undermined. This approach I am seeing is giving the offending students the allowance to continue with the unacceptable behaviour and giving permission to others to behave in the same manner. Some of these behaviours would not be acceptable at all at home. I have, for example, been asked…to do a restorative with first [student name] and now, [student name]. Matilda has accepted the student's account of events, has not discussed anything with the teacher but the teacher is being asked to do a restorative with these students. Let us take [student name's] example a bit further. She has walked out of the classroom without permission at least more three times. She has taken her confiscated mobile phone out of my bag and has erased the teachers' notes on the board at least five times now as of Tuesday, June 14. On Tuesday, 14 June, she also abused the teacher by screaming out "You should not be a teacher", and slamming the door on her way out. On another occasion she along with her 2 companions had reported…that the teacher had called the students, "bitches." I am also observing a worsening behavioural pattern to the current students that are back from suspension. They seemed cockier than before. [Student name] is quieter after his last suspension before the current one. Yet, he became disrespectful very quickly if you should ask him to follow the classroom rules. He along with [student name], [student name], [student name], and [student name] have continued to walk in and out of the room and most times not returning. They are always late to class and sometimes are absent although they have been marked otherwise. Last Friday, [student name] came in late. He took off after a while. He was then followed by [student name], [student name] and then [student name] and [student name] and [student name]. I informed …. About the three boys by email. Then an email was sent by … that [student name] was in the MPC and was refusing to leave. Only [student name], [student name] and [student name] returned to the classroom. This is more often than not, the pattern. One leaves and the others follow. They are left to roam. All these students except for [student name] and [student name] have returned from suspensions. The week that [student name] returned from suspension she basically asked Marcella to bring her a dictionary and later return it to the bookshelf. Marcella was automatic in her action in doing [student name's] bidding. Why? I believe she was afraid of escalating a sensitive situation ([student name] having just returned from suspension). The teacher and teacher aide's authority have been greatly undermined. These students greatly disrupt the classes they attend. The result is escalating misbehaviours that often halt and sometimes totally stop anymore teaching and learning from occurring. It is also extremely unacceptable and objectionable that students who are doing the right things are being TOTALLY neglected. All the energy, time and attention are given to these misbehaving students. Furthermore, all these students that seem to have literacy and numeracy problems have all been lumped into the same class. They have not been diagnostically tested. Extra resources and alternative programs such as numeracy and literacy classes to assist them academically and to prepare them for senior years, do not exist. No outdoor, hands-on, practical, culture-based program exist which would prepare them for a VET pathway. They are going through the junior years not achieving every day and will not be ready for the tasks ahead of them in their senior years. CONCLUSION AND RECOMMENDATION: -- 39 of 57 -- 40 For the time being, the 'being a friend' approach to the student stop is encouraging the students to walk out of the room without permission and to get away with unacceptable behaviours while disempowering the teacher and teacher aide. Also, for the 7A Drama class and 8A English classes, I request for IMMEDIATE assistance especially when I have requested the assistance. Finally, I hope the problems I have outlined here will be discussed by the Admin team, the PCL group and the P&C. Students must be diagnostically tested so teachers have something specific to work with in order to help the student. Most of all, alternative, meaningful programmes must be offered. [164] This email was flagged by Ms Bowie, who later that day sent the following email to staff (including Mr Fortescue and Ms Moss):128 Kapu kuta Team, Please see Lina's concerns raised below. Let's discuss her concerns and think of ways to support her. Has she had profiling done? Does she know who to differentiate the work? Does she need a coach? Has she observed other teachers teach the same class? [165] At Hearing, Ms Bowie described the following steps she took following the sending of her email reproduced above:129 Would you agree that you sent that email?‑‑‑Yes. And did you have any follow up conversations with anybody about that email?‑‑‑Yes. I spoke to the people that I emailed. Just, you know, say that we really need to support Lina. And were there any ideas that came up about how that might happen?‑‑‑Well we spoke about how can we provide her coaching, through proof of the anger management skills. I can see the word "coach" is actually listed in that email. "Does she need a coach"?‑‑‑Mmm. [166] These emails were discussed in the second meeting on 27 July 2022 as evidence of Ms Bauer's alleged difficulties with classroom management. [167] At Hearing, Ms Bauer refuted that the email of 19 June constituted a request for assistance, instead characterising it as follows: APPELLANT: Shall we read that email. So that we can see. Because it seems to me like they're giving evidence in the same way. They state the truth of something, you know, at the beginning. And then they say, you know – and then they read out the email. And for me I'm listening and I said, "That doesn't show that I'm struggling with classroom behaviour. I'm actually telling you what you should do. How you should come in to help, you know, the teachers." So if we look at that. … APPELLANT: Okay. This is my email. And as usual I cc whoever. You know, my – you know, whoever is – you know, in admin. "Dear admin team. There is a discrepancy in the way that students are being dealt with regarding unacceptable behaviours that is concerning. Some students take it upon themselves to leave the classroom without permission and report their dissatisfaction directly to admin team." 128 Exhibit 17. 129 T3-18 ll 25 – 35. -- 40 of 57 -- 41 Now, does this show that I am struggling with managing classroom behaviour, is my question? In my case to Jess and Matilda. And last year to Jess and Dave. So this was a problem with students thinking – they have a – unhappy with you, they just walk out. But the trouble was they would walk straight to the admin team to report to them, you know. So that doesn’t leave much leeway for correction of their bad behaviour.130 In some cases these students are returned to the classroom in the same period and the teacher is questioned about what has happened. Sometimes they are returned accompanied by the admin member, but no explanation is given to the teacher. In almost all of these cases I am told – I am not told whether there has been any consequences applied to the breaking of the rules in the first place. Commissioner Caddie, a lot of my emails are like this. It's not that I’m having a problem. I'm having a problem with, like, the management team. The way they are dealing with the bad behaviours of the students, and thus encouraging, really, encouraging them to behave worse, you know, even more. But this is what Pat Fortescue and Sarah Moss have done. They've said, "Oh, she was bad classroom management." Then they quote an email like this. But if you read the email you will see that I am not having any problem with managing my students. But, you know, this also takes a bit of effort to write – put this together. I really want things to change, you know, and I want to help the other teachers. That's why I take the time to write it and then to send it out. It's not as if I'm trying to, you know, get at anybody. Okay. So more often in the – so you get the gist of it. What I see is that the students are given the permission to break the rules and that being a friend approach. Because that was what was happening. You're my friend and you will be good when I tell you to be good. And so they're very soft with the students, but the problem is they blame the teachers. The teachers get the blame when the students misbehave. And so I just had to point it out that being a friend approach adopted by the admin member is openly observed by the other students. The teacher's authority is gravely undermined. This approach I am seeing is giving the offending student the allowance to continue with the unacceptable behaviours and giving permission to others to behave in the same manner. That's exactly what was happening. Some of these behaviours would not be acceptable at home. That's why I write home because I know they will not accept it. But it's being encouraged by admin. But this email, it's not me having problems with managing my students. Okay. I think that's – that's sufficient with that.131 [168] Ms Bauer contends the reliance by Mr Fortescue and Ms Moss on emails she sent about student behaviour as the basis for the opinions on her capacity to manage a classroom expressed in the report is misplaced, as 'the emails supported rather than negated my argument'.132 130 T1-34 ll 34-46. 131 T1-35 ll 1-38. 132 Submissions of the Appellant, filed 25 September 2024, 4. -- 41 of 57 -- 42 [169] Ms Bauer refutes that she was experiencing issues with managing student behaviour and 'therefore did not require any coaching in behaviour management'.133 [170] Ms Bauer refers the Commission to her rebuttal document of Mr Fortescue's report and draws my attention to the following paragraph as an explanation for the reasons she says inform the 'problems of student behaviour management':134 I wrote enough emails to Year Level Coordinators (Year 7, 8, 9) and the DP Junior Secondary and cc'd Pat (Mr Fortescue) every time… Ms Bauer has outlined the problems of student behaviour management…the lack of proper administrative action, the inconsistent approach to student management…NO approach was ever made to help remedy the situation. [171] The email by Ms Bauer on 19 June 2022 about the 'be a friend' approach to students by the Administrative Team is again highlighted by Ms Bauer as an example of how the meaning of her emails have been misconstrued. Ms Bauer states this email was about her concern at the way the Administration Team managed student behaviour, rather than revealing anything about Ms Bauer's own ability to manage classroom behaviour.135 [172] Ms Bauer also characterises '99.9' percent of her emails being about the Year 8A English class, which was particularly difficult. Ms Bauer says that it was disingenuous of Ms Bowie to query why the outcomes for this class were low and to include this comment in the 'HOC feedback report', as 'this was a leading question' when Ms Bowie was already aware that the class was difficult.136 Ms Bowie conceded at Hearing that Year 8A was particularly difficult. She advised this was why she was attending the class to provide support to Ms Bauer. However, it was noted in Mr Fortescue's evidence that the emails highlighted classroom management issues across a number of classes and year levels and Ms Bauer acknowledged in cross-examination that all the classes experienced problems, Year 8 especially so.137 Emails and evidence support that classroom behaviour management was an issue [173] While I accept Ms Bauer's characterisation of the email of 19 June, in particular, as raising complaints about the approach of school management causing escalating behaviours rather than solely evidencing her own difficulties, it was reasonable for the HODs and Ms Bowie to form a view, based on the body of emails sent by Ms Bauer, that she was struggling to manage behaviour and it was affecting her ability to teach. 133 Submissions of the Appellant, filed 25 September 2024, 4; Exhibit 20. 134 Exhibit 30 is Ms Bauer's rebuttal embedded into Mr Fortescue's report. 135 Submissions of the Appellant, filed 25 September 2024, 4. 136 Submissions of the Appellant, filed 25 September 2024, 5. 137 T1 – 115 l 36. -- 42 of 57 -- 43 [174] Any objective assessment of the email correspondence would reasonably lead a person to conclude that is the case. A number of emails feature a cry for help and statements about not coping are explicitly contained within the emails. [175] There is also evidence from Ms Bauer's own witnesses, Ms Miller and Mr Dugger, that classroom management issues were being experienced by Ms Bauer.138 [176] Mr Dugger (Ms Bauer's former HOD in 2021) confirmed Ms Bauer was having issues with classroom management and had asked for his mobile number. He reiterates however that managing behavioural issues is a feature of teaching across the school:139 Now, you've given evidence that you gave Ms Bauer your phone number for when she needed help with managing students in the classroom?---Yeah. … – – And given the fact that she asked for your mobile number, it's true to say that she was having problems managing some of the students in her class?---I think, yes, but also that nearly every staff member in our school has trouble managing the students in our class. [177] Ms Miller, a former teacher at the school, said (emphasis added):140 I witnessed her report these experiences to the admin team, particularly her HODs and the deputy principals at the time, and I witnessed no response. I witnessed the admin, instead of supporting and providing any kind of – I – I would think that – my assumption is that if a teacher's struggling, the first point of call would have been to provide personal development to that teacher in order to help them with that issue. There was no offer of professional development or any other kind of developmental opportunity to Mrs Bauer. I witnessed them, instead, participate in almost harassment by continually sitting in her classes…141 [178] The only person who cannot accept she had any issue with classroom management is Ms Bauer herself. Was Ms Bauer responsible for managing classroom behaviour? [179] As discussed earlier in this Decision, there was conflicting evidence about which tier the behaviours being confronted by Ms Bauer fell into and therefore who had first responsibility to manage that behaviour. The PCL Whole School Flowchart contains examples of behaviours to be managed at the classroom level and those that might require Admin management.142 The Managing Student Behaviour document shows teachers are still required to take action as part of the response to persistent minor and more major behaviours. 138 It is in Ms Moss' explanation of the tiers and is the heart of the relevant evidence of Ms Miller. 139 T4-6 ll 14 – 31. 140 T2-47 ll 37-44. 141 For completeness I note that workplace harassment is not contained within the SOFC in this case. 142 Exhibit 15. -- 43 of 57 -- 44 [180] Broadly, teachers are responsible for establishing a classroom culture that is aligned with the Tagai four pillars:143 We are proud learners, We are respectful, We are safe and We are responsible [181] Teachers are responsible for establishing (using, revisiting, modelling) classroom expectations and consequences. The school has a variety of school-wide models and responses that teachers are expected to deploy. There is an escalation pathway for persistent minor behaviours where students are not responding to level 1 interventions and for major behaviours. 144 [182] While some of the examples cited by Ms Bauer would have been Tier 2 or Tier 3 there were ongoing and regular issues with student behaviour in the classroom that she was struggling to manage, that fell within the scope of Tier 1 behaviours. Calling out, back chatting, disruptive behaviours, lateness to class, teasing, leaving the class without permission, disrespectful actions, swearing, disruption to class, minor theft, being off task, all describe behaviours called out in Ms Bauer's emails. Mr Fortescue in his permanence report and in his evidence confirmed the emails indicated Ms Bauer was struggling with managing her classrooms. This was a reasonable conclusion. [183] Ms Bauer, however, cannot accept this is the case, preferring to believe a management conspiracy has occurred to deliberately misconstrue her emails, repeat lies as fact and attack her professional reputation. Ms Bauer contends that any issues in her class are issues with the students and not with her capacity as a teacher. In her email to Mr Arkell of 17 March expressing concern about the frequency of Ms Bowie's attendance in her classes, Ms Bauer expresses a concern that she will be held accountable for the 'truancy and misbehaviours' of her class. [184] It was reasonable for these issues to be part of the feedback to be given to Ms Bauer at the feedback meeting. However, it is also reasonable for Ms Bauer to expect that the emails raising issues of such concern to management as part of the permanence process might have also led to contemporaneous follow-up and support. Were the calls for help answered? [185] The evidence shows there were discussions regarding the issues raised in Ms Bauer's emails at leadership meetings. It was not unusual for issues being experienced by teachers to be raised in that forum. There is no evidence about any specific action arising from the discussion. [186] Ms Bauer argues no support was provided by members of the management team in response to these calls for assistance. However, at Hearing Ms Bauer conceded a 143 Exhibit 51 is Tagai State College Teaching and Learning Manual. 144 Exhibit 51. -- 44 of 57 -- 45 number of times that Mr Fortescue did in fact provide her assistance,145 and that Ms Bowie had been offering her coaching for some time - which she had refused. [187] Following the email of 19 June 2022, Ms Bowie emailed the relevant managers to discuss support to be offered to Ms Bauer, including coaching. [188] Ms Bauer also explicitly refused the offer of a coach during the 24 July 2022 feedback meeting 'because she was angry and because she didn't think it would be beneficial':146 … Did Suberia ask you if you needed support managing classroom behaviour through the providing a coach? Did she offer you a coach?---Yes, she's been offering that for a long time. And did you refuse?---Of course. Why? Why would you refuse a coach?---Hey, if you come back with reports like she need significant after walking through my classroom, you know, and then not saying anything about, you know, Lina, you should – you better improve on this and that, you know? Not having a – you know, a conversation about – in a friendly way, you know? This – this is just putting one over you, you know? She's the principal and you – you know, you're the teacher. This is – this is the big difference here, you know? She – she's – and – and I feel the school – I feel the school has – I think they gave kudos point for – for the number of teachers they put on the coaching – on the coaching – what – on coaching. Did you say no because you think you don't need coaching?---I said no because I just basically angry with the way that, you know, she accepted the report, that my classroom management was – needed significant improvement. In your evidence, you said that, you know, you've come – you came out of retirement to go back to teaching. You spent six months at Palm Island, then you started at Tagai. Do you think with that break in your career, that coaching might just be beneficial for you?---No. Okay?---Not coming from Suberia. She's the one who needs coaching. Did you – she – did she ask you if you'd received explicit instruction, professional development, last year at the campus?---Yes, she did. And had you?---But I'd already done it at Palm. I think that's what – that's what it was.147 [189] Ms Bowie also gave evidence that her visits to Ms Bauer's classes were not formal walk throughs. Rather, they were undertaken to provide support to Ms Bauer by being in the classroom at critical times in the lesson.148 [190] Ms Bauer contends that while her emails were a call for assistance, they were not evidence that she was not managing the classroom. She attempts, unsuccessfully, to distinguish between needing additional resources in the classroom to manage the students, settle them down to free her up to be able to teach and her not managing the classroom. The following exchange in cross-examination demonstrates this:149 145 T1-116; 117. 146 Submissions of the Regulator, filed 1 November 2024, 3. 147 T1-99 ll 4-35. 148 T3-15 ll 47 – 49; T3-39 ll 6-9. 149 T1-118. -- 45 of 57 -- 46 And your emails, the ones that I've just taken you to and the ones that have been referenced in these minutes, show what's been happening in the classroom and that's why you need help with your class?---Yeah, but they don't give it to me. They – I want a teacher aide. Yes, I need help. Teacher aide, please, to help … and … write. To help… read. But - - -?---To help someone else, you know – you know, to just sit still and not be walking around. Yes, I need a lot of teacher aides to help me with that. But you're not prepared to take on a coach or a mentor or some of the other supports that Suberia was offering you?---I – that's – that's – that's – that's because – that's – you know, they're saying that my classroom management is not good. So the – to take on a coach is – is – is – it's not – it's not a – you know, it's not going to help me. I want help in helping the students so they can sit and settle and then we can have fun. Do you remember Patrick Fortescue saying at the meeting of the 27 th of July that moving forward, the school really needs a clear process to show how Lina Bauer would progress to permanency?--- Yes, I think I remember say – him saying that. He was saying that thats what the focus of the meeting should be, how you get there?---Yes, he just said – his actions before hasn't showed that, so I couldn't really believe him. Then he said – also said, and I think this is the thing that I've said to you, is that he said that the emails showed that you needed help with behaviour management in class?---But he's focusing on the wrong thing. It's not that I needed help. I need help to help me teach. That's where I need help. I'm not – for me, it's not – I don't have problems with teaching. I just need help. Stu – someone else to come in and help me, please, teach my kids so that they can learn. [191] Ms Bauer had requested teacher aide assistance in other emails, notably in the email of 9 March 2022, where she had explicitly requested the assistance of teacher aides Marcella and Jeff. Ms Bauer in cross-examination originally maintained she required teacher aides, not help, before admitting she required assistance and teacher aides: And this email is telling everybody that you need a teacher aide for the class?---Yes, I – can you imagine that? And I – I've read Fortescue's – I'm sorry. I read, you know, notes and he – and he said Lina demanding, you know? This is the way of the land with these [indistinct] and the way that – that the messages are distorted. Let's read it. "I need Marcella or a teacher aide to assist in my Year 8 and Year 9 - - -" Look, I think we - - -?---"- - - classes." I think we can read it and I don't want to spend – reading out everything?---No, no, no, but what you read is the 8 – Year 8 – 8 and how they all got problems and this is the class that Suberia's asking me what is their achievement level? Why is their achievement level so low? Look at them. So by the 17 th of March, you're identifying that you need help in your class?---I need a teacher aide. Do you agree with that statement?---I – no, I need a teacher - - - No?--- - - - aide. I’m just going to ask - - -?---Not help. … Would you like to repeat your question? -- 46 of 57 -- 47 MS WILLSON: Would you agree that this email shows that you need help in managing your class by having a teacher aide?---Yes, and maybe - - -150 [192] However, the evidence provided by Ms Bowie at Hearing during cross-examination by Ms Bauer specifically clarified that it is not the role of a teacher aide to manage classroom behaviour – it is the role of the classroom teacher:151 But now that you've read this, like all the other emails that we have read, to illustrate that, you know, classroom management – my classroom management – is not the issue here. Do you think that this – these emails illustrate that I do not have a problem with managing my class, it's just that I need help in having someone to come in to manage the class while I teach. Do you think there's a difference in that?---No, because it's your responsibility as a teacher to manage behaviour. It's not other people’s responsibility to manage behaviour. It’s your responsibility. I understand that, Mrs Bowie, but what I'm saying is that I myself am not having difficulty in managing my classroom, but that I was specifically asking for help for someone to come in and help me manage the classroom. It doesn't mean that I couldn't manage my classroom. I could manage to a certain point, but things were getting out of control, so that I needed extra help. That's what I was asking help in. Do you think that there's a difference in asking for help in that way, and asking for help in saying, "I can't manage this class. I cannot teach at all. I don't know how to control their behaviour." Is there a difference between that?---Difference between asking for help – – – For someone to come in to help me and stating specific ways that I can be helped in order to get on with my teaching, rather than, I can't teach at all because I can – I do not know how to manage my class?---We don't have the resources. We don't have the resources to put people there to help you manage your class. It's the classroom teacher responsibility to manage classroom behaviour. Not teacher aids. Teachers. For us to support you we provide coaching. Coaching and support. Build your capability to manage classroom behaviour. But, Mrs Bowie, do you not think that that's really a different category of, you know, helping the teacher. That’s how – isn't that coaching to help the teacher improve in the way they teach so that they can manage the students?---Yeah. If there's a coach there to show you, demonstrate to you, or give you feedback in how to manage classroom behaviour, that's the way we support you. We don't support you by putting somebody there to control – to manage your class while you try and teach. That's not building your capability. Because otherwise you'll be relying on that other person to manage your class, and that's your job as a teacher, to manage the classroom. It's not other people's responsibility. That's what you're paid for; to manage classroom behaviour. Was the feedback used to unreasonably reject Ms Bauer's request for permanence? [193] I find Ms Bauer incorrectly asserts her permanence request was rejected because of the feedback. The evidence shows, including by her own admission at Hearing, that the discussion was about what support she would need to address the areas highlighted to get her to permanence and that permanency was never off the table. At the meeting of 27 July 2022, it is Ms Bauer herself who says she no longer seeks permanency as a primary outcome of the process but rather to 'clear her name'. 150 T1-106 – T1-107. 151 T3-109 ll 34 - T3-110 ll 6-7. -- 47 of 57 -- 48 [194] At no stage has any person in management suggested Ms Bauer was not a highly experienced, dedicated, passionate and hard-working teacher. The evidence provided by Ms Bauer and the management team at hearing demonstrated Ms Bauer showed great initiative in projects she delivered or had planned and in going above and beyond for her students. Unfortunately, Ms Bauer cannot accept that these positive things can be true at the same time she is having difficulties with behaviour management in her classroom. [195] Ms Bauer's refusal to accept that both things could be true and her total incapacity to accept any of the feedback or acknowledge anything positive said in the reports leads me to conclude her perception rather than the reality of the management action drives her view that the action was unreasonable and taken in an unreasonable way. [196] This refusal causes Ms Bauer's evidence to be contradictory. Ms Bauer indicates the meeting on 27 July 2024 was unreasonable as only evidence to support the HODs negative view was provided. The minutes of the meeting record Ms Bauer interjected when Mr Fortescue tried to give positive feedback: • LB asked PF not to talk about those things as they were there to talk about the negative feedback from the report [197] Ms Bauer says the HOD report feedback was not balanced as it ignored positive examples, yet she admitted in cross-examination she could not accept or process the positive feedback as it was clouded over by the 'unbelievable' claim regarding classroom management. [198] Ms Bauer says her emails do not ask for help they are providing instead helpful advice to the management team, however, admits on cross-examination it was a call for help often in the form of teacher aide resources so she could focus on teaching. Management action taken in a reasonable way [199] I conclude the management action of gathering the HOD feedback, holding the feedback meeting, setting up the second meeting at the request of Ms Bauer, holding that meeting and referring to the body of emails sent by Ms Bauer to various members of the management team to support a finding that she required significant improvement in classroom management was reasonable management action taken in a reasonable way. Other issues raised by Ms Bauer do not alter that conclusion [200] Ms Bauer raised other concerns regarding the permanence process she contends render the process unreasonable. While my focus in this Decision has been the most significant issues leading to her injury, as described by Ms Bauer in her evidence, I will for completeness briefly consider the other issues raised. -- 48 of 57 -- 49 Breach of confidentiality [201] Ms Bauer alleged Mr Fortescue's reliance on the email she sent to Mr Arkell and copied to Mr Fortescue complaining about Ms Bowie's numerous attendances in her classes, in the meeting of 27 July 2022 constituted a breach of confidentiality.152 She relies on the standard email footer stating the email is intended for the addressee and if a person who is not the addressee receives the email, they should notify the sender and delete the email. The email is not to be disseminated. It was confirmed by Ms Bauer that she had not indicated directly in the email that it was confidential. Ms Bauer then takes her characterisation of the conduct further, arguing it constitutes corrupt conduct as it adversely impacted her. [202] These claims are overblown. As conceded by Ms Bauer in cross-examination, the email was copied to Mr Fortescue as an intended recipient and as her line manager.153 The meeting to clarify the feedback given in his permanence report was an appropriate place for that email to be discussed. It was part of the evidence Mr Fortescue had relied on to form his views in his Permanence report, and Ms Bauer had insisted on the meeting in order that all the evidence might be provided. Any embarrassment or anger felt by Ms Bauer about the email about Ms Bowie, not sent to Ms Bowie being read out in front of Ms Bowie, does not render the action unreasonable. Positive examples from previous school [203] Ms Bauer draws my attention to documentation she had sought to rely on in the feedback interview from her previous school, comprising a classroom observation and a farewell banner given to her by her previous students. Ms Bauer argues that insufficient attention was paid to this, as while Ms Bowie confirmed at Hearing she found the farewell banner impressive, she reiterated that the judgements relevant to the permanency request were those made in the context of the College: We're only making judgement at our campus, not at another school – at the campus with our kids…only judge on your performance here… in our context.154 [204] I find it reasonable and usual for the feedback discussion to have focussed on feedback related to Ms Bauer's time at Tagai and not previous information from Palm Island. Disputed evidence regarding disrespectful relationships [205] Ms Bauer describes the main example witnessed and relied on by Mr Fortescue as evidence of her being disrespectful was her interaction with Mr Wylie in the staff 152 T1-104 ll 4-17. 153 T1-104 ll 21-30. 154 T3-99 ll 25-37. -- 49 of 57 -- 50 room. Ms Bauer, in her own evidence,155 admitted the exchange was heated and on cross-examination that Mr Wylie was the first to walk away from the interaction. [206] Ms Bauer states Mr Fortescue's reliance on the incident is hearsay and inadmissible and doesn't account for the later email communication between herself and Mr Wylie. I find it was reasonable for Mr Fortescue to provide evidence about what he saw and heard and the view he formed about the appropriateness of the interaction. It was reasonable for Mr Fortescue to cite this as one example to support that feedback in the permanence report. It was not the only example cited. [207] Mr Fortescue also cited other examples that he had witnessed or had occurred directly with him including: • Term 4, 2021: Ms Bauer interjecting in the staff meeting while Ms Bowie was sharing the PCL priority of teaching the expectations – calling out phrases such as 'rubbish', 'load of rubbish', 'doesn’t work with our students'; • Term 3, Week 1: Mr Fortescue informed Ms Bauer of changes to the running of Drama for Year 9 classes, whereupon Ms Bauer insulted the leadership and himself saying it was a 'load of crap' and the leadership team 'had no idea' and were making it up. In a later discussion about the same matter, Ms Bauer told Mr Fortescue to go away and continued to insult the leadership team. [208] Ms Moss also provided examples from her own experience as follows: • Term 1, Week 10: Ms Bauer yelled at Ms Moss regarding a Year 9 English assessment task, indicating she would do what she wanted to do with her class. • Term 2, Week 6: Ms Bauer raised her voice at Ms Moss regarding assessment for a Year 8 English class, stating they could not complete this and the assessment would need to change. [209] Ms Bowie cited examples from her own knowledge: • Rejection of ICPs in the staffroom, a policy of the school • Response to Teacher aide complaint regarding being reprimanded in the classroom [210] Ms Bauer's complete dismissal of the evidence is a good example of one of Ms Bauer's fundamental problems of understanding. Ms Bauer asks what evidence has been relied upon and when presented to her, she rejects it as not being evidence. Ms Bauer does not accept teacher testimony as being a form of evidence – unless the 155 T1-23 l 19; T1-45 l 47. -- 50 of 57 -- 51 testimony is positive. Not agreeing with the content of the evidence is not a basis to contend it is inadequate or untrue. [211] Mr Dugger provided a general observation that he had a very good professional relationship with Ms Bauer and that he had never heard her yell or be rude to staff.156 He does note that she was forward with the things she wanted help with.157 There is no reason to question this evidence as describing his experience, just as there is no basis to reject the evidence provided by other members of the management team describing theirs. Occasionally failing to follow protocols [212] Evidence including in cross-examination of Ms Bauer confirmed the following examples to reasonably support this statement: • Failure to consistently log one school reports as part of the behaviour management process;158 • Taking photos of students with her own device;159 and • Failure to follow the correct process for N Ratings.160 [213] These examples were reasonably relied upon in the development of the feedback for the permanence process. Inability to accept feedback and have a growth mindset [214] Evidence in support of this feedback in the permanence report of Mr Fortescue was provided as follows: • Mr Fortescue recalled at Hearing how, following the receipt of emails by Ms Bauer, he would frequently attempt to discuss possible solutions with Ms Bauer, and Ms Bauer's response would be that she had already tried the proposed solution or that it wouldn't work.161 [215] Ms Bowie also cites Ms Bauer's reaction to the feedback in the HOC reports at the meeting on 22 July as evidence supporting this feedback. This is also the case in relation to discussion of the evidence to support the feedback in the meeting of 27 July 2022. 156 T3-4 ll 21-29. 157 T3-5 ll 1-11. 158 T1-111. 159 T1-110. 160 T1-121. 161 T4-14 ll 30-38. -- 51 of 57 -- 52 [216] Ms Moss recalled at Hearing that at the meeting on 27 July 2022 Ms Bauer refused to accept 'anything' that had been provided by way of feedback.162 [217] I consider this feedback to have been reasonable as part of the permanence process and has been confirmed at hearing through the testimony of Ms Bauer herself who still cannot accept the feedback given, despite her own reluctant concessions that some of the things asserted are true. Conclusion on additional issues [218] These additional issues do not impact my finding that the management action taken in association with the permanence process was reasonable and taken in a reasonable way. [219] I will now deal with the final event relevant to Ms Bauer's injury and the operation of s 32(5) of the WC Act. That is Mr Ward's handling of the related complaints made by Ms Bauer. Was Mr Ward's response to Ms Bauer's complaints reasonable? [220] Ms Bauer's complaint regarding the permanence process was first drawn to the attention of Mr Ward, Executive Principal, following the feedback meeting on 22 July 2022. Ms Bauer had sought his direct involvement in the follow-up meeting that was being convened to provide clarification of the feedback in the permanence reports. [221] He had indicated via Ms Bowie that it was most appropriate for Ms Bauer to receive the feedback from local management in the first instance. Following the meeting on 27 July 2022 Ms Bauer lodged a formal complaint with Mr Ward dated 31 July 2022. [222] In her email of complaint (summarised above in [54]) Ms Bauer proposed the following steps: 5. Principal Ward and Yolanda McLean to moderate from here on 6. Bowie, Fortescue and Moss to: Email their response to the HOC Report as I have done attach evidence. Any witness to be named and must be prepared to appear before the moderators 1. Ward and MClean to ask for more evidence or question individual candidates as they see fit 2. Ward and Mclean to evaluate whether the HOC report is fallacious, unsubstantiated and defamatory and to recommend a resolution 162 T4-74 ll 15-10. -- 52 of 57 -- 53 [223] Mr Ward responded to Ms Bauer's complaint on 2 August 2022 (partially extracted above at [55]) and further extracted below.163 The reports and meeting notes are for these internal processes only, and are not shared with the Department or others so there is no risk of professional reputation damage. I can ask the others if there is any additional information or evidence to support the comments in their reports, but this should be shared with you as part of a respectful and ongoing development process. This is all meant to be a supportive process that is honest and productive…As I say, disagreement is fine, but this means continuing the process is necessary in order to find greater clarity and understanding around what was originally raised. Lina - I would like you to continue with us and complete your temporary engagement through to the end of term 4. Suberia, Patrick and Sarah will continue to be your supervisors, so should you wish to be considered for an extension of your current engagement with Tagai beyond 2022, you will need to engage with them in a continuing process of reflection and professional growth, informed by feedback and respectful dialogue by all. Being open to professional growth, and feedback, and having these conversations with supervisors is something I value highly, engage in myself as a learner and I persist at it even when I don't like what I might be hearing. I am prepared to communicate these same expectations to everyone involved in this with you. Take care Lina. You light up any room with your presence and I don't want this to dampen that in you, but I implore you to consider deeply my advice, find a way forward and take time to decide what you would like to do. [224] In submissions, Ms Bauer described Mr Ward's conduct as 'negligent' and as 'not taking all reasonable care to prevent injury'. Mr Ward's response to her complaint was characterised by Ms Bauer as being 'complacent', 'placatory' and calculated to 'absolve himself' from taking any action. [225] In his evidence Mr Ward stated that his email was intended to clarify her confusion regarding performance management and positive performance management. To reinforce the process was an internal supportive one that would not result in punitive consequences. Also, to make clear his expectation that she would engage positively in the process, even if she did not agree with the feedback given.164 [226] In her response on 2 August 2022, Ms Bauer reinforces her issues with the feedback, asking who will hold the supervisors to account and indicating she will consider her options following a discussion with the Union. [227] Ms Bauer next corresponded with Mr Ward on 8 August 2022 at 12.47 p.m. She expressed her disappointment with the way her request for assistance had been handled. She expressed feeling isolated, despair and great sadness. Mr Ward responded at 1.02 p.m. indicating he had followed up with local management and the matter was still in progress. He reinforced he was awaiting her advice regarding leave. He emailed again at 1.28 p.m. where he expressed concern about the feelings she described and encouraged her to seek support through Lifeworks. [228] The evidence shows Ms Bauer was not at work on this day and did not return to work after this day. 163 Exhibit 25. 164 T5-7 ll 1-39. -- 53 of 57 -- 54 [229] Ms Bauer next corresponded with Mr Ward on 13 August 2022, attaching a copy of the complaints process and advising it had not been followed.165 On 19 August Ms Bauer emailed Mr Ward asking what the outcome was of his follow up (foreshadowed in the email correspondence of 8 August 2022) as she wanted her right of reply. [230] Mr Ward responded that day and advised that as she had been certified unfit for her work it would not be appropriate to discuss those matters until she was cleared as being able to return. He again reminded her about support.166 Ms Bauer responded on 20 August that he had not answered her question regarding her right of reply.167 Dereliction of duty, lack of duty of care, vicarious liability [231] Ms Bauer contends she has suffered an injury due to 'a failure of duty of care.'168 [232] Ms Bauer submits Mr Ward did not take reasonable care to prevent injury for this 'exceptional case' which involves 'five people holding positions of authority in the school…victimising me…'. 169 [233] She further submitted the suggested process outlined in his email of 2 August 2022 represented Mr Ward:170 Direct[ing] me to return to my 'abusers' and (telling Ms Bauer to)… continue with the process of reflection and professional growth…informed by feedback and respectful dialogue. [234] Ms Bauer specifically put the following allegations to Mr Ward, and Mr Ward refuted each in turn: • That the process leading to the July 27 meeting was not collegial and did not involve feedback being given;171 • That the HOC reports constituted an unreasonable way to give feedback;172 • The comments from Sarah Moss were concerning because of her lack of observation of Ms Bauer teaching, and because she had not received all the emails from Ms Bauer;173 and 165 Exhibit 22. 166 Exhibit 26. 167 Exhibit 26. 168 Submissions of the Appellant, filed 25 September 2024, 9. 169 Submissions of the Appellant, filed 25 September 2024, 9. 170 Submissions of the Appellant, filed 25 September 2024, 9. 171 T5-11 ll 1-12. 172 T5-12 ll 18-42. 173 T5-16 l 21-47; T5-18 ll 8-24; T5-17 LL 42-46; T5-18 ll 39-46. -- 54 of 57 -- 55 • Mr Ward should have questioned the comments made by Ms Moss in the report.174 [235] At Hearing, Mr Ward detailed that his role was to 'direct everyone around the process you were engaged in and seek further clarity where it was needed', as opposed to querying the feedback. [236] Mr Ward gave evidence that he had read the meeting notes recording the July 27 2022 meeting and was satisfied that the allegations of bias by Ms Bauer were unsubstantiated. [237] The Regulator submits that Mr Ward's conduct towards Ms Bauer was undertaken in a reasonable way and there is no reason for the Commission to find otherwise.175 [238] Ms Bauer also submits that Mr Ward has had 'ample happy' interactions with Ms Bauer that should reveal she would 'not be having any significant classroom management issues'.176 Ms Bauer particularly draws my attention to Mr Ward's comment in his email response that Ms Bauer 'lights up any room with her presence' as evidence of this.177 This submission ignores the fact that on three occasions during cross-examination Ms Bauer put that proposition directly to Mr Ward and he rejected it unequivocally. Mr Ward's approach was reasonable [239] Mr Ward's response to the concerns raised by Ms Bauer was reasonable and in accordance with the relevant complaints handling process. He was clear about his expectations of Ms Bauer and local management of the school in the ongoing discussion regarding the feedback provided and necessary support. [240] He enquired into the matters raised by Ms Bauer by asking the HODs to furnish the evidence upon which they formed their views in the feedback report. This material was provided by the HODs in August. He reviewed the notes of the 27 July 2022 meeting to determine whether the meeting was inappropriately conducted and determined that it was not. [241] He responded to Ms Bauer's communications in a timely manner. Once Ms Bauer was certified as incapacitated for work he explained that meant it was not appropriate for him to communicate further with her in relation to those work related matters until she had been medically cleared to return to work. This was an appropriate response. Ms Bauer never returned to work at Tagai. 174 T5-19 ll 37-46. 175 Submissions of the Respondent, filed 1 November 2024, 10. 176 Submissions of the Appellant, filed 25 September 2024, 9. 177 Submissions of the Appellant, filed 25 September 2024, 10; Exhibit 25. -- 55 of 57 -- 56 [242] Mr Ward indicated he wanted Ms Bauer to stay and continue to work through the feedback with local management. He made clear his expectation that she needed to be open to feedback. [243] Ms Bauer's allegations that this expectation was akin to him telling her to 'go back' to her 'abusers', were not put to Mr Ward at Hearing and are overblown. In cross- examination it is put to Ms Bauer that Mr Ward had done nothing but be reasonable to her:178 The reality is he's said to you, "I'm sorry, but you do need to engage and improve? That's what the message was from him wasn't it? –yes, that's what he said. Yes?—But its all what he said. Say, say, say. Words, words, words but no actions. [244] Ms Bauer had an expectation that Mr Ward would intervene and be the independent moderator in a future process. She considers his refusal to do that as unreasonable and any actions he did take to be inadequate. [245] Mr Ward gave evidence that the approach of management at Tagai in setting up the meeting to provide her with feedback was not inconsistent with the positive performance management principles. He also clarified that positive performance management is not the same as a performance management process; and performance management is not the same as a process regarding permanence. I agree. [246] Ms Bauer continues to conflate these processes, including in her closing submissions. [247] I find that Mr Ward's approach to Ms Bauer's complaint was reasonable in the circumstances. Ms Bauer did not demonstrate at Hearing how the approach taken by Mr Ward deviated from the complaints management process. Conclusion [248] Ms Bauer has not met the onus of demonstrating that her psychological injury is one for acceptance as the evidence shows, on the balance of probabilities, that the management action taken was reasonable and taken in a reasonable way. [249] I find Ms Bauer's own expectations and perception of the events that occurred, rather than the reality of those events, has led to her inability to reflect on or accept any of the feedback given or support offered. [250] I find that Ms Bauer's injury arose out of reasonable management action taken in a reasonable way and is therefore excluded pursuant to s 32(5)(a) of the WC Act. 178 T2-15 ll 15-28. -- 56 of 57 -- 57 [251] I order accordingly. Orders 1. The Appeal is dismissed. 2. An application for costs, if any, should be made by the Workers' Compensation Regulator within 28 days. -- 57 of 57 --