Former Bega deputy manager loses unfair dismissal case over performance issues

A former deputy principal’s unfair dismissal case has failed after she lost her job over concerns about her performance at a school on the NSW south coast.

Heather Cross worked as a deputy principal at Bega Valley Public School from 2012 until she was told to resign or be sacked in 2022. Her performance was found to be unsatisfactory when she completed an executive teacher development program in 2021.

She filed a complaint with the NSW Department of Education’s Industrial Relations Commission in an attempt to be rehired with back pay, but last month Commissioner Damian Sloan rejected the 60-year-old’s claim.

He said a former headteacher, Carolyn Nugent, and current headteacher, Melissa O’Meara, raised concerns about Ms Cross’s performance, which they tried to resolve separately over a few years from 2019.

Ms Nugent said that in 2019 she saw “no clear evidence of Ms Cross’s educational leadership skills”.

During the improvement program, numerous lesson plans, syllabi or lessons taught by Ms. Cross were rated as unsatisfactory.

At the end of the program, Ms. O’Meara reported: “It is recommended that Ms. Cross has not made sufficient progress to meet the level of performance required for the position of Executive Teacher.”

The department then asked him to report to Cobargo Public School to “perform alternative duties” pending the outcome of a review process. That review upheld the principal’s recommendation.

“The principal’s recommendation that the teacher’s performance is unsatisfactory and does not meet the standard required for the position of classroom teacher or the leadership criteria for an assistant principal is supported by the documentation and should be upheld,” he said.

In early 2022, a ministry official told Ms Cross that if she did not resign she would be fired, so she offered her resignation.

The commission nevertheless determined that despite her resignation, she had been dismissed. The commission then had to decide whether her dismissal was harsh, unreasonable or unfair.

Ms Cross, who started working in education in 1987, claimed she was discriminated against because of her disability because she took periods of sick leave in 2019.

She argued, among other things, that she had not received clear advice about issues with her performance and what she needed to do to improve. She also said she had a long history with the department and would have difficulty finding another job in a regional setting.

However, the department argued that she refused to accept that her performance was deficient and, as a result, that she had not engaged properly with the process or sought all available support.

Ms Cross questioned the credibility of both directors and other witnesses; however, Commissioner Sloan said it was Ms Cross who was not an impressive witness.

“Even taking into account the fact that she is the applicant in a procedure in which she alleges that she was the victim of a flawed and unfair, even discriminatory, process, she appears to be a difficult and sometimes belligerent witness,” he said.

“His answers to questions posed during cross-examination were often irrelevant or accompanied by self-serving asides or editorial comments.”

The commissioner said: “On several occasions, Ms Cross’s stated inability to recall a particular matter was at odds with her own evidence.”

He also found that “on several occasions, Ms. Cross responded ‘I don’t remember’ to close a line of inquiry or to avoid answering questions that might have been contrary to her interests.”

Commissioner Sloan said the suggestion that there was a coincidence between Ms Cross’s sick leave and Ms Nugent’s concerns about her performance was “not supported by the evidence”.

He acknowledged that the level of support provided to Ms Cross was less than what the two directors described, “but the fact remains that some support was offered”.

“I am not satisfied that Ms Cross was subject to unlawful discrimination, which would render her dismissal unfair,” he said.

He said the dismissal was neither unreasonable, unfair nor harsh.