Two West Australian (WA) teachers have been fired as a result of their alleged misconduct while administering the 2014 National Assessment Program Literacy and Numeracy (NAPLAN) tests. The West Australian reports that the teachers, who were employed by two different public primary schools, were fired after serious allegations about cheating in May last year were proved.

NAPLAN

As many of our readers would know, NAPLAN is an annual assessment for students in Years 3, 5, 7 and 9.  NAPLAN tests the sorts of skills that are essential for every child to progress through school and life, in the four areas (or ‘domains’) of:

• reading;
• writing;
• language conventions (spelling, grammar and punctuation); and
• numeracy.

Adhering to test protocol

Strict policies are in place to manage the administration of the NAPLAN tests and deal with a range of issues, such as the confidentiality of test materials and the correct method of collecting the papers. In the National Protocols for Test Administration (Protocols), it is made clear that any breaches of these policies will lead to disciplinary procedures conducted by the responsible authority (e.g. the school board). The Protocols apply to all schools.

The 2015 Guidelines for Managing Test Incidents in Schools also help explain how schools can best manage any breaches of protocol that occur during NAPLAN testing, including where a breach would give rise to an incident of employee ‘misconduct’.

There are multiple test ‘incidents’ every year which are documented and published on the Australian Curriculum, Assessment and Reporting Authority website, although incidents of cheating are comparatively rare (7 out of 51 incidents in 2014). In 2013, Queensland reported 20 substantiated breaches of protocol, with one teacher losing their job as a result of cheating. All school staff involved in breaches were issued with a written caution and reminded to adhere to the Protocols. Most incidents were self-reported and of a minor nature.

NAPLAN and pressure on teachers

The NAPLAN tests have been criticised in the past for creating undue pressure in schools which can cause high levels of stress or create perverse incentives for teachers. Critics claim that, at best, teachers are encouraged to teach in a formulaic manner that suits the style and structure of the tests. More serious allegations include teachers encouraging students to stay home if they are unlikely to achieve a high score, assisting students in completing the test or altering students’ answers once tests have been collected.

The pressure placed on teachers makes it even more important for schools to make staff aware of the expectations in the Protocols and the consequences of any breach of NAPLAN procedures, especially if they may lead to disciplinary action being taken by the school.

As highlighted above, disciplinary proceedings can be conducted by all schools in the event that a teacher’s conduct in relation to the NAPLAN testing amounts to a breach of their employer’s policies or procedures or a term of their employment agreement.

Options for appeal for teachers

As the WA teachers both worked in government schools, their appeals can be (and are being) heard by the WA Industrial Relations Commission (WAIRC). Teachers employed by non-government schools have rights under the Fair Work Act 2009 (Cth) and appeals under that legislation can be heard by the Fair Work Commission. Some teachers at non-government schools in WA may also have the right to appeal to the WAIRC, depending on the legal status of their employer.

Although the WA Education Department professional standards and conduct executive director Eamon Ryan said that the two teachers were dismissed as “the allegations involved a serious breach rather than a misunderstanding of the Australian Curriculum, Assessment and Reporting Authority’s test rules’, the decision to dismiss the teachers has attracted some criticism.

State School Teachers Union president Pat Byrne said that ’a reprimand and even a fine would probably ensure a teacher would never do something like that again’ and that the actions of the schools were unnecessarily harsh. The Union’s lawyers will represent one of the teachers in the WAIRC.

Ms Byrne highlighted the lack of clarity around issues such as what conduct constitutes cheating. Teachers can be unaware of potentially serious consequences such as a formal investigation or a complaint that can result from actions such as sounding out words or rephrasing questions during the test.

Lessons for schools

This incident draws attention to the importance of all schools taking steps to ensure that their teachers understand the importance of the NAPLAN tests and the Protocols and how a breach of the Protocols could trigger employment law issues.
The most reliable way for schools to ensure that their teachers are not engaging in prohibited conduct is to have clear policies and training in place that explains what conduct is permitted during the NAPLAN tests and implementing an incident management policy that ensures any breaches are dealt with swiftly, fairly and with transparency.