Nikolic v New South Wales Department of Education and Training [2003] NSWIRComm 59 (14 March 2003)

Last Updated: 16 April 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Nikolic v New South Wales Department of Education and Training [2003] NSWIRComm 59

FILE NUMBER(S): 4644

HEARING DATE(S): 05/03/2003

DECISION DATE: 14/03/2003

PARTIES:

Dragic Nikolic in person

New South Wales Department of Education and Training

JUDGMENT OF: Grayson DP

LEGAL REPRESENTATIVES

APPLICANT

Mr D Nikolic

RESPONDENT

Mr P Newell of counsel

instructed by the Department of Education and Training

CASES CITED: Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565

Bigg v NSW Police Service (1998) 80 IR 434

R v Gidley [1984] 3 NSWLR 168

R v Zorad [1990] 19 NSWLR 91

Re Homebush Abattoir [1966] AR (NSW) 386

Vincent Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227

Western Suburbs Ambulance Committee v Tipping [1957] AR (NSW) 273

LEGISLATION CITED: Industrial Relations Act 1996, Teaching Services Act 1980

JUDGMENT:

- 3 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Coram: Grayson DP

Friday, 14 March 2003

Matter No IRC 4644 OF 2002

DRAGIC NIKOLIC AND NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING

Application by Dragic Nikolic re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996

DECISION

[2003] NSWIRComm 59

1 The applicant commenced employment with the respondent in July 1998 as a probationary teacher. His period of probation was interrupted by a lengthy period of absence due to illness and it resumed in early 2001 at the respondent's Canely Vale High School.

2 During the probationary period, concerns about the applicant's competency as a teacher emerged and he was placed on a teacher improvement program. The respondent formed the view that sufficient improvement had not been demonstrated and in July 2002 served the applicant with formal notification under the Teaching Services Act 1980 that his appointment was annulled with effect from 16 August 2002.

3 On 12 August 2002 the applicant commenced proceedings under Part 6 Unfair Dismissals of Chapter 2 of the Industrial Relations Act 1996. Despite attempts in September 2002 and October 2002, conciliation was unsuccessful and the matter was programmed, with the usual directions as to filing and service of evidence, for hearing on 5 March 2003.

4 At hearing the applicant appeared unrepresented and Mr P Newell of counsel appeared for the respondent.

5 The applicant's complaint or the essence of it, is that the respondent failed to follow it's own Procedures for Managing Probationary Teachers, in particular those procedures concerned with the development and operation of the improvement program. By way of example, the program contemplates the identification of specific areas of performance where difficulties have been identified, the indicative standard of performance, the time frame of the program, strategies to overcome areas of concern, support to be provided, process for monitoring feedback and timetabling for formal review and so on. The procedures outline the course to be followed in the event that there is no improvement in the probationer's performance and the prospect of termination of the probationer's service in such circumstances is clearly flagged.

6 The applicant's further and far more serious complaint is that his signature was forged on numerous documents making up the procedural record of the improvement program and further, that the annulment of his appointment was racially motivated. He said he routinely signs his name using the Cyrillic alphabet (an alphabet devised for Slavonic languages) and that the only genuine signatures in the relevant record were in Cyrillic script.

7 The respondent called Mr Warren Parkes, who was a Deputy Principal at Canely Vale High School throughout 2001. Mr Parkes deposed among other things, to meeting with the applicant in September 2001 and discussing with him the improvement program which had been drawn up. He said the program nominated 6 areas of teaching in which the applicant would need to demonstrate improvement. He said the applicant signed the program document in his presence. The applicant said he was not shown the document and did not sign it. Mr Parkes said Head Teacher, Mr Cranny was appointed to, and did conduct classroom observations of the applicant and that Mr Cranny's observation reports were provided to him and then forwarded to the District Superintendent with the final program package. Mr Parkes said he met with the applicant throughout the program and discussed with him in detail, his progress measured against the 6 identified areas of concern. He said he wanted the applicant to improve and acted according to that objective in his dealings with the applicant. He denied telling the applicant at any stage that he would obtain his teaching certificate. He said he had "an express and clear recollection" of seeing the applicant sign reports of each of those meetings. He also saw the applicant sign the document entitled Principal's Report on Teacher in December 2001.

8 The respondent called Ms Seto, also a Deputy Principal at Canely Vale High School in 2001. Ms Seto deposed to having observed the applicant sign an Accident/Incident Report in December 2001. Whilst the applicant disputed the signature, he did not dispute the writing in the body of the document. Clearly, he has proficiency in written English.

9 The final witness for the respondent was Mr Mooney, Superintendent of the respondent's Fairfield District. Mr Mooney deposed among other things, to having investigated allegations similar to those raised by the applicant in the course of these proceedings namely, that signatures appearing on improvement program documents were not his and that he had not been provided with program documentation as the procedures required. I am obliged to say at this point that the applicant's evidence when taken to the latter allegation in cross examination, had a decidedly equivocal character to it.

10 At all events, Mr Mooney concluded after inquiring into the applicant's allegations in early 2002, that they could not be supported. On the evidence as it stands, I am of the same view and although the allegations are clearly in the realm of possibility, I am satisfied that the evidence of Mr Sparkes and Ms Seto as to directly observing the applicant signing certain of the questioned documents is credible evidence and should be accepted.

11 I am further satisfied that the respondent conducted itself according to correct procedures and that it was, as Mr Newell submits, genuine in it's wish and in its attempts to assist the applicant in improving his teaching performance. Regrettably for the applicant, and it might be observed, for the respondent, who had a vested interest in seeing the applicant succeed, this did not happen.

12 It is well settled on the authorities that an applicant must establish elements of unfairness such as to warrant the intervention of the Commission (see Western Suburbs Ambulance Committee v Tipping [1957] AR (NSW) 273; Bigg v NSW Police Service (1998) 80 IR 434; Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565; Re Homebush Abattoir [1966] AR (NSW) 386 and others). In this case, the applicant has not done so in my opinion.

13 I say that bearing in mind as always in cases of this kind where litigants appear unrepresented, that one needs to be conscious of a lesser form of forensic sophistication than would otherwise be the case and further that the Commission, as always, is enjoined by s163 of the Industrial Relations Act 1996 to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

14 In that regard, the applicant was assisted with appropriate guidance and advice (see for example, Vincent Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227; R v Gidley [1984] 3 NSWLR 168; R v Zorad [1990] 19 NSWLR 91) and was granted considerable indulgence in respect of the manner in which evidence was adduced, cross-examination was conducted and so on.

15 There being no warrant for the Commission's intervention, the application must be dismissed and I do so accordingly.

LAST UPDATED: 21/03/2003