Alamzeb v Department of Education [2001] QIRC 118 (2001) 167 QGIG 364

364 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Muhammad Alamzeb AND Department of Education (No. B882 of 2000) COMMISSIONER BLOOMFIELD 26 July 2001 Reinstatement – Dismissal – Termination of Employment – Teacher – Probationary period – Arbitrated Matter – Allegations of discrimination and termination for invalid reason – No basis to such allegations – On balance termination found to be harsh, unjust and unreasonable – Reinstatement or re- employment found to be impracticable – Compensation awarded. DECISION INDEX Background ................................................................................................................................................................................................ 1 The Application for Reinstatement............................................................................................................................................................ 2 Date of Termination................................................................................................................................................................................... 3 Was Mr Alamzeb on probation or had his appointment been confirmed? ............................................................................................... 5 Does Mr Alamzeb have access to a remedy for unfair dismissal as a probationary employee? .............................................................. 6 Was Mr Alamzeb’s termination unfair within the meaning of s. 73(1)(b) and (2) of the Industrial Relations Act 1999? .................................................................................................................................................. 7 (i) Invalid reason........................................................................................................................................................................... 7 (ii) Discrimination and harassment................................................................................................................................................ 7 (iii) Temporary Absence ................................................................................................................................................................. 8 Arguments in support of claim that termination was harsh, unjust, unreasonable ................................................................................... 9 (i) Procedural fairness – preparation of response to show cause ................................................................................................. 9 (ii) Provision of learning support and guidance .......................................................................................................................... 10 (iii) Period during which the performance was assessed and level of scrutiny ........................................................................... 13 (iv) Failure to extend probationary period ................................................................................................................................... 15 (v) The respondent did not consider alternatives to termination ................................................................................................ 15 (vi) There was no valid reason for termination based upon performance ................................................................................... 16 Findings ................................................................................................................................................................................................... 22 Was Mr Alamzeb’s termination for an invalid reason? ................................................................................................................... 22 Was Mr Alamzeb’s termination harsh, unjust or unreasonable? ..................................................................................................... 22 (i) Was Mr Alamzeb warned?.......................................................................................................................................... 23 (ii) Was Mr Alamzeb given an opportunity to respond? .................................................................................................. 23 (iii) Other relevant matters ................................................................................................................................................. 24 Remedy .................................................................................................................................................................................................... 26 Is Mr Alamzeb’s reinstatement or re-employment impracticable?.................................................................................................. 26 Compensation ................................................................................................................................................................................... 28 Background Mr Muhammad Alamzeb commenced employment as a full-time District Relieving Teacher on probation with Education Queensland at the Isis District State High School on 10 May 1999. -- 1 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 365 The letter informing him of his appointment referred to an attached “Conditions of Employment” sheet which dealt with the issue of probation in the following terms:– “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. 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 the period between 10 May 1999 and the end of that school year Mr Alamzeb performed the duties of a relief teacher and worked for various periods of time at a number of State schools including Isis District State High School (“Isis”), Eidsvold State School and Mundubbera State School. During December 1999 he was offered a full-time teaching position at Isis as a maths/science teacher from the beginning of term 1 2000. This offer was in accord with subject preferences registered by Mr Alamzeb with Education Queensland (Exhibit 214). He was allocated one science class (year 8C science) and three mathematics classes (year 8D mathematics, year 9D mathematics and year 12 trade and business mathematics). The years 8 and 9 mathematics classes included a number of students with learning difficulties who were being taught a modified program. The year 8 science class and year 12 trade and business mathematics class were normal classes. As a new, permanent, probationary teacher at Isis Mr Alamzeb entered into a formal teacher induction program (Exhibit 44 and Exhibit 122) designed to assist him to further develop his teaching skills through, inter alia, participation at workshops; observation of fellow teachers; regular meetings with subject leaders and other teachers about classroom issues, planning lessons and the like; as well as through observation of his own teaching performance by the Principal, Deputy Principal and Heads of Department (HODs) for the purposes of receiving feed-back and comment. The lesson observations also allowed those persons to observe and evaluate the teaching abilities of Mr Alamzeb. On 15 March 2000 the Principal, Ms Collins, met with Mr Alamzeb in relation to his probation. She raised a number of concerns about his performance and development as a teacher and informed him that she had determined that his performance was unsatisfactory at that time. She said that she was recommending that his period of probation be extended by a period of four (4) weeks to allow his performance to be further monitored and assessed. Her reasons for having reached that conclusion were spelt out in a “Teachers on Probation Report” (Exhibit 53) which she discussed with Mr Alamzeb. Mr Alamzeb signed the Report noting “I understand and agree with some of the comments.”. Ms Collins developed a schedule of intense lesson observations (Exhibit 45) which specified that all of Mr Alamzeb’s classes over the next four week period were to be observed by either herself, the Deputy Principal – Mr Cook, the Mathematics HOD – Ms Walker or the Science HOD – Ms Vander Spoel. In addition, Ms Collins issued a schedule of other teachers’ lessons which Mr Alamzeb was to observe during a similar period (Exhibit 46/47). On 13 April 2000 Ms Collins met with Mr Alamzeb and informed him she had decided to recommend to the Department that his appointment as a teacher be terminated on the basis that his performance was unsatisfactory. She handed him a copy of her “Teachers on Probation: Confirmation of Appointment Report” (Exhibit 73/201) which recorded her comments about the four (4) criteria she was required to address in her assessment of his performance. Ms Collins’ report and recommendation to terminate Mr Alamzeb’s appointment was considered by a bipartite Board of Review (Department of Education and Queensland Teachers Union) established for the purpose of considering recommendations of that, and a similar nature. It decided to write to Mr Alamzeb inviting him to show cause why his appointment should not be rescinded pursuant to s. 73(2)(a) of the Public Service Act 1996. His response was considered by the Board of Review on 24 May 2000 when the Board unanimously decided to accept Ms Collins’ recommendation and recommend to the Director General that Mr Alamzeb’s appointment be terminated. On the same day, an organiser from the QTU – who had been assisting Mr Alamzeb prior to and during the show cause process – phoned Mr Alamzeb to inform him that the Board of Review had decided against him. The organiser told Mr Alamzeb that that left him with the choice of resigning or being terminated (pages 1 and 10 of handwritten Application for Reinstatement). Mr Alamzeb was absent from the School on the following day. On the morning of 26 May 2000 Mr Alamzeb collapsed at home and was transported by ambulance to the Bundaberg Hospital where he was hospitalised for some days, apparently from a stress related disorder. Several attempts were made to inform him in writing of the Board’s decision and that his appointment was being terminated. These included attempts to deliver the letter of termination by post, registered post and by hand. There was some dispute as to when written notice of termination was actually received by Mr Alamzeb (see below). The Application for Reinstatement Mr Alamzeb’s Application for Reinstatement was dated 22 June 2000 and was received in the Commission on 23 June 2000. In one place it stated that Mr Alamzeb had been terminated on 1 June 2000, and, in another, 2 June 2000. The Application alleged Mr Alamzeb had been terminated for an invalid reason in that the probationary guidelines mentioned in his letter of appointment referred to a period of eight months’ probation which Mr Alamzeb claimed to have successfully completed. The Application also alleged that Mr Alamzeb’s termination was for an invalid reason because he was ill when the decision to terminate his appointment was taken. The Application claimed that Mr Alamzeb’s employer had treated him unfairly “by harassing, intimidating and discriminating”. The Application further claimed that Mr Alamzeb’s dismissal was harsh, unjust and unreasonable for a variety of reasons including that the Board of Review failed to provide Mr Alamzeb with procedural fairness in that it did not give him the normal time of fourteen days to respond to the request to show cause and it denied his request for an extension of time when he encountered computer difficulties in completing and lodging his response. These grounds were later significantly expanded in his witness statement, evidence and final submissions. -- 2 of 21 -- 366 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 Date of Termination Late in the proceedings (day 14, transcript p. 1,468), an argument developed about the date that Mr Alamzeb’s appointment was actually terminated. It is therefore necessary to determine this point. Mr Alamzeb claimed that he received advice of his termination on 21 June 2000. In support of his version of events Mr Alamzeb called Ms Maria O’Neill (Chair of the Board of Review and Assistant Director, Human Resources, Department of Education) and Mrs Alamzeb. In the event, Ms O’Neill’s evidence did not assist Mr Alamzeb. Education Queensland contended Mr Alamzeb was terminated effective 2 June 2000, by way of letter dated 1 June 2000. In support of this termination date it referred to:– • the application for reinstatement (which cites both 1 and 2 June 2000 as the date(s) of termination); • the letter of termination dated 1 June 2000 (effective from 2 June 2000 by payment of two weeks in lieu of notice) tendered by Mr Alamzeb as Exhibit 96; and • the statement (Exhibit 212) and evidence of Ms O’Neill. Ms O’Neill was not able to state with certainty when the letter of termination dated 1 June 2000 found its way to Mr Alamzeb. In her evidence she said that shortly after the decision to terminate Mr Alamzeb’s appointment was taken (on 24 May 2000) she established from Mr Sykes, the QTU member of the Board of Review, that Mr Alamzeb was in hospital. Being concerned for Mr Alamzeb’s welfare she sought advice from the Employee Assistance Unit in Education Queensland. On their advice it was decided to defer sending the termination letter at that time. It was approximately one week later that Ms O’Neill made the decision to have the letter delivered to Mr Alamzeb’s home. Under examination-in-chief (transcript pp. 1,459-1,460) Ms O’Neill gave evidence that the letter sent to Mr Alamzeb had been accepted by his neighbour, but had been returned to the post office by Mrs Alamzeb who would not take delivery of it. Another letter had also been sent and returned. Ms O’Neill gave further evidence that an officer of the Department had also attempted to deliver the termination letter to Mrs Alamzeb by hand but that she had refused to accept it. The officer then left the letter in the letterbox of Mr and Mrs Alamzeb’s home (Exhibit 212, p. 3). Ms O’Neill also gave evidence under cross-examination (transcript p. 1,465) that she believed she faxed a copy of the termination letter to Mr Alamzeb’s representative at QTU (Mr Purches) on 2 June 2000. I have accepted that evidence as well as all of her preceding evidence. Mrs Alamzeb, who was also called as a witness, said that at around 4.00 p.m. on 6 June 2000 Mr Dent of the Department of Education’s office in Bundaberg attempted to deliver a letter for Mr Alamzeb. She said that she told Mr Dent that she would take delivery of the letter but that she would not take it to her husband in hospital. She would keep it and wait until he came home. She said that Mr Dent had declined to leave the letter with her. Mrs Alamzeb denied that the date of the attempted delivery of the letter was 2 June 2000, denied that she had refused to take the letter and denied that Mr Dent had left it in the letterbox. When pressed under cross-examination she said that she could be sure about the date being 6 June because she kept a diary note of events that were happening at the time. When pressed further, she became equivocal about the date and the nature of the diary entry saying that it had been made on a notepad which she had given to her husband when he had come home from hospital on 9 June. That document was called for but was not produced. I found Mrs Alamzeb’s evidence on matters surrounding the delivery of the termination letter to be totally unreliable, and designed to assist her husband’s argument that he had not received notification of his termination until later in June. Unfortunately, Mr Dent was not called as a witness. This was because the issue of the date of termination was apparently not in dispute until Mr Alamzeb challenged his own witness, Ms O’Neill, under re- examination after she responded “2 June” when he asked her what date did his employment with Education Queensland finish. Mr Murdoch, who represented the respondent, objected to Mr Alamzeb’s attempted challenge to her answer on the basis that the matter had not previously been in dispute. Subsequently, Mr Alamzeb sought, on several occasions, to amend his Application to alter the date of termination to 21 June 2000. This was denied on the basis that the application was being made right at the death of the proceedings. The Commission directed that the matter should be dealt with during submissions and determined on the evidence presented. Having regard to both Mrs Alamzeb’s and Ms O’Neill’s evidence about the attempted delivery by Mr Dent, I have concluded that Mr Dent did attempt to deliver the letter of termination to Mr Alamzeb’s home on a date which was possibly 2 June 2000 but which, in any event, was not later than 6 June 2000. I find that he did in fact leave the termination letter in the letterbox after Mrs Alamzeb refused to take delivery of it. I am further satisfied that Mr Alamzeb was released from hospital and returned to his home on 9 June 2000 (transcript p. 926 and Exhibit 94) I have considered all of the evidence about the termination letter and the Department’s various attempts to deliver it; the Department’s contact with Mr Purches and Mr Sykes of QTU about the intended termination; Mr Purches’s contact with Mr Alamzeb at various times; as well as all of the evidence of Mr Alamzeb. I have especially taken note of Mr Alamzeb’s sworn application and the language he used at the time it was completed (viz. 22 June 2000). For example:– • On page 1 he said “I . . . was badly traumatised when QTU intimidated me that either you resign or you are being sacked. As a result of extreme stress over last few weeks due to unfair and discriminatory attitude of my employer, I collapsed, ambulance took me to hospital where I was admitted on 26-5-00 at 7.00 am”. This shows he knew of the Board of Review’s decision to recommend termination of his appointment before 26 May 2000. • At page 10 of his application he says “on 24/5/00 QTU rang and said decision is against you and either you resign or they will sack you. I could not believe and next day when they put too much psychological pressure, I said OK I will go to school and resign.”. Clearly, he knew on 24 May what the decision of the Board was and that the Board had decided to give him the option of voluntarily resigning his services or being terminated. Mr Purches had been contacted as Mr Alamzeb’s representative at that time and, as his representative, made Mr Alamzeb aware of the decision of the Board. Mr Alamzeb had even made the decision to resign. -- 3 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 367 Finally, I have considered – and rejected – Mr Alamzeb’s claim at page 11 of his handwritten Application for Reinstatement that he received a registered letter of termination on “2 (cross out)/6/00” or “21/6/00” (whichever way it is read), as well as the claim in his witness statement (Exhibit 2, p. 31) that he received the letter of termination on 21 June 2000 after discharge from the hospital. (Until day 14 of the trial the reference to this date in his witness statement appeared to be an error caused by copying from the handwritten Application). In so deciding, I have also noted that although Mr Alamzeb allegedly only received the letter advising him of his termination on 21 June 2000, his 11 page Application for Reinstatement (with voluminous attachments) was sworn on 22 June 2000 and received in the Commission on 23 June 2000. Having regard to my observation of Mr Alamzeb during the proceedings, particularly his general inability to produce material under pressure, or in any reasonable time-frame, as well as my assessment of him as an unreliable witness (see below), I must, as a matter of sheer practicality, reject his evidence that he did not receive advice of his termination until 21 June 2000. After considering all of the evidence I am satisfied that:– • Mr Alamzeb knew on 24 May 2000 that the Board of Review had decided to recommend termination of his employment. • Education Queensland made a number of attempts to deliver the termination letter and was ultimately successful in delivering it on a date not later than 6 June 2000, when Mr Dent left it in the letterbox of Mr and Mrs Alamzeb’s home. • Mr Alamzeb returned home from hospital on 9 June 2000. • The letter was available to Mr Alamzeb from the moment of his return from hospital on 9 June 2000. Mr Alamzeb may or may not have read the letter on the day of his return from hospital. However, if Mr Alamzeb did not actually read the letter on that date it was, nonetheless, available for him to read. In that regard, the respondent had gone to considerable effort to deliver it to him. If Mr Alamzeb chose not to read it on that day it would have only been because he knew the message it bore. The consequences of any decision that he may have taken not to read the letter should not be visited on the respondent. Because Mr Alamzeb had reasonable opportunity to read the termination letter on 9 June 2000, such reasonable opportunity was effective to achieve Mr Alamzeb’s termination on that date (see Brown v Southall and Knight [1980] ICR 617 at 628 and s. 7(3) of the Public Service Regulation 1997). Accordingly, I find that Mr Alamzeb was terminated effective 9 June 2000. As a final point, I make clear that although the written advice which Mr Alamzeb received on 9 June 2000 was that he had been terminated effective from 2 June 2000 (purportedly backdating the notice) this does not, of itself, make that advice of termination null and void. All it does is leave the Department liable to pay the appropriate notice from 9 June 2000 (see Brown v Southall and Knight supra). The adequacy of the notice and lack of payment in lieu, the reference to a prior date of termination and the method of its communication are all factors to be considered in determining whether Mr Alamzeb’s termination was harsh, unjust or unreasonable. Was Mr Alamzeb on probation or had his appointment been confirmed? Mr Alamzeb argued that his probation came to an end at the end of eight months because that was all that was mentioned in his letter of employment. As an alternative argument he suggested that in accordance with the Director General of Education’s policy (Exhibit 41) his probation could not have gone beyond twelve months. He submitted that in either event his probation had expired by the time he found out about the termination of his appointment as a teacher. As I have found (above) Mr Alamzeb had notice or reasonable opportunity to have had notice that his appointment was terminated effective 9 June 2000. The respondent submitted that Mr Alamzeb was, at all times, a probationary employee under s. 73 of the Public Service Act 1996 (see Sandra Fox- Spencer v Education Queensland (1999) 164 QGIG 119). It said that the Commission was entitled to consider the applicant’s probationary status when assessing the actions of both the applicant and respondent relating to the termination of employment. It said that the fact that an employee is on probation is a relevant factor for the Commission to consider in assessing whether the termination of employment was harsh, unjust or unreasonable (see Buckman and Burford v Burdekin Resources NL (1998) 85 IR 415). In Nijel Vidler v Education Queensland (2000) 165 QGIG 47 the President upheld an appeal against a decision that Mr Vidler was a person excluded from pursuing a remedy pursuant to s. 72(1) of the Industrial Relations Act 1999. In doing so the President said:– “In my view s. 73(3) (of the Public Service Act 1996) 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. 32CA of the Acts Interpretation Act 1954. It is given an entirely facultative meaning. It seems to me that 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. In Mr Vidler’s case the period of probation set pursuant to s. 73(1) was eight months. At the time of being made aware that the period of probation was eight months Mr Vidler was also made aware that the period had been set at eight months because the Director-General of Education Queensland had determined that the length of probation for teachers would be eight months. Mr Vidler was also informed that the Director-General of Education had determined that the possible maximum extension pursuant to s. 73(2)(b)(ii) was four months. . . . As a matter of first impression Mr Vidler’s engagement does not fall within s. 72(1)(b) (of the Industrial Relations Act 1999). The period of his probationary engagement had not been decided by agreement. It had been determined, perfectly lawfully, by the exercise of statutory power by the chief executive officer. Additionally, Mr Vidler’s probationary period was not ‘decided’ before his employment started. At the time that Mr Vidler’s employment started it was known that his period of probation would be no less than eight months. It was known that at the end of the probationary period his employment might be terminated. It was known that at the end of the eighth month probationary period his employment might be confirmed. It was known that at the end of the eighth month probationary period his probationary status might be continued for an indeterminate period up to four months. It was known also, that if no action whatever were taken at the end of the eighth month period following the end of the eighth month period, Mr Vidler’s probationary engagement would linger on for a further five months at the end of which time his -- 4 of 21 -- 368 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 employment would be confirmed by the operation of s. 73(3). So far from being “decided” before Mr Vidler’s employment commenced, at the commencement of his employment the probationary period which he faced was entirely uncertain. . . . For reasons already given the duration of Mr Vidler’s probationary period had not been ‘determined’ before the employment commenced.”. Mr Alamzeb’s position was exactly the same as that of Mr Vidler. Pursuant to the “Conditions of Employment” sheet which accompanied his letter of appointment he was informed that he was to be engaged for a probationary period of at least eight months from his date of commencement. His appointment on probation was governed at all times by the provisions of s. 73 of the Public Service Act 1996. Subsection (3) of that section provides:– “(3) If, within thirteen 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 thirteen months.”. It is common ground that Mr Alamzeb’s appointment as a teacher was not confirmed by the respondent at any stage during his employment. His appointment commenced on 10 May 1999. If he did not receive advice by 9 June 2000 of the termination of his appointment, his appointment as a teacher would have been confirmed pursuant to the provisions of s. 73(3) of the Public Service Act 1996. I find, however, that Mr Alamzeb did effectively receive notice of his termination while still on probation on 9 June 2000, that his termination thus took effect on that day, and his appointment was not confirmed pursuant to s. 73(3) (above). Does Mr Alamzeb have access to a remedy for unfair dismissal as a probationary employee? It is clear from the President’s decisions in Fox-Spencer and Vidler that s. 72(1) of the Industrial Relations Act 1999 does not exclude probationary teachers employed by Education Queensland from being able to pursue a remedy for unfair dismissal pursuant to the provisions of the Act. Accordingly, it is necessary to determine whether Mr Alamzeb’s termination may have been unfair within the meaning of s. 73(1). In Carter and McCrossan v Community Aid Abroad Trading Pty Ltd [1991] 137 QGIG 127 Commissioner Bougoure considered the issue of probationary employment and whether termination of employment at the end of the period of probation was harsh, unjust or unreasonable in the circumstances of that case. In his decision the Commissioner considered the purposes of probation and the dictionary definition of that word. At 128 he said:– “In my view the question of whether the termination was harsh, unjust or unreasonable has to be determined in the context that the termination was effected at the end of a period of probation, which as I have indicated is imposed for certain purposes, including the assessment and trialing of the employee. In this particular case the probation is a special condition of Ms Carter’s employment imposed in addition to the matters contained in the Procedures Guide. Ms Carter is bound by such special condition but in effecting the termination at the end of the period of probation I am entitled to consider whether the employer’s action was harsh, unjust or unreasonable under the circumstances, which include the most relevant fact that the employee was on probation for 3 months and clearly must know that there is some likelihood that her employment may not be confirmed. Each case must be determined upon its own merits, however, if effect is to be given to the word probation then an employer acting bona fide must generally be able to much more easily terminate a probationary employee than an employee whose employment is at the relevant time not subject to probation.”. However, Commissioner Bougoure’s decision was written when there was a different statutory regime. There was no special exclusion which limited the rights of certain probationary employees to seek a remedy on the basis that their dismissal may have been harsh, unjust or unfair. Since that time, the statutory regime has altered. The effect of that type of alteration has been considered by a Full Bench of the Industrial Relations Commission of New South Wales in Buckman and Burford v Burdekin Resources NL (1998) 85 IR 415. In their decision the Full Bench said (at 417):– “The decision in Alchin was made at a time before the enactment of a dedicated statutory scheme in this jurisdiction with respect to unfair dismissals [the decision then refers to provisions dealing with probationary employees, and continues..] . . . Apart from the provisions in the Regulation which extend the categories of probationers excluded from making such applications, there is no basis upon which it properly could be concluded that any general principles apply to applications made by dismissed probationers which differ from principles applicable to applications from other categories of dismissed employees. An applicant who was a probationer at the time of dismissal must establish to the satisfaction of the Commission that the dismissal was harsh, unreasonable or unjust. There are no additional requirements . . . . . . (at 418) . . . Although an applicant’s probationary status is a matter which properly must be taken into consideration in assessing whether a dismissal was harsh, unreasonable or unjust, there is no heavier onus for probationers to discharge in relation to an application under s. 84 of the Act than otherwise would apply to non-probationers. . . . . . . The fact an employee was a probationer at the time of dismissal may be a relevant consideration in relation to the giving and timing of warnings, if any; however, it is putting the matter far too highly, in our view, to assert that the mere existence of a probationary period of employment, without more, stands in the place of a warning. Indeed, the very nature of probationary employment may reasonably lead to an expectation in an employee receiving information, and perhaps corrective advice if necessary, during such period rather than being informed by the employer at or near the end of the period that no continuing employment would be available.”. That decision was confirmed by a further Full Bench of the Industrial Relations Commission of New South Wales [Wright J (President), Walton J (Vice- President), McLeay C] in Price v Box Valley Pty Limited (1999) 90 IR 480. I intend to follow the approach set out by those Full Benches rather than the test set out by Commissioner Bougoure. In that regard I note that the New South Wales Industrial Commission has expressly stated that an applicant’s probation is a matter which may properly be taken into consideration in assessing whether a dismissal was harsh, unjust or unreasonable. I note, however, that there is no heavier onus for probationers than for non- probationers. -- 5 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 369 Was Mr Alamzeb’s termination unfair within the meaning of s. 73(1)(b) and (2) of the Industrial Relations Act 1999? Before turning to the more substantive arguments advanced by Mr Alamzeb to suggest his termination was unfair, it is convenient to dispose of several of the many misguided contentions he advanced in support of his position. (i) Invalid reason Mr Alamzeb argued that his dismissal was for an invalid reason because the procedure mentioned in the Director General’s policy (Exhibit 41) for dealing with probationary employees was not followed. Quite apart from this not constituting an “invalid reason” within the meaning of s. 73(2) of the Industrial Relations Act 1999, the President’s decision in Vidler makes it plain that the policy has a number of elements. If the Director General, or his delegate, do not act at specific trigger points in accordance with the policy, the general provisions of s. 73 of the Public Service Act 1996 nonetheless continue. Ultimately, by the operation of s. 73(3) of the Public Service Act 1996 the stage is reached where if 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 thirteen months. The Act thus contemplates situations where no action is taken at the end of the eighth month, or at some subsequent time during the probation (up to the completion of the thirteenth month). The argument that Mr Alamzeb was terminated for an invalid reason because the policy was not followed has no substance legally (not being an invalid reason), or on merit. (ii) Discrimination and harassment Mr Alamzeb argued his treatment by Ms Collins was discriminatory and that she harassed, intimidated and bullied him. Except for Mr Alamzeb’s allegations there is nothing in the 1,737 pages of transcript, nor the 234 exhibits, which would lend any support whatsoever to those claims. Simply put, Mr Alamzeb was convinced that there was some conspiracy against him – involving a range of staff members and students – hatched by the Principal (see for example p. 40 of part 2 of written submissions, lines 7-10). At one stage in Mr Alamzeb’s cross-examination of Ms Collins he accused her (transcript p. 1,216) of having determined at the beginning of the year 2000 to fail him in his probation. He put to her that she had planned accordingly and started to pick on him and treat him differently. This allegation was made notwithstanding the fact that it was Ms Collins who arranged Mr Alamzeb’s appointment as a full-time teacher in 2000, when a vacancy for a Maths teacher arose at Isis at the end of 1999. At another point (transcript p. 1,240) Mr Alamzeb accused Ms Collins of providing him with teaching support so that the Support Teacher could pick on him. He accused Ms Collins of making enquiries about what had been said at a teachers’ seminar in order to defame him (transcript p. 1,236). He accused Ms Collins of targeting him because he voted against her in a secret ballot in connection with school based management. How Ms Collins came to know how Mr Alamzeb voted and why she would have targeted him, and not other teachers who voted with him, was not explained. Finally, he accused her of “. . . a malicious and discriminatory act to ransack employee’s belongings and remove personal notes and personal copies of records and teacher resources etc to deprive the applicant of material evidence to seek remedy in a court of law” (p. 17 of part 2 of written submissions). In his written submissions and final delivery Mr Alamzeb repeated a number of the allegations and developed some of his arguments further. He argued he was treated differently to the other probationary teacher because he was observed in his classes more frequently. Sadly, he failed to recognise that the extra attention he was being given was designed to assist him to improve his performance rather than the reverse (see for example Ms Collins’ statement, Exhibit 199 at p. 2 and 3). At p. 40 he also said: “During term 1, 2000, Ms Collins planned to fail me, allocated difficult Maths classes and used new HOD Maths and learning support to pick on me and instead of supporting teacher innocent students were instigated/encouraged to cause behaviour problems.”. This allegation, apart from Mr Alamzeb’s assertions, did not have any support in the evidence or materials presented. Mr Alamzeb also seems to have taken the attitude that because he was from a non-Australian background anything that happened at the school was as a result of his ethnicity. For example, at p. 15 of part 2 of his written submission he said “unsatisfactory performance (feedbacks not bad) is ostensible reason for termination but real reason was racist thinking and biased approach of my supervisor. She was determined to get me no matter what I did to please her.”. At page 17 of part 2 of his written submission he said “. . . (t)he applicant has been discriminated against and bullied due to ethnic background egg (sic) repeated allegations of accent by respondent without specifying the source of complaint was harassing and demoralising.”. The evidence disclosed that that assertion was far from the truth. Ms Collins (Exhibit 199, p. 4), Mr Cook (Exhibit 193, p. 3 and transcript p. 1,009) and Ms Walker (Exhibit 172, p. 4) all made it plain that they had hosed down complaints from students and parents about Mr Alamzeb’s accent and the difficulty students had in understanding him. They gave evidence, which I accept, that they negotiated strategies with the students, parents and Mr Alamzeb which were designed to overcome the problem. Far from being criticised Mr Alamzeb was assisted. Mr Alamzeb’s assertion that he was discriminated against because of “repeated allegations of accent” is also contradicted at page 265 of the transcript where he gave evidence that after “maybe a week or two” there was no serious complaint (about his accent) brought to his attention. In his written submissions (Exhibit 233, p. 18-21) Mr Alamzeb listed twenty-three examples of actions by the respondent he alleged contravened s. 15 of the Anti-Discrimination Act 1991. The majority of matters raised are dealt with elsewhere in this decision. I have not seen fit to deal with the remainder because there is nothing in the evidence or materials presented which lends support to those allegations. The matters raised simply reflect the applicant’s belief that anything which happened at the school was because of his ethnicity. Finally, on the point of alleged discrimination, Mr Alamzeb complained that Ms Griffith, the Special Needs Co-ordinator, had asked him several questions about the Muslim religion and some of the practices in his home country. After listening to the evidence about these conversations I have concluded they were genuine enquiries, raised in a conversational way, by a professional adult who was interested in hearing more about practices and beliefs in another country. Mr Alamzeb only raised this matter in an attempt to discredit Ms Griffith and to build up his own case. There was nothing discriminatory or racist about the conversations or any other aspect of Mr Alamzeb’s treatment at Isis – least of all by Ms Griffith, who went out of her way to aid and assist him. -- 6 of 21 -- 370 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 (iii) Temporary absence Mr Alamzeb claimed his termination was for an invalid reason because he was temporarily absent and he had been terminated during such absence. The reality is that his temporary absence had nothing to do with the termination. The decision to recommend to the Director General to terminate his appointment was already taken on 24 May 2000. It was not communicated to him immediately because he had taken ill. That he may have received the advice while convalescing is not the test at s. 73(2)(a). The claim is baseless. Arguments in Support of the Claim that the Termination was Harsh, Unjust, Unreasonable In addition to the above arguments Mr Alamzeb argued that his termination was harsh, unjust or unreasonable. He raised a large number of contentions to support that argument. A number of them are duplicated. A number of them are interwoven with points dealt with above. Others are simply not on point. Others are too obfuscated to respond to. However, reduced to the fundamentals, Mr Alamzeb argued that his termination was harsh, unjust or unreasonable because:– (i) He was not provided with procedural fairness, firstly, because the Board of Review did not give him the mandatory 14 days to prepare his response to its show cause letter and, secondly, because the deadline for responding was not extended when he experienced computer difficulties in finalising and formatting his response; (ii) He was not provided with proper learning support and guidance; (iii) He was not provided with normal support and feedback in the first 9 months of his probation and then his performance as a teacher was only judged over a short period of time, when he was placed under too much pressure. No consideration was taken of his earlier period of employment with Education Queensland, which was without criticism; (iv) His probation was not extended by 4-6 months to allow him to demonstrate he could meet the respondent’s requirements; (v) The Respondent did not consider other alternatives to his termination; (vi) There was no valid reason for termination based upon his performance. (i) Procedural fairness – preparation of response to show cause Mr Alamzeb argued he was denied procedural fairness because he was not given the mandatory fourteen days response time required by s. 6 of the Public Service Regulation 1996 to the show cause letter from the Board of Review. The Board of Review had met on 2 May 2000 and considered the Principal’s recommendation that Mr Alamzeb’s appointment be terminated (Exhibit 73/201). It wrote to Mr Alamzeb on 4 May 2000 (Exhibit 186) calling on him to show cause why his appointment should not be terminated. Unfortunately, the show cause letter of 4 May 2000 referred to the first probationary report (of 15 March 2000) instead of the final report (of 13 April 2000) – it being the final report, rather than the first report, which recommended Mr Alamzeb’s termination. Nonetheless, the position was corrected within a few days. Mr Alamzeb raised the show cause letter with Mr Purches and he, in turn, contacted Ms O’Neill on 9 May 2000 and informed her that the report referred to was not the correct report. Ms O’Neill confirmed this and undertook to send a replacement show cause letter (Exhibit 187) which mentioned both reports. That replacement letter was dated 11 May 2000. Mr Alamzeb claims to have received it around 6.00 p.m. on Friday 12 May 2000 when Mr Purches delivered it to his home. That letter gave him until 5.00 p.m. on 22 May 2000 to provide a response. Mr Alamzeb thus claimed he did not have fourteen days to respond to the replacement letter of 11 May 2000 (received 12 May 2000) mentioning both probationary reports. After considering Mr Alamzeb’s evidence on the point I am satisfied that he clearly knew from the time he discussed the adverse probationary report (Exhibit 73/201) with the Principal on 13 April, and then with Mr Purches on 4 May (transcript p. 136), that he would be required to show cause. I am also satisfied that when he discussed the first show cause letter with Mr Purches on 9 May 2000 (transcript p. 136) he knew it related to the unsatisfactory probation report of 13 April 2000 (Exhibit 73/201) and not to the first probationary report (Exhibit 53). He already had full copies of both reports and knew that the first report did not recommend his termination whereas the second report did. No reasonable person would have thought that they were being called upon to show cause why their appointment should not be terminated based upon the first report. The incorrect reference to the wrong probationary report did not change the fact that Mr Alamzeb was given at least fourteen days’ notice to show cause why his employment should not be terminated. In any event, Mr Alamzeb did provide a detailed response by the due date, 22 May 2000. During his preparation of the show cause response Mr Alamzeb absented himself from classes on Thursday 18 and Monday 22 May 2000, in order to complete the response. The respondent was more than generous in allowing him this concession – notwithstanding that it was grudgingly given on the second day (see evidence of Ms Collins and Ms O’Neill). Mr Alamzeb also complained that he was not given an extension when he experienced computer difficulties in finishing his response. He was, however, extended a number of concessions by Ms O’Neill because of the computer problem. She authorised him to be absent from school on 22 May 2000 for the purposes of finalising the submission (see Exhibit 212, p. 3). There was no obligation on her to extend the deadline for the response. In any event, Ms O’Neill said that the response (Exhibit 106) appeared complete when it was received and did not demonstrate any technical or computer errors. It was considered on its merits by the Board. Mr Alamzeb did not sufficiently address the points he was required to turn his attention to. The fact that he failed to address the points relevantly, and properly, was not caused by technical difficulties or lack of time to prepare. It was a failing in the way Mr Alamzeb framed his response and dealt with the essential issues. If the response was deficient – which the Board felt it was – the fault lay in Mr Alamzeb’s approach, not in any technical glitch. Equally, Mr Alamzeb could not shift the blame for his failure to respond adequately onto Mr Purches – something he attempted to do during the trial (transcript pp. 141-156) and in part 2 of his final submissions (p. 14 and p. 38). -- 7 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 371 Conclusion After considering the evidence of Mr Alamzeb, Mr Purches, Ms Collins and Ms O’Neill, I am satisfied that Mr Alamzeb was given every appropriate opportunity – and assistance from those who could give it – to complete and lodge his show cause response on time (see for example the evidence from Mr Purches, transcript pp. 140-141, 148-150 and 153 and the evidence of Ms O’Neill). I am further satisfied that the response did not reflect any technical or computer glitches and that it was Mr Alamzeb’s best effort to respond to the show cause. Mr Alamzeb simply failed to deal with the issues relevantly. I am therefore satisfied that Mr Alamzeb was not denied procedural fairness in either the length of time he was given to frame his response or in being denied extra time to lodge his response. (ii) Provision of learning support and guidance Mr Alamzeb’s material is replete with complaints that he was a science teacher who was incorrectly assigned to predominantly maths classes comprised of badly behaved, “low ability” or “ascertained” students. He complained he was not provided with learning support or resources and that it was unfair he was given such classes because of his inexperience and lack of specialist training. He complained he was given no guidance as to how he should teach the students he was given. Finally, he complained he was not supported by the school’s administration in his attempts to control and modify the bad behaviour of his students. Again, the evidence disclosed those claims to be exaggerated and far from the truth. The evidence disclosed that Mr Alamzeb was allocated only four classes, which was one less than other teachers – including the other first year probationary teacher. Overall, he was required to teach 210 minutes less than other full-time teachers at Isis. This extra non-teaching time was provided to allow him, as a probationary teacher, more time to prepare for his classes. His year 8 and 9 maths classes were smaller than most others in the school, both of them containing only 15 or 16 students. At one point those classes were split in two so one-half of the class could do literacy development programs, leaving Mr Alamzeb to teach the remaining 8 or so students. During both the full-size and half-size classes he was assisted by a Learning Support Teacher or a Teachers’ Aide and sometimes both at the same time – see Exhibit 62, item 7 and Exhibit 74, item 2. 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 1,121-1,140) 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 lessons 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). 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. -- 8 of 21 -- 372 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 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 his teaching concerns with the Heads of Department and other teachers at the school. The evidence from the HODs 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 practice what they suggested (see for example, Ms Vander Spoel’s statement, Exhibit 175, p. 3). Mr Alamzeb claimed he felt intimidated and threatened by the Principal, Deputy Principal and the HODs and was “too afraid” to ask them for assistance (see transcript pp. 312-314, 321 and 377-379). (If that be the case it is a sad indictment on his professionalism, especially given his claim that he had been a teacher of teachers for twelve years (see below)). However, I do not believe this was the case. Mr Alamzeb was simply attempting to portray himself as the oppressed “victim”. I do not accept his evidence on this issue. During the time he was under intense lesson observation, he was provided with a mentor of his choosing. Again, in his evidence, he attempted to belittle the effectiveness of that person, and the whole mentor arrangement (see transcript pp. 378-379). He said that he was afraid to seek assistance because it “will be considered as a negative part of my professionalism”. Conclusion 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. Mr Alamzeb also complained he had been given classes which comprised the worst behaved and lowest ability students in the school. Further, he said was not supported in his attempts to discipline students. The evidence suggested there was no truth to those claims. Each of Ms Collins, Mr Cook and Ms Walker gave a number of examples where Mr Alamzeb failed to take appropriate disciplinary action against students who were disrupting his classes. Additionally, they said that Mr Alamzeb failed to provide incident slips (recording behavioural disruptions) to the school administration – as was required by the school’s behaviour management policy (Exhibit 123). They said that if consequences were not given to students it was largely as a result of Mr Alamzeb’s failure to follow the system in place for behaviour control. They said that Mr Alamzeb tried to shift responsibility for issuing consequences following misbehaviour from himself to others within the school (for example, see his evidence at transcript p. 317, line 42; the evidence of Ms Walker, Exhibit 172, p. 3; and the evidence of Ms Vander Spoel, Exhibit 175, p. 2). They said – and the evidence is replete with examples – that Mr Alamzeb simply failed to take personal responsibility for behaviour management in his classes. After listening to all the evidence about the disciplinary policy, and considering Mr Alamzeb’s unconvincing explanations about what he did, or did not do, in particular cases, I accept the evidence of Ms Collins, Mr Cook, Ms Walker and Ms Vander Spoel on these matters. Further, I am satisfied that Mr Alamzeb was not given classes comprised only of low ability students. (In that regard it should be noted that the term “low ability” is one which was adopted and frequently used by Mr Alamzeb during the course of the proceedings, but it is not a term which is otherwise used within the school or supported by anyone in the school’s administration. The use of the term exemplifies Mr Alamzeb’s low regard for his students. (See the evidence of Ms Collins (Exhibit 199, p. 5), Mr Cook (transcript pp. 1,010 and 1,104-5) and Ms Griffith (transcript pp. 1,122-1,124) – which I accept – about Mr Alamzeb having told students in one of his classes that they were dumb)). The evidence shows Mr Alamzeb had two normal classes and it was only the years 8 and 9 mathematics classes which included a number of students with learning difficulties. In those classes Mr Alamzeb was supported by a Teachers’ Aide or the Support Teacher – Learning Difficulties (or both). Any difficulty which he had in dealing with those students was as a result of his failure to access the assistance available to him, from Ms Griffith and her team (see transcript pp. 1,121-1,140), or through the behaviour management policy. The evidence also suggests that such behaviour problems as were experienced seemed to be in evidence more in Mr Alamzeb’s classes than any other. Mr Alamzeb claimed he was denied the assistance and support made available to other teachers. He said this limited his ability to prepare for classes and, as a consequence, would have contributed to concerns about his teaching performance. For example, he said he was denied a PIN number to the photocopier and that he thus could not produce resources for the students to use. He also said he was not told where the teaching resources were located. After listening to Mr Alamzeb’s evidence, especially under cross-examination, I do not accept there is any truth to these allegations. Ms Walker made it clear that he was not denied access to the photocopier, except for a period when she had restricted access for all teachers because of budgetary concerns. She said, and I accept, that except for that short time Mr Alamzeb always had access to the PIN number, and that he used the photocopier. I am further -- 9 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 373 satisfied that Mr Alamzeb knew where the teaching resources were – if he was of a mind to access them. If he was unsure about where the teaching resources were located (which I do not accept), he could have asked. Mr Alamzeb raised many other complaints about lack of support and assistance. I am satisfied that his complaints are unfounded. The evidence given by all of the respondent’s witnesses – which I unreservedly accept – suggests that a great number of the teaching staff went out of their way to assist Mr Alamzeb. A notable example was Ms Griffith. Rather than appreciate their efforts, and understand them for what they were, Mr Alamzeb chose to downplay and ridicule their help. For the above reasons I find that Mr Alamzeb was not denied learning support or access to resources during the period between early February and 13 April 2000, and that he was given appropriate guidance by those to whom he had to report. (iii) Period during which performance was assessed and level of scrutiny during that period Mr Alamzeb complained that Ms Collins effectively instituted a “second period” of probation when he began as a full-time teacher at the Isis school. He said that his induction program only commenced on 17 February 2000 when he was placed on fortnightly lesson observations. Then, after less than a month, the Principal completed his first ever probationary assessment report and marked his performance unsatisfactory. He complained that in assessing his performance in the period leading up to 13 April 2000, no consideration was given to his previous periods of employment with Education Queensland, commencing as a supply teacher in 1995. Further, Mr Alamzeb said that during the period he was engaged as a District Relief Teacher (from 10 May 1999 until the end of the school year 1999) his performance as a teacher was never questioned. No-one raised with him any concerns whatsoever about his suitability as a teacher. In highlighting the fact that there were no earlier concerns about his performance, Mr Alamzeb said that during 1998 he had requested his teacher suitability rating to be assessed. Mr Allan Cook, the Deputy Principal of Isis, made an assessment after discussions with the teaching staff at Aldridge State High School. Based upon Mr Cook’s examination and enquiries the recommendation for Mr Alamzeb’s rating was S2, the minimum rating required to work as a permanent teacher for Education Queensland. Mr Alamzeb also drew my attention to lesson observations completed by Mr Healy (the then Head of Department of Mathematics at Isis) during 1999 (on 8 and 15 October – Exhibits 34 and 36) as well as Mr Healy’s verbal evidence. A point which emerged from the evidence of Mr Healy is that Mr Alamzeb did not appear to have been placed on the lesson observation schedule at Isis – as were other probationary teachers – in 1999. This may have been because he was a District Relieving Teacher and was not permanently assigned to any particular school or because he was engaged well after the start of the school year. Or it may have been because of Mr Alamzeb’s previous teaching experience (12 years in Pakistan plus previous supply work in Australia), and the fact he was classified as a senior teacher, the school’s expectation of his performance at the time of his appointment was different than if he had been a new graduate. (see Mr Cook’s evidence, Exhibit 193, p. 2). Whatever the reason, it is clear that Mr Alamzeb did not receive the benefit of feedback from regular lesson observations (other than the above two by Mr Healy) during 1999. In that sense he appears to have been left to find his own way. It seems no-one took responsibility for oversighting his probation until February 2000. Mr Alamzeb argued it was unfair that his performance as a teacher was only finally questioned in the eight week period between 17 February and 13 April 2000, when nothing was said about his performance previously. I have considered Mr Healy’s evidence. Mr Healy said he had seen Mr Alamzeb’s lesson and unit plans on a regular basis. He said that Mr Alamzeb seemed well prepared and, from his observations in 1999, Mr Alamzeb knew how to prepare lesson plans. However, Mr Healy also said that whilst Mr Alamzeb’s teaching was “quite satisfactory (he) experienced difficulties with teaching as most probationary teachers do. Things like behaviour management, that sort of thing . . .” (transcript p. 965). Mr Healy’s observations of Mr Alamzeb’s lesson planning abilities do not sit well with the detailed evidence given by Ms Griffith about Mr Alamzeb’s complete lack of understanding of the concepts of lesson planning and his attempts at same. Further, Mr Healy’s evidence does not sit well with the lesson observations, and evidence, of Ms Collins, Mr Cook, Ms Walker and Ms Vander Spoel. Given Mr Healy’s limited exposure to Mr Alamzeb in 1999, his limited evidence on the issue and the very detailed and credible evidence presented by all of the other witnesses about Mr Alamzeb’s lesson planning and performance as a teacher generally, I prefer the evidence of the witnesses who observed Mr Alamzeb in 2000. Mr Alamzeb further submitted that it was unfair for his performance in 2000 to be assessed over such a relatively short period of time between February and April 2000, three days of which were spent at a seminar and two weeks on exam preparation and examinations. He said the bulk of his assessment occurred during the second part of that period when he was under intense pressure because his every lesson was being observed and he was constantly subject to scrutiny. He said that the constant lesson observation and pressure from his superiors was stressful and may have caused him not to perform at an adequate level. He also said that the lesson feedback was haphazard (Mr Cook was alleged not to have provided feedback for 3 lessons until 11 April) and he did not have enough time between the feedback and the next lesson to properly consider altering his teaching strategies. To make it even worse, Mr Alamzeb said that Ms Collins interfered in the running of several of his classes, during the final assessment period, by taking over the class. He said that her intervention, and the constant presence of a senior person from the school, lowered his credibility in the students’ eyes and made it more difficult for him to teach and control their behaviour. Conclusion Given the important fact that consistent and considered supervision and feedback for Mr Alamzeb did not commence until February 2000, there is a significant element of validity to Mr Alamzeb’s complaint that he was not provided with the level of assistance normally given to a probationer and that his performance was judged over a comparatively short period of time. Allowing for the settling in of students and teachers, preparation of timetables and the like, Mr Alamzeb was really only provided with support, guidance and assistance for a period of eight to nine weeks before the Principal, Ms Collins, decided to recommend to the Board of Review that his appointment be terminated. -- 10 of 21 -- 374 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 Mr Alamzeb said the process was rushed because his twelve months probation (as per Education Queensland policy – Exhibit 41) was ending and Ms Collins was under pressure from the District Office to complete his assessment. On my consideration of the events – as well as my assessment of Ms Collins’ evidence on the point – there is a large degree of truth in that assertion. Mr Alamzeb claimed that on 15 March, when Ms Collins completed her first probationary report (Exhibit 53), she said that she was under pressure from the District Office to complete the report and she was giving him an unsatisfactory report in order to “buy more time” for herself to complete the probationary processes (monitoring, feedback etc) which should have been commenced earlier. After listening to the evidence of Mr Alamzeb and Ms Collins on that point I have reached the conclusion that Ms Collins did say that she was under pressure to complete the report but that she did not indicate that she was buying time for herself. I find she was actually indicating to Mr Alamzeb that he needed more time to improve and to take on board the suggestions being made to him (transcript p. 1158 and p. 1190). I am satisfied from my assessment of all of the evidence that Ms Collins was correct in deciding not to confirm Mr Alamzeb’s appointment as at 15 March, and in recommending that his probation be continued at that time. In that regard it is noted that she then put in place an intense program of lesson observations, and other means of supporting Mr Alamzeb, to complement the quite extensive support regime already in place. The issues requiring determination here, as a result of Mr Alamzeb’s submissions, are, firstly, whether the type of processes Ms Collins implemented on 15 March 2000 should have been provided earlier in the probationary period and, secondly, whether the intensity of the support program, and its limited duration before his final assessment, were unfair to Mr Alamzeb. I think that the answer to the first question is “Yes”. Assessment of Mr Alamzeb’s capacity as a teacher, and intervention to assist him, should certainly have occurred at an earlier time. The commencement of the intense support program after 15 March 2000 does not moderate this fact to any great degree. A part answer to the second question is that the support program probably was too intense and also arguably too short. I say “arguably” because Ms O’Neill was firm in her evidence that a period of twenty days was adequate to assess a teacher’s performance once they had worked for twelve months. This was particularly so for an experienced teacher. Her evidence suggested it was appropriate to assess the performance of a teacher after that period of time if they had been provided with support during the assessment/observation period. Ms O’Neill was well qualified to express these views. She taught in schools for 15 years and had been Chair of the Board of Review since 1997. In this case, she said, the observations had actually been carried out over forty days (transcript pp. 1,390-91) and this was ample to fairly assess Mr Alamzeb’s ability. (iv) Failure to extend probationary period Mr Alamzeb argued he was misled by Ms Collins and Mr Cook about his probationary period. He said the document provided to him (Exhibit 44/122, pp. 30-31) on 17 February 2000 at the time of his induction mentioned a maximum probationary period of eighteen months. He said he had also been misled by Mr Purches of the QTU who had intimated to him that the outcome of the Board of Review meeting would probably be an extension to his probation. Leaving aside what may have been discussed between Mr Purches and Mr Alamzeb, I agree that the Teacher Induction Program (Exhibit 44/122) handed to Mr Alamzeb, at the start of his formal induction, is misleading. At pp. 30-31 it suggests that probation can be extended to the eighteenth month. It says “as probation cannot be extended beyond the eighteenth month of service, the only valid options in the Principal’s summation for the second PCA report are ‘satisfactory – confirm appointment’ or ‘unsatisfactory – rescind appointment’.”. Mr Alamzeb said that as he had almost no feedback during the first nine months of his employment (see above), he had not been given the normal assistance afforded to other probationary employees. He said the Board of Review should have taken this, and the fact that the assessment of his performance only took place during an eight or nine week period, into account. He said if his probation had been extended further he would have been able to demonstrate his ability to meet the respondent’s requirements. He said it was unrealistic that the Principal and the Board expected him to be able to improve his performance during the four weeks he was under intense scrutiny and pressure. He consistently put that the way to judge a teacher’s ability was to look at the results they achieved with their classes at the end of the year. He argued strenuously that performance could not be gauged by observing a single lesson or a series of lessons over a relatively short period of time. Student results were the telling feature. The reality was that his probation was unable to be extended beyond 9 June 2000 because after that date his appointment would have been automatically confirmed by virtue of s. 73 of the Public Service Act 1996. As is made obvious in Ms O’Neill’s evidence, which follows in the next section, the Board of Review viewed this outcome as patently undesirable. The Board of Review had firm reasons for deciding not to extend Mr Alamzeb’s probationary period, as outlined in the section below. Conclusion Based upon my assessment of the evidence – especially that of Ms O’Neill (following) whom I found to be well qualified and articulate – I am satisfied that it was appropriate for the respondent to decide not to extend the probation of Mr Alamzeb on 24 May 2000. (v) The respondent did not consider alternatives to termination Mr Alamzeb submitted that the respondent did not consider alternatives to terminating his appointment. He also argued (at p. 42 of part 2 of his written submissions) that the respondent did not consider his professional standing and circumstances before it decided to terminate him. He said he had an unblemished work history. Elsewhere, he submitted the Board of Review should have transferred him to another school – where he believes he would have received more support and assistance than he obtained at Isis – or extended his probation. Mr Alamzeb’s own witness, Ms O’Neill, said that the Board of Review had considered a range of options other than termination of Mr Alamzeb’s appointment. Her evidence (at transcript pp. 1,432-1,438) clearly and lucidly sets out the various options that the Board of Review considered and why the Board determined upon its ultimate course of action. She outlined the options the Board of Review considers when a recommendation for termination of an appointment comes before it. One option is to transfer the teacher to another school and further extend their probationary period. Another option, particularly where the probationary period is towards the end of its life, is to confirm the appointment and closely monitor the teacher as a permanent employee. -- 11 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 375 Ms O’Neill said that each option was considered in Mr Alamzeb’s case, but the Board decided that terminating his appointment was the best option. She explained why at transcript pp. 1,434-5. In summary, she said that there were two critical deficiencies identified in Mr Alamzeb’s performance. The first critical deficiency was that Mr Alamzeb did not appear to take responsibility for the behaviour of students in his classroom. She said that aspect of teacher performance was a fundamental proposition all employees must accept if they were to work for Education Queensland. The second critical area of deficiency was the “input, as we call it in education, as opposed to the actual outcome . . .”. Ms O’Neill said Mr Alamzeb’s teaching practices seemed to rely very heavily on the provision of a great deal of input to students with very little emphasis on assessment of where students were at at any moment in time and then addressing their deficiencies so that they could move on from that point. Her evidence on this matter was reflective of the evidence of all of the respondent’s witnesses. Ms O’Neill said the (positive) evidence of Mr Alamzeb’s proficiency was not there so extending his probation and moving him to another school was deemed to be unproductive (transcript p. 1435). Finally, Ms O’Neill said (at transcript pp. 1,432-5) that the Board of Review had considered whether Mr Alamzeb should be made permanent and placed under close monitoring. In considering that option the Board of Review had to decide whether Mr Alamzeb’s performance would improve to an extent that he could become a quality teacher in time. It made the judgement that “a couple of months would not make any difference . . . We (were) then asked to make a judgement, will more time be effective in improving performance? It didn’t look as though time was the issue. That was my professional judgement. More time was not going to assist the situation at all.”. Conclusion After considering all of the evidence I have determined that the Board of Review did consider alternatives to terminating Mr Alamzeb’s appointment. It is clear from Ms O’Neill’s evidence that a range of options were considered and that termination of the appointment was the last of them. I am also satisfied that it was appropriate for the respondent not to confirm Mr Alamzeb’s appointment and monitor his performance as a permanent employee. (vi) There was no valid reason for termination based upon performance Mr Alamzeb argued continually during the course of the proceedings that there was nothing wrong with his performance as a teacher. He said he had been given an S2 rating in 1998, the lesson feedbacks he received from Mr Healy in 1999 were positive, and the bulk of the lesson feedbacks in 2000 were “not that bad”. Mr Alamzeb further claimed that the Principal was biased against him and that she would not have been happy with his performance no matter what he did to please her. He said she had planned to fail him at the start of the year and that she had enlisted other parties – including students – to achieve her objective. He disputed the evidence of Ms Collins, Mr Cook, Ms Walker, Ms Vander Spoel, Ms Griffith and Ms O’Neill, who each said that he did not demonstrate the necessary knowledge, skills and proficiency to be allowed to continue as a teacher. In his evidence-in-chief Mr Alamzeb said he had obtained his Bachelor of Teaching qualifications in Pakistan and had taught for twelve years in a teaching institution which taught teachers how to teach. Under cross-examination (transcript pp. 272-276) he resiled from that position somewhat to the point where he finally said he had taught chemistry for fifty percent of the time and taught others how to teach chemistry for the other fifty percent of the time. His evidence suggested that he regarded himself as a skilled and experienced teacher deprived of opportunity in Australia from the time of his arrival in 1993 until he was successful in obtaining some supply teaching with Education Queensland in about 1995. He undertook further supply teaching and contract teaching work over the next several years and was ultimately successful in gaining the District Relief Teacher’s position, located at Isis, in May 1999. He portrayed himself as a competent and experienced teacher and, for a time at least, employees of the respondent thought he was. He obtained the S2 rating in late 1998 (see above) and that change ultimately led to him being offered the permanent appointment at Isis. He was also classified, and paid as, an experienced teacher. However, Mr Alamzeb’s entitlement to an S2 rating was challenged by Ms Collins (Exhibit 199, pp. 1 and 6) and by Mr Cook (Exhibit 193, p. 1 and transcript, pp. 1,017-1,018), notwithstanding it was Mr Cook who recommended the rating in 1998. Mr Cook’s evidence was that, in hindsight, he was uncomfortable about having allowed himself to be influenced by another school into providing the rating without adequate personal observation and meetings with Mr Alamzeb. But, notwithstanding those comments, Mr Cook said that even if he had observed Mr Alamzeb at the time, Mr Alamzeb may still have achieved the S2 rating, due to the nature of Mr Alamzeb’s engagement in 1998 and the type of students he was working with. Students generally co-operated better with a relief teacher, especially if they were independent learners. Mr Cook said that Mr Alamzeb did not have ultimate accountability for the results of the classes he was then teaching, as he was generally only responsible for one lesson at a time and only required to follow the lesson plan or outline set by the usual teacher. In essence, he was only in a supervisory role and would not generally be required to utilise a wide range of teaching strategies to ensure student learning (see Exhibit 193). Ms Collins said that Mr Alamzeb was given a variety of duties as a District Relieving teacher during 1999. Although located at the Isis school he regularly left that school to replace teachers who were absent from other schools in the district. If there were no absences to cover at Isis or elsewhere in the district he would undertake a support role for other teachers which might include tasks normally carried out by Teachers’ Aides. The Principal’s and Deputy Principal’s respective assessment of Mr Alamzeb’s professional abilities (i.e. being a competent and experienced teacher) began to change markedly at the beginning of 2000 after he became a full-time teacher with teaching accountability. Their evidence contains examples of the types of issues which developed and what they did about them. Mr Cook said that during the first month he spoke to Mr Alamzeb about a range of issues such as behaviour management, special needs issues, school procedures and so on. He also spoke to Mr Alamzeb about the need to establish credibility with the class and the need to maintain classroom control. He provided Mr Alamzeb with specific strategies to ensure these things occurred. Importantly, he said that he had identified that Mr Alamzeb was not using appropriate teaching strategies and that his level of planning and understanding demonstrated that the new graduate teachers understood the concepts much better than Mr Alamzeb. -- 12 of 21 -- 376 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 Mr Cook said that because of the emerging problems the school’s administration decided to support Mr Alamzeb in a number of ways – by professional development, by allowing him to observe other teachers and by having Ms Griffith work with him to develop lesson plans. In respect of these attempts at support Mr Cook 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 minuscule. In one observation he said he left fifteen minutes early because nothing was going on. Ms Collins said that because of the concerns about Mr Alamzeb’s performance he was placed in a classroom next to the Maths HOD to obtain support and guidance more easily. (In his evidence, Mr Alamzeb criticised the location of his class claiming that he had been placed next to Ms Walker so she could spy on him and report her findings to the Principal). The evidence of Ms Collins and Ms Griffith on Mr Alamzeb’s lack of understanding of teaching plans and teaching concepts was complementary. In different ways they each said that Mr Alamzeb did not understand the theory behind lesson planning and delivery and teaching strategies. This included the ideas of interactive teaching, asking questions to ensure student understanding and having students working in pairs or groups. They (and other witnesses) said Mr Alamzeb did not effectively check for student understanding. Ms Collins gave two examples to highlight the point. She said that in one class Mr Alamzeb asked the students how many 20 cents there were in a dollar. She said he received a number of incorrect answers before finally receiving the correct response. Rather than check for students’ understanding, and why they had not got the question right, Mr Alamzeb acted as if he had hit the jackpot and moved onto the next area. In the second example, she said that Mr Alamzeb had asked a class what was one thousand thousand. Again, he had received a number of incorrect answers before one of the students yelled out “a million”. Again, rather than establish how that student had worked out the answer, and why the other students were wrong, Mr Alamzeb simply moved on. She said she had intervened to establish the level of understanding and to show Mr Alamzeb what should have been done. Ms Griffith’s evidence also disclosed that Mr Alamzeb clearly lacked understanding of teaching concepts and terms. Exhibit 77 (tendered by Mr Alamzeb) sets out the support that Ms Griffith and her team provided to Mr Alamzeb for level 8 and 9 maths. It shows that in week 6 Mr Alamzeb had demonstrated that he was unfamiliar with a number of the terms being used (for example, “modelling”, “guided practice”, “independent practice”) and their implications for teaching and learning. She made a similar observation in week 7, as well as making the additional point that self-evaluation appeared to be a new concept to him. Several times during cross-examination Mr Alamzeb was questioned about his understanding of particular teaching terms and concepts. When that occurred he clearly demonstrated some uncertainty, both in his demeanour and responses. A particularly telling example was when he was questioned about the meanings of the terms “appraisement” and “ascertainment” (transcript pp. 319-325). Mr Alamzeb’s level of understanding of teaching concepts, terms and approaches can be compared to that of his wife – a supply teacher – also employed by the respondent at a different school in the area. She clearly understood the terms and the concepts and knew what she was talking about. Mr Alamzeb did not. The problems the school’s administration was having with Mr Alamzeb and his overall performance is recorded throughout the witness statements and the evidence called by the respondent. A range of that material follows. It is far from exhaustive. It is referred to in order to highlight the nature and degree of the matters canvassed. Ms Collins 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 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.”. -- 13 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 377 Mr Cook and Ms Walker spoke candidly and openly about their interaction with Mr Alamzeb and their concerns about his performance as a teacher. Their demeanour during the giving of their evidence appeared to reflect the level of their frustration at Mr Alamzeb’s reaction to their attempts to help him – both at the time this help was provided and subsequently. Ms Walker was criticised intensely by Mr Alamzeb during the proceedings for her alleged lack of assistance to him and her alleged untruthful evidence. However, I found Ms Walker to be a refreshingly frank and credible witness. One particular area of difference between the evidence of Mr Alamzeb and Ms Walker was Mr Alamzeb’s assertion that he had not been assisted by the HODs – especially Ms Walker. Ms Walker’s statement (Exhibit 172) made it clear she had received a number of complaints about Mr Alamzeb’s performance in the first few weeks of the school year and in week 3 began to observe his classes so as to provide guidance on how he could improve. She started to have weekly meetings with him to provide feedback. She suggested Mr Alamzeb observe her classes to see how she controlled her students. She said that Mr Alamzeb demonstrated a reluctance to do so, saying he could not see the benefit because Ms Walker had better students and they showed her more respect than they would for an ordinary teacher. Ms Walker said she undertook these weekly meetings and observations as part of the normal support given a first year teacher. However, she found she was putting in more time with Mr Alamzeb than any other first year teacher at Isis. She estimated she had spent 4 to 5 times the time with Mr Alamzeb than she was then spending with the other two first year teachers teaching at Isis at the time she wrote her statement. In addition, Ms Walker said that because Mr Alamzeb sat opposite her in the staffroom she had many informal discussions with him, outside of the weekly meetings, about issues relating to student behaviour management, teaching and school administrative issues. Overall, Mr Alamzeb was one of the most time consuming teachers she had ever had to work with. Where there is dispute between Mr Alamzeb’s and Ms Walker’s evidence, I unreservedly accept Ms Walker’s evidence. I also accept what Ms Walker said in her notes and diary entries (Exhibit 75 and Exhibit 173) about the various incidents which arose during Mr Alamzeb’s time at Isis. 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 Vander Spoel was Mr Alamzeb’s science HOD. During 2000 Mr Alamzeb only taught one science class. Consequently, Ms Vander Spoel did not need to observe the same number of classes as the maths HOD, Ms Walker. However, she also gave evidence that Mr Alamzeb’s performance was a cause for concern. In her witness statement (Exhibit 175, p. 1) she said she received a report from a parent, early in the year, that his child had said that Mr Alamzeb had no control over the class. As a result of this report she began to observe his classes. She immediately became concerned that he was attempting to give work of year 11 chemistry standard to year 8 students in the lower ability class. She said that her observations disclosed that Mr Alamzeb did lack control over his class. When he was trying to teach work to students only a few of them at the front of the class were listening and the rest were chatting and not involved. She suggested he alter the seating plan and use some other strategies to involve all the students, but when she next observed the class the students were still sitting in the same places. After the first probationary report on 15 March 2000 Ms Vander Spoel was assigned to observe more of Mr Alamzeb’s classes and to have greater interaction with him. She took him to an in-service development course regarding the new science syllabus. She gave him advice, examples and feedback on the exam questions he was setting. She also suggested he ensure that the students had some practice at exam type questions. Despite this, the exam results in Mr Alamzeb’s class were not good. Most students failed or gained a low pass. Complaints about Mr Alamzeb’s teaching came to Ms Vander Spoel and Ms Collins, both before and after the exam – the latter being a consequence of the exam results. During Ms Vander Spoel’s later lesson observations she identified that Mr Alamzeb was still not teaching at the level of the class and that lesson plans were not being followed. In one lesson a student asked the same question three times and it was obvious that the student did not understand. Mr Alamzeb answered the question in the same way each time until the student gave up. Ms Vander Spoel said she told Mr Alamzeb in her feedback that he had not followed the lesson plans and he had missed the point about the student who kept asking the same question. He said he thought he had responded appropriately to that student. Ms Vander Spoel also said that during her lesson feedback to Mr Alamzeb he would often partly listen and then respond by explaining why he could not do what she was suggesting. At page 4 of her witness statement she said that she did not get the impression that Mr Alamzeb was improving at the end of his extended probation. She said that Mr Alamzeb did not show the sort of skills she would have expected from a teacher of his seventeen years experience. She would have expected him to be able to handle the little problems that arose differently. In addition, she said he did not use the skills of an experienced teacher to handle difficult students or to encourage others. Although she did not consider Mr Alamzeb’s classes were “out of control” she did think the students were not learning and this was a major concern to her. Ms Vander Spoel also said Mr Alamzeb’s previous classes achieved much better results after his termination, even though they were taught by another beginner teacher. Ms Vander Spoel was a more subdued witness who did not demonstrate the same degree of frustration with Mr Alamzeb as Mr Cook and Ms Walker. Nonetheless, it was clear from her evidence, and her reaction to Mr Alamzeb’s questioning, that she was far from impressed with his criticism of her attempts to assist him and his lack of appreciation of her efforts. Whilst her verbal evidence was somewhat qualified, she did not resile from her witness statement. Given her quiet demeanour, and the fact that she seemed to be somewhat intimidated by Mr Alamzeb’s presence, I have placed greater reliance on her written statement than her verbal evidence. In any event, she, along with all of the respondent’s other witnesses, did not have anything particularly positive to say about Mr Alamzeb’s performance as a teacher or his prospects of improvement (see also the evidence of Ms Walker at transcript p. 963 and Mr Cook, especially at transcript p. 1,019). -- 14 of 21 -- 378 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 Ms Collins gave a detailed witness statement (Exhibit 199) and was subject to intense cross-examination by Mr Alamzeb. Despite her clearly demonstrated intolerance towards Mr Alamzeb, she was not shaken on any of the material she put in the first probationary report (Exhibit 53), the second probationary report (Exhibit 73/201), the report she prepared to accompany the second probationary report (Exhibit 74) or her witness statement. In particular, Ms Collins said that she discussed extending Mr Alamzeb’s probation with Mr Cook, Ms Walker, Ms Vander Spoel and, to a lesser degree, Ms Griffith prior to preparing her first probationary report recommending the four week extension of his probation. She said the Deputy Principal and HODs were unanimous in their support for extending Mr Alamzeb’s probation. 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. I accept Ms Collins’ evidence. It is clearly confirmed by the evidence of the respondent’s other witnesses. 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 sample 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. The first and final probationary reports prepared by Ms Collins addressed the four criteria she was required to consider in assessing Mr Alamzeb’s suitability to be confirmed as a full-time teacher with Education Queensland. The general tone of the final report can be gathered from the selected extracts below. “PRINCIPAL’S COMMENTS 1. CLASSROOM MANAGEMENT: Mr Alamzeb has demonstrated a poor ability to maintain an ordered learning environment and has consistently failed to have students comply with the School Behaviour Management Plan. Student misbehaviour in the classroom is regularly not dealt with appropriately, with the result that student learning both within and outside Mr Alamzeb’s classroom has been subject to unacceptable disruption. . . . The scope of classroom management problems in Mr Alamzeb’s classroom has revealed a lack of teacher authority and ability to appropriately discipline misbehaving students. Teachers from neighbouring classrooms have on occasions been required to leave their classrooms and intervene to restore order. Of particular concern is Mr Alamzeb’s demonstrated reluctance to take direct responsibility for the application of consequences. Mr Alamzeb willingly cedes follow up disciplinary actions to Heads of Department, Deputy Principals or the Principal. To this end he does not appear to have grasped the link between a teacher’s direct enforcement of school expectations, particularly with respect to low and middle level misbehaviours, and consequent enhancement of a teacher’s professional credibility with students. 2. INTERPERSONAL RELATIONSHIPS: Mr Alamzeb has shown greater respect for students and their individual needs than was previously demonstrated. However, students do not always demonstrate a reciprocation of respect. In interacting with Mr Alamzeb, students commonly adopt a discourteous tone and manner. This attitude would appear to at least partially derive from Mr Alamzeb’s repeated failure to follow up on students’ poor behaviour by applying appropriate consequences. While Mr Alamzeb has shown a greater willingness to work collaboratively with learning support personnel, he has at times been either unwilling or unable to act on advice given to him by administration personnel. . . . 3. CURRICULUM PROGRAM DEVELOPMENT: Mr Alamzeb’s curriculum program development is considered to be deficient. While lesson plans have regularly been completed, initially with intensive assistance from learning support teachers, they are not always followed in the classroom situation. . . . He has demonstrated a limited capacity to identify areas where student understanding has not been achieved and to alter curriculum planning to cater for this. Long term planning is considered unsatisfactory by both administration personnel and relevant Heads of Department. This is despite guidance and modelling being provided to Mr Alamzeb, together with a reiteration of expectations. Mr Alamzeb has provided limited evidence of his ability to prepare challenging and productive resources. 4. LEARNING AND TEACHING: Mr Alamzeb has demonstrated an unsatisfactory ability to gain and maintain students’ attention and engagement in classroom activities. He continues to teach, question and revise/recap while significant numbers of students talk to neighbours or exhibit other off-task behaviours. Despite this problem being regularly addressed in feedback sessions, Mr Alamzeb either does not remember to employ suggested strategies or does not accept the need for student attention to be gained. In fact, his behaviour would indicate that he is often not even aware of the prevalence of off-task behaviour. As a result of student inattention, much of what Mr Alamzeb is teaching is not actually absorbed by students and is unproductive time. Mr Alamzeb does not utilise teaching strategies that allow him to check for understanding. . . . When given feedback, Mr Alamzeb has regularly responded to identified concerns by emphasising that he has ‘taught’ the required content, even after many reminders that what is taught by the teacher is less important than what is learned by the students. Mr Alamzeb has not been able to adjust his expectations of students to match their abilities. This has resulted in his continuing to use teaching strategies that do not meet students’ needs nor maximise their learning outcomes. . . .”. -- 15 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 379 Paragraph 18 (pages 5-20) of the respondent’s written submissions conveniently draws together the evidence of all of the witnesses under the four headings immediately above, and where it appears in the exhibits and transcript. Rather than repeat this material I draw attention to it to record my agreement that it is a true reflection of the evidence given by the witnesses – including Mr Alamzeb. Conclusion I find that the evidence supports the conclusions reached by Ms Collins in her final report. Specifically I find that Mr Alamzeb’s classroom management was inadequate in that he failed to take direct responsibility for student behaviour and the enforcement of the school’s behaviour management policy. Further, I find that Mr Alamzeb exhibited a clear lack of knowledge of curriculum program development and teaching concepts despite considerable effort by his supervisors and peers to help him improve his comprehension and performance. Finally, I find that Mr Alamzeb failed to adopt appropriate teaching strategies in that he consistently used the lecture method rather than taking a collaborative, interactive or experiential approach. This allowed many instances of lack of understanding in the class, or even misunderstandings, to go unnoticed and uncorrected by Mr Alamzeb. After considering all the evidence about Mr Alamzeb’s performance as a teacher up to 13 April 2000, and his failure to act on the guidance given him up to that time, I believe there were valid reasons for Ms Collins to recommend his appointment be terminated. What of Mr Alamzeb’s performance after the recommendation? Mr Alamzeb asked that matters going to his performance in the school between 13 April and 24 May 2000 be excluded from consideration. He said that such matters were not before the Board of Review and the Board had not taken them into account in making its decision to terminate his appointment. 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 have accepted the evidence to the effect that Mr Alamzeb’s performance had not improved, or had deteriorated, in the period between 13 April and 24 May 2000. Although the Board of Review only considered material which covered the period up to 13 April 2000, the evidence before me on Mr Alamzeb’s subsequent performance confirms that it was reflective of his performance on the day the Board made its decision to recommend terminating Mr Alamzeb’s appointment. I consider it to be evidence I may properly have reference to in coming to my conclusions on the validity of the reasons for dismissal. After considering all of the evidence – and noting that what I have referred to above is just part of it – I have decided that there was a valid reason for termination of Mr Alamzeb’s appointment on 9 June 2000, based upon his conduct, capacity and performance. Findings Was Mr Alamzeb’s termination for an invalid reason? I have found above that Mr Alamzeb’s termination of employment was not for an invalid reason within the meaning of s. 73(2) of the Industrial Relations Act 1999, for any of the various reasons he advanced, including failure to comply with the Director General’s policy, discrimination/harassment, or termination while temporarily absent from work. Was Mr Alamzeb’s termination harsh, unjust or unreasonable? Section 77 of the Industrial Relations Act 1999 sets out the matters that the Commission must consider when determining whether a dismissal was harsh, unjust or unreasonable. It provides:– “Matters to be considered in deciding an application 77. In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider – (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to – (i) the operational requirements of the employer’s undertaking, establishment or service; or (ii) the employee’s conduct, capacity or performance; and (c) if the dismissal relates to the employee’s conduct, capacity or performance – (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant.”. It is clear that Mr Alamzeb was notified of the reason for his dismissal, per medium of Exhibit 53, Exhibit 73/201 and Exhibit 96. It is also clear the dismissal related to concerns the respondent held about Mr Alamzeb’s conduct, capacity and performance (see Exhibit 53, Exhibit 73/201). -- 16 of 21 -- 380 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 (i) Was Mr Alamzeb warned? Mr Alamzeb argued he was not warned of the respondent’s concerns about his conduct, capacity or performance. I do not accept this was the case. Mr Alamzeb knew at all times that he was on probation and that his appointment might or might not be confirmed (see attachment to letter of appointment). The very fact he was on probation was notice to Mr Alamzeb that his conduct, capacity and performance were under scrutiny, although the fact of probation is not viewed as a “warning” of itself. The fact his probation was extended, together with the contents of the fist probationary report, must also have served as notice to him that his performance was being reviewed. Further, the intense lesson observation process (up until the preparation of the final probationary report (Exhibit 73/201)) should have left him in no doubt that his employer had serious concerns. He was being told about those concerns after every lesson. He was also told about those concerns by Ms Collins, Mr Cook, Ms Walker, Ms Vander Spoel and Ms Griffith, on many other occasions. Mr Alamzeb also said Ms Collins did not tell him his employment might be in jeopardy at the time he was given the first probationary report (Exhibit 53). He argued she told him that his probation was being extended only in order for her to buy time for herself to complete the probationary process, which should have been initiated earlier. I have determined (above) that this was not what occurred. I find that Ms Collins did warn Mr Alamzeb that unless his performance improved by the end of the four week extension period, one outcome might be a recommendation to terminate his appointment. Further, the text of the first probationary report makes it clear that a further unsatisfactory report could lead to a recommendation from the principal that his appointment be terminated. I find that Mr Alamzeb was warned about the respondent’s concerns about his conduct, capacity and performance. I find that Ms Collins warned him at the meeting of 15 March 2000 to discuss the first probationary report that his employment might be terminated if his performance did not improve. (ii) Was Mr Alamzeb given an opportunity to respond? The evidence discloses that Mr Alamzeb was given an opportunity to respond to the concerns raised with him about his performance at the time that they were raised. This occurred virtually on a lesson by lesson, day by day basis. Not only was he able to respond verbally he was given ample opportunity to respond by demonstrating changes in the way that he taught and controlled his classes. Mr Alamzeb was provided with opportunity to respond to the particular allegations in the probationary reports about his conduct, capacity or performance. He wrote in his response to the first probationary report “I understand and agree with some of the comments”. He also provided a detailed response (Exhibit 106) to the show cause letter. Mr Alamzeb, however, argued he was not given sufficient opportunity to respond to the respondent’s allegations in the probationary reports. Firstly, he said he was denied the requisite time to respond to the respondent’s show cause letters. Secondly, he complained the respondent had not extended the show cause deadline when he experienced computer difficulties. I have already found against Mr Alamzeb on both of those arguments. Thirdly, Mr Alamzeb alleged he was not given proper opportunity to respond to the respondent’s allegations because he was denied a personal interview with the Board of Review. In my view, the processes adopted by the respondent – through the Board of Review – were not inappropriate. Mr Alamzeb had all of the information requiring a response and he was given ample time, opportunity and assistance to prepare and develop his response. Most large institutions (especially those which are geographically diversified) adopt similar processes – where allegations are given in writing and responses are made in writing. I consider the processes adopted on this occasion to be quite valid and that the Board was not required to allow Mr Alamzeb to appear before it. In any event, the evidence from Ms O’Neill was that the Board properly considered and fully discussed all the material before arriving at its decision. The evidence shows that the Board had a good grasp of the issues involved and fully understood both the allegations against Mr Alamzeb and his responses to them. The Board decided Mr Alamzeb failed to adequately respond to the issues raised in the probationary reports. Lastly, Mr Alamzeb complained that the Board should have given him a further opportunity to respond to the reasons why it felt that his response to the show letter was inadequate. I disagree. I do not believe the Board was obliged to provide a second opportunity to Mr Alamzeb. The Board was entitled to make its decision on the material before it. I find that Mr Alamzeb was given appropriate and sufficient opportunity to respond to the respondent’s concerns and allegations of deficiency in his conduct, capacity and performance. Other relevant matters Section 77(d) of the Industrial Relations Act 1999 also requires the Commission to consider any other matters that it thinks may be relevant in reaching a decision whether a particular dismissal was harsh, unjust or unreasonable. It is convenient now to review other matters of potential relevance in terms of the broad groupings of Mr Alamzeb’s arguments as to why he claimed his termination was harsh, unjust or unreasonable. He argued his termination was harsh, unjust or unreasonable because:– (i) He was not provided with procedural fairness, firstly, because the Board of Review did not give him the mandatory 14 days to prepare his response to its show cause letter and, secondly, because the deadline for responding was not extended when he experienced computer difficulties in finalising and formatting his response; (ii) He was not provided with proper learning support and guidance; (iii) He was not provided with normal support and feedback in the first 9 months of his probation and then his performance as a teacher was only judged over a short period of time, when he was placed under too much pressure. No consideration was taken of his earlier period of employment with Education Queensland, which was without criticism; -- 17 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 381 (iv) His probation was not extended by 4-6 months to allow him to demonstrate he could meet the respondent’s requirements; (v) The Respondent did not consider other alternatives to his termination; (vi) There was no valid reason for termination based upon his performance. I have already found against Mr Alamzeb in relation to his contentions numbered (i), (ii), (iv), (v) and (vi). My reasons for doing so are set out in the body of this decision. I do not consider the evidence forwarded by Mr Alamzeb in support of any of the matters raised in those contentions bears out the view that his termination was harsh, unjust or unreasonable. I do, however, think Mr Alamzeb raises some telling and arguable points in his contention (iii) (which is an amalgam of related issues), those being that:- 1. He did not receive even the minimum of eight months supervision and support at a level appropriate to a probationary teacher. He received virtually no supervision or support from the respondent for the first nine months of his probation, followed by two to three months of intensive supervision and support towards the end of the probationary period. 2. His performance was, of necessity by the time the supervision and assessment processes commenced, judged over a comparatively short, artificially compressed, period. 3. For a significant portion of the period during which he was assessed he was subjected to more consistent and intense scrutiny, and therefore pressure, than may have been reasonable to allow an untainted assessment of his abilities. The probationary processes really only commenced on 17 February 2000 and culminated in a recommendation, made on 13 April 2000 that his appointment as a probationary teacher be terminated. That recommendation was accepted on 24 May 2000 and the termination was made effective 9 June 2000. The question which arises from the above and that sequence of events is “Was Mr Alamzeb given a ‘fair go’ during the probationary process?”. I think that the “compressed” form of assistance and assessment received by Mr Alamzeb must be contrasted to the support and assessment processes a probationary employee would normally experience. In my view, in this comparison, the conditions experienced by Mr Alamzeb must be found wanting. To repeat part of an excerpt cited earlier in this decision:– “. . . the very nature of probationary employment may reasonably lead to an expectation in an employee receiving information, and perhaps corrective advice if necessary, during such period rather than being informed by the employer at or near the end of the period that no continuing employment would be available.” (Buckman and Burford v Burdekin Resources NL (1998) 85 IR 415 at 418).”. I note, of course, that these particular considerations must be weighed for significance in the context of the whole of the circumstances of this case. I record below the matrix of factors which I have expressly considered, along with the above, in reaching my decision on whether Mr Alamzeb’s termination was harsh, unjust or unreasonable. I have considered:– • Mr Alamzeb was classified and paid as an experienced teacher (having 17 years experience) although he was engaged on probation. • Mr Alamzeb’s engagement as a probationary employee, along with the documents provided to him at the time of his employment (see the “Conditions of Employment” sheet attached to the letter of appointment) would, or should, have put him on notice that until his appointment was confirmed there was always a possibility his employment could be terminated – depending upon his performance. • The overwhelming evidence, from all the respondent’s witnesses, was that at the time of his termination Mr Alamzeb’s teaching skills fell significantly short of the minimum level of competence required to teach for Education Queensland (as encapsulated by Ms Collins’ comments extracted from the final probationary report). • The consistent evidence from all the respondent’s witnesses of Mr Alamzeb’s resistance to their support and advice and his general disinterest in improving his understanding and practice of teaching concepts and techniques. • Mr Alamzeb received intensive support and assistance from many of the respondent’s witnesses in the period from early February 2000 until the termination of his employment. This level of support was far in excess of that which would normally be provided to a first year probationary teacher. • The strongly held view expressed in the evidence of several of the respondent’s witnesses about Mr Alamzeb’s personal and professional limitations. It was not a question of giving Mr Alamzeb further opportunity to become technically proficient, he was so lacking in fundamental knowledge that it was highly unlikely that further time would allow him to rectify his many deficiencies. Having considered long and hard all the matters averted to above, I find, on balance, that Mr Alamzeb’s termination was harsh, unjust or unreasonable. I do not think it can be said that Mr Alamzeb was given a “fair go” overall – and this is not to belittle the sincere efforts of many of the respondent’s witnesses during early 2000. The fact is that Mr Alamzeb effectively “slipped through the net” of support and supervision provided to probationary teachers as (to continue the analogy) a “safety net” to ensure minimum standards, for the first nine months of his probation. Why this happened is unclear, but even if that situation was partly caused by Mr Alamzeb’s representation of himself as a skilled teacher (not requiring the usual assistance to be given a probationary teacher), the fact remains that provision of such support (as was normal for a probationary teacher) was both a benefit Mr Alamzeb was entitled to expect, and an obligation the respondent failed to fulfil, for the majority of Mr Alamzeb’s probation. Although the respondent’s decision to terminate Mr Alamzeb’s appointment had substantive merit, and appears fully justified based upon Mr Alamzeb’s capacity and attitude at the time of his termination, this must be viewed in the context of the fact that Mr Alamzeb was denied the opportunity of the usual assistance and assessment regime available to other probationary employees and by which they were judged. -- 18 of 21 -- 382 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 I found the various considerations to be weighed were very closely balanced, but I do think that, however marginally, the scales tip in Mr Alamzeb’s favour, and that, for the reasons I have just outlined, the termination was harsh, unjust or unreasonable. Having reached this conclusion, as a matter of completeness, I record that the problems with the notice of termination, it’s delivery and lack of payment in lieu also tipped the balance in favour of the finding (although only to a marginal degree). These factors would certainly not have been decisive in the absence of the other considerations above. Remedy Having determined that Mr Alamzeb’s termination was, in all the circumstances, harsh, unjust or unreasonable I now turn to the issue of remedy. A combined reading of s. 78 and s. 79 of the Industrial Relations Act 1999 reveals that I must first consider the options of reinstatement or re- employment before considering monetary compensation as a remedy. I am only entitled to consider granting compensation if I consider that firstly, reinstatement and secondly, re-employment, would be impracticable. Is Mr Alamzeb’s reinstatement or re-employment impracticable? The word “impracticable” – “. . . requires and permits the court to take into account all of the circumstances of the case relating to both the employer and the employee, to evaluate the practicability of a reinstatement order in a common sense way. If a reinstatement order is likely to pose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer’s business, it may be impracticable to order reinstatement notwithstanding that the job remains available. [I]t is important to note the Parliament stopped short of requiring . . . reinstatement to be impossible.”. (Nicolson v Heaven and Earth Gallery Pty Ltd 126 ARL 233 at 244 per Wilcox CJ). “But, although ‘impracticable’ does not mean ‘impossible’, it means more than ‘inconvenient’ or ‘difficult’.”.(Liddell v Lembke (t/a Cheryl’s Unisex Salon) (1994) 56 IR 447 at 466 per Wilcox CJ and Keely J). Having considered all the evidence, I find that reinstating or re-employing Mr Alamzeb at the Isis school, or at any other school within the Education Queensland system, would be impracticable in the fullest meaning of the term. I am convinced that Mr Alamzeb’s deficiencies as a teacher, combined with his particular personality traits (as amply demonstrated throughout the hearing) would make returning him to a teaching role unworkable for any employer with an obligation to provide the standard of education required of Education Queensland. The evidence is replete with examples in support of this view and these are well summarised in the written submissions of the respondent (Exhibit 234). Having heard and considered the evidence, I accept all these examples. The instances mentioned are voluminous and it would be excessive to exhaustively canvass them. However, to summarise, my view that reinstatement or re-employment is impracticable rests on the following bases:– • Mr Alamzeb exhibits a disturbing shortfall in many areas of competence vital to teaching (as demonstrated by his inability to – adequately control behaviour of students; develop credibility with and respect from students; discipline students appropriately; reward students appropriately; accurately assess students’ abilities; plan and prepare curriculum content, lessons, learning resources and exams; mark exams and grade students; deliver lessons or utilise appropriate teaching strategies). He is therefore unable to adequately provide for the learning needs of his students, or even to ensure their behaviour over the course of a lesson. • Mr Alamzeb shows a total lack of self-awareness or capacity for self-evaluation and change. Despite concentrated feedback on areas requiring improvement, and support through example and attempted modelling, Mr Alamzeb consistently refused to accept his shortcomings, choosing instead to be defensive and find reasons why things were not his fault or could not be done in alternative ways. Mr Alamzeb failed to take on board well-meant advice and guidance given for his improvement, viewing it as undermining and threatening, rather than constructive and aimed at helping him. Beyond this, Mr Alamzeb actually demonstrated an attitude of passive hostility toward, or at least disinterest in, attempts to supplement his knowledge and abilities (not sticking to devised lesson plans, not staying to finish work he was being assisted with, not staying to observe the end of a lesson, not staying to the end of a seminar, and so on). The objective result was that Mr Alamzeb was unable to improve his performance despite intensive assistance. • Mr Alamzeb demonstrates a significant lack of what I would term “general interpersonal skills”. He fails to listen, he is concerned only with putting his own case, he can be disingenuous and he can appear both arrogant and rude (although these last may well be unintended). (The transcript of the proceedings contains numerous examples of just this point. Mr Alamzeb refused to listen to, or accept guidance or direction from myself. He repeatedly argued his point of view after it had been ruled inadmissible, irrelevant or out of order. Some matters were raised three or four times. A minimum of twenty to thirty minutes was spent in this way on most days of the proceedings). • Mr Alamzeb lacked regard for both the intelligence of his students and the opinions of the other teachers at Isis and, unfortunately, this was made obvious to them. The evidence shows he was reluctant to deal with parents of students, woefully failed to develop a constructive rapport with his classes and alienated many of the teaching staff who were initially quite predisposed to help him. As a result, (apparently) the students and at least those of the teachers at Isis who gave evidence at the hearing, feel quite negatively toward Mr Alamzeb. Further, unless Mr Alamzeb can radically change both his attitude and personality, it seems likely to me that he would engender the same response again in another school environment. From my observations of him, and my experience with him during the trial, I do not think that he is capable of making that change. • Mr Alamzeb was either unable or unwilling to comply with basic school policies and procedures (vis – the behaviour management policy, the procedure for preparation of special needs students’ resources, and so on), causing problems with administration, resource allocation and behaviour management systems at Isis. • Mr Alamzeb has patently lost any belief he may once have had in the good faith of the respondent. To illustrate (and these are but a few of many particular examples):– -- 19 of 21 -- 10 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 383 * Mr Alamzeb repeatedly accused the respondent (through Ms Collins, Ms O’Neill and other teachers) of lying about various events, inventing records, backdating correspondence and removing documents from his personal papers, among other instances of calculated deception. * Mr Alamzeb accused the respondent (through its teachers, particularly Ms Collins) of racial discrimination. * Mr Alamzeb said Ms Collins intimidated and harassed him, deliberately set out to “fail” him, and instigated a school wide plot inducing other teachers and students to make complaints about him, in order to discredit him. * Mr Alamzeb denied receiving the support and assistance he felt he needed to improve and claimed his approaches for assistance were not welcomed. When he was assisted he viewed the other teachers’ interventions as threatening and part of Ms Collins’ plan to marginalise and undermine him. * Mr Alamzeb stated he felt “too afraid” to ask the Principal, Deputy Principal or the HODs for assistance with work issues, and too constrained in the work environment to speak up – such as when he could not see an overhead during a presentation. Although none of these allegations were borne out by the evidence, they are important in showing the tenor of Mr Alamzeb’s feelings towards and beliefs about the respondent, or, at least, what he was prepared to say about it in order to advance his case. • The respondent has also lost all trust and confidence in Mr Alamzeb. This is apparent in almost every line of the witness statements and oral evidence of all the respondent’s witnesses. Again, to canvass only very briefly the reasons for this loss of trust:– * Mr Alamzeb’s abilities fell far below what the respondent had been led to expect, to the point that the respondent had serious reservations about his competence. * Mr Alamzeb was hostile to and dismissive of attempts to help him improve his performance, and was unable to improve even after intensive support. * Mr Alamzeb appeared disinterested in putting in the effort required to raise the standard of his work. * Mr Alamzeb, on several notable occasions during the course of early 2000, engaged in acts which bring into question his reliability as a teacher and whether the respondent can trust him unless he is constantly supervised, e.g. giving actual examination questions as exam preparation and grading student results incorrectly. These incidents could, on one view of the facts, be regarded as a deliberate attempt by Mr Alamzeb to manipulate his class results, so as to cast his teaching abilities in a more favourable light. * Mr Alamzeb appears unaware of the bounds and requirements of professional behaviour, e.g. he instituted a student survey which polled his class on matters such as whether they felt they learned anything during his class, could understand his accent, and would prefer to go back to their previous teacher. * Generally, over the course of the sixteen day hearing, much of Mr Alamzeb’s testimony was evasive as to facts and occurrences and reflective of his contempt for the efforts of those teachers who tried to help him. Often Mr Alamzeb accused the respondent’s witnesses of lying, or went even further by raising irrelevant or personal matters in his attempts to discredit them. (For example, his clumsy and repeated attempt to discredit Mr Frizzell by stating – despite evidence from a handwriting expert to the contrary– that he, Mr Alamzeb, had completed student profiles because Mr Frizzell had failed to do so). The loss of trust between the parties is such as to make a continuing working relationship impracticable. As the Full Court of the Industrial Relations Court of Australia said in Perkins v Grace Worldwide ((1997) 72 IR 186 at 191):– “Trust and confidence is a necessary ingredient in any employment relationship…the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based … …In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are questions of degree. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.” In this case, while Mr Alamzeb’s loss of faith in the respondent may not be soundly based, I think that the respondent’s lack of trust and confidence in Mr Alamzeb is entirely justified by the evidence. I think that in these particular circumstances it is highly unlikely that the parties will ever be able to re-establish sufficient mutual trust and confidence to restore a viable and productive employment relationship. It appears that, and not unreasonably, the respondent has lost confidence in Mr Alamzeb’s capacity to act in a competent, rational and professional manner. This lack of confidence will, of necessity, follow Mr Alamzeb notwithstanding he may be removed from Isis and placed at another school. His actions at Isis, and during the course of this case, demonstrate that he cannot be trusted by the respondent. In my view the factors above make Mr Alamzeb’s return, either to his prior role at Isis, or to another role in another school, more than just difficult or inconvenient, but unacceptably problematic for the respondent. The respondent has an obligation to provide quality teaching and education to students. The students in Mr Alamzeb’s classes were receiving neither. The respondent (through its individual teachers) was directing a disproportionate amount of time and effort into trying to assist Mr Alamzeb and moderate the effects of his substandard teaching on his students (with limited success). All indications to the date of trial were that this effort would need to be continuing. It would not be a short term proposition (cf Queensland Teachers Union of Employees v Department of Education (2000) 165 QGIG 767 at 769 where the difficulties caused by reinstatement were expected to be only short term), but may be required indefinitely. Evidence was given that Mr Alamzeb was so lacking in fundamental skills that his progress to an appropriate level of competence was not just a matter of more time and practice. Compensation Having determined that Mr Alamzeb’s reinstatement or re-employment is impracticable I turn to consider the only other possible remedy, monetary compensation. -- 20 of 21 -- 384 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 August, 2001 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. In determining that amount I have also taken into account Mr Alamzeb’s apparent unfitness for work until October 2000, his limited attempts to mitigate his loss and the length of time he may be out of work before gaining suitable alternative employment. Such amount, calculated at Mr Alamzeb’s rate of pay at the time of his termination is to be paid to him within twenty-two days of the date of release of this decision. I determine and order accordingly. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr M. Alamzeb the applicant appeared on his own behalf. Released: 26 July 2001 Mr C. Murdoch, of Counsel, instructed by Mr F. Pulsford of Crown Law, with Ms L. Collins for the Department of Education. -- 21 of 21 --