LEY and DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION - [2019] WASAT 130

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   LEY and DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION [2019] WASAT 130
MEMBER:   MS L EDDY, SENIOR MEMBER
HEARD:   17 & 18 SEPTEMBER 2019
DELIVERED          :   11 DECEMBER 2019
FILE NO/S:   EOA 28 of 2018
BETWEEN:   JUDITH LEY
Applicant
AND
DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION
Respondent

Catchwords:

Equal opportunity - Discrimination on the ground of impairment in the area of employment - Failure to offer temporary position in new school to teacher when teacher on personal leave - Temporary position in new school offered to teacher filling in for teacher on personal leave - Identification of correct comparator - Turns on own facts

Legislation:

Disability Discrimination Act 1992 (Cth), s 4
Equal Opportunity Act 1984 (WA), s 4, s 66A(1)(a), s 66B(1)(a), s 90(2)
State Administrative Tribunal Act 2004 (WA), s 9

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr K de Kerloy
Respondent	:	Ms S Keighery

Solicitors:

Applicant	:	Herbert Smith Freehills
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
D'Alto and Curtin University [2019] WASAT 61
Haines v Leves (1987) 8 NSWLR 442
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Purvis v New South Wales [2003] HCA 62; 217 CLR 92
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26
Sharma v Legal Aid Queensland [2002] FCAFC 196
Talbot v Sperling Tourism & Investment Pty Ltd [2011] NSWADT 67; 211 IR 419
Waterhouse v Bell (1991) 25 NSWLR 99
Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349
Williams and Commissioner of Police [2005] WASAT 349
Wotton v Queensland (No 5) [2016] FCA 1457

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mrs Judith Ley is a registered teacher who worked at South Fremantle Senior High School (South Fremantle SHS) between 2004 and 2017. From 2008 to 2017 Mrs Ley worked in the role of Relief Coordinator. In 2017, Mrs Ley was employed on a fixed term contract for 0.2 Full Time Equivalent (FTE) for one school year, ending 26 January 2018. She also regularly worked up to an additional two days per week on a casual basis.
In about October 2017, Mrs Ley became unwell. On 11 October 2017, Mrs Ley was hospitalised and diagnosed with recurrence of kidney cancer, from which she had been in remission, and which had also metastasised to her liver. On 10 October 2017, Mrs Ley had arranged with another registered teacher, Ms Juliet Eddington, to cover for Mrs Ley while she was off work. At that time, Mrs Ley did not know how long she would be off work.
During 2017, South Fremantle SHS was in the process of being closed down, with the last day of the school year intended to be the last day that the school would operate. A new school, Fremantle College, was to open in time for term 1 of 2018. Mr Myles Livingston Draper was appointed as the Principal of Fremantle College commencing in term 3 of the 2016 school year. During 2017, Mr Draper worked out of a demountable office located at South Fremantle SHS.
Mrs Ley was not employed to work as Relief Coordinator at Fremantle College for term 1 of 2018. Ms Eddington was engaged in that positon for term 1 of 2018. Mrs Ley alleges that in giving the job to Ms Eddington and not to her, the respondent discriminated against her on the ground of her impairment contrary to s 66A(1)(a) and s 66B(1)(a) of the Equal Opportunity Act 1984 (WA) (EO Act).
On 1 February 2018, Mrs Ley lodged a complaint with the Equal Opportunity Commissioner (Commissioner) against the Department of Education alleging discrimination on the ground of impairment in the area of employment. A conciliation conference was held in the Office of the Commissioner, but the parties were unable to agree to any resolution of Mrs Ley's complaint. In November 2018, the Commissioner advised Mrs Ley and the Department of Education that he had dismissed Mrs Ley's complaint. After Mrs Ley required the Commissioner to do so, the Commissioner referred Mrs Ley's complaint to the Tribunal pursuant to s 90(2) of the EO Act.
In the Tribunal, it was identified that the correct respondent is the Director General of the Department of Education and the name of the respondent was accordingly amended.
In her Statement of Issues Facts and Contentions, Mrs Ley says that the issue before the Tribunal is:
Whether, in determining that the position of Relief Co-ordinator at Fremantle College for Term 1 of 2018 should be offered to Juliet Eddington (Ms Eddington), rather than to the Applicant (Mrs Ley), who had an impairment, the Respondent treated Mrs Ley less favourably than, in the same circumstances, or in circumstances that were not materially different, the Respondent treated or would have treated a person who did not have such an impairment.

The law

As Mrs Ley identifies s 66A(1)(a) and s 66B(1)(a) of the EO Act as the basis for her complaint, it is useful to reproduce those provisions:
For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of -
(a)the impairment of the aggrieved person[.]
…
It is unlawful for an employer to discriminate against a person on the ground of the person's impairment -
(a)in the arrangements made for the purpose of determining who should be offered employment[.]
As was said in the oft cited case of Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349, at 392 (Waters):
Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).
Mrs Ley has the burden of proving her allegations: Haines v Leves (1987) 8 NSWLR 442, 457; Williams and Commissioner of Police [2005] WASAT 349, at [34]. The standard to be applied was summarised recently by the Tribunal in D'Alto and Curtin University [2019] WASAT 61, at [21]-[22]:
Ms D'Alto bears the onus of proof in establishing her complaint of discrimination. The standard of proof is the balance of probabilities, but having regard to the serious nature and consequences of allegations of discrimination under the EO Act, the approach which the Tribunal takes is that discussed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361-362; see Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53].
The Tribunal must feel an 'actual persuasion' of the occurrence or existence of the facts alleged by Ms D'Alto before those facts can be found: Briginshaw at 361. Furthermore, although it is enough that the affirmative of an allegation is made out to the 'reasonable satisfaction' of the Tribunal, that reasonable satisfaction should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences': Briginshaw at 362.
However, it has been suggested, at least academically, that the principle from Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) should not be applied to discrimination cases as it is:
… inimical to the spirit and intent of legislation whose aim is to protect from unlawful discrimination and harassment, promote equality of opportunity and provide equality before the law. For the complainant, the misapplication of Briginshaw has a number of adverse consequences[.]
(L De Plevitz, as cited in N Rees, S Rice and D Allen, Australian anti-discrimination & equal opportunity law (3rd ed, 2018), at para [3.2.57])
Rees et al refer to Wotton v Queensland(No 5) [2016] FCA 1457, at [114][115] where Mortimer J observed:
I accept that the applicants' allegations against the respondents can be described as 'serious'. To allege that individuals performing public functions and exercising public powers did so on the basis of race is to make an allegation that reflects poorly upon those individuals. To allege that police officers, who have sworn to uphold the law, have contravened the law, is a matter of significance. I accept that these features of the applicants' case require the Court to be mindful of the three factors set out in s 140(2) of the Evidence Act.
That said, the 'seriousness' of the circumstances in this case is not onesided. A young man died in police custody, having entered that custody apparently active and well just under an hour earlier. A community lost that young man, and a family lost a loved one. A significant number of people lost their liberty in the aftermath of protests over his death when those protests erupted out of control. Some people lost their liberty for a long period of time and were separated from their communities and their loved ones. Some of the families involved were torn apart by these events. Young children, men and women, including a pregnant woman, were terrified by armed masked men charging into their houses. A community was placed under police control in a way which resembled a war zone, with SERT and specialised riot officers, as well as other police officers and dogs, overwhelming the island with helicopters buzzing overhead. All these matters are also serious.
While this is an interesting view point, given that the Tribunal has consistently applied the Briginshaw approach to evidence in discrimination proceedings, and because the topic was not the subject of argument by the parties, I consider it appropriate to continue to apply it, at least for the time being.
It is not necessary to prove any intention or motive on the part of the alleged discriminator (Waters, at 359):
It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of 'on the ground of' and 'by reason of'.
In order to determine whether there has been less favourable treatment, it is necessary to identify the appropriate comparator. The comparator is a real or hypothetical person who does not have, in this case, an impairment, who is or would be treated differently in the same or not materially different circumstances.
The difficulties in identifying the correct comparator is highlighted in the oft cited Purvis v New South Wales [2003] HCA 62; 217 CLR 92 (Purvis), where the High Court was divided over the relevant circumstances to be used to identify the comparator. The majority ultimately determined that the comparator was a child without the impairment who behaved in the same way as the complainant. A conceptual difficulty with the comparator adopted by the majority is that the complainant's behaviour was caused by his impairment. Subsequent to the Purvis decision, the Disability Discrimination Act 1992 (Cth) (DD Act) was amended so as to define the term 'disability' as including 'behaviour that is a symptom or manifestation of the disability': s 4 of the DD Act. The authors of N Rees, S Rice and D Allen, Australian anti-discrimination & equal opportunity law (3rd ed, 2018), at para [3.2.20], suggest that:
The effect of the amendment to the definition of disability in the DDA is to make clear that when a comparator has to be identified under legislation that has a characteristics extension, Purvis offers no guidance. It is not correct, in the face of a characteristics extension, to do as the court did in Purvis, and separate a symptom or manifestation of an attribute from the attribute. The point has been made in relation to the ADA Qld.
In Waterhouse v Bell (1991) 25 NSWLR 99, at 108, in considering whether a characteristic appertaining to, or generally perceived to be characteristic to, married persons, the Court considered that when determining the ground on which a decision was made, it is useful to search for the factors, or reasons, which led the decision-maker to act as it did. While this is not a complaint of discrimination based on a characteristic, I consider that guidance useful.
Even if the respondent has made the relevant decision, or acted on, the ground of Mrs Ley's impairment, her discrimination complaint will not be made out unless it can be established that she has been treated less favourably than the real or hypothetical comparator. The assessment is an objective one, and is a question of fact.
In some cases, where the comparator is hypothetical, the two step approach (of consideration whether there was less favourable treatment, and if so, on what ground was it done) becomes essentially a single question. As explained by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26, at [8]-[12] (Shamoon):
8.No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
9.The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the 1975 Act which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie is it not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10.I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
11.This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
12.The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues and assisted in their resolution, in the present case.
Shamoon was cited with approval in Purvis, at [156], although not directly in relation to this point. The New South Wales AntiDiscrimination Tribunal has accepted that the above approach from Shamoon may be appropriate because in the case of a hypothetical comparator there may be 'no basis on which to assess whether there would have been differential treatment until the cause of the actual treatment is known': Talbot v Sperling Tourism & Investment Pty Ltd [2011] NSWADT 67; 211 IR 419 at [57].
In many cases, it will be necessary to consider what inferences arise from circumstantial evidence in order to establish whether a decision has been made, or an act done, on the ground of a person's impairment. In Sharma v Legal Aid Queensland [2002] FCAFC 196, at [41] it was said:
In a case depending on circumstantial evidence, it is well established that the trier of fact must consider 'the weight which is to be given to the united force of all the circumstances put together'. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No 2] (1983-1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts.
In order to make a finding of fact based on an inference, '[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied': Jones v Dunkel [1959] HCA 8; 101 CLR 298, at 305.

Applicant's argument

In opening submissions, Mrs Ley's counsel relied upon the applicant's Statement of Issues Facts and Contentions as adequately outlining Mrs Ley's complaint. A summary of the contentions contained in that document is as follows.
The applicant submits that during term 4 of the 2017 school year, Mrs Ley had an impairment within the meaning of s 4 of the EO Act because of her recurrence of kidney cancer and liver metastases. During this time, Ms Eddington worked in Mrs Ley's Relief Coordinator role at South Fremantle SHS.
According to the applicant, when considering whether Mrs Ley was treated less favourably, it is necessary to compare the manner in which she was treated with the manner in which Ms Eddington was treated. It is asserted that both Mrs Ley and Ms Eddington were, or should have been, candidates for the Relief Coordinator role at Fremantle College for term 1 of the 2018 school year. The applicant submits that Ms Joanne Elizza Power, who she says appointed Ms Eddington as the Relief Coordinator at Fremantle College for the first term of 2018, knew that Mrs Ley was sick and not working in her normal role in term 4 of 2017. Ms Eddington knew, by the end of November 2017, that Mrs Ley had substantially recovered from her illness. However, when offering Ms Eddington the role as Relief Coordinator, Ms Power believed Mrs Ley to still be unwell and unable to work.

Ms Eddington knew that Mrs Ley intended to resume her positon of Relief Coordinator at the beginning of term 1 of 2018. Ms Eddington did not tell any of the relevant personnel at South Fremantle SHS that Mrs Ley wised to resume her role at the beginning of the following year, nor did she advise them that Mrs Ley was better. In December 2017, Ms Eddington may have falsely told Ms Power and Mr Draper, the future Principal of Fremantle College, falsely, that Mrs Ley was still unwell or had retired.
It is Mrs Ley's position, that when Ms Power offered the role to Ms Eddington on or around 13 December 2017, both she and Mr Draper believed Mrs Ley to still be unwell and therefore the reason they offered the position to Ms Eddington rather than to Mrs Ley was because of Mrs Ley's impairment.
In the applicant's written closing submissions, counsel for Mrs Ley raised, for the first time, the suggestion that Mrs Ley had been discriminated on the ground of a characteristic of her impairment. It was submitted that Mrs Ley was not at work because of her illness and the absence of work was therefore a characteristic of her impairment. Not surprisingly, the respondent objected to the very late introduction of a new allegation during closing submissions at the end of a two day hearing. The Tribunal asked whether the applicant wished the Tribunal to consider an application for leave to amend her Statement of Issues Facts and Contentions, but advised that given the circumstances, the Tribunal would consider whether allowing leave was appropriate at that late stage, particularly having regard to the Tribunal's objectives as outlined in s 9 of the State Administrative Tribunal Act 2004 (WA). The Tribunal also advised that if leave was granted, there was every possibility that the respondent would also be granted leave to amend its Statement of Issues Facts and Contentions, and to be heard on whether the applicant's amendment meant there was a need to adduce further evidence and potentially allow a new, or further, hearing of the matter. The Tribunal noted also that it did not have any evidence before it as to whether or not being unable to attend work is a characteristic that appertains generally to people having a recurrence of kidney cancer with liver metastases. After taking instructions, Mrs Ley's counsel abandoned the claim of discrimination on the ground of a characteristic that appertains generally to persons having the same impairment as Mrs Ley.
The manner in which Mrs Ley was treated less favourably is asserted to be a failure by Ms Power and/or Mr Draper to contact Mrs Ley and advise her that the Relief Coordinator role would continue at Fremantle College for term 1 of 2018 and the failure to enquire as to whether she was, or would be, well enough to carry out the role as well as whether Mrs Ley wanted to be considered for the role.

Evidence and findings of fact

The Tribunal received witness statements and heard evidence from three witnesses; Mrs Ley, Mr Draper and Ms Power. It also had the following bundles of documents:
(a)Referral of Mrs Ley's complaint to the Tribunal from the Commissioner (Exhibit 1);
(b)Applicant's Replaced bundle of documents (Exhibit 3);
(c)Applicants' bundle of documents pages 11 and 12 (Exhibit 4);
(d)Applicant's Supplementary Bundle of documents (Exhibit 5);
(e)Applicant's Second Supplementary Bundle (Exhibit 6);
(f)Applicant's Third Supplementary Bundle (Exhibit 7); and
(g)Respondent's Bundle of Documents (Exhibit 9).

Background: the process for closing down South Fremantle SHS and opening Fremantle College

Mr Draper's evidence in relation to the process of closing down South Fremantle SHS and opening Fremantle College is as follows (Exhibit 13, at paras 9-17, 19, 22-25, and 27):
9.Fremantle College had an anticipated school population of 1,250. When it opened in 2018, Fremantle College had a school population of approximately 960 students.
10.The opening of Fremantle required extensive planning, community consultation, employment of over 70.6 teaching staff and 32.08 administrative staff. It was a huge undertaking by me and my staff.
11.In November 2016, the Department of Education employed Emma Walker and Mark Jeffery as Associate Principals of Fremantle College.
12.In October 2016, the Department employed Joanne Power as Manager Corporate Services of Fremantle College.
13.The executive team at Fremantle College consisted of Mark Jeffery (however, in Term 4 2017, Matthew Burt was acting in Mark Jeffery's position), Emma Walker, Joanne Power, Janelle Mittonette (GATE Coordinator) and myself.
14.In Term 4 2017, Mr Jeffery was moved by the Department to be the Acting Principal of South Fremantle SHS until the end of that school year because the Principal, Kylie Bottcher, had moved to Ashdale Senior High School.
15.During Term 4 2017, Mr Jeffery was not Deputy Principal of Fremantle College, however, Mr Jeffery was involved in consulting with Mathew Burt on staffing decisions concerning Fremantle College.
16.From April 2017, Ms Power was required to take on the role of Business Manager at South Fremantle SHS due to this position becoming vacant. She was relocated to the South Fremantle SHS office.
17.During this appointment, Pamela Stevens and Janeen Knuckey replaced Ms Power at Fremantle College, however Ms Power continued to consult with Fremantle College staff on staffing and financial decisions, in particular with Ms Stevens and Ms Knuckey.
…
19.I was responsible for the appointment of staff at Fremantle College, under delegation from the Department. This responsibility included carrying out the recruitment processes for employment of staff for Fremantle College.
…
22.The processes for the staffing of Fremantle College were made clear to all staff at both Hamilton SHS and South Fremantle SHS.
23.The staff were informed from October 2015 that there would be a two phase selection process [refer Respondent's Bundle at p.5]. In the first phase, only existing permanent staff of both schools would be eligible to apply for the positions created at Fremantle College, through a merit selection process. Positions that remained unfilled following the first phase would then be advertised on Jobs WA and be filled in the usual way (following a merit selection process). Permanent staff who were not successful in securing a position at Fremantle College were advised they may become registrable employees under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA). Staff employed on a casual basis or on contract were not eligible to be part of the first phase of the selection process for Fremantle College, but could apply in the second phase for positions once they were advertised on Jobs WA.
24.On 26 July 2017, I gave power point presentations to all staff at both South Fremantle SHS and Hamilton SHS confirming the process in paragraph 23 herein. All staff members were invited to this presentation.
25.Many permanent staff at both South Fremantle SHS and Hamilton SHS were successful in obtaining employment at Fremantle College.
…
27.Apart from the presentation that was offered to all staff on the recruitment process for Fremantle College, I had nothing to do with staff members of South Fremantle SHS and Hamilton SHS who were on fixed term contracts.
In Ms Power's statement, she outlines her role in the recruitment of staff for Fremantle College and her understanding of the process for applying for positions at Fremantle College, which evidence is reproduced below (Exhibit 14, at paras 6-12):
6.As Manager of Corporate Services at Fremantle College, I was part of the executive team overseeing the opening of the new school. In this position I was required to manage all the physical and human resources at the school, including assisting with recruitment and line management of staff, overseeing the running of the school in consultation with the Principal and executive team and ensuring the school remained within budget. My role included assisting in the recruitment of non-teaching staff for Fremantle College.
7.From April 2017, I was required to take on the role of Business Manager at South Fremantle Senior High School (South Fremantle SHS) due to this position becoming vacant. In this role I was relocated to the South Fremantle SHS office (in a building separate from the Fremantle College executive team) where I worked with the Principal, Kylie Bottcher, supervising the closure of South Fremantle SHS.
8.While in the role of Business Manager at South Fremantle Senior SHS, I retained responsibility for assisting the Principal at Fremantle College, Myles Draper, in the recruitment of nonteaching staff for Fremantle College.
9.The remainder of duties relating to my substantive position at Fremantle College were undertaken by a Level 5 officer who was acting in my position.
10.As Principal, Mr Draper made the decisions in relation to the selection and appointment of staff for Fremantle College. Decisions as to executive position appointments were made by Mr Draper in consultation with the District Director of the Department of Education.
PROCESS FOR APPLYING FOR POSITIONS AT FREMANTLE COLLEGE
11.From 2016 I was aware that South Fremantle SHS and Hamilton Senior High School (Hamilton SHS) were closing and that, in effect, all positions were to be spilled. Permanent staff at South Fremantle SHS and Hamilton SHS were given preference in applying for positions at the new school. However, permanent staff were not guaranteed employment at Fremantle College in this process. Teachers and staff members who obtained positions at Fremantle were required to go through a full recruitment process.
12.All staff at South Fremantle SHS were provided with extensive written information and oral presentations regarding the process and expectations in applying for positions at Fremantle College. Assistance was provided to staff as to when to apply for jobs, and what they could do if they were not successful. Support was also provided generally to staff in the lead up to the closure of the school.
A handout addressed to all staff was circulated at South Fremantle SHS in 2015 that descried how the appointment of teaching staff for Fremantle College wold occur, which reflected Mr Draper's evidence: Exhibit 13, at para 5.

Mrs Ley's enquiries about a role at Fremantle College

Ms Power said that she was not aware, prior to 15 December 2017, that Mrs Ley was interested in any position at Fremantle College. In her statement she said she did not recall having any conversations with her about relief coordination at Fremantle College, and Mrs Ley did not send her any communications expressing an interest in a position at Fremantle College: Exhibit 14, at para 38.
Mrs Ley said that she met with Ms Power after Ms Power started in the position of acting Business Manager for South Fremantle SHS in term 2 of 2017. Mrs Ley says she explained how the Relief Coordinator role was run at the school and gave her a copy of the job description. Mrs Ley said that in that meeting she asked Ms Power how relief would be managed at Fremantle College and told Ms Power that if it was to be run the same way as at South Fremantle SHS, she would be interested in the job.
Ms Power does not recall having the conversations with Mrs Ley that Mrs Ley describes.
The Tribunal has before it a document which was in the applicant's original bundle of documents filed in the Tribunal for these proceedings. In her original signed witness statement, Mrs Ley said that a copy of an email she sent to Ms Eddington and another teacher who had agreed to fill in for Mrs Ley during a period in term 4 of 2017, when Mrs Ley had originally planned to be on holiday, with the attached handover documents was contained in the applicant's bundle of documents at tab 4 of that bundle: Exhibit 10, at paras 168-171. Pages 11 and 12 of one of those handover documents, which were drafted by Mrs Ley, became Exhibit 4 in these proceedings. Comparison of Exhibit 4 and Exhibit 10, at 11A shows that the documents are identical except for the following additional words (underlined) contained in the document that is Exhibit 4:
I have asked Juliet Eddington, a relief teacher, to step in and Alan Brown may be back for a few days next week. I am very interested in doing the relief manager at Fremantle College in 2018 if the school decides to keep the same structure or at least be involved with a handover so my wonderful relief teachers are looked after.
The email, which appears to have been copied into Exhibit 10 at 11A is contained in the respondent's bundle of documents at 28. It is in identical terms to the relevant part in the document in Exhibit 10, at 11A and does not contain the additional words underlined above.
The applicant was, unsurprisingly, asked about this in cross-examination. It did not appear that the fact that there were differences in the two documents was a surprise to Mrs Ley at the time she was questioned in the hearing. It would seem, at some point prior to the filing of the Applicant's Replaced Bundle of Documents (which replaces what is Exhibit 4 with new pages 11A and 11B), the issue was identified by the applicant or her representatives.
Mrs Ley admitted to making changes to the email as it was copied in the handover document that she had created after that document had been sent sometime after these proceedings had been commenced. Her explanation was:
Why have you included it in that document - - - Because I came to the first SAT meeting and it was disgusting. I was left in the SAT meeting for three quarters of an hour while everyone left the room. And I was hoping for some sort of (indistinct) to step down to maybe just walk away and say, 'Okay. I've done it.' But I sat in that room for three quarters of an hour by myself. And when the people came back, you, it was suggested because I hadn't written anything down, the case - I had nothing there. So when I went home, furious, I went on this. It was never meant to see light of day. I had already sent this in. This was 18 months after the thing. I had already sent it in. I looked at the email and thought, 'If only I had put something in.' And that was it. I did it. I didn't even know it had been saved. And when they were getting the statements ready, I was actually working at a hospital. And I had to do it very quickly. And I just went onto my computer and went boom, boom, boom. And, unbelievably, I sent that in. It's the wrong copy.
(ts 21, 17 September 2019)
The Tribunal finds Mrs Ley's explanation unconvincing. If Mrs Ley was thinking, 'if only I'd put something in' and making changes to an existing document, the only logical reason for her doing so was that she had an intention, even if only fleetingly, of fabricating evidence in order to bolster her case. If Mrs Ley had admitted that intention and that she then realised that she could not go through with it, her explanation might have been more believable. But to give the explanation she has, and to claim that she never meant to use it, provides no reason for making the changes in the first place.
Even if that were not the case, the Tribunal is wary of accepting the truthfulness of Mrs Ley on the question of what she told Ms Power, either in the email she sent, or at any other time, in light of her obviously very strong emotions that she admitted having after the mediation proceedings.
Further, the Tribunal finds it hard to believe that a document, which is being lodged as a document to be relied upon in proceedings, and which is being expressly referred to in a signed witness statement, would not be read by the witness at the time of preparing, or at least prior to signing, that statement. Given that Mrs Ley knew that she had made alterations to one of the documents that she was relying on, and referring to, the Tribunal cannot understand how she could not have been very alive to the risk of the wrong document being lodged. In the circumstances, the Tribunal finds it difficult to believe that Mrs Ley would not have noticed that the wrong document was being referred to in the witness statement.
The Applicant's Replaced Bundle of Documents was lodged with the Tribunal in September 2019, some four months after Mrs Ley's statement was signed and some three months after the statement was lodged with the Tribunal.
In light of the fact that Ms Power cannot recollect Mrs Ley ever indicating to her any interest in the position, the Tribunal is not prepared to accept Mrs Ley's uncorroborated, and self-serving evidence that she told Ms Power that she was interested in working in the Relief Coordinator role at Fremantle College at any time.
In any event, even if Mrs Ley had verbally told Ms Power about her interest in the role sometime earlier in the year, the Tribunal finds that by late November, early December 2017, Ms Power had no recollection of Mrs Ley ever indicating to her any interest in the Relief Coordinator role at Fremantle College.
Mrs Ley said that she met Mr Draper first during term 1 of 2017. She was with another teacher, and they came upon Mr Draper on the ramp of the demountable where the Fremantle College staff were working. Mrs Ley says that during that conversation she asked Mr Draper how he 'proposed to run relief at Fremantle College': Exhibit 10, at para 80. She also told him that if he planned to run it the same way as it was run in South Fremantle SHS then should be interested in being given that role.
Mrs Ley said that she met Mr Draper again in August or early September of 2017. She said that she asked him if any decision had been made about the Relief Coordinator role at Fremantle College and was told that it had not.
Mr Draper recollected meeting Mrs Ley on one occasion when he was walking down the ramp from a demountable office: ts 50, 17 September 2019. He did not recall that the things that Mrs Ley says were said at that meeting, although he thought that she may have asked about what would be the situation with the Relief Coordinator. He did not recall her saying that she was interested in the position: ts 50, 17 September 2019.
He did not recall having any other discussion with Mrs Ley but he accepted that it may have occurred: ts 50-51, 17 September 2019.
The Tribunal finds that by late November, early December 2017, Mr Draper had no recollection of Mrs Ley expressing any interest in the Relief Coordinator role, although he was aware that generally, any staff member working at South Fremantle SHS in 2017 would probably be interested in being considered for a similar role at Fremantle College in 2018.

Mrs Ley's state of health

The only evidence before the Tribunal in relation to Mrs Ley's health comes from Mrs Ley. The respondent does not admit any of the facts in relation to Mrs Ley's health in her Statement of Issues Facts and Contentions. However, the respondent contends, at paras 49(b) and 49(c) and 50:
(b)on 10 October 2017, Mrs Ley fell seriously ill with a recurrence of kidney cancer, and was forced to take leave from her job, and appointed Ms Eddington, a regular relief teacher at South Fremantle, to be the Acting Relief Co-ordinator until Mrs Ley recovered and was able to return to work;
(c)Mrs Ley did not return to work throughout Term 4 of 2017 and Ms Eddington filled the role of Acting Relief Co-ordinator throughout that time[.]
…
50Nor is there any issue that, at the material time, Mrs Ley was suffering from an impairment, as defined in s 4 of the EOA. Mrs Ley had previously suffered from kidney cancer which, in October 2017, was found to have metastasised into her liver.

Mrs Ley's evidence in relation to her health can be summarised as follows. In early 2014, Mrs Ley was diagnosed with renal cell carcinoma. After a successful operation, Mrs Ley returned to work. In May 2017, Mrs Ley began to feel unwell. After some investigations and surgery to remove a blockage in her small bowel, Mrs Ley was again able to return to work. On the last day of term 3 of 2017, Mrs Ley again felt unwell. She remained feeling unwell throughout the holidays. Mrs Ley attended the first day of term 4 of 2017 on 10 October 2017. As she was driving to work that day, Mrs Ley's doctor advised her that she needed to go to hospital in order to receive a blood transfusion. On 11 October 2017, Mrs Ley's doctor advised her that her cancer had returned and that it had metastasised to her liver. Mrs Ley remained in hospital for several days and was then discharged home on a course of oral medication. She was readmitted to hospital on a number of occasions for further blood transfusions.
Mrs Ley says that by October 2017 she felt much better and had decided to attempt to return to work on 23 October 2017: Exhibit 10, at para 197. However, on the evening of 22 October 2017, Mrs Ley felt she had not recovered sufficiently to return to work: Exhibit 10, at para 204.
During the end of October 2017, Mrs Ley's doctor decided to change the treatment Mrs Ley was receiving, which required Mrs Ley to have a regular series of injections: Exhibit 10, at para 209. By early November 2017, Mrs Ley felt well enough to resume work: Exhibit 10, at para 210. Mrs Ley said that she decided not to return to work in order to see if her recovery maintained: Exhibit 10, at para 211. On 28 November 2017, Mrs Ley told Ms Eddington that she was progressing very well and that her doctor thought that Mrs Ley was 'probably fit enough to return to work': Exhibit 10, at para 221. Mrs Ley went on to say 'notwithstanding that, I thought I would not resume work as Relief Coordinator until Term 1 of 2018': Exhibit 10, at para 222.
The Tribunal accepts Mrs Ley's evidence that she was unwell between the end of term 3 of 2017 and some time prior to 28 November 2017. The Tribunal is not satisfied that Mrs Ley was unwell or unfit for work after 28 November 2017, as there is simply no evidence to suggest that this was so.
In oral evidence, Mrs Ley stated that she had provided a medical certificate from a medical practitioner to South Fremantle SHS which indicated that she was unfit for work for three months, meaning she would be unfit for work until the end of January 2018. However, Mrs Ley said that on her first day off sick, she went to the doctor and asked for a medical certificate. She said the doctor asked her how long she wanted the certificate to indicate she would be unwell and she replied 'until the end of term': ts 28, 17 September 2019. The Tribunal does not have any medical certificate before it, but on the basis that the Tribunal accepts Mrs Ley's evidence that it was given to her in October 2017, and the basis on which she says the doctor identified the period for which Mrs Ley would be unfit, the Tribunal is not satisfied that whatever the medical practitioner wrote on that certificate was in fact an accurate prediction of how long Mrs Ley would be unwell and unable to work.

The decisions made about the Relief Coordinator role

The following facts are uncontroversial and are taken from Mr Draper's witness statement: Exhibit 13. In early 2017, Mr Draper asked Ms Power to investigate the idea that relief teachers would be coordinated by a clerical officer rather than a registered teacher. A person was identified to fill the role but was then required to be allocated to other duties. After being unable to find another appropriate person to fill the role, Mr Draper decided that he wanted to use a member of the teaching staff selected to work at Fremantle College to take on the Relief Coordinator role in addition to his/her teaching responsibilities.
In November 2017, a teacher was appointed as a full time teacher at Fremantle College with the additional role of Relief Coordinator. Unfortunately, due to an increase in the number of students enrolled in Fremantle College for the 2018 year, that teacher was required to take on additional teaching commitments and no longer had any capacity to take on the Relief Coordinator role.
At about that same time, Ms Power considered another teacher who had been appointed to work at Fremantle College as suitable to take on the Relief Coordinator role, however that teacher accepted a position at another school.
In oral evidence, Mr Draper confirmed that his preference for the Relief Coordinator role had always been to use teachers that were already on staff at Fremantle College, because if the school's allocated budget was exceeded, he didn't have to carry any additional FTE for that role: ts 3637, 17 September 2019.
Ms Power's evidence was consistent with Mr Draper's evidence and confirmed the approaches considered and steps taken by the executive team in relation to filling the Relief Coordinator role up until November 2017. The Tribunal accepts their evidence on these things and finds accordingly. What happened next was the focus of some evidence and questioning.
Mr Draper said that he had run out of time to advertise the position, given that the final term of the year was coming to a conclusion and none of the staff assisting him in doing the recruiting were working during the school holidays.
On 29 November 2017, Ms Eddington sent an email to Mr Draper stating that Mrs Ley (and another person) had retired from the Relief Coordinator role. In that email Ms Eddington said that she was available and would be happy to continue in the Relief Coordinator role at Fremantle College in 2018: Exhibit 9, at page 30. Mr Draper responded that he would be happy to have a chat with Ms Eddington, possibly the next day. The Tribunal is unable to determine whether or not Mr Draper met with Ms Eddington as contemplated in that email. He could not recollect meeting with her. Ms Eddington did not attend to give evidence in these proceedings.
On 11 December 2017 Ms Power sent an email to Mr Draper suggesting that they 'just appoint [Ms Eddington] for one day per week for the term while we resolve the relief coordinator role': Exhibit 9, at page39.
Ms Power says that on 13 December 2017, she offered Ms Eddington a 0.2 FTE contract for term 1 of 2018. Ms Eddington accepted that offer. At the time, Ms Power was under extreme time, cost and workplace pressure. The Tribunal finds that the organisation of Relief Coordinator was simply not a priority for her.
Mr Draper said that Ms Eddington was to provide relief teaching and coordinate relief. She was required to first fill the role of any absent teacher herself and then coordinate another relief teacher if she could not teach the classes. Ms Power also said that the position offered to Ms Eddington was to 'organise relief and relief teach on an interim basis': Exhibit 14, at para 32.
Ms Eddington told Mrs Ley that she had been given the Relief Coordinator role for Fremantle College. Mrs Ley contacted Ms Power on 13 December and told Ms Power that 'I am now recovering' and would like to resume the Relief Coordinator role: Exhibit 9, at page 41. Ms Power responded that she had not been aware at any stage that Mrs Ley was interested in the role. She also advised Mrs Ley that the Relief Coordination position for term 1 of 2018 was finalised.
Mrs Ley sent an email to Mr Draper on 27 January 2018 advising him that she was well and able to work and asked if he had made a decision on whether to give the role to her instead of Ms Eddington. In response to that, Mr Draper forwarded the email to Ms Power and asked her '[w]here are you at with this? What are your thoughts': Exhibit 9, at page 44.
There is no record of Ms Power's response to Mrs Ley before the Tribunal, however, on 28 January 2018 Mr Draper emailed Mrs Ley and advised her:
I am sorry to hear of the difficulties you experienced at the end of last year.
I have spoken to Joanne Power today who manages our staff appointments and relief coordinator at Fremantle College about the issues that you have raised.
In regards to the relief situation. Joanne was looking into new models for relief coordination last year. Unfortunately with the business of the year she felt she could not get the new model in place for the start of the year and put in place a short term solution for Term One with a view to developing the final model after this time. We are examining all models including the use of clerical staff instead of teaching staff to coordinate the relief requirements for the college.
When we have decided on the model for relief we will then advertise the positions we require. It was never my preferred position to have an interim solution for relief however I understand that this was a better alternative than rushing the implementation.
At this stage, I believe Jo has made arrangements for the relief coordination requirements for Fremantle College for Term One.
Please feel free to make contact with Joanne if you require any further assistance or clarification on this matter.
Myles Draper
Principal
Fremantle College
In April 2018, a 0.2 FTE permanent part time teaching position at Fremantle College commencing term 2 of 2018 was advertised. Mrs Ley did not apply for this position.
Mr Draper's evidence was that this advertised positon reflected a different model of providing the relief coordination than the way Mrs Ley and another teacher had done it at South Fremantle SHS. In his written evidence he said that this was because the teacher would be expected to provide any relief teaching himself or herself first, and then coordinate any further relief teachers as necessary. In cross-examination, Mr Draper remained firm that the model for relief coordination used at Fremantle College was not the same as how it had been done at South Fremantle SHS. In response to questioning about how the role was carried out at Fremantle College, Mr Draper asserted that Ms Eddington was appointed for Term 1, and the permanent Relief Coordinator to be appointed from Term 2, were allocated their own timetable classes: ts 41, 17 September 2019.
Ms Power said in her evidence that the engagement of Ms Eddington as Relief Coordinator for term 1 of 2018 was on the basis that she would carry out that role differently from the way Mrs Ley and another teacher had carried out the role at South Fremantle SHS.
The applicant submits that Mr Draper 'embellished' his evidence by stating that Ms Eddington had timetabled classes. The Tribunal is not persuaded by that submission. Mr Draper appeared to the Tribunal to be doing his best to answer questions to the best of his recollection. He appeared to have forgotten some of the detail that was in his witness statement and had to be taken to his statement and various documents a number of times. It was apparent to the Tribunal that Mr Draper had not studied his witness statement and the relevant documents in preparation for the hearing. The Tribunal is not persuaded that Mr Draper deliberately made any false statements.
The Tribunal is satisfied that on the point of whether Ms Eddington had timetabled classes, Mr Draper simply misremembered. When making his statement, Mr Draper would have had available to him all of the documents before the Tribunal and would also have had access to any relevant record keeping systems used by the Department of Education. At that time he would have had a better recollection of relevant events than when being questioned in an assertive manner where he may have felt that his integrity and professionalism were being challenged. Where Mr Draper's oral evidence differed from his written evidence, the Tribunal prefers Mr Draper's written evidence.
The applicant seeks to make something of the fact that both Mr Draper and Ms Power said that the engagement of Ms Eddington in the Relief Coordinator role was on a different basis to that on which Mrs Ley carried out that role. It was submitted that as Ms Eddington was not engaged as a member of teaching staff with her own timetabled classes; this meant that she was being engaged to carry out the role in the same way that Mrs Ley had carried out the role at South Fremantle SHS. From this, the applicant seeks to make a number of inferences.
The Tribunal is satisfied that in fact Ms Eddington was engaged to carry out the Relief Coordinator role on a different basis to the way in which Mrs Ley carried out that role.
Mrs Ley was responsible for finding and employing relief teachers to replace teachers at the school who were absent due to illness or for any other reason. She was also required to liaise with teachers who were absent in order to ascertain when they would be returning to work and coordinate their return: Exhibit 10, at para 20.
Mrs Eddington was engaged for term 1 of 2018 to provide relief teaching herself for any absent teacher, and to coordinate others to provide relief teaching only if she was not able to provide the relief herself: Exhibit 13, at para 56; Exhibit 14, at paras 32-33.
Although Mrs Ley's contract of employment states that she was engaged as a teacher in Career and Vocational Education, her evidence was that she worked as a part time Relief Coordinator and Relief Teacher. In her oral evidence, Mrs Ley explained that teachers would call the Relief Coordinators and let them know they were unable to take a class or classes, and the Relief Coordinators would arrange for relief teachers to conduct the relevant classes. She said that there 'would be one class we could cover and I would go out and take that class or I might get someone who was free to take it': ts 30 17 September 2019. She also said that they would often start a class while they waited for the relief teacher to arrive.
In the job description for Relief Coordinator at South Fremantle SHS provided by Mrs Ley in her documents, one of the responsibilities is described as 'will take the occasional relief class or duty depending on work load': Exhibit 3, at para 1.
The Tribunal finds that Mrs Ley was not required to provide any significant or consistent relief teaching services herself. She was more fundamentally a coordinator of those services, which were mostly provided by others. She did provide some ad hoc relief teaching services but she was not expected to always provide relief teaching services in the first instance.
Ms Eddington was engaged to work at Fremantle College to provide relief teaching and to coordinate others to provide that service in addition where necessary. The applicant's counsel cross-examined Mr Draper and Ms Power, putting to them the proposition that Ms Eddington cannot have been engaged to provide relief teaching services herself because then she would not have been able to coordinate others to provide additional relief services. Mr Draper did not accept that proposition.
Ms Power accepted that Ms Eddington was engaged to provide relief coordination only: ts 78, 17 September 2019. However she went on to explain that flexibility was built in, in that she could work additional hours and provide relief teaching. Ms Power went on to say:
[APPLICANT'S COUNSEL]And you appointed her because you felt that the model she was running at South Fremantle High School could be adapted to Fremantle College - - - [POWER, MS] No. We appointed her - I appointed her, in discussion with Myles and the executive team, to continue that practice at that particular point in time, and so we could assess if that was the model we were going to continue. So she continued what she was doing - - - Yes. - - - at South Fremantle - - - Yes. Just as a stopgap measure, and that's all it was. But that's - but she continued - - -Yes. It was a stopgap, but - - - Yes. That's right. But in the first term, she continued - - -Yes. - - - as she had been carrying - - - As a stopgap, yes. As a stopgap, yes - - - As a stopgap, yes. Okay.
(ts 79, 17 September 2019)
This statement is not quite the same as in Ms Power's witness statement where she indicated that Ms Eddington was engaged to organise relief and relief teach on an interim basis. The Tribunal found both Mr Draper and Ms Power to be forthright witnesses who did their best to accurately answer the questions put to them. It is very difficult to reconcile the differences in their evidence in relation to whether Ms Eddington was engaged for term 1 of 2018 to provide relief coordination only or to provide both relief coordination and relief teaching as explained by Mr Draper and in Ms Power's written evidence. Both of those witnesses explained that it was a very busy and stressful time at the end of the 2017 school year, and that the Relief Coordinator role was not a significant matter in their minds at that time.
Ms Eddington was not called to give evidence, so the Tribunal was not assisted by Ms Eddington's recollection of events. There is no documentary evidence as to the duties that Ms Eddington was engaged to perform for term 1 of 2018.
The Tribunal finds that it is simply unable to determine on the evidence before it whether or not Ms Eddington was expected to provide relief teaching cover herself on a regular, consistent basis.

Knowledge about Mrs Ley's state of health

Mr Draper did not know, at the time that Ms Eddington was selected to fill the short-term vacancy in the Relief Coordinator role, that Mrs Ley was unwell: ts 38, 17 September 2019.
On 10 October 2017, Mrs Ley sent a message to Ms Power's phone that relevantly stated (Exhibit 9, at page 28):
Joanne
My health is not good and I have to go back to hospital on Thursday. I have no idea how long for[.]
On 14 October 2017, Mrs Ley sent an email to Ms Power in which Mrs Ley relevantly stated (Exhibit 9, at page 27):
Joanne
This email [referring to an earlier email] from me made no sense, I was extremely sick on that Tuesday so no. Wonder it is rubbish[.]
Ms Power said she did not know why Mrs Ley had to go to hospital or any details about her illness. She did not know why Mrs Ley's health was not good.
Mrs Ley sent Ms Power an email on 8 November 2017 asking for her assistance in submitting her leave application. In that email, Mrs Ley advised Ms Power that it was her intention to return to work on a Tuesday once she felt up to it, and this was why she was submitting her leave week by week.
There is no evidence that suggests that Ms Power did not receive these communications or that undermines the accuracy of the facts conveyed in these documents and the Tribunal finds that Ms Power did receive those documents.

On what ground were decisions made/actions done or not done

In early December 2017, Mr Draper and Ms Power were extremely busy and running out of time to make all remaining decisions necessary for Fremantle College to open in 2018. One of the outstanding decisions, and not a particularly important one from their perspective, was the Relief Coordinator role.
The Tribunal finds, based on Mr Draper's and Ms Power's evidence, which was maintained during cross-examination, and which the Tribunal accepts, that they intended the Relief Coordinator role at Fremantle College to be run differently to how it had been run at South Fremantle SHS. They did not want to engage a teacher to undertake primarily only Relief Coordination. They wanted to engage a teacher who provided either regular or relief teaching primarily, and also coordinated any additional relief teaching services needed. As indicated above, the Tribunal is unable to find whether this was the model under which Ms Eddington was employed for term 1 of 2018, or whether this was only to commence once a permanent teacher was engaged after the position was advertised in April 2018.
Mrs Ley considered that this model of providing relief coordination would not work. The Tribunal accepts that this is her view, and that she has a good understanding of the requirements of the Relief Coordinator role as it was conducted at South Fremantle SHS. Nonetheless, Mr Draper, an experienced teacher and principal, considered that this method was appropriate and the Tribunal is not satisfied that just because Mrs Ley considers that it would not work, that that is sufficient basis to find that Mr Draper and Ms Power did not consider that it would. Mrs Ley's solitary opinion is not a basis for inferring that Mr Draper and Ms Power did not hold the views that they did or could not reasonably hold them.

The Tribunal accepts Mr Draper's and Ms Power's evidence that the decision to simply appoint someone for term 1 of 2018 in the Relief Coordinator role was made by them and was made because they had run out of time to advertise the role. They needed a short term fix to allow for time to advertise the role on a permanent basis in term 1 of 2018. At the time they were 'incredibly busy': ts 63, 17 September 2019.
Mr Draper and Ms Power were, in late November and early December 2017, aware of only one person who had expressed to them an interest in taking on the Relief Coordinator role at Fremantle College. That person was Ms Eddington.
Ms Power had either never been advised by Mrs Ley that Mrs Ley was interested in the role, or she had forgotten that she was interested in it. The same can be said for Mr Draper. Neither Mr Draper nor Ms Power knew Mrs Ley well. Mr Draper had met her briefly once or twice. Ms Power had only started at South Fremantle SHS in term 2 of 2017 and Mrs Ley went on sick leave at the commencement of term 4 of 2017.
Mr Draper had no knowledge that Mrs Ley was on sick leave or was unwell at any time. His evidence to that effect was not challenged or contradicted.
Ms Power knew that Mrs Ley was on sick leave. She knew that Mrs Ley was very unwell and went to hospital at the commencement of term 4 of 2017. By 8 November 2017, Ms Power knew that Mrs Ley was taking leave one week at a time as she would return to work on a Tuesday when she felt she was 'up to it': Exhibit 9, at page 29. At the hearing, the following exchange took place between Ms Power and Mrs Ley's counsel:
[POWER, MS]: I go to hospital in Broome, because that's our only doctors. I'm sorry, but that didn't tell me that she was hospitalised. I would have asked the question if she had been hospitalised. [DE KERLOY, MR]: Now - - - As a caring employee - employer. I see. And so, as a caring employer, you would have asked appropriate questions about her illness - - - I would have asked why was she hospitalised. And if the information was provided to me, I would have kept that very confidential, but - - - But she has told you her health is not good - - -Yes. And is that - did you know why her health was not good - - -No. And you did - as a caring employer, you didn't ask - - - No, because she - reported to Aid Kasab, and - - - But as a caring employer, you didn't ask - - - No. I spoke to people about it, and Claire managed - you know - - - Okay - - - I was told that Judy is a very private person. But you would have been told that her condition was serious - - - No. She was off work for nearly two months. You knew that, didn't you - - - She went off work in the - October, as far as I'm aware. But, no, I wasn't told it was serious. I wasn't told what her medical condition was. And, at the time, we had a lot of people off on sick. And did you assume that she was coming back to work - - - I knew that, at the end of the year, her contract was expiring. But did you assume that she would - - - Yes, that she would come back to work, yes. Yes - - - Yes. I think we may have had some medical certificates with time dates on them. You never saw those, though, did you - - - Not that I can recall, no. Now, can I just put this proposition to you. You can agree with it or not. But I'm putting to you that you were prepared to make a deliberately false statement in that paragraph 45 initially, because Ms Ley's illness played no part in your decision-making process when you appointed Ms Eddington - - - It made no decision. It had nothing to do with the process, her illness. And are you maintaining that you did not know about the applicant's illness or her hospitalisation in October 2017 - - - I wasn't aware that she was hospitalised. Well, what about her illness - - - I was not even aware of what her illness was. But - - - Seriously. I was not aware, and I still, to this day, do not know what her illness was. And no one in the - no one in the - South Fremantle talked about Ms Ley's illness with you - - - No. Never - - - Not that I can recall, no. I think in one of the conversations or one of the emails, it says she let Aid know. Yes, 'I will let Aid know I am away'. And Aid was the deputy that she reported to. And did you have any understanding how long she would be off for - - - No. And - but you do know that Juliet Eddington had stepped into her position on a temporary basis - - - Into the role of relief coordinator, yes. Yes. On a temporary basis - - - Yes. And your assumption at that time, on 10 October, was that Ms Ley would come back into the role - - - Into the role of relief coordinator Yes - - -For that period of time, until the end of the year. And you were well aware that Ms Ley had continued to file, on a weekly basis, for leave of absence because of her illness - - - She had entered some leave via Hermes, and the dates were wrong.
(ts 83-84, 17 September 2017)
The Tribunal is not satisfied that there is sufficient evidence to make any finding that Ms Power knew or believed that Mrs Ley was or would be unwell so as to be unable to work in term 1 of 2018. The fact that Ms Power knew that Mrs Ley was currently on sick leave and was considering whether to return on a week by week basis does not necessarily equate to knowledge that the person is actually sick or unable to work. In fact, as stated above, Mrs Ley was fit to work from 28 November 2017. She had decided not to return to work until term 1 of 2018 but, on her own evidence, she no longer had an impairment within the meaning of s 4 of the EO Act. When asked if, because Mrs Ley was continued to be on sick leave, Ms Power continued to assume that she was ill, Ms Power replied '[s]he wasn't attending work': ts 85, 17 September 2019.
On 29 November 2017, Mr Draper was told by Ms Eddington that Mrs Ley had retired from the Relief Coordinator role: Exhibit 9, at page 30.
The Tribunal is satisfied that, when they made the decision to offer Ms Eddington a temporary position for term 1 of 2018 on 13 December 2018, Mr Draper and Ms Power simply did not have Mrs Ley in their minds at all. They did not know, or did not remember, that she was interested in the role. As Ms Power said at the hearing:
[DE KERLOY, MR]: And if Ms Ley's bum was on that seat, to be - if I can use your expression - - - You're most welcome to, yes. - - - she would have been appointed---I would have had the conversation with her. Yes - - - Yes. And I'm putting to you, you didn't have that conversation because - and no one is criticising you - because you just didn't think she was available because she was unwell - - - Not because she was unwell. I hadn't seen Judi. Yes - - - I had had no other conversation with Judi. No. And - - - And she wasn't in the forefront of my mind in regards to any of the roles that we were dealing with. And so without criticising, and understanding the pressures you were under, her position, or interest in, perhaps, the job was just cursorily put out of mind.
(ts 97, 17 September 2019)
The Tribunal is satisfied that the appropriate comparator to Mrs Ley in all of the circumstances of this case is a person who had a fixed term contract to provide Relief Coordinator duties at South Fremantle SHS that expired prior to term 1 of 2018, who was on some form of authorised leave from work and was therefore not working during term 4 of 2017, but was fit and able to work, and who had not advised anyone in writing that he/she was interested in performing the Relief Coordinator role at Fremantle College on a short-term basis until the position was able to be advertised.
Mrs Ley was not treated any differently to the hypothetical comparator described above. Mr Draper and Ms Power no more would have had the hypothetical comparator in mind when making an urgent, relatively unimportant, decision to fill the Relief Coordinator role at Fremantle College for term 1 of 2018 until it could be properly advertised than they had Mrs Ley in mind.
The ground, or reason, for Mr Draper and Ms Power's decision to engage Ms Eddington on an urgent and temporary basis was that she was the only person who had informed them in writing that she was interested in taking on the role. They had a problem; they needed a quick solution; they would properly advertise the position in the next term; and someone put their hand up to fix the problem. They sorted the problem out and moved on to the many other tasks and decisions they had to deal with.
This decision was very significant to Mrs Ley. It has been the focus of a considerable amount of communications as well as these proceedings because of its significance to her. It simply was not a significant decision to Mr Draper and Ms Power; it was a short-term fix on a matter of relatively low priority.
Mrs Ley considered that Ms Power, having been verbally informed earlier in the year that Mrs Ley was interested in the role, should have approached her to see if Mrs Ley was interested in taking on a short-term contract for term 1 2018 at Fremantle College. Mrs Ley asserts that even if she had not remembered that Mrs Ley was interested, Ms Power knew that Mrs Ley had been in the Relief Coordinator role at South Fremantle SHS for many years and therefore should have approached her. It would have been thoughtful if she had. However, Ms Power did not approach anyone other than the person who had written to advise Ms Power she was interested in the role. It was not because Mrs Ley was unwell, or because Ms Power thought she was unwell, that Ms Power did not approach Mrs Ley. Ms Power did not, when looking to fill the urgent, temporary role for term 1 of 2018, approach anyone. Mr Draper and Ms Power offered the role to the one person they were aware, at the time they made the offer, was interested in taking on the role.
Mrs Ley also considered that the events and conversations that occurred on 15 December 2017 on the final day of school at South Fremantle SHS are significant. Mrs Ley said that Ms Power apologised to Mrs Ley that day for not giving Mrs Ley the term 1 role at Fremantle College. In addition, she said that Ms Power spoke to Mr Mark Jeffery, who at the time was the Acting Principal of South Fremantle SHS, on that day and he also apologised to Mrs Ley and told her he would fix things. The applicant submits that these facts provide a basis for drawing 'the compelling inference' that they both realised 'that Fremantle College had not followed its own processes in relation to [Mrs Ley] in that Fremantle College had not told the Applicant about the Relief Coordinator position' and given her an opportunity to apply for it. It is submitted that they had 'wrongly overlooked her in the mistaken belief that she was ill' (quoted phrases taken from the Applicant's Closing Submissions, at paras 86-89).
Mr Jeffery was not called as a witness, so there was no opportunity for the respondent to ask him any questions about what he did or did not say or why he said it. Therefore, any hearsay evidence before the Tribunal about what Mr Jeffery said should be given very little weight. Ms Power agreed that she overheard Mr Jeffery telling Mrs Ley that a mistake had been made and that it would be corrected (ts 100, 17 September 2019), so it can be accepted that Mr Jeffery said words to that effect.
Ms Power denied that she had made any mistake. Ms Power said that her concern was the manner in which the event and the farewells were carried out and the process was very tense for everybody: ts 100, 17 September 2019. Ms Power denied that she was concerned about the process that had been adopted in appointing Ms Eddington. Ms Power did not accept that after seeing Mrs Ley on that day she went to see Mr Jeffery because she had concerns about how the temporary Relief Coordinator for term 1 2018 had been appointed. Her evidence was that she was advising Mr Jeffery that Mrs Ley was at the school, because he was conducting the farewells: ts 191, 17 September 2019. Ms Power recalled apologising to Mrs Ley but said that she apologised to her because she was clearly upset: ts 104, 17 September 2019.
The Tribunal is not satisfied that there is any sufficient basis to draw any inference from Ms Power or Mr Jeffery's words to Mrs Ley on 15 December 2017. There could be any number of reasons why Mr Jeffery might have thought the appointment of someone other than Mrs Ley to a temporary position in which he had not been involved in any way was a mistake. He may have wanted to 'fix it', but on the evidence before the Tribunal it was Mr Draper and Ms Power who made the decision to verbally offer Ms Eddington the job on 13 December 2017. It was Ms Power who confirmed with Ms Eddington that she would start in the role on Monday 29 January 2018 by email dated 25 January 2018: Exhibit 9, at page 42. On or around 27 January 2018, it was Mr Draper and Ms Power who were communicating in relation to Mrs Ley's enquiries about Mr Jeffery's offer to give Mrs Ley the role: Exhibit 9, at page 44. There is no evidence before the Tribunal to suggest that Mr Jeffery had the power to make Mrs Ley any promises about work at Fremantle College on 15 December 2017. At that time, he was the Acting Principal of South Fremantle SHS and not as a member of the executive of Fremantle College. There is no evidence to suggest that Mr Jeffery, at any point, had any role in the decisions about who would be appointed as Relief Coordinator at Fremantle College for term 1 of 2018.
In addition, if it is alleged, which is not clear, that the respondent, through Mr Draper and Ms Power, discriminated against Mrs Ley when it did not, in late January 2018, withdraw the offer of employment to Mrs Eddington and instead give it to Mrs Ley, there can be no basis to suggest that Mr Draper and Ms Power believed Mrs Ley to be unwell at that point in time, as Mrs Ley's email to Mr Draper expressly advises that she is well and able to work: Exhibit 9, at page 44. There is no evidence before the Tribunal as to why they made that decision, however it cannot have been on the ground of an impairment within the meaning of the EO Act.
The Tribunal is not satisfied that Mrs Ley has established her claim of discrimination on the ground of impairment in the area of employment as she alleged.

Orders

The Tribunal orders:
1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
11 DECEMBER 2019