The Western Australian Industrial Relations Commission (the Commission) has ordered that a former teacher (Ms H) be reinstated by the Department of Education after she was dismissed following allegations of misconduct during a National Assessment Program – Literacy and Numeracy (NAPLAN) test. Acting Senior Commissioner Scott also ordered that Ms H should be compensated for her lost remuneration during the period. The investigation into the allegations was seen as deeply flawed and the evidence relied upon was described as “so unreliable and biased as to be of little if any value”.

Background

Ms H was a teacher at a West Australian primary school who taught a mix of Year One, Two and Three students. The investigation occurred after an Education Assistant, Ms G, alleged that Ms H engaged in misconduct during the administration of the Language Conventions NAPLAN test for the Year Three students in her class. Ms G alleged that Ms H:

• assisted a number of students to complete the test by pointing to the correct bubble to be shaded;
• told five students to change their answers;
• changed answers for two students;
• set up the classroom so the students sat in two lines, close enough to copy answers;
• gave all students an extra twenty minutes to complete the exam, and gave two students five more minutes in addition to this; and
• referred to a student as “a little b*tch”.

Ms G reported most of these allegations to the Principal, who then notified the Australian Curriculum, Assessment and Reporting Authority (ACARA) and the School Curriculum and Standards Authority (SCASA). An investigation was conducted by the Department of Education’s Standards and Integrity section (the Investigation). Following the findings of the Investigation report, the decision was made to terminate Ms H’s employment.

Ms H denied the allegations, stating that she had at all times adhered to the procedures outlined in the NAPLAN Handbook. She stated that she had assisted the students during the practice sections of the paper, which is permitted, but that she merely offered emotional support and encouraged students to focus during all other questions. In addition, she said that the students were seated with an empty desk on either side, which was possible given that there were 12 students in a classroom with 23 desks. She also said that she had called the student a “witch”, which was a pet name used by the student’s family.

The Investigation

The Investigation involved interviewing key members of staff (Ms H was not interviewed on the advice of her then-lawyers) and a number of the 8 year old students. These interviews took place five weeks after the alleged misconduct took place. In examining the Investigation report and briefing note, Acting Senior Commissioner Scott found a number of errors and omissions that could significantly impact the findings of the Investigation:

• Flawed comparison method: the Commission found that there were significant issues with the way in which the data was analysed, and that greater scrutiny revealed that several of the students were relying on guesswork. The failure to take this into account was made worse by the fact that the Investigation failed to acknowledge in their analysis that a student ‘V’ stated in her interview that she had relied on guesswork.
• Confused investigators: when interviewing the students, the investigators failed to distinguish between the different NAPLAN tests, which caused a significant amount of confusion. Many of the students referred to the other tests that were not the subject of the Investigation. These errors were not corrected by the investigators, who themselves asked questions relating to tests which were not the subject of the Investigation.
• Flawed sources of evidence: it was also revealed that some of the events that Ms G attributed to the Language Conventions test had actually taken place following the numeracy test.
  The students and Ms G were all invited to submit a diagram of the classroom, and the only diagram which was clear enough to provide assistance belonged to a student who had been mistakenly asked to draw the layout of the room during the Reading test.

Failure to consider alternatives

One of the core criticisms of the report was the failure to consider reasonable alternative explanations for the allegations and for Ms H’s behaviour.

Throughout the investigation, it was clear that the Investigation was either unaware or placed no significance on the fact that the test which was the subject of the investigation had a practice section, during which the administrator may go through the practice questions, demonstrate how to answer the questions, give the correct answer and answer the questions of students. Some of the students and Ms G failed to distinguish between the practice test and the test itself when discussing Ms H’s conduct. The students on several occasions indicated that Ms H “helped”, but there was no attempt to ask the students to distinguish between the emotional support and encouragement that Ms H openly acknowledged she provided and the misconduct that was alleged by Ms G.

The Investigation also failed to acknowledge alternative reasons for the decline in students’ results between the first and second tests. In the first test, Ms H stated that she provided close supervision and encouraged students to complete all the questions. She also kept the classroom in a familiar structure, as many of the students were nervous and she believed that this would make the test less intimidating. In the second test, several questions that were marked incorrect were actually unanswered. The less relaxed and less closely supervised environment could have contributed to the difference in the test results.

Finally the evidence given by Ms G was rejected by Acting Senior Commissioner Scott. Ms G made several key concessions which undermined her evidence, which revealed her unfamiliarity with the NAPLAN procedures and the fact that many of her allegations were based on assumptions with little solid evidence. Despite having stated that the students were given an additional 20 minutes and that Ms H spent 10 minutes assisting V, Ms G conceded that she did not have a watch or any way of measuring the time and that the times mentioned were guesses. She also stated that Ms H pointed to the correct answer in multiple choice questions when she was unable to see the test paper and, in one instance, she alleged this was the case when the test required a short written response. The Commission found that the evidence given by Ms G indicated that she was “suspicious of and antagonistic towards” Ms H, due to a previous incident that occurred between the two teachers.

The inconsistencies and flawed basis for Ms G’s evidence, alongside the other core issues, meant that the Investigation Report did not provide a reasonable basis for making the finding that the Ms H had engaged in misconduct.

Importance of following correct procedures

This case demonstrates the need to closely adhere to correct procedures when administering standardised testing, given the severe consequences for Ms H based on the mistaken findings of the Investigation. The scale of the Investigation, which involved multiple interviews and lasted for over a year, shows how seriously allegations of misconduct are taken by ACARA, SCASA and by Government Departments. All teachers, from those administering the tests to those involved in supervision, should have a thorough understanding of the correct procedures so that they are adhered to and there are no misunderstandings regarding permissible and prohibited conduct.

Schools should also be mindful of the possible harms of interpersonal conflict among staff. In this case, the Commissioner found that Ms G bore a pre-existing grudge which affected her evidence, with serious long term consequences for Ms H. Managing conflict is difficult for all schools, but clear internal grievance procedures and complaint reporting programs can help schools to minimise the risk of an interpersonal conflict developing and affecting the professionalism of members of staff.

Finally, this case illustrates the importance for all investigations to approach incidents with an open mind and to consider all available evidence objectively. There were clear signs throughout the Investigation that Ms H’s conduct could be explained without coming to the conclusion that misconduct had occurred.