INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Porche v State of Queensland (Department of Education) [2022] ICQ 003	
PARTIES:	LETITIA JANE PORCHE
(appellant)
v
STATE OF QUEENSLAND (DEPARTMENT OF EDUCATION)
(respondent)	
FILE NO/S:	C/2021/10	
PROCEEDING:	Appeal	
DELIVERED ON:	8 February 2022	
HEARING DATE:	9 June 2021	
MEMBER:	Davis J, President	
ORDER/S:	The appeal is dismissed	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – WHAT CONSTITUTES – Where the appellant was a teacher employed in a State (Department of Education) Primary School – where complaints about the appellant’s performance were received – where a process of managing unsatisfactory performance was undertaken – where the Department concluded that the appellant could not be managed – where the appellant was dismissed – where the appellant brought an unfair dismissal claim – where the Queensland Industrial Relations Commission (QIRC) dismissed the claim – where the appellant appealed the decision of the QIRC – where the grounds of appeal were many and varied – whether any grounds show error of law or excess or want of jurisdiction – whether any other grounds identified 
Industrial Relations Act 2016
Industrial Relations (Tribunals) Rules 2011, r 139
Public Service Act 2008, s 187, s 188, s 189	
CASES:	Briginshaw v Briginshaw (1938) 60 CLR 336
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 
Chambers v Jobling (1986) 7 NSWLR 1
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Erian v State of Queensland (Department of Agriculture and Fisheries) [2020] ICQ 012
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Norbis v Norbis (1986) 161 CLR 513
Porche v State of Queensland (Department of Education) [2021] QIRC 131
R v Bassi [2021] QCA 250
Re Minister for Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500	
APPEARANCES:	L Porche as self-represented appellant
H Blattman of counsel instructed by Crown Law for the respondent	

[1]	
[1]	Ms Letitia Jane Porche is a school teacher who was dismissed from her employment by the State of Queensland.  She appeals against a decision of Industrial Commissioner Power made in the Queensland Industrial Relations Commission (QIRC) dismissing her application for reinstatement.
Relevant statutory provisions
[2]	Ms Porche’s employment was governed by the Public Service Act 2008 (the PS Act).
[3]	The PS Act provides a disciplinary regime.  Relevantly to the present case, ss 187, 188 and 189(1) provided as follows:
“187	Grounds for discipline
(1)	A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
(a)	performed the employee’s duties carelessly, incompetently or inefficiently; or
(b)	been guilty of misconduct; or
(c)	been absent from duty without approved leave and without reasonable excuse; or
(d)	contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
(e)	used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
(ea)	contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
(i)	failing to disclose a serious disciplinary action; or
(ii)	giving false or misleading information; or
(f)	contravened, without reasonable excuse—
(i)	a provision of this Act; or
(ii)	a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
(iii)	a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
(2)	A disciplinary ground arises when the act or omission constituting the ground is done or made.
(3)	Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)—
(a)	a public service employee under section 187A; or
(b)	a former public service employee under section 188A.
(4)	In this section—
misconduct means—
(a)	inappropriate or improper conduct in an official capacity; or
(b)	inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
Example of misconduct—
victimising another public service employee in the course of the other employee’s employment in the public service
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.
188	Disciplinary action that may be taken against a public service employee
(1)	In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
Examples of disciplinary action—
•	termination of employment
•	reduction of classification level and a consequential change of duties
•	transfer or redeployment to other public service employment
•	forfeiture or deferment of a remuneration increment or increase
•	reduction of remuneration level
•	imposition of a monetary penalty
•	if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments
•	a reprimand
(2)	If the disciplinary action is taken following an agreement under section 187A(4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
(3)	However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
(4)	Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
(a)	must not be more than half of the amount payable to or for the employee in relation to the payment; and
(b)	must not reduce the amount of salary payable to the employee in relation to the period to less than—
(i)	if the employee has a dependant—the guaranteed minimum wage for each week of the period; or
(ii)	otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
(5)	In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
(6)	An order under subsection (1) is binding on anyone affected by it. …
189	Suspension of public service employee liable to discipline
(1)	The chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law. …”
[4]	Division 2 of Part 2 of Chapter 8 of the Industrial Relations Act 2016 (IR Act) concerns unfair dismissals.  Section 316, 317 and 320 relevantly provide:
“316	When is a dismissal unfair
A dismissal is unfair if it is harsh, unjust or unreasonable.
317	Application for reinstatement
(1)	If it is claimed that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this part.
(2)	The application must be made within—
(a)	21 days after the dismissal takes effect; or
(b)	if the commission allows a further period on an application made at any time—the further period.
(3)	An application may be made by—
(a)	an employee; or
(b)	with the employee’s consent, an organisation whose rules entitle it to represent the employee’s industrial interests.
(4)	The registrar may reject an application if the registrar considers the dismissed employee is a person mentioned in section 315(1) as a person to whom section 316 does not apply.
(5)	If the registrar rejects the application, the registrar must, by written notice, notify the applicant—
(a)	that the application has been rejected; and
(b)	of the reasons why the registrar considers the dismissed employee is a person mentioned in section 315(1) as a person to whom section 316 does not apply.
(6)	The applicant may, by written notice given within 21 days after the registrar’s notice is received, inform the registrar that the applicant wishes the application to proceed.
(7)	If the applicant does so, the commission must deal with the application, despite the registrar’s rejection.
(8)	The commission and registrar must deal with an application as quickly as possible…
320	Matters to be considered in deciding an application
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 claim about the conduct, capacity or performance; and
(d)	any other matters the commission considers relevant.”
[5]	Section 321 of the IR Act empowers the QIRC to order reinstatement and s 322 authorises the making of compensation orders.
[6]	Jurisdiction to consider the reinstatement application and make orders under ss 321 and 322 of the IR Act vests in the QIRC from whom an appeal lies to this Court.  An appeal from the QIRC to this Court is provided by s 557 of the IR Act.  That provides:
“557	Appeal from commission
(1)	The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
(a)	error of law; or
(b)	excess, or want, of jurisdiction.
(2)	Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
(a)	error of law; or
(b)	excess, or want, of jurisdiction.
(3)	However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
(4)	If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
(5)	In this section—
commission means the commission, other than the full bench constituted by the president and 2 or more other members.” (emphasis added)
[7]	Section 557(1) limits the grounds of appeal to errors of law or excess or want of jurisdiction.  Section 557(2) provides for an appeal on other grounds by leave of the Court.  The limits of the discretion to grant leave are prescribed by s 565 of the IR Act, which provides:
“565	When leave for appeal must be given
If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—
(a)	must give leave if it is satisfied it is in the public interest to do so; and
(b)	may not give leave other than under paragraph (a).” (emphasis added)
Background
[8]	As is often the way in cases such as these, the Industrial Commissioner was faced with many contested factual issues. Complaint about the resolution of those issues by the QIRC form the basis of many of Ms Porche’s grounds of appeal.  It is necessary to record a broad overview of the chronology of the events. 
[9]	Ms Porche worked as a Year 1 class teacher at Coomera State School, commencing in January 2015.  She completed Term 1 and took leave in Term 2. She returned to teaching at the school in Term 3.  Those administering the school became concerned with Ms Porche’s performance early in Term 3. Ms Shiree Salazar, the Deputy Principal, received expressions of concern from parents about Ms Porche.  Ms Porche hotly disputes the substance of those expressions of concern.  At this point, it is the fact that parents expressed concern which is relevant as that caused other events.
[10]	Those concerns led the Principal of the school, Mr Chris McMillan, to conduct a classroom observation of Ms Porche.  He provided feedback to her.
[11]	During the remainder of 2015 and Term 1 of 2016, Ms Salazar and Mr McMillan received various reports from teaching staff, parents and students, including that Ms Porche:
“•	was leaving the classroom to go and heat up food and eating it during teaching time;
•	failed to mark the roll on 1 September 2015, 9 and 20 November 2015 and 12 February 2016;
•	failed to properly tidy the classroom to make it ready for the cleaner on 1 September 2015;
•	refused to take phone calls from another staff member who was trying to give the Applicant a message about a Year 1 student needing to catch a bus home that day;
•	yelled at the students on 25 February 2016;
•	refused permission for a student to go to the toilet, after which he wet himself;
•	failed to give a Year 1 student his lunch as the teacher on duty on 18 November 2015;
•	failed to enter records into OneSchool on numerous occasions;
•	failed to notice children missing from her class, between 9 December 2015 and 8 February 2016;
•	presented to school on her day off on 26 February 2016, without telling the other classroom teacher and disturbed the class following which Mr McMillan requested she leave the school and subsequently emailed her to communicate his expectation that she not attend on non-rostered days unless previously arranged with him; 
•	failed to show up for eating duty and playground duty on 3 March 2016;
•	failed to wear a hat and high visibility vest when on duty on 3 March 2016; and
•	failed to attend a staff meeting.”
[12]	Ms Salazar and Mr McMillan continued to hold concerns and met with Ms Porche on 24 March 2016.  What was put to her was a documented Informal Support Plan which was Stage 1 of a managing unsatisfactory performance (MUP) process. What had also been devised was a Support and Development Plan which is Stage 2 of the MUP process.
[13]	Ms Salazar and Mr McMillan were not satisfied with Ms Porche’s further performance so in November 2016, the Stage 2 process commenced. That was notified to Ms Porche in a meeting with Mr McMillan, Ms Salazar, Ms Annette Rose, who is the Principal Human Resources Consultant at the Department of Education, and a representative of the Queensland Teachers Union of Employees (QTU), Mr Jason Sperling.
[14]	Ms Porche was unable to work for the remainder of 2016 and was on sick leave for the whole of the 2017 school year.
[15]	Before returning to work in Term 1 of the 2018 school year, Ms Porche was required to undergo an independent medical examination to ensure her fitness for work.  That was conducted by Dr Duke, a psychiatrist, who ultimately reported that she was fit for work but thought she should work at a different school.  Ms Porche transferred to the Coombabah State School.
[16]	Mr Murray Gleadhill is the Principal of the Coombabah State School and his Deputy Principal is Ms Tina Flesser.  They resolved to continue the MUP process but thought that it should be delayed so as to commence after 20 days, enabling Ms Porche to settle into her new work environment.
[17]	Mr Gleadhill and Ms Flesser began documenting concerns which arose over the 20 day period before the MUP process commenced. They included:
“•	the Applicant was distracted and typing on her phone during a staff meeting on 5 February 2018;
•	the Applicant was on her phone typing during Ms Flesser’s informal classroom visit and was not engaging with students on 12 February 2018;
•	students reported that the Applicant had been yelling at them, was on her mobile phone talking about personal matters during class time, was crying in class and not engaging with the class on 13, 14, 16 and 17 February 2018;
•	Mr Gleadhill observed on 12 February 2018, that the Applicant was on her phone during class teaching time after having been advised that this was impermissible;
•	on 14 February 2018, the Record of Interactions noted that a parent reported that the Applicant had marked her child’s homework incorrect when it was correct;
•	it was reported to Mr Gleadhill on 15 February 2018 that the Applicant had failed to make the classroom tidy such that the cleaner was unable to clean properly after school;
•	on 15 February 2018, the Applicant failed to attend a lunchtime meeting with Mr Gleadhill and told Ms Flesser that she did not want to meet with him; and 
•	on 19 February 2018, the Applicant refused to attend a morning meeting with Mr Gleadhill and Ms Flesser, stating that she was not going to the meeting, that it was a manipulation, and that she was not on a MUP process.”
[18]	In February 2018, Stage 2 of the MUP process commenced. There were further complaints received about Ms Porche and the Regional Director, Mr John Norfolk, was involved by Mr Gleadhill.  
[19]	The findings on the Stage 2 MUP process included:
“•	four formal lesson observations, each being deemed ineffective;
•	failure to provide any detailed lesson plans to school administration;
•	receipt of seven parent complaints during Stage 2;
•	failure to observe students leaving her classroom for significant periods; failure to observe students from other classes being present in her classroom; and marking the roll incorrectly, all of which presents considerable risk to student safety and represents a serious breach of duty of care; and
•	failure to attend the weekly MUP progress meetings and further, when provided with feedback after each lesson, the Applicant either returned the lesson observation form or made comments such as ‘I’m doing a great job and that it’s just your opinion’.”
[20]	Stage 3 of the MUP process was commenced. This involved an assessment by two External Review Officers who were Ms Kate Bentley and Mr Michael Josey. The Stage 3 report given in March 2018 included the following:
“•	[the Applicant displayed] a lack of content knowledge, preparation and capacity to provide a basic structured session for learning.
•	the disconnect between Ms Porche and the students was significant, resulting in poor personal learning relationships, limited mutual respect, a breakdown in feedback and formative assessment practices, and chaotic routines.”
[21]	The matter was referred to the Board of Review which signalled the commencement of Stage 4 of the MUP process. Ms Porche was suspended from duty on normal remuneration on 13 March 2018. Ms Porche was absent due to health reasons and over that period, the suspension was discontinued.  
[22]	Referral to Dr Duke resulted in an opinion being expressed (on 25 February 2019) that resulted in the suspension being reinstated. His opinion was that Ms Porche was capable of participating in a disciplinary and performance management process. 
[23]	On 5 March 2019, the Board of Review resolved to send a show cause letter to Ms Porche as to why she should not be liable to discipline pursuant to s 187(1)(a) of the PS Act.
[24]	Various responses were offered by Ms Porche. Included in one response was the letter from Ms Porche’s treating psychiatrist, Dr Lotz. That letter (22 March 2019) expressed the opinion that Ms Porche was suffering from anxiety and depression and that the show cause process was exacerbating that condition.
[25]	On 4 April 2019, the Board of Review resolved that Ms Porche’s employment should be terminated and a show cause letter was sent to her. She responded. 
[26]	On 3 May 2019, the Board of Review recommended the termination of Ms Porche’s employment. However, Ms Porche was given the opportunity to make further responses.
[27]	Ms Porche made various further responses which included another letter from Dr Lotz (18 April 2019), submitted under cover of Ms Porche’s email of 13 May 2019.  Dr Lotz said: 
“Ms Porche has been struggling with issues related to what appears to be difficulties with her principal and deputy at school, it appears she has been unfairly singled out as she alerted them to safety issues related to students with learning and intellectual disabilities. 
In the time I have been treating Ms Porche on average once a month, she has struggled with trying to return to employment without undue harassment and difficulties.  She is currently on no medication.”
[28]	On 3 June 2019, Ms Porche’s employment was terminated. 
[29]	Ms Porche then filed an application in the QIRC seeking reinstatement.  
The proceedings in the Queensland Industrial Relations Commission 
[30]	The hearing of Ms Porche’s application commenced in the QIRC on 22 February 2021.  Ms Porche represented herself.  The State was represented by private counsel, Ms Blattman who also appeared on the appeal. The QIRC heard evidence and submissions over five days. 
[31]	The witnesses (including Ms Porche) made affidavits which were filed and constituted their evidence-in-chief. The witnesses were cross-examined. Those witnesses were:
(a)	Ms Porche;
(b)	Ms Salazar;
(c)	Mr McMillan;
(d)	Ms Flesser;
(e)	Mr Gleadhill;
(f)	Ms Bentley;
(g)	Mark John Anghel;
(h)	Mr Norfolk;
(i)	Desmond Kluck;
(j)	Dion Coghlan. 
[32]	Mr Anghel is an Officer of the QTU.  He sat as the union’s representative on the Board of Review.
[33]	Mr Kluck was, at relevant times, employed by the State in the Department of Education as Executive Director within the Human Resources Branch. He chaired the Board of Review who sat on Ms Porche’s case. 
[34]	Mr Coghlan is the Assistant Director-General of Human Resources in the Department of Education. It was his decision to terminate Ms Porche’s employment upon the recommendation of the Board of Review. 
[35]	There were a large number of documentary exhibits which were tendered in three volumes. The relevance of each of the documents was explained in the schedule which was also tendered.  
[36]	To the extent that it is necessary, I shall deal with the evidence when considering the various grounds of appeal.
The Queensland Industrial Relation Commission’s decision 
[37]	The decision of the QIRC, on its face, appears completely conventional.
[38]	After referring herself to the relevant legislative provisions, the Industrial Commissioner dealt with the basic chronology which is supported by the various documents in the bundle. 
[39]	The Industrial Commissioner then identified the issues which had been defined by the parties to the litigation before turning to an analysis of the evidence of the various witnesses who she regarded as critical, namely Mr McMillan, Ms Salazar, Mr Gleadhill, Ms Flesser, Ms Bentley and Ms Porche, and made findings. 
[40]	A significant issue raised by Ms Porche was whether procedural fairness had been afforded to her.  The Industrial Commissioner dealt with this at length.  Procedural fairness arose for consideration in various ways. The Industrial Commissioner identified the four facets of Ms Porche’s complaints as to procedural unfairness in this way:
“[97]	The Applicant made submissions that the MUP process involved a number of procedural failures that rendered the process unfair. These submissions relate primarily to the following, which are considered below:
•	proceeding with the show cause process despite contrary medical advice;
•	not allowing the Applicant to test the validity of each complaint;
•	the MUP outcome being pre-determined; and
•	the Board of Review process.”
[41]	The Industrial Commissioner then considered each of the four respects in which Ms Porche alleged procedural fairness had been denied.
[42]	After dealing with the four specific complaints about procedural fairness, the Industrial Commissioner then considered more general complaints, referred herself to legal principles stated in Re Minister for Multicultural Affairs; Ex parte Lam, and then concluded:
“[136]	In applying the conception of procedural fairness as a concept to avoid practical injustice, I am satisfied that the Applicant suffered no practical injustice in the determination of this matter. All stages of the MUP process were undertaken in a procedurally fair manner, with the Applicant advised of each step throughout the lengthy process. The Board of Review gave the Applicant the opportunity to show cause with respect to the allegation and the proposed disciplinary penalty, ensuring no decisions were made without first providing the Applicant with the opportunity to be heard.”
[43]	The Industrial Commissioner then turned to the question of whether the decision to terminate Ms Porche’s employment was harsh, unjust or unreasonable.  She directed herself to the relevant legal principles and concluded that issue against Ms Porche.
The appeal
[44]	Ms Porche filed her application to appeal on 13 May 2021. Paragraph 5 of the proforma application provides for the articulation of the grounds of appeal. There, Ms Porche wrote, “See attached sheet”.  What was attached is a 19 page document with paragraphs numbered 1 to 45.  There is no paragraph numbered “35”, so there are 44 paragraphs, each of which Ms Porche says contains an individual ground.
[45]	The paragraphs of Ms Porche’s document do not contain grounds of appeal drawn in the traditional way. Each paragraph contains a number of allegations and propositions, and more resemble submissions than grounds of appeal. That is understandable as Ms Porche is not legally trained, but she has not complied with the Rules which require a concise statement of grounds of appeal.
[46]	Submissions were filed by the respondent which sought to categorise Ms Porche’s complaints made in the various grounds as:
“a)	by overriding a medical expert to justify the termination of employment;
b)	by misinterpreting and/or failing to consider relevant evidence;
c)	by making findings without sufficient evidence or failing to undertake her own inquiries to garner evidence;
d)	by preferring the evidence of, or giving more weight to, the Respondent’s witnesses;
e)	by showing bias against the Appellant;
f)	by failing to take into consideration the Appellant’s personal circumstances; or
g)	by failing to understand and accept the Appellant’s submissions.”
[47]	The State proposed that the appeal be heard on the basis that Ms Porche’s grounds were the seven categories identified by it.  Ms Porche rejected that approach.  When directed to consider whether she pressed all grounds of appeal, she said she did.
[48]	The appeal therefore proceeded on the basis that there were 44 grounds of appeal with each paragraph of the document attached to the application to appeal being treated as a separate ground.
[49]	Ms Porche filed various written submissions.  These submissions were, with respect, long, repetitive and, at times, difficult to relate to the grounds of appeal.
[50]	While Ms Porche represented herself and was doing her best, there are limits. The State must be able to identify the issues it has to deal with on the appeal. I have therefore treated the document exhibited to the application to appeal as defining the only grounds of appeal.
[51]	It is clear that most of Ms Porche’s complaints are as to factual findings. She demonstrated, with respect, a general lack of appreciation of the appeal process and, in particular, the fact that appeals are limited to grounds based on an error of law or want or excess of jurisdiction except by leave. As a self-represented litigant in what was a factually complicated case, it is understandable that she had difficulty presenting her appeal in a coherent way consistently with the legislation.  Ms Porche clearly though wished to pursue all avenues of appeal including seeking leave to raise errors of fact even though that course is severely limited by s 565 of the IR Act. 
[52]	The appropriate approach was to look at each of the 44 grounds of appeal and see if error is identified and, if so, give Ms Porche an opportunity to apply for leave to mount a ground on that error if leave is necessary. The State agreed with that approach.
[53]	However, there could be no suggestion that Ms Porche was entitled to have her case reheard de novo by the Court.  Findings of fact based on the assessment of credibility of witnesses may only be set aside where the finding is “glaringly improbable” or “contrary to compelling inferences”. 
The 44 grounds of appeal
[54]	Ground 1 is in these terms: 
“1.	While there was not obvious Error in law beside the Commissioner over-riding the recommendation of my medical expert Dr Lotz, the Commissioner failed to consider factors leading to the process and she misinterpreted many of the facts making her judgements wrong and as a result she was in error when she concluded dismissing my application for reinstatement in this case and this judgement was therefore harsh, unjust, and unreasonable.”
[55]	This is just a broad allegation that the Industrial Commissioner failed to consider factors and that her judgment was wrong.  There are no particulars within this ground of the actual error other than that the Industrial Commissioner did not follow the opinion of Dr Lotz. Dr Lotz’s report and the Industrial Commissioner’s findings about it are the subject of other grounds. Many other particularised complaints appear in the grounds which follow ground 1. Ground 1 need not be separately considered.
[56]	Ground 2 is in these terms: 
“2.	The Commissioner erred at paragraph 139 when she expressed that I was not subject to an excessive workload or administration procedures.  In making this determination she does not appear to have considered evidence presented as to the additional administrative burden presented by documenting usual classroom procedures for the purpose of the MUP.”
[57]	Paragraph [139] of the Industrial Commissioner’s decision is:
“[139]	The Applicant submits that she was overloaded with excessive administration procedures, excessive scrutiny and excessive workload. From the evidence before me, the greater level of scrutiny was a reasonable response to concerns raised by students, parents and colleagues regarding the Applicant's performance. I am not persuaded that the Applicant was subject to excessive administration procedures or workload. It is a reasonable expectation that teachers will draft lesson plans and in the Applicant's case she was provided with time away from the classroom to undertake this work. It seems to me that the Applicant viewed requirements such as the provision of lesson plans as an unnecessary addition to her job, rather than as tools to assist her to perform her usual job to a satisfactory standard.”
[58]	A decision-maker is not obliged to refer to every matter that is put by way of submission. The reasons of a decision-maker must be read sensibly and not overcritically. 
[59]	The findings at paragraph [139] have to be viewed in the light of other findings where the Industrial Commissioner found that Ms Porche was being given proper support.  These findings are made at paragraphs [62], [64], [65] and [75] of the Industrial Commissioner’s reasons. 
[60]	The comments at paragraph [139] include reference to the preparation of “draft lesson plans”.  The Industrial Commissioner referred to lesson plans in paragraph [76] of the judgment which is in these terms: 
“[76]	It is clear from the Applicant's evidence that she felt enormous pressure as a consequence of the MUP process. What is not clear, however, is the nature of the work that she claims was done outside of normal working hours. There was no evidence of the output associated with working such extensive hours. One example is the production of routine documents such as lessons plans. The evidence is that the Applicant did not produce lessons plans as required by the MUP process. In the minutes of one meeting with Mr Gleadhill and Ms Flesser, the Applicant is noted as saying the following in response to queries about why she had not produced a lesson plan for a particular lesson:
•	She does not have separate planning for the English lesson
•	She goes with the flow
•	There is no lesson plan because I don’t have time”
[61]	What is clear from paragraph [76] is that the Industrial Commissioner understood Ms Porche’s evidence that the MUP process itself was causing her difficulties.  There is nothing to suggest that the Industrial Commissioner overlooked this aspect when writing what she did in paragraph [139].  
[62]	There is no substance in ground 2. 
[63]	Ground 3 is in these terms: 
“3.	The Commissioner erred in paragraph 94 that it is not plausible that multiple educators might collude to misrepresent my performance. In making this determination the Commissioner appears to not have considered that there may have been personal antagonism at play including resentment.  I did point this out to the Commissioner in my submissions by highlighting the onslaught of incorrect emails from teaching partner Jackie Larson’s and my teaching peers that Shiree Salazar had befriended in a very social way.  In my extension of argument, I highlighted how Jackie Larson’s sent an email to deputy principal Shiree Salazar highlighting her dislike that I had contacted the union and discussed her poor treatment of me in the workplace.”
[64]	Ground 3 refers to paragraph [94] of the judgment, and that is: 
“[94]	There is a consistent pattern throughout the MUP process of the Applicant attempting to discredit anyone who raised concerns about her behaviour or teaching performance, rather than addressing the substance of the complaint. It is simply not plausible that multiple educators of varying seniority across different schools colluded to misrepresent the Applicant's performance deficiencies.”
[65]	Paragraph [94] of the judgment consists of a finding of fact and then the drawing of an inference. 
[66]	The finding of fact is that Ms Porche attempted to discredit anyone who raised concerns about her behaviour or teaching performance rather than addressing the substance of the complaint.  The inference which is then drawn is that it is unlikely that all those involved in the MUP process would collude against her. 
[67]	The finding at paragraph [94] cannot be looked at in isolation.  At paragraph [90] of the reasons, there is a reference to Ms Salazar preparing spreadsheets concerning the class make-up. This was of concern to Ms Porche as she said that her class was not balanced. Ms Porche refused to take up Ms Salazar’s offer to discuss the spreadsheet.  At paragraph [91] the Industrial Commissioner refers to Ms Porche’s criticism of Ms Salazar and her belief that Ms Salazar was manipulating parents and children to make complaints. At paragraph [92] there is reference to the evidence of complaints made by parents and children all alleging that Ms Porche was yelling at students.  At paragraph [93] there is reference to complaints by a number of teachers across the two different schools and Ms Porche’s dismissal of those complaints as an attempt to “gang up” on her.
[68]	The evidence, as very carefully analysed by the Industrial Commissioner, showed that both the principal (Mr McMillan) and the deputy principal (Ms Salazar) of Coomera State School expressed serious concerns about Ms Porche’s performance and behaviour as did Mr Gleadhill and Ms Flesser, the principal and deputy principal respectively of Coombabah State School. An external review by Ms Bentley and Mr Josey was conducted. Ms Bentley was a former principal and now regional director. That review was also critical of Ms Porche, criticism which Ms Porche appeared not to accept.
[69]	The point was made at paragraph [96] of the reasons in this way:  
“[96]	The Applicant appears to have adopted a perspective that resulted in an inability to take on feedback from others in the workplace. It seems that at no stage of the lengthy performance management process did the Applicant show any capacity for reflection on her performance. This is despite concerns raised by the Principals, Deputy Principals, co-teachers, and other staff across the two schools. I note the Applicant's submissions that she would not internalise their views. The difficulty with that mindset is that it confirmed that her performance was not going to improve as the Applicant did not believe it needed to improve.”
[70]	Not only is the inference which was drawn at paragraph [94] obviously open to the Industrial Commissioner to draw, it was, in my view, inevitable that she should draw it.  There is no substance in ground 3.  
[71]	Ground 4 is: 
“4.	At paragraph 113 the Commissioner appears to find the factual basis of parent complaints are not relevant when assessing the reasonableness of the response to the allegations that were put to me as part of the MUP.  However, at paragraph 108 the Commissioner notes that I was generally dismissive of complaints when they are raised.  The Commissioner does not appear to consider the appropriateness of my reaction in the circumstances where the complaint is not based on fact.”
[72]	Ground 4 refers to paragraphs [108] and [113] of the reasons.  They are: 
“[108]	The Applicant was made aware at the time that another student had been moved out of her class and that the carer had made allegations that the Applicant yelled regularly. The Applicant was aware that another student's mother had raised concerns regarding her lack of learning extension. Ms Salazar gave evidence that the Applicant was generally dismissive of the complaints when they were raised. 
…
[113]	I accept that in the circumstances of certain complaints it was reasonable to put the complaint to the Applicant in generalised terms rather than specific details. One such example is the matter in which parents raised concerns that the Applicant was unapproachable. Considerations of whether the Applicant was in fact 'unapproachable' are not particularly relevant, with the focus on ensuring that the Applicant was aware of the concerns generally and support given to improve her dealings with parents. I accept the Respondent's submission, that to allow the Applicant to interrogate each parent would have been inappropriate in the circumstances. The course of action taken by the Respondent to put some complaints to the Applicant in general terms to ensure the substance could be addressed was entirely reasonable.”
[73]	There is no inconsistency between paragraphs [108] and [113] of the Industrial Commissioner’s reasons. Again, these paragraphs must be looked at in proper context. 
[74]	Both paragraphs appear under a heading “Opportunity to test the validity of individual complaints”.  At paragraph [104] of the judgment, the Industrial Commissioner noted Ms Porche’s submission that not every complaint was put to her at the relevant time so that she could test its validity. This, Ms Porche said, denied her procedural fairness.  At paragraph [106] it was recorded that a number of parent complaints had been put to Ms Porche at about the time they were made.  Some examples were given at paragraphs [106], [107] and [108] of the reasons.
[75]	Then at [109] the Industrial Commissioner recorded the evidence of Mr Coghlan.  Paragraph [109] is as follows: 
“[109]	The question was asked of Mr Coghlan by the Respondent whether every single complaint by student, parent and staff would usually be presented to a teacher. Mr Coughlan answered that it was a matter for each Principal to determine at a local level. However, in this matter he saw significant reflection on the performance process by a range of people, including principals, deputy principals, independent principals throughout the entire process. Mr Coghlan stated:
… What I expect to see is a process in which you have the concerns identified to you, whether individually or summated, and then you have an opportunity to demonstrate performance improvement over a range of period of times and in [the Applicant's] particular circumstances that was over an extended period of time, with extended support across two school settings by both the administrations teams of those two schools, and independent principals and deputies.”
[76]	That then led to findings at paragraphs [110] and [111] in these terms: 
“[110]	The evidence was that, depending on the nature of the complaints, parents were generally encouraged to raise their concerns with the teacher at first instance. I accept that this is not always appropriate, particularly in circumstances in which concerns have been raised about the manner of the teacher, as in this case.
[111]	The evidence from both schools indicate that the substance of every issue was raised with the Applicant throughout the process. I accept that the Applicant was also aware of most of the specific complaints through the regular meetings with school administration.”
[77]	It was against that evidence that the finding at [113] was made. That finding is that it was reasonable to put allegations in general terms provided that the substance could be addressed. There can in my view be no complaint about that finding. At paragraphs [115] and [116] these findings were made: 
“[115]	I accept that the substance of the complaints, and in most cases the exact complaints, were put to the Applicant at or soon after the time they occurred. However, even if the complaints that were not presented individually to the Applicant are excluded from consideration in this matter, it is clear that the Applicant was still unable to comply with the requirement that she maintain respectful collaborative relationships with parents and carers.
[116]	The evidence confirms that the performance issues were regularly put to the Applicant over a long period of time. The few individual complaints that were not put to the Applicant were of limited significance in the context of the entire process.”
[78]	The Industrial Commissioner’s reasoning is completely logical and there is no substance in ground 4. 
[79]	Ground 5 is in these terms: 
“5.	At paragraph 149 the Commissioner considers the appropriateness of consideration, it is particularly where my personal vulnerability regarding finances and mental health were readily perceived. There were other alternatives open to the review panel including extended leave or redeployment that made the decision to terminate harsh, unjust, and unreasonable.”
[80]	Paragraph [149] of the reasons is: 
“[149]	The Applicant made extensive submissions that the dismissal was harsh given the impact that the loss of employment would have on her personal circumstances. The Applicant made following submission:
The situation exposed me to further abuse in the home and resulted in the chain of causation of events that included the loss of my full-time parenting rights, marriage breakdown, financial hardship, loss of quality of life, loss of life goals including sporting and holiday goals, loss of time with my daughter and the achievement of her developmentally appropriate goals. The entire situation was unfair, unjust, unreasonable and it was too harsh to terminate me from my employment.”
[81]	The complaint in ground 5 is that there was no consideration of disciplinary action short of dismissal. Paragraph [149] of the reasons refers to personal hardship. The submission in ground 5 appears to be that personal hardship ought to have led to some outcome other than dismissal.  
[82]	From paragraph [150] of the judgment, the Industrial Commissioner embarks upon a train of reasoning which leads to the conclusion that the dismissal was not harsh, unjust or unreasonable.  That line of reasoning was: 
(a)	Ms Porche feels aggrieved by the termination of her employment given her personal and financial circumstances;
(b)	Ms Porche did not meaningfully engage with the MUP process or accept assistance to improve her performance: “the Applicant’s consistent refusal to accept that there was any basis for the continued complaints from students, parents and staff meant that the Respondent had no option after such a long period of deficient performance but to terminate her employment”;
(c)	Ms Porche was given notice that her performance was unacceptable and that she must improve;
(d)	she was afforded procedural fairness;
(e)	“… it would have been untenable to have permitted the Applicant to continue to teach in circumstances in which her conduct as reported by students, parents and staff posed a genuine risk to both student learning outcomes and wellbeing”; then concluded,
(f)	“In these circumstances, the dismissal of the Applicant from her employment was not harsh, unjust or unreasonable.”
[83]	Ultimately, that is a “value judgment” and is therefore a discretionary judgment where appellate interference is only justified where a House v The King error is shown. Error will be shown where a relevant consideration is not taken into account.  However, the Industrial Commissioner took into account the submission about Ms Porche’s personal circumstances, but concluded on all the evidence, and for reasons which appear sound, that the dismissal was the only appropriate outcome.  There is no substance in ground 5. 
[84]	Grounds 6 and 7 can be considered together.  They are: 
“6.	The Commissioner erred to understand how this process was an abuse of process and how it was my workplace right not to be subject to this workplace abusive process or victimisation, by failing to consider that the ‘veiled support and performance process’ was only placed on me after returning to work at a new school and being a new mother, even though I have taught for 19 years and these processes were only placed on me when I was subject to extremely bad class dynamics at both schools(As was argued in my facts and contentions submissions and my arguments and extension of argument submissions), in failing to understand and consider how the specifics of the class dynamics combined with the issue of discriminately being exposed to these stressful (abusive) processes upon returning to a new work situation after becoming a mother, effected all my rights as well and my performance in the workplace, it appears that the Commissioner’s termination of my employment was harsh, unreasonable, and unjust. 
7.	The Commissioner erred to consider and understand that I worked for my university degree. I waitressed all the way though it and I worked hard to pay off my university FEES all by myself as documented in by submissions and explained orally in my hearings and mentions. As mentioned in my submissions and mentions, when studying for my paid university degree, I was taught by lecturers that all I can do as professional teacher is the best that I can do and that teachers have the right to their own interpretation of concepts depending on the context of the teaching and learning environment.  The Commissioner has failed to consider these points that I presented in the hearing and she has failed to consider that as I have paid for the degree it needs to be considered that I have paid to ensure job security and that I have therefore paid not to be subject to a ‘veiled support and performance process’ in my career, which overlooks my right to interpretation depending on the context of the teaching and learning situation and overlooks that as a teacher you can only do the best that you can do. In erring to consider these other considerations, the Commissioner has failed to acknowledge that the support and performance processes placed too much power into administration’s interpretation of all subject matter and concepts and contexts involved and denied me my right to interpretation of these things and my right to job security.  This was therefore an abuse of process placing me on the defence, defending my job and job performance ongoingly and taking my right of interpretation away given the stressful circumstances that I was placed in.  It appears that the Commissioner’s decision to terminate my employment by not considering these other considerations was harsh, unjust, and unreasonable.”
[85]	The two grounds raise two broad issues. The first is that Ms Porche was victimised and the second is that she will suffer hardship through loss of her career.  
[86]	The allegations of victimisation have already been dealt with when considering ground 3 and the attack upon paragraph [94] of the reasons. Part of Ms Porche’s submission is that the appropriateness or otherwise of her conduct is open to interpretation.  However, the Industrial Commissioner was entitled, given the number and calibre of educators who had viewed and criticised Ms Porche, to accept that her performance was unsatisfactory.  The hardship, as I have explained, was a factor that was appreciated by the Industrial Commissioner who then reasoned that dismissal was the only appropriate outcome.  Neither ground 6 nor 7 are made out. 
[87]	Ground 8 is in these terms: 
“8.	At Paragraph 7 the Commissioner erred to understand the concept of substantiated allegations of unsatisfactory performance in her statement. “the applicant was dismissed from her employment as a teacher following substantiated allegations of unsatisfactory performance over an extended period at Coomera State School and Coombabah State Primary School.” The term substantiate is to provide evidence to support or prove the truth of.  The Commissioner failed to understand that at the point of my dismissal there had been no solid evidence to substantiate each and everyone of the allegations.”  It is appearing that she has failed to consider the many justifications in my written submission and oral submission including my extension of argument explaining exactly how many of these allegations to this day prove unsubstantiated.”
[88]	Paragraph 7 of the judgment is: 
“[7]	The Applicant was dismissed from her employment as a teacher following substantiated allegations of unsatisfactory performance over an extensive period at Coomera State Primary School (‘Coomera SS’) and Coombabah State Primary School (‘Coombabah SS’).”
[89]	The Industrial Commissioner is not, at paragraph 7 of the reasons, saying that the “allegations of unsatisfactory performance over an extensive period” are substantiated to her.  What she is saying at paragraph [7] is that, as a matter of history, the applicant was dismissed “following substantiated allegations of unsatisfactory performance over an extensive period”.  That is clearly so.  The decision-maker, Mr Coghlan, upon recommendation of the Review Board dismissed Ms Porche for that reason.  In other words, in the view of Mr Coghlan and the Review Board, the “allegations of unsatisfactory performance over an extensive period” had been substantiated.
[90]	Having in paragraph [7] recorded the reason for Ms Porche’s dismissal, the Industrial Commissioner then went on to perform her task which was to consider the application made under s 320 of the IR Act for reinstatement.  In the course of performing that task, the Industrial Commissioner considered the evidence. 
[91]	What is clear from the reasons is that the Industrial Commissioner considered Ms Porche’s evidence and the evidence led by the State.  It was not necessary to consider each and every allegation and make findings about them.  However, having rejected Ms Porche’s submission that all the other witnesses had ganged up on her, she went on to make the specific findings in paragraph [137] and following and concluded that the decision to dismiss Ms Porche was not harsh, unjust or unreasonable.  
[92]	There is no substance in ground 8.
[93]	Ground 9 is in these terms: 
“9.	At paragraph 8 the Commissioner erred to understand that the decision to take my long service leave in Term 2 was largely influenced by Shiree’s repetitively invasive, belittling, aggressive and unsolicited style management of me.  It appears the Commissioner has overlooked and devalued my personal experience of how Shiree’s approach to management was unreasonable as it made me feel that my job security was threatened, and I was not safe in my work environment. As the Commissioner has no substantiated evidence to prove that Shiree’s, Chris, Murray’s as well as Tina’s approach to management did not threaten me in this way her it appears her attempts to invalidate the destructive effect it had on me and my work performance in the workplace are unjustifiable as it is a form of abuse gaslighting to invalidate someone personal experiences making the termination of my employment harsh, unjust, and unreasonable.”
[94]	Paragraph 8 of the reasons is: 
“[8]	The Applicant commenced teaching a Year 1 class at Coomera SS in January 2015. The Applicant was absent during Term 2 having taken long service leave.”
[95]	The Industrial Commissioner did not make any findings adverse to Ms Porche consequent upon her taking long service leave in Term 2.  Even if Ms Salazar treated Ms Porche inappropriately, there was a significant chronology of events after Ms Porche left Coomera State School.  That included the continuation of the MUP at Coombabah State School, complaints being received from various teachers and others and an independent review by Ms Bentley and Mr Josey.  There is no substance in ground 9. 
[96]	Ground 10 is: 
“10.	At paragraph 9 the Commissioner erred to include in her statement that at no time did Ms Salazar allow me to meet with all the parents in a one-to-one meeting to discuss the truthfulness and validity of these allegations at the time they were raised making the act of justifying this as a reason to place me on a support plan unsubstantiated and therefore a breach of the process and a procedural flaw to try to justify these as substantiated allegations.  In failing to acknowledge the initial procedural flaws the Commissioner erred to acknowledged that Ms Salazar manipulated me onto the initial support plan making the resulting steps that followed leading to management out of my employment, harsh, unjust, and unreasonable due to the initial and ongoing procedural flaws in the process of the MUP.
(The Commissioner failed to consider that the union informed me that even one small breach of the process deems that the process itself was flawed and cannot therefore be considered as a legitimate or fair process to justify the termination of my employment, this making the dismissal of me harsh, unjust, and unreasonable.” 
[97]	This raises two issues: (1) Ms Porche was not allowed to meet with the parents in order to challenge the allegations and (2) there were procedural flaws in the process of the MUP.  This ground raises similar issues to those raised by ground 4.
[98]	The evidence concerning the first issue was dealt with in detail by the Industrial Commissioner in the reasons at paragraphs [104]-[116] some of which I have already analysed.  It was open to the Industrial Commissioner to determine that it was reasonable to deny Ms Porche access to each and every individual complainant provided that the complaints were put to her fairly.  It was also open to the Industrial Commissioner to find that the allegations had been put fairly to Ms Porche.  
[99]	The evidence of the conduct of the MUP process was carefully analysed by the Industrial Commissioner and there is no reason to conclude that any of the findings made by her were not open. Specific complaints form the basis of other grounds which I consider later.  There is no substance in ground 10.  
[100]	Ground 11 is in these terms: 
“11.	At Paragraph 10 The Commissioner erred to justify the truthfulness and therefore validity of Ms Salazar’s recorded chronology and Mr McMillan’ observations as well as their feedback at paragraphs 10 and 11, as they both have no physical evidence of taped lessons to validate the truthfulness of Mr McMillan’s or any of the Deputies and or Principal’s observations of my lessons and thus there is no solid evidence or substantiated evidence to prove that he was writing a true and accurate observation of what I could reasonably achieve given the cohort of children.  To further support this the Commissioner failed to recall how I brought it to Chris’s attention in my cross examination of him in court how his written observation of me was not in line with what the mother of [Sally] was observing in my lesson delivery each week when she supported her daughter in the weekly reading and language rotations, proving Mr McMillan was not writing honest observations of the excellent work that I was doing in the classroom. Commissioner Power erred to consider that she therefore has no substantiated measurable evidence to prove that Chris was not using this as a strategy for the purpose of lowering myself esteem to justify his “push” of me onto and further along the ‘veiled support plan’. The Commissioner failed to recall how I provided verbal evidence and justification when cross examining both Chris and Shiree of how I had to buy a $200 running record box due to them not providing me with a running record box to meet their expectations and all the related implications discussed and evidence provided in the cross examination proving the process was flawed. The Commissioner’s heavy reliance on Mr McMillan, Ms Salazar’s as well as all the other staff and external staff’s written hearsay observations with no substantiated physical evidence that the delivery of my lessons did not meet the requirements of a competent teacher given the mix of challenging dynamics across both schools made the decision to terminate my employment, too harsh, unfair, and unreasonable. The Commissioner also has no physical evidence to measure my lesson delivery against that of my fellow teaching staff to make her decision justifiable again making her decision too harsh, unjust, and unreasonable.”
[101]	Paragraphs [10] and [11] of the reasons are in these terms: 
“[10]	All relevant interactions concerning the Applicant’s performance were recorded by Ms Salazar in a document titled ‘Chronology’. This document recorded details of all interactions with the Applicant regarding her performance and covered the period of 1 April 2015 to 3 November 2016.
[11]	On 18 November 2015, Coomera SS Principal, Mr Chris McMillan, undertook a classroom observation of the Applicant's teaching. He recorded the following areas as requiring improvement and provided feedback to the Applicant:
•	continue to work with coaching to lift the pedagogy so that learning improves in effectiveness and efficiency; 
•	work on effective and efficient routines so that more learning occurs (e.g. transitions);
•	work on aspects of teaching to make the learning focus much more explicit; and
•	work on implementation of the Essential Skills of Classroom Management and regional support material.”
[102]	There is specific reference in this ground of appeal to a child whose mother was observing a lesson. I have anonymised her name in ground 11 and referred to her simply as “Sally”.  The passage of the cross-examination in the QIRC which is being referred to in this ground is: 
“We can come back to that. Let’s go back to 2015. So, your classroom observation focused – focus.
COMMISSIONER:  So, what tab is that, Ms Porche?
APPLICANT:  I didn’t – I got that out from not the trial bundle but the B7 volume 1 of two reportings. 
MS BLATTMAN:  So, that’s volume 1, tab 21, Commissioner. 
APPLICANT:  Yes. Okay. What are my questions for that?  Do you remember that, prior to this, I had [Sally’s] mother, an ex-teacher, in my room, I think it was every Friday from my memory, helping me with guided reading and language activities?---I know the lady, but I have no recollection of that.
Do you acknowledge that in your report in the classroom observation focus in 2015, you did not write an honest and accurate observation of the excellent work that I was doing?”
[103]	No answer was given to that last question as the Industrial Commissioner intervened so as to ensure that the document, the subject of the cross-examination, had been properly identified.  Then, this exchange occurred:
“MS PORCHE:  Do you accept that this is a true report?---This - this is an informal observation at that time, and it’s descriptive of what I saw.
Do you accept I don’t agree with that? Do you accept that that was lowering my self-esteem, placing me in awareness that whatever I did was never going to meet your expectations?---I accept that I was discharging my responsibilities the best I could, diligently, and our expectations of you are no different to all state school teachers.
Do you acknowledge that you failed in your general conversations with me around my performance that year to acknowledge that it was because of this excellent teaching that [Sally] achieved the A standard that her mother was placing pressure on me to get that year?---As I stated before, I don’t have- I was not made aware at the time of any conversation with this particular mother.
Do you acknowledge the extra time and money that I was putting in to make learning resources interesting and language activities interesting for the children to encourage the student engagement that you were looking for?---I think there’s a record on evidence at one particular point where you raised the cost of materials, and that was not an expectation that we had, that it would cost you money.
Do you acknowledge that sometimes your expectations aren’t in line with what happens, really, in the real world? As people say, there’s one thing that’s said, and one thing that happens?---Commissioner, all I can state is that I draw upon my experience as a principal over a long period of time, and also my training as an internal school review officer.
Do you acknowledge that my life depends on my teaching job, on my income? Do you acknowledge how important this piece of paper is due to -this paper determines my employment?---That - that was an informal document. That - that has no official status. It’s the - managing unsatisfactory performance. So, at that time it was about identifying and providing support and resources to help you to meet the expectations.
But this was, in my mind, inaccurate and developed, in my mind, an awareness that you were building a story to push me - it’s a process - to push me along the process?---No, that is not the case.
Do you acknowledge that you were destroying my trust in you and the validity of your observations, which was developing anxiety in me?---At no time did we intend to - we were doing our job and we were not trying to create anxiety.”
[104]	Mr McMillan’s evidence is to the effect that he was honestly assessing Ms Porche’s performance.
[105]	The document which is referred to in the cross-examination contains the feedback which is recorded at paragraph [11] of the reasons. As well as that feedback, the document also contains this: 
“Letitia
Congratulations on your implementation of the school’s visual reading goals and strategies being worked on with our HOPL (master teacher). 
Congratulations on assisting students with knowing their reading strategies.”
[106]	The statements of congratulations are hardly indicative of mala fides of the author. 
[107]	In any event, the fact that Sally’s mother was present during some of the lesson deliveries is not a fact to which the Industrial Commissioner was required to refer.  Later in 2015 and into 2016, complaints were received and that led to the MUP commencing. Ms Porche’s performance with the MUP became the focus of the department and analysis by the Industrial Commissioner. 
[108]	Ground 11 otherwise complains that there is no physical evidence supporting either Ms Salazar’s chronology or Mr McMillan’s observations. There is no need for corroboration as a matter of law.  The Industrial Commissioner was entitled to accept the evidence of Ms Salazar and Mr McMillan.  The Industrial Commissioner looked at the evidence as a whole and in particular the pattern of constant complaints.  She thought the consistency of complaints over a period of time coming from different educators tended to prove the performance deficiencies which were alleged. That is the point of paragraph [94] of the reasons which I have already analysed.
[109]	Ground 12 alleges: 
“12.	At paragraph 12, the Commissioner erred to justify the truthfulness and validity ( and in consideration of the context) of the alleged situations in the hearsay accusations that I failed to wear a hat on duty , spoke unprofessionally to staff on 15 September 2016, and 31 October 2016, opening a classroom door and throwing swimming notes out, failing to wear a high visibility vest on playground duty of 14 April 2016 and 15 September 2016, failing to tidy the room classroom properly, yelled at the students etc, etc.. She did not refer to the detailed justifications in my submissions of how many of these allegations are twisted and not entirely truthful and are out of context in my extension of arguments submitted making the decision to terminate me by favouring the justifications of these parties over mine harsh, unfair, and unreasonable.
At paragraph 12 the Commissioner, erred to consider that she has no measurable evidence of my performance against other teachers who are considered competent at both schools, to compare their performance daily and measure if they sometimes forget to wear hats or go to the wrong duties, making her decision unreasonable, unjust, and harsh.”
[110]	Paragraph [12] of the reasons is in these terms: 
“[12]	Throughout Term 3 and Term 4 2015 and Term 1 2016, a number of reports about the Applicant's conduct were made to Ms Salazar and Mr McMillan from teaching staff, parents and students. As noted in the Chronology, these reports included allegations that the Applicant:
•	was leaving the classroom to go and heat up food and eating it during teaching time;
•	failed to mark the roll on 1 September 2015, 9 and 20 November 2015 and 12 February 2016;
•	failed to properly tidy the classroom to make it ready for the cleaner on 1 September 2015;
•	refused to take phone calls from another staff member who was trying to give the Applicant a message about a Year 1 student needing to catch a bus home that day;
•	yelled at the students on 25 February 2016;
•	refused permission for a student to go to the toilet, after which he wet himself;
•	failed to give a Year 1 student his lunch as the teacher on duty on 18 November 2015;
•	failed to enter records into OneSchool[1] on numerous occasions;
•	failed to notice children missing from her class, between 9 December 2015 and 8 February 2016;
•	presented to school on her day off on 26 February 2016, without telling the other classroom teacher and disturbed the class following which Mr McMillan requested she leave the school and subsequently emailed her to communicate his expectation that she not attend on non-rostered days unless previously arranged with him;
•	failed to show up for eating duty and playground duty on 3 March 2016;
•	failed to wear a hat and high visibility vest when on duty on 3 March 2016; and
•	failed to attend a staff meeting.”
[111]	At paragraph [12] of the reasons, the Industrial Commissioner does not make findings as to the truth of the reports that were received. She simply records the making of those complaints.  The Industrial Commissioner states that “… these reports included allegations…”. That is significant because it leads to the meeting between Ms Porche, Ms Salazar and Mr McMillan on 24 March 2016 which in turn leads to the MUP process.  That further leads to the show cause process which ultimately leads to Mr Coghlan’s decision to dismiss Ms Porche.  Whether the particular accusations recorded at paragraph 12 are true was clearly not critical to the decision.  The decision to dismiss Ms Porche was based on her failures in the MUP process.  
[112]	Ms Porche also complains under this ground that there was no attempt to measure her performance against other teachers considered competent. In fact, various experienced teachers judged her conduct; Ms Salazar, Mr McMillan, Mr Gleadhill, Ms Flesser and the independent reviewers, Ms Bentley and Mr Josey. They are clearly expert in assessing the standards required of teachers. There was no requirement for the State to identify some benchmark teacher at either school.  There is no substance in ground 12.  
[113]	Ground 13 also concerns the findings at paragraph 12 of the reasons. Ground 13 is in these terms: 
“13.	At paragraph 12 the Commissioner, erred to consider if I successfully received the message about the students needing to catch a bus home that day and if the message was successfully communicated to the student. The Commissioner also misinterpreted my verbal explanation regarding this allegation, not placing the classroom safety of children over the priority of receiving a message in situations where the message can be easily passed on through verbal communication from the recipient of the message to the classroom teacher. It is for these reasons that it appears that the Commissioner's decision to terminate my employment was unreasonable, harsh, and unjust,”
[114]	Ground 13 refers to the comment at the fourth bullet point of paragraph [12] of the reasons. Ms Porche offered an explanation for not passing the message on and she then alleges that the Industrial Commissioner did not understand her explanation.  That, Ms Porche says, resulted in the Industrial Commissioner failing to find that termination was not unreasonable, harsh and unjust.
[115]	As I have already explained when considering ground 12, the Industrial Commissioner, at paragraph [12] of the reasons, was listing allegations, not making findings. As already explained, the reasons track the MUP process and the justification for the dismissal comes from that process.
[116]	There is no substance in ground 13.  
[117]	Ground 14 is as follows: 
“14.	At paragraph 13, the Commissioner erred to consider that children can be manipulative (because of sometimes learnt and reinforced behaviour from parents, older children, other students, friends' social media, etc., etc., particularly when it comes to school) and that perhaps the child in this situation was refusing to come to school for a multitude of reasons including wanting extra parent attention and using my demeanour untruthfully to manipulate the situation. The Commissioner failed to investigate through comparing and contrasting the amount of times this occurs to teachers at different schools throughout their teaching year highlighting the fact that again the Commissioner has no means to test the truthfulness and validity of the student complaint and trying to justify this as a reason to terminate my employment is unreasonable, unfair and harsh as there would be a lot of teachers out of employment if this was a basis to terminate teachers on. The Commissioner has no measurable way to confirm this, therefore she cannot truthfully use this allegation to justify my termination. Favouring Chris, Shiree's, Murray, Tina's and principal's external perspectives and verbal submissions over mine is a form of unequitable and non- justifiable decision making again making the decision to terminate my employment harsh, unjust, and unreasonable.”
[118]	Paragraph [13] of the judgment is in these terms: 
“[13]	In Term 4 2015, at least one child in the Applicant's class was refusing to go to school because of the Applicant's demeanour. On 25 February 2016, Ms Salazar met with the Applicant informally to raise this and a number of other issues with her.”
[119]	Paragraph [12] of the Industrial Commissioner’s reasons refers to “reports about the Applicant’s conduct”.  As already observed, paragraph [12] simply records the fact of the complaints being made. Paragraph [13], at least taken literally, records as a fact that a child in Ms Porche’s class was not attending because of her demeanour.  Ms Porche complains that there is no objective basis upon which that finding could be made. 
[120]	I suspect the Industrial Commissioner was, in paragraph [13], recording the fact of a complaint, rather than her acceptance of the truth of the complaint. That is consistent with paragraph [12] of the reasons. Even if I am wrong about that, it does not matter.  That is because, as already observed, these initial complaints gave rise to the MUP and it is Ms Porche’s performance under the MUP which ultimately led the Industrial Commissioner to conclude that the termination of her employment was not harsh, unjust or unreasonable. For those reasons, there is no substance in ground 14. 
[121]	Ground 15 is in these terms: 
“15.	At paragraph 14, the Commissioner erred to consider and understand my verbal submissions presented in trial as well as my written submissions presented in my Extension of argument(paragraph 48) that was submitted to the Commissioner on 21/02/2021..., The Commissioner has failed to retain that I gave evidence of how the SEC teacher Dianne Ioane, struggled with the behaviour in my room when trying to demonstrate modelled lessons due to the difficult mix of cohort and in one particular situation she reduced my most sensitive boy, [Billy] to tears during one of her lessons. The Commissioner failed to consider that this is not a perfect world, and one of the implications within the primary state school setting, is that administration do in fact use manipulation strategies on their teachers and in this case it was to try to persuade me, that the SEC teacher was doing a better job than me at managing the behaviour of students when in fact she was not as she failed to keep the children 100% engaged all of the time, and she did not follow the school behaviour management approach consistently when I observed her modelled lessons. In failing to consider this, the commissioner failed to understand that Administration were being untruthful and unreasonable for the purpose of just getting the job done, and justifying their part in the veiled support process and in doing this were trying to lower my self- esteem enough to make me believe that I was a bad teacher who was performing at a much lower level than my teaching counterparts and who needed to ongoingly justify her performance on a MUP, making the termination of me harsh, unfair, and unreasonable. The Commissioner erred to understand that she has no substantiated evidence to prove that what I am saying is not true and no measurable and physical taped evidence to prove the SEC teacher was writing true and accurate records of what was really going on in the classroom. It appears naive, unjust, harsh, and unreasonable of the Commissioner to base her justifications of her decision without truly considering and understanding these considerations.”
[122]	Paragraph 48 of her extension of argument (referred to in ground 15) is: 
“48.	Being subject to an ongoing process where my teaching competence and credibility was being constantly ‘attacked’ by all around me, I was exposed to administrations as well as anyone who was encouraged to report on Me’s, ongoing exaggeration of my defensive communications and assertive communications. It has become apparent that the exaggerations of ‘shouting, yelling or heavy, handed actions of me have been used throughout the reporting of me in these files. In many cases this was a deliberate form of manipulation, to paint me as an incompetent teacher and to ‘cover administration ‘backside’ (so to speak). This was again an abuse of process and symbolic of the ‘dark side of human nature’ which was explained in more detail in my witness statement, justifying that I have no witnesses due to the ‘dog eat dog nature’ of being employed in a competitive work environment where there are limited resources and high pressure to achieve.”
[123]	Paragraph 14 of the Industrial Commissioner’s reasons are: 
“[14]	Following further concerns regarding the Applicant’s performance, Ms Salazar and Mr McMillan met with the Applicant on 24 March 2016 to discuss their concerns regarding the Applicant’s performance and to set expectations for the future. The Applicant was provided with additional support in the form of regular feedback sessions with Mr McMillan and Ms Salazar, as well as in-class observation, modelling and coaching from the Student Engagement Coach. This support was provided as part of a documented Informal Support Plan (Stage 1 of the Managing Unsatisfactory Performance (‘MUP’) process), and from 24 August 2016, a Support and Development Plan (Stage 2 of the MUP process).”
[124]	The evidence which Ms Porche gave about Dianne Ioane is: 
“So on the 15th of September 2016, SEC provided LP with a support timetable for you to use in your planning and ensure that you were maximising the support provided – the SWD?---Enforcing – these are things that I was doing already so this is what I’m saying; it’s a whole undermining me of my need for her because I was – I do do these things and you do them without even thinking so - - -
All right?---It’s supposed to be support but yeah - - -
All right. So you say that Mrs Ione was also undermining you?---Well, it is undermining me because I was kind of – she was doing no better of a job than me. She was having the same problems that I was having and I was being put in a situation where I was kind of victimised into making her feel that - do you - like, I have to be honest so - - - 
All right?---Making her feel that she’s – she had the same problems as me. As I said, she reduced [Billy] to – one of my most sensitive boys to tears so.”
[125]	Ms Porche was cross-examined about a meeting she had with Ms Ione which occurred in September of 2015. This exchange occurred:
“And you recall saying in that meeting that you were being targeted with an unfair spread of kids with behaviour issues?---It was common knowledge for anyone who entered the room that the class was challenging. Like - yeah. So I’m not sure if I - I don’t think I used the word, ‘targeted.’ So - but yeah, I would have talked about my dissatis - dissatisfaction for the dynamics in the room - - -
Well - - -?--- - - - like as compared to - or in relation to - sorry - the management of me, because it’s not how I would manage a class with those dynamics if that makes sense.
Well it’s the case, isn’t it, that it was offered to you in that meeting by Ms Ione to show you the class formation spreadsheet and the OneSchool data that had been used to do the class allocations sat the beginning of the year?---The day·eight numbers had changed though. I’ve got evidence of that.
Well they offered that, didn’t they?---Yeah. But I can’t recall if it was at that date or earlier in the year. 
They also – Ms Ione expressed to you in that meeting that there were children with behavioural issues in all of the other year-one classes as well?---Yes.  But they weren’t being micromanaged.  So that’s taking a situation and – yeah.  It’s two totally different situations.  They weren’t being scrutinised excessively or had excessive meetings.  So that just changes everything.”
[126]	It can be seen no one doubted Ms Porche’s assertions that she had difficult children in her class. The complaints being received concerned much more than just Ms Porche’s demeanour in dealing with the children. They included, for instance, failing to notice that children were missing from her class.  It was these things that led to the MUP being instigated.  Even if Ms Porche had a difficult cohort of children, that fact does not explain her performance under the MUP. It is that performance which the defendant ultimately relied upon to dismiss Ms Porche and it is against that evidence that the Industrial Commissioner assessed the reinstatement application.
[127]	Ground 15 has no substance. 
[128]	Ground 16 is in these terms: 
“16.	At paragraph 14 the Commission erred to consider the truthfulness in Chris and Shiree’s ongoing feedback and documentation combined with the reasonableness of what could be achieved in a day, given the different mix of dynamics in the class that I taught. She erred to consider that Chris and Shiree were not continuing to give me honest feedback in these sessions as an ongoing strategy to keep me dependent on them along the process and she failed to consider the possibility of this in light of the fact the Shiree as explained in previous affidavits and submissions tried to deny that the day 8 numbers changed that year, making my class a difficult mix even though I presented solid evidence of this in my submission in my modified extension of argument (paragraph 19). In this paragraph I presented evidence in an email sent from Claire Arthur to Shiree Salazar on Tuesday 9th of February 2016, which was found in B46(Volume lof 3) proving that the day 8 numbers did infact change in 2016 making my class an extremely difficult mix of students and this mix is described in paragraph 20 of my argument. Paragraph 20 is emailed evidence proving how administration tried to talk around the changes to the day 8 numbers by stating in the email "At the conclusion of each year classes are formed with a balance of student needs both academically and behavioural, which you will be aware of having been part of the process for forming year 2, 2016". As Shiree and Chris have both tried to deny, that the day 8 numbers of my class changed to make the class a very, very demanding mix of students, this in fact increased my workload due to the extra intricacies involved in dealing with the demands of students, parents, their special needs. The Commissioner erred to understand how this then proves the unreasonableness of their management and their ability to two twist the truth regarding feedback and the reporting of me to justify the MUP process. In erring to understand and consider these points, the Commissioner has seemingly favoured Shiree and Chris's inaccurate interpretation of the situation forcing me into ongoing oppression and stress when having to constantly defend and prove myself making their management of me into and on these processes and the justification of the termination of my employment, unfair, unjust, and unreasonable. Considering these points, the Commissioner failed to understand that the process is designed to be used to cover the principal's backside on the event I failed it, again making her decision unfair, unjust, and unreasonable. In failing to consider this, the Commissioner failed to consider how all this also occurred under Murray and Tina's management making her judgment again, harsh, unreasonable, and unjust.” (emphasis added)
[129]	This ground consists of a series of factual assertions designed to support a submission that the evidence of Mr McMillan and Ms Salazar ought not to have been accepted.  The ground acknowledges that the evidence of Mr McMillan and Ms Salazar was significant in explaining how the MUP process came into operation.  There can be no doubt about that. However, it is the result of the MUP process and Ms Porche’s performance under it which led to her dismissal. The evidence of Ms Porche’s performance under the MUP process does not become irrelevant and therefore inadmissible, even if she could establish some wrongdoing by Mr McMillan and Ms Salazar.  
[130]	There is no substance in ground 16.  
[131]	Ground 17 is as follows: 
“17.	As for the reasons mentioned in paragraphs 10,11 and 12, at paragraph 15, the Commissioner has failed to give solid physical justification that each one of these allegations were 100% truthful. An example of this is she has no evidence to prove that I had a private call that extended beyond 20 minutes past the bell. This was presented in my verbal submissions in the trial and some justifications were presented in the written explanations in my arguments and extension of arguments. Again, the Commissioner overlooked the inaccuracies in Chris and Shiree's collection of allegations against me and she misjudged that they did not presented me with each one of the allegations at the time of accusation, allowing me time to present my side of the story in a timely manner. In erring to consider these factors the termination of my employment was harsh, unjust, and unreasonable.”
[132]	This ground has no substance for the same reasons that grounds 12, 13 and 16 fail.  It was the Industrial Commissioner’s assessment of Ms Porche’s performance under the MUP process which was critical.
[133]	Ground 18 is: 
“18.	At paragraph 16, the Commissioner erred to provided substantiated physical evidence that there were ongoing deficiencies in my teaching performance in the period 25 May 2016 to 20 October 2016 again relying heavily on the SEC teacher hearsay reports of me. It appears in doing this she is unfairly favouring the Student Engagement Coaches unsubstantiated allegations of me, failing to consider my verbal and written submissions that she demonstrated deficiencies in her teaching by not keeping the students 100% engaged 100% of the time, which was being required of me and how she reduced one of my most sensitive boys [Billy] to tears. The Commissioner also appeared to misunderstand this it is highly likely that the Student Engagement Coach as well as Shiree and Chris were using this twisted, unreasonable, and ongoing reporting and scrutinization of me as a form of behaviour management to make me feel that their skills and competencies as a teacher managing a class such as mine day in and day out, where superior to mine which is a form of abusive gaslighting, that was explained in my submissions and the Commissioner failed to apply to her understanding of how it was used in this context and she has no substantial evidence to prove otherwise. The Commissioner appears to not recognise that this behaviour does occur amongst staff within Education Queensland and was occurring in this circumstance making justification to terminate me unfair, unreasonable, and unjust. The Commissioner also fails to understand and link this to the arguments of the "problems of human nature that exist within Education Queensland that formulated the argument of why I have no witnesses that was submitted in my form 20 affidavit. As the Commissioner made no reference of this linking it to the" dog eat dog nature" of the performance process when teaching a challenging class of children, she erred to make a judgment that was not harsh, unjust, and unreasonable.”
[134]	This ground refers to paragraph [16] of the reasons which is in these terms: 
“[16]	In addition to the above, there were ongoing deficiencies in the Applicant's teaching performance in the period 25 May 2016 to 20 October 2016 which were recorded by the Student Engagement Coach.”
[135]	The effect of ground 18 is that Ms Porche alleges that Ms Ione was conspiring with Mr McMillan and Ms Salazar against her. This is purely a matter of credit.  The Industrial Commissioner saw and heard Mr McMillan and Ms Salazar and Ms Porche give evidence. The events at Coomera State School were followed by further complaints at Coombabah State School. Further witnesses, Mr Gleadhill, Ms Flesser and then the independent external reviewer, Ms Bentley were all also critical of Ms Porche’s performance.  
[136]	As already explained, that made the findings at paragraph [94] inevitable.  There is no substance in ground 18.  
[137]	Ground 19 alleges: 
“19.	At paragraph 17 the Commissioner erred to acknowledge that in paragraph 39 as presented in my written submission of my extension of argument the definition of support in a supportive work environment means to:
“Keep someone or something from failing, or to give confidence or comfort to be successful.” The Commissioner has no substantial evidence to invalidate my specific examples written in my submissions as well as my verbal submissions, as to how all the processes put in place were not in fact supportive of me but doubled my workload causing me feelings of great stress and anxiety and the increased workload was not realistic to what a reasonable and competent teacher could withstand and how this effected my right to feel safe and supported in the workplace. It is a form of abusive gaslighting on the Commissioner’s behalf to try to invalidate and therefore devalue my submissions on how I felt unsupported and how this induced a fight of flight response in me and invalidate and devalue my verbal submissions as valid evidence when making her judgement. In erring to accept and understand how these submissions provide solid evidence supporting the abuse of process and how it effected my performance the Commissioner's termination of my employment was unjust, harsh, and unreasonable.”
[138]	Paragraph [17] of the reasons is: 
“[17]	Following the Applicant’s failure to demonstrate improvement through the Stage 1 Informal Process, the Applicant was informed on 9 November 2016 that Stage 2 of the formal MUP process would commence. The process was documented in an Identification and Development Plan and was provided to the Applicant in a meeting with Mr McMillan, Ms Salazar, Ms Annette Rose (Principal Human Resource Consultant, Department of Education), and Mr Jason Sperling (Queensland Teachers Union of Employees (‘QTU’) representative).”
[139]	The passage in Ms Porche’s written submissions to which she is probably referring in this ground is as follows: 
“39.  ‘The act of deliberate fault finding and recording of the ongoing hearsay information about me’, was abusive and oppressive, belittling, undermining, disrespectful and stressful’, and took away by basic human right to feel a sense of job security hence my right to feel safe in my job. Instead of spending hours on formulating these documents, administration and colleagues could have worked more productively to apply extra hands in the classroom to support me in meeting the variety of needs and behavioural challenges in the classroom. Any visiting staff who entered my room both at Coomera and Coombabah always stated, ‘my gosh you should have a second teacher in the room at all times due to the challenges in the classroom’.”
[140]	As previously observed, the critical aspect of the Industrial Commissioner’s decision was that Ms Porche did not engage with those trying to supervise her.  It is a hollow submission indeed for Ms Porche to complain about a lack of support when she did not engage with those seeking to manage her performance. Examples are: 
(a)	a failure on 15 February 2018 to attend the lunchtime meeting with Mr Gleadhill; 
(b)	refusal on 19 February 2018 to attend a morning meeting with Mr Gleadhill and Ms Flesser;
(c)	failure to accept feedback; 
(d)	failure to provide lesson plans as required by the MUP improvement plan;
(e)	failure to attend the weekly MUP progress meetings;
(f)	rejecting criticism and saying, “I’m doing a great job and that it’s just your opinion”. 
[141]	There is no substance in ground 19. 
[142]	Ground 20 is: 
“20.	As Chris, Shiree, Murray and Tina failed to communicate truthfully in their verbal submissions on how at both schools I was given an incredibly challenging dynamically designed mix of students, the Commissioner failed to understand how it was unrealistic for me to pass these processes without having to seek the support of a medical health expert, given this implication. The Commissioner erred to understand how Chris and Shiree’s verbal submissions were untruthful as they were trying to justify that the implementation of the informal support plan was for the purpose of supporting me and ignored the fact that I had communicated openly during this process to them that I did not feel supported particularly as I pointed out to them that they were failing to sign me off on the things that I was doing well and failing to recognise that I had an infant to go home to at night and parent whilst being on this process which heightened the unwelcome and unsolicited stress of the situation. As having no experience in the modern classroom setting or having never experienced being on one of these plans herself the Commissioner appears to misunderstand exactly how the process overloaded me and how the management action was reasonably perceived by me as a threat to the security of my employment, making me feel undervalued, belittled, and unsafe in my employment and breaching my employment rights to not feel these things in the work environment. In my written submissions and in my verbal submissions during trial I gave the Commissioner specific examples of how I was being overloaded instead of supported on this process and I gave specific examples of the type of actions in the workplace that would have supported me instead of failed me. She has not referred to any of these in her explanations for judgement unjustly devaluing these as evidence. As the Commissioner has had no experience in the modern classroom environment and particularly has not been subject to a MUP program, she has misjudged the unreasonableness of the situation that I was subject to and she has no understanding of the excessive workload and excessive amount of unrecorded communications and spur of the moment meetings that I had to partake in, this including regular on the spot interrupted communications by different staff and administration entering the classroom environment and in some instances communicating their interpretations of instructions to follow and demanding certain things of my students, teaching and or student learning placing excessive pressure on my time and ability to realistically get things done and to realistically meet the level of expectation required when it had to be ongoingly proven on this plan. The Commissioner appeared to misunderstand that the untruthful and unsubstantiated paper explanation of my so-called failure on the “informal support process” was in fact not my failure, but administrations failure to manage me to ensure success and so I felt safe and supported in my teaching environment when I had to endure such a poorly dynamically designed class, day in and day out, during that year. The Commissioner failed to consider, it was not good management action to place a woman returning to work at a new school after having her first child in a work situation like this and that good and reasonable management action would have been to ask me exactly what support I wanted and needed and just get in and do the job instead of doubling my workload by recording what apparently was not done which is the opposite action of support in the workplace. The Commissioner erred to consider that it was a procedural flaw in the process for administration not to ensure that all the specialist teachers and visiting teachers who entered my room just simply ask me what I need them to do and follow my instruction immediately on what I needed them to do instead of them trying to micromanage me, telling me what they were going to do. Again, the Commissioner erred by devaluing my verbal and written submissions of this as valid evidence to support the unreasonableness and excessiveness of the situation. At paragraph 17 the Commissioners misinterpretation and misunderstanding of the excessive workload and excessive meetings and administration procedures that any MUP brings to the workplace and for all the reasons mentioned in this paragraph, made the termination of my employment harsh, unjust, and unreasonable.”
[143]	The opening line of this ground criticises “Chris, Shiree, Murray and Tina” for failing to communicate “truthfully”.  Murray and Tina are Murray Gleadhill, the principal of Coombabah State School and Tina Flesser, the deputy principal of the school. They have been added in this ground to “Chris and Shiree” who are Chris McMillan and Shiree Salazar, the principal and deputy principal respectively of Ms Porche’s previous school, Coomera State School.  On Ms Porche’s case, all four have, for no apparent reason, acted dishonestly towards Ms Porche.  Again, the inevitability of the making of the finding at paragraph [94] of the reasons is evident. This ground again reiterates the alleged lack of support. Again, this ground has no substance given the findings that Ms Porche did not engage in the MUP.  
[144]	Ground 21 is in these terms: 
“21.	Again as at paragraph 17, the Commissioner erred to identify that prior to this Stage 2 process, union representative Jodie McFadden had admitted to me in a one-to-one conversation that yes, Shiree Salazar was being a bully to me in her approach to the management of me yet she failed to act on this (as presented in my written extension of argument and verbal submissions). When I explained to her later in a phone conversation that I had written her statement in an affidavit concerning a related matter she denied having said this obviously out of fear of being victimised in her job and this was the reason that she was not asked to attend this meeting. I had rung the union and terminated her from representing me again due to her untruthfulness and my loss of trust in her. As the Commissioner appeared not to acknowledge the truthfulness in my submissions regarding this and how me being exposed to such mixed communications by union representative Jodie was making me feel that my employment was threatened, the termination of my employment was harsh, unjust, and unreasonable. The Commissioner failed to see how this was a procedural flaw in the process as it breached my right at this stage of the process to have effective, paid union representation. The Commissioner erred to deem the process flawed by her bias decision to overlook my verbal and written submission concerning these considerations as being valid evidence breaching my right to procedural fairness incredibly early in the process. The Commissioner also erred to consider how Mark Angel failed his duty to provide me fair legal representation by failing to bring this up to the Board of Review at the Board of Review stage process, deeming the process procedurally flawed at this stage as well. In failing to consider all these important considerations, it appears that the Commissioner's judgement to refuse my reinstatement was harsh, unjust, and unreasonable.
At paragraph 18, the Commissioner erred to consider that the ongoing scrutinization and criticism of me in the workplace was more than what a reasonable person could withstand as it was causing me to second guess myself. The Commissioner erred to consider that I commenced sick leave as Shiree’s micromanagement of me, was becoming so unreasonable as it threatened my sense of job security and her insistent changes to my teaching and miscommunications regarding assessment as well as exposing me to the excess of 40 plus meetings on top of my already huge workload in a period of 9 months was more than what a reasonable person can withstand and led me to seeking the support of psychologist Wendy Gollan, and then commencing sick leave on 14 November 2016 due to teacher burnout and induced symptoms anxiety. The Commissioner erred to understand that my support person Kimberly Anderson found this evidence of the excess of 40 meetings that I was exposed to in a private and confidential document the department sent to me on April 15,2019 and she gave verbal evidence of this in her verbal submission in our first ever mention before the Commissioner. The Commissioner erred to consider how this justifies the termination of my employment as too harsh, unreasonable, and unjust.”
[145]	This ground alleges dishonesty against Jodie McFadden, a union representative who Ms Porche says effectively left her without union representation. Ms McFadden is therefore yet another person who has done Ms Porche wrong. Apparently Ms McFadden had told Ms Porche that she thought Ms Salazar was bullying Ms Porche. She refused to provide a statement to that effect and so Ms Porche telephoned the union saying that she did not wish Ms McFadden to represent her.
[146]	Ms McFadden’s opinion as to whether or not Ms Salazar was bullying Ms Porche was irrelevant.  Again, what was found to be relevant by the Industrial Commissioner was Ms Porche’s performance under the MUP. A lack of union representation does not explain her disengagement from that process.
[147]	Ground 21 also concerns the finding at paragraph [18] of the reasons, which is: 
“[18]	The Applicant commenced sick leave on 14 November 2016 and remained on sick leave for the remainder of the 2016 school year and for the whole of the 2017 school year.”
[148]	Whatever the position before Ms Porche went on sick leave, the fact is that she was on leave for about 15 months. When she returned, she was placed back on the MUP process and would not engage with it. As I have observed on numerous occasions, the refusal to engage with the MUP process in a meaningful way was critical to the decision of the Industrial Commissioner. There is no substance in ground 21. 
[149]	Ground 22 is: 
“22.	At paragraph 19 the Commissioner erred to misunderstand how Dr Benjamin Duke’s Independent Medical Report cannot ever legally be deemed as independent, as Dr Benjamin Duke was chosen and employed by Education Queensland to carry out the Independent Medical Report on me. The official meaning of independent means.
“something or someone is not influenced or controlled in any way by other people, events or things.” In this way Dr Benjamin Dukes report can never be defined as independent of Education Queensland and it would be unjustifiable, unlawful and a form of double standards for the commissioner to try to justify Dr Benjamin Dukes Medical Judgments as more independent and or as more accurate as Dr Lot’z expert medical recommendations.”
[150]	This ground concerns the medical report of Dr Duke and the findings at paragraph [19] of the reasons. Paragraph [19] is as follows: 
“[19]	The Applicant sought to return to work in Term 1 of the 2018 school year. The Respondent required the Applicant to undergo an Independent Medical Examination (‘IME’) to ensure her fitness for work and to continue the MUP process. Dr Benjamin Duke, Psychiatrist, conducted the IME and reported that the Applicant was fit for work, however, recommended that the Applicant return to a different school. The Applicant also requested a transfer to a different school. The Respondent accepted the transfer recommendation and placed the Applicant at Coombabah SS commencing Term 1 in 2018.”
[151]	Ms Porche has various complaints as to how the respective evidence of Drs Duke and Lotz were considered.  These are complaints made in later grounds.  Ground 22 only attacks the independence of Dr Duke and only does so on the basis that Dr Duke was retained by the Department of Education. 
[152]	There is no substance to this complaint.  Dr Duke is a consultant psychiatrist in private practice.  He has ethical obligations which attach to his role as a medical practitioner.  Routinely, courts accept experts as independent notwithstanding that they have been retained to prepare reports and give evidence on behalf of a particular party.  Lack of independence of a witness is a matter which goes to weight, not admissibility.  The Industrial Commissioner considered the relevant strengths of the opinions of Dr Duke and Dr Lotz.  No error is demonstrated.
[153]	Ground 23 is in these terms: 
“23.	At paragraphs 76 the Commissioner erred at favouring Chris and Shiree’s responses based on no evidence, saying their responses were measured and accurate yet she is inconsistent with her judgement of me saying I must present evidence to justify that my workload was excessive. It is not reasonable for the judge to have expected me to hoard all my evidence to justify this and in saying this she has erred to understand how it was not humanly possible to simultaneously gather evidence to prove the abuse of process whilst planning and implementing lessons and whilst being ongoingly scrutinized on this process.”
[154]	Paragraph [76] is set out earlier. 
[155]	Ground 23 refers to “Chris and Shiree’s responses”. That must be a reference to Mr McMillan and Ms Salazar.  Paragraph [76] does not concern Ms Porche’s work at Coomera State School. Mr Gleadhill and Ms Flesser are the principal and deputy principal respectively of Coombabah State School.  
[156]	Ms Porche’s complaint is that while some witnesses seem to be taken at face value by the Industrial Commissioner, in paragraph [76], the Industrial Commissioner is observing that there is no evidence to support her claims. 
[157]	Ms Porche I think misunderstands paragraph [76]. All that is being said there is that there is no evidence of the work done outside of normal working hours. In other words, Ms Porche did not in her evidence attempt to identify and quantify it.  Paragraph [76] of the reasons does not evidence different standards being applied to Ms Porche as against the other witnesses and there is no substance in ground 23.  
[158]	Ground 24 is:  
“24.	At paragraph 104  the Commissioner not having any formal medical qualifications misjudged Dr Lot’z medical opinion as not having the language of an independent medical opinion and biasedly and unfairly supported the respondent’s submission to ‘give greater weight to the independent medical opinion provided by Dr Duke. At paragraph 104 the Commissioner erred to misunderstand that Dr Lotz was not in fact my treating doctor but was my treating psychiatrist and it was a procedural flaw of hers as well as biased and unlawful to not consider Dr Lotz medical recommendations as valid as Dr Benjamin Duke’s and to not follow the recommendations of Dr Lotz making the termination of my employment harsh, unfair, and unreasonable. The Commissioner has erred to consider that DR Lotz will advocate himself that it is against the law to override his expert medical opinion. In erring to consider this, the Commissioner has committed and error of law by overriding a medical expert to justify the termination of my employment.”
[159]	The reference to paragraph [104] of the reasons seems incorrect. It should be a reference to paragraph [102]. At paragraphs [98] to [103], the Industrial Commissioner deals specifically with the issue of whether the show cause process should have been followed given the available medical advice. Paragraphs [98] to [103] are: 
“[98]	The Applicant appeared to be concerned about potentially being labelled as having a ‘mental illness’ throughout the MUP process. At the hearing this point was mentioned, with the Applicant again confirming that her case was not that she had a mental illness throughout this process or was unfit to perform her role as a teacher, but that the process added to her feelings of anxiety and being overwhelmed. 
[99]	Following the issuance of the show cause notice by the Board of Review, the Applicant was absent on sick leave for almost a year. The Applicant relied upon the letter by Dr Lotz dated 5 February 2019, which stated the following:
…
I have read and discussed the recent independent psychiatric examination by Dr Duke, I concur with his findings, however, believe that Ms Porche is capable of returning to work fulltime and does not need to undergo a return to work program.
I have mentioned previously that I do not believe that she would manage a performance management process, and would recommend that no further action is taken, Ms Porche is capable of returning to work and I would advocate this occur as soon as possible.   
[100]	The Applicant referred to Dr Lotz’s letter which recommended that she could return to duties but could not undergo the performance management process when cross-examining Mr Coghlan. The Applicant put to Mr Coghlan that it was a procedural flaw in the process for the Respondent to ‘override’ this medical recommendation. Mr Coghlan gave the following evidence:  
Part of being available to perform your duties as a teacher is to participate in any performance process or any other duties required of a teacher. And that is: one of the duties of a teacher is to perform their role satisfactorily. If not, the other part of those duties is to participate in any performance improvement process required is fundamental to the role of a teacher. …part of being your role of a teacher is to participate in performance improvement process as required.
[101]	The opinion of Dr Lutz was not shared by Dr Duke, who had provided the IME report. The Respondent relied on the opinion of Dr Duke in determining that the show cause process could continue. As outlined by Martin J in Erian v State of Queensland (Department of Agriculture and Fisheries):
…One of the reasons that treating medical practitioners do not ordinarily provide a report (other than as to the treatment they have provided) is that an expert's report must be independent...
[102]	Dr Lotz was the Applicant’s treating doctor rather than an independent doctor. I accept the Respondent's submission that the language of Dr Lotz’s report is not the language of an independent medical opinion. In these circumstances, it was reasonable for the Respondent to give greater weight to the independent medical opinion provided by Dr Duke. 
[103]	I also accept that a teacher is either fit to perform duties and be accountable for their performance or they are not. It is not reasonable to allow a teacher to perform their duties without any performance accountability on the basis that they are not medically fit to be performance managed.” 
[160]	The Industrial Commissioner does not have any formal medical qualifications. The Industrial Commissioner decided the case on the evidence. Part of that evidence is conflicting medical opinion. Routinely, courts, whose officers have no professional training beyond the law, are called on to resolve conflict between differing experts.  That is what the Industrial Commissioner has done.  
[161]	Dr Lotz provided a report dated 14 June 2018.  That report was prepared at the request of Ms Kirsty Payne, the Director, Human Resource Business Partnering at the Department of Education. Dr Lotz said: 
“1.	When I last spoke to Ms Porche on the 13th of June 2018, I agreed that she should attempt to return to full duties as a teacher either at Coomera State School or another location.  I have subsequently given her a clearance certificate and I assume she will be contacting Department of Education.  
2.	In my opinion she is not medically fit to participate in a show cause process.  She continues to have some issues of anxiety and depression, which I do not believe to be a liability in her role as a school teacher, but would be exacerbated if she were to participate in a show cause process.”
[162]	Dr Duke prepared a report dated 7 August 2018 after he interviewed Ms Porche.  He opined that she would struggle to effectively carry out her work as a teacher. A supplementary report was provided in September 2018 and then Dr Duke saw Ms Porche again in January 2019. In a report dated 30 January 2019, Dr Duke addressed a specific question.  The question and answer are as follows: 
“Is Ms Porche able to participate in all aspects of her role as a teacher, including participating in performance development planning and performance feedback processes? If not, what are the clinical barriers preventing this employee’s participation and their timeframe for resolution? 
Yes. Ms Porche is going to be understandably anxious should any performance management processes be initiated, however as long as these are done in a reasonable manner and not in a way that she would construe as being a continuation of bullying and harassment I can see no reason why she should not be able to participate in these aspects of her work role as a teacher.”
[163]	Dr Lotz then responded with a letter dated 5 February 2019, the substance of which is set out at paragraph [99] of the Industrial Commissioner’s reasons.  Paragraph [99] of the reasons is set out above. Dr Duke was then asked for his opinion as to whether Ms Porche was capable of participating in normal disciplinary and performance management processes and he responded, “yes” in a report dated 25 February 2019.  Dr Lotz provided another report dated 22 March 2019.  It is as follows: 
“This is to confirm that I have been the treating psychiatrist of Letitia, who has had problems with anxiety and depression as a result of what appears to be a “witch hunt” by her colleagues of Queensland Education.
Letitia gives a history of working and being particularly picked on, ostracised, and given duties far beyond her time considerations. From her description, it appears that she has been set up to fail.
As she did ‘fail’, she then received a ‘show cause’ for discipline reaction, and has been refused a return to employment until she accepts the ‘show cause’. Letitia informs me that if she is to accept the ‘show cause’ she will then be fired from employment (constructive dismissal?).
She is therefore in a situation where they will not allow her back to work until she has signed a show cause and if she signs the show cause they will fire her.
This of course causes extreme anxiety and depression, Letitia only wants to return to work and be a teacher, a role she is dedicated to and has wishes to continue in her career.
I understand she is involving the Union in her petition to return to work without any ‘show cause’.
In my professional opinion, the show cause is detective, and is effectively perpetuating her psychiatric disorder.
I have stated on many occasions that the show cause should be dismissed on the grounds of mental illness, however Queensland Education insists on this show cause, which as stated above, perpetuates her psychiatric disorder, and effectively sets her up to be fired from employment (constructive dismissal?) thereby causing further financial stress.
I will continue to support Letitia.”
[164]	The report of 22 March 2019 appears, with the greatest respect to Dr Lotz, to be quite partisan.  He offers his view that a “witch hunt” is being conducted of Ms Porche. He offers his own conclusion that based on Ms Porche’s description of events, “it appears that she has been set up to fail”. He raises questions of constructive dismissal, which is a legal, not medical, concept, and also offers the view that “the show cause is defective”.
[165]	The Industrial Commissioner preferred the evidence of Dr Duke relying upon what President Martin J said in Erian v State of Queensland (Department of Agriculture and Fisheries) that treating medical practitioners are not generally regarded as independent for the purposes of providing reports.
[166]	There was a basis for the Industrial Commissioner to prefer the evidence of Dr Duke, and she has not erred in doing so. There is no substance in ground 24.
[167]	Ground 25 is in these terms:
“25.	At paragraph 100 and 103, the Commissioner erred by misunderstanding that on the 22 March 2019, Dr Lotz wrote that in his “medical opinion” the show cause was defective” and is perpetrating her psychiatric disorder. The Commissioner and Mr Coghlan erred to consider that the parties to the performance process were discriminating against me in the workplace as their judgement of my “satisfactory performance’ and ‘workplace accountability was not equally measured against my workplace colleagues who I have witnessed and am subject to their regular mistakes and failings in the workplace. At this point there is no evidence that all these accusations are true including the accusations of missing duties or turning up late to duties, the accusations of forgetting safety vests, the accusation of upsetting students with their comments and or yelling at students, not completing data sheets, or marking in time limits or always accurately and the list goes on and on. In these paragraphs the Commissioner and Mr Coghlan failed to consider that I was subject to the discriminate signing off me on this process as presented in my verbal and written submissions and that the Commissioner has no substantiated evidence to prove that this was not in fact true. It is for reasons including this, that Mr Coghlan cannot override Dr Lot’z medical expert recommendations for me not to participate by his statement that part of being in my role of a teacher is to participate in the performance improvement plan when the managers were failing to listen to my communications on how their management was overloading and pressuring me unreasonably given the classroom behaviours and dynamics that I had be given and it was reasonable for me to foresee and communicate at this point how the multiple steps on the MUP process were leading to my dismissal thus threatening my job security and therefore the termination of my employment was unreasonable, unjust and harsh.”
[168]	Ground 25 raises concerns about paragraph [100] and [103] of the reasons. Those paragraphs are set out earlier.
[169]	The ground raises many factual issues which, in different ways, relate to some of the other grounds. The particular attacks on paragraphs [100] and [103] of the reasons are:
1.	Dr Lotz’s report was to the effect that the show cause was defective and perpetuates Ms Porche’s psychiatric disorder.
2.	That was not properly considered.
3.	The evidence of Mr Coghlan is not expert medical opinion and therefore it could not be used as a basis to reject Dr Lotz’s evidence.
4.	Mr Coghlan did not take various things into account.
[170]	Ground 25 misunderstands the Industrial Commissioner’s reasons. At this point of her judgment, the Industrial Commissioner was considering the submission made by Ms Porche that the show cause process ought not to have been undertaken in light of the medical advice then available. The Industrial Commissioner was faced with competing medical evidence from Dr Lotz and Dr Duke and she also had the evidence of Mr Coghlan.  
[171]	Based on Mr Coghlan’s evidence, the Industrial Commissioner accepted that part of the duties of a teacher is to participate in any performance improvement process.  That can hardly be contentious. Mr Coghlan’s evidence was not expert medical opinion, and the Industrial Commissioner did not regard it as such.
[172]	The Industrial Commissioner then considered the competing evidence of Dr Lotz (who said Ms Porche was unfit for performance management) and Dr Duke who said she was. For the reasons given at paragraph [102] of her reasons, the Industrial Commissioner accepted the opinion of Dr Duke and then rejected the submission that it was inappropriate to proceed with the show cause process. 
[173]	The reasoning of the Industrial Commissioner was supported by the evidence of Dr Duke. For the reasons given when rejecting ground 24 of the appeal, it was open to the Industrial Commissioner to reject Dr Lotz’s opinion by preferring Dr Duke’s.
[174]	Therefore:
1.	Dr Lotz’s report was taken into account but not accepted;
2.	Dr Lotz’s report was rejected on a logical basis after the Industrial Commissioner took into account other relevant evidence;
3.	Mr Coghlan’s evidence was not the basis upon which Dr Lotz’s opinion was rejected.  Mr Coghlan is not a psychiatrist, but Dr Duke is.  Dr Duke’s opinion was preferred over Dr Lotz’s.
[175]	The long list of issues which Mr Coghlan allegedly did not take into account are not relevant to ground 25. The evidence of Mr Coghlan’s which was relied upon is the evidence identified at paragraph [100] of the Industrial Commissioner’s reasons which is expert evidence as to the role of a teacher. It was open to the Industrial Commissioner to accept that evidence. There is no error demonstrated.  
[176]	There is no substance in ground 25 and it is rejected.
[177]	Ground 26 is in these terms:
“26.	At 104 and 105 the Commissioner erred to misunderstand that where my employment is concerned is it critical that I am afforded every opportunity to respond and discuss the validity of each complaint made in a timely manner as that would constitute and ensure procedural fairness. Procedural fairness cannot be justified as this did not occur. Also, as each complaint had not and has not been substantiated to this date, Deputy Principal Shiree Salazar and all principals and deputies across the two schools needed to act supportively and encourage parents and children where they could take some ownership of their own actions and behaviours instead of trying to blame me the classroom teacher for every issue that arises. It seems the Commissioner is relying very heavily and very favourably on Ms Salazar’s submissions even though Ms Salazar’s perception of how she approached me in the management of me is quite different from my communicated experience and from the physiological bodily response of ‘fight or flight’ that her invasive style of management evoked in me. As the Commissioner was not there and did not witness this, she erred to understand that she cannot devalue my experience and invalidate it as not being truthful. In this way she takes no ownership of how she induced ongoing anxiety in me in which I had to seek the support of a psychologist and a psychiatrist. The Commissioner eered to understand she has no right to invalidate this. The Commissioner also falls to recognise that Ms Salazar has confused her facts such as trying to say day 8 numbers did not change when they did, and lying under oath saying that she gave me a contact number( other than the union) so I could call to discuss my unhappiness in her management of me when she did not and encouraging the twisted and untruthful reporting of me, denying how retaining my marking was not a form of workplace bullying as well as not signing me off and writing honest accounts of what I was doing well in the classroom and in my planning as was presented in all my submissions and written extension of arguments. Given all these factors, the Commissioners erred at having a favourable and bias view of Ms Salazar’s accounts, and the errors in her recall of what really happened in the work environment, and this determines the termination of my employment harsh, unjust, and unreasonable.”
[178]	This ground criticises paragraph [104] and [105] of the judgment. They are in these terms:
“[104]	The Applicant submits that every complaint noted in the documentation was not put to her at the relevant time to allow her to test its validity. The Applicant submits that this amounted to a breach of procedural fairness. 
[105]	The Respondent submits that the substance of every issue was raised with the Applicant throughout the process and that the Applicant accused Ms Salazar of twisting the truth and gave evidence that her class were ‘a bad mix of bad parents and difficult children’. In this context, the Respondent submits it was appropriate to not give the Applicant the details of each parent so she could interrogate them. I accept the Respondent’s submission that the Applicant’s lack of insight meant that it would not be appropriate to give the details of every parent complaint. This is particularly so when some of the complaints related to how unapproachable some parents found the Applicant to be as a teacher. There is no evidence that the Applicant requested or was denied the details of any complaint. I note that a significant number of specific parent complaints and staff complaints were put to the Applicant throughout the process. The oral evidence from Ms Salazar confirmed that issues were raised with the Applicant regularly and soon after they emerged.”
[179]	Ground 26 contains a large number of differing allegations. Most complain that Ms Salazar’s evidence was accepted.  For the reasons explained, it is for the Industrial Commissioner to evaluate the evidence and there is no identified reason why the findings were not open.
[180]	The findings at [104] and [105] follow this logic:
1.	The submission from Ms Porche is that each and every allegation should have been put to her and the complainants identified.
2.	A decision was made not to identify complainants to Ms Porche.
3.	In the circumstances, that was justified.
4.	The substance of the complaints was put to Ms Porche.
5.	There was no unfairness.
[181]	Whether procedural fairness has been afforded will depend on the circumstances of each case as will the impact of any breach of those requirements.  
[182]	The findings at paragraph [104] and [105] ought not be taken out of context.  There were a number of complaints made about Ms Porche at both schools where she taught.  The Industrial Commissioner was entitled to accept Ms Salazar’s evidence that the substance of complaints were put to Ms Porche. It was the fact that there were many complaints which led to the MUP process being put in place. This was carefully considered by the Industrial Commissioner at paragraph [134] of her reasons. Then, in determining that the dismissal was not harsh, unjust or unreasonable, the Industrial Commissioner took account of Ms Porche’s performance under the MUP. This is clear from paragraph [146] of the judgment where the Industrial Commissioner held, “The blunt refusal to accept feedback and engage with the MUP process in order to improve her performance reflects a puzzling lack of insight into her situation.”  The “situation” was that Ms Porche was the subject of a large number of complaints.  Then, at paragraphs [147] and following, the central focus is the MUP process.  
[183]	What ultimately led to Ms Porche’s dismissal was the failure to engage and respond appropriately to the MUP process.  Once that is understood, it can be seen that while the Industrial Commissioner did make findings about Ms Porche’s general performance, those findings were not critical to the outcome. The critical findings were as to Ms Porche’s performance with the MUP process. If there was any breach of the rules of procedural fairness in failing to allow Ms Porche access to the complainants, that failure did not affect the result of the Industrial Commissioner’s decision.
[184]	In any event, the respondent’s refusal to identify the complainants did not breach any requirement of the respondent to afford natural justice to Ms Porche. A number of complaints had been received from parents and students. It was not necessary for the respondent to conduct an inquiry into each and every one of those allegations and then make findings as to the truth or otherwise of them.  The respondent’s obligation was to manage the school. That was done by reasonably reacting to the complaints by placing into operation the MUP process. When Ms Porche failed to respond properly to that process, her employment was terminated.
[185]	There is no substance in ground 26.
[186]	Grounds 27, 28, 29, 30, 31 and 32 are all related to ground 26. Ground 26, as already explained, complains that Ms Porche was not given the opportunity to respond to individual complaints. The Industrial Commissioner deals with that submission at paragraphs [104] to [116] of her reasons.  Paragraphs [104] and [105] of the judgment (the subject of ground 26) are then followed by individual findings at [106] to [116].  These various findings are the subject of grounds 27 to 32. 
[187]	Ground 27 complains about the finding at paragraph [107] of the judgment.  Ground 27 is in these terms:
“27.	At 107 the Commissioner has erred to misunderstand the issue and the context of the issue. At cross examination I was trying to explain when it came to behaviour this student had regular issues with her peers and was extremely manipulative and attention seeking in this way. I explained in cross examination that I had an incredibly open relationship with the mother of this child, and I spoke to her regularly before school and we worked together communicating openly about the child and had a good professional relationship. As the Commission has erred to misunderstand the events and facts in these allegations, her determinations of my abilities as a teacher are flawed and deeming me incompetent based on her misunderstandings and then terminating my employment because of this misunderstanding was harsh, unjust, and unreasonable.”
[188]	Paragraph [107] of the Industrial Commissioner’s judgment is:
“[107]	The Applicant was also made aware of issues regarding another student whose parents refused to send her back to the Applicant’s class. This student had a bowel dysfunction and in cross-examination, the Applicant recalled the issue being raised at the time, saying: 
[student] was extremely manipulative, so she could get teacher attention, so her Mum could get attention from me.”
[189]	At paragraph [107], the Industrial Commissioner is doing no more than making a finding that an issue was raised with Ms Porche about an event concerning a student with a bowel dysfunction. The Industrial Commissioner refers (in paragraph [107] of the reasons) to evidence given by Ms Porche demonstrating that she accepted that the issue was raised with her.  
[190]	The Industrial Commissioner does not (at paragraph [107]) make any determination against Ms Porche as to the appropriateness or otherwise of the way in which she dealt with the student with the bowel dysfunction. In this part of the reasons, the Industrial Commissioner is only dealing with Ms Porche’s submission that she did not have the opportunity to test the validity of individual complaints. At paragraph [107], the Industrial Commissioner does no more than find that Ms Porche was aware of the complaint. That fact does not seem to be contentious and therefore there is no substance in ground 27.  
[191]	Ground 28 is in these terms:
“28.	At 108 the Commissioner has erred to misunderstand the events in this situation as I submitted and verbally presented in my court hearing in February how this parent had apologised to my face, for her exaggerated accusations that I had yelled in this situation. Her mother was trying to manipulate the situation so her daughter could be moved to a class to be with a friend in that class. The Commissioner erred to consider that it is a common strategy to project or blame the classroom teacher for events and or the outcome of learning and or for student’s misbehaviour or bad choices in the learning environment, for parental or student agendas and or to shift the blame making the termination of me unfair, harsh, and unreasonable.”
[192]	This ground concerns paragraph [108] of the judgment which is:
“[108]	The Applicant was made aware at the time that another student had been moved out of her class and that the carer had made allegations that the Applicant yelled regularly. The Applicant was aware that another student’s mother had raised concerns regarding her lack of learning extension. Ms Salazar gave evidence that the Applicant was generally dismissive of the complaints when they were raised.”
[193]	Here, the Industrial Commissioner is simply finding that:
1.	there was an allegation that Ms Porche yelled regularly;
2.	there was an allegation that there were concerns about a student’s “lack of learning extension”;
3.	Ms Salazar raised the complaints with Ms Porche who was dismissive.
[194]	Ground 28 makes no complaint about any of those findings. The Industrial Commissioner, in paragraph [108] of her reasons, does not consider the substance of the individual complaints.  As previously explained, the judgment was not founded upon specific findings of specific complaints made against Ms Porche by students and parents. The Industrial Commissioner’s conclusion that the dismissal was not unfair, harsh and unreasonable is based on Ms Porche’s performance under the MUP.  There is no substance to ground 28.
[195]	Ground 29 is:
“29.	At 109 the Commissioner erred to consider Mr Coghlan’s verbal response cannot be validated as solid evidence as Mr Coghlan was physically removed from the situation so he does not understand the breaches to my human rights that occurred in the daily interactions that went unrecorded and are ridiculously hard to explain and recalled upon to prove in the court setting and he does not understand that there is significant information on websites as presented in my submissions and affidavit that support my submissions that these underperforming processes do not work, they overload the teacher, forcing the teacher to crack, fail and or go crazy under the pressure of excess scrutiny, excess justification and excessively having to defend everything they do, say and write in excessive meetings, paperwork and administration procedures (as presented in my written submissions and arguments, extension of arguments, form 20 affidavits and certificates of exhibits). Mr Coghlan and the Commissioner fail to understand that a strategy of the principals is to manage the fact that they gave very badly dynamically designed classes to teach by placing them on a “veiled support plan” and or once on the process as occurred to me, when you are moved to a new school, you are exploited further by been giving another badly dynamically designed class. The Commissioner and Mr Coghlan erred to consider that this is a strategy to silence the teacher into working above and beyond while simultaneously protecting administration on the event that the teacher burns out on this process and assertively communicates their awareness that the overload of work means they cannot realistically pass the process with ease and that they are being exploited because of this and this awareness results in them taking Education Queensland to court as I did. The Commissioner erred to consider the research I presented to her in my written submissions and the fact the Bullied Teachers Networks and Groups have formed because of teachers being unreasonably treated like this on ‘veiled performance management processes, making her determination to terminate me biased, harsh, unjust and unreasonable. She also has no substantiated physical evidence to prove that what I am saying is not true. The Commissioner erred to consider that Mr Coghlan has no grounds to make valid judgements of my competency in teaching, as he was not physically part of the process so his decision to terminate me cannot be considered as valid and in turn her judgement to terminate me was harsh, unjust, and unfair.”
[196]	This ground concerns [109] of the judgment.  It is in these terms:
“[109]	The question was asked of Mr Coghlan by the Respondent whether every single complaint by student, parent and staff would usually be presented to a teacher. Mr Coughlan answered that it was a matter for each Principal to determine at a local level. However, in this matter he saw significant reflection on the performance process by a range of people, including principals, deputy principals, independent principals throughout the entire process. Mr Coghlan stated: 
… What I expect to see is a process in which you have the concerns identified to you, whether individually or summated, and then you have an opportunity to demonstrate performance improvement over a range of period of times and in [the Applicant’s] particular circumstances that was over an extended period of time, with extended support across two school settings by both the administrations teams of those two schools, and independent principals and deputies.”
[197]	Ground 29 complains about the performance management process. Paragraph [109] of the Industrial Commissioner’s reasons concerns Ms Porche’s submission that she did not have the opportunity to test the validity of individual complaints.  Mr Coghlan gave evidence, which was accepted by the Industrial Commissioner, that when complaints are raised, concerns are put to the teacher who has an opportunity to demonstrate performance improvement. Here, Mr Coghlan said that was done. As to whether the MUP had been properly applied to Ms Porche, that is a separate consideration which is dealt with by the Industrial Commissioner commencing at paragraph [133] of her reasons.
[198]	The criticism of paragraph [109] is unfounded and ground 29 has no substance. It ought to be rejected.
[199]	Ground 30 is in these terms:
“30.	At 110 and 111 the Commissioner made an error in judgment and misunderstood the facts of the case as she erred to understand that there was no substantiated evidence from both schools to indicate that the substance of each issue was raised with me at the time they occurred let alone ever. As presented in my written submissions, each one of them were not raised with specific examples of the allegations allowing the me the ability to justify how many of the facts of the allegations were twisted and not entirely truthful and the matter was not addressed with all parties and the issue of twisted accusations was not dealt with at the time the accusations were made. The Commissioner erred to consider that as presented in my written submission it was not until after my termination that I have read many of these allegations against my conduct. The Commissioner erred to consider that this deems the process as being procedurally flawed and breached administrations duty of care to me on the process and my rights to feel supported in the workplace and have a sense of job security, making the termination harsh, unjust, and unreasonable.”
[200]	Ground 30 concerns paragraphs [110] and [111] of the judgment, which are set out in paraph [76] of these reasons.
[201]	Again, the findings at paragraphs [110] and [111] concern Ms Porche’s submission that she did not have the opportunity to test the validity of individual complaints.  The Industrial Commissioner has found, and in my view it was open to her to so find, that the substance of the complaints were put to Ms Porche and most of the specific complaints were also put to her. For the reasons given in dismissing ground 26, ground 30 has no substance and also ought to be dismissed.
[202]	Ground 31 is in these terms:
“31.	At paragraph 112, the Commissioner has erred to confuse my verbal submissions and the facts of the case relying too heavily on hearsay verbal explanations that cleaners (being more than one clearner) were refusing to clean the room. There was no evidence that more than one cleaner refused to clean the room as no cleaner ever approached me and said this at the time and the rooms were never left in such a bad state as the rooms could not be cleaned. If there were records of this Administration exaggerated this to cover their backsides and support their case. The Commissioner again has misunderstood that most issues were not raised on a timely basis throughout the process like she tried to justify, and I only read about many of them after I had been terminated from the job. The Commissioner has failed to consider that perhaps administration were not being honest about the rolls to protect themselves on the event that I further complained about their management like I have and she is naive to think that this isn't a possibility that they may have tampered with them and the Commissioner has also erred to understand the minimal mistakes on the roll were made in many situations by replacement teachers who administration had placed in my room when I was removed for process orientated meetings and or PCL’s or PBL meetings. The Commissioner has erred to understand how these things have been blown out of proportion, and as mentioned earlier in my submissions and not consider that it is unfair and biased to crucify me for these things, when competent teachers are humans and make these mistakes regularly in the classroom environment and some openly admit this and particularly when their employment is being threatened through being exposed to the deliberate fault finding and often twisted fault finding in the workplace making it a very stressful work environment when you have to defend and justify everything. It is for these reasons that the Commissioner has erred in her decision to terminate my employment as this decision was too harsh, unjust, and unreasonable. The Commissioner appears to misunderstand that any form of oppression where someone must ongoingly defend themselves is a form of abuse.”
[203]	This ground concerns paragraph [112] of the judgment, which is:
“[112]	In cross-examination the Applicant admitted to many of the performance concerns such as missing marking the roll and having students answer the classroom phone. The Applicant accepted that the classroom was untidy on occasions and admitted that Ms Salazar had raised with her the issue that the cleaners were refusing to clean her classroom. The vast majority of issues were raised with the Applicant on a timely basis throughout the process.”
[204]	Ground 31 contains a number of allegations, including that the final determination of the Industrial Commissioner, namely that the termination of Ms Porche’s employment was not harsh, unjust or unreasonable, ought to fall.  However, the main thrust of ground 31 is to complain about the findings at paragraph [112] of the judgment. The findings there are that Ms Porche, in cross-examination, admitted to the following:
1.	missing marking the roll;
2.	having students answer the classroom phone;
3.	that the classroom was untidy;
4.	that Ms Salazar had raised with her an issue that the cleaners were refusing to clean the classroom.
[205]	Ground 31 does not complain about the finding that Ms Porche admitted that she had students answer the classroom phone.
[206]	As to the failure to mark the roll, Ms Porche was cross-examined on that topic and the relevant exchange is:
“Yes. So Annie Arthur was the business services manager at Coomera; is that right?---Yep.
Okay. And it’s the case, isn’t it, that she had to - you may not remember the particular date, but would you agree with the proposition that she had a conversation with you about two things: one was marking your roll, and the other one was concerns about the cleaners?---Once again, I can’t remember the details, but yes, there were possible conversations around those things. I’ve always take - taken marking - obviously marking the roll is extremely important. If there was ever concerns I was on total information overload from the start, because I wasn’t supplied with the appropriate technology, and I was behind from the start. Obviously I was very anxious about this because of the way Cherie was scrutinising every little thing that I did and from the word go I was being pushed into fight or flight response.
So, do you accept that there were occasions on which you did not mark the roll?---I accept that there were occasions, like all teachers do, I’ve made mistakes, I’m human.” (emphasis added)
[207]	It was open for the Industrial Commissioner to find that the applicant had admitted missing marking the roll.
[208]	As to the findings concerning the cleanliness or otherwise of the classroom, the following exchange occurred during Ms Porche’s cross-examination:
“Do you accept that there were occasions in 2015 where, to your knowledge, the cleaners refused to clean your classroom because of the untidy state in which it was left?---I don’t accept that because I’ve always put in a massive effort to make any room, you know, beautiful and in the event that it was left in a mess due to the black and white time limits and excessive administration procedures and workload and meetings, I do not recall there’s been ever a time when they’ve refused to clean the room.
Do you recall, however, it being raised with you by Ms Salazar that your classroom was untidy, making it difficult to clean?---Yes, but that’s, you know, that’s - you’re working with children, there will be days when you have excess people coming into the room and I have so many people coming into the room which was the abuse of process because that was supposed to be support but it was actual hinderance because it was more conversations then doing, so yep. So - as what - what we learnt at university, all you can do is the best you can do and that’s all I ever tried to do, but I’ve been placed in a situation where that wasn’t good enough, it always had to be above and beyond.” (emphasis added)
[209]	It was open to the Industrial Commissioner to find:
1.	that Ms Porche’s classroom was untidy on occasions; and
2.	that Ms Salazar had raised with her the issue that the cleaners were refusing to clean the classroom.
[210]	The justification or otherwise of the position which the cleaners took in refusing to clean the classroom is not the subject of any finding.
[211]	The findings made at paragraph [112] of the Industrial Commissioner’s reasons were open and therefore there is no substance in ground 31.
[212]	Ground 32 is as follows:
“32.	At paragraph 114,115 and 116, the Commissioner erred to consider that the exaggerations and therefore untruthfulness in the respondent’s submission that I did not have a respectful collaborative relationship with parents and carers were used and have been used for the purpose of administration ‘covering their backside so to speak”. In many circumstances I did have respectful collaborative relationships with parents as I have been able to have for the last 18 years of teaching and my employment at Coomera State School only ceased because I was burnt to the ground from bending over backwards to meet the extra requirements of the process as well as the ongoing needs of students and their parents and I had sought the opinion of a medical expert. This highlights my point of the badly dynamically designed classes that I was given whilst on these processes as a strategy for administration to manage the fact that the classes were ridiculously hard to teach due to the badly designed dynamics and poor curriculum resources and badly designed C2C units. These things are organisational problems that exist within the institution of Education Queensland. They are manageable when not being exposed to a MUP process however the cracks of these systematic problems are exposed when a teacher is being held accountable to a performance process and is being forced to defend and justify ongoingly the problems that arise largely from systematic problems that exist within the organisation and structure of the Education System within Education Queensland. In this way the process heightens and exposes these cracks and it therefore it is a breach of procedural fairness and a form of abuse to try to hold me the classroom teacher singularly accountable for these problems and force me to constantly justify this along the course of the MUP and now in the court system. The Commissioner appeared to miss these points presented in my submissions and the most obvious point that it is highly reflective of administrations procedurally flawed and oppressive management of me, that suddenly after 18 years of collaborative teaching and respectful relationships with peers I (apparently) do not have the skills to maintain respectful and collaborative relationships with my peers. I was only at Coombabah for a very limited time due to being managed out for reasons beyond collaborative relationships, so the Commissioner had erred to consider that I wasn’t there long enough to both develop and enhance my collaborative relationship with parents and carer and this is particularly the case when administration where managing me in a way that supported and gave parents the power to question everything a I did and supported that they should receive instance feedback and gratification if they do this. In not considering these things the Commissioner’s failed to understand how this was an abuse of process as it is not a situation that teachers are managed into normally and the Commissioner failed to understand and consider how this situation accumulated to more than what a reasonable person or teacher, could, should or would withstand making her determination to terminate my employment was harsh, unreasonable, and unjust.”
[213]	This ground concerns paragraphs [114], [115] and [116] of the reasons:
“[114]	The Respondent submits that the regular nature of the complaints was an issue not simply because of the nature of the complaints, but because it was relevant to the requirement to have respectful collaborative relationship with parents and carers regarding their children's learning and wellbeing. The Applicant did not have the relationships with parents that she needed to have as part of her duty as a teacher. 
[115]	I accept that the substance of the complaints, and in most cases the exact complaints, were put to the Applicant at or soon after the time they occurred. However, even if the complaints that were not presented individually to the Applicant are excluded from consideration in this matter, it is clear that the Applicant was still unable to comply with the requirement that she maintain respectful collaborative relationships with parents and carers. 
[116]	The evidence confirms that the performance issues were regularly put to the Applicant over a long period of time. The few individual complaints that were not put to the Applicant were of limited significance in the context of the entire process.”
[214]	Ground 32 is based on a misunderstanding of the Industrial Commissioner’s reasons.  
[215]	Paragraph [114] of the reasons does not contain a finding.  It records the respondent’s submissions. Paragraph [115] does not constitute a finding that the various complaints were justified.  That paragraph is a finding that “the substance of the complaints, and in most cases the exact complaints” were put to Ms Porche. The findings at paragraphs [115] and [116] are to the effect that as the issues had been put to Ms Porche, the process was not undermined by the fact that some individual complaints were not put to her. 
[216]	By ground 32, Ms Porche asserts that she did in fact have respectful collaborative relationships with parents, but if they broke down, that was the fault of the respondent.  These assertions, if made out, do not undermine the findings made at paragraphs [114] to [116] of the judgment. There is no substance in ground 32.
[217]	Ground 33 is:
“33.	At paragraphs 124-125 the Commissioner has no grounds to devalue my verbal submissions as well as my written submissions including my submitted extension of arguments and form 20 affidavit with certificates of exhibits, as being sufficient evidence to prove and argue that my personal experience whilst being subject to the process was that the process was not supportive and it was therefore inflexible and non-employee focused and I was not given every opportunity to succeed as administration were not being honest about their ridiculous rules that I had to work to such as I had to present weekly assessment items at the team PLC and the rules for this were the teacher was not allowed to grade a student as an E, yet the teacher could not scribe for the student in the test and the teacher could not come to the meeting without all assessment items completed and regardless of what went on in the school week, it would be considered underperforming if you came to the weekly meeting without the assessment done and marked. The Commissioner failed to understand the implications of this in the workplace and how it placed excessive pressure on me to meet these standards regardless of that fact that I had children with toilet issues and a variety of behavioural and learning issues in my class and this makes the teaching and learning in this situation much more challenging, when it is so inflexible, unrealistic, and unreasonable to account for these interruptions in the day. As the Commissioner has not given detailed consideration and justification to each argument that I presented in both my verbal and written submissions, she has failed to understand my perspective and verbal evidence of what really went on in the reality of the workplace situation as compared to what is justified on paper and how Chris tried to untruthfully, verbally justify that he gave me every opportunity to succeed in this process. In using this to justify her judgement, the Commissioner erred to understand that Chris himself failed and refused to understand and accept my communications of how the processes was failing me, that Chris failed to be honest that in the meetings he was refusing to sign me off on things that I was doing in the classroom, that the Student Engagement Coach was not being honest about her inability to manage the children any better that me, and write honest reports of this, that rules of what have to do each day and in what time each day, weren’t supportive and consistent to my right and my need to manage my class to achieve a relaxed learning environment. The Commissioner failed to understand that her perception of what she considers as extensive support is a misjudgement based on her inexperience in the classroom as, she failed to understand these were processes that administration were using ineffectively and the Commissioner has no grounds to devalue my explanations in writing and written submissions, as well as submissions in my form 20 affidavit and attached certificate of exhibits and websites that include other teachers experiences on these processes and how they simply do no provide a supportive environment. The Commissioner failed to understand how what she considered to be extensive support amounted to an extensive increased workload as it meant more time talking before doing and more time justifying what you do and the implications that arise from talking to more and different people who have different interpretations and different perspectives in the work environment. What the Commissioner erred to understand is that although she states there is no evidence that anyone in the process wanted the applicant to fail there is no sufficient evidence that Chris, Shiree, Murray, Tina and any of the administration involved were listening to my communications on what works for me and what does not and made alterations to their processes to support my achievement of it. The Commissioner fails to understand that administration did not work to meet my complaints and request to provide me with quality and consistent SEP support that I needed, so they have no evidence that they were supporting me to succeed. The Commissioner failed to understand how at Coombabah the Literacy and CAFE Reading Coach was giving me confused instructions of how to run reading assessment tasks and the school didn’t provide the resources needed when under scrutiny to the point that I had to print readers out and make them instead of being able to access them in the library and it was demanded by the Literacy Coach that I did this immediately even though I had the same demands on me from Murray and Tina regarding all the other curriculum subjects all at once when being placed on a new grade. The Commissioner fails to understand that I was subject to written recordings of the fault finding of me and how that is not conducive to a supportive work environment as clearly explained in my submitted arguments. The Commissioner fails to understand how it is impossible to communicate and provide all the evidence to support that the process was not working in my favour and exposed me to an excessive workload and administration procedures, unfairly. In failing to understand and consider all these considerations presented, the Commissioner judgement was harsh, unjust, and unreasonable.”
[218]	This ground attacks the findings at paragraphs [124] and [125] of the judgment.  They are:
“[124]	The Applicant submits that she had been ‘set up to fail’, describing the management of the MUP process as ‘unsupportive, inflexible and non-employee focused’. The Applicant also submits that the outcome had been pre-determined. 
[125]	There is no evidence that anyone involved in the process wanted the Applicant to fail. Mr McMillan gave evidence that he wanted the Applicant to have all the support she needed to allow her to meet the performance expectations. The extensive amount of support given to the Applicant over the entire period, including Student Engagement Coach sessions, weekly meetings with school leadership and regular feedback indicates that the Applicant was given every opportunity to succeed.”
[219]	As with other grounds, ground 33 contains a number of allegations. Importantly, Ms Porche submits that:
1.	Before the Industrial Commissioner, she alleged that the respondent predetermined the MUP process.  She said that she was clearly set up to fail.
2.	Primarily, that was because the process was onerous for a number of reasons.
3.	Evidence and submissions were made by Ms Porche to the Industrial Commissioner to support the assertion that the outcome was predetermined.
4.	The Industrial Commissioner decided that part of the case without proper consideration of Ms Porche’s evidence and submissions.
[220]	The submission that the outcome was “predetermined” is, in reality, an allegation of mala fides.  This is a serious allegation, and the Industrial Commissioner would have required clear evidence before making such a finding. At paragraph [125] of the reasons, the Industrial Commissioner found no evidence that anyone wished Ms Porche to fail. 
[221]	There was no direct evidence that anyone had such a wish.  There was no admission to that effect. That did not, as a matter of law, mean that the issue would be decided against Ms Porche. Her case on this issue was a circumstantial one.
[222]	In assessing the circumstantial case, the Industrial Commissioner examined what she saw to be the significant evidence. This, she refers to in paragraph [125]. The Industrial Commissioner was not obliged to refer in her reasons to every piece of evidence and every submission.  Identifying the important evidence was part of the Industrial Commissioner’s function.  She then concluded the issue against Ms Porche.
[223]	Ms Porche relies on a letter that was sent by Mr Gleadhill to Ms Payne. That letter was written during the settling in period after Ms Porche had arrived at Coombabah and before the MUP process recommenced.  By that point, Mr Gleadhill had observed Ms Porche working at the school. He complained to Ms Payne that:
1.	he has received complaints from teachers about Ms Porche;
2.	she has ignored sections of the Code of Conduct;
3.	she has displayed unethical behaviour and she has lied;
4.	she seems to misunderstand the role of a teacher;
5.	she shows an unwillingness to accept responsibility for her own behaviour.
[224]	Mr Gleadhill’s letter was not a predetermination of the MUP process which, at that stage, had not yet started. Mr Gleadhill was speaking of his own experience with Ms Porche and expressing concern that her behaviour might damage the reputation of his school. He suggested that she should be sent back to Coomera State School to perform the MUP process there.
[225]	The Industrial Commissioner did not misunderstand the significance of Ms Porche’s behaviour during the settling in process. She correctly found that “the ‘settling in period’ did not require the school administration to ignore concerns when they were raised”.
[226]	On the specific question of whether the outcome was predetermined, the Industrial Commissioner observed that support had been given to Ms Porche, which was inconsistent with Ms Porche’s “set-up to fail” submission.
[227]	The Industrial Commissioner’s refusal to draw the inference that the outcome of the MUP was predetermined is well based in both the evidence and in logic and there is no reason to upset that finding. There is no substance in ground 33.
[228]	Ground 34 is as follows:
“34.	As at paragraph, 126, The Commissioner fails to understand that Desmond Kluck had agreed in my conversation with him prior to commencing the new school year, that I should never have been placed on the support process as the performance concern was manipulated due to the badly dynamically designed class and therefore, I would not be subject to a MUP at the new school. The Commissioner fails to understand that Desmond Kluck lied under oath in court when I cross examined him regarding this conversation as he denied saying it and he denied admitting that I was mistreated in the workplace at Coomera. So, the Commissioner fails to understand that because of this conversation, when I first attended Coomera, I discussed with Murray how Desmond agreed to this and therefore there was no MUP in place and no official settling in period. So, the Commissioner failed to understand that there was no conversation that the 20-day settling period was a period to determine if the MUP should succeed and the Commissioner failed to understand that this email was not just drafted but it was in fact before 28 days as in Murray Gleadhill’s letter, he writes." I have provided you with a list of behaviours that we have observed and that have been directed towards us over the past 4 weeks. 4 weeks equals 28 days, so this was a lie. If Murray was to lie about this, then he was to twist all the other facts of the allegations of my conduct he put forward. It is bias behaviour for the Commissioner not to hold him accountable for every single word and every single accusation as she is trying to do with me in the workplace. There was no proper test or investigation or finding to prove that all these allegations were true making the process one big abuse of process and this again being a procedural flaw that the Commissioner appears to talk around and misunderstand in her written justifications of not reinstating me. What the Commissioner also failed to understand and that I put forward to her in my verbal submissions and my written submissions and arguments was that in this letter Murray untruthfully also wrote, “They want nothing to do with her” when talking about my colleagues. This again was a twist of the truth and showed his preconceived intent as I had not been there long enough for my peers to have developed enough of a working relationship to make this judgement of me independently of his view of me, and it proves his preconceived intent as well as his believed lack of ability to follow through his duty of care to provide me with a supportive and positive work environment. As the Commissioner as not considered all these important considerations and have misunderstood and has not held Murray accountable for everything he says and does in the workplace, the Commissioner’s determination to not reinstate me was harsh, unjust, and unreasonable.”
[229]	Ground 34 refers to paragraph [126] of the reasons.  That provides:
“[126]	The Applicant submits that the letter sent by Mr Gleadhill to Ms Payne on 16 February 2018 was evidence that he had a ‘preconceived intent to place [the Applicant] on this MUP program regardless of how [the Applicant] performed in the first 18 days at this school’. It appears that the Applicant has misunderstood the 20-day settling in period as being a period to determine if the MUP should proceed. This period was clearly communicated as a time to allow the Applicant to settle into the new school after which the MUP process would proceed as previously advised. Following the recommencement of the process, if the Applicant had then satisfied the performance requirements of the MUP process, the process would presumably have gone no further.”
[230]	Mr Kluck’s opinion as to whether Ms Porche was mistreated at Coomera State School has limited probative value.  However, Mr Kluck was cross-examined by Ms Porche.  The Industrial Commissioner referred to that cross-examination at paragraphs [128] and [129].  These paragraphs, and paragraph [130], are:
“[128]	The Applicant put this email to Mr Kluck in cross-examination, who responded that he disagreed with the Applicant’s characterisation of the email as indicative of a predetermined outcome. I accept that this email was intended to simply ensure compliance with each stage of the process. It is a reality that some MUP processes will continue to the Board of Review stage whilst others successfully conclude before that stage. Ensuring that all processes are complied with along with the way is simply sound practice. If the Applicant had engaged with the process and been able to successfully demonstrate her professional competence, I am satisfied that the matter would not have progressed to the Board of Review stage. 
[129]	In cross-examination, Mr Kluck confirmed that a telephone conversation was had with the Applicant in which she indicated that she did not believe the MUP process should be proceeding as the process was a ‘manipulation’. Mr Kluck denied the Applicant’s contention that he had agreed that the MUP process was an abuse of process, stating only that he recalled the Applicant making that statement. 
[130]	In my view, the level of support provided to the Applicant confirms that the termination of her employment was not a pre-determined outcome. The Student Engagement Coach appointed to assist the Applicant by offering feedback and modelling appropriate performance provided approximately 28 sessions with the Applicant. Following the commencement of the MUP process, the Applicant was given extra time on Tuesday mornings away from her class to plan her workload. The Applicant was given every opportunity to succeed in meeting the performance requirements of her role. These and other support processes provide a sufficient basis to conclude that the Applicant was in no way set up to fail.”
[231]	It was part of the Industrial Commissioner’s function to assess and consider that evidence and she then made the findings which she did, particularly at paragraph [130] that Ms Porche had been supported. There is no basis to disturb that finding.
[232]	As to Ms Porche’s complaints in ground 34 that Mr Gleadhill was lying, that is a matter of credit. The Industrial Commissioner heard all the evidence and made careful findings. There is no basis to upset any credit findings.
[233]	The next ground of appeal is 36. There appears not to be a ground numbered “35”.  Ground 36 is:
“36.	As at paragraphs 127-129, the Commissioner is acting biasedly in her decisions by not holding all members of the department personally accountable for every word they say or write as she is trying to do to me in this situation by supporting that the whole situation I was exposed to was not procedurally flawed and abuse through an abuse of process to me as an employee in the work environment. To be specific the Commissioner erred to be reasonable and fair in her belief of what the email was intended to say, as compared to what it did say when, Shayne Gait’s email was presented to her in court, and I cross examined Desmond Kluck regarding his interpretation of this. To be more specific the Commissioner misunderstood that the letter meant what it said, “It said, “only to have her raise this at the board of review stage” and this means that this was not a supportive process intending to support me to achieve success in my teaching” it was a punitive process as it says in writing., “only to be raised, at the board of review stage” in this email. This is definite as the Commissioner is misunderstanding that it is biased, unreasonable, and unjust in a court situation where my employment is being questioned for her to try implying what she and Desmond Kluck thought was intended to be said, over the real factual evidence in writing as to what Shayne Ghalt did in fact say to say. Again, this is a procedural flaw as the department had a duty of care to expose me to a supportive process that was not procedurally flawed. The Commissioner erred to understand this email was a procedural flaw and by not considering all these considerations presented, her judgement to terminate by employment was harsh, unjust, and unreasonable.”
[234]	Paragraphs [127]-[128] of the reasons are as follows (paragraph [129] appears at paragraph [230] of these reasons):
“[127]	The Applicant referred to an email from Mr Shayne Galt to Ms Salazar in which he inquired whether the Applicant had an underlying medical condition. Mr Galt states the following in the email: … 
Our biggest concern is that we get through the process without questioning if she has any health concerns that could be impacting on her performance, only to have her raise this at the board of review stage. In our experience, the expectation from the board of review is that if there is any indication an employee has a medical that could be impacting on performance then this should be raised and addressed by the department. Given Letitia has raised she is seeing a psychologist and her behaviour/actions/comprehension throughout the process has raised some concerns, I think we need to address this matter before proceeding with a formal managing unsatisfactory performance process. 
I have talked to Kirsty Payne and she agrees with this course of action. I would like to discuss this with you further as there are a number of steps that have to occur before we can consider proceeding to and Independent Medical Examination…
[128]	The Applicant put this email to Mr Kluck in cross-examination, who responded that he disagreed with the Applicant’s characterisation of the email as indicative of a pre-determined outcome. I accept that this email was intended to simply ensure compliance with each stage of the process. It is a reality that some MUP processes will continue to the Board of Review stage whilst others successfully conclude before that stage. Ensuring that all processes are complied with along with the way is simply sound practice. If the Applicant had engaged with the process and been able to successfully demonstrate her professional competence, I am satisfied that the matter would not have progressed to the Board of Review stage.”
[235]	Ground 36 focuses on the email referred to in paragraph [127] of the reasons and, in particular, the statement in that email: “Our biggest concern is that we get through the process without questioning if she has any health concerns that could be impacting on her performance, only to have her raise this at the board of review stage …”. 
[236]	Ms Porche interprets that email as meaning:
1.	Mr Galt (and probably Ms Salazar) have predetermined that Ms Porche’s employment should be terminated;
2.	in order to make sure that the termination survives review, the department should investigate any health concerns.
[237]	The email is open to another interpretation. Obviously, given the concerns that have by that point been expressed about Ms Porche, there was a possibility that the MUP process would not be successful. Action might be taken and that might be the subject of review. On any view of the evidence available up to the time of Mr Galt’s email on 27 September 2016, that was a possibility. The email says that the board of review has an expectation that any medical issue should be raised and addressed by the department. Therefore, the email is nothing more than part of a discussion as to proper process and, particularly, what is expected of the department.  
[238]	Mr Kluck was cross-examined about this issue. The Industrial Commissioner recorded Mr Kluck’s evidence and then said, “I accept that this email was intended to simply ensure compliance with each stage of the process”.  That finding was clearly open and there is no reason to set it aside.
[239]	An additional aspect of ground 36 is the allegation of bias made against the Industrial Commissioner.  There is nothing to suggest actual bias.  The Industrial Commissioner has no personal interest in the outcome of the application and no association with any of the parties.
[240]	The Industrial Commissioner’s decision will be open to challenge where apprehended bias is demonstrated.
[241]	In Ebner v Official Trustee in Bankruptcy, the High Court explained the apprehension of bias principle as:
“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principles gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.”
[242]	Ms Porche alleges that bias is apprehended because the Industrial Commissioner allegedly assessed Ms Porche’s evidence by a different and more critical standard than she assessed the evidence of the respondent.
[243]	There is no basis to find an apprehension of bias. There is nothing which was identified during the appeal to suggest that the Industrial Commissioner was unreasonably “holding [Ms Porche] … personally accountable for every word [she] says”.  The Industrial Commissioner, in a careful and detailed judgment, considered Ms Porche’s evidence and her submissions.
[244]	As explained above, the finding about Mr Galt’s email was not an unreasonable one and certainly does not give rise to an apprehension of bias.
[245]	Ground 36 should be rejected.
[246]	Ground 37 is in these terms:
“37.	At paragraphs 128- 129 the Commissioner erred to understand that both Desmond Kluck and Mark Angel both lied under oath about what they said to me in one-to-one conversations on the separate occasions evidenced in my verbal submissions and written submissions. The Commissioner erred to understand that Mark Anghel explained to me the process was designed to overload me out of my employment and the principals were just covering their backsides in paperwork by overloading me and there was nothing I could do about it etc., etc.... and how this did not constitute valid paid legal advice deeming this part of the process a breach to my right to have valid, impartial legal union representation. The Commissioner failed to consider that Desmond Kluck agreed that I was manipulated onto the support plan and onto theMUP and therefore it should not have been continued from one school to another and this was a breach of process that it did. As I would not dare lie under oath, it is biased for the Commissioner to accept their lies under oath over my verbal submission of what they said. Mark Angel has therefore failed my right to valid legal union support by supporting a process that he knew was not fair and just as he communicated to me and not acting impartially by standing up for me at the Board of Review, supporting my medical experts’ recommendations and arguing the procedural flaws that occurred including how no one from administration would come to my room directly upon me notifying them that a child had run from my classroom. It is evident that Mark Anghel did not know the intricate details to my case so he could not argue them at the board of Review Stage denying me my right to procedural fairness. Instead, he biasedly supported that the process was carried out correctly and there was no external person to oversee this. The Commissioner has no evidence to prove that Mark’s verbal submission that on occasions when he found a deficit in the process at the Board of Review stage, he has been involved Robust conversations and has advocated the matter is sent back to ensure any disciplinary process undertaken is procedurally fair, was not due to his personal like of the teacher whose competence was being questioned over mine. Mark Anghel’s professionalism needs to be questioned due to his ability to lie under oath. As the Commissioner did not consider that Mark lied, her judgement to justify that the process was procedurallv fair is inaccurate making her judgement to terminate my employment harsh, unreasonable, and unjust.”
[247]	Ground 37 attacks the findings at paragraphs [128] and [129] to which I have referred when dealing with ground 36. The complaints under ground 37 are many and varied, but clearly concern that part of the judgment dealing with “predetermined outcome”.  The findings all turn on questions of credit and there is no good reason identified to upset those findings. Ground 37 fails.
[248]	Ground 38 is as follows:
“38.	As at paragraphs 130-136, and as for reasons already justified in previous paragraphs, the Commissioner has misunderstood, invalidated and or not referred to each argument that I present in my affidavit 20 with attached exhibits, all my written submissions and extensions of arguments and each verbal submission made so her determination of judgement made in these paragraphs are unjust, harsh, and unreasonable. One specific misunderstanding of the Commissioner and therefore a procedural flaw to this process at paragraph 136, is the Commissioners justification of the concept of practical injustice and how it relates to my case. the Commissioner had no practical experience observing my performance in the classroom setting as well as no practical life experience in a modern teaching situation to base her judgement on and has therefore relied too heavily on the submissions that have occurred externally to the practically implemented process, and therefore it is unreasonable to say that I have not suffered any practical injustice. In not considering this, the Commissioner has failed to understand that the entire situation was “practical injustice” as it was and continues to me more than a reasonable person and competent teacher, should, could or would withstand making her devaluing of this in her rulings, harsh, unjust, and unreasonable.”
[249]	Ground 38 criticises the findings at paragraphs [130] to [136] of the Industrial Commissioner’s reasons. Paragraphs [131] to [135] are:
“[131]	As part of the submission that the outcome was pre-determined, the Applicant also submitted that prior to commencement of Term 1 with Coombabah SS, she received a letter from Mr Gleadhill confirming the dates that a familiarisation process would run, the pupil-free days and confirming the MUP process will start in Week 5 of Term 1 (following a 20-day ‘settling in period’). The Applicant submits that the MUP process commenced earlier than Week 5 as evidenced by the level of scrutiny of her performance. The Respondent submits that although there was a 20 day ‘settling in period’ prior to the recommencement of the MUP process, this did not mean the Applicant was not subject to the norms of professional behaviour. The Respondent submits that complaints about the Applicant began almost immediately upon commencement of the school term.
[132]	I accept that the MUP process did not formally re-commence until Week 5 and that any documentary notes regarding complaints or performance issues were recorded as they would have been with any other teacher not on a MUP process. The ‘settling in period’ did not require the school administration to ignore concerns when they were raised. The period was intended to allow the Applicant to familiarise herself with the school processes before focusing on the MUP process, not a hiatus from professional accountability. Standard observations and the taking of contemporaneous notes of the Applicant’s performance within the first 20 days did not suggest that the outcome of the MUP process was pre-determined or that procedural fairness was not afforded. 
Procedural fairness generally
[133]	In the Applicant’s Statement of Facts and Contentions, it is contended that the performance management process was flawed as it was commenced as a consequence of bullying by Ms Salazar at Coomera SS. In the Respondent’s Statement of Facts and Contentions, the Respondent stated that the allegation of bullying was examined and the Regional Director found that she was not satisfied that the actions taken by the Coomera leadership team were unfair or represent bullying and harassment and that the actions of Mr McMillan and Ms Salazar were considered reasonable management action. Given that the performance issues witnessed by Ms Salazar were also identified by Mr McMillan, Ms Flesser, Mr Gleadhill, Ms Bentley, Mr Josey and other staff, I do not accept that Ms Salazar’s involvement in the commencement of the process rendered the process unfair.
[134]	Examining the MUP and disciplinary process from a procedural viewpoint reveals a considered process throughout which the Applicant was included in all aspects of the lengthy procedure, in that:
•	the Applicant was given documentary feedback making her aware of concerns regarding her performance as far back as 18 November 2015 following the informal classroom visit by Mr McMillan at Coomera SS. Mr McMillan conducted a regular classroom visit as he would do with every other teacher. Following this visit, the Applicant received feedback that listed constructive improvement recommendations and noted that the lesson ‘was not successful’; 
•	the Applicant was given multiple opportunities over the lengthy process to address the concerns of the Respondent. The Applicant accepted in evidence that Ms Salazar raised many issues as per the detailed chronology dated 25 February 2016. Mr McMillan arranged weekly or fortnightly meetings to discuss how the Applicant was tracking against the criteria;
•	the Applicant acknowledged that she was told that the timeframe to demonstrate improvement was by August 2016 before consideration was given to progressing to a Stage 2 formal process;
•	Mr McMillan formed the view that the Applicant was not meeting expectations based on unsolicited parent complaints, student issues, children not wanting to go to school, and staff observations. It was reasonable in these circumstances to progress to a formal Stage 2 MUP process;
•	after the Applicant was transferred to Coombabah SS, she went through an induction to ensure she was aware of staff and duty responsibilities and where she could seek support (e.g. the Head of Curriculum, Master Coach and teaching team cohort); 
•	a 20 day settling in period was held prior to re-commencing the MUP process. The evidence of Mr Gleadhill and Ms Flesser was that deficiencies in the Applicant’s performance became apparent almost immediately;
•	following the findings that the Applicant had not engaged in Stage 2 of the MUP process, Stage 3 of the process commenced. Stage 3 of the MUP process allowed the Applicant to identify which three lessons she would like the external reviewers to attend. Only one class had the presence of the reviewers unannounced. After every observed lesson, the Applicant met with the reviewers to discuss their observations. This process offered the Applicant the very best opportunity to demonstrate her performance as a classroom teacher;
•	the notes taken by the external reviewers for the Stage 3 MUP process are specific and provide a clear picture of a teacher who is not performing to an acceptable standard. The Applicant was given every opportunity to perform at her best throughout the Stage 3 MUP process, particularly given that she was able to nominate the three classes in which she was to be observed by the external reviewers; and
•	following the external reviewers’ observations and review of the MUP process to this point, it was entirely reasonable to conclude that disciplinary action should be considered and to refer the matter to the Board of Review.
[135]	In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, Gleeson CJ discussed the manner in which procedural fairness cases are approached by the courts: 
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
[250]	Paragraph [130] of the Industrial Commissioner’s reasons appears at paragraph [230] of these reasons and paragraph [136] appears at paragraph [42].
[251]	The essence of ground 38 is that the Industrial Commissioner is not apparently qualified to judge Ms Porche’s performance and the reasonableness of the respondent’s actions.
[252]	The Industrial Commissioner decided the case by making factual findings on the evidence which she accepts and applying the law to that evidence. The Industrial Commissioner’s approach was completely conventional. The Industrial Commissioner does not have to demonstrate any special qualifications to hear Ms Porche’s case.
[253]	There is no substance in ground 38 and it is rejected.
[254]	Ground 39 is:
“39.	As at paragraph 138, the Commissioner erred to understand that she has no solid factual and proven truthful evidence to justify her statement that she is “satisfied that the substance of the performance issues raised over the extensive period were put to the Applicant on a regular basis ensuring that there were no genuine procedural deficiencies that impacted on the final determinations of the applications employment. Again, the Commissioner has failed to consider, all my verbal and written arguments and the affidavits and exhibits submitted, that state otherwise and need to be given equal weight of validity as the departments non- tested submissions and verbal and written submissons.”
[255]	Ground 39 refers to paragraph [138] of the reasons, which is:
“[138]	Given the above consideration, the question of whether the process was procedurally fair must be considered along with the substance of the matter as a procedural deficiency will not necessarily result in a determination that the dismissal was harsh, unjust or unreasonable. In this matter, I am satisfied that the substance of the performance issues raised over the extensive period of time were put to the Applicant on a regular basis ensuring that there were no genuine procedural deficiencies that impacted on the final determination of the Applicant’s employment. If the individual complaints that were not specifically put to the Applicant at the time they occurred are excluded from consideration, the remaining performance deficiencies were sufficiently serious to warrant dismissal.”
[256]	Ground 39 challenges the finding by the Industrial Commissioner of her satisfaction “that the substance of the performance issues raised over the extensive period of time were put to the Applicant on a regular basis ensuring that there were no genuine procedural deficiencies that impacted on the final determination of the Applicant’s employment”.  
[257]	That finding does not stand alone. The finding in paragraph [138] refers back to the careful and detailed findings of both fact and law made in the body of the reasons.  The conclusions drawn at paragraph [138] are the culmination of an assessment of the evidence by the Industrial Commissioner and her application of legal principles.  For the reasons given when considering other grounds, no legal or factual error has been identified and ground 39 is rejected.
[258]	Ground 40 is expressed as:
“40.	As at paragraph 139-140 the Commissioner erred to understand that all teachers are required to access the C2C units and deliver them and as evidenced in my cross examination of Tina Flesser, I was downloading and implementing the C2C units when on the MUP. The Commissioner erred to understand that Tina and Murray were critiquing the C2C units in their critiquing of my lessons, failing to realise that it’s exploitation and an abuse of process for administration to try to hold me personally accountable for the poor lesson design of the C2C units and forcing further excess of workload and my employment vulnerability to use the strategy of victimisation through their ongoing threat of refusing to sign me off if I don't please them and marking and grading the delivery of my lessons untruthfully and harshly. The Commissioner failed to understand how this is an abuse of process and it gave all the principals, deputies, and external principals too much power over my employment and was abusive to a teacher of my experience and a threat to my job security and unfair at a time I had the right to balance being a mother and being employed. This was an abuse of process and a procedural flaw as it was harsh, unreasonable, and unjust to not hold all teachers across Queensland as equally, personably accountable for the flaws in the C2C units, forcing them to go home like I had to and spend money and time on improving the resources or they will not pass teacher competency. As verbal and written submissions are evidence, the Commissioner is not giving weight to my evidence of the excessiveness of this situation, and biasedly giving more weight to the departments and administrations, verbal, and written submissions on this judgment. The Commissioner misunderstood my arguments by inaccurately stating that I “saw the lessons plans as an unnecessary addition to my job, rather than tools to assist her to perform her usual job to a satisfactory standard” as this is not what I have been arguing at all throughout my submissions. The Commissioner also needs to consider at paragraph 140 she has no evidence or no formal measure or no life experience in the modern classroom to validate her statement that what I experienced “could not be reasonably considered as excessive workload.” As the Commissioner did not consider these important considerations, her determination not to reinstate me was harsh, unjust, and unreasonable.”
[259]	This ground attacks the findings at paragraphs [139] and [140] of the Industrial Commissioner’s reasons. Paragraph [139] is set out at paragraph [57] of these reasons. Paragraph [140] is:
“[140]	Much of the Applicant’s evidence and submissions addressed broad issues such as being overworked and noted that she was required to attend an excessive number of meetings. I note that at no stage was the Applicant required to attend meetings outside of work hours and time within her workday was given away from her class during work hours to support her writing of lessons plans. Attending meetings during work time and drafting relevant documents directly relevant to her teaching could not reasonably be considered excessive workload.”
[260]	By ground 40, Ms Porche asserts that, contrary to the findings made by the Industrial Commissioner, the workload on her was significant and impacted upon her performance in the MUP process.  
[261]	The findings at paragraphs [139] to [140] are made at that point in the judgment where the Industrial Commissioner is determining whether the dismissal was harsh, unjust or unreasonable. That was the ultimate question for the Industrial Commissioner and so paragraphs [139] and [140] of the reasons are conclusions which draw from earlier findings and determinations. These are the issues considered under earlier grounds where Ms Porche has failed.
[262]	There is no basis upon which the findings at paragraphs [139] and [140] of the reasons can be challenged as being infected by either an error of law or error of fact. There is no substance in ground 40.
[263]	Ground 41 is:
“41.	At paragraph 141, the Commissioner erred to understand that she had no physical evidence to prove that the cleaners’ allegations of the room being so consistently messy, was in fact true and not another exaggeration forcing me into oppression through having to defend the truthfulness of the allegations. Again, the Commissioner failed to give solid evidence that the culmination of single incidents were true and accurate accounts of the incidents and not twisted and exaggerated for the purpose of exploiting me whilst on the MUP. The Commissioner erred to understand that this whole situation was an abuse of process as it put me in a vulnerable situation, as I am not a lawyer and do not have the training to stand up for myself with ease, making my workload again more excessive and she failed to understand that I had to pay a lawyer to respond to the show cause process due to this reason, so her statement that I responded to the show cause process was untruthful as it was my paid lawyer responding as this was a process beyond my teacher training, again highlighting an abuse of process. As the Commissioner did not consider these important considerations, her judgement was too harsh, unreasonable, and unjust.”
[264]	What is attacked under ground 40 is paragraph [141] of the reasons, which is:
“[141]	The Applicant responded to the show cause process by objecting to being made to respond to ‘trivial’ matters alleged to have occurred over such a long period. The difficulty with the Applicant’s submission that the particulars were ‘trivial’ is that the culmination of single incidents have a serious impact over time. The extensive chronology of matters in evidence outlines performance deficiencies that whilst taken as a single act may not be viewed as serious, become a genuine performance issue when repeated. One example is the untidiness of classroom. On a single occasion this may be considered trivial, however, when an email is received from the school cleaners advising that they cannot clean the Applicant’s room because of the consistently messy state, then it becomes a genuine performance issue. Other issues ranging from failure to conduct effective lessons to yelling at students are issues that if repeated, become serious performance issues. A number of issues such as failing to mark the roll properly are serious safety issues on every single occasion.”
[265]	Again, paragraph [141] is part of the Industrial Commissioner’s ultimate consideration of whether the dismissal was harsh, unjust or unreasonable. The evidence concerning the untidiness of the classroom and the failure to mark the roll are dealt with under earlier grounds with which I have dealt.  No new issues are raised by ground 41.
[266]	Ground 42 is as follows:
“42.	As at paragraph 142, the Commissioner again erred to consider that she has no experience in the modern day teaching environment and she was not physically present when I was being mistreated on the process, so she has no work experience to justify her decision to devalue and invalidate my submissions, that what I was experiencing was exaggerations of the truth in the form of nit-picking and the whole process was used as strategy to create a culmination of data on me to silence my original reporting to the union and administration, that I did not feel a sense of job security due to the level of students who exercise unsafe behaviours , which made up the dynamics of my class across both schools. The Commissioner failed to understand that she was projecting her own lack of insight of the situation onto me by her comment “that I showed limited insight into the cumulative impact that these failures have on student's safety and learning”, as she failed to understand that it was a strategy for administration to give me exceptionally badly dynamically designed classes whilst being exposed to this process, as a means to make it easier for them to cover their backsides on paper on the event the ongoing scrutinization drove me to burnout and a court process to stand up for my breached rights. The Commissioner erred to understand that this is a real-life strategy administration implement and her misunderstanding of this led to her inability be realistic on the impact that these implications have on me in the work environment, and all of this takes away from the students taking ownership that if they choose to misbehaviour or not act safely at the end of the day that is a choice they made and it started with the thoughts in their head. As the Commissioner failed to understand and consider all these things due to her lack of experience and insight into what goes on in the modern teaching environment as compared to what is presented on paper, she made a judgement that was too harsh, unjust, and unreasonable.”
[267]	Ground 42 challenges paragraph [142] of the reasons, which is in these terms:
“[142]	The Applicant describes the issues raised as ‘nit-picking’ and shows limited insight into the cumulative impact these failures have on student’s safety and learning. The indifference to parent complaints and dismissal of colleague concerns as motivated ‘by other agendas’ suggests a pattern of thinking that was unlikely to improve. The continued pattern of unprofessional conduct confirms that the Applicant was either unable or unwilling to perform her duties in accordance with the requirements of the role.”
[268]	Ground 42, like ground 38, alleges that the Industrial Commissioner does not have sufficient experience and expertise to decide the case. Under ground 42, Ms Porche asserts that the Industrial Commissioner could not make findings against her because she (the Industrial Commissioner) was not a witness to the events relevant Ms Porche’s application. That submission is totally misconceived. For the reasons explained under ground 38, ground 42 ought to be rejected.
[269]	Ground 43 is:
“43.	As at 151, the Commissioner erred to understand from my all my submissions, affidavits, exhibits, and written arguments and extensions of arguments, that I did work very hard to meaningfully engage with all the processes however, due to my 19 years of experience I was aware of the strategies the principals were using, which were unfairly pushing me into hypervigilance to milk me on this process for as long as they did and as long as they could. In not considering this the Commissioner has erred to understand and has no grounds to invalidate my verbal submission as genuine evidence that what I had experienced was more that what a reasonable person could withstand and there was no way possible to meet all the expectations of the principals on any of these processes due to the excesses and overload of work. In failing to have solid justifiable evidence, that the Commissioner does not in fact have reason to devalue all of my submissions and doing this she is failing to understand that this is abuse in itself as she has no grounds to tell me what I experienced I didn’t experience when being subject to this process and this is a form of abusive gaslighting to try to justify this in her explanations and force me along this process to continue to defend myself in writing and hearings. As the Commissioner failed to consider all these important considerations her decision to terminate me was unjust, harsh, and unreasonable and this situation is more that what a reasonable person can, should or would withstand.”
[270]	Ground 43 concerns paragraph [151] of the reasons.  That is:
“[151]	If the Applicant had meaningfully engaged with the MUP process or accepted coaching and feedback, it may well be that the decision to terminate could be considered harsh. However, the Applicant’s insistence that performance management was in fact bullying and that the complaints were motivated by other agendas meant that the extensive level of support and coaching was never accepted by the Applicant. The Applicant’s consistent refusal to accept that there was any basis for the continued complaints from students, parents and staff meant that the Respondent had no option after such a long period of deficient performance but to terminate her employment. The safety and learning outcomes of the students were dependent on the Applicant performing at the level expected of a teacher. The decision was not harsh in that it was proportionate to the substantiated conduct which had occurred over a lengthy period of time without any prospect of improvement. It was just, fair, and reasonable in the circumstances.”
[271]	By this ground, Ms Porche complains that:
1.	the workload upon her was beyond reasonable expectations;
2.	the Industrial Commissioner did not consider all evidence and arguments relevant to this issue.
[272]	Paragraph [151] is part of the Industrial Commissioner’s determination of the ultimate question, namely whether the dismissal was harsh, unjust or unreasonable. The comments at paragraph [151] relate back to other findings which have been the subject of individual grounds.
[273]	For the reasons given in dismissing earlier grounds, the Industrial Commissioner was justified in finding that Ms Porche did not meaningfully engage with the MUP process. Once that point is reached, that finding can be taken into account by the Industrial Commissioner in determining whether the dismissal was harsh, unjust or unreasonable. No error is shown in paragraph [151] and there is no substance in ground 43.
[274]	Ground 44 alleges:
“44.	At paragraphs, 150 and 151 the Commissioner has based her justifications again on this misunderstanding that I did not engage with the process to improve my performance and maintain my employment assuming that it was possible to engage in the process without being driven to illness due to the excessive abuse of process through the implementation of strategies which were oppressing me on the process as well as my exposure to excess. In failing to understand this, the Commissioner fails her duty of care, to take ownership for the serious impact on my personal life and my ability to service my financial obligations that her decision has had and continues to have. At paragraph 160, the Commissioner further failed her duty to provide me justice in the court setting, by her unjustified support of Mr Coughlan’s statement that I performed all my duties carelessly, incompetently, or inefficiently, because she has not proven that I was managed in a way that it was possible to perform all these duties successfully in the work environment. Again, the Commissioner has no grounds to dismiss my verbal submissions and written arguments and exhibits as sufficient evidence to prove that what I experienced was not an abuse of process and she has no modern life experience as a teacher or was not physically present at the school at the time I was exposed to this process to make her judgement valid and justifiable. As the Commissioner has not considered all these critical points, it appears that her determination to dismiss my application for reinstatement was harsh, unjust, and unreasonable.”
[275]	Like ground 43, ground 44 criticises the finding at paragraph [151] of the reasons.  That is set out earlier.  Paragraphs [150] is in these terms:
“[150]	The Applicant feels aggrieved that her employment has been terminated in circumstances in which she is a single parent and is responsible for mortgage payments and other financial commitments. I accept that the decision to terminate the Applicant’s employment has had a serious impact on her personal life and her ability to service her financial obligations. It is unfortunate that a teacher who had spent many years in her profession could not find a way to engage with the process to improve her performance and maintain her employment.”
[276]	In essence, this ground complains about the finding by the Industrial Commissioner that Ms Porche did not engage with the MUP process.  As I have concluded in relation to other grounds, that finding was open to the Industrial Commissioner.  Consequently, ground 44 fails.
[277]	Ground 45 is:
“45.	I will skip to paragraphs 150-160, to conclude my appeal as I am at my mental capacity as this situation is continuing to be more than what a reasonable person can withstand, is continual and ongoing abuse to me as abuse is the act of forcing someone into oppression and the ongoing stress in continuing to make me anxious and unhappy in my life. I am writing this on jobseeker, so my financial security is not being met while I write it and I do not have formal legal training to write this appeal well to ensure success at this stage which is further abuse of process considering I need to work and earn a living for survival. The Commissioner needs to understand that due to mental capacity and the stress of the situation, I have not been able to respond to each paragraph that she wrote to justify each judgement. It is for this reason she needs to understand it is extremely hard for me to write this appeal and respond to each judgement in paper and for this reason she needs to consider that her judgements to date have been harsh, unjust, and unreasonable.”
[278]	Ground 45 refers to paragraphs [150] to [160] of the reasons for judgment.  Paragraphs [150] and [151] appear elsewhere in these reasons.  There is no need to set out paragraphs [152] to [160]. Ground 45 does not purport to assert a basis upon which the appeal ought to succeed. Ground 45 simply contains an explanation as to why Ms Porche feels unable to respond to each and every paragraph of the Industrial Commissioner’s reasons for judgment.
[279]	Ground 45 raises no new issues and it ought to be rejected.
Conclusions
[280]	There is no substance to any of the 44 grounds raised by Ms Porche.  No legal or factual error has been identified.
[281]	As previously observed, Ms Porche wished to seek leave to raise any grounds that she could not pursue as of right. However, there is nothing of substance, whether factual or otherwise, identified in any of the 44 grounds. Therefore, the appeal ought to be dismissed.
Orders
[282]	The appeal is dismissed.