Bir v Secretary, Ministry of Health

[2024] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Bir v Secretary, Ministry of Health [2024] NSWCATAD 178

Hearing dates:

7 – 9, 22 & 31 March, 5 & 26 – 27 April, 2 – 3 & 30 May, 5 & 28 June, 18 – 19 September, 12 October, 4 December 2023

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

(1)   The name of the Respondent is amended to Secretary, Ministry of Health.

(2) The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW).

(3)   The interim orders made on 22 March 2023 are vacated.

(4) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of individuals referred to in these reasons for decision as ‘Ms X’, ‘Ms Y’ and ‘Mr Y’ is restricted to the parties to these proceedings.

(5) Pursuant to s 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013 the publication and reporting of the names of the individuals referred to in these reasons for decision as ‘Ms X’, ‘Ms Y’ and ‘Mr Y’ is prohibited.

Catchwords:

HUMAN RIGHTS — Discrimination — race discrimination — employment — direct discrimination — whether unlawful — ‘any other detriment’ — differential treatment — causation

HUMAN RIGHTS — Victimisation — causation

CONSTITUTIONAL LAW — The Judiciary — jurisdiction — ‘Matter’ — justiciable controversy — identification of parties — proceedings involving a State — question of fact — residence

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Anti-Discrimination Act 1988 (TAS)

Civil and Administrative Tribunal Act 2013 (NSW)

Commonwealth of Australia Constitution Act

Constitution Act 1902 (NSW)

Disability (Access to Premises – Buildings) Standards 2010

Disability Discrimination Act 1992 (Cth)

Government Sector Employment Act 2013 (NSW)

Health Administration Act 1982 (NSW)

Health Services Act 1997 (NSW)

Industrial Relations Act 1996 (NSW)

Interpretation Act 1987 (NSW)

Police Service Act 1990 (NSW)

Racial Discrimination Act 1975 (Cth)

Work Health and Safety Act 2011 (NSW)

Workers Compensation Act 1987 (NSW)

Cases Cited:

Anagnostou v Leo [2020] NSWCATAP 272

Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316

Bir v Western Sydney Local Health District [2022] NSWCATAD 286

Bogie v The University of Western Sydney (1990) EOC 92-313

Briginshaw v Briginshaw (1938) 60 CLR 336

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Burns v Sunol [2014] NSWCATAD 62

Caroll v Department of Family and Community Services [2015] NSWCATAD 82

Choi v Deloitte Touche Tomatsu [2016] NSWCATAD 304

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

Commissioner of Corrective Service v Aldridge [2000] NSWADTAP 5

Commissioner of Police v Estate of Russell [2002] NSWCA 272

Cox v Journeaux [1934] HCA 72; (1934) 52 CLR 282

Crouch v Commissioner for Railways [1985] HCA 69; (1985) 159 CLR 22

Department of Health v Arumugam [1988] VR 319

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Ferrus v Qantas Airways Ltd [2006] FCA 812

Glasgow City Council v Zafar [1998] 2 All ER 953

Haines v Leves (1987) 8 NSWLR 442

Henry v Boehm (1973) 128 CLR 482

IW v City of Perth (1997) 71 ALJR 943

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Majoor v Macquarie University [2022] NSWCATAP 213

Meat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1993) 110 ALR 449

Momcilovic v The Queen [2011] HCA 34

Nagarajan v London Regional Transport [1999] 3 WLR 425

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Paramasivam v University of New South Wales [2007] FCA 875

Paramasivam v University of New South Wales [2007] FCAFC 176

Penhall-Jones v State of New South Wales [2007] FCA 925

Phillip v New South Wales [2011] FMCA 308

Purvis v NSW [2003] HCA 62; 2017 CLR 92

R v Langdon; Ex parte Langdon [1953] HCA 66; (1953) 88 CLR 158

R v Macdonald; Ex parte Macdonald [1953] HCA 35; (1953) 88 CLR 197

R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323

Rizeq v Western Australia [2017] HCA 23

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Sharma v Legal Aid (Qld) [2002] FCAFC 196

Sharma v Legal Aid Queensland [2001] FCA 1699

Shuttleworth and Pearson [2018] WASAT 112

Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4

The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe [1922] HCA 50; (1922) 31 CLR 290

Tropoulos v Journey Lawyers [2019] FCA 436; (2019) 287 IR 363

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621

Wotton v Queensland (No 5) [2016] FCA 1457

Texts Cited:

None

Category:

Principal judgment

Parties:

Omila Bir (Applicant)
Secretary, Ministry of Health (Respondent)

Representation:

Counsel:
S McIntosh (Applicant)

Solicitors:
Scott Calnan Lawyer (Applicant)
Bartier Perry (Respondent)

File Number(s):

2022/0028143

Publication restriction:

(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of individuals referred to in these reasons for decision as ‘Ms X’, ‘Ms Y’ and ‘Mr Y’ is restricted to the parties to these proceedings.
(2) Pursuant to s 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013 the publication and reporting of the names of the individuals referred to in these reasons for decision as ‘Ms X’, ‘Ms Y’ and ‘Mr Y’ is prohibited.
Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Background

Jurisdictional issue

Whether this Tribunal can determine the question of jurisdiction

Who or what is the Respondent

The Applicant’s residence

Evidence of residence

Factual allegations

The 1 September 2020 Conduct

The 14 January 2021 Conduct

The 2021 Investigation into the Applicant, and 2021 Dismissal of the Applicant’s Complaint

The 25 March 2021 Conduct and 29 March 2021 Conduct;

The 7 May 2021 Statement;

The 25 June 2021 Statement;

The First Continued Investigation and Disciplinary Conduct

The Second Continued Investigation and Disciplinary Conduct

The Suspension and Medical Examination Direction

Legal Principles

Race Discrimination

Victimisation

The pleaded case, onus, and standard of proof

The relevant comparator(s)

The Witnesses

The Applicant’s evidence

Past conduct

The Respondent’s evidence

Professor Brakoulias and Ms Dominish

Mr Drinan

Mr Holmes

Ms Lorenzen

Ms Fozzard

Ms Guzewicz

Ms Adair

Mr Sheargold

Ms Caswell

Ms Nambiar

Ms Cadman

Relevant Factual Findings

Interpersonal conflict between the Applicant and Ms X

The 1 September 2020 Conduct

The 14 January 2021 Meeting

Comparator

The conduct alleged

“Does Rajinder come to your office?”

The Applicant’s conduct during the meeting

Timeline following the 14 January 2021 meeting

The 2021 Investigation into the Applicant, and 2021 Dismissal of the Applicant’s Complaint

The 18 February 2021 meeting

Differential treatment?

The 25 March 2021 Conduct and 29 March 2021 Conduct

The 7 May 2021 Statement

The 25 June 2021 Statement

The First and Second Continued Investigation and Disciplinary Conduct

The 28 February 2022 Interview

Causation

Victimisation

The Suspension and Medical Examination Direction

Conclusion

Orders

REASONS FOR DECISION

Background

1. Omila Bir (the Applicant) is employed as Department Head of Occupational Therapy at Cumberland Hospital. The Applicant has brown skin and identifies herself as ethnically Punjabi, having been born in India to parents born in the Punjab region.

2. The Western Sydney Local Health District (WSLHD) provides public healthcare services across more than 70 sites including Westmead, Auburn, Cumberland, Blacktown and Mount Druitt hospitals. Ministerial responsibility for the WSLHD lies with the Secretary, Ministry of Health (the Respondent).

3. On 14 July 2021, the President of the Anti-Discrimination Board (ADB) received a complaint from the Applicant against the WSLHD, in which she alleged race discrimination in the course of her employment. A further complaint was received by the ADB on 13 September 2021, alleging victimisation by the WSLHD taking disciplinary action against her because she had complained she was subjected to racist attacks. On 31 January 2022 Anti-Discrimination New South Wales (ADNSW) referred the Applicant’s complaints, identifying conduct occurring between 14 July 2020 to 14 July 2021 in contravention of ss 8 and 50 of the Anti-Discrimination Act 1977 (NSW) (the Act) to this Tribunal, pursuant to s 93(C)(b) of the Act.

4. On 24 August 2022, according to the decision in Bir v Western Sydney Local Health District [2022] NSWCATAD 286, the Tribunal amended the temporal scope of the complaint pursuant to s 103 of the Act, to incorporate events that occurred after the complaint had been lodged with the ADB, being the following allegations against the Respondent within the period 14 July 2020 to 27 April 2022:

1. ‘Second Continued Investigation and Disciplinary Conduct’ as set out in the Amended Points of Claim in contravention of ss 7, 8 or 50 of the Act; and

2. ‘Suspension and Medical Examination Directions’ as set out in the Amended Points of Claim in contravention of s 50 of the Act.

5. The matter proceeded to hearing commencing on 7 March 2023. The Applicant tendered the following documents:

1. Consolidated Points of Claim (CPOC) dated 19 September 2022 (Exhibit A1);

2. Affidavits of Omila Bir dated 12 November 2022 (Exhibit A2), 3 February 2023 (Exhibit A3), 20 February 2023 (Exhibit A4);

3. Correspondence re birth origin (Exhibit A5);

4. Letter dated 16 April 2020 re Anonymous Complaint (Exhibit A6);

5. Affidavits of Sahir Bir dated 10 November 2022 (Exhibit A7), 17 February 2023 (Exhibit A8 ^[1] );

   1. It is noted that the Tribunal has given two separate affidavits the same Exhibit number.

6. Affidavit of Sarab Bir dated 12 November 2022 (Exhibit A8);

7. Affidavits of Lissette Endacott dated 10 November 2022 (Exhibit A9), 20 February 2023 (Exhibit A10);

8. Affidavits of Mayuri Parmar dated 9 November 2022 (Exhibit A11), 20 February 2023 (Exhibit A12);

9. Managing Misconduct policy (Exhibit A16);

10. Risk assessment signed by Professor Brakoulias (Exhibit A17);

11. NSW Health Code of Conduct (Exhibit A18);

12. Letter to the Applicant dated 6 July 2016 re Response to your grievance (Exhibit A19);

13. Email Mr Sheargold to Ms Guzewicz dated 23 March 2021 (Exhibit A20);

14. Email Mr Sheargold to Ms Fozzard dated 14 January 2021 (Exhibit A21);

15. Email from Applicant to Ms Lorenzen dated 5 January 2017 (Exhibit A22);

16. Letter from Bartier Perry to Scott Calnan re summons production dated 16 March 2023 (Exhibit A23 ^[2] );

17. Affidavit of Scott Calnan dated 29 May 2023 (Exhibit A23).

    2. It is noted that the Tribunal has given two separate documents the same Exhibit number.

6. The Respondent tendered the following evidence:

1. Points of Defence filed 30 September 2022 (Exhibit R1);

2. Print out of Internet page from Mindwise website (Exhibit R2);

3. Copy of Australian Hindi Indian Association publication Sandesh volume 23 issue 7 July 2022 (Exhibit R3);

4. Copy of Australian Hindi India Association publication Sandesh volume 23 issue 1 January 2022 (Exhibit R4);

5. Extract from Gala concert programme for Moorambilla 2019 (Exhibit R5);

6. Complete copy of Gala concert programme for Moorambilla 2019 (Exhibit R6);

7. Anonymous letter and photos (Exhibit R7);

8. Two pages from summonsed records of Doctor Calwani - individual case notes dated 19 April 2021 (Exhibit R8);

9. ASIC extract (Exhibit R9);

10. Internet print out from timelesstextiles.com (Exhibit R10);

11. Photograph of Sahir Bir’s phone (Exhibit R11);

12. Affidavit of Steffanie Patricia Claudia Guzewicz dated 18 January 2023 (Exhibit R13);

13. Affidavit of Carolyn Anne Fozzard dated 16 January 2023 (Exhibit R14);

14. Affidavit of Kristen Kim Adair dated 13 January 2023 (Exhibit R15);

15. Affidavit of Gerard Michael Drinan dated 6 January 2023 (Exhibit R16);

16. Affidavit of Professor Vlasios Brakoulias dated 5 January 2023 (Exhibit R17);

17. Affidavit of Jacqueline Anne Dominish dated 20 January 2023 (Exhibit R18);

18. Email chain 4 August, commencing July 10 (Exhibit R19);

19. Email dated 19 July 2021 from Dominika Nambiar to Jacqueline Dominish (Exhibit R20);

20. Affidavit of Luci Caswell dated 18 January 2023 (Exhibit R21);

21. Affidavit of Dominika Nambiar dated 20 January 2023 (Exhibit R22);

22. Affidavit of Hayley Ellis Cadman dated 18 January 2023 (Exhibit R23);

23. MS Teams transcript of meeting between Applicant and Ms Cadman (Exhibit R24);

24. Affidavit of David Holmes dated 20 January 2023 (Exhibit R25);

25. PD2021-030 Prevention and Management of Bullying in NSW Health (Exhibit R26);

26. Leave records for the Applicant (Exhibit R27);

27. Affidavit of Geoffrey John Sheargold dated 17 January 2023 (Exhibit R28);

28. Risk assessment dated 5 February 2021 (Exhibit R29);

29. Affidavit of Claire Lynette Lorenzen dated 4 January 2023 (Exhibit R30);

30. Affidavit of Hannah Lawson dated 3 May 2023 re Paul O’Halloran (Exhibit R31);

31. Letter to Paul O’Halloran from Professor Brakoulias dated 26 February 2021 (Exhibit R32);

32. Meeting of 14 January 2021 notes and O’Halloran complaints (Exhibit R33);

33. Filenote of Ms Fozzard re 14 January 2021 meeting (Exhibit R34).

7. The Applicant made interim order applications on 6 March and 21 March 2023 to preserve the status quo between herself and her employer pursuant to s 105 of the Act, and to again amend her complaint pursuant to s 103 of the Act. During the hearing of that interim application on 22 March 2023, the following documents were tendered:

1. By the Applicant: Affidavits of Omila Bir dated 6 March 2023 (Exhibit A13); 21 March 2023 (Exhibit A14); Affidavit of Joshua James Dodsworth dated 21 March 2023 (Exhibit A15).

2. By the Respondent: Affidavit of Dean Anthony Astley dated 17 March 2023 (Exhibit R12).

8. Following submissions from both parties on those applications, interim orders were made by the Tribunal pursuant to s 105 on 22 March 2023 as follows:

1. Pursuant to s 105(1)(a) of the Anti-Discrimination Act 1977, the status quo between the parties is preserved pending determination of the matter the subject of the complaint. Specifically, preservation of the status quo means that the Applicant's employment will not be terminated by the Respondent prior to the determination of the matter. The 'status quo' does not refer to the ability of the Respondent to performance manage the Applicant, or to its ability to conduct investigations, engage in risk management processes or similar.

2. The Applicant's interim application dated 6 March 2023 is otherwise dismissed.

3. The Applicant's amendment application pursuant to s 103 of the Anti-Discrimination Act 1977 dated 21 March 2023 is dismissed.

9. Each of the witnesses who provided affidavits in the substantive proceedings was cross examined. The evidence in the substantive proceedings was heard on 7- 9 March, 31 March, 5 April, 26 April, 27 April, 2 - 3 May, 30 May, 5 June and 28 June 2023. Oral closing submissions in the substantive proceedings were heard on 18 and 19 September 2023.

Jurisdictional issue

10. In written closing submissions, the Respondent referred to evidence demonstrating that the Applicant was a resident of Perth, Western Australia, in support of a submission that:

The Applicant is someone who demonstrated during the trial to be very capable of lying to serve her own interests… It can only be presumed that with the benefit of legal advice, the Applicant is very much aware that she must be a NSW resident to be entitled to interim and final relief from this Tribunal.

11. The Respondent first raised concerns with the issue of whether the Tribunal had jurisdiction to determine the Applicant’s complaint in closing submissions, after the evidence had been heard by the Tribunal, because:

It was not until the hearing of the substantive matter that the Respondent had cause for concern that the Applicant had not truthfully disclosed her residency in NSW.

The substantive matter involves the State of New South Wales as a respondent employer and during the course of the trial questions have arisen as to whether the Applicant, as a natural person, is properly a resident of New South Wales.

12. As a result of this issue being raised in closing submissions, the Tribunal ordered the parties to put on evidence and submissions on the issue of jurisdiction, and held two further days of hearing on 12 October 2023 and 4 December 2023. On 12 October 2023 the Respondent made an oral application for the proceedings to be dismissed on the basis of a want of jurisdiction, premised on s 75(iv) of Commonwealth of Australia Constitution Act (the Constitution), arising from the Applicant’s alleged residence outside of New South Wales. The Respondent submitted that the relief sought by the Applicant in these proceedings (and the interim relief already ordered) would require the exercise of federal judicial power because the Applicant was a “resident of another state”, specifically Western Australia.

Whether this Tribunal can determine the question of jurisdiction

13. Deciding jurisdiction itself is not an exercise of judicial power. In Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316 (Lux Cuttings) this Tribunal’s Appeal Panel considered whether it was enough to deprive the Tribunal of jurisdiction where it was genuinely arguable that a party was the Commonwealth, even before determination of that fact. The submission in those proceedings was that an issue – whether a party was the Commonwealth – could “arise under” the Constitution within the meaning of s 76(i) of the Constitution, if it were “genuinely arguable”, or not “manifestly hopeless”. That submission was said to be based on the decision in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta).

14. This was rejected by the Appeal Panel in Lux Cuttings because the issue in question needs to be the “matter”, not just a question for factual determination anterior to the matter:

As was made clear in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15, this Tribunal has no jurisdiction to exercise judicial power over a matter within federal jurisdiction. That is because it is not a court and, more precisely, not a Court of a State endowed with jurisdiction under Chapter III of the Constitution. It does, however, have incidental (or anterior) jurisdiction to decide whether proceedings brought before it are within its limited jurisdiction: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26; Wilson v Chan & Naylor Parramatta Pty Ltd (2023) 103 NSWLR 140; [2020] NSWCA 213 (Wilson NSWCA); Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta).

15. In Citta the question of jurisdiction arose over a justiciable matter, specifically that the defence to the discrimination complaint asserted that provisions in the Tasmanian Anti-Discrimination Act 1988 (TAS) were inconsistent with the Commonwealth Disability Discrimination Act 1992 (Cth) and Disability (Access to Premises – Buildings) Standards 2010 (Cth). There, the High Court stated at [31]:

A "matter" referred to in s 75 or s 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated.

16. Here, the issue raised by the Respondent is about the “commencement of a proceeding in the forum”, not the justiciable controversy.

17. In Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (Burns HCA) in considering the jurisdiction of this Tribunal in relation to proceedings under the Act, Gageler J stated at [119] – [120]:

On the unchallenged assumption that NCAT is not a State court, the implied constitutional exclusion of State legislative power to confer State judicial power on a non-court State tribunal has consequences for the provisions of the NCAT Act which purport to confer State judicial power on NCAT. The provisions are invalid to the extent that they purport to confer State judicial power with respect to subject matters identified in ss 75 and 76 of the Constitution.

The provisions can and should be read down pursuant to s 31 of the Interpretation Act 1987 (NSW) to exclude conferral of State judicial power with respect to those subject matters [140]. That reading down is to be achieved with respect to matters arising under the Anti-Discrimination Act 1977 (NSW) ("the AD Act") between residents of different States within s 75(iv) of the Constitution by excluding from the jurisdiction conferred on NCAT by the NCAT Act authority to determine a complaint by a resident of one State that a resident of another State contravened a provision of the AD Act.

18. Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) deals with ‘Federal Proceedings’. Section 34A defines ‘federal jurisdiction’ as jurisdiction of a kind referred to in ss 75 or 76 of the Constitution. The Tribunal has no jurisdiction to determine such matters, it not being one of the “courts of the States” as referred to in s 77 of the Constitution: Burns HCA per Kiefel CJ, Bell and Keane JJ. The “subject matters identified in ss 75 and 76 of the Constitution” include, at s 75(iv) of the Constitution:

In all matters:

…

between States, or between residents of different States, or between a State and a resident of another State;

the High Court shall have original jurisdiction.

19. The Respondent contended that these proceedings constituted a matter between a State and a resident of another State. The Applicant disputed that the Respondent is “a State”, and that the Applicant is “a resident of another State”. Although it is genuinely arguable that the Applicant is “a resident of another state”, and that these proceedings thereby could constitute “a matter between a State and a resident of another State”, merely raising this issue as being “genuinely arguable” or “not manifestly hopeless” does not deprive this Tribunal of jurisdiction. This is because, consistent with Citta and Lux Cuttings, the justiciable controversy between the parties in these proceedings is whether or not the Respondent has contravened the Act, not the identification of the parties. The identification of the parties is a question for factual determination, anterior to the justiciable matter.

20. The approach I have therefore taken to determine whether the Tribunal has jurisdiction, is to consider and make factual findings about whether the Respondent is “a State” and whether the Applicant is “a resident of another State”.

Who or what is the Respondent

21. There has been dispute between the parties since the commencement of proceedings as to the proper identification of the Respondent or Respondents. The Applicant initially identified the WSLHD as her employer and therefore the respondent to her complaint. On 3 June 2022, the Applicant made an application to amend the Complaint and filed Proposed Points of Claim pursuant to orders made by the Tribunal on 3 June 2022, which identified the WSLHD as Respondent. On 11 July 2022, the Applicant filed an Amended Points of Claim which added the Secretary, Ministry of Health as Second Respondent. As noted in Bir v Western Sydney Local Health District [2022] NSWCATAD 286 at [16], the Respondent took issue with the identification of the proper Respondent at that time and submitted it should be only the Secretary, Ministry of Health.

22. In submissions dated 17 November 2022, the Applicant stated:

141. It seems that all parties agree that it is proper to name as a respondent at least the Secretary, Ministry for Health. However, it is noted that the Points of Defence at (6)(b) state that the Tribunal is yet to determine if the Secretary, Ministry for Health is properly a party to the proceedings.

142. As to the WSLHD, it is asserted that the entity is not a proper respondent. The issue (to the extent that there is one) is one of WSLHD’s own making. It, and not the Secretary, has threatened Ms Bir in her employment…

143. Ms Bir has attempted, to no avail, to clarify the issue with the Respondent(s).

144. Further, the issue raised by the Respondent(s) is not who is the employer under a common law contract or under the Health Services Act 1997 (NSW). The question is the correct construction of the meaning of the words “employment” and “employee” in s 8 of the ADA.

145. As was stated by Spigelman CJ in the Court of Appeal in Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232… at [87] to [88] (and the Court agreed) that a liberal interpretation is to be given to the word “employee”…

87 In the statute presently under consideration, the word "employee" appears in each of the provisions of the Act rendering it "unlawful for an employer to discriminate against an employee" on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act, a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s33 of the Interpretation Act 1987. (See IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.)

88 Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include work under a contract for services. Insofar as persons do "work" in a context closely analogous to "employment", the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word "employment". But where such context exists, the Court should be slow to hold that the Act has no application.

146. This broad approach to characterising what amounts to an employment relationship for the purposes of anti-discrimination law is reflective of the general approach in other discrimination law jurisdictions in Australia to such relationships (see N.Rees, S.Rice & D.Allen Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 2018) p518 at 11.2.11 where the learned authors state that this has transcended most of the difficult problems associated with characterisation of work relationships which have created problems in the law of employment).

147. In this matter, there is regularity and permanence in the relationship between the Applicant and WSLHD. The Applicant is also at the direction and control of WSLHD. Indeed, that direction and control forms a significant part of these proceedings. For those reasons, it is submitted that, regardless of the position at common law or under other statutes, under s8 of the ADA the Applicant is properly understood as an employee of WSLHD for the purpose of these anti-discrimination proceedings.

23. The Respondent consistently submitted since the first case conference on 2 March 2022 that the proper employer of the Applicant for the purposes of the substantive proceedings under the Act should be the Secretary, Ministry of Health (Health Secretary), pursuant to ss 115 and 116 of the Health Services Act 1997 (NSW) (HS Act) and s 4B of the Act.

24. Sections 115 and 116 of the HS Act provide:

115 The NSW Health Service

(1) The NSW Health Service consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown.

(1A) Those persons are not employed in the Public Service of New South Wales.

(2) This Part does not affect any other means (statutory or otherwise) by which persons may be employed in the service of the Crown.

Note—

Other ways in which persons are employed in the service of the Crown include employment in the Public Service, the Teaching Service or the Transport Service.

116 Employment of staff generally

(1) The Government of New South Wales may employ staff under this Part—

(a) to enable local health districts and statutory health corporations, and the public hospitals that they control, to exercise their functions, and

(b) to enable declared affiliated health organisations to exercise their functions in relation to their recognised establishments and recognised services, and

(c) to enable the Health Secretary to exercise his or her functions under Chapter 5A in relation to ambulance services, and

(d) to enable the Health Secretary to exercise his or her functions under Part 1A of Chapter 10 in relation to the provision of services to public health organisations and the public hospitals that they control, and

(e) to enable the Health Administration Corporation to exercise its functions under this or any other Act, and

(f) to enable the Cancer Institute (NSW) to exercise its functions under this or any other Act.

(2) The employment of staff in the NSW Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff.

(3) The Health Secretary may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the staff employed in the NSW Health Service (except as otherwise provided by subsections (3A)-(3D)).

Note—

The Health Secretary’s functions under this or any other Act may, under section 21 of the Health Administration Act 1982, be delegated to any person.

(3A) A local health district board may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the chief executive of the local health district.

(3B) The chief executive of a local health district may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the other NSW Health Service senior executives employed to enable the local health district to exercise its functions.

(3C) The board of a specialty network governed health corporation may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the chief executive of the health corporation.

(3D) The chief executive of a specialty network governed health corporation may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the other NSW Health Service senior executives employed to enable the health corporation to exercise its functions.

(4) The Health Secretary may create divisions (however described) of staff in the NSW Health Service.

(5) This section does not limit the purposes for which, or the manner in which, staff may be employed in the NSW Health Service.

25. The Respondent also submitted that the operation of s 22(2) of the HS Act and s 47A of the Constitution Act 1902 (NSW) prevented the WSLHD from being the Applicant’s employer for the purpose of these proceedings.

26. Section 22 of the HS Act states:

22 Provisions relating to the corporate nature of local health districts

(1) A local health district—

(a) has perpetual succession, and

(b) is to have an official seal, and

(c) may take proceedings, and be proceeded against, in its corporate name, and

(d) may do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for or incidental to the purposes for which the local health district is constituted, and

(e) does not represent the Crown.

Note—

Section 150(1) of the Evidence Act 1995 provides for judicial notice to be taken in relation to a seal of any body established under an Act.

(2) However, a local health district cannot employ any staff.

Note—

Staff may be employed under Part 1 of Chapter 9 in the NSW Health Service to enable a local health district to exercise its functions.

27. Section 47A of the Constitution Act 1902 (NSW) states:

47A Employment of Staff

(1) Persons employed by the Government of New South Wales in the service of the Crown are to be employed in the Public Service of New South Wales under the Government Sector Employment Act 2013 or in any other service of the Crown established by legislation.

(2) A statutory body that is a NSW Government agency, or a person holding a public office under the Government of New South Wales, cannot employ persons unless legislation specifically authorises the body or person to do so.

(3) This section does not apply to—

(a) a State owned corporation, or

(a1) the employment of persons referred to in section 47B, or

(b) the engagement of independent contractors or volunteer workers.

28. In submissions to the Tribunal dated 20 January 2023, the Respondent sought dismissal of the Applicant’s complaint and stated:

The Applicant persists with claims against two respondents, when there is no sustainable cause of action against the First Respondent. The First Respondent is not the Applicant’s employer and is not in a relationship with the Applicant recognised by the Anti-Discrimination Act 1977 (AD Act).

29. In her submissions filed on the issue of jurisdiction, the Applicant stated:

15.   As to the first, the proceedings are separately brought against:

a.   the Western Sydney Local Health District as the First Respondent; and

b.   the Secretary, Ministry of Health in Respect of Western Sydney Local Health as the Second Respondent.

16. There is doubt as to whether a corporation is the State, or the resident of a State, for the purpose of s75(iv) of the Constitution: Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 (Howe); Cox v Journeaux (1934) 52 CLR 282 (Cox); Crouch v Commissioner for Railways (1985) 159 CLR 22. Arguably, the First Respondent is a corporation as it:

a. may be proceeded against in its corporate name: s22(1)(c) of the Health Services Act 1997 (NSW) (Health Services Act);

b. may suffer all other things that a body corporate may: s22(1)(d) of the Health Services Act; and

c. does not represent the Crown: s22(1)(e) of the Health Services Act.

17. The Applicant reserves her position on this issue and awaits submissions on this matter by the Respondents.

30. No further submissions were made by the Applicant on this issue.

31. Mr David Holmes, Employee/Industrial Relations Manager at Nepean Blue Mountains Local Health District (NBMLHD), provided the Tribunal with an affidavit dated 20 January 2023 which explained:

14. NSW Health consists of persons employed under Chapter 9, Part 1 of the Health Services Act 1997 (HS Act) by the Government of New South Wales in the service of the Crown. Under the Government Sector Employment Act 2013 (NSW) (GSE Act), NSW Health is part of the government sector (s 3(1)).

15. Employees of NSW Health are not in the Public Service of New South Wales, but are in government sector employment where the Secretary, Ministry of Health (Health Secretary) may exercise, on behalf of the Government of New South Wales, the employer functions of the Government.

16. For example, while I performed duties within the WSLHD (between February 2020 and August 2022), WSLHD was not my employer. Equally, I now perform duties for NBMLHD, but NBMLHD is not my employer. My employer has not changed despite me now performing duties for a different local health district.

32. Based on the evidence and submissions before me, I find that:

1. The Respondent may employ staff to enable local health districts and the public hospitals they control to exercise their statutory functions: s 116(1)(a) HS Act. The WSLHD is one such local health district.

2. The Respondent exercises, on behalf of the Government of New South Wales, the employer functions of the Government in relation to the staff employed in the NSW Health Service: s 116(3) of the HS Act.

3. The Applicant is “staff employed in the NSW Health Service”, and an employee of the Government of New South Wales in the service of the Crown: s 115 of the HS Act.

4. The WSLHD cannot employ staff: s 22(2) HS Act; s 47A(2) Constitution Act 1902 (NSW). Despite providing the Applicant with direction on a day to day basis, the WSLHD (by its officers) is not the Applicant’s employer. In giving the Applicant directions and managing her employment, the WSLHD and its officers are exercising the Respondent’s functions, as delegated by the Respondent in accordance with ss 116(3A), (3B), (4) of the HS Act and s 21 of the Health Administration Act 1982 (NSW).

5. The findings in Commissioner of Police v Estate of Russell [2002] NSWCA 272 are distinguished from the circumstances in these proceedings on the basis that the statutory provisions relevant to NSW Health Service employment do not create the same difficulties in characterising employment relationships as the Police Service Act 1990 (NSW) did.

6. Pursuant to s 3(1) of the Government Sector Employment Act 2013 (NSW) (GSE Act), NSW Health is part of the government sector. The Applicant is employed in the Public Service pursuant to s 21 of the GSE Act.

33. Section 4B of the Act states:

4B References to Certain Employers

(1) A reference in this Act to an employer—

(a) in relation to employment in a Public Service agency, is a reference to the head of the agency, and

(b) in relation to employment in the NSW Police Force, is a reference to the Commissioner of Police, and

(c) in relation to employment in the Teaching Service, is a reference to the Secretary of the Department of Education.

(2) Any thing determined or done with respect to any matter concerning any such employment by a person who is employed in any Public Service agency, the NSW Police Force or the Teaching Service and who is authorised to determine and do things in that respect is taken to have been determined or done by the head of the agency, the Commissioner of Police or the Secretary of the Department of Education, respectively.

(3) Subsection (2) includes anything determined or done with respect to—

(a) any offer of employment, or

(b) the terms and conditions on which employment is offered, or

(c) the opportunity afforded for promotion, transfer, training or other benefits associated with employment, or

(d) dismissal from employment.

34. Pursuant to s 4B of the Act, the employer for the purposes of these Tribunal proceedings is therefore the Respondent.

35. As to whether the Respondent is the State of New South Wales, the Respondent submitted:

…it is not unusual for the nomenclature of the Applicant’s employer to be styled differently by different statutes in different contexts. For example, in the regular courts, the respondent would be styled the State of New South Wales: s 5 Crown Proceedings Act 1988 (NSW)

36. Sections 12 and 13A of the Interpretation Act 1987 (NSW) provide that a reference to the Secretary, Ministry of Health is a reference to the State of New South Wales. For the purposes of s 75(iv) of the Constitution, then, the Respondent is “a State”.

The Applicant’s residence

37. The Applicant submitted that the Respondent bore the onus to positively establish that the Applicant was a resident of another State, as it was the Respondent’s application that the Tribunal lacked jurisdiction on that basis. The Applicant also submitted that:

In determining this question, the Tribunal would also not proceed on antiquated societal notions that pervade historical cases on this issue.

38. The Respondent submitted that the relevant principles were stated in Shuttleworth and Pearson [2018] WASAT 112 at [40]. Whilst I agree with the Applicant that that decision is not binding, it helpfully distils the relevant principles from High Court decisions:

(1) Only a natural person can be a resident; see The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe [1922] HCA 50; (1922) 31 CLR 290 (Howe's case) in which the High Court (Knox CJ, Gavan Duffy and Higgins JJ) held that the word 'residents' in s 75(iv) of the Constitution refers to natural persons only and not to artificial persons or corporations. The High Court refused to re­open that decision in Cox v Journeaux [1934] HCA 72; (1934) 52 CLR 282 (Cox) and again in Crouch v Commissioner for Railways [1985] HCA 69; (1985) 159 CLR 22, in which the Court applied it.

(2) A natural person can only be a resident of one State at any time; see Howe's case at 296, where it was stated by Knox CJ and Gavin Duffy J that s 75(iv) of the Constitution seems to assume that a resident of one State cannot at the same time be a resident of another State.

(3) A resident is a natural person who resides permanently in a place, which is his or her home; see Howe's case where it was stated, by Knox CJ and Gavin Duffy J at 295 and by Higgins J at 327, that a resident is a natural person who resides permanently in a place. Also, in Howe's case it was stated by Isaacs J at 324, that a natural person is a resident of the State where, in fact, the nature of his residence shows it is his real home. And also, in Howe's case it was stated by Starke J at 327, that a resident is a natural person who lives, dwells and has his home in some place.

(4) A natural person can be a resident of a State after residing there for only a brief period of time; see R v Macdonald; Ex parte Macdonald [1953] HCA 35; (1953) 88 CLR 197 (a month), R v Langdon; Ex parte Langdon [1953] HCA 66; (1953) 88 CLR 158 (five months) and R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323 (two and a half months).

…

(7) The relevant date of a natural person's residence is the date the proceeding is commenced as opposed to the date of the conduct in question in the matter; see Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 623 and Momcilovic v The Queen [2011] HCA 34 at [134].

(8) A proceeding may become a 'matter between residents of different States' after it has commenced and before it is determined. If that happens the matter will then fall within federal jurisdiction under s 75(iv) of the Constitution. 'Jurisdiction' is the authority to adjudicate or determine a matter, which is to be distinguished from the law that is applied in the exercise of that jurisdiction; see Rizeqv Western Australia [2017] HCA 23 at [8], [9], [49], [50], [51], [52], [127] and [128]. Therefore, although a proceeding, when it is commenced in a court or the Tribunal, may be within State jurisdiction, the authority to adjudicate under State jurisdiction will cease if the matter subsequently falls within federal jurisdiction.

39. The Applicant submitted that the proper approach to this factual inquiry of the Applicant’s residence was:

a.    look first, and significantly, to the person’s residence at the date the proceedings were commenced: Watson v Marshall and Cade (1971) 124 CLR 621 at 623 and Momcilovic v The Queen [2011] HCA 34 at [134];

b.   the essential inquiry, on this case, is where there a sense of permanence of residency: Henry v Boehm (1973) 128 CLR 482 citing Howe;

c.   primarily consider, on this inquiry, where the person:

i.   sleeps and lives: Howe at 327;

ii.   holds and continues employment: R v Oregan; Ex Parte Oregan (1957) 97 CLR 323 at [20];

iii.   has a primary physical presence; and

d.   note that even lengthy periods outside a State does not necessarily mean that a person is not a permanent resident of the State: Anagnostou v Leo [2020] NSWCATAP 272 at [18].

40. I see no inconsistency between the approaches submitted by the parties for the purpose of the factual finding I need to make in these proceedings.

Evidence of residence

41. The Applicant’s solicitor, Scott Calnan, swore an affidavit on 28 November 2023 (Exhibit A24) which annexed all the evidence of the Applicant’s residence in New South Wales. Mr Calnan was not required for cross examination on that evidence by the Respondent. The following evidence was submitted as demonstrating the Applicant’s residence was in New South Wales:

1. The Applicant affirmed an affidavit on 12 November 2022 which stated her address as 21 [REDACTED] Road, Oatlands, New South Wales (21 [REDACTD] Rd);

2. The Applicant affirmed affidavits on 3 February 2023 and 20 February 2023 which stated her address as 30 [REDACTED] Road, Oatlands, New South Wales (30 [REDACTED] Rd);

3. The Applicant’s husband, Sarab Bir, affirmed an affidavit on 12 November 2022 which stated his address as 21 [REDACTED] Rd;

4. The Applicant’s son, Sahir Bir, affirmed an affidavit on 10 November 2022 which stated his address as 21 [REDACTED] Rd and “I live in the same house as my mother”;

5. The Applicant’s son, Sahir Bir, affirmed an affidavit on 17 February 2023 which stated his address as 30 [REDACTED] Rd;

6. During the period that she lived at 21 [REDACTED] Rd, the Applicant held a New South Wales Driver Licence, with an expiry date of 19 November 2023;

7. On 15 October 2019, the Applicant purchased a car for use within New South Wales, bearing registration number “EDW70F”;

8. Phone calls were made from the Applicant’s phone within New South Wales on the following dates:

1. 13-30 January 2021; all of February, March, April 2021; 1, 3-15, 17-21, 23 – 31 May 2021; 1-11, 15-25, 28-30 June 2021; 1-10, 12-17, 19-23, 25-31 July 2021; 1-6, 8-13, 16-18, 20, 23- 24, 26-27, 30-31 August 2021; 1-10, 13-25, 27-30 September 2021; 1-2, 4-15, 18-23, 25-29 October 2021; 1-5, 8-27, 29-30 November 2021; 1-3, 6-11, 25-31 December 2021;

2. 2-13, 15-28, 31 January 2022; 1-5, 7-11, 13-19, 21-28 February 2022; 1-3, 9-12, 14-17, 25, 27-31 March 2022; 1, 4-16, 18, 19, 21-23, 26-30 April 2022; 1-13, 15-20, 23-27, 31 May 2022; 1-6, 8, 10-12, 14-17, 20-28, 20 June 2022; 1-28, 30-31 July 2022; 1-13, 15-25, 27, 29, 30, 31 August 2022; 1-24, 28, 29 September 2022; all of October 2022; 1-2, 12-19, 21-26, 30 November 2022; 1-17, 19-31 December 2022;

3. 1-15, 17-31 January 2023; 1-9, 12-22, 27-28 February 2023; 1-9, 13-24, 28-31 March 2023; 1-6, 11-14, 17-28, 30 April 2023; 1-11, 15-19, 22-31 May 2023; 1, 4-13, 15, 18-30 June 2023; 5-14 July 2023; 13-28 September 2023; 2-12 October 2023.

9. The Applicant was issued with electricity invoices for 21 [REDACTED] Rd on 14 February 2022, 13 May 2022, 15 August 2022, 11 November 2022;

10. The Applicant was issued with gas invoices for 21 [REDACTED] Rd on 23 February 2022, 3 June 2022, 25 August 2022, 25 November 2022;

11. On 9 September 2022 the Applicant and her husband sold 21 [REDACTED] Rd. The sale completed on 3 February 2023;

12. On 14 January 2023, Quick and Easy Removals issued an invoice for removalist services to the Applicant. The Applicant’s address is listed at 30 [REDACTED] Rd. Items were moved from 21 [REDACTED] Road to 30 [REDACTED] Rd;

13. On 29 January 2023, the Applicant entered into a residential tenancy agreement for 30 [REDACTED] Rd, and paid rent to Ms Chin on 13 February 2023, 28 February 2023, 14 and 30 March 2023, withdrew cash on 4 April 2023 to pay rent, paid rent to Ms Chin on 19 July 2023, 13 September 2023, 22 September 2023, 11 October 2023, 25 October 2023, 6 November 2023 and 22 November 2023;

14. On 8 February 2023, the Applicant obtained a Pre-Inspection Building and Timber Pest Report for the purpose of considering the purchase of a property at 150C [REDACTED] Road Oatlands, New South Wales;

15. In early 2023, the Applicant’s real estate agent, Daniel Mourad, visited the Applicant at 30 [REDACTED] Rd and observed the Applicant’s personal items there;

16. Both the Applicant’s husband and son stated in cross examination on 9 March 2023 that the Applicant was not living in Perth as at that date;

17. On 24 May 2023, the Applicant updated her address with the Australian Electoral Commission to 30 [REDACTED] Rd;

18. The Applicant presently resides at 30 [REDACTED] Rd, holds a driver licence issued by the State of New South Wales that shows her address to be 30 [REDACTED] Rd, and does not hold any other driver licences. She presently drives a vehicle registered in New South Wales.

42. The Respondent submitted the following evidence, provided via affidavits from Mark McKenna (Exhibit R34 ^[3] ), Andrew Finlay Yahl (Exhibit R35), and Stefannie Guzewicz (Exhibit R36), conflicted with the Applicant’s residence being in New South Wales:

    3. It is noted that the Tribunal has given two separate documents the same Exhibit number.

1. The Applicant owns as a joint tenant with her husband two residential properties in Western Australia: 10 [REDACTED] BALVIDIS WA 6171; and 38 [REDACTED] BALVIDIS WA 6171. Documents produced to the Tribunal from the Registrar of Titles, Western Australia describe both the Applicant and her husband as “of 10 [REDACTED] Balvidis WA 6171”;

2. The Applicant’s husband and son currently live in the property at 10 [REDACTED], Perth, Western Australia;

3. On 13 July 2023, Mark McKenna, an employee of the Respondent’s solicitors, called Mindwise Health and Wellbeing, the Applicant’s longstanding secondary employer, and was told over the phone that the Applicant was “not working with us at the moment” and was “living in Perth at the moment”;

4. On 21 September 2023, a process server attended 30 [REDACTED] Rd, and was told that the Applicant did not live there, and that person also stated that the Applicant did not live there and that he had lived at the address for “some years”;

5. The Applicant, in cross-examination on 7 March 2023, was asked why she told her psychiatrist on 30 March 2020, that at that time she was in the process of packing up to go to Perth, Western Australia. The Applicant responded “We've been thinking of lots of options”, and did not deny having started packing up to move to Perth in 2020. The Applicant was coincidentally absent from work for most of March 2020 on a combination of annual, RDO and long service leave;

6. Both of the Applicant’s parents lived in Perth. The Applicant’s father died there on 12 September 2018 and the Applicant’s mother died there on 20 December 2021;

7. The Applicant was absent from her employment with the Respondent on annual and long service leave for all of July, August and most of September 2021, and the last 3 weeks of December 2021;

8. The Applicant’s husband Sarab Bir admitted that he and the Applicant jointly owned property at 21 [REDACTED] Road and then sold that property for close to $3 million in September 2021. He said in cross examination:

Mr Gardner: And have you moved to Perth and bought new property there?

Sarab Bir: That's right. We have moved. [emphasis added]

Mr Gardner: “We are moving?” Is that –

Sarab Bir: No, we are not moving. We are – I'm saying it's temporary and because we have always stayed in Sydney for 30 years. So we are just wanting to see that how we feel. We want to come back actually.

9. In cross-examination, the Applicant’s husband and son admitted that they both moved to Perth after the sale of the family home at 21 [REDACTED] Rd. The Applicant’s husband, Sarab Bir said he has never lived at 30 [REDACTED] Rd, and did not know that his wife lived there either.

10. The Applicant’s son in his affidavit of 10 November 2022 states that “I live in the same house as my mother…” and he admitted in cross examination that at the time he swore his affidavit of 17 February 2023, despite stating his address as 30 [REDACTED] Rd, he was already living in Perth, Western Australia.

11. Removalist records produced by the Applicant to the Tribunal disclosed items of the Applicant’s personal property were transported to Perth Western Australia in or around January 2023 in a 20-foot container.

12. Mobile phone records demonstrate that the Applicant regularly leaves NSW to travel to Western Australia;

13. The Applicant has most recently been absent from work for an extended period in Perth Western Australia;

14. Identification of a grey Mercedes Benz sedan, alleged to be the Applicant’s, now being parked at 10 [REDACTED] Balvidis WA 6171.

43. The Applicant did not cross examine the witnesses who provided affidavit evidence for the Respondent in relation to the issue of the Applicant’s residence. In reply submissions, the Applicant stated in relation to the evidence of residence:

1. The Applicant presently resides at 30 [REDACTED] Road, in the State of New South Wales. She holds a driver licence issued by the State of New South Wales that shows her address to be 30 [REDACTED] Road, Oatlands in the State of New South Wales. The Applicant does not hold any other driver licences. She presently drives a vehicle registered in New South Wales.

2. The Applicant is not named on electricity invoices issued in respect of 10 [REDACTED] in Western Australia. Rather, they are issued to the Applicant’s husband, Mr Sarab Bir – as he is the one living in Perth.

3. The Respondent’s submissions on the Applicant’s residence are conjecture, and nothing typifies this more that the submission concerning the car parked outside 10 [REDACTED]. The car referred to belongs to the Applicant’s husband.

4. With respect to an alleged conversation between the Applicant and her psychologist in March 2020, the evidence is of extremely low probative value, because the psychologist was not called to give evidence, or tested on whether the notes were accurate, and the Applicant was not shown the notes at the time that they were made.

44. Regarding the car parked at 10 [REDACTED], there is insufficient evidence to support a finding that the car pictured belonged to the Applicant. Even if I did so find, I consider the presence of a vehicle belonging to the Applicant is of extremely limited value in determining the Applicant’s place of permanent residence, in circumstances where the Applicant’s husband and son live at that location, giving her an obvious reason to be present there. Presence is not residence. I also accept that the Applicant’s psychologist recorded in her notes in 2020 that the Applicant expressed an intention to move to Western Australia, but that doesn’t mean it was an accurate recording, or that it ultimately occurred.

45. The Applicant submitted that limited weight should be given to the evidence of conversations with third parties about the Applicant’s residence, on the basis that the evidence was indirect or hearsay. I agree. There are two conversations with third parties deposed to by the Respondent’s witnesses on the issue of jurisdiction: the receptionist at Mindwise Psychology, and a man located by a process server at 30 [REDACTED] Rd. None of the parties to those conversations was called for cross examination. I therefore accept that those conversations took place as stated. However, they don’t prove or disprove the Applicant’s residence. The receptionist at Mindwise stated the Applicant was “living in Perth”, but that statement doesn’t prove the fact, only that the receptionist believed or had been told that was the reason the Applicant had ceased taking new patients.

46. I accept also that a conversation between a process server and a “male aged approx. 70 years old, white European in appearance, and approx. 5’8’’ – 5’10’’ tall” took place at 30 [REDACTED] Rd on 21 September 2023, however I cannot make any findings in relation to what was said in that conversation, or the truth of its content, in circumstances where Mr Calnan has then deposed to a conversation with a “Mr Smith” which casts doubt on the conversation, and neither the process server, the unnamed man, Mr Smith, or Mr Calnan are called or required for cross examination.

47. The Respondent submitted:

…just because the Applicant may be able to work or conduct business in NSW at times is not determinative of the question as to whether she is resident of NSW: for example, Howe per Isaacs J at 308. Whether she is a resident of a State in the sense required by s 75(iv) of the Constitution, involves consideration of her residential connection with that State contrasted with all other States.

Whether the Applicant has her real "home" in NSW involves consideration of her status in Western Australia (where there is evidence of property owned by her and family that resides there), where she dwells; eats; socialises; spends time with family and friends; the frequency of her travel between locations; and everyday expenses associated with her real home and other places.

48. Having considered all of the evidence presented to the Tribunal in relation to the Applicant’s residence, and having considered the evidence presented of her residential connection with Western Australia, I am satisfied that the Applicant is a resident of New South Wales. The evidence demonstrates that following the sale of the family home at 21 [REDACTED] Rd in 2021, the Applicant remained a resident of New South Wales while her husband and son moved to Western Australia in early 2023. She pays rent and electricity in New South Wales. Her employment with Cumberland Hospital is in New South Wales. Her drivers licence is from New South Wales and her electoral enrolment is in New South Wales. According to her mobile phone records, she has been physically present in New South Wales for the vast majority of days between January 2021 and October 2023, when the evidence in the proceedings concluded. The fact that her late parents lived in Western Australia, her husband and adult son live in Western Australia, and that she visits Western Australia from time to time – even regularly – does not displace her residence in New South Wales in the circumstances of the evidence I have already referred to. Even accepting the evidence that the Applicant may have had or still has plans to move to Western Australia, on the evidence before the Tribunal I find that this has not yet occurred, and her residence remains in New South Wales.

49. Accordingly I find that these proceedings are not a matter falling within s 75(iv) of the Constitution, being a matter between a State and a resident of another State. The Applicant is a resident of New South Wales and the Tribunal therefore has jurisdiction to hear and determine her complaint under the Act.

Factual allegations

50. The Applicant’s Consolidated Points of Claim (CPOC) allege 9 distinct instances of conduct by the Respondent were unlawful race discrimination against her, as an employee, pursuant to ss 8(2)(b) and (c) of the Act. Those were:

1. the 1 September 2020 Conduct;

2. the 14 January 2021 Conduct;

3. the 2021 Investigation into the Applicant Conduct;

4. the 2021 Dismissal of the Applicant’s Complaint Conduct;

5. the 25 and 26 March 2021 Conduct;

6. the 7 May 2021 Statement;

7. the 25 June 2021 Statement;

8. the First Continued Investigation and Disciplinary Conduct; and

9. the Second Continued Investigation and Disciplinary Conduct.

51. The Applicant also alleged that the following conduct constituted unlawful victimisation of her pursuant to s 50(1) of the Act:

1. The First Continued Investigation and Disciplinary Conduct;

2. the Second Continued Investigation and Disciplinary Conduct; and

3. the Suspension and Medical Examination Direction.

52. I will address each of the factual allegations in turn, after consideration of the relevant legal principles and making some general findings about the witness evidence.

The 1 September 2020 Conduct

53. Although alleged in the CPOC as unlawful discrimination pursuant to ss 8(2)(b) and (c) of the Act, the 1 September 2020 conduct was described in the “Background Events” section of the CPOC, not the “Discriminatory Conduct” section. The Applicant alleged:

13.   On 1 September 2020, the First or Second Respondent issued a letter titled “Re: Performance Concerns Counselling Conversation 3 September 2020” to the Applicant, in which it made unfounded and minor performance and conduct allegations about aspects of the Applicant’s communication with management in her position as a Union Delegate (1 September 2020 Conduct).

14.   On or about 1 September 2020, the Applicant, including through the Health Services Union, complained that the 1 September 2020 Conduct was discriminatory.

15.   On or about 4 May 2021, the First or Second Respondent withdrew the 1 September 2020 letter titled “Re: Performance Concerns Counselling Conversation 3 September 2020”.

54. The Respondent denied the allegations described as the 1 September 2020 Conduct, other than admitting that on 1 September 2020 it issued to the Applicant via letter “a direction for her to attend a counselling meeting on 3 September 2020 to discuss concerns and expected standards of behaviour”.

The 14 January 2021 Conduct

55. The 14 January 2021 Conduct is central to the Applicant’s complaint against the Respondent. The Applicant alleged:

16.   On 3 December 2020, the Applicant complained to the First or Second Respondent that a colleague, Ms X, was:

a.   failing to follow COVID-19 safety policies established by the First or Second Respondent; and

b.   distracting employees in respect of whom the Applicant had managerial responsibility.

17.   On or about 18 December 2020, Ms X made a retaliatory complaint against the Applicant.

18.   On or about 22 and 23 December 2020, the First or Second Respondent, through both Carolyn Fozzard and Gerard Drinan confirmed that the Applicant had not done anything wrong in respect of the retaliatory complaint made by Ms X.

19.   On 23 December 2020, the Applicant complained to the First or Second Respondent that a colleague, Ms X, had repeatedly mocked the Applicant.

20.   On 14 January 2021:

a.   the Applicant again complained to the First or Second Respondent that Ms X had mocked her;

b.   the First or Second Respondent’s representative, Mr Paul O’Halloran, responded to the Applicant’s complaint in belittling and dismissive tone; and

c.   the First or Second Respondent’s representative, Mr O’Halloran, accused the Applicant of engaging in preferential treatment towards Ms Rajinder Kaur, by suggesting that the Applicant facilitated Ms Kaur breaching the First or Second Respondent’s Covid-19 safety policies, and did not complain about Ms Kaur’s breaches of Covid-19 safety policies.

(14 January 2021 Conduct).

21.   The 14 January 2021 Conduct was harmful to the Applicant because:

a.   it suggested that the Applicant showed favouritism to people with whom she shared, or with whom she was perceived to share, Ethnicity, Country of Origin or Skin Colour;

b.   it was made in response to the Applicant bringing complaints against a WSLHD employee;

c.   it caused the Applicant to feel distressed and traumatised, and to cry – the First or Second Respondent’s response to which was to accuse the Applicant of raising her voice; and

d.   it was untrue.

22.   The 14 January 2021 Conduct was discriminatory because it was for reasons that included the Applicant’s Ethnicity, the Applicant’s Country of Origin and/or the Applicant’s Skin Colour.

56. The Respondent denied the allegations described as the 14 January 2021 Conduct, save for admitting the following facts:

1. On 3 December 2020 the Applicant sent an email to Paul O'Halloran (Head of Department — Psychology) and Carolyn Fozzard (Executive Manager Mental Health) with the subject line "Staff office space — OT department and Ms X”. The email stated that Ms X was "distracting all other staff with loud conversation and social chit chat";

2. The complaint made by Ms X was serious and was the subject of facilitated resolution discussions under relevant NSW Health Policy, PD2016_046 Resolving Workplace Grievances;

3. On 23 December 2020 the Applicant complained that a colleague, Ms X, had repeatedly mocked the Applicant;

4. The Applicant sent an email to Ms Fozzard, Geoff Sheargold (Human Resources Manager — Mental Health Services) and Mr Brakoulias in which she states, inter alia, "Ms X has mocked me on a number of occasions”;

5. In a meeting with Ms Fozzard and Mr O'Halloran on 14 January 2021:

1. the Applicant attended remotely by Skype at around 9 am, during which she:

1. spoke to Mr O'Halloran in a loud and aggressively raised voice and tone;

2. yelled at Ms Fozzard and Mr O'Halloran when they were trying to de-escalate the Applicant's behaviour;

3. abruptly concluded the meeting by hanging up on Skype;

2. the Applicant stated words to the effect that she felt mocked by Ms X;

3. Mr O'Halloran said words to the effect of "Does Rajinder visit at all?"; and

4. The Applicant cried.

57. The Respondent also alleged that the matters alleged in [16] - [20] of the CPOC have already been the subject other proceedings, complaints and claims, including:

1. proceedings commenced by the Health Services Union, NSW Branch (HSU), on behalf of the Applicant against the Respondent in the Industrial Relations Commission of NSW (IRC) on 22 February 2021; where Commissioner Webster conducted a compulsory conference and conciliation and issued recommendations on 3 March 2021;

2. complaints by the Applicant under the Work Health and Safety Act 2011 (NSW) (WHS Act) to SafeWork NSW, where SafeWork NSW conducted a review and determined not to investigate the allegations;

3. a workers' compensation claim made by the Applicant under the Workers Compensation Act 1987 (NSW) (WC Act) where the Personal Injury Commission (PlC) has exclusive jurisdiction in respect of alleged work injury damages claim, and where the Respondent's insurer appeared and consented, without admission of any liability, to pay sums specified in a Certificate of Determination by consent on 14 October 2021.

The 2021 Investigation into the Applicant, and 2021 Dismissal of the Applicant’s Complaint

58. With respect to the 2021 Investigation into the Applicant Conduct, and the 2021 Dismissal of the Applicant’s Complaint Conduct, the Applicant alleged:

23.   On 14 January 2021 the Applicant complained to Mr Geoff Sheargold, the First or Second Respondent’s representative, about the 14 January 2021 Conduct.

24.   On 14 January 2021 the Applicant complained to Ms Carolyn Fozzard, the First or Second Respondent’s representative, about the 14 January 2021 Conduct.

25.   On 14 January 2021, the First or Second Respondent commenced an investigation into the Applicant’s complaints about the 14 January 2021 Conduct.

26.   On 3 February 2021, the Applicant complained about the First or Second Respondent’s investigation into the Applicant’s complaints about the 14 January 2021 Conduct.

27.   On about 17 February 2021, the First or Second Respondent, through its representatives Mr O’Halloran, Dr Vlasios Brakoulias, and Mr Gerard Drinan made allegations against, and commenced an investigation and continued it against, the Applicant, concerning the events of 14 January 2021 (2021 Investigation into the Applicant Conduct).

28.   On 3 March 2021, the First or Second Respondent concluded the investigation into the Applicant’s complaints about the 14 January 2021 Conduct and dismissed the Applicant’s complaints, but did not interview or speak with the Applicant for the purpose of the investigation (2021 Dismissal of the Applicant’s Complaint Conduct).

29.   The 2021 Investigation into the Applicant Conduct and the 2021 Dismissal of the Applicant’s Complaint Conduct were harmful to the Applicant because:

a.   by its failure to address or investigate an allegation of racism at work, and by instead commencing an investigation into the Applicant., the First or Second Respondent approved of or acquiesced to racist statements being made at work;

b.   the Applicant, being a person having the Applicant’s Ethnicity, Country of Origin and Skin Colour, was a person particularly and adversely affected by the First or Second Respondent approving of or acquiescing to racist statements being made at work; and

c.   the Applicant was hurt, humiliated and offended.

30.   The 2021 Investigation into the Applicant Conduct and the 2021 Dismissal of the Applicant’s Complaint Conduct were discriminatory because it was for reasons that included the Applicant’s Ethnicity, the Applicant’s Country of Origin and/or the Applicant’s Skin Colour.

59. The Respondent denied the allegations described as the 2021 Investigation into the Applicant’s Conduct, and 2021 Dismissal of the Applicant’s Complaint Conduct, save for admitting the following facts:

1. On 14 January 2021 the Applicant sent a number of emails, including:

1. an email at 10:06 am to Ms Fozzard;

2. an email at 12:03 pm to Ms Fozzard;

3. an email at 3:11 pm to Ms Fozzard, copying Mr Sheargold and Prof Brakoulias in relation to the meeting conducted at around 9am.

2. Assessment, investigation and risk management strategies were undertaken subsequent to the meeting of 14 January 2021, and on 18 February 2021, an allegations letter was issued to the Applicant in relation to conduct that allegedly occurred on 14 January 2021;

3. By letter dated 3 March 2021, Professor Vlassios Brakoulias, Executive Director Mental Health Services wrote to the Applicant notifying her of the outcome of investigations into competing complaints between the Applicant and Ms X, and the Applicant's grievance concerning the meeting of 14 January 2021. The Applicant’s complaints were determined:

1. to be not consistent with NSW Health CORE Values; and

2. were unreasonable and may be in breach of NSW Health Code of Conduct.

4. By letter dated 25 March 2021, Ms Jacqueline Dominish, District Director — Allied Health, wrote to the Applicant (in accordance with an agreed process reached in resolution of industrial dispute proceedings in the Industrial Relations Commission of NSW), and informed her that she was required to attend an interview in relation to her conduct during the 14 January 2021 meeting;

5. The Applicant did not attend such further interview;

6. On Monday 29 March 2021 the Applicant submitted a workers' compensation claim, and was unfit to attend work or any investigation interviews from 29 March 2021 until 3 September 2021 due to mental illness, and between 23 September 2021 and 13 April 2022 the Applicant had a further 16 absences from work.

The 25 March 2021 Conduct and 29 March 2021 Conduct;

60. The 25 March 2021 Conduct and the 29 March 2021 Conduct comprised the following allegations by the Applicant:

33.   On 25 March 2021, the First or Second Respondent:

a.   continued the 2021 Investigation into the Applicant Conduct;

b.   directed the Applicant to attend an interview about new allegations; and

c.   proposed to perform the interview through a panel of persons who had participated in proceedings before the Industrial Relations Commission of NSW in favour of the First or Second Respondent against the Applicant,

(25 March 2021 Conduct).

34.   On or about 25 March 2021, the Applicant declined to attend the interview on the basis of the matters set out above.

35.   On or about 29 March 2021, the First or Second Respondent, through its representative Ms Guzewicz, by inference accused the Applicant of being uncooperative (29 March 2021 Conduct).

…

37.   The 25 and 29 March 2021 Conduct was discriminatory because it was for reasons that included the Applicant’s Ethnicity, the Applicant’s Country of Origin and/or the Applicant’s Skin Colour.

61. The Respondent denied the allegations described as the 25 March 2021 Conduct and 29 March 2021 Conduct, save for admitting the following facts:

1. By letter dated 25 March 2021 from Jacqueline Dominish, District Direction — Allied Health, the Applicant was placed on notice:

1. of allegations of misconduct;

2. that the Applicant would be "required to attend an interview to respond to the allegations";

3. that details of the interview were to be confirmed with the Applicant;

4. that a risk assessment would be conduct in relation to the alleged conduct to ensure the health and safety of NSW Health patients and staff;

5. not to approach or discuss matters with Mr O'Halloran or Ms Fozzard;

6. to limit communication with Mr O'Halloran for patient care purposes.

2. the Applicant was absent from work from Monday 29 March 2021 until 3 September 2021 because of claimed unfitness for work due to mental illness, but was able to attend workers' compensation and injury management meetings from 31 March 2021 in relation to her workers' compensation claim.

The 7 May 2021 Statement

62. The Applicant’s allegations with respect to the 7 May 2021 Statement are:

38.   On 7 May 2021, a senior representative of the First or Second Respondent, Ms Luci Caswell, alleged that the Applicant, and her family, had a connection to the Tamil Tigers and that the Applicant had a propensity to complain (7 May 2021 Statement).

39.   The 7 May 2021 Statement was harmful to the Applicant because:

a.   it suggested that the Applicant, and her family, had a connection to a group that some people may regard as Sri Lankan terrorists;

b.   the statement was disseminated to other employees of the First or Second Respondent and repeated by at least one of those employees (namely Ms Y);

c.   it was made in response to the Applicant bringing complaints against WSLHD;

d.   it resulted in the Applicant’s son receiving, on or about 25 June 2021, a text message from a close relative of another employee of the First or Second Respondent by which the Applicant’s son was asked whether the Applicant was a member of the Tamil Tigers; and

e.   it was untrue.

40.   The 7 May 2021 Statement was discriminatory because it was for reasons that included the Applicant’s Ethnicity, the Applicant’s Country of Origin and/or the Applicant’s Skin Colour.

63. The Respondent denied the allegations described as the 7 May 2021 Statement.

The 25 June 2021 Statement

64. The Applicant’s allegations with respect to the 25 June 2021 Statement are:

41.   On or about 25 June 2021, a text message from Ms Y’s (an employee of the First or Second Respondent) husband was sent to the Applicant’s son by which he was asked whether the Applicant was a member of the Tamil Tigers (25 June 2021 Statement).

42.   The 25 June 2021 Statement was made at the direction of the First or Second Respondent, through its employee Ms Y or by Ms Y repeating statements made by other employees of the First or Second Respondent.

…

44.   The 25 June 2021 Statement was discriminatory because it was for reasons that included the Applicant’s Ethnicity, the Applicant’s Country of Origin and/or the Applicant’s Skin Colour.

65. The Respondent denied the allegations described as the 25 June 2021 Statement.

The First Continued Investigation and Disciplinary Conduct

66. The Applicant alleged, with respect to the First Continued Investigation and Disciplinary Conduct, that:

46.   Between 14 July 2021 and 13 September 2021, the First or Second Respondent continued to take, or propose to take, investigatory and/or disciplinary action against the Applicant by failing to abandon the previously instituted investigations against the Applicant (First Continued Investigation and Disciplinary Conduct).

…

48.   The First Continued Investigation and Disciplinary Conduct was discriminatory because it was for reasons that included the Applicant’s Ethnicity, the Applicant’s Country of Origin and/or the Applicant’s Skin Colour.

49.   Further or in the alternative to [48], the First Continued Investigation and Disciplinary Conduct was victimisation because it was for reasons that included:

a.   the Applicant’s complaints to the First or Second Respondent about the 14 January 2021 Conduct; and/or

b.   the Discrimination Complaint.

50.   On or about 16 September 2021, the Applicant returned to work.

67. The Respondent denied the allegations described as the First Continued Investigation and Disciplinary Conduct, save for repeating that “the Applicant was not present or fit to attend to work from 29 March 2021 to 3 September2021 inclusive” and admitting that “the Applicant returned to the workplace on 16 September 2021”.

The Second Continued Investigation and Disciplinary Conduct

68. The Applicant alleged, with respect to the Second Continued Investigation and Disciplinary Conduct, the following:

51.   From on or about 16 September 2021 to 26 April 2022 the First or Second Respondent took, or proposed to take, investigatory and/or disciplinary action against the Applicant, including by:

a.   on 20 September 2021, directing the Applicant to attend a meeting in relation to the disciplinary action;

b.   on 8 February 2022, through Hayley Cadman, attempting to have the Applicant attend a disciplinary proceedings meeting on 15 February 2022;

c.   on 22 February, through Ms Cadman, directing the Applicant attend a disciplinary proceedings meeting on 28 February 2022; and

d.   on 28 February 2022, interrogating the Applicant,

(Second Continued Investigation and Disciplinary Conduct).

…

53.   The Second Continued Investigation and Disciplinary Conduct was discriminatory because it was for reasons that included the Applicant’s Ethnicity, the Applicant’s Country of Origin and/or the Applicant’s Skin Colour.

Particulars

i.   The comparator is a person:

A.   not of the Applicant’s Ethnicity, the Applicant’s Country of Origin and/or the Applicant’s Skin Colour;

B. who had been the subject of conduct not materially different to that which is particularised at [48].

54.   Further or in the alternative to [53], the Second Continued Investigation and Disciplinary Conduct was victimisation because it was for reasons that included:

a.   the Applicant’s complaints to the Respondent about the 14 January 2021 Conduct; and/or

b.   the Discrimination Complaint.

69. The Respondent denied the allegations described as the Second Continued Investigation and Disciplinary Conduct, save for admitting the following:

1. by email dated 20 September 2021, Ms Stefanie Guzewicz, Industrial and Employee Relations Specialist, notified the Applicant that as she had returned to work, misconduct proceedings placed on hold in March 2021, and an interview scheduled for 12 April 2021 that the Applicant did not attend, would be rescheduled for Friday 24 September 2021;

2. by email in reply at 4:40 pm on 20 September 2021 the Applicant declined to attend the scheduled interview claiming, inter alia, that she did not have sufficient notice and that her specified union representative was not available until after school holidays;

3. by email dated 8 February 2022, Ms Heyley Cadman, Director Human Resources, notified the Applicant that she had been appointed to investigate misconduct allegations concerning the Applicant and was lawfully and reasonably directed the Applicant to attend an interview on 15 February 2022;

4. by email in reply at 3:18 pm on 8 February 2022 the Applicant refused to comply with the direction for reasons not accepted by the Respondent as justifying her refusal to comply;

5. by email dated 22 February 2022 the Applicant was requested to attend an interview with her union representative on 28 February 2022.

The Suspension and Medical Examination Direction

70. The Applicant alleged, with respect to the Suspension and Medical Examination Direction, the following:

57.   On or about 27 April 2022, the First or Second Respondent suspended the Applicant and purported to direct the Applicant to attend a medical examination (Suspension and Medical Examination Direction).

58.   The Suspension and Medical Examination Direction were victimisation because they were for reasons that included:

a.   the Applicant’s complaints to the First or Second Respondent about the 14 January 2021 Conduct;

b.   the Discrimination Complaint;

c.   the Applicant’s participation in the NCAT Proceedings; and/or

d.   the Applicant’s participation in the Mediation.

Particulars

i.   The detriment caused to the Applicant [by the] Suspension and/or Medical Examination Direction includes:

A.   hurt, humiliation and distress;

B.   subjecting the Applicant to the risk of disciplinary action and termination of employment, where such risk did not previously exist; and

C.   excluding the Applicant from the workplace, including subjecting the Applicant to social and physical exclusion.

71. The Respondent denied the allegations described as the Suspension and Medical Examination Direction, save for the following:

1. by letter dated 27 April 2022 from Alison Derrett, Acting Chief Executive of the Respondent, the Applicant was:

1. notified of risk management concerns regarding the Applicant's well-being and stress and concern being caused by the Applicant to other staff;

2. lawfully directed to remain out of the workplace on full pay until further notice to enable arrangements to be made for an Independent Medical Examination (IME) and the development of a Performance Improvement Plan (PIP);

3. lawfully and reasonably directed not to contact any potential witness involved in the investigations;

322. Ms Cadman’s evidence was that Ms Bir’s behaviour during the interview of 28 February 2022 made it “very challenging” to conduct a standard investigation process or interview. She said:

Ms Bir was belligerent and antagonistic right from the beginning of the meeting, and frequently attempted to attack me or the process.

I had planned to simply ask Ms Bir two or three questions in relation to the meeting on 14 January 2021. However I recall that much of the conversation became about me and what I had or had not read in preparation for the interview any mistakes she perceived I had made or times I may have inadvertently contradicted myself.

323. The Applicant disputed Ms Cadman’s characterisation of her conduct and tendered a transcript of the meeting, annexed to her Affidavit of 20 February 2023. The Applicant stated in her affidavit:

I refer to paragraph 30 of Ms Cadman’s affidavit. I do not agree that Ms Cadman or Ms Bikou showed “a lot of deliberate care and support” of me in the interview on 28 February 2022. Both the content of the questions put to me in that meeting and the tone in which they were put to me in that meeting were lacking in support and empathy. I was only asked two questions in this meeting. They were stated in words to the effect of “Were you emotional in the meeting of 14 January 2021” and “did you ask for a support person for that meeting”. Those questions were put to me in a tone that was blunt and accusatory. That is why I referred to that meeting as an “interrogation”.

I refer to paragraph 31 of Ms Cadman's affidavit. I deny that I was belligerent or antagonistic at any time in the interview mentioned. I did question in the interview the procedural fairness of the meeting process, but I did so in a professional manner. Annexed to this affidavit and marked OB-85 is a transcript of this interview evidencing what I said in it.

324. In cross examination, Ms Cadman was tested on her recollection of the Applicant’s attitude and conduct in the 28 February 2022 interview and taken to the transcript annexed to the Applicant’s 20 February 2023 affidavit, which Ms Cadman had not previously seen. The following exchange then occurred:

Hayley Cadman:   It feels like there's a chunk missing.

Mr McIntosh:      There's a chunk missing?

Hayley Cadman:   Correct.

Mr McIntosh:      So where is the chunk?

Hayley Cadman:   All of the questions. The meeting went on – so if I start from the beginning, so the very first page is my standard opening, how I would traditionally commence. I do feel that there was more from [Tom Stevenia] *0:12:09 that is not in here. Just my recollection, now it's coming back, sorry, that I'm going through this, with regards to requests for Omila to turn her camera on. I can't see this in here. And then [Mr Stevenia] did assist me with that. It just feels like there is some missing, yes. Where are all my questions?

325. The Respondent obtained a copy of the transcript for themselves and it was tendered as Exhibit R24. On close examination of the Applicant’s version of the transcript in comparison with the Respondent’s version of the transcript, it is clear that roughly 14 minutes of a 29 minute meeting (from 2.12pm to 2.26pm in the Applicant’s version which is timestamped, or from 10.12 minutes to 24.16 minutes in the Respondent’s timed version) were removed from the Applicant’s version, which was tendered by her as evidence of her conduct in that meeting. The version of the transcript annexed by the Applicant supports her affidavit statement that she was only asked two questions, whereas the Respondent’s full version demonstrates that the Applicant was asked many questions in relation to two separate allegations, being her conduct in the meeting of 14 January 2021 and then her conduct in a telephone call to Mr Sheargold after the meeting. It also demonstrates that the interview was not an “interrogation” and the Applicant was, in fact, argumentative towards Ms Cadman during the meeting:

Omila Bir   “Yeah. So, but I want to add the Hayley because if you read my while statement and I can give you the pages, I’m I asked for the meeting. I sit on two different occasions. We don’t seem to be getting anywhere. I I don’t think this needs to keep going because we just kept going around in circle and at no point in time any specific information was ever produced to me.”

…

Omila Bir   “You. You’re not being accurate.”

…

Omila Bir   “That complaint, and I responded to all the points to Carolyn and once again, if you can’t find it in my 1000 pieces, pick papers.”

…

Omila Bir   “Oh, I thought you said you didn’t have it in front of you.”

…

Omila Bir   “Ok, I don’t know. Tom, did you not hear when Hayley said that she didn’t have that doc?”

…

326. Based on my reading of the Respondent’s version of the transcript of the 28 February 2022 meeting, I accept Ms Cadman’s evidence.

327. I also agree with the Respondent’s submission that this transcript highlights the caution with which the Tribunal must treat the Applicant’s evidence. The Applicant’s capacity to file altered documentary evidence to misrepresent the truth raises serious questions about her credibility and her entire evidence. This transcript and the edited messages annexed to her son’s affidavit also cause the Tribunal to treat the documents attached to the Applicant’s evidence, and that of her witnesses, with caution. For those reasons and for those expressed above at [124] to [130], where there is evidence contradicting the Applicant’s, I prefer that evidence to the Applicant’s. Where the Applicant has not provided verifiable documentary support for her statements, I do not accept those statements.

328. Ms Cadman (and Ms Bikou) drafted an investigation report in April 2022 into the allegations of misconduct, which was provided to the Respondent’s Industrial and Employee Relations team on 23 May 2022 and was attached to Ms Cadman’s affidavit. All three allegations against the Applicant were substantiated on their investigation. In my view the summation of their findings is very fair and the recommendations they make are reasonable and conservative:

- It is recommended that Ms Bir revisit all training and practices that support managing emotions and communicating effectively in the workplace. Examples on My Health Learning may include:

- Emotion Intelligence in Practice

- Communicating During Challenging Situations

- Positively Resolving Workplace Conflict

- The investigators recommend that Ms Bir is supported by a performance improvement plan where she will have regular catch ups with her manager and both parties may table concerns they have in the workplace.

329. There is no evidence substantiating the Applicant’s allegation of differential treatment in relation to the interview of 28 February 2023.

Causation

330. The Applicant’s submissions suggest that the Applicant’s race (or characteristics thereof) should have been taken into consideration by the Respondent’s employees in the process of conducting the misconduct investigation and making the investigation findings, to the effect that the Applicant’s conduct was excusable or reasonable, and therefore not misconduct.

331. The Applicant was at pains in her evidence and submissions to point out when a witness was “white”, in contrast to herself, and suggested the Tribunal should draw inferences that any conduct adverse to herself in that context was because of her skin colour, as a characteristic of her race. The Applicant went to some length in submissions to demonstrate that the Respondent’s witnesses were suffering from an ‘unconscious bias’ against the Applicant and her complaint of race discrimination against Mr O’Halloran, and stated:

A finding of unconscious bias is sufficient to amount to a contravention of the Act. It is not necessary that the Tribunal determine that any one, or more, decision maker or person involved in the impugned conduct was motivated by actual bias: see, for example, Anters v DG Thompson Pty Ltd [2023] NSWCATAD 109 at [75].

332. The issue of unconscious bias (or conscious bias) is only relevant to the determination of causation under the Act. As submitted by the Respondent, if less favourable (or differential) treatment is proven, the question then becomes why the Applicant was subjected to the less favourable treatment. In proving a causal nexus, there must be a rational explanation based on proper proof as to why the conduct took place because of the aggrieved person’s race, ethnicity, country of origin, skin colour: Penhall-Jones v State of New South Wales [2007] FCA 925 at [68]-[86]. In determining the causation question, the key issue is enquiring into the mental processes and actual reasons of relevant decision-makers: Purvis per Gleeson CJ at [13], per McHugh and Kirby JJ at [141]-[143] [155]-[158], [160]; per Gummow, Hayne and Heydon JJ at [236].

333. In Sharma v Legal Aid Queensland [2001] FCA 1699 at [63], Kiefel J (as her Honour then was) considered at first instance, and rejected, the mere possibility of systemic racism by inference issuing the following cautionary words:

The existence of racism in the community is acknowledged by the legislation in question. A possibility, in a given case, that it may explain a choice made in the appointment of a person, may arise. Whether that possibility can then be converted to a more substantial finding, one which allows an inference that racism in fact operated on the decision-making so as to satisfy the requisite standard, is a question of fact in each case. Counsel for the applicant submitted that an inference could be drawn because of the known existence of racism combined with [a fact of the case]. It would seem to me that the two factors identified, considered individually or collectively, raise no more than a possibility that race might operate as a factor in the decision-making.

334. I have already found that the Applicant’s race was not a reason why Mr O’Halloran made a complaint of misconduct against the Applicant following the meeting of 14 January 2021. I accept Ms Cadman’s evidence that the Applicant’s race, including ethnicity, country of origin and skin colour, were not considered or referenced by her or Ms Bikau in the conduct of the investigation or in the context of making their investigation findings. Even putting aside the findings I have made that the Applicant has not substantiated any differential treatment, I further find that there is no evidence to indicate that the Applicant’s race was a factor in the Respondent’s conduct of investigating or continuing to investigate the misconduct allegations against the Applicant, or in any of the processes thereby engaged by the Respondent to facilitate that investigation and the subsequent findings made.

Victimisation

335. The additional or alternative case put by the Applicant in relation to the continuation of the investigation into the allegations of misconduct against the Applicant (described by the Applicant as the First Continued Investigation and Disciplinary Conduct and the Second Continued Investigation and Disciplinary Conduct) was that this conduct amounted to victimisation pursuant to s 50 of the Act.

336. The Applicant submitted:

Each of the persons involved until this point were aware that Ms Bir had made complaints of race discrimination. No witness was able to identify a good or compelling reason why the complaints by Mr O’Halloran were treated differently to Ms Bir’s. No witness was able to identify a good or compelling reason why her complaints against Mr O’Halloran were not relevant to explain why she had behaved as she did no 14 January 2021. On the other hand, the Respondent was self evidently not properly equipped to deal with race discrimination complaints. The Tribunal can infer that the Respondent’s reasons for it progressing the misconduct allegation against Ms Bir included that Ms Bir had made a complaint of race discrimination.

337. As discussed above at [88], to make out a complaint of victimisation the Applicant must demonstrate that there was a ‘trigger’, that the Respondent’s conduct subjected her to a detriment, and that one of the “real, genuine or true reasons” for the conduct was because of the trigger (causation).

338. I accept that the Applicant’s complaint of race discrimination on 14 January 2021 and her complaint to ADNSW on 14 July 2021 constitute “triggers” for the purpose of s 50 of the Act.

339. Whilst I have found that there was no continuing investigation in the period 29 March 2021 to 3 September 2021, I accept that the Respondent’s continuation of the investigation after 3 September 2021 subjected the Applicant to a detriment. I agree with the Applicant’s submission that an investigation process for misconduct allegations which is considering disciplinary action can be a detriment within the meaning of s 50 of the Act.

340. I do not find, however, that one of the real, genuine or true reasons for the Applicant being subjected to that detriment was because of the trigger, ie because she had made a complaint of discrimination under the Act.

341. The Applicant submitted that, by the letter of 17 February 2021 notifying the Applicant of the misconduct allegations, the Respondent:

…committed themselves to a position that connects the Applicant’s complaints about the conduct to which she was subject, with the action taken by the Respondent

342. There was undoubtedly a temporal connection between the Applicant’s complaint of discrimination and the initiation of misconduct allegations against the Applicant, by way of Mr O’Halloran’s complaint. I decline, however, to infer that the temporal connection demonstrates that the Applicant’s complaint was one of the “real, genuine, or true reasons” for the Respondent’s conduct. The obvious and simple explanation for the temporal connection is that both the Applicant’s complaint and Mr O’Halloran’s complaint had conduct at the 14 January 2021 meeting as their subject matter.

343. The Applicant also submitted:

The Tribunal can also infer that the Respondent(s) were displeased with the Applicant having made a complaint to Anti-Discrimination NSW. Prior to that point, little had been done to advance the investigation during the Applicant’s period of leave. After the claim was lodged, the Respondent(s) progressed the investigation with greater urgency.

344. The Applicant’s complaint to ADNSW was made in July 2021. There is no evidence of any progression of the investigation until the Applicant’s return to work in September 2021. The investigation was progressed once the Applicant returned to work after a significant period of workers compensation leave. I therefore decline to make the inference submitted by the Applicant.

The Suspension and Medical Examination Direction

345. The Suspension and Medical Examination Direction allegation of victimisation is outlined above at [70]. Evidence in relation to this allegation was provided by the Applicant and Mr Holmes.

346. As discussed above at [303], the Applicant was absent from work for an extended period of time. On her return to work, although certified as fit to return to pre-injury duties, the Applicant had an unusual number of absences on sick leave – at least 16 instances in a period of approximately 6 months. The Respondent contended that many of those absences were unsupported by medical evidence and were not properly notified by the Applicant to her manager. The Applicant denied this. I am not satisfied by the explanation provided by the Applicant that all or many of those instances of sick leave were for short dental appointments she was “catching up” following the COVID restrictions. Even if there was a documented basis for each of the many instances of sick leave, and the Applicant had sufficient accrued sick leave to take, that many instances in a relatively short period of time, after an extended period of leave on workers compensation, would reasonably cause her employer considerable concern.

347. Mr Holmes’ evidence was to the effect that he held serious concerns in relation to the Applicant’s capacity after she returned to work, for a few reasons. These included a complaint from a psychiatrist about her uninvited attendance at a Mental Health Review Tribunal hearing for a patient; her considerable number of sick leave instances after being certified fit to work; further complaints made by the Applicant about perceived aggression from a colleague which appeared to follow the same pattern of vexatious complaints made by her; and the Applicant disclosing insomnia, anxiety and feelings of worthlessness in a draft statement for her Personal Injury Commission proceedings. Mr Holmes reasonably concluded that the Applicant could be suffering from a medical impairment, and that it was in line with the Respondent’s duties of care to the Applicant, patients and other staff for the Applicant to be medically assessed by an independent medical examiner. I accept Mr Holmes’ evidence and find that it was a reasonable conclusion to reach.

348. By letter dated 27 April 2022, the Applicant was directed to remain out of the workplace, on pay, until she attended an independent medical examination (IME). The IME was booked to assess work health and safety concerns, including to ensure, so far as is reasonable practicable, that the Applicant was medically competent as a clinician and not exposing herself or others at work to risk, including during PIP discussions. The Applicant was given notice of the IME appointment but did not attend. A further appointment was made which the Applicant did not attend. I accept that evidence.

349. The Applicant submitted that the ‘suspension’ and direction for the Applicant to attend an IME was victimisation for her discrimination complaint. Mr Holmes’ view under cross examination was that the Applicant was not suspended, and that the direction for her not to attend work and to attend an IME was purely for the health and safety concerns previously expressed. He said:

It's not the fact that there’s absences but the fact that those absences have occurred in a context where there's a medical clearance and the number of absences for our purposes is consistent with chronic health condition. And the standard approach that the health service takes in that circumstance is to seek medical advice

…

… it's not a position it's my evidence. But you're not appreciating someone that's been absent from the workplace, produces a medical clearance saying they’re fully fit, and then they have a pattern of absences that is consistent with a chronic health condition in itself. But also in context of everything else. We run a health service which is high risk, and we have an obligation to provide care and assistance to people that are sick and vulnerable. It's high risk for a clinician to have incapacity, both in respect of themselves, and in respect of patients, and it's a higher risk where someone’s a department head and they’re responsible for the well being of other staff.

350. Mr Holmes’ evidence was that on many, many occasions – at least 100 – he had directed an employee not to attend at the workplace because they have not disclosed why they are continuing to seek mental health treatment.

351. The Applicant submitted that the timing of Mr Holmes’ concerns demonstrated the victimisation, and that:

77.   Further, Mr Holmes (who was held out by the Respondent as the only witness who had an involvement in the decision to suspend) correctly conceded that he could not tell the Tribunal with certainty that the direction to remain out of the workplace was not related in any way to the proceedings or to Ms Bir’s complaints. (Holmes XXM PDF36)

352. I can’t find that concession in Mr Holmes’ evidence and considering the transcript of his evidence went for more than 90 pages, the reference provided by the Applicant is entirely unhelpful. The evidence I have reviewed of Mr Holmes’ entire cross examination is that he was firm in stating that the recommendation he made to direct the Applicant not to attend the workplace until she had been assessed and certified fit by an IME was not a misconduct suspension, and had nothing to do with these proceedings or any complaint she had made under the Act, and everything to do with the concerns he expressed about her capacity and the Respondent’s duties of care to her, her staff, and patients. I accept that evidence.

352. The Applicant’s complaint of victimisation in relation to the ‘Suspension and Medical Examination Direction relies on the Tribunal drawing an inference that the Respondent engaged in this conduct towards the Applicant because of the ‘trigger’ – that she had made a complaint of race discrimination under the Act. An inference cannot be made where more probable and innocent explanations are available on the evidence. The more probably and innocent explanation available on the evidence is that the Applicant was directed to attend an IME and was required not to attend the workplace until that was completed, because of reasonable and valid concerns held by the Respondent about her capacity in the context of their duty of care to the Applicant, her reporting staff and clinical patients.

353. I therefore find that whilst the trigger for a victimisation complaint occurred, and directing the Applicant not to attend the workplace (even while on pay) and to attend a medical examination may be considered detriments, there is no causation linking the detriment to the fact that the Applicant made a complaint under the Act. There is therefore no unlawful victimisation within the meaning of s 50 of the Act.

Conclusion

355. I have found that the Applicant has not substantiated any part of her complaint against the Respondent as unlawful discrimination or unlawful victimisation.

356. Pursuant to s 108(1)(a) of the Act, the Applicant’s complaint is dismissed.

Orders

1. The name of the Respondent is amended to Secretary, Ministry of Health.

2. The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW).

3. The interim orders made on 22 March 2023 are vacated.

4. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of individuals referred to in these reasons for decision as ‘Ms X’, ‘Ms Y’ and ‘Mr Y’ is restricted to the parties to these proceedings.

5. Pursuant to s 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013 the publication and reporting of the names of the individuals referred to in these reasons for decision as ‘Ms X’, ‘Ms Y’ and ‘Mr Y’ is prohibited.

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Endnotes

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

12 July 2024 - De-identified the four residential addresses.

Decision last updated: 12 July 2024