Hennessy v Secretary, Department of Communities and Justice

[2024] NSWCATAD 269

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hennessy v Secretary, Department of Communities and Justice [2024] NSWCATAD 269

Hearing dates:

2 September 2024

Date of orders:

06 September 2024

Decision date:

06 September 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The Applicant’s application for interim orders is dismissed.

Catchwords:

ANTI-DISCRIMINATION – HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) – interim or stay order – prima facie case – balance of convenience – complaints of discrimination on grounds of marital or domestic status, responsibilities as a carer, victimisation

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63

Cardile v LED Builders Pty Ltd [1999] HCA 18

Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63

Texts Cited:

N Rees, K Lindsay and S Rice, Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008

Category:

Principal judgment

Parties:

Sharon Hennessy (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Counsel:
M Foran (Respondent)

Solicitors:
Applicant self-represented
Department of Communities and Justice (Respondent)

File Number(s):

2024/00102755, 2024/00179502

Publication restriction:

none

REASONS FOR DECISION

1. On 13 February 2024 in different proceedings in this Tribunal (matter number 2024/00055511) the Applicant, Sharon Hennessy made an application for interim orders under s 105 of the Anti-Discrimination Act 1977 (NSW) (the Act). The hearing for that application took place on 12 March 2024. There was no appearance by the Applicant, because due to an administrative error the Applicant was provided with incorrect dial-in details. Principal Member Ransome heard those proceedings and was satisfied that an interim order was not justified, and orders were made to that effect.

2. The Applicant’s employment was terminated by the Respondent on or around 12 March 2024.

3. By Application filed 18 March 2024, the Applicant again applied for an order under s 105 of the Act. That application was listed for hearing on 28 March 2024. On 28 March 2024 the proceedings were adjourned to 5 June 2024 while the parties engaged in conciliation through Anti-Discrimination NSW. On 4 June 2024 the matters were again adjourned to 17 July 2024, for a case conference. The parties sought a further adjournment on 16 July 2024 which was refused. On 17 July 2024 the Tribunal ordered the parties to file and serve their evidence and submissions in relation to the interim order application, and listed the application for hearing on 28 August 2024. The Applicant filed an amended interim order application on 31 July 2024.

4. On 28 August 2024 the matters were before me for determination. I was unable to ascertain, from the voluminous material before me, exactly what Application was being moved on by the Applicant, or what exact orders were being sought. There were several different versions of interim order applications included in the paper file, and emails from the Applicant dated 13 August 2024 and 19 August 2024 containing further versions of orders or variations to orders being sought by her in the interim order application.

5. At hearing on 28 August 2024 the parties agreed that the application for determination was the Application for Stay or Interim Order dated 31 July 2024 (the 31 July Application). The Applicant did not press the other versions of the interim order applications sent by her to the Tribunal. The 31 July Application, however, contained text boxes which cut off their contents. The Orders sought were stated to be:

1. I be reinstated to DCJ in a mutually agreeable role to the same or higher benefits that I was receiving in my previous role by 31st July 2025.

2. I be paid my full DCJ wage and superannuation etc from 12th March to 9th May 2024 and during any other periods of casual teacher unemployment until my reinstatement, such as

6. I made the following orders:

1. Applicant is to email both the Tribunal and the Respondent with a full copy of the text included in her Application for Stay or Interim Order dated 31 July 2024, by 30 August 2024.

2. No further documents, evidence or submissions will be accepted by the Tribunal in relation to the Application for Stay or Interim Order dated 31 July 2024.

7. I listed the matter for resumed hearing on 2 September 2024.

8. Prior to adjourning the hearing on 28 August 2024, I asked the Applicant what her reasons was for seeking interim orders, rather than waiting until the substantive matter was heard and determined in November 2024. The Applicant explained that the fact that she was not permanently employed by the Respondent would impact any rental application she was to make.

9. On 2 September 2024 the hearing resumed. Despite the orders made on 28 August 2024, on 30 August 2024 the Applicant emailed four documents to the Tribunal and stated:

Dear NCAT and William Jardine,

Please find attached my form that was requested to be filed as per our orders on the 28th August.

I have attached the documents that I wish to rely upon for our hearing on 2nd September for the convenience of NCAT and William Jardine, to ensure the hearing runs smoothly and that there are no missing forms or documents etc (as this occurred in our 28th August hearing).

Please note, these attached documents contain NO NEW EVIDENCE as per our 28th August orders. They are simply documents that have been previously submitted in relation to this matter as far back as March 2024. DCJ were also provided with a copy of these documents in March 2024, and therefore have had plenty of time to review this evidence. They were part of my evidence for the 12th March hearing that was rescheduled to the 28th March 2024. I resent them simply to avoid any difficulties for the Principal Member in locating them.

I wish to also rely upon previous evidence recently submitted to NCAT, especially from the 31st July onwards.

Best regards,

Sharon Hennessy.

10. It became apparent that the fourth document, titled “Form text boxes.pdf” (the “new” Application) was being submitted by the Applicant as the complete contents of the 31 July Application. However, a cursory review of those two documents demonstrated that the Applicant had created an entirely new, 16 page document instead, and the orders sought were not a text continuation of those in the 31 July Application.

11. I gave the Respondents an opportunity to make submissions in relation to the differences between the “new” application and the 31 July Application, but the Respondents informed the Tribunal they were content to continue the hearing in relation to the “new” Application.

12. In the “new” Application, the Applicant additionally sought to ventilate an issue regarding an alleged breach of privacy, seeking orders from the Tribunal against the Respondent in respect of this alleged conduct. I explained that the Tribunal did not have jurisdiction in the present application to deal with this issue.

13. The relevant orders sought by the Applicant in the “new” Application were:

1. The applicant be immediately reinstated as a DCJ employee and be placed on leave without pay.

2. The applicant be provided with all the necessary paperwork to prove this reinstatement for the purposes of securing a rental agreement, etc.

3. That all leave entitlements be returned to the applicant that were present prior to her termination on the 12th March 2024.

4. The applicant is not required to file any leave prior to 12th March 2024.

14. The additional three documents emailed by the Applicant on 30 August 2024 (despite my orders of 28 August 2024) were in relation to a probationary report prepared by the Respondent in relation to the Applicant’s employment which the Applicant alleged had been “falsified”, and her evidence in relation to that allegation. Prior to her termination, the Applicant was subject to a probationary period which resulted in the probationary report being prepared by the Respondent. The Applicant provided the Tribunal with 115 pages of evidence to support her allegation that the Probationary Report contained falsified information, and a submission that her employment should therefore not have been terminated.

15. As was explained to the Applicant, the Tribunal has powers to make interim orders under s 105(1) of the Act to:

1. preserve the status quo between the parties to the complaint, or

2. to preserve the rights of the parties to the complaint, or

3. to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred, pending determination of the matter the subject of the complaint.

16. The Applicant’s termination by the Respondent in March 2024 means that the orders being sought by the Applicant in the “new” Application (and the 31 July Application, and all other iterations of the orders sought by her after her termination) do not “preserve the status quo”. That ship has sailed. Nor do the orders being sought do anything to preserve the rights of the Applicant or the Respondent. Rather, they seem to be most relevant to s 105(1)(c) of the Act, returning the parties to the complaint to the circumstances they were in before the contravention of the Act, pending determination of the complaint.

17. Those circumstances would be that the Applicant was employed by the Respondent on a probationary basis. Returning the Applicant to those circumstances would necessitate the Applicant’s reinstatement. Only once reinstated, could an order to “preserve the status quo” become relevant, pursuant to s 105(1)(a) of the Act. This could be achieved by further orders placing the Applicant on Leave Without Pay pending the resolution of her complaint by this Tribunal.

18. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 (Dhillon) at [16] the Appeal Panel of the Administrative Decisions Tribunal, the predecessor to this Tribunal’s Appeal Panel, examined the scope of the power in s 105 of the Act and observed that it is modelled on the power of courts to make interlocutory injunctions. While the power of the Tribunal to grant interim relief is not subject to any limitation which is not strictly required by the language and purpose of the Act, the principles applicable to interlocutory injunctions provide useful guidance: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Kirby J at [110]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 per Gummow and Hayne at [89].

19. At [18]-[19] the Appeal Panel in Dhillon considered the principles to be applied in determining whether or not to make an order under s 105 of the Act:

In our view, when determining whether or not to make an interim order, the Tribunal should examine the connection between the form of interim relief, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. This thinking was encapsulated by N Rees, K Lindsay and S Rice, in Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008, at p 690, where the two overlapping purposes of s 105 (and similar provisions throughout Australia) were identified as:

. . .first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint.

20. The Appeal Panel went on to note that the power conferred on the Tribunal under s 105 of the Act was not “at large”, but rather the power was limited to the making of orders relating to or affecting the statutory rights of the parties under the Act.

21. The principles to be applied in applications for interim relief in this Tribunal (and the Courts) are first, whether there exists a prima facie case for the Applicant, and secondly, to consider the balance of convenience - or whether the burden placed upon the Respondent, should interlocutory relief be granted, is not justifiable having regard to the damage or danger sought to be averted. In other words, whether the inconvenience or injury which the Applicant would be likely to suffer if the application were refused outweighs or is outweighed by the injury which the Respondent would suffer if the application were granted.

22. The Applicant submitted that the evidence she had provided to the Tribunal demonstrated a “prima facie case” and that the Tribunal should therefore rule in her favour without having to hear from the Respondent. As was explained to her, the requirement to make out a prima facie case does not mean that the Tribunal then determines the substantive proceedings in her favour without hearing from the Respondent or allowing the Respondent to test her evidence. All a “prima facie case” means, in this context, is that the Applicant has satisfied the Tribunal that she has a case which can be argued in the substantive proceedings.

23. The Applicant’s case is that her employer, the Respondent, has discriminated against her on the grounds of her marital or domestic status and her responsibilities as a carer. She also claims to have been victimised. In considering the interim order application on 12 March 2024, Principal Member Ransome found:

I am not satisfied that the applicant has made out a prima facie case. While little detail of her complaint is before me, it appears that her complaint primarily concerns a belief that she was discriminated against because she was not provided with flexible working hours to care for her sick daughter and husband. It is true that she was required to attend the office and not work from home. However, the probation report sets out a significant number of areas of concern none of which relate to her marital or domestic status or her caring responsibilities. Her case is relatively weak.

24. Taking into account the Applicant’s allegation and her (untested) evidence that the probationary report was falsified, I am still not satisfied that any conduct on the part of the Respondent discriminated against the Applicant on the grounds of marital or domestic status, or carer responsibilities. The Respondent’s conduct may have impacted her because of those characteristics or attributes, but there is little evidence to demonstrate a causal connection with the actual conduct by the Respondent. Nevertheless, even if I was satisfied that the Applicant had a prima facie case with respect to her discrimination complaint, or victimisation complaint, I still need to consider the balance of convenience.

25. There is no evidence that the termination of the Applicant’s interferes with or hinders the investigation of her complaints being undertaken by ADNSW, or would likely impact on the Tribunal’s determination of her substantive complaint.

26. The Applicant submitted that it was not fair to terminate someone on the basis of a falsified probationary report. The unfairness of a termination is not a matter within this Tribunal’s jurisdiction.

27. The Applicant has submitted to the Tribunal that she will suffer significant hardship if the interim orders she is seeking are not made. She is currently working as a casual teacher and shares custody of her daughter with her ex-partner. The lease for her current residence expires in November 2024. The Applicant submitted that she will find it difficult to secure a rental property in her current residential area if she is not permanently employed.

28. The Applicant submitted that if she were unable to secure a rental property in the area, she may need to move away, which will negatively impact her ability to comply with Family Court orders for her daughter, which require her to live in a particular area. The Applicant submitted that this may mean she has to give custody of her daughter to her ex-partner, which neither she nor her daughter want.

29. The Applicant submitted that her reinstatement to employment with the Respondent would mean that she was more likely to be able to secure a rental property in the area. This submission is based on discussions she has had with real estate agents, who have apparently informed her that if she were employed by the Respondent, even on a probationary basis and if she were on leave without pay, this would make a positive difference to her rental application, in comparison to her current casual employment.

30. Even if the Tribunal were to accept the hardship submissions made by the Applicant without any supporting evidence, it cannot accept the hearsay evidence of the Applicant’s discussions with unspecified real estate agents about an unknown landlord’s consideration of a hypothetical rental application for an unknown property in two months’ time. There is no evidence before the Tribunal supporting the Applicant’s submission that her reinstatement to the Respondent’s employment would actually result in any difference to the consideration of a future rental application. I therefore cannot find that making the interim orders being sought would actually impact the hardship being suffered by the Applicant.

31. The Respondent submitted that since the Applicant’s termination in March 2024, there had been organisational changes. These changes increase the prejudice which would be suffered by the Respondent if the Applicant were reinstated, which were considered by Principal Member Ransome to be:

…her employer would be prevented from filling her position on a permanent basis. It would also be required to provide the applicant with employment for which she may not be suited or possibly of a different type given the probation report's findings as to the applicants abilities and conduct.

32. Placing the Applicant on Leave Without Pay after reinstatement would somewhat ameliorate the prejudice identified previously, but I consider it remains detrimental that the Respondent would be prevented from actually filling the Applicant’s position while she remained employed, but on leave.

33. Taking all matters into consideration, I am not satisfied that the balance of convenience favours the making of any of the interim orders sought.

34. Having regard to the reasons above, the application for interim orders is refused. The Applicant’s application for interim orders is dismissed.

Orders

1. The Applicant’s application for interim orders is dismissed.

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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

Decision last updated: 06 September 2024