Ex-Bega assistant principal loses unfair dismissal case over performance concerns

A former assistant principal’s unfair dismissal case has failed after she lost her job over concerns about her performance at a school on the NSW Far South Coast.

Heather Cross worked as Bega Valley Public School’s assistant principal from 2012 until she was told to resign or be fired in 2022. Her performance was found to be unsatisfactory when she completed an executive teacher improvement program in 2021.

She took the NSW Department of Education to the NSW Industrial Relations Commission in an attempt to get re-employed with back pay, but last month, Commissioner Damian Sloan dismissed the 60-year-old’s application.

He said a former school principal, Carolyn Nugent, and the current principal, Melissa O’Meara, reported concerns about Ms Cross’s performance, which they separately tried to address over a few years from 2019.

Ms Nugent said around 2019, she was “not seeing clear evidence of Ms Cross’s educational leadership skills”.

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

At the end of the program, Ms O’Meara reported: “It is recommended that Ms Cross has not made sufficient improvement to meet the standard of performance required for the position of an executive teacher.”

The department then told her to report to Cobargo Public School to “perform alternative duties”, pending the outcome of a review process. This 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,” it said.

In early 2022, a department official told Ms Cross that if she didn’t resign, she would be fired, so she offered her resignation.

However, the commission did determine that despite having tendered her resignation, she was dismissed from her employment. The commission then had to decide whether her dismissal was harsh, unreasonable or unjust.

Ms Cross, who began working in education in 1987, alleged she had been discriminated against on the basis of disability, as she had taken periods of sick leave in 2019.

She argued in part that there had been no clear advice as to what the issues were with her performance and what she needed to do to improve. She also claimed she had given long service to the department and would have difficulty finding another job in a regional area.

However, the department argued she refused to accept her performance was deficient and, as a result, did not engage properly with the process or seek out all of the available support.

Ms Cross questioned the credibility of the two principals as well as other witnesses; however, Commissioner Sloan said it was Ms Cross who was not an impressive witness.

“Even allowing for the fact that she is the applicant in proceedings in which she alleges that she was the victim of a flawed and unfair, even discriminatory, process, she came across as a difficult, and at times belligerent, witness,” he said.

“Her answers to questions in cross-examination were frequently non-responsive or coupled with self-serving asides or editorial comments.”

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

Also, he thought that “on a number of occasions, Ms Cross responded ‘I don’t recall’ to shut down a line of enquiry or to avoid responding to questions which may have been contrary to her interests”.

Commissioner Sloan said the suggestion that there was a coincidence between Ms Cross taking sick leave and Ms Nugent raising performance-related concerns was “not borne out of the evidence”.

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

“I am not persuaded that Ms Cross was the subject of unlawful discrimination, which rendered her dismissal unfair,” he said.

He said the dismissal was not unreasonable, unjust or harsh.