Alamzeb v Education Queensland (No. 2); Education Queensland v Alamzeb [2002] ICQ 27 (2002) 170 QGIG 190

190 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 June , 2002 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s.341(1) – appeal against decision of industrial commission Muhammad Alamzeb AND Education Queensland (No. 2) (No. C55 of 2001) Education Queensland and Muhammad Alamzeb (No. C56 of 2001) PRESIDENT HALL 4 June 2002 DECISION Mr Alamzeb commenced employment as a full-time District relieving teacher with Education Queensland on 10 May 1999. He commenced as a probationary employee. A document described as “conditions of employment” which accompanied his letter of appointment addressed the matter of probation as follows: “Probation You will be required to serve a probationary period of at least eight months from the date of your commencement of duty. On completion of your probationary period, your Principal is required to report on your work performance. Your District Office will notify your Principal in advance of the date for the report. -- 1 of 7 -- 14 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 191 Subject to a satisfactory report, confirmation of your appointment will be approved by your District Office. An unsatisfactory report will result in either remedial action and extension of the probationary period, or termination of your appointment. You will have the opportunity to respond to an unsatisfactory report. Any comments you may make will be considered in the process of determining the action to be taken.”. In December of 1999 Education Queensland offered Mr Alamzeb a full-time teaching position at Isis State High School. He accepted and commenced as a full-time teacher at Isis State High School at the beginning of 1st semester 2000. He was dismissed in June of that year. By an application to the Queensland Industrial Relations Commission filed on 23 June 2000 Mr Alamzeb sought reinstatement to his position at Isis State High School. He was partially successful. His termination was held to be unfair. However, reinstatement and re-employment were both found to be impracticable. Education Queensland was ordered to pay Mr Alamzeb an amount equivalent to four months’ salary. (The order has since been stayed.) Each of Mr Alamzeb and Education Queensland has appealed. Since Mr Alamzeb’s appeal was filed first I shall try to deal with it first, though as subsequently will appear, there is much overlap. However, before turning to Mr Alamzeb’s appeal, I shall deal with an issue which arises in each appeal, viz whether Mr Alamzeb was a probationary employee at the time of his termination. The issue is of some moment. Education Queensland proceeded on the view that it was terminating the employment of a probationary employee. If in truth Mr Alamzeb was a tenured employee, the Public Service Act 1996 required Education Queensland to follow quite a different process to the process adopted in terminating Mr Alamzeb. Mr Alamzeb’s first submission is that it is the effect of sections 6 and 7 of the Public Service Regulation 1997 that when at the end of the eight month probationary period he was neither told that he was confirmed nor told that his probationary period was extended, he acquired tenure by operation of law. The submission is misconceived. Sections 6 and 7 of the Regulation do not deal with the consequence of non-compliance. That matter is dealt with by s. 73 of the Public Service Act 1996. That section provides: “Appointments on probation 73.(1) If a person who is not already an officer is appointed as an officer on tenure, the person’s chief executive may decide that the person be appointed on probation for not less than 6 months. (2) The person’s chief executive may – (a) by signed notice given to the person, terminate the person’s employment at any time during the period of probation; or (b) at the end of the period of probation – (i) confirm the appointment; or (ii) extend the period of probation; or (iii) by signed notice given to the person, terminate the person’s employment. (3) If, within 13 months after the person’s appointment, the appointment is not confirmed and the employment is not terminated, the person’s appointment is taken to have been confirmed at the end of the 13 months.”. In Vidler v. Education Queensland (2000) 165 QGIG 47 at 47 I summarised the effect of s. 73 as follows: “In my view s. 73(3) does not operate as a cap upon what may be done pursuant to s. 73(2)(b)(ii). The verb used at s. 73(2) is ‘may’. ‘May’ is defined at s. 32 CA of the Acts Interpretation Act 1954. It is given an entirely facultative meaning. It seems to me that [at] the end of the period of probation set pursuant to s. 73(1) the chief executive officer may confirm the appointment, extend the appointment or dismiss the probationer. The chief executive officer may also fail to take any step at all. In such a case once the sum of the period of probation set pursuant to s. 73(1) and the period of inaction totals thirteen months, by s. 73(3) the probation as appointment is taken to be confirmed. Compare Sandra Fox-Spencer v. Education Queensland 164 QGIG 119.”. I reject Mr Alamzeb’s submission that he acquired tenure when, after eight months, he was neither told that he was confirmed, nor told that he was terminated, nor told that his probation had been extended. I reject also the subsidiary submission that because the Director-General of Education had set an upper limit of 12 months on (extended) probation periods that Mr Alamzeb acquired tenure when 12 months came and went. The determination of the Director-General is neither in substitution for nor in derogation of s. 73 of the Public Service Act 1996. It is then contended by Mr Alamzeb that he was not given notice of termination until the 13 months referred to at s. 73 had expired. It is s. 39 of the Acts Interpretation Act 1954 which defines how the nature of termination pursuant to s. 23(2)(a) of the Public Service Act 1996 is to be given. Section 39 of the Acts Interpretation Act 1954 proceeds as follows: “Service of documents 39.(1) If an Act requires or permits a document to be served on a person, the document may be served – (a) on an individual – (i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document or; (b) on a body corporate – by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate. (2) Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used. (3) Nothing in subsection (1) – (a) affects the operation of another law that authorises the service of a document otherwise than as provided in the subsection; or -- 2 of 7 -- 192 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 June , 2002 (b) affects the power of a Court or Tribunal to authorise service of a document otherwise than as provided in the subsection.”. The letter of termination was left at Mr Alamzeb’s residence on 2 June 2000. Mr Dent, Manager of Education Services in the Bundaberg District Office of Education Queensland was instructed to deliver the letter of termination. He was lawfully required to do so. He tells me that he obeyed the direction and left the notice of termination in the letterbox of Mr Alamzeb’s residence on 2 June 2000. I believe him. The Commission seems to have accepted, in reliance on the decision in Brown v. Southall and Knight [1980] QIRLR 130 that the letter of termination did not bring the probationary employment to an end until Mr Alamzeb had a reasonable opportunity to read the letter. It may be that at common law a written notice of termination is ineffective until the recipient has had a reasonable time to read it. It is, however, rather a gloss so as to limit the language of s. 39 of the Acts Interpretation Act 1954. In Fancourt v. Mercantile Credits Ltd (1983) 154 CLR 87 at 96 the High Court unanimously accepted the explanation of s. 39 (as it now is) advanced by Tindal C.J. in Bishop v. Helps (1845) 2 C.B. 45 at 5) [135 E.R. 857 at 862]. The High Court observed: “As was observed by Tindal CJ in Bishop v. Helps (13) in relation to a comparable provision, although leaving notices at a place of abode or sending them through the post involve the possibility of non-receipt by the intended recipient: ‘It was probably considered that the public convenience would be promoted by the present provision, and that its advantages would greatly outweigh the inconvenience which, in some few cases, might possibly arise from it’.”. In any event, Mr Alamzeb had been advised by the Principal of Isis State High School that the letter of termination was coming (and had become emotionally upset at the news). A reasonable person expecting a letter of such moment would have put in place steps to enable it to be read on the day on which it was delivered. At one point it was contended by Mr Alamzeb that because he had (twice) been reviewed in 1999 and his performance found satisfactory, Education Queensland had a duty to appoint him to a tenured position at the end of his initial eight months of probation. The argument was not developed. If the contention be that Education Queensland having failed to perform the duty were bound to treat Mr Alamzeb as holding the tenured position to which he should have been appointed, it goes well beyond any (rare) decision of a Court of equity about contracts of employment and unconscionability. I do not propose to deal further with the contention. I turn then to Mr Alamzeb’s appeal (No. C55 of 2001). On the findings of fact made by the Commission the conclusion that each of reinstatement and re-employment was impractical was inevitable. The decision of the Commission is reported at 167 QGIG 364. It is sufficient to note the following findings: “The evidence also shows that Mr Alamzeb attended a Beginning Teachers Seminar in June 1999 (Exhibit 112/113), a Learning Technology Vacation Seminar in September 1999, a Trade and Business Mathematics Workshop in March 2000 (Exhibit 119), a Science Professional Development for the Future Seminar and a Beginning and Returning Teachers Seminar in March 2000 (Exhibit 118). He also attended the student- free day professional development sessions at Isis held on 27 and 28 January 2000 (Exhibit 121) and a special session at the school concerning teaching students with learning difficulties held on 8 February 2000. Mr Alamzeb attempted to downplay the importance of several of those seminars/sessions and tried to suggest that they were not relevant to him or the classes he was teaching. For example, he claimed that the 1999 Beginning Teachers Seminar was for primary school teachers (see p. 283 of transcript) but under cross-examination conceded it had relevance to secondary teachers as well. A cursory look at the program suggests that it had relevance to both primary and secondary teachers. Mr Alamzeb attempted to downplay what happened at the student-free days in January 2000. At one stage in his evidence (transcript p. 313) he said that none of the teachers took the session seriously with some of them reading newspapers and one of them writing exam marks. He also said that he could not see the overhead transparencies used at the 8 February session and that he did not feel completely free to ask questions of his supervisors (transcript pp. 320-321). His evidence was strongly refuted by Ms Collins, Ms Griffith and Mr Cook (transcript pp. 1,003-1,004). During the 8 February special session Ms Griffith gave a presentation on her role as the Special Needs Co-ordinator, the assessment of students’ abilities and strategies teachers could use in classes with special needs or ascertained students. Her presentation included reference to specific classes and the nature of the needs of individual students within those classes (see transcript pp. 1,120-1,122 and Exhibits 124, 198). Mr Alamzeb tried to belittle Ms Griffith’s presentation claiming he could not read the overhead transparencies she used. However, notwithstanding the importance of Ms Griffith’s presentation, under cross-examination Mr Alamzeb agreed that he did not ask to be moved to a different seat (so that he could see), nor did he seek copies of her material, nor did he ask any questions or otherwise follow her up afterwards. Mr Alamzeb’s evidence on the presentation (see transcript pp. 319-325), and how little he apparently learned from it, is starkly revealing given his complaint that he had a class full of low ability students and was given no guidance or assistance on how to deal with them. I found all of Mr Alamzeb’s evidence on the various seminars and presentations evasive and unreliable. The topics were all clearly relevant to a new teacher. However, from listening to Mr Alamzeb’s evidence I gained the impression that he thought they were mostly a waste of time, because he believed he was already an experienced and skilled teacher (see for example transcript p. 825). He attempted to dismiss the content as irrelevant because he clearly had not paid much attention to what was being dealt with (see for example transcript pp. 283-297 and 319-325). In fact, Mr Alamzeb was provided with considerable support by Ms Griffith, the Special Needs Co-ordinator at Isis. Her witness statement (Exhibit 197) and her evidence (especially 1,121-1,1140) highlight the considerable effort she went to to provide assistance and guidance to Mr Alamzeb. Ms Griffith gave evidence (transcript p. 1,122) that she had asked all of the teachers with classes containing special needs students to meet with her so she could discuss the needs of each student. Her evidence was that every teacher came and spoke to her with the singular exception of Mr Alamzeb. She had to seek him out. Even then he did not seem particularly interested in discussing his special needs students. Ms Griffith gave evidence about her extensive attempts, in company with the Support Teacher – Learning Difficulties, to assist Mr Alamzeb to develop lesson plans (transcript pp. 1,125-1,138). Ms Griffith said that the lesson planning support sessions were intense one-on-one sessions. Her evidence was that Mr Alamzeb demonstrated a significant lack of understanding of the concepts of, and reasons for, lesson planning and did not seem to know how to go about it. She said he had little understanding of the need to break the lesson up into units or of the need to check for understanding before moving on to the next area (Exhibit 197, pp. 2-3 and verbal evidence). -- 3 of 7 -- 14 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 193 Much of the input came from herself or the Support Teacher. Mr Alamzeb’s lack of understanding revealed a concerning lack of knowledge of the fundamentals of teaching. Ms Griffith’s evidence was that despite these intense planning support sessions, Mr Alamzeb’s planning was not carried over into the lesson. She said that she regularly received reports (from the Teachers’ Aide and Support Teacher – Learning Difficulties) that Mr Alamzeb did not follow the lesson plans constructed. (This problem is also reflected in some of the lesson observations and other evidence (for example, see Ms Vander Spoel’s statement, Exhibit 175, p. 3)). Ms Griffith also said that Mr Alamzeb refused to take responsibility for identifying and preparing resources to be used during classes. He consistently wrote on his lesson plans that all of the teaching resources were to be provided by the Special Needs Unit, despite having been told on many occasions that the unit would not provide the resources and that he would have to obtain them himself from the library. The evidence shows that Mr Alamzeb had the opportunity to discuss any of this teaching concerns with the Heads of Department and other teachers at the school. The evidence from the HODSs was that they frequently provided feedback and assistance to Mr Alamzeb, but that he often did not seem to take on board what they were saying or practise what they suggested (see for example, Ms Vander Spoel’s statement, Exhibit 175, p. 3).” . . . “I am satisfied Mr Alamzeb was provided with significant assistance by Ms Collins, Ms Griffith, Ms Walker and, to a lesser degree, by Mr Cook and Ms Vander Spoel, and that all of them made opportunities available for him to seek help or support if he needed it. Mr Alamzeb failed to avail himself of the help offered and did not act on their advice or suggestions. The feedback he was given following his supervised lessons contained both positive comments and constructive criticism. It was designed to encourage Mr Alamzeb where appropriate and to make him aware of areas where improvement was needed. Mr Alamzeb’s reaction to the efforts of others to assist him is perhaps best summed up in a document prepared by Ms Collins (Exhibit 74, tendered by Mr Alamzeb) where she says at point 8: ‘8. It has been very difficult to try to assist Mr Alamzeb to enhance his teaching skills because he has proven to be resistant to suggestions and is more strongly focussed on trying to refute the point that is being made in an apparent effort to defend himself. This is in spite of the approach that has been taken by the two Heads of Department, Deputy Principal and myself which has been to be as positive as possible while drawing attention to areas of concern, clarification and discussion of which during verbal feedback sessions must ultimately be of benefit to him. However, Mr Alamzeb, in his eagerness to justify what has been identified as a concern, consistently does not “hear” the point that is being addressed and rushes into an explanation about some action that he has previously taken that frequently bears little connection to what is being discussed . . .’. The evidence given by Ms Collins, Mr Cook, Ms Walker, Ms Vander Spoel and Ms Griffith – as well as my personal observation of Mr Alamzeb during the trial – lends support to that statement.” . . . “In respect of these attempts at support Mr Cook [whose evidence the Commission accepted] commented (Exhibit 193, p. 4) that it takes a certain mindset to learn. He felt that Mr Alamzeb did not take an active or analytic interest in the classes he observed. Mr Alamzeb’s lesson observations of the maths and science HODs classes (Exhibit 54) highlight this point. Mr Alamzeb’s observations contain almost no comment on the teaching strategies of the teachers he was observing, rather they comprise detailed notes of every event happening within the class, however miniscule. In one observation he said he left fifteen minutes early because nothing was going on.” . . . “Ms Collins [whose evidence the Commission accepted] particularly mentioned Mr Alamzeb’s failure to comply with the school’s behaviour management plan and his consistent blatant refusal to complete incident forms.” . . . “Ms Walker gave similar evidence on this issue, her evidence overlapping with Ms Collins about a particular incident involving a knife in a classroom. Ms Walker said (Exhibit 172, p. 3) that she heard Mr Alamzeb’s students yelling out ‘fight, fight, fight’ and she felt compelled to see what was happening. She said the class was in disarray and Mr Alamzeb was standing at the front of the class looking stunned. The students told her that Mr Alamzeb had taken a knife from one of the students. When she investigated the matter further she found that two of the boys had been arguing and abusing each other and that Mr Alamzeb had not separated them. The dispute escalated to the point where they started to fight. One of them produced a knife and Mr Alamzeb confiscated it. She asked him what consequences he applied to the students and he replied that he had not given them any. She asked Mr Alamzeb to write up an incident slip about the fight and knife so that the matter could be taken further, but Mr Alamzeb failed to do so. Ms Collins said that she received a report from Ms Walker on this incident and had also attempted to get Mr Alamzeb to complete an incident slip, but was unsuccessful. Although Mr Alamzeb claimed that he did fill in an incident slip about this incident, after hearing his evidence on the point I am satisfied that he did not. I am also satisfied that he did not complete incident slips on most other occasions when an incident required completion of a slip. Invariably, he sent a misbehaving student to report to a Head of Department, the Deputy Principal or the Principal, or sent them to sit at the desks outside the HODs rooms (see for example, Ms Vander Spoel’s evidence, Exhibit 175, p.2). By sending the students away to those persons and locations Mr Alamzeb avoided responsibility for disciplining his classes. Further, his failure to complete incident slips negated the school’s behaviour management policy, because no records were being kept of many incidents. Consequences in accordance with the behaviour management plan could not be applied to students. Mr Cook observed that if a teacher is unable to motivate students through good teaching, misbehaviour often results. He said students were very observant and pick up quickly whether they are being well taught/controlled. An effective teacher who engages the students, and gets them to work, has fewer behavioural issues in their classroom. He said Mr Alamzeb did not demonstrate the traits of an effective motivational teacher. His observations of Mr Alamzeb’s classes indicated a classroom tone where there was little student respect for the teacher. Mr Cook’s observation -- 4 of 7 -- 194 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 June , 2002 indicated that Mr Alamzeb was not using lesson plans or applying appropriate teaching/behaviour management strategies effectively. Mr Cook summarised his position on Mr Alamzeb’s performance as follows (Exhibit 193, p.5): ‘In conclusion, I would have considered that for a teacher with his years of experience in teaching, that the induction process for him should have been about settling into the school environment and that it should have been a relatively straight forward task. However, it became clear that Mr Alamzeb’s teaching competencies in both control of students and teaching strategies were deficient to the point of not being competent to provide instruction to students. After a series of professional development sessions and support over a number of weeks, it also became clear to me that Mr Alamzeb was not showing the improvement I would have expected. As a result, in fairness to Mr Alamzeb and to the students who he had responsibility to provide instruction for, I believe the correct decision to terminate Mr Alamzeb’s probation and employment was made by the Principal, Isis District State High School.’. Mr Cook and Ms Walker spoke candidly and openly about their interaction with Mr Alamzeb and their concerns about his performance as a teacher.” . . . “Ms Griffith was a very positive and credible witness who appeared to answer all of the issues put to her truthfully and frankly despite being placed under considerable attack by Mr Alamzeb. More than any other teacher at Isis, Ms Griffith attempted to assist Mr Alamzeb to understand some of the fundamentals he was lacking and to improve his teaching performance generally. Her evidence recorded the total lack of co-operation she received from Mr Alamzeb, despite her considerable efforts (see transcript p. 1,120 onwards), and disclosed Mr Alamzeb’s clear lack of understanding of basic teaching fundamentals and concepts. Her evidence revealed Mr Alamzeb was not interested in learning the principles of teaching ascertained/learning-disabled students or how to write teaching plans. He showed no enthusiasm for learning more about fundamental teaching concepts, nor preparing or chasing up suitable student resources. He showed reluctance to put any effort into availing himself of Ms Griffith’s offers of her time and assistance. For example, on one occasion Mr Alamzeb was late to a lesson planning meeting. Rather than stay for the extra ten or so minutes needed to complete the lesson plan with Ms Griffith, Mr Alamzeb insisted on leaving when the lunchtime bell rang. This example, perhaps more than any other, demonstrates Mr Alamzeb’s whole approach to his teaching. It was all too hard and he could not be bothered putting in the effort.” . . . “Ms Collins said she again canvassed the issue of Mr Alamzeb’s probation with Mr Cook and the two HODs before she completed the second probationary report. They were, again, unanimous in their agreement that Mr Alamzeb’s performance had not improved – but had in fact deteriorated – and that it was appropriate to recommend his probation be terminated.” . . . “Ms Collins also gave evidence about a number of inappropriate teaching practices adopted by Mr Alamzeb. Several of the examples were confirmed by Ms Walker. Importantly, these events were not denied by Mr Alamzeb – although he attempted to put a different spin on each of them. One example concerned exam preparation in a maths class Ms Collins was observing. Mr Alamzeb gave the class some sample exam questions. Later Ms Collins established that a number of the same questions coincided exactly with the actual exam questions (see Exhibit 170) to be delivered the day after the lesson observation. This revealed either that Mr Alamzeb was incompetent, or that he was attempting to improve the class marks. A second example concerned behavioural reward systems. In an attempt to positively influence behaviour in his classes Mr Alamzeb commenced a reward system which involved giving students chocolates as an incentive to behave. Although it induced some behaviour modification for a time it led to students expecting rewards and requesting them from other teachers. A third example concerned another behavioural reward system. In order to encourage a particular class to behave and to perform, Mr Alamzeb promised them they would be allowed to play handball for half of a lesson if they behaved themselves in the first half of the lesson and completed the work he set for them. The handball game which resulted disrupted a number of other classes and Ms Walker was forced to stop it. When questioned about the matter Mr Alamzeb did not see anything wrong with his strategy, nor its likely consequences. The fourth example concerned Mr Alamzeb incorrectly transferring students’ percentage results to grades which were then placed on their records. The mistake had the effect of lifting the grades of seven out of fifteen students within the class. Again, it was either incompetence or an attempt to improve the appearance of the performance of his class. Having regard to Mr Alamzeb’s answers under cross-examination on that issue (transcript pp. 771-775) I am inclined to the latter view. The fifth example was a student survey (Exhibit 185) found amongst Mr Alamzeb’s papers at around the time of his termination. The survey sought students’ views on such matters as whether they preferred their previous teacher to Mr Alamzeb. Ms Collins thought the survey was inappropriate and unprofessional (transcript p. 1,151). I agree.” . . . “Rather than go through the relevant incidents, I simply record that each of the witnesses made it clear that, in their view, Mr Alamzeb’s performance had either not improved or had actually deteriorated in the month or so leading up to 24 May 2000. This was especially the case in relation to behaviour management. Some of the witnesses – especially Ms Walker – suggested that some of Mr Alamzeb’s classes were frequently out of control and there were grave concerns about the learning that was (or was not) taking place. Mr Cook suggested that Mr Alamzeb’s teaching competencies at the time of his termination were ‘deficient to the point of not being competent to provide instruction to students.”. I refer also to the summary at 382 to 383. On the Commission’s findings this is not a case of an overseas educated teacher experiencing difficulty in adjusting to Queensland traditions of pedagogy. It is a case of an incompetent and disruptive teacher, unwilling or unable to learn and wholly blinkered as to his failings. He could not function effectively in a school. A working relationship of employer and employee could not be established between Mr Alamzeb and Education Queensland. Each of reinstatement and re-employment was impracticable. -- 5 of 7 -- 14 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 195 It is of course open to an appellant to challenge findings of fact by the Commission. But because s. 341(1) of the Industrial Relations Act 1999 limits the grounds of appeal to error of law or excess or want of jurisdiction, it is necessary for an appellant to show that there was not any evidence to support a finding of fact. In McPhee v Bennett Ltd (1935) 52 WN (NSW) 8 at 9 Jordan CJ put the matter thus: “The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v. Lipton Ltd. ([1931] 1 K.B. 539 at 544) and Mersey Docks and Harbour Board v West Derby Assessment Committee ([1932] 1 K.B. 40 at 110, 111). But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it. There are, no doubt, authorities which decide that, in a trial at nisi prius, if the evidence is all one way, and there is no reason to doubt its genuineness and accuracy, the trial judge may take the question from the jury, and a full court may set aside a perverse finding of a jury if he does not: Davis v Hardy (6B. & C. 225). This is, however, because both the trial judge and the full court have a certain measure of control over a jury’s finding of fact; and it is this which enables a full court to set aside a verdict on the ground that it is against the evidence and the weight of evidence, notwithstanding that this is a question of fact: Haw v London and North-Western Railway Company ([1891] 2 Q.B. 496 at 500, 501). This Court, however, has no such power with respect to the Commission.”. See also The Australian Gas Light Company v The Valuer-General (1940) 40 S. R. (NSW) 126 at 138 per Jordan CJ and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ: “But it is said that ‘[t]here is no error of law simply in making a wrong finding of fact’: Waterford v The Commonwealth (51), per Brennan J. Similarly, Menzies J observed in Reg. v District Court; Ex parte White (52): ‘Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.’. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”. The case developed by Mr Alamzeb on the appeal was inherently incapable of hurdling the high bar which he confronted. Mr Alamzeb contended himself with intemperate attacks upon various staff members of Education Queensland. They were variously damned as malevolent, uncaring and bent on his professional destruction, or condemned as craven and supine creatures unwilling, even on oath, to voice truths which their superiors did not want to hear. Neither was the venom confined to Education Queensland staff. The entirely respectable practitioners who acted for Education Queensland were gratuitously accused of foul misconduct. Some allegations were bizarre. The principal of Isis State High School had at one stage supported (and perhaps encouraged) Mr Alamzeb’s application for exemption from jury service. The first inference was said to be that the principal wished to deny Mr Alamzeb exposure to local legal process. The second inference was said to be that the principal sought to deny Mr Alamzeb legal experience because she was already determined to destroy his career. But it, if all was not bizarre, was all calumny. And it was all from the bar table and by way of accusation. In that circumstance there is no need to consider whether procedural fairness is concerned not only with procedure but with the basis upon which decisions are made, so as to broaden traditional approaches to the question whether an error of fact is an error of law. The appeal which is No. C55 of 2001 is dismissed. I turn then to the appeal of Education Queensland, viz, No. 56 of 2001. Education Queensland face the same problem as Mr Alamzeb. Education Queensland must show an error of law. It is not, however, necessary for an appellant to identify an error of law. There is a category of case in which one can conclude that there must have been an error of law though the precise nature of the error is not discernible. House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. As a matter of first impression this is just such a case. In dealing with appeal No. C55 of 2001 I have given a shortened version of the Industrial Commission’s findings about Mr Alamzeb’s competence as a teacher, his inability to develop his skills and the absence of any prospect that time and instruction would lead to an improvement in Mr Alamzeb’s performance. The rhetorical question which immediately springs to mind is, “Why is it unfair to terminate the probationary employment of a teacher of whom those findings may properly be made?” There is the additional consideration that the facts relied upon by the Commission in making these findings were the facts relied upon by Education Queensland in determining to dismiss Mr Alamzeb. To the extent that the Commission relied upon opinions, the Commission relied upon the opinions of participants in the dismissal process. The Commission has found reinstatement and re-employment to be impracticable on the basis of the very materials which lead Education Queensland to make a decision to terminate, yet that decision has been found to be unfair. On a careful perusal of the Commission’s decision the error appears. The Commission was of the view that, as a probationer, Mr Alamzeb had been treated unfairly. That finding was plainly open to the Commission. No serious attempt was made to assess Mr Alamzeb until first semester of 2000. The nominal probation period of eight months had already expired. The exercise of evaluating Mr Alamzeb and providing him with “feedback” about his performance was compressed. Education Queensland concedes as much (though pointing to the difficulties of assessing a probationer who is a relieving teacher). It is settled that a probationary employee is entitled to expect advice about his performance, including if need be, corrective advice; see Buckman v Burdekin Resources NL (1998) 85 IR 415 and Price v Box Valley Pty Ltd (1999) 90 IR 480. However, the issue before the Commission was not whether Mr Alamzeb was fairly treated as a probationary employee but whether he was unfairly dismissed. Whilst the steps taken leading up to a termination may be relevant to the question whether an employee was unfairly dismissed, they are not determinative of the question; compare Byrne v Australian Airlines (1995) 185 CLR 410 at 466 per McHugh and Gummow JJ. This is not a case in which the use of an unfair probationary period has been so unfair that the decision to dismiss was arbitrary, irrational or unreasonable; compare Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at 367 per Deane J. This was a case in which, compressed though it was, the evaluation process revealed Mr Alamzeb to be so ineffective and recalcitrant that Education Queensland could feel confident in terminating his probation. (In the same way the Commission could confidently reject reinstatement and re-employment as remedies). It must be remembered that a probationer is not a trainee. I adhere to the view which I expressed in Darling v Ultrarad Pty Ltd trading as Queensland X-Ray Services (1997) 155 QGIG 1342 at 1342 to 1343: “The essential quality of a period of probation is that it ‘is a time of testing or trial and a probationer, where conduct character or qualifications fail to meet the test, need not be confirmed,’ O’Rourke v Miller (1984) 9 IR 439 at 442 per Gibbs CJ. I accept that His Honour was directing his mind -- 6 of 7 -- 196 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 June , 2002 to a police constable and to a period of probation preceding appointment to a statutory office. But Dowsett J. in Beck v Darling Downs Institute of Advanced Education, 20.4.90, unreported, No 3865 of 1988 seems to have taken much the same view of a period of probation of contractual origin. The Macquarie Concise Dictionary, the Shorter Oxford Dictionary, the Concise Oxford Dictionary and Jowitts Dictionary of English Law, 2 nd ed, 1997, take what is in essence the same view of the noun probation. There is nothing in the context to displace that prima facie meaning.”. There is nothing in s. 73 of the Public Service Act 1996 to suggest that an employee must be tested or evaluated over at least an eight month period. Indeed, s. 73(2)(a) expressly provides that a probationer may be terminated at any time. On the evidence, if the evaluation of Mr Alamzeb had commenced in May 1999, his shortcomings would have emerged at that time. Mr Alamzeb might have been (fairly) terminated at that time. A short but revealing assessment may insulate a dismissal from categorisation as unfair. This is not a case in which Education Queensland seeks to correct a decision of the Commission on a matter of weight. The proposition is that the Commission (unconsciously) asked the wrong question. In fairness to Education Queensland so much expressly appears from the Commission’s reasons in dealing with the matter of compensation, viz: “Having determined that Mr Alamzeb’s reinstatement or re-employment is impracticable I turn to consider the only other possible remedy, monetary compensation. Mr Alamzeb’s letter of appointment informed him that he was to be employed to serve a probationary period of at least eight months. In my view, Mr Alamzeb only started to receive an adequate level of supervision and support as was appropriate to a probationary teacher, when he commenced at Isis as a full-time teacher on 27 January 2000. He was terminated on 9 June 2000. As I see it, therefore, he received the benefit of a probationary period of effectively four months. On the preponderance of evidence I am convinced that had the respondent provided Mr Alamzeb with the assistance and assessment he was entitled to receive as a probationer, his appointment would, nonetheless, have been terminated at the end of the minimum period of probation. Accordingly, I propose to award Mr Alamzeb four months’ compensation. This represents the difference between the period of effective probation and the likely length of Mr Alamzeb’s employment on probation before his inevitable termination by virtue of the respondent exercising its rights under the Public Service Act 1996 and Mr Alamzeb’s terms of appointment.”. The Commission was plainly compensating Mr Alamzeb, not for the termination of his employment and its consequences, but for the unfairness of his probationary employment. The Queensland Industrial Relations Commission has no jurisdiction to do so. The appeal of Education Queensland in No. C56 of 2001 is allowed and the order of the Commission is set aside. In lieu thereof I order that Mr Alamzeb’s application for reinstatement No. B882 of 2000 be dismissed. Education Queensland seeks costs. The appeal had no objective prospects of success. The process at s. 335 of the Industrial Relations Act 1999 is triggered. However, Mr Alamzeb is a layman. He acted for himself in a new land. He was faced with the prospect, not merely of loss of his employment and the opportunity to support his family, but of loss of his career. Having regard to ss. 3(a) and 320(3)(a) I think that I should decline to award costs. I record that I considered exercising the power at s. 335(b) to award costs of the issue about Mr Alamzeb’s receipt of the notice of termination. I entertain great scepticism about Mr Alamzeb’s case, but am unable affirmatively to conclude that the case was born of dishonesty rather than ignorance. I dismiss the application for costs. Dated 4 June 2002. D.R. HALL, President. Released: 4 June 2002 Appearances: Mr M. Alamzeb in person. Mr C. Murdoch, instructed by Crown Law for Education Queensland.. -- 7 of 7 --