James and Secretary, NSW Department of Communities and Justice

[2022] NSWCATAD 280

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

James and Secretary, NSW Department of Communities and Justice [2022] NSWCATAD 280

Hearing dates:

28 and 29 October 2021, 1 November 2021 and 2 December 2021, last evidence received from respondent on 10 June 2022.

Date of orders:

22 August 2022

Decision date:

22 August 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
Dr M Murray, General Member

Decision:

1.   The respondent pay the applicant $35 000 by way of compensation for the non-economic loss or damage suffered by reason of the respondent’s victimisation within 28 days of the order.

2.   The respondent pay the applicant $819 gross by way of compensation for the economic loss or damage suffered by reason of the respondent’s victimisation within 28 days of the order.

3.   The respondent is enjoined from continuing or repeating any conduct rendered unlawful by this Act or the regulations against the applicant.

4.   The respondent place the applicant into the Senior Services and Programs Officer role at Emu Plains within 28 days of receiving medical advice that she is fit to carry out the inherent requirements of the role.

Catchwords:

HUMAN RIGHTS - Victimisation – Detriment – Statutory Defence – Remedies – Orders pursuant to s108(2)(a)(b) and (c) – Damages arising out of found victimisation claim, appropriate award of damages for hurt feelings and psychological injury – Order enjoining the respondent from continuing or repeating unlawful conduct – Order to redress any loss or damage suffered by the complainant.

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Australian Human Rights and Commission Act (Cth)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Sector Employment Regulation 2014 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; 168 CLR 165

Bell v Aboriginal and Torres Strait Islander Commission & Ors [1994] EOC 92-565

Borg v Commissioner of Corrective Services & Anor [2002] NSWADT 42

Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

Burrows v Commissioner of Police [1995] EOC 92-676

Commissioner of Police, NSW Police Force v Butcher (EOD) [2011] NSWADTAP 9

Dutt v Central Coast Area Health Service [2002]

NSWADT 133

Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217

Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146

James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238

James v Department of Justice (Corrective Services NSW) [2020] NSWCATAD 17

James v Department of Justice (Corrective Services NSW) [2021] NSWCATAP 118

James v Department of Justice (Corrective Services NSW) [2022] NSWCATAP 49

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

Kostas v HIA Insurance Services Pty Ltd [2010] HCA (2010); 241 CLR 390; 84 ALJR 663;

Lavery v Commissioner of Fire Brigades [2003] NSWADT 93

Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12

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

Pochi v Minister for Immigration & Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCA 537

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334

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

Sunil v Burns [2015] NSWCATAP 207

Sutherland v Tallong Park Association Incorporated (No 2) [2006] NSWADT 287

Tsikos v Austin Health [2022] VSC 174

Walsh v Hunter New England Local Health District [2020] NSWCATAD 134

Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514

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

Yelda v Sydney Water Corporation & Vitality Works Australia Pty Ltd [2021] NSWCATAD 107

Texts Cited:

Forbes J R S Justice in Tribunals 5th ed The Federation Press 2019

Category:

Principal judgment

Parties:

Rita James (Applicant)
NSW Department of Communities and Justice (Respondent)

Representation:

Counsel:
Mahendra D (Respondent)

Solicitors:
Applicant (Self-represented)
McCullough Robertson (Respondent)

File Number(s):

2020/00326951

Publication restriction:

Nil

REASONS FOR DECISION

1. This is a claim of victimisation pursuant to s 50 of the Anti-Discrimination Act 1977 (NSW) (Act) brought by Ms James, in relation to conduct by employees of Secretary, NSW Department of Communities and Justice (DCJ), between October 2019 and 18 January 2021 (Complaint Period).

2. The complaint is that DCJ offered insufficient assistance to Ms James to return to work following a period of workers compensation leave and took steps to delay or prevent her returning to the role of Senior Services and Programs Officer (SAPO) at Emu Plains Correctional Centre (EPCC) Grade 7/8 (Substantive Position) because she had made complaints against employees of DCJ, including a complaint of sexual harassment and bullying.

3. Ms James claims that she was successful in returning to work at DCJ in October 2019, albeit to an administrative role below her level of competence only because of the intervention of SafeWork NSW (SafeWork) but that DCJ continued to deny her returning to the Substantive Position, despite her being medically cleared to do so. Ms James complains specifically about the conditions DCJ determined she must satisfy, set out in its letter to her of 12 December 2019 (the Letter), prior to it considering whether she can return to the Substantial Position. DCJ claims that it did assist her returning to DCJ from 12 September 2019 and that her return to work in October 2019 was not caused by the intervention of SafeWork. Secondly, that the matters set out in the Letter are based on the recommendations of a Government Medical Officer (GMO).

4. For the reasons that follow, Ms James has established that DCJ subjected her to detriment within the meaning of s50(1) of the Act.

Background Facts

5. On 23 July 2002 Ms James commenced employment with DCJ in the position of SAPO (drug and alcohol counsellor) within the Offender Management and Programs within the Intensive Drug and Alcohol Treatment Program (IDAPT) at the John Maroney Correctional Centre at the Windsor Complex. Ms James was promoted into the role of Program Facilitator in 2003. In 2014, Ms James was appointed as a Throughcare and Placement Officer.

6. On 26 May 2015, Ms James lodged a complaint with the Anti-Discrimination Board (now Anti-Discrimination NSW) alleging that she was prevented from returning to the Substantive Position and workplace at the Windsor complex because of her complaint of bullying and harassment against Mr Calver, Director of IDAPT, DCJ (First Complaint).

7. From November 2015 to April 2016, Ms James was absent from work on workers compensation leave. She returned to work at Silverwater Correctional Centre in a Grade 5/6 role, although paid at grade 7/8 and in May 2016 was certified fit for pre-injury duties outside IDAPT. Ms James continued to work at the Silverwater Correctional Centre until October 2016. On 23 January 2017, Ms James commenced her Substantive Position.

8. On 26 October 2017, Ms James made an internal complaint about Ms Moore (Regional Support Manager Metro), Dr Martin (Assistant Commissioner) and Mr Jackson (Ms James’ supervisor). The allegation was that as a result of the First Complaint, she had been victimised. The particulars of the victimisation were listed as missed development opportunities, no feedback when requested, bullying behaviour and senior management failure to address issues of concern when advised.

9. Ms James made a second complaint to the Anti-Discrimination Board in August 2018 alleging discrimination on the ground of disability and victimisation about a complaint period of 23 January 2017 to 16 August 2018 (Second Complaint). The Second Complaint contained allegations similar to those she had made in her internal complaint to DCJ on 26 October 2017.

10. From August 2018 and up to 12 September 2019, Ms James was certified fit to work in the Department of Justice, but not in the DCJ Division. However, no suitable work was provided, and Ms James was off work on workers compensation leave. In this period, she was participating, together with her treating psychiatrist Dr Naaz, the insurer, DCJ (Mr Tregurtha, HR Advisor) and her return to work provider in return to work meetings.

11. On 12 September 2019, Ms James received medical clearance from Dr Kate Pham, her General Practitioner (GP) that she had capacity to return to the Substantive Position to perform pre-injury duties for 5 hours a day, 3 days a week on a trial basis.

12. On 20 September 2019 DCJ determined to refer Ms James for a fitness for duty assessment to a GMO, Dr Himalee Abeya (Dr Abeya).

13. On 10 October 2019, at Ms James’ request, SafeWork contacted DCJ regarding her returning to work. On 11 October 2019, Ms James was notified by Mr Tregurtha that she would commence working at the Windsor Community Correctional Centre from 22 October 2019 pursuant to a Return to Work Plan 1.

14. Return to Work Plan 1 and later the Return to Work Plan 2 were developed in consultation with Ms James, Dr Naaz, the insurer and Mr Tregurtha.

15. Ms James commenced work at Parklea Correctional Centre and Windsor Community Corrections with the aim of returning to the Substantive Position by the end of 2019.

16. On 5 November 2019, DCJ was provided with a report from Dr Abeya, GMO. On 12 November 2019, Mr Tregurtha informed Ms James that he would be meeting with Ms Hellams and other senior management early next week regarding a return to work to the Substantive Position.

17. On 29 November 2019, Mr Tregurtha informed Ms James that the outcome of the meeting was the completion of a workplace assessment at Emu Plains so that she could return to the Substantive Position based on ‘recommendations from your treating psychiatrist, the independent psychiatrist and SafeWork NSW.’

18. On 11 December 2019, Ms James’ Substantial Position was advertised.

19. On 12 December 2019, DCJ sent Ms James the Letter setting out a new Return to Work Plan which included numerous new conditions not included in Return to Work Plan 1 or Return to Work Plan 2. At this time Ms James was working pursuant to the Return to Work Plan 2 dated 5 December 2019.

20. On 11 March 2020, Ms James was certified fit for the Substantive Position on a full time basis with a review on 11 May 2020.

21. Because of the disputed matters between DCJ and Ms James, substantially set out in the Letter, Ms James has not been returned to the Substantive Position. At the time this Tribunal hearing took place, Ms James was working from home performing administrative work. The administrative work was below her level of skill and expertise, however DCJ continued to pay her at the Grade 7/8 level of the Substantive Position.

Past Complaints

22. In the First Complaint, Ms James claimed, and the Tribunal found, that one of the real reasons that Ms James was not returned to the Windsor complex was because of DCJ’s disapproval of her bringing a complaint against Mr Calver. This conduct amounted to victimisation pursuant to s50(1)(c) of the Act and she was awarded the sum of $20 000 as compensation for the harm caused to her. James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 (2017 Decision).

23. In the 2017 Decision, at paragraph [3] DCJ explained that the reason why Ms James was prevented from returning to her Substantive Position was because she had a medical restriction to not have any contact with Mr Calver which could not be guaranteed. Therefore, DCJ found an alternative suitable position for Ms James at Silverwater. DCJ determined that Ms James would not return to the Windsor complex until such time as the matter had been finally determined ‘for her own safety and to protect the integrity of the investigation process’ [3].

24. The substance of the Second Complaint was that regarding the complaint period of 23 January 2017 to 16 August 2018:

1. Dr Martin made a misleading statement in the first NCAT proceedings.

2. There was a refusal by DCJ of Ms James’ request for review of the findings made by an external investigator regarding complaints she had made in September 2017.

3. DCJ failed to grant Ms James’ request to Act up as a Manager Offender Support Programs (MOSP) and failed to provide her with promotional opportunities and place her on a transitional plan.

4. DCJ attempted to discipline Ms James for leaving work early.

5. DCJ failed to provide Ms James with appropriate support after she reported a work health and safety incident in March 2017.

6. DCJ requested that Ms James attend a meeting with Dr Martin and others in August 2017 to develop a return to work plan.

7. DCJ requested a meeting with Ms James to discuss complaints made against her by other staff.

25. In James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 the Tribunal found the complaint not substantiated. The decision was upheld on appeal in James v Department of Justice (Corrective Services NSW) [2022] NSWCATAP 49.

The Complaint

Complaint to ADB/Points of Claim

26. On 6 July 2020, Ms James lodged a disability discrimination and victimisation complaint against DCJ. Ms James alleged that DCJ has victimised her by subjecting her to detrimental workplace conditions because she previously lodged complaints of disability discrimination and victimisation with the then Anti-Discrimination Board which were the subject of proceedings in the NSW Civil and Administrative Tribunal (Tribunal or NCAT).

27. On 16 November 2021, the President of the Anti-Discrimination Board referred to the Tribunal a complaint by Ms James. The Complaint Period was initially from October 2019 until 6 July 2020. The Complaint Period was extended by the Tribunal to continue until 18 January 2021 on 11 March 2021.

28. At the commencement of the proceedings, Ms James submitted that the complaints the Tribunal is to consider are set out in paragraph 12 of the Points of Claim dated 14 June 2021. Paragraph 12 of the Points of Claim as summarised below, alleges that Ms James has been victimised in the following ways:

1. Precluded from returning to her substantial position despite medical clearance.

2. Initially returned to a role substantially below her pay level.

3. Assigned administrative work with reduced responsibilities.

4. The above caused embarrassment and humiliation.

5. Ms James’ career path was adversely affected damaged as she has been unable to ‘stay current’.

6. Ms James has effectively been denied any real opportunity to Act up in higher roles or apply for such roles. This occurred because she was prevented from returning to her substantial role.

7. Ms James was compelled to undergo mediation when initially it had been denied to her. Mediation was only required once she was fit for pre-injury duties.

8. Forced to jump through hoops to return to pre-injury duties.

9. Other issues referred in her statement. Ms James also refers to some other issues in her statement.

29. While the Points of Claim refers to nine points, some of the points deal with the consequences of the victimisation including feeling embarrassment and humiliation, and not being able to apply to roles at level or promotional opportunities as a result of having to perform work below her level of skill and experience.

30. Ms James’ broad submission was that DCJ’s conduct as to her return to work process was contrary to the organisation’s policies and procedures, and contrary to the expert medical opinions of Dr Naaz, Dr Abaya and of her GP, Dr Pham. Ms James alleges that DCJ did not provide her with assistance to return to the workplace or duties that she could perform from home during the Covid pandemic in 2020. Ms James’ view is that the only reason why DCJ provided her with duties in October 2019 was because of the intervention of SafeWork.

31. Ms James’ complaint is that DCJ put up barriers, hindered, and did not comply with its policies and the relevant laws in returning her to work at DCJ and not returning her to the Substantive Role because she has previously made complaints about management of DCJ; relevantly to this case, she had made complaints about the conduct of Ms Moore and Dr Martin. Ms James alleges that because she made the complaints in NCAT, DCJ have formed the view that they do not want her back in the workplace as she will continue to make complaints against the management of DCJ and has been labelled as a ‘complainer’ (Ms James’ closing submissions).

32. The Tribunal considers the substance of Ms James’ allegations that she has been victimised by DCJ to be:

1. Allegation 1: Failure to assist Ms James to return to work in October 2019 following a period of workers compensation leave.

2. Allegation 2: Requirement for Ms James to comply with conditions determined by DCJ in a letter on 12 December 2019 (the Letter).

33. As to Allegation 1, Ms James alleges that DCJ failed to comply with the Return to Work Policy (RTW Policy) in that it did not assist her to find work consistent with her capabilities. Ms James submits that this allegation is substantiated by the fact that work was only found for her once SafeWork became involved on 10 October 2019. Ms James also relies on evidence of DCJ’s lack of assistance prior to the Complaint Period to infer that DCJ did not want her to return to work.

34. As to Allegation 2, Ms James alleges that neither Dr Naaz or Dr Abeya made recommendations that she undertake mediation with Ms Moore or Dr Martin prior to returning to the Substantial Role. Ms James submits that Dr Naaz and Dr Abeya made recommendations disregarded by DCJ including that Ms Moore should not be involved in Ms James’ return to work process and that she should be provided with a mentor.

35. Ms James submits that DCJ deliberately ignored and misconstrued the medical evidence. This included a pattern of picking and choosing what aspects of the medical opinion it would use based on the plans of the decision makers (including Ms Hellams, Ms Moore and Dr Martin) and not on the Actual recommendations made by Dr Naaz or Dr Abeya holistically. Ms James submits that DCJ’s aim was to delay, to wear her down so that she would not return to work.

36. Ms James alleges that the requirement to agree to insert negative observations into her performance plan and the fitness for duty referrals to the GMO form part of the victimising conduct.

37. An issue not referred to in paragraph 12 of the Points of Claim, but which occupied sometime during the hearing was a reasonable adjustments request made by Ms James on 16 October 2017 for a transfer to Dillwynia Correctional Centre. DCJ deny that the reasonable adjustment was required. As noted by DCJ, the request for reasonable adjustments made in 2017 is outside of the Complaint Period.

38. There is in evidence a letter from Dr Naaz to Dr Martin dated 14 May 2020 seeking that Ms James be transferred to a workplace closer to home and Ms James seeking to have the 2017 reasonable adjustment request dealt with in early 2020. Dr Naaz’s letter makes no reference to it being an opinion in support of a reasonable adjustment request and Ms James’ evidence was that during the Complaint Period she sought to move on the reasonable adjustment request from 2017. DCJ says that the 2017 reasonable adjustment request is no longer relevant as Ms James’ Substantial Position has changed since that time. The Tribunal does not deal with this issue as the allegation is about a period of time outside the Complaint Period and was not included in the Points of Claim.

DCJ’s Case

39. DCJ claims that it made substantial efforts to provide Ms James with suitable duties and to return her to the Substantive Position.

39. As to Allegation 1, DCJ’s evidence is that it at all times complied with the RTW Policy and made attempts to find work for Ms James and that SafeWork’s involvement was not the catalyst for work being found for Ms James on 11 October 2019.

40. Ms Hellams’ evidence was that she determined, based on advice from Dr Naaz, that Ms James should be placed at Windsor Community Corrections Office and Parklea Parole Unit from 28 October 2019 to perform work of an administrative nature instead of returning Ms James to pre-injury duties.

41. As to Allegation 2, DCJ’s evidence is that on 2 July 2019 Dr Naaz recommended that Ms James undertake mediation with Ms Moore and Dr Martin prior to returning to the Substantial Position. DCJ submits in paragraph [6] of its Reply to the Points of Claim that Ms James was required to attend mediation ‘to restore effective working relationships with individuals to whom she would be required to report’. DCJ submits that Ms James has not returned to the Substantive Position because she refused to participate in mediation with Ms Moore and Dr Martin.

42. DCJ’s evidence is that the requirement to include behavioural observations in Ms James’ performance review plan was reasonable and appropriate.

43. DCJ denies that the referral to the GMO for a fitness for duty, the request for a supplementary report, and the further proposed supplementary report to be sought following the mediation was contrary to the Fitness for Duty Policy and submits that it was a lawful and reasonable direction and made pursuant to clause 15 of the Government Sector Employment Regulation 2014.

44. DCJ submits that the steps it took in requiring Ms James to undergo mediation with the persons against whom she complained of bullying were necessary in accordance with its obligations under s19 of the Work Health and Safety Act 2011 (NSW) (WHSA) and as such is a complete defence pursuant to s54 of the Act.

45. DCJ relies on the evidence of Ms Anne Hellams (Director HR), Mr David Langbein (Acting Manager) and Mr Mark Tregurtha (HR Advisor). The three witnesses were in the same team. Mr Tregurtha reported to Mr Langbein who in turn reported to Ms Hellams.

46. Ms Moore was the manager who provided instructions to Ms Hellams and her team in regard to Ms James’ return to work. DCJ’s evidence was that this was appropriate as Ms Moore was in Ms James’ line of management.

47. DCJ denies that it Acted because Ms James made complaints to NCAT and submits, in any case, that there is no detriment arising from DCJ’s conduct. It seeks orders that the proceedings be dismissed, and costs reserved.

48. DCJ accepts the responsibility for the conduct of its employees and for any finding of liability in these proceedings within the meaning of s53 of the Act.

Documents before the Tribunal

50. Before the Tribunal, there was a large number of documents which have all been considered. Both Ms James and DCJ placed reliance on the following medical reports and documents;

1. Opinion by Dr Naaz (treating psychiatrist) to DCJ, 9 October 2017;

2. Opinion by Dr Naaz, 18 October 2018;

3. Opinion by Dr Naaz to Dr Pham (Ms James’ General Practitioner), 2 July 2019;

4. Opinion by Dr Abeya (GMO) to DCJ, 18 October 2019;

5. Opinion by Dr Naaz to DCJ, 2 March 2020;

6. Opinion by Dr Naaz to DCJ, 8 April 2020;

7. Supplementary Opinion Dr Abeya to DCJ, 23 June 2020;

8. WorkCover Certificates of Capacity;

9. SafeWork’s Inspection report dated 10 October 2019, created by Inspector Kilpatrick;

10. Email from Mr Tregurtha to Ms James about commencing work at Parklea on 11 October 2019;

11. Return to Work Plans: Return to Work Plan 1 (22 October 2019) goal to return to Substantive Position by 30 December 2019, Return to Work Plan 2 (5 December 2019) goal to return to Substantive Position by 30 December 2019, Return to Work Plan 3 (20 January 2020) goal to return to Substantive Position by 27 January 2020;

12. Letter from Mr Langbein to Ms James, 12 December 2019;

13. Letter from Ms James to Mr Langbein, 19 January 2020;

14. Letter from Mr Langbein to Ms James, 21 January 2020;

15. Notes of case conference meetings attended by Mr Tregurtha (DCJ), Ms James, Dr Naaz, the insurer and rehabilitation provider on 2 April, 21 May and 18 June 2019;

16. Email from Mr Trergurtha to Ms James about returning to Emu Plains on 29 November 2019.

Victimisation – Legal Principles

51. Section 50(1)(a) and (2) of the Act states:

(1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has--

(a) brought proceedings against the discriminator or any other person under this Act,

…

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

52. The onus of proving victimisation pursuant to s50(1)(a) of the Act lies on the applicant, on the balance of probabilities, to establish that the respondent (the Secretary, or his agent or employee) subjected or caused her to undergo or experience something that was a detriment on the ground that she had done any of the things in s50(1)(a) of the Act. James v Secretary, NSW Department of Justice and Corrective Services NSW) [2020] NSWCATAD 17 [27].

53. The first question to be considered is whether an applicant did perform an act meeting the description in s50(1)(a) to (d) of the Act. If so, the next question is whether the employer (through its employees) subjected the applicant to detriment.

54. The term ‘detriment’ is not defined in s50 of the Act and has been interpreted broadly to mean ‘loss, damage or injury’ on an objective basis, not limited to physical harm and includes psychological harm. Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146 per McKechnie J at [167].

55. The next question is whether at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to detriment is ‘on the ground’ or ‘because’ of an act by a person meeting the description in s50(1)(a) to (d) of the Act. Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP at [36]; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) per Gleeson CJ at 102, McHugh and Kirby JJ at 144.

56. In discrimination proceedings the applicant is not required to prove that the respondent had a motive or an intent to victimise the applicant. Australian Iron & Steele Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 176 (Banovic) [10]-[11]; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 and 382 (Waters). The words ‘on the ground’ require the Tribunal to make factual findings as to the ‘real reason’ for the alleged discriminators’ Act. In Purvis, the majority of Gummow, Hayne and Heydon JJ (with whom Gleeson CJ and Callinan J agreed) stated at [236]:

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".

57. The standard of proof in this matter is ‘reasonable satisfaction’. The words ‘reasonable satisfaction’ conveys the same concept as ‘on the balance of probabilities’ Forbes JRS Justice in Tribunals 4th ed at [12.21]. Section 140 of the Evidence Act 1995 (NSW) (Evidence Act) applies to civil proceedings in courts. Without limiting the matters, s140 permits a court to take into account the nature of the cause of Action or defence, the nature of the subject/matter of the proceeding and the gravity of the matters alleged in determining whether it is satisfied that a party proved its case on the balance of probabilities.

58. While the Tribunal is to Act with ‘as little formality as the circumstances of the case permit’, pursuant to s38(4) and (5) of the Civil and Administrative Tribunal Act 2013 (NSW) and is not bound by the Evidence Act, the principles of s140 of the Evidence Act are relevant to the Tribunal’s approach to fact finding. See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 per Evatt J at 256; Pochi v Minister for Immigration & Ethnic Affairs [1979] AATA 64;(1979) 36 FLR 482 at 49; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 (2010) 241 CLR 390 per French CJ at [17].

59. Branson J observed in Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCA 537 (Gama) that a court is not limited by s140(2) and may take into account any other matter relevant to determining whether a case has been proven to a requisite standard, including such matters as the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged and the ‘long standing common law rule’ that evidence is to be weighted according to the proof which was in the power of one party to produce and the power of the other party to contradict [138]. Despite the onus resting on the applicant to prove victimisation, the respondent carries the responsibility to put before the tribunal or court any evidence which they consider will assist them to avoid liability. This does not shift the onus in any way but simply reflects the practical way in which court and tribunal matters are conducted.

60. It is sometimes submitted that the Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ‘test’ or ‘standard’ is applicable in discrimination proceedings. However as explained by Branson J in Gama at [123], such language ‘should be avoided because of its tendency to mislead.’ See also Tsikos v Austin Health [2022] VSC 174 [104].

Evidence regarding each of the Allegations

Allegation 1: Failure to assist Ms James to return to work in October 2019 following a period of workers compensation leave.

61. It is not in dispute that on 10 October 2019, at Ms James’ request, SafeWork contacted DCJ regarding her returning to the Substantive Position and met with Mr Tregurtha. On 11 October 2019, Ms James was notified by Mr Tregurtha that she would commence working at the Windsor Community Correctional Centre from 22 October 2019 pursuant to Return to Work Plan 1. The aim of the Return to Work Plan 1 was to return to her Substantive Position by the end of 2019.

62. On or around 22 October 2019, Ms James commenced a role at Windsor Community Correctional Centre paid at the same level as her Substantive Position. Ms James alleged and DCJ did not deny that the duties Ms James was performing were below her level of skill and experience.

63. A copy of SafeWork’s Inspection report dated 10 October 2019 states:

Mr Tregurtha and Ms Oliver advised suitable administrative duties may be available at a site in Parklea. Mr Tregurtha advised he would make contAct with the Manager of this site to review the availability of suitable duties. I advised a Workplace Assessment/task analysis could be valuable to determine the nature of the work, this could then be provided to treating parties in the form of a Return To Work Plan for their review. I requested that Mr Tregurtha have a draft Return To Work Plan sent to me by 18 October 2019 following his discussion with the appropriate site manager and the approved Rehabilitation Provider.

64. The Inspection Report requires the development of a workplace assessment/task analysis and a development of a draft Return to Work Plan to be discussed with the site Manager and the Rehabilitation Provider. Mr Tregurtha was advised to prepare a draft Return to Work Plan by 18 October 2019.

65. The Inspection Report records that Mr Tregurtha considered that there may be suitable duties at Parklea and that he would make contact with the Manager to review the suitable duties.

66. The email from Mr Tregurtha to Ms James on 11 October 2019 gives details of contact names at Parklea. Ms Logo, the rehabilitation provider and Ms Rezawan is asked to complete a workplace assessment of the identified suitable duties and to draft the Return to Work plan.

67. Mr Tregurtha’s evidence was that attempts were made to find suitable work for Ms James prior to 10 October 2019 but that it was difficult to find suitable duties for Ms James as at her level she had ‘technical skills that are not easily transferable’.

68. Mr Tregurtha gave no specific evidence of attempts to find work for Ms James or to any attempts made to facilitate Ms James’ return to work generally.

69. Ms Hellams’ evidence is that DCJ commenced to ‘identify possible suitable duties opportunities’ instead of returning Ms James to the Substantial Position from 12 September 2019. Tcpt. 29.10.21 p153

70. At paragraph [44] of Ms Hellam’s affidavit, she says that it was difficult to find suitable duties ‘that were in accordance with her medical capacity’ which was that the ‘applicant should not work with the workmates and environment involved in her harassment case’, reference is made to CH-20 which is the opinion from Dr Naaz to Mr Baldi in 9 October 2017 in regard to a request for the ‘reasonable adjustment’ to work closer to home. Ms Hellams continues that the medical evidence of Ms James capacity was also based on CH-45 which is an opinion from Dr Naaz to Dr Martin on 14 May 2020.

71. Ms Hellams’ evidence was that she understood that the medical evidence was that Ms James could not work in Metro West Region, which incorporated EMCC, the location of her Substantial Position or in the Metro East Region as Jacob Jackson was responsible for that region.

72. Ms Hellams’ evidence during cross examination was that she was Acting based on Dr Naaz’s advice from 2017 that Ms James should not ‘work in work environment where your alleged perpetrators of the bullying’. Tcpt.29.10.21 p156.

73. It was put to Ms Hellams during cross examination that suitable duties were eventually found for Ms James because SafeWork became involved. Ms Hellams’ evidence was that SafeWork’s involvement was not the catalyst, rather the principal catalyst was the identification of alternative duties at Windsor Community Corrections Office. Tcpt.1.11.21 p185.

DCJ’s Return to Work Policy

74. The Scope and Purpose section of the RTW Policy explains that:

In keeping with best practise injury management, the department will focus on early intervention, Active case management and outcomes based rehabilitation to enable optimal return to work.

75. Managers are, amongst other things, are required to ‘promote an early, safe, enjoyable return to meaningful and productive work for your employees’. Employees are, amongst other things, are required to ‘Actively participate in the development and implementation of your return to work plan and adhere to the conditions of that plan including compliance with medical restrictions both during working hours an outside working hours’.

76. Human Resource Advisors addressing workplace health and safety are, amongst other things, are required to:

1. prepare a return to work plan in consultation with the employee, their nominating treating doctor, manager and insurer;

2. coordinate the services of an accredited rehabilitation provider;

3. facilitate the injured employees timely return to work by assisting managers in identifying suitable duties;

4. proactively manage all return to work plans and workers compensation claims.

Allegation 2: Requirement for Ms James to comply with conditions determined by DCJ in its letter dated 12 December 2019 (the Letter).

77. The Letter reads:

Return to Work Plan

We refer to the Government Medical Officer (GMO) fitness for duty assessment conducted on 18 October 2019 by Dr Abeya, Consultant Psychiatrist, and the GMO report provided to DCJ on 5 November 2019 (GMO Report).

Purpose of this letter

1.   The purpose of this letter is to outline proposed next steps in relation to implementation of the recommendations in the GMO report to facilitate your safe and substantive return to your substantial position with DCJ, and in a manner that does not cause a recurrence or exacerbation of your psychological injury.

Your workers compensation claim

2.   On 26 October 2017, you reported an injury and nominated the date of injury as 2 October 2017. The description of your injury is recorded on our 48 H incident/injury report form in the following terms

i.   Victimisation: previous complaint in NCAT in August this was approved. Since then further victimisation/missed development opportunities, no feedback when requested, targeting emails, bullying behaviour and senior management failure to address issues when advised. Those involved are Cindy Moore, Anne-Marie Martin and Jacob Jacobson and others as necessary. At the moment complaint is being externally investigated with Michael Baldi.

3.   The external investigation was a reference to the investigation undertaken by John Counter, O'Connor Marsden and Associates Pty Ltd. The investigation was undertaken in response to your grievance lodged on 11 September 2017 addressed to commissioner Peter Severin in which you alleged bullying and harassment/discrimination against senior management of CSSW including:

i.    continuing victimisation an exclusion from development opportunities due to raising a victimisation with NCAT. This issue was one. No follow up regarding what Action has been taken against those that were implicated in the matter. Further victimisation in regards to requests and queries be ignored via email and also accused of breaking policies which is inaccurate and went further information is requested, it is then not forthcoming.

4.   You lodged a workers compensation claim and were diagnosed with Chronic Adjustment Disorder and Depressed Mood and Anxiety by your treating psychiatrist, Dr Naaz.

5.   During the period 24 October 2017 to 11 September 2019 you were certified no capacity for work or had restrictions which provided you were unfit to work at DCJ.

6.   Effective 12 September 2019, you were certified fit to return to your pre injury duties for five hours, three days per week.

7.   Giving your continued absence from your role as a Senior SAPO of more than two years, and prior advice from you're treating psychiatrists that “any reminder of Corrective Services is an Active trigger for Rita’s anxiety and hence should be avoided”, you were required to undertake a GMO to assess your fitness to return to your Substantive Position.

Substantive Position

8.   Your Substantive Position is Senior SAPO, clerk grade 7/8 at EPCC.

9.   You were Acting in this role on the date of injury. This became your Substantive Position affective February 2018, following the IDATP restructure process.

10.   Since the date of injury

a.    Jacob Jacobson has ceased to work at EPCC and now holds the role of regional support manager metro E. Upon your return to EPCC you will report directly to the Acting MOSP Sydney West 2

b.   Cindy Moore has been permanently appointed to the role of Regional Support Manager - MetroWest - Offender Services Programs. This means that Ms Moore will continue to be your overarching line manager.

c.   Anne-Marie Martin continues to hold the role of Assistant Commissioner Offender Management and policy and has overall responsibility for the functions conducted by all offender services and programme staff

11.   In returning to your Substantive Position provision from, and all contact with Cindy and Anne-Marie will be unavoidable.

GMO report

12.   The GMO report certifies you fit to return to your Substantive Position at EPCC, subject to certain conditions/ recommendations.

13.   The GMO report recommends a return to work planning meeting, and further that it would be helpful to incorporate your treating psychiatrists’ views into your return to work plan.

14.   Although not a medical condition, the GMO report also notes it may be worthwhile giving due consideration to Dr Naaz’s request not to have miss more involved in return to work planning.

15.   The GMO report also recommends a graduated return to work, allow some time for orientation with any new process is an procedures adopted at work whilst you have been away, and consider having a regular go to person in management you can liaise with if there are any issues upon your return.

Developing a return to work plan

16.   we set out below our proposal for your return to work plan.

17.   In our view and consistent with the discussions at the return to work case conferences the following issues need to be implemented as part of the return to work plan:

Mediation

18.   You have made allegations of bullying and harassment and victimisation by senior management and have continued to express distrust, or at the very least apprehension, in connection with senior management.

19.   We understand this to be a reference to Cindy Moore Anne-Marie Martin and Jacob Jacobson. However, please let us know if there are additional senior management to which you refer.

20.   Your allegations have been investigated by the Independent Investigator and found not substantiated. We appreciate that you do not agree with the findings of the independent investigator, that you sought a review of the findings (which was declined), and that have alleged in your NCAT proceedings that the findings, and the failure to review the findings, amount to victimisation.

21.   You are entitled to prosecute your NCAT proceedings. However so far as concerns to your return to work plan, DCJ considers that your grievances now concluded and that the allegations against the identified members of the senior management and not substantiated.

22.   For the purposes of your return to work plan (noting in particular paragraph 11 above) restoring the relationship of trust and confidence on both sides is integral to ensuring your safe and sustainable return to the workplace. Effective working relationships require goodwill and commitment on both sides.

23.   Consistent with the recommendation from Dr Naaz, and in the interests of restoring functional working relationships going forward, as a first step in your return to work plan, we propose a mediation be conducted.

24.   We consider that mediation would be most effective if conducted along the following lines;

a.   the initial participants in the mediation would be you Cindy, Anne-Marie Anne the Acting MOSP

b.   you're welcome to bring a support person

c.   The mediation be conducted by an external provider

d.   the purpose of the mediation is to seek to repair relationships and trust on both sides, be forward focused and map out strategies for working effectively and respectfully together

e.   the purpose of the mediation is not to revisit the grievance or raise new grievances

f.   the mediator be required to provide an open report to all parties addressing

i.   an assessment of where the effective working relationships can be restored and a safe workplace provided for all participants

ii.   measures that can be put in place to achieve effective workplace relationships and a safe workplace for all participants

25.   The mediation report can then be provided to Dr Naaz and Dr Abeya for medical opinion on the proposed measures and whether your return to work will be ‘safe’ including not a cause a reoccurrence, or exacerbation, of your psychological injury.

Closing out unprofessional conduct allegation

26.   As you know, on 3 October 2017 Cindy sends you an email inviting you to attend a meeting on 6th of October 2017 to discuss a complaint she had received in relation to alleged unprofessional behaviour displayed by you toward other staff after a meeting at EPCC on 21 September 2017. The email noted that Ms Moore would like the opportunity to discuss the matter with you.

27.   On 6 October 2017 following some correspondence between you and Ms Moore, you send an email to Ms Moore in which you stated ‘I believe the complaint to be vexatious and frivolous and another attempt to victimise me by senior management of DCJ’ you also stated that you were not at work so could not attend the scheduling meeting.

28.   You have not returned to your substantive role since that time. Accordingly, the allegation has never been addressed or closed out. This needs to occur as part of your return to work plan.

29.   Cindy has previously requested the opportunity to discuss the allegations with you. Given you have expressed your unwillingness to engage in this process, the decision has been made to set out the concerns in a letter to you and provide you with the opportunity to respond in writing.

30.   It is proposed that this process will take place after the mediation.

Implementation of myPerformance plan

31.   As you know a myPerformance plan is a requirement for all DCJ employees. A myPerformance plan will also be implemented for you on your return to the workplace and will be developed by the Acting MOSP Sydney West 2.

32.   Consistent with a letter from Michael Baldi to you dated 12 of February 2018, you're myPerformance plan will include behavioural expectations based on observations made by the independent investigator in the course of the investigation regarding conduct, behaviour, workplace and interpersonal relationships. As noted in that letter

a.   I have asked the human resources team within corrective services NSW to work with the Offender Management programmes unit to facilitate return to work arrangements. Given the conduct and behaviour behavioural issues observed and identified during the course of the investigation, my performance plan will be developed to support your return to work.

b.   The plan will set out the work requirements and workplace behaviours expected of a senior sipo as set out in the role description, as well as how your progress against the plan is to be monitored. Strategic human resources would like to engage with your treating clinicians so that he/she has a clear understanding of the work environment and can advise on appropriate support and strategies to help you return to work and to meet brawl expectations.

33.   We repeat our comments at paragraph 20 above. Also to be clear, CS NSW is not proposing to impose any disciplinary Action against you as a conference of the observations McQuaid by the independent investigator.

34.   Even if you disagree with the observations, we are satisfied that the observations give rise to behavioural requirements expected of all staff. Given you can test the observations, compliance with the behaviour requirements should not present any difficulty for you, while simultaneously making sure that there is a clarity of expectations for both parties going forward.

35.   Again, to avoid any apprehension of bias, your myPerformance plan will be monitored and reviewed by the Acting MOSP as per the myPerformance cycle.

36.   It is proposed that this process will be undertaken prior to your return to the workplace.

Graduated return to work

37.   We recommend that Dr Naaz and or Dr Abeya be consulted about your graduated return to work following receipt of the mediation report.

Period of time for reorientation

38.   This can be built into the graduated return to work plan.

Go to person in management

39.   The Acting MOSP Sidney West 2 will be your go to person if you have any issues about your return to work

Current status and next steps

41.   Since 28 October 2019, you have been performing suitable duties at Windsor Community Correctional Centre and Parklea Correctional Centre, three days per week six hours per day.

42.   As you know, Tahmina Rezawan from Acumen Health is monitoring your suitable duties. She has reported that you're enjoying the work and have received positive feedback from supervisor Bernadette Logo.

43.   We appreciate that the delay in returning to your Substantive Position maybe feel frustrating. However, for the reasons set out above we are sure you will appreciate that to ensure your safe and sustainable return to work, and consistent with the GMO report, a return to work plan needs to be put in place to facilitate your return.

44.   We now seek your feedback on the proposed return to work plan. We would be grateful to receive your response at your earliest convenience, but no later than 14 days from the date of this letter.

45.   As noted above, in our view, mediation is the next step. Please confirm this a suitable so we can start making suitable arrangements as soon as possible.

78. The mediation process set out in paragraphs 24 and 25 of the Letter includes the following steps:

1. A requirement for Ms James to attend mediation with Ms Moore and Dr Martin.

2. A report be prepared by the mediator assessing whether effective working relationships can be restored, and a safe workplace provided for all participants, including advising on appropriate measures.

3. A mediation report can be provided to Dr Naaz and Dr Abeya for a medical opinion ‘on the proposed measures’ and whether the return to work will be ‘safe’.

79. It follows from the three steps above that DCJ would, as a next step, receive and consider the medical opinions from Dr Naaz and Dr Abeya before determining any future steps.

80. Apart from the mediation process, DCJ also required Ms James to agree to meet with Ms Moore following mediation in regard to alleged unprofessional conduct that occurred in October 2017 (paragraphs 26 to 30 of the Letter) and to the inclusion of adverse comments made by persons (recorded in Mr Baldi’s letter of 2 February 2018) about Ms James in the performance review plan, called myPerformanceplan (paragraphs 31 to 36 of the Letter).

81. DCJ proposed that the ’go to person’ recommended by Dr Abeya was to be Ms James’ line manager (paragraph 39 of the Letter).

82. The Letter was not sent to the insurer, to Ms James’ treating doctors or to the rehabilitation provider. Prior to the Letter, Mr Langbein, the author of the Letter had no direct dealings with Ms James.

83. On 13 December 2019, Ms James provided DCJ with a detailed response to the Letter. She was sufficiently concerned about the proposal overall as to seek an Interim Order in the Tribunal to be returned to the Substantive Position in compliance with the medical recommendations: James v Department of Justice (Corrective Services NSW) NSWCATAD 17.

84. Ms James’ response of 13 December 2019 highlighted the following points:

1. She did not consider that she would have any direct contAct with Ms Moore and Dr Martin but even if she did so, she was not concerned;

2. Dr Naaz’s opinion, supported by Dr Abeya’s advice, that Ms Moore is not to be involved in her Return to Work Plan;

3. The RTW Policy states that the Return to Work Plan is developed in consultation with the employee, the treating doctor, manager and insurer. Ms Moore is not her manager. Her manager, the insurer, her treating doctor and herself were not consulted about the Return to Work Plan;

4. She was already working at DCJ on a different Return to Work Plan since 28 October 2019, which was developed in consultation with the relevant persons. She has made significant progress and would be back to full time hours in less than 4 weeks;

5. Including comments from the Investigation report set out in the letter from Mr Baldi would cause further victimisation, it was not an investigation into her behaviour or performance;

6. Mediation can occur at any time between Ms James and Ms Moore and Dr Martin and there is no requirement for it to be a prerequisite to returning to the Substantive Position;

7. Ms Moore’s communications with Ms James about the alleged unprofessional conduct did not use the word ‘alleged’ and as such demonstrates a prejudgement of the allegation. The way Ms Moore characterised the conduct did not accord with the terms of the complaint. Ms Moore should not be involved in investigating the complaint;

8. Dr Abeya recommended that ‘it would be useful for Ms James to have one person in management she can report to in the initial stages of her return to work with whom she can have open communication and feel able to discuss issues with.’ Dr Naaz recommended a mentor/external mediator.

9. DCJ are ignoring the medical opinions provided by Dr Abeya, and by Dr Naaz, about Ms James returning to her Substantive Duties. The current Return to Work Plan did not raise DCJ’s concerns for her safety set out in the Letter;

10. Mr Tregurtha as at 5 December 2019 had requested a workplace assessment at EPCC to ensure that Ms James can return to the Substantial Position based on the recommendations from her treating psychiatrist, the independent psychiatrist and SafeWork NSW.

85. On 21 January 2020, Mr Langbein sent a reply letter to Ms James, repeating and requiring her compliance with the matters in the Letter, apart from the requirement that ‘closing out unprofessional conduct allegations’ would occur with her manager and not with Ms Moore.

86. Regarding Ms James’ view that she would not be reporting to or being managed by Ms Moore and or Dr Martin, Mr Langbein noted:

We understand this is not the case, and that continued contact with them, while intermittent, is unavoidable given that they are both in your chain of reporting.

Medical opinion and recommendations

87. The opinion from Dr Naaz dated 9 October 2017 is referred to in paragraph 7 of the Letter. It is an opinion in support of Ms James’ request to transfer from ECCC to Dillwynia Correctional Centre. It reads:

I have been managing Rita since 2016 for a mental health condition. Rita reported increased anticipatory anxiety in the context of a meeting at her work headquarters with staff that were involved in her workplace bullying. She reported anxiety and fear at the thought of going back to work with the perpetrators of her bullying. It is my recommendation that Rita doesn't work with the workmates and environment involved in the harassment case. Instead it would be preferable if she were transferred close to home. I recommend reasonable adjustments at work due to her mental health condition.

88. Dr Naaz provided an opinion dated 18 October 2018, including the following:

…any reminder of Corrective Services is an Active trigger for Rita's anxiety and hence should be avoided. So the last thing that should happen as part of return to work, is to look for a job with Corrective Services.

89. Dr Naaz’s opinion on 9 October 2017 and 18 October 2018 was provided during a period when Ms James had no capacity for work at DCJ.

90. The relevant parts from Dr Naaz’s opinion and recommendations to Dr Pham on 2 July 2019 include:

Rita has a diagnosis of Adjustments Disorder with Depressed Mood in the context of work related bullying and harassment. Rita’s battle against Corrective Services has maintained his anxiety levels particularly when RTW is on hold. I have had case conferences on the 12 March 2019 and 2 April 2019 with Rita and her rehabilitation consultant. Unfortunately representation from Corrective Services was not present until later on. I've had two case conferences as part of the return to work program with Rita. The injury management officer Mr Tregurtha and her rehabilitation consultant on 21 May 2019 and 18 June 2019. The main issue raised at the conferences by Rita is her concern of providing her with a safe workplace upon return to work. Mark, the injury management coordinator was to get back after discussing with higher management about how that would be put in place. Mark came back with concerns raised by management. He reported allegations from earlier on about breaches of workplace conduct with interpersonal conflict with other staff members which Rita clearly refutes. According to Mark, Cindy the regional manager, was insisting on a performance improvement plan upon the return to work. There was discussion around issues of conflict of interest, marginalisation and alienation towards Rita after pursuing her formal complaint from 2012. My recommendations to move forward to reach his gradual and successful return to work would be:

1.   Strongly recommend an external mediating party/mentor who could assist Rita in her workplace as she gets (sic) returns back to work.

2.   I strongly believe that the regional manager Cindy should remove herself from Rita's return to work plan due to conflict of interest as Rita perceived Cindy to be biased. Clearly Rita’s primary complaint against Corrective Services involved higher management including Cindy. At this time having Cindy to be part of Rita's ongoing return to work is unprofessional and improper.

3.   Going back to 2015, Rita put her hand up and came out with sexual harassment allegations at the workplace within the Corrective Services. This was soon followed by marginalisation and victimisation by most staff members including Cindy the Regional Manager. Therefore, it is inappropriate for Cindy to be part of Rita’s return to work plan.

91. The most relevant parts of Dr Abeya’s report dated 18 October 2019 are:

From a diagnostic perspective her presentation is comparable with an adjustment disorder with mixed depressive and anxiety symptoms given the occurrence of these symptoms in the background of the significant stressor. To her credit she appears to have achieved remission with good support from her treating practitioners. It has to be noted that she remains vulnerable to future relapses if faced with significant difficult situations or an adverse work environment. It is therefore important that she feels comfortable in her work situation.

Therefore from a work perspective I find Ms James now fit to commence her return to work. I note that much has been said about return to work planning and indeed this is likely to be complex given the sensitivities involved. I believe the factors that would need to be considered are; Ms James’ well being and vulnerability to relapse as well as her work environment and the safety of all involved. It would be helpful to incorporate her treating psychiatrists’ views into her return to work plan as this would assist Ms James and certainly provide her further confidence of ongoing support from her employers given that her trust may have been shaken with the recent issues. Whilst I do not consider this to be a medical necessity I do therefore feel it may be worthwhile giving due consideration to Dr Naaz’s request to not have Ms Moore involved in return to work planning as a result of this. I make the following recommendations in relation to her return to work:

1.   Commenced with a graduated return to work plan. (Suggestion to commence on five hours three days a week in her preinjury position for two weeks and consider increasing to full time hours depending on the progress)

…

I do not believe that she would require specific restrictions on duties given her current stable mental state. It would be helpful to have a good discussion around the plan and have her treating psychiatrist agree to this prior to commencing.

I note there could be some uncertainty in how Ms James manages depending on the outcome of her current NCAT complaint. This may be a time when her matter needs to be viewed with even more sensitivity and support. It would be helpful for Ms James to have one person in management she can report to in the initial stages of her return to work with whom she can have open communication and feel able to discuss issues with. This would assist with resolving any problems at an early stage without further escalating.

92. Dr Abeya was of the opinion that Ms Moore should not be involved in Ms James’ return to work planning. The recommendations made by Dr Abeya were:

1. To have a discussion with Dr Naaz about any return to work plan and get her agreement to the plan;

2. Provide Ms James with one person in management who she could have open communications with and feel able to discuss issues to assist in resolving any problems at an early stage without escalation.

DCJ’s evidence as to the medical opinion

93. The thrust of the separate affidavit and oral evidence from Ms Hellams, Mr Longbein and Mr Tregurtha were quite similar. They all formed the view that as at 12 December 2019, the medical advice from Dr Naaz and/or Dr Abeya indicated that Ms James before returning to work in her Substantial Position should first participate in mediation to restore effective working relationships with individuals to whom she will be required to report. As mediation had not yet occurred, their view was that Ms James is yet unable to return to her Substantive Position.

94. DCJ asserted that Ms Moore and Dr Martin were required to attend the mediation with Ms James because Ms Moore was her overarching line manager and Dr Martin had overall responsibility for the functions of the program.

95. DCJ’s evidence is that Ms Hellams and or Ms Moore determined to not permit Ms James to return to work in her Substantive Role. Ms Hellam’s evidence was that she understood that the relevant medical advice from Dr Naaz and Dr Abeya required Ms James to participate in mediation with Ms Moore and Dr Martin.

96. Ms Hallems’ evidence at [77] of her affidavit was that mediation between Ms James and Ms Moore and Dr Martin was ‘medically recommended’ before Ms James returned to the Substantive Role.

97. During cross examination Ms Hellams was asked to identify the medical recommendation:

Mediation was part of the health recommendations from both, the Government Medical Officer, as well as at various stages, your treating clinicians to support your return to work. Tcpt.p125

…was a report from the government medical officer, which, I'm not sure which one of my attachments, but it certainly in there. Just give me a moment. Tcpt. p125

98. When asked during cross examination what particular report was relied upon, Ms Hellams said:

A.   ‘I'm referring to the assessment report from the Government Medical Officer [Dr Abeya] that recommended that mediation would assist in facilitating your return to work. And resolving the outstanding issues that were still existing between the parties, and that you had raised in previous matter. Tcpt.29.10.21 p126

Q. so the recommendation on that page [Dr Abeya’s supplementary report pg 655 CB] dated 23 June 2020 talks about mediation at number one. Is that what you're talking about?

A. that recommendation was supplementary one where Dr Abeya where we were seeking clarification because you're treating physicians, in earlier stages of the process had recommended mediation. Then you provided medical evidence that mediation would be detrimental to your health. And we sought clarification from your doctor, who didn't respond. And we also sought clarification from the GMO as to how we could support you through the mediation process to support your return to work. And that recommendation was in relation to Dr Naaz comments that mediation would be detrimental to your health. But I recall that in the earlier report from the GMO, there was reference that mediation would assist in trying to resolve outstanding issues between the parties. Tcpt.29.10.21 p126

Q. What is your belief that it was a medical recommendation for mediation. Where has that come from?

A. As I said, my recollection was that in early stages of your workers compensation claim, your doctor had recommended mediation as a possible way of returning and facilitating your return to work. And the Government Medical Officer has also observed that sort of process may be useful to facilitate a safe and sustainable return to work. Tcpt.29.10.21 p127

…

A. my evidence would be that we were trying to accommodate and work within the medical advice from your treating specialists, recognising at times that we were concerned that they were conflicting. Tcpt.29.10.21 p156

99. Ms Hellams was asked why the medical recommendations by Dr Naaz from July 2019 have not been implemented by DCJ.

A.    They’ve not been implemented because its impractical because Ms Moore is in your direct line of command. Tcpt.1.11.21 p175

100. Ms Hellams explained that the reason why Dr Martin was required to be in the mediation was because Ms James made a complaint of bullying against her internally which need to be resolved and she is in the ‘line of command’. Tcpt.29.10.21 p147- Tcpt.29.10.21 p148

101. Mr Tregurtha’s evidence was that for a significant period of time during the Complaint period, Ms Moore was seconded to a different role and would not have been in Ms James’ reporting line, but that mediation was required with Ms Moore because of ‘historical issues’ so that there could be a safe workplace for her and Ms Moore. Tcpt 28.10.21 p74-Tcpt. 28.10.21 p77

102. The ‘historical issues’ were explained as:

I suppose if someone breaks their leg and their duties involved standing all the time, they can't perform their role of standing all the time. But if the fracture heals and the doctor goes look, they can stand up for half an hour at a time. Then we would go back to the employer going. Can this person return if they can stand half an hour at a time, and then the manager would go? No, we need them stand two hours nonstop. It's not really going to work, but we can look at something else. So part of the manager is going well before we get Rita back into the workplace, we need to address some of these historical issues.

DCJ’s Return to Work Policy, Return to Work Plan and Medical Case Conference Summaries

Return to Work Plan and Medical Case Conference Summaries

103. The RTW Policy is set out in paragraphs 74 to 76 above.

104. The return to work plans are referred to in paragraph 17 of the Letter. Prior to 21 May 2019, Ms James, Dr Naaz, Ms Yan (EML/the Insurer), Ms Ploszczyniec (Acumen Health) and Mr Tregurtha (DCJ) attended medical case conferences in 2019.

105. Return to Work Plans (RTWP):

1. Return to Work Plan 1 (22 October 2019) goal to return to Substantive Position by 30 December 2019,

2. Return to Work Plan 2 (5 December 2019) goal to return to Substantive Position by 30 December 2019,

3. Return to Work Plan 3 (20 January 2020) goal to return to Substantive Position by 27 January 2020,

106. All three of the RTWPs state that:

1. Ms James has capacity to return to pre-injury duties; and

2. Include reference to Actions required by Ms James, the employer, the treating doctor and the rehabilitation provider.

107. The notes of the medical case conference on 2 April 2019 explain that the purpose of the conference was to confirm Ms James’ expectations of returning to work, whether to her Substantive Position (pre-injury role) or in regard to other options. Ms James advised that she wished to return to her Substantive Position with an internal support person so that she would be ‘treated fairly’. Mr Tregurtha advised that ‘they would definitely be able to allocate a support worker’ but that there was another issue of ‘workplace performance’. Dr Naaz suggested that workplace performance issues after 2015 are ‘null and void’ as Ms James was a ‘whistleblower’. Ms James advised that she would prefer an external support person who could mediate any issues that could arise, and she identified a psychologist as a suitable person.

108. A further case conference meeting took place on 21 May 2019. Mr Tregurtha advised that following discussion with management, prior to any return to work to EPCC, there would need to be clarification in regard to two issues. The first issue was that complaints made by Ms James against ‘other staff’ and management needed to be discussed/resolved. Secondly, a performance management improvement plan needed to be agreed to by management and Ms James before she could return to DCJ.

109. Dr Naaz advised that the workplace has a responsibility to make the workplace safe and that there is a risk of exacerbating Ms James’ symptoms by returning her to the substantial position in the circumstances described by Mr Tregurtha. Dr Naaz advised that as Ms James has been absent from the workplace for 2 years, a Performance Development Plan (not a Performance Improvement Plan) be developed to assist Ms James, that she can comply with, given the assistance of a support person from the workplace.

110. Acumen Health suggested that an external mediator can assist Ms James and the employer to resolve alleged issues and clarify expectations before she returns to work. Dr Naaz supported that the employer can arrange mediation sessions by an external mediator to resolve issues that may arise.

111. A further case conference took place on 18 June 2019. Mr Tregurtha advised that there have been discussions with management, particularly Ms Moore who advised that:

there are issues of concern which need to be resolved before taking any further decision on this matter: Firstly there is an understanding or fear that some staff members in Emu Plains, alleged that they won't feel safe with Ms James return to work and they may leave work and secondly there was an unresolved incident which occurred in 2017 when Ms James behaved unprofessionally.

112. The notes of the meeting case conference state that:

Dr Naaz reported that it appears that the whole matter with Ms James return to work has become a conflict resolution matter, where worker/ workplace conflict is overlapping with personal conflict, where the management wants to dig into the history of Ms James’ case which is overall not helpful and if the management wanted to bring their behavioural performance issue which occurred in 2015 in fairness they should reflect the sexual allegation matter back in 2015.

113. There was also discussion about an external mediator who could assist Ms James and the employer to resolve alleged issues and clarify expectations before she returns to work. The parties agreed that the next medical case conference would be conducted following the outcome of the pending mediation session with Ms James and the employer. Despite attempts and opportunities for mediation in July 2019, no mediation eventuated. Ms James refused to have the mediation session as part of the Tribunal’s conciliation process and insisted that the workers compensation claim remain separate from the NCAT complaint.

Requirement to attend on GMO

114. Paragraph 24(f)(ii) of the Letter required the GMO, Dr Abeya to provide DCJ with a report about whether Ms James’ return to the Substantive Role would be ‘safe’. This was the DCJ’s third request for a report from the GMO.

115. On 20 September 2019, DCJ referred Ms James to attend on Dr Abeya in accordance with c15 of the Government Sector Employment Regulation 2014 (Regulation). The referral letter states that the referral is in accordance with c15 of the Regulation and subject to s56 of the Government Sector Employment Act 2013; s56 is titled Retirement on Medical Grounds.

116. Clause 15 of the Regulation states:

15 FITNESS FOR DUTY

(1) For the purposes of this clause, a Public Service employee is not fit for duty if the health of the employee:

(a) may render the employee a risk to the health and safety of other Public Service employees or the general public, or

(b) is likely to be seriously affected by the employee remaining on duty or, if the employee is absent from duty, by the employee resuming duty.

(2) If the agency head has reason to believe that a Public Service employee is not fit for duty, the agency head may direct the employee to submit to such medical examination or other health assessment as the agency head may, on the advice of a nominated medical assessor, consider necessary.

(3) A Public Service employee to whom an agency head gives a direction under subclause (2):

(a) must, if on duty, cease duty immediately, and

(b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of a nominated medical assessor is first obtained or a certificate is furnished by a medical practitioner that the employee is fit for duty.

(4) If the agency head receives a health assessment from a nominated medical assessor that a Public Service employee is fit for duty and the employee is absent from duty, the agency head is to direct in writing that the employee must resume duty.

(5) If the agency head receives a health assessment from a nominated medical assessor that a Public Service employee is not fit for duty:

(a) the agency head is to direct in writing that the employee must cease duty immediately or, if absent from duty, must not resume duty, and

(b) the employee must not resume duty unless the agency head, on the advice of a nominated medical assessor, approves the resumption of duty in writing.

(6) If a direction has been given to a Public Service employee under subclause (4) or (5), the nature of the leave, if any, to be granted to the employee during the absence from duty is to be determined by the agency head after consideration of any relevant advice of the nominated medical assessor.

(7) The agency head is to give the health care professional providing a health assessment of a Public Service employee under this clause any requested information about the employment of the employee that is reasonably required for the purpose of providing the assessment.

117. DCJ can direct an employee to attend a fitness for duty assessment if the agency head has reason to believe that an employee is not fit for duty as per c15(2) of the Regulation.

118. If the agency head receives a health assessment from a nominated medical assessor that a Public Service employee is fit for duty and the employee is absent from duty, the agency head is to direct in writing that the employee must resume duty.

119. The effect of the referral as set out in r15(3) is that an employee is unable to return to work at DCJ or anywhere within the Justice Department until the health assessment is received by the agency. The referral is separate and distinct from the workers compensation claim processes.

120. The Fitness for Duty Procedure states that compliance with it is ‘mandatory’. Under the heading ‘Obtaining information from Nominated Treating Practitioner’:

In the first instance, the department must rely on the available medical advice from the workers nominated treating practitioner in relation to their assessment of the workers, capacity for work.

Additional advice may be sought by the Department from the worker’s nominated treating practitioner where the initial information is unclear, inadequate or there are concerns about the practicality of implementing the practitioner’s advice. The HR BP WHS Team will discuss the issue with the worker initially and then request additional information or clarification from their treating practitioner once consent is provided in writing.

Requirement to include behavioural expectations based on observations in letter from Mr Baldi on 12 February 2018

121. Paragraph 32 of the Letter refers to Mr Michael Baldi’s letter, dated 12 February 2018, which notified Ms James that the complaints she made against Ms Moore, Dr Martin and another manager, investigated by Mr Counter had not been substantiated. Mr Baldi is the Executive Director Strategic Human Resources DCJ. Mr Baldi’s letter to Ms James provided an Annexure A. In Annexure A, Mr Baldi provided Mr Counter’s observations of Ms James’ conduct, behaviour and workplace and interpersonal relationships identified during the investigation.

122. The observations portray conversations that Mr Counter has with both numerous unnamed persons and named persons, including Ms Moore. Some had negative things to say about Ms James while others offered positive observations.

123. Some of the observations describe Ms James having condition of anxiety, depression and adjustment disorder. These observations include the following terms: fragile, mentally vulnerable, frequent emotional swings, anxious behaviour e.g. apparent inability to make decisions or to respond. Ms James was described as ‘high maintenance’, as someone who often feels rejected and assumes that individuals are influenced by senior management. These observations amounted to criticism of her on the basis of her psychiatric illness. Some interviewees expressed a desire not be involved with Ms James.

124. Some of the alleged observations reported by Mr Counter, as documented by Mr Baldi, are very serious in nature. These include statements that Ms James’ conduct appears at odds with DCJ’s Code of Ethics and Conduct, struggling with the observance of policies and procedures, being uncomfortable managing staff, confrontational, unsupportive of those she directs and resentful of managers/authority figures, Actively seeking to undermine them.

125. Annexure A contains negative comments made by Ms Moore about Ms James. It is stated that Ms Moore observed Ms James calling one of her direct reports ‘stupid’ and not up to her standard and that ‘Ms Moore has highlighted this lack of rapport with her direct reports’.

Determination of the ‘go to’ person/mentor to be her line manager

126. The parties are in a factual dispute about whether Dr Abeya and Dr Naaz proposed that the ‘go to’ person be or could be Ms James’ line manager or was to be a person who was separate from her line management.

127. Dr Abeya’s recommendation was ‘to have one person in management she can report to in the initial stages of her return to work with whom she can have open communication and feel able to discuss issues with. This would assist with resolving any problems at an early stage without further escalating’.

128. Dr Naaz’s recommendation an external mediating party/mentor who could assist Rita in her workplace as she gets (sic) returns back to work.

129. DCJ determined in paragraph 39 of the Letter that Ms James’ supervisor/manager would also serve the role as the ‘go to person/mentor’. Its reasoning is contained in Mr Langbein’s letter of 21 December 2019:

The purpose of this recommendation, as we understand it, is not to provide you with a mentor, but rather an objective person to address your concerns about victimisation by management. As you know, you do not know the Acting MOSP at all. This makes him an ideal candidate.

The Tribunal’s Consideration

Allegation 1: Failure to assist Ms James to return to work in October 2019 following a period workers compensation leave.

Factual Findings

130. It is common ground that as at 10 October 2019:

1. The DCJ’s Return to Work Policy requires the agency to assist employees to return to suitable duties in a timely manner;

2. Ms James attended three Return to Work meetings, held on 2 April, 21 May and 18 June 2019, with the clear intent of eventually returning to her Substantive Position;

3. From August 2018 and up to 11 September 2019 Ms James was fit to work in Department of Justice (not in DCJ) but no suitable work was found for her by DCJ;

4. From 12 September 2019, Ms James was fit to perform duties at DCJ pursuant to a Certificate of Capacity signed by Dr Pham;

5. DCJ had Dr Naaz’s opinion dated 2 July 2019;

6. At Ms James’ request, SafeWork contacted DCJ on 10 October 2019 with the aim of returning her to work at DCJ;

7. On 11 October 2019, DCJ had found suitable work for her at Windsor Community Corrections, DCJ;

8. SafeWork required a workplace assessment/task analysis and a return to work plan to be developed;

9. Return to Work Plan 1 dated 22 October 2019 was developed. The goal of this Plan was to return Ms James to her Substantive Position by 30 December 2019;

10. Ms James commenced at Windsor Community Corrections on 22 October 2019;

11. Ms James had received positive feedback from the manager at Windsor Community Corrections.

131. The parameters of the contest between the parties are whether DCJ assisted Ms James to return to suitable duties at DCJ prior to 10 October 2019. The Complaint Period commenced from 1 October 2019.

132. On the one hand, Ms Hellams and Mr Tregurtha assert that they did make attempts to find suitable duties for Ms James. On the other hand there is before the Tribunal contemporaneous documentary evidence created as part of DCJ’s ordinary business which shows the specific attempt Mr Tregurtha made to find suitable duties for Ms James was because of SafeWork’s intervention.

Ms James’ evidence and submissions

Evidence and submissions as to damages

285. Ms James states in the complaint form to Anti-Discrimination NSW that ‘the whole process (of being hampered from returning to work with DCJ) further impacted on me in terms of feeling isolated and unsupported in addition to cementing my feeling of victimisation and impacted on my psychological condition.’

286. The Points of Claim refers to Ms James’ feeling of humiliation, embarrassment, that she has not been able to ‘stay current’ in her job which has adversely damaged her career path.

287. She states that she has experienced extreme mental anguish and psychological damage. She claims that her career within DCJ and her relationships with some staff in the workplace has been fractured due to loyalties to management. She states that the staff mentioned in this case hold very senior management roles and that she has suffered reputational damage. Reference is also made to Ms James’ evidence as set out in paragraph 235.

288. Ms James states that DCJ’s conduct of failing to follow the advice from her treating psychiatrist and the GMO had significantly impacted on her mental health. The only role offered to her by DCJ was one which was significantly below her level of skills. She was unable to progress pursuant to the agreed RTW Plans. This had the impact of her ‘becoming further out of touch with latest practices regarding her role, policy changes and any developmental opportunities that may have been available to her had she returned to her Substantive Position.’

289. Ms James states that the victimisation against her is a ‘pattern of behaviour’ that preceded the commencement of the Complaint Period and continued throughout it. The pattern of behaviour is described as DCJ putting up hurdles to her returning to work. As an example, she says that when she was prepared to engage in mediation with Ms Moore, Ms Moore refused to do so (prior to the Complaint Period) and when Ms James’ treating psychiatrist stated that Ms Moore should not be involved in Ms James’ return to work and in any mediation, there was an insistence by DCJ that Ms Moore must be involved in the return to work process and mediation with her and Dr Martin was mandatory prior to DCJ even considering whether she could return to the Substantive Position.

290. In an email to Mr Langbein on 19 February 2020, Ms James expressed her view that the requirement for mediation with Ms Moore prior to her being considered to return to her Substantive Position was a ‘disgraceful bullying tactic designed to further exacerbate my mental health’. Ms James points to the consistent advice and recommendations from her treating psychiatrist and the GMO. At this time, Ms James had been successfully back at work at DCJ on a full time basis.

291. Dr Naaz provided a supplementary report, specifically addressing DCJ’s questions about mediation with Ms Moore and other matters on 8 April 2020. Dr Naaz refers to her previous recommendations dated 2 July 2029 and her comments made during case conferences on 2 April, 22 May and 23 June 2019.

292. Dr Naaz was asked: ‘in circumstances where Ms James will still be managed why Ms Moore and this is unavoidable, in your view how can Ms James be safely returned to the workplace without risk of worsening her symptoms of depression and anxiety?’ Dr Naaz advice:

In such a case, Ms James can have that meeting with Ms Moore in the presence of a support person. Due to the past history of bullying and harassment I recommend that Ms James should not meet with Ms Moore alone and should always be in the presence of a support person who Ms James chooses.

293. As to mediation, Dr Naaz opined that ‘any mediation with a person who is perceived as an alleged perpetrator is going to cause more harm than good’. And that Ms Moore should not be part of Ms James’ mediation.

294. Dr Abeya in her supplementary report dated 23 June 2020 supports Dr Naaz’s assessment and makes the following recommendations:

RECOMENDATIONS

I would therefore suggest the following (acknowledging that her treating psychiatrist’s assessment is more current than my own):

1. To take into consideration her treating psychiatrist’s view that mediation may be detrimental to her mental health (noting that this is hard to dispute given her longer term emotional vulnerabilities and what appears to be ongoing difficult thought processes about her work place).

2. Gain written confirmation from her treating psychiatrist that she is indeed fit to return to her substantive position first. I believe that it would be helpful to have a case conference with her doctor in sorting this out.

3. Then institute some safety measures as she returns to work. I would suggest the following:

Have regular contAct with one person in management during her return to work with frequent meetings for debriefing.

Continue to have regular sessions with her treating psychiatrist as she commences in her substantial position. It would be helpful to provide monthly certificates of ongoing fitness over the first three months of her return from her treating psychiatrist to ensure that she remains well during the crucial point of transferring back. It would be helpful to have weekly to fortnightly sessions with the psychiatrist during the first 6 to 12 weeks of her return to work for further support.

295. Ms James’ evidence and submissions also addresses economic loss (including lost income - the difference between what she was in fact paid and what she would have been paid if she was working in her Substantial Role), orders as to returning to her Substantial Position, being provided with training and an opportunity to have a support person if she is required to meet only with Ms Moore. She also continued to raise the issue of being placed in another like role if it is not her Substantial Position.

296. Ms James submitted that she sought orders that DCJ pay missed payment due to reduced workers compensation pay, including having to ‘top it up’ with annual leave.

297. Between 1 October 2019 and 18 January 2021 Ms James claims economic loss of $5 611.50. Ms James claims a payment of Environmental Allowance of $5 514.48, payment for lost career opportunities of $13 887.64 and payment for future loss of earnings due to loss of experience and status in the workplace of $29 674.

298. Ms James seeks an order pursuant to s108(2)(c) of the Act that she be given a ‘development or permanent role for a period of 12 months because she has been unable to access these missed opportunities in the past’.

Evidence and submissions as to placing Ms James into her Substantive Role

299. As to an order placing Ms James into her Substantial Position she stated that:

her substantive position has changed throughout the period. However, in line with all other Senior Services and Programs Officers. Her substantive position was simply converted to the new role. At no time did the Applicant’s substantive role changed from the Emu Plains site and at no time did she or any of the other SSAPOs have got to go through a recruitment process. It was simply a new name to the role, with some minor changes to the role description.

300. The SSAPO Role Description does not state that she must report to the Regional Supports Manager, which is the position held by Ms Moore. Under the heading, reporting line, the manager listed as: Manager Offender Services & Programs or Senior Psychologist for HRM and VOTP HIPU sites only.

301. In the section titled: key relationships, it is stated that the internal positions were Managers Offender Services & Programs, Senior Psychology – HRM only, Governors and other correctional centre custodial managers, Managers, Community Officers, Senior Psychologists, Educational Services Coordinator, Case Management Units, Correctional centre forums and meetings.

302. Ms James stated that other persons employed as Senior Services and Programs Officers are not required to report to Ms Moore. Ms James states that Ms Moore is ultimately responsible for her work unit but is not her manager or her second up manager.

303. Ms James accepts that she may be required to interact with Ms Moore in forums and meetings and states that she has no concerns with that occurring unless DCJ engaged in conduct found to be victimisation.

304. Ms James has been performing work with the DCJ since July 2020 without any issue and recently undertook a period of Acting in a higher duty for two weeks without any concerns from DCJ. This demonstrates Ms James’ capacity to satisfactory work within DCJ.

305. Ms James also referred to Services and Programs Team Leader Role Description which did not include in the Reporting Line a reference to a Regional Support Manager.

306. Ms James submitted that she seeks an order that the victimisation of her cease.

DCJ evidence and submissions

Evidence and submissions as to damages

307. DCJ filed an affidavit of Colleen Hamilton dated 9 June 2022. Ms Hamilton is employed by DCJ as a Director, Human Resources Shared Services and Customer, Shared Services & Customer Experience (SSCX). Ms Hamilton was informed of a review of Ms James’ payroll records.

308. Ms Hamilton states that Ms James was entitled to a payment equivalent to 80% of the Pre-Injury Average Weekly Earnings Rate (Rate) of $1950 per week pursuant to workers compensation legislation. Ms James returned to work at DCJ on 22 October 2019 for 15 hours per week. From this date she was paid 95% of the Rate.

309. If Ms James returned to work on 1 October 2019 instead of 21 October 2019, she would have been entitled to additional payment of $819 gross.

310. Ms James’ Substantive Role attracts an annual environmental allowance as at 1 October 2019 of $3117. Ms James received the allowance from 22 October 2019 to August 2019 because she was working with inmates. She did not receive the allowance between 3 August 2020 and 18 January 2021 because of the work that she was performing. The amount of the allowance for this period was $1442.77.

311. Ms Hamilton attached a document titled ‘Environmental Allowance’ to her affidavit which responded to ‘frequently asked questions’. The Allowance is paid to part time employees on a pro rata basis where the employee has ‘substantial, regular and direct contact with inmates in a Correctional Centre…’

312. DCJ submits that the Tribunal should not award any damages to Ms James as there is no evidence of economic or non-economic loss. Further that there is no ‘causation’ between the unlawful conduct engaged in by DCJ or any assertion by Ms James of non-economic loss.

313. In regard to the Environmental Allowance, DCJ submits that the allowance is attached to the role and not the person which is why Ms James was paid the allowance when she had direct contact with inmates in a Correctional Centre, however the payment of the allowance stopped when Ms James commenced to perform suitable duties from home in July 2020, which she requested.

314. As to the claim for missed opportunities, DCJ submitted that the evidence demonstrated Ms James did apply for promotional and transfer roles so as to progress her career during the Complaint Period.

315. As to damages, DCJ submits that there is no medical evidence to demonstrate that Ms James has suffered mental anguish, embarrassment and humiliation during the Complaint Period and that any claim for hurt feelings should be assessed together with any claim for alleged psychological injury: Yelda v Sydney Water Corporation & Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 at [303].

Submissions as to placing Ms James into her Substantive Role

316. DCJ’s submissions assert that Ms Moore would manage Ms James, that Ms Moore was required to have unsupervised discussions/meetings with Ms James, that Ms James was required to report to Mr Brown, Manager Offender Services and Programs and ‘in turn to Ms Moore’ and that Ms Moore was Ms James’ ‘ultimate manager’. The submissions made no reference to evidence.

317. DCJ submits that the Tribunal is not empowered to make orders beyond what it has found to be unlawful pursuant to s 102(2)(b) of the Act.

318. Further that such an order ‘effectively removes any ability for it to comply with the WHS Act and more generally’ in the event that Ms James is not fit to perform the Substantive Position, and the Tribunal ‘cannot make any order as to how the Respondent should conduct its business in the future in circumstances where the Respondent may have other entirely lawful reasons for not returning the Applicant to the Substantive Position…’

319. Reliance is placed on Sutherland v Tallong Park Association Incorporated (No 2) [2006] NSWADT 287 (Sutherland) that the Tribunal cannot make the order pursuant to s108(2)(b) of the Act because it is not within the Tribunal’s power to direct a respondent as to the specific manner in which it is to conduct its business.

320. DCJ submits that ‘the only’ order the Tribunal is ‘properly empowered to make under s108(2)(b) of the Act is that the respondent is ‘ordered to consider any request or application by Ms James to return to the Substantive Position…;’

Consideration

Interpreting s108 of the Act

321. Section 108(2) of the Act sets out the Tribunal’s powers where a complaint is substantiated in whole or in part:

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following--

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable Act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further Action in the matter.

(3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.

322. Section 108 of the Act was inserted pursuant to the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 No 70. There have been no changes since apart from the amendment increasing the monetary amount in s108(2)(a) of the Act from $40 000 to $100 000.

323. The Tribunal has jurisdiction to determine whether the alleged unlawful conduct occurred during a Complaint Period. Commissioner of Police, NSW Police Force v Butcher (EOD) [2011] NSWADTAP 9

324. If the Tribunal determines that unlawful conduct did occur during the Complaint Period, it has a discretion to make orders pursuant to s108(2) of the Act in regard to the conduct during the Complaint Period.

325. The nature of the available relief available under section 108(2) of the Act is in broad terms. The Act is beneficial in character: Waters at 359 [2] per Brennan J. Remedies for Acts of discrimination have been described as in the category of ‘statutory torts’ Hall v Sheiban (1989) 20 FCR 217 (Hall). However the relief provided can also be the same as provided for a breach of contract: s108(2)(f) of the Act. The assessment as to remedies is a matter of fact for the Tribunal and the method adopted must relate to the particular circumstances before the Tribunal: Hall at [66]; Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587 at 591, 597 and 619.

326. In interpreting s108, regard must be had to the purpose and context of the section within the Act as a whole. The Act’s long tittle is: An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons.

327. The overriding purpose of the AD Act is to provide redress for injury and loss suffered. It is not to punish those who contravene the prohibitions of unlawful conduct but in providing redress may involve making an order that requires the respondent to not continue or repeat any unlawful conduct.

328. Remedies are tailored to redress any loss or damage suffered by the complainant, eliminating unlawful discrimination and in appropriate circumstances remediation of the relationship between the complainant and the respondent. The remedies set out in s108(2) of the Act are not in dissimilar terms to like sections in Anti-Discrimination Acts across Australia: see for example s46PO of the Australian Human Rights Commission Act.

329. The NSW Law Reform Commission Review of the Act Report 92, 1999 at [7.150], states that the intent of the legislation is to ensure that persons who believe that they have been subject to discrimination are not deterred from pursuing their rights for fear of reprisals or further disadvantage; see also Borg v Commissioner of Corrective Services & Anor [2002] NSWADT 42 at [166] The remedies as to victimisation are broader as the Act recognises that victimisation or vilification complaints ‘affect the whole group, even if the Action is brought by an individual complainant’ .Ibid at [10.14], Section 108(2)(a) of the Act.

330. If the Tribunal finds the complaint substantiated in whole or in part it may make an order that general damages are awarded for pain and suffering, including for embarrassment, humiliation, an injury to feelings. Injury to feelings are often intangible harms that are difficult to quantify. An award of damages for non-economic loss should not be minimal, because this would tend to trivialise or diminish respect for public policy: Richardson at [83]. The purpose of the award of damages is not to be perceived as a penalty on the discriminator.

331. In Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 Brennan J at [12] said:

The victims of unlawful discrimination must find their remedy in the statutory cause of Action for the Activity in which, or for the Act by which, the employer unlawfully discriminated against them, that is, a remedy in damages for the particular Activity or Act. Those damages might properly include an amount in respect of lost gate seniority.

332. ‘Gate seniority’ is a reference to a finding that the women were not employed at an earlier time because of sex discrimination and as such had less seniority based on length of employment compared to men at the time their employment was made redundant.

333. The words ‘by reason’ in s108(2)(a) of the Act mean that the Applicant must satisfy the Tribunal that the unlawful conduct was the cause of the damage suffered. In Hall, French J (as his Honour then was) said that the words ‘by reason of’ was a question of practical judgement of cause and effect. It was not necessary for a complaint to exclude other causes: Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 McHugh J at [61]. In Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC82; (2014) 223 FCR 334 at [130] (Richardson) Besanko and Perram JJ stated that when considering a statutory power to award damages, the statutory objects and purposes may inform the proper approach to causation in a particular case. In the present case, such a statement can be applied not only to an award of damages but to the other remedies available in s108 of the Act.

Sections 108(2)(b) and (c) of the Act

334. In Waters the High Court considered whether orders made by the Tribunal in reliance on s46(2)(a) of the Equal Opportunity Act 1984 (Vic) that permitted the Tribunal to order the person … ‘to refrain from committing any further Act of discrimination against the complainant’ were valid.

335. The orders were that the respondent ‘discontinue the scratch-ticker system and refrain from implementing the driver-only tram proposal’, the very Acts that the court found to constitute discrimination: Mason CJ and Gaudron J at [57] found that ‘no error of law attended those findings’ and that the ‘orders ‘clearly constitute orders authorised by s46(2)(a) of the Act’ (Vic).

336. Dawson and Toohey JJ who were also in the majority at [35] (Brennan J in minority) rejected the appellant’s submission that the order made by the Tribunal was null and void by reason of their being vague, uncertain and unintelligible:

Under s.46(2)(a) of the Act, the Board was entitled to order the respondent "to refrain from committing any further Act of discrimination" against the appellants. No doubt it was incumbent upon the Board sufficiently to identify the nature of the discrimination which it ordered the respondent to refrain from committing. But in our view it did so by reference to the "scratch-ticket system" and the "driver-only tram proposal", for those were the aspects of the MetTicket system which imported the requirements or conditions which the Board found to constitute discrimination.

337. In Sunil v Burns [2015] NSWCATAP 207 the Appeal Panel dealt with the Tribunal’s power to make orders pursuant to s108(2) of the Act. The Appeal Panel found that the Tribunal has broad powers extending to the making of an order in the ‘nature of a restraining order’ [17]-[28].

338. In Walsh v Hunter New England Local Health District [2020] NSWCATAD 134 the Tribunal found that the respondent indirectly discriminated against the applicant on the basis of a disability by requiring her to work morning shifts. The Tribunal determined to provide the parties with an opportunity to make submission on its proposed orders that the respondent stop rostering the applicant on certain shifts.

339. In Burrows v Commissioner of Police [1995] EOC 92-676 (facts and findings set out in [1994] EOC 92-654), the Tribunal made orders that the respondent transfer and appoint the complainant as a police officer and that the complainant’s appointment carry with it the seniority and benefits which he would have enjoyed had he been appointed (on a date specified).

340. In Bell v Aboriginal and Torres Strait Islander Commission & Ors [1994] EOC 92-565 the Tribunal ordered the first respondent take disciplinary measures against the harasser (an employee of the first respondent).

341. In Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 the High Court found that an order giving seniority to the complainant was valid.

342. DCJ relies on the decision in Sutherland. In that case, the Tribunal made the following Order:

1. The respondent is enjoined from continuing or repeating the unlawful conduct; that conduct being the imposition of a requirement that in order to use the pool facilities at Tallong Park Estate a person must traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the pool

343. It was in similar terms to the order proposed by the applicant which was as set out in [13]:

The respondent shall, within 28 days of this order being made, take such Action as is necessary to enable persons with a disability to access the swimming pool facilities at Tallong Park Estate without being required to traverse the pedestrian pathway from the main car park (a distance of approximately 75 metres).

344. The Tribunal determined not to make orders in the terms proposed by the respondent which were much more specific and limited in scope. The respondent proposed three different ways in which access to the swimming pool could be gained: provision of vehicle access, provision of motorised scooter or wheelchair or resting facilities. It was in this context that the Tribunal referred to Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12. The Appeal Panel observed that it is not within the Tribunal’s power to make orders about how a respondent should conduct its business in the future, except to say that it should not be conducted in a way that is unlawful under the Act [19]-[20].

345. In Butcher, the Appeal Panel found as a matter of fact that the Tribunal below relied on evidence of matters at the time of the hearing which was outside the confines of the Complaint Period. It was on this basis that the Appeal Panel stated at [42] that Order (b) ‘Enjoins the respondent from continuing to extend the probation of the applicant given the factual findings of the Tribunal’ was ‘beyond the power of the Tribunal to make’.

346. If the Tribunal finds the complaint substantiated the Tribunal may make an order that the respondent is enjoined from continuing or repeating any unlawful conduct by the Act or the regulations. As part of such an order, the Tribunal can order that the respondent Act or not Act in a specific manner. The purpose of subsection 108(2)(b) is from prohibiting or enjoining future unlawful conduct.

347. The Tribunal does have power to make an order pursuant to s108(2)(b) of the Act whether or not it factually finds that the unlawful conduct is or is not continuing’ during the Complaint Period. It may in some instances be of great significance in deciding that the order is not warranted as the facts leading to the unlawful conduct has dissipated or resolved. However the Tribunal would consider all of the relevant matters before determining the appropriate order to suit the individual circumstances of the complaint.

348. The Tribunal has no power to determine whether or not conduct was unlawful if it falls outside the Complaint Period and subsequently any remedies made are in response to the conduct during the Complaint Period. The onus is on the applicant to satisfy the Tribunal that the order ought to be made.

349. The Tribunal also has power pursuant to s108(2)(c) of the Act, to require the respondent to perform any reasonable Act or course of conduct. The purpose of such an order is to address any loss or damage suffered by the complainant.

Claim for damages

350. Ms James’ evidence is clear that she has suffered reputational damage, hurt feelings, humiliation, distress and embarrassment as a result of DCJ’s conduct of hampering her return to work following a period of workers compensation leave. In many of the communications between Ms James and DCJ, she expresses feelings of being distressed at the roadblocks DCJ put in her way. The Tribunal accepts Ms James’ evidence of her state of mind as set out in the contemporaneous documents before the Tribunal and her submissions and evidence during the hearing as to her state of mind during the Complaint Period.

351. The Tribunal accepts Ms James’ evidence that DCJ’s conduct during the Complaint Period affected her deeply. Ms James said that:

The detriment is to my mental health, and I feel like I’m on a rollercoaster sometimes. Some days, it’s fine and then something else will happen and I’ll go into this black pit. Tcpt 28.10.21 p5.

352. The Tribunal accepts Ms James’ evidence and submission that she felt isolated, targeted and alone as the persons she has made complaints about in the past are also involved in her return to work process. The Tribunal finds that the DCJ’s conduct of not assisting Ms James to return to work when she was fit to do so and putting in place barriers so that she cannot return to the Substantial Position materially contributed to the claimed loss.

353. Similar to the facts in James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238, DCJ at [110]:

The respondent did not provide evidence of having considered its obligation not to victimise Miss James for making the complaint. The respondent did not offer any evidence of having attempted to mollify the impact of the restrictions it placed upon Miss James. Despite noting her distress. The respondent then drew the conclusion that her distress rendered Miss James unsuitable for her role.

354. The evidence from Dr Naaz and Dr Abeya supports Ms James’ evidence. The Tribunal accepts Dr Naaz’s opinion on 8 April 2020 that the way DCJ has treated Ms James, which has been found to be victimisation, has adversely impacted on Ms James’ psychological health. The Tribunal accepts that Ms James’ anxiety levels were affected by DCJ’s conduct in not assisting her to return to DCJ at all and to her Substantive Role in particular.

355. The Tribunal also notes Dr Abeya’s opinion as of 18 October 2019 that DCJ should give due consideration to Dr Naaz’s request to not have Ms Moore involved in the return to work planning to assist her and provide her with further confidence, given the likely shaken trust between Ms James and DCJ.

356. The Tribunal is satisfied that Ms James has demonstrated that the loss or damage she has suffered was caused by DCJ’s unlawful conduct. There is no evidence before the Tribunal that may suggest that the loss or damage suffered was for any other reason.

357. This matter has a long and unfortunate history. On 25 May 2015, Ms James lodged a victimisation complaint against DCJ on the basis that she was removed from her workplace because she made a complaint including an allegation of sexual harassment. DCJ refused to permit Ms James to return to her workplace at that time. Dr Martin determined that Ms James could not be returned to the workplace due to the ongoing allegations: ‘In accordance with Respondent’s WH and S obligations, relocation is also necessary to protect the integrity of the investigation process.’ James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 [78].

358. The conditions in the Letter are all adverse to Ms James’ security of employment. Some of the conditions are highly adverse. The context of the Letter is important. It is provided as part of the purported workers compensation return to work process. It is headed ‘return to work plan’. However the Letter is in significant terms in breach of the manner in which the return to work process is regulated under the relevant statute. The mediation requirement with two senior managers against whom Ms James made previous complaints is contrary to all of the medical opinions and recommendations. DCJ received ongoing medical opinions and recommendations in regard to Ms James returning to the Substantive Position, both doctors were aware that on returning to the Substantive Position, there would be some requirement for interAction between Ms James and Ms Moore and Dr Martin. Neither Ms Moore or Dr Martin is the manager or the second line manager of Ms James. Ms Moore has responsibility over the group in which Ms James belongs. Dr Martin is more senior in turn.

359. We find that had DCJ not insisted on its conditions in the Letter, Ms James would have made a safe and productive return to work in the Substantive Position. The Tribunal accepts Ms James’ unchallenged evidence that she is successfully performing her current duties at DCJ without any issues to her own safety or the safety of staff with whom she works.

360. We are satisfied that loss or damage has been suffered by Ms James as a direct result of the victimisation. Based on DCJ’s submissions and evidence, the Tribunal is satisfied that DCJ has not placed Ms James in the Substantive Role because of its insistence on the adverse conditions set out in the Letter.

361. Ms James took proactive steps to mitigate the damage or loss caused by CSNSW’s conduct by continuously engaging with them and asking them to assist her to return to work and ultimately by contacting SafeWork.

362. The task of assessing damages for non-economic loss is a difficult one: Kenny J in Richardson [94], however because the ‘injury’ is difficult to measure it should not be ignored: Wilcox J in Hall v Sheiban [543]. The notion that cases involving complaints of unlawful discrimination and victimisation are in the range of $12 000 to $20 000 was considered and rejected by Kenny J (Besanko and Perram JJ in agreement) in Richardson. The Full Federal Court considered the assessment and awarding of damages in a sexual harassment case, however the principles apply equally to other areas of discrimination law. Besanko and Perram JJ stated that an award of damages should not be determined by reference to ‘some previously accepted range’ but should be determined ‘having regard to the nature and extent of the person’s injuries and prevailing community standards…’ [81], Kenny J [95]-[118].

363. The Tribunal finds that taking into account the particular circumstances before the Tribunal in regard to the unlawful conduct during the Complaint Period including Ms James’ injuries and prevailing community standards, the appropriate award for general damages is $35 000.

364. As to economic loss, the Tribunal has found that Ms James was fit to return to the Substantive Role on a trial basis from 12 September 2019 (clearance from Dr Pham to return to her Substantive Position to perform pre-injury duties for 5 hours a day, 3 days a week on a trial basis) and that Ms James was not returned to the Substantive Role because of victimisation. The Tribunal accepts DCJ’s evidence that had Ms James return to work at DCJ in any role from 1 October 2019 (she returned to work because of the intervention of Safe Work on 22 October 2019) she would have been entitled to a difference in her rate of pay of $819 gross. The Tribunal prefers DCJ’s evidence in regard to the specific amount as it sets out the basis for the calculation.

365. The other aspect of the economic loss is the non-payment of the Environmental Allowance. We are not satisfied that Ms James would have been entitled to the receipt of this Allowance as during some of the period she was working from home at her request.

366. Ms James says that her career has been restricted and noted despite applying for over fifteen roles in 2021 she has been unsuccessful in gaining a role at her grade. However apart from Ms James’ assertions, there is no evidence before the Tribunal that Ms James was unsuccessful because she was not placed into her Substantial Position. While the Tribunal accepts that it was more difficult for Ms James to be promoted while performing administrative duties and that she was not able to stay current as a drug and alcohol counsellor, there is insufficient evidence to find that this was the cause of her not being promoted.

367. There is insufficient evidence for the Tribunal to determine the Actual loss suffered by Ms James and the Tribunal makes no finding that Ms James was not appointed to the any of the roles she applied for because of DCJ’s victimisation towards her.

Orders pursuant to s108(2)(b) and (c) of the Act

368. The Tribunal has found that DCJ victimised Ms James during the Complaint Period and that the unlawful conduct continued throughout the whole Complaint Period. In part, the victimisation consisted of DCJ demanding that Ms James engage in mediation with Ms Moore and Dr Martin. The Tribunal found that this requirement on Ms James was victimisation within the meaning of s50 of the Act and was contrary to the medical evidence as at 12 December 2019. The medical evidence throughout the Complaint Period remained consistent that Ms Moore should not be involved in Ms James’ return to work planning and that mediation between Ms Moore and Ms James would be harmful to Ms James’ mental health.

369. Under subsection108(2)(b) and (c) of the Act, relief is available to prevent the continuation or recurrence of victimisation. An order to place Ms James in her Substantive Position (with medical clearance) mandates DCJ to perform an Act. In light of the material before the Tribunal, it is satisfied that it is reasonable for Ms James to be placed in her Substantive Role. We determine that this order is also necessary in order to redress the loss and damage suffered by Ms James.

370. The order that DCJ place Ms James into the Substantial Position is a reasonable Act because it is consistent with the medical opinions during the Complaint Period and requires a current assessment by her GP.

371. The purpose of such an order is to re-establish normal workplace relations. DCJ’s continued insistence in submissions without any evidence that Ms Moore has to manage Ms James and that mediation between Ms Moore and Ms James is a medical recommendation is concerning in light of the material before the Tribunal. Ultimately whether Ms James is able to return to the Substantive Position will depend on medical advice.

372. The Tribunal makes the following Orders

1. The respondent pay the applicant $35 000 by way of compensation for the non-economic loss or damage suffered by reason of the respondent’s victimisation within 28 days of the order.

2. The respondent pay the applicant $819 gross by way of compensation for the economic loss or damage suffered by reason of the respondent’s victimisation within 28 days of the order.

3. The respondent is enjoined from continuing or repeating any conduct rendered unlawful by this Act or the regulations against the applicant.

4. The respondent place the applicant into the Senior Services and Programs Officer role at Emu Plains within 28 days of receiving medical advice that she is fit to carry out the inherent requirements of the role.

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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: 22 August 2022