Nicholls v State of New South Wales (Department of Education and Training)
[2008] NSWADT 142
•16 May 2008
Set aside by Appeal:
CITATION: Nicholls v State of New South Wales (Department of Education and Training) [2008] NSWADT 142 DIVISION: Equal Opportunity Division PARTIES: APPLICANTS
RESPONDENT
David Norman Nicholls
Donna Louise Nicholls
New South Wales (Department of Education and Training)FILE NUMBER: 051038; 051039 HEARING DATES: 6-9 November 2006; 19-23 March 2007; 2 April 2007; 19 September 2007 SUBMISSIONS CLOSED: 15 October 2007
DATE OF DECISION:
16 May 2008BEFORE: Britton A - Deputy President; Schneeweiss J - Non Judicial Member ; Monaghan-Nagle L - Non Judicial Member CATCHWORDS: Race Discrimination - in work - victimisation MATTER FOR DECISION: Principal matter LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Bogie v The University of Western Sydney (1990)
Bonella v Wollongong City Council [2001] NSWADT 194
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3
Martin v McKensey (No.2) [2003] NSWADT 126
O'Callaghan v Loder [1984] EOC 92-023
Purvis v New South Wales (2003) 217 CLR 92
Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031
Sivananthan v Commissioner of Police
NSW Police Service [2001] NSWADT 44
Waterhouse v Bell (1991) 25 NSWLR 99REPRESENTATION: APPLICANTS
RESPONDENT
I Wallach, barrister
E Brus, barristerORDERS: 1. The complaints of unlawful discrimination on the grounds of race are dismissed
2. The complaints of victimisation are dismissed.
REASONS FOR DECISION
1 Donna and David Nicholls, a married couple, were teachers at Dubbo North Public School (‘DNPS’). Both are Aboriginal people. Dubbo North is a small primary school in western New South Wales with approximately 300 students, a quarter of whom identify as Aboriginal students. The Nicholls contend that the staff of DNPS and their employer, the NSW Department of Education, unlawfully discriminated against them on the ground of race. In addition, they claim that they were victimised because they had alleged that the school had discriminated against Aboriginal students and, later, because they had lodged complaints with the Anti-Discrimination Board.
2 The Nicholls claim that throughout 2002 they became increasingly isolated within the school. This isolation culminated in a petition signed by most of the staff, including two deputy principals, accusing them of unprofessionalism and disloyalty. They contend that the Department provided them with no assistance to resolve this impasse and as a consequence their position at the school became untenable. In addition, they point to a number of decisions made by the Principal, Heather Borneman, such as refusing to allow Mr Nicholls to attend the District Sports Carnival and preventing Ms Nicholls from completing a course in the school’s reading recovery program. They claim that these alleged actions constitute unlawful discrimination and victimisation. They also claim that the decision to transfer them out of DNPS was unreasonable and made without their consent.
3 The respondent does not dispute that 2002 was an extremely trying year for the Nicholls and the staff of DNPS but rejects the contention that the actions of any of its employees constitutes unlawful discrimination or victimisation.
Scope of complaints
4 The applicants lodged two complaints with the President of the Anti-Discrimination Board alleging unlawful discrimination on the grounds of race in the area of employment (sections 7 and 8 of the Anti -Discrimination Act 1977 (the Act)) and victimisation (section 50 of the Act).
5 The first complaint was lodged on 5 August 2003 and covers the period 22 August 2002 to 5 August 2003. The second complaint was lodged on 29 September 2004 and covers the period 29 March 2004 to 29 September 2004.
Suppression orders
6 At the commencement of these proceedings we made orders prohibiting the publication of the names of any children referred to in evidence. Any child referred to these reasons in these proceedings has been given a pseudonym.
What the Nicholls must prove
7 The amended Points of Claim (2) filed on 2 June 2006 identify 23 separate incidents each of which the Nicholls contend constitute both unlawful discrimination and victimisation. Some involve only Mr or Ms Nicholls; most involve both complainants.
8 To succeed in their complaints of victimisation (section 50) the Nicholls must prove in relation to the incidents of which they complain, either separately or in combination that:
9 In the event that either complaint is found proven it falls to the Department to establish that it did not authorise the offending conduct. The only offending conduct that the Department contends that it did not authorise was the preparation and presentation of the petition and the events surrounding the March 2003 social night (Complaint 031039, Amended Points of Claim, paragraphs 4A and 9B).
The Department, through its employees or agents, subjected them to a detriment; and
It did so ‘on the ground’ of them doing or intending to do, or it being suspected that they have done or intended to do, any of the acts prescribed in section 50(1)(a)-(d) of the Act, namely:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person.
10 The complaints of victimisation and unlawful race discrimination do not stand or fall together. For example, it may be that the complaint of unlawful discrimination can be substantiated but the complaint of vilification cannot. Similarly some but not all parts of each complaint might be able to be established. That is a matter for the evidence.
11 In this matter we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the respondent. (See the remarks of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at pp 361-362. See also Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3 at [12] –[18].)
Material before the Tribunal
12 Not surprisingly, given that the complaints encompass numerous incidents alleged to have occurred over an eighteen month period and involve many people, we have had tendered to us a large volume of documentary evidence and heard a large amount of oral evidence. We have taken all evidence and all submissions into account. In the interests of reasonable economy and because we think that not all the material and arguments bear directly on the questions to be determined, we propose to refer only to those matters we regard as salient features of the case.
Background to the complaints
13 To understand the evidence it is necessary to sketch in some of the events that pre date the complaints.
14 Mr Nicholls commenced employment with the Department in 1990 and commenced at Dubbo North Public School. Ms Nicholls commenced teaching in 1988 and was appointed to DNPS in 1998. Both left the school in early 2003. In 2004 they were transferred to different schools in the Dubbo area.
15 It is not in issue that the management of DNPS and their colleagues considered Mr and Ms Nicholls to be competent, dedicated and hard-working teachers.
16 Controversy surrounding Aboriginal teaching/funding issues Throughout 2001 and 2002, the DNPS Aboriginal Student Support and Parental Awareness (ASSPA) committee made a number of allegations about the staff and management of DNPS. These included that the school had misused funds and re-deployed teaching resources earmarked for Indigenous students. In addition, numerous criticisms were levelled against Ms Jenny Munroe, the Aboriginal Education Assistant (AEA). The Nicholls, whose children attended the school, were active members of the ASSPA committee. Mr Nicholls took on the role of treasurer in 1999.
17 An evidentiary issue that falls to be determined is the extent to which these allegations and complaints were known to staff during the period covered by the complaints. Before proceeding to consider that question it is necessary to set out some background information about these allegations.
18 In 1989 the Federal and State Governments launched the National Aboriginal and Torres Strait Islander Education policy. Among other things, it was designed to improve access to, and the quality of, the educational services available to Indigenous students.
19 As part of that policy the Federal Government established the ASSPA program. Under that program the parents and carers of Indigenous children were encouraged to form school-based committees and participate in decision making at school level. ASSPA committees were eligible to apply for funding to the Commonwealth Department of Education. The ASSPA 2002 funding guidelines were tendered in these proceedings.
20 From about 1999 onwards the DNPS ASSPA committee repeatedly raised concerns about the alleged misuse of ASSPA funds. The Committee contended that, in breach of the funding guidelines, between $50,000 to $100,000 of ASSPA funding had been siphoned off for use by the school community at large.
21 Throughout 2001 and 2002 these allegations were raised with DNPS Principals Mr Bernie Rawson and from June 2002, with Ms Heather Borneman. Ms Dorrington, the Chairperson of the DNPS ASSPA committee, also raised these allegations in correspondence with the NSW Minister for Education and various officers of the Department.
22 In March 2004, the Independent Commission Against Corruption (‘ICAC’) advised the Director General of the Department of Education, that an allegation of possible corrupt conduct had been received from Mr Nicholls and it had decided not to conduct a formal investigation. A copy of those allegations was provided to the Department. Mr Nicholls had alleged that between 1990 and 1998, approximately $100,000 had been spent on activities and services that fell outside the ASSPA funding guidelines. He cited as examples the purchase of sporting and gardening equipment and ‘most of the books in the school library’. He further claimed that prior to his appointment as ASSPA Treasurer, teachers accessed funds without seeking approval from the ASSPA committee. He also made a number of allegations that did not relate directly to ASSPA funding.
23 In August 2004 the NSW Department and the Federal Department of Education, Science and Training of Education decided to conduct a joint investigation into the funding allegations. The inquiry concluded that the available information did not support ‘the possibility of criminal offences being committed’ or the claim that staff and/or teachers at DNPS had ‘exerted undue influence on ASSPA committee members in relation to ASSPA funding or expenditure’. The inquiry found that ‘a proportion’ of ASSPA funding had been ‘expended appropriately’ with the balance being either ‘expended without any record of approval or being incapable of determining’.
24 Lack of support for Aboriginal students In 2001, the Nicholls complained to then Principal Mr Rawson about what they claimed to be inadequate educational support provided to Aboriginal students. In short, they contended that programs earmarked for supporting Aboriginal students, especially in the area of literacy, had been extended to non-Indigenous students. They claimed that the tutors employed under the Department’s Aboriginal Tutor program, established to provide targeted assistance to Aboriginal students, had been directed to assist non-Indigenous students.
25 The Nicholls continued to raise these complaints throughout the course of 2002.
26 In his complaint to ICAC, Mr Nicholls asserted that only 29 of the 80 Indigenous students at the school had received assistance from Aboriginal tutors. These complaints were investigated by the Department’s Corruption, Prevention and Investigation Unit and ultimately dismissed.
27 The Nicholls were not alone in raising these issues. Allegations of a similar nature were made by Ms Dorrington. (See Ms Dorrington’s widely circulated letters addressed ‘To whom it may concern’, dated 19 April 2002 and 1 August 2002 (Exhibit 2, pages 19-22)).
28 Throughout this period, Ms Alison Carson held the position of Support Teacher learning at DNPS. In that role she oversaw a number of programs designed to support students identified as needing assistance in the areas of literacy and numeracy. Some of those programs were designed to target Aboriginal students.
29 Ms Carson gave evidence in these proceedings. She refuted the allegation that resources earmarked for Indigenous students had been used for other purposes. While she did not dispute that the Aboriginal tutors taught non-Aboriginal students, she asserted that this was because of the school’s preferred pedagogical model, namely teaching students with reading difficulties in small groups organised on the basis of ability. This, she explained, meant that Indigenous and non-Indigenous students were grouped together with some Indigenous students being tutored by her and some non-Indigenous students by the Aboriginal tutors. She agreed with the Nicholls’ contention that not all Indigenous students were provided with additional teaching support but claimed that this was because some, such as the Nicholls’ own children, had reached age-appropriate literacy benchmarks.
30 Death of Principal’s son In early 2002, Mr Rawson went on sick leave citing work-related stress. While travelling to Dubbo to visit his sick father, Mr Rawson’s son was killed in a car accident. This was a traumatic event in the school community. The Nicholls believed that some members of staff blamed them for Mr Rawson’s ill health and, in turn, his son’s death. Mr Rawson did not return to work after his son’s death and Ms Borneman took over as relieving principal.
31 Relationship between the applicants and Jenny Munroe Ms Munroe was the focus of many of the complaints made by the Nicholls and the ASSPA committee.
32 In a widely circulated letter dated 19 April 2002 which was sent to, among others, the NSW Minister for Education, Ms Dorrington attacked Ms Munroe and claimed that she:
33 In a subsequent letter dated 1 August 2002, Ms Dorrington complained that despite an address to school staff by a member of the Department’s Aboriginal Programs Unit, which she asserted made clear that ‘the AEA [Ms Munroe] should not be responsible for teaching/supervising classes or performing any other activities outside of her role as an AEA’, Ms Munroe continued to do so. She wrote that the ASSPA Committee had discovered that funds in excess of $50,000 had been misappropriated apparently as a result of the AEA ‘approving items to be purchased to help the school’ and alleged that ‘very little funding was directed at assisting Aboriginal children and their needs during this time’.
Spent little time teaching about Aboriginal culture;
Tutored non-Aboriginal students at the expense of Aboriginal students;
Gave no assistance to an Aboriginal child who could neither read nor write and had been placed in the top class in Grade 4;
Refused to take part in ASSPA activities after the Committee made a stand against the misuse of ASSPA funds in 1999.
34 Throughout the remainder of 2002 the ASSPA committee continued to write to the Minister for Education, senior officers within the Department and Ms Borneman repeating their concerns about the AEA and the teaching of and support given to Indigenous students.
35 Ms Munroe gave evidence in these proceedings and refuted those charges. She claimed that any work performed for the school community at large was undertaken in her own time. She claimed that Mr Nicholls was forever finding fault in her work. In early 2002 she complained to Mr Rawson that Mr Nicholls had called her ‘a coconut’ (black on the outside and white on the inside). On her account, her relationship with Mr Nicholls and the Committee became increasingly strained throughout 2002.
36 Mr Nicholls denied calling Ms Munroe ‘a coconut’. He claimed that he did not bear Ms Munroe any ill will but admitted he had counselled her against her apparent readiness to take on general teaching duties. He recounted this conversation with Ms Munroe:
37 In March 2002 Principal Rawson convened a meeting to deal with Ms Munroe’s complaint (about being called a coconut). Shortly after that meeting Ms Dorrington complained to Mr Rawson that she had overheard Ms Munroe speak about her in derogatory terms to another teacher. Ms Munroe denied that charge. Mr Rawson called a further meeting to discuss that complaint. Mr Nicholls attended. At that meeting Ms Dorrington commented that she ‘would not be treated like a dog anymore’ and walked out.
[L]ook Jenny if you’re getting cups of tea and … you’re putting cake on the table for the teachers … at recess time ... That’s not the right thing to do Jenny, because while you are doing that, the Aboriginal children are missing out on your assistance.
38 It is common ground that from this point on the relationship between ASSPA and Ms Munroe became increasingly strained. In an effort to diffuse the situation Mr Rawson attended numerous ASSPA committee meetings, which he is reported to have found taxing. In her capacity as Deputy Principal, Ms Borneman also attended some of these meetings. According to Ms Borneman, in the later part of 2002 she had received numerous complaints from staff that ASSPA committee members were often in the playground observing members of the teaching staff and complaining about relatively trivial matters.
39 Relationship with Ms Carson The Nicholls believed that Ms Carson was the instigator of the petition (see paragraph 2 of these reasons).
40 In or about December 2000, Ms Carson placed one of the Nicholls’ children on detention. She said that, consistent with school policy, she had warned the child not to use the play equipment without teacher supervision and when he did not comply she placed him on detention. Mr Nicholls claimed that this punishment was unnecessarily harsh. Ms Carson claims that when Mr Nicholls challenged her decision the following day she found his manner to be intimidating. While Mr Nicholls concedes that he raised the issue with Ms Carson he denied that his manner was intimidating.
41 In February 2001, Ms Nicholls wrote in the Staff Communication Book:
42 Mr Nicholls alleges that not long after those comments appeared Ms Carson accused him of being a troublemaker. He made a complaint about that incident to Mr Alan Hall, the Dubbo District Aboriginal Education Consultant. On Ms Carson’s account, it was Mr Nicholls who raised the issue with her and accused her of using Aboriginal tutors to teach non-Aboriginal students. According to Ms Carson, Mr Nicholls argued that that his two eldest children should have been placed on the ‘Aboriginal Tutor program’. On her account, neither child was eligible to participate in the program as both exceeded the benchmark for entry to the program.
… There are more non-Aboriginal children than Aboriginal children accessing the Literacy and Numeracy program, which is funded by an Aboriginal grant. Aboriginal funding is allocated to improve the educational standards of the Aboriginal children. There should be other funding available for the non-Aboriginal children.
43 Election of school captain In December 2001, one of the Nicholls’ children stood for election as school captain and missed out by a handful of votes. The Nicholls contend that an address by a member of staff allegedly urging students not to ‘vote for anyone who was popular, good at sport or who had been on detention’ was designed to undermine their son’s candidature. They believed that the teacher had set out to ‘get’ their child, and cited as examples the decision to put him on detention, and the removal of his School Councillor badge for a month. These and other incidents, they contended, jeopardised their son’s chance of election.
44 After the Nicholls complained to Mr Rawson, a fresh election was held. The result was unchanged.
45 Following that ballot, the Nicholls prepared a nine-page document, ‘We are seeking justice for [our son]’. It contained detailed criticisms of a number of staff. In March 2002, mediation was arranged between the Nicholls, Mr Rawson, District Superintendent Michael Cavanagh, and a number of DNPS teachers. Ms Carson attended as a support person for one of the teachers whom the Nicholls had accused of foul play.
46 Subsequently the Nicholls lodged a complaint about Mr Cavanagh’s conduct accusing him of treating them in a rude and dismissive manner in the course of the mediation.
47 The lock out incident In early 2002, Aboriginal tutors, Ms Iris Dunn and Ms Treschi Doole, arrived at work to discover they had been locked out of the office which they had shared with Ms Munroe since 1999. Ms Dunn testified that she was shocked and ‘felt like going home’. The trigger for the move was apparently a complaint by Ms Munroe to Mr Rawson that Mr Nicholls had used his relationship with the Aboriginal tutors to gain access to her office and rifle through her files. She believed that documents relating to ASSPA had gone missing.
48 While there are many points of difference about this incident, the following is not disputed: no explanation was offered to Ms Dunn or Ms Doole about why they had been moved; alternative accommodation was eventually offered which both considered unsuitable.
49 The relocation of the tutors was taken up by the ASSPA committee and the Nicholls. The entry by the Nicholls in the staff communication book on 18 March 2002 (Exhibit 1, page 52) gives an indication of the intensity surrounding the issue:
50 In September 2002, a meeting was convened to discuss the matter attended by Ms Borneman, Mr Cavanagh, Aboriginal Education Officer, Alan Hall, Ms Dorrington, Ms Sue Mathews from the Aboriginal Educational Consultative Group and Mr Nicholls. Following that meeting, Ms Borneman issued a written apology to Ms Dunn and Ms Doole.
… The whole situation was handled very badly and we are sad and disgusted that our fellow colleagues have been treated like this …
We have enough trouble trying to encourage Aboriginal people to come into our school and if this is the way they are going to be treated then who can blame them for not wanting to come near the place …
Approach to evidence
51 For convenience we will deal with the two complaints separately dealing first with the complaints of victimisation and then the complaints of discrimination.
Complaint of Victimisation (031039)
Claim 1: The petition (Amended Points of Claim, paragraph 4A)
52 The document, referred to in these proceedings as ‘the petition’, provides a stark illustration of the extent to which the relationship between the Nicholls and other members of staff had deteriorated by the later part of 2002. Signed by nearly all members of staff, including two members of the School Executive - Deputy Principals, Ms Betty Heylock and Ms Narelle Lloyd - it was handed to Mr Nicholls on 18 September 2002. It read:
53 A detriment? As a starting point, the Nicholls must establish that they were subject to ‘a detriment’. For our purposes, we take the word detriment to mean ‘loss damage or injury’ that is ‘real and not trivial’: ( Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,146).
We are writing to you as united members of Dubbo North Public School Staff, who take pride in working in a professional and loyal manner.
We acknowledge that you have felt hurt about some past events. However, we are disappointed and upset about the disloyalty you have shown to both the staff with whom you work and to the school, which your children attend. In particular we refer to your conversations with the parents and the general community about your perceptions of the staff and their actions.
This is unprofessional.
We request that you cease this behaviour, which is demoralising to the staff unity and is damaging the reputation of this school with the local community.
In accordance with departmental procedures, we wish to sort out this problem in a conciliatory fashion.
We desire to move forward together in a spirit of harmony, conciliation and good-will, acknowledging our diversity, but appreciating that the greatest commonality between us is our commitment to doing the best we can for all students in our care.
We have a dedicated, committed staff, wonderful parents and a hard working school community.
We owe it to ourselves, students and parents to move forward in a spirit of peace and harmony.
Dubbo North Public School is a GREAT school. Let’s keep it that way!
54 The petition accused the Nicholls of disloyalty and lacking professionalism. Most members of staff signed it and all would have known about it, as would no doubt some parents and members of the broader Dubbo community. Collective action of this type was unprecedented within DNPS.
55 The clear imputation contained in the letter was that the Nicholls were disloyal and unprofessional - in short, trouble-makers. We accept their claim that they were shocked, deeply hurt, embarrassed and offended. Their distress was compounded by the knowledge that the letter was in the public arena and could damage their personal and professional reputations.
56 Whatever the motivation for the petition its presentation to the Nicholls constitutes a detriment for the purpose of section 50(1).
57 Scope of subject allegations The Amended Points of Claim nominate the ‘act’ that the Nicholls contend caused the petitioners to subject them to a detriment as the allegations made by them that ‘the respondent had unlawfully discriminated against children at DNPS’. In written submissions, they elaborated, ‘the claims of victimisation … arise out of the activities of Mr and Ms Nicholls when they were members of the ASSPA Committee in the years 1999 to 2002. The events arising out of ASSPA Committee activities were the precursors to the events about which the complaints have been brought’. In oral submissions, the allegation about the misuse of ASSPA funds was identified as the main reason the signatories subjected the Nicholls to the detriment of the petition.
58 Throughout 1999 to 2002, the Nicholls made a number of complaints about many issues that have could be broadly described as ‘Aboriginal educational issues’. These include the decision to relocate the Aboriginal tutors; the decision to place an Aboriginal student with learning difficulties in the ‘top class’; the school’s alleged lack of commitment to NATSI week; the omission of Koori Korner from the school newsletter; and numerous complaints about their own treatment. Throughout the same period, the ASSPA Committee also raised various complaints including the failure of the school to fly the Aboriginal flag, Ms Munroe’s performance as an AEA and the allocation of Aboriginal teaching resources, to name but a few.
59 Aside from the ‘ASSPA funding allegations’, it is unclear which allegations the Nicholls assert are caught by the claim that ‘the respondent had unlawfully discriminated against children at DNPS’.
60 Section 50 of the Act is not designed to protect whistle blowers at large. Rather it protects ‘the person victimised’ who has done one of the things listed in paragraph (a) to (d) of section 50(1), in this case, alleged that ‘the discriminator’, the Department of Education, acting through its officers and employees, had breached the Act. The mere fact that the offending conduct might relate in some way to Aboriginal people, a group, who as a matter of public record have been and continue to be disadvantaged, does not elevate all allegations that have some connection with Aboriginal people to allegations of a contravention of the Act.
61 That said, consistent with the beneficial nature of the Act, in our view an overly narrow and technical interpretation of section 50 is to be avoided. This means that it is unnecessary to scrutinise each allegation and assess whether a prima facie case is made out. Rather, we think that the test to be applied is whether some part of the conduct complained of, if accepted as true, could in broad terms disclose a contravention of the Act.
62 Section 17 of the Act is relevant to this exercise. This provision makes it unlawful for an educational authority to discriminate against a person on the ground of race:
63 Section 33 might also be relevant. It makes it unlawful for a person who provides services to discriminate against another person on the ground of race:
(a) by refusing or failing to accept the person’s application for admission as a student, or
(b) in the terms on which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of race:
(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or
(b) by expelling the student or subjecting the student to any other detriment.
64 It is unclear to us how the allegations concerning the misappropriation of ASSPA funds could be said to amount to an allegation that sections 17 or 33 has been contravened. It may be arguable that the consequences of funding impropriety could result in Aboriginal students being denied or having limited access to a benefit provided by DNPS. However, a simple allegation of misappropriation of funds, in our view, would not be caught by section 50.
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.
65 Some of the matters about which the Nicholls and the ASSPA Committee made allegations could, if proven, amount to a contravention of the Act, or more specifically as ‘pleaded’ in the Amended Points of Claims, ‘unlawful discrimination by the respondent against children at DNPS’. These include:
66 We proceed on the basis that these and like allegations are caught by section 50. In these reasons, for convenience, we will refer to these allegations as the ‘subject allegations’. Consistent with the Amended Points of Claims, we will exclude any complaints or allegations concerning the treatment of the Nicholls, unless they also relate to the treatment of Indigenous students.
The allegations that Aboriginal students had been denied access to certain educational programs including services provided by the Aboriginal tutors and the AEA;
Some of the allegations about Ms Munroe. In particular, those allegations that she devoted time to assisting non-Indigenous students at the expense of Indigenous students;
The allegations concerning the eviction of the Aboriginal tutors on the basis that they constituted an allegation that Aboriginal students were taught in sub-standard accommodation.
67 Reason for petition We understand the Nicholls to rely on paragraph (c) of section 50(1) which makes it unlawful for ‘the discriminator’ to subject another person to any detriment in any circumstances on the ground that the person victimised has:
68 Accordingly, it falls to the Nicholls to establish that the signatories prepared and sent the petition ‘on the ground’ that they had made the subject allegations. It is not necessary for the Nicholls to substantiate any of the allegations. (The Department does not rely on section 50(2), which provides that section 50(1) does not extend to false allegations made in bad faith.)
alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act …
69 The words ‘on the ground of’ are critical to the operation of section 50(1). Guidance as to what is meant by that phrase is to be found in those cases that considered its meaning in the context of discrimination on substantive grounds before the 1994 amendment to the Act that inserted section 4A took effect. (Section 4A of the Act provides that where an offending act is done for more than one reason and one consists of unlawful discrimination, the act is taken to have been done for that reason. It has no application to section 50). The NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1997, (NSW) Report No 92 at [7.155-7.158] notes that before the 1994 amendment, two approaches were generally followed. The first required a determination of whether the unlawful conduct constitutes a ‘significant factor’ in the decision- making process (see O'Callaghan v Loder [1984] EOC 92-023 at 75,499; Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 at 75,569.) The second required a determination of whether one of the ‘real or operative’ grounds for doing the act was a proscribed ground of discrimination. (See the decision of Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at page 106.) More recently in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 43], the following approach was adopted: ‘it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of ... discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred’.
70 Applying the approach taken in Sivananthan, the question to be asked is: did the petitioners prepare and present the petition because the Nicholls had alleged that the Department had unlawfully discriminated against children at DNPS.
71 The evidence reveals that the signatories went to considerable lengths to prepare the petition, meeting in secrecy outside the school in their own time on at least two occasions.
72 Eight of the signatories gave evidence in these proceedings: Alison Carson, Betty Haylock, Narelle Lloyd, Jennie Martin, Jenny Munroe, Linda Parry, Carol Willcockson and Judy Sherwood. All claimed that they lent their name to the letter because they wanted a return to the harmonious environment they believed had once existed at the school. The consensus of opinion is that things started to unravel around late 2001/early 2002. All believed that the Nicholls, mainly Mr Nicholls, was largely to blame. When asked what they thought the letter might achieve, no single answer was given. Somewhat surprisingly, a number professed they had not given the matter much thought. Most said they had hoped it would lead to a round table discussion with the Nicholls. A small number thought that would be futile. Others hoped it would spur the school on to ‘do something’. Others thought it might jolt the Nicholls into recognising their part in allegedly destroying the spirit of camaraderie that had existed at the school.
73 To better understand what spurred the signatories to act, it is necessary to examine what they claimed the Nicholls had done to cause the perceived disharmony. They nominated, among other things, the alleged:
74 Most petitioners nominated the treatment of Ms Munroe as a key concern. A number testified that they had seen Ms Munroe visibly distressed after encounters with Mr Nicholls. Many believed that Mr Nicholls had subjected her to relentless and unjustified criticism. Concern for her health - she had suffered a stroke a few years earlier - was a common theme. While Mr Nicholls conceded that he had raised various issues with Ms Munroe he contended that at all times he was professional and courteous and strenuously denied that he had ever been aggressive or belligerent in his dealings with Ms Munroe.
Mistreatment of Ms Munroe;
Leaking of information to the parent community;
Interference in decisions made about the Nicholls’ children;
Criticism of the school’s Aboriginal educational programs, Ms Munroe and other related matters;
Making of trivial complaints about individual members of staff;
Complaints and subsequent agitation by the Nicholls over the 2002 school captain election including the leaking of information obtained during the mediation.
75 Some petitioners testified that Ms Munroe was not the only staff member to be subject to this type of treatment by Mr Nicholls. Ms Judy Sherwood, the school’s cleaner, claimed that she had seen a number of teachers visibly distressed following an altercation with Mr Nicholls.
76 As noted, the allegations raised by the ASSPA committee were also nominated by some petitioners to be an issue of concern. They conceded they had some knowledge of the various issues raised by the Committee and the Nicholls’ involvement. Ms Carson, Ms Lloyd and Ms Munroe considered that the Committee had made repeated and unwarranted attacks on the educational programs provided to Aboriginal children at DNPS. It is apparent from their evidence that they saw these criticisms as attacks on their personal and professional integrity.
77 A small number perceived that they and the school had been accused of racism by sections of the parent community and that the Nicholls, by allegedly leaking information, were responsible for this.
78 The evidence reveals the diversity of views about what the petitioners saw as the problems at DNPS throughout 2001/2002. The evidence given by Ms Carson, Ms Lloyd and Ms Willcockson highlights this point.
79 Ms Carson said she was ‘disappointed and bewildered’ by the constant criticism of the support programs introduced for Aboriginal students. She believed that the attacks on the Aboriginal literacy program were baseless and were undermining the work of the Support Teaching Learning Unit, which she headed. She believed the school captain issue was a trigger for the subsequent division within the school community and alleged that Mr Nicholls had inflamed the situation by gossiping to parents.
80 Ms Lloyd, Head of the school’s Unit for Emotionally Disturbed Children, had significant involvement in the ASSPA committee often representing the principal at those meetings after Mr Rawson went on sick leave. She claimed that while she was aware that the Nicholls were involved in the ASSPA committee, she did not know that they had been involved in the allegations surrounding the misuse of funds. In cross-examination, she denied that ‘ASSPA issues’ were one of the reasons she signed the letter, although she conceded that she believed that DNPS had become a less harmonious place at around the time the Committee started to raise allegations about the misuse of funds. On her account, she signed the petition because she wanted the tension to stop and believed that Mr Nicholls had upset many staff members.
81 Ms Willcockson claimed that she signed the letter out of concern for the well being of staff members, Ms Munroe in particular. Her evidence makes it clear that she was not well disposed to Mr Nicholls who, in her opinion, was largely responsible for Mr Rawson being forced to take indefinite sick leave. In evidence she denied blaming Mr Nicholls for the death of Mr Rawson’s son but conceded that she believed there was a connection between it, the Principal’s ill health and the Nicholls’ actions.
82 For a number of reasons, it is difficult to assess why the staff of DNPS decided to join together and take the unprecedented step of writing to the Nicholls.
83 First, it is not possible to discern from the evidence who, if anyone, took a leading role in organising the petition. This is relevant as the motivation of that person or persons might shed some light on what spurred the signatories into action. All signatories testified that the letter represented a collaborative effort and denied that any one person had initiated it. Given the logistics of organising 20 people to meet outside work, in their own time, it is improbable in our view that the letter could have eventuated without some form of leadership or at best coordination. Given the passage of time it would be unsurprising if some petitioners had forgotten the details about how they came to meet and discuss the petition. However, we think that some were not entirely candid in their accounts, probably because they were seeking to protect the instigator or instigators of the petition. Nonetheless, on the evidence available to us we could not be satisfied that, as the Nicholls believe, that Ms Carson played a pivotal role. Nor are we able to identify any other person or persons who might have.
84 Second, the sheer volume and scope of the complaints and allegations made by the Nicholls makes it difficult to pinpoint which, if any, propelled the petitioners into action. The report prepared by Mr Cavanagh to the Minister in November 2002 provides a snapshot of the issues raised by the Nicholls in the period leading up to the petition. It reveals, that since late 2001, the Nicholls had made at least 22 separate allegations many of which could not be said to constitute subject allegations. These include the allegation concerning the treatment of the Nicholls following the announcement of the death of the Principal’s son, the decision to suspend lunchtime football and the decision to issue the Nicholls with copies of the Code of Conduct following criticism of their conduct after the mediation about the school captain issue. It is not possible to say whether all or at least some of the petitioners were aware of all allegations listed in Mr Cavanagh’s report (or more correctly those that predate the petition). However, it is evident that most had some knowledge of the matters complained about. Indeed, the evidence suggests that for many it was the volume and what they saw as the trivial nature of some of the complaints that caused them to act.
85 The evidence given by Deputy Principal, Mr Paul Murrell, provides some insight into the views of the staff. Mr Murrell had refused to sign the petition and thought his fellow Deputy Principals had been unwise to do so. He said he did not participate in staff gossip but when pressed he conceded that he had overheard comments in the staffroom to the effect that the Nicholls were upsetting the running of the school by ‘the huge number of unconfirmed, unproven complaints that they were making’.
86 There is some evidence to indicate that some signatories saw the Nicholls’ part in championing the constellation of allegations that loosely could be described as the ‘ASSPA allegations’ as the cause of the disharmony within the school. Given the serious imputations carried by these allegations, it is implausible that they played no role in the division among staff.
87 That said, the evidence does not in our view support a finding that most staff saw those allegations as the main cause of the division within the school. Rather it seems to us that the petitioners were motivated to act for a diversity of reasons, some of which had no connection with the subject allegations. To the extent that it is possible to identify a dominant reason, it seems to us that it was the perceived mistreatment of Ms Munroe and, to a lesser extent, other staff. Many of the petitioners believed that Mr Nicholls had relentlessly attacked a colleague, and in doing so had overstepped the mark. To a person they sided with Ms Munroe. It may be that Ms Munroe was unduly sensitive to criticism, or staff concern was coloured by concern for her health or, that some or all of the complaints about her were justified but whatever the truth, the consensus of opinion was that Mr Nicholls’ treatment of Ms Munroe was unacceptable and a major source of friction within the school.
88 We accept as argued for the Nicholls that some staff saw the funding allegations as a ‘major event’ within the school. However, the evidence does not in our view support a finding that this was a uniformly held view. The evidence indicates that some staff had only, at best, a peripheral knowledge of the allegations. It is to be recalled that the complaint to ICAC was not made until some 18 months after the issue of the petition.
89 It is notoriously difficult to identify the main or dominant reason a large number of people decided to take a particular course of action. This case is no exception. The evidentiary burden of establishing that it was because they had made allegations that the Department, its officers or staff, had ‘discriminated against children at DNPS’ lies with the Nicholls. Having carefully considered the evidence, we are not satisfied that on the material before us that that was the case.
90 Given these findings, it is not necessary to determine whether the Department is liable for the conduct of the petitioners (section 51 of the Act).
91 Accordingly, this part of the complaint is dismissed.
Claim 2: Failure to take steps to resolve dispute/ propose mediation (Amended Points of Claim, paragraph 8A)
92 Paragraphs 8 and 8A of the Amended Points of Claim read: ‘On 20 December 2002, the complainants alleged that the Respondent discriminated against/victimised [them] by not undertaking mediation between the Complainants and the other parties but only seeking to transfer the two complainants without any negotiation to other schools’. Read together with the initiating complaint and the submissions made for the Nicholls, we understand this claim to refer to the failure of the school to offer mediation or any other form of dispute resolution and that it is not confined, as the Amended Points of Claim might indicate, to events that occurred on 20 December 2002.
93 Despite the Nicholls’ requests after receiving the petition, mediation or other form of alternative dispute resolution was not attempted.
94 The Nicholls contend that the failure of the Department to intervene meant that the problem within the school festered, making their position untenable. They identify three people as responsible for what they characterise as Departmental inertia: Ms Borneman, Mr Cavanagh and Mr Tom Urry, the then Relieving Director, School Operations.
95 Events following petition To put this claim in context it is necessary to sketch in some key events that followed the presentation of the petition.
96 Shortly after receiving the petition the Nicholls wrote to all signatories in the following terms:
97 As noted, shortly after receiving the petition the Nicholls wrote to the Minister for Education alleging they had been ‘victimised’ and detailing 22 separate allegations including the ‘defamatory petition being organised by an identified member of staff and approved by the relieving principal’. That letter was referred to Mr Cavanagh for advice.
[W]e are writing to you as two four year trained senior teachers with degrees and 38 years of teaching experience between us. We take a great deal of pride in being honest, fair and very professional in everything we do.
We also believe that we are respected by the children and parents of Dubbo North Public School because we are committed to providing a happy and safe learning environment.
We have never damaged the reputation of the school within the local community. Our children attend this school and we only want what is best for them. As parents you would be aware of how important it is to protect your children from harmful situations.
We would also like Dubbo North Public School to be the best school in Dubbo.
Your allegations are very damaging to the reputation that we have developed with the children, staff and parents of Dubbo North Public School over the last ten years and we were very upset when you challenged our integrity in your letter to us.
Yes, we do have many friends, both Aboriginal and Non Aboriginal whom we associate with through our children in sport and the ASSPA Committee which we are members of.
Your comment relating to past events about us feeling hurt indicates that you may be aware of confidential information. Let us remind you, that our complaints are legitimate and are being dealt with in an appropriate manner at the highest level. ("Confidentiality is restricted to those who genuinely need to know" (Responding to Suggestions, Complaints and Allegations 2001, p. 37).
Please remember that when there are disputes, there will always be two points of view. If you choose to side with those who only have the knowledge of one point of view then you are being extremely unfair. According to departmental policy we have, "The right to an impartial investigation and decision making process and the right to an absence of bias in the decision maker (Responding to Suggestions, Complaints and Allegations. 2001, p.37).
We strongly agree that we should move forward together as a professional team to ensure that we provide a quality education for all children at Dubbo North Public School. However, we were disappointed and saddened by your method of approach.
We recommend that you, being a signatory to the letter dated 17/9/2002, make yourself available to attend a mediation, which will be carried out by an independent body outside the Department of Education and Training to ensure Procedural Fairness/Natural Justice. During this process you will be given the opportunity to explain how Mr and Mrs Nicholls have been disloyal and unprofessional. You will also be given the chance to explain how Mr and Mrs Nicholls damaged the reputation of Dubbo North Public School and demoralised staff unity.
"Victimisation of a person for making a complaint or allegation is unacceptable ... it is Government and Departmental Policy to support persons making complaints ... 'the taking of detrimental action substantially in reprisal for the making of a complaint or allegation can be grounds for disciplinary action" ('Responding to Suggestions, Complaints and Allegations 2001' p. 38).
98 In a report, dated 20 November 2002, Mr Cavanagh commented:
99 Mr Cavanagh concluded:
The letter [the petition] was written without the relieving principal’s knowledge. The organiser has never been identified. The letter was a request by staff members for conciliation within DET guidelines. Mr and Ms Nicholls could resolve this issue according to the DET’s ‘Responding to Suggestions and Complaints Process’.
100 Acting on Mr Cavanagh’s advice the Minister replied to the Nicholls, noting that ‘many of the issues you raise had already been dealt with by the principal and relieving principal’ and advised that any further complaints should be made according to the Department’s ‘Responding to Suggestions, Complaints and Allegations Policy’ (‘the Complaints policy’).
Victimisation cannot be substantiated. These claims are vindictive and continue a pattern of unsubstantiated claims, which commenced in Term 4, 2001. The continued stress placed on staff because of the aggressive nature of the allegations has resulted in two members of staff taking stress related sick leave.
Staff members have now indicated that they would be unwilling to meet with Mr and Ms Nicholls in mediation because of a fear of reprisal and a history of breach of confidentiality by Mr and Ms Nicholls after previous mediations.
101 On 2 December 2002, the Nicholls lodged a formal complaint under the Complaints policy against all petitioners requesting ‘that [they] substantiate the allegations made about us in [the petition]’. All signatories replied in identical terms asserting they ‘had not signed a petition’.
102 On the same day, the Nicholls also lodged a formal complaint against Ms Carson and asked for her to explain why, as ‘the main support person for the main respondent in our complaint concerning our son approached the principal to seek permission to organise a petition against us’. [Ms Carson attended the 2002 mediation as a support person for one of the teachers whom the Nicholls alleged had tried to influence the outcome of the school captain election]. She replied ‘I categorically and emphatically refute the allegations stated in your letter dated 2.12.02’. On 12 December 2002, Ms Borneman wrote to the Nicholls stating that Ms Carson had shown her a copy of that complaint and denied that Ms Carson had approach her about organising the petition. The Nicholls wrote to Ms Borneman requesting a meeting with Ms Carson and were subsequently advised that it would be delayed due to her ill health.
103 On 18 December 2002, 18 staff members (apparently the original petitioners), wrote to Mr Cavanagh asking, ‘What measures are to be put in place to prevent future harm to our health and safety in 2003?’
104 Appointment of Mr Urry In early December 2002 Mr Urry was appointed to investigate the complaints made by and against the Nicholls. Shortly after his appointment Ms Borneman was instructed to refer any further complaints to him.
105 According to Mr Urry, the Nicholl’s then solicitor, Mr Tony Simpson, in a phone call on 10 December 2002 told him his clients ‘felt ganged up on’ and that he believed a ‘clean transfer’ was the best solution. According to Mr Urry, the following day Mr Simpson confirmed the Nicholls’ interest in a transfer. He claimed that through Mr Simpson he invited the Nicholls to put in a transfer request for none was received. The Nicholls denied telling Mr Simpson that they were interested in a transfer.
106 According to Mr Urry, following these discussions, despite repeated attempts on his part, he did not hear from the Nicholls or their solicitor until 10 March 2003 when he received the following facsimile from the Nicholls:
107 Mr Urry replied that staff were not prepared to meet and it is ‘not acceptable to force people to participate in this process [mediation]’ but undertook to see if that position had changed.
… We thought you were coming to speak with us at the beginning of 2003.
We are still waiting for our solicitor to contact you requesting an independent mediator to be asked to come in and see us.
We have never been heard!!!
108 According to Mr Urry, a week later Mr Simpson again advised that he believed that a transfer was the best option. The following day Mr Urry met with Mr Nicholls and asked him to consider a transfer. According to Mr Urry, Mr Nicholls said he would talk the matter over with his wife.
109 Shortly after this, Mr Urry wrote to Mr Nicholls stating that he had contacted Mr Cavanagh and that a transfer to Dubbo South Public School might be able to be arranged. Mr Nicholls testified that despite being pressured by Mr Urry, at no time did he indicate that he was prepared to consider transfer.
110 Throughout this period, Mr Urry was also investigating complaints made by and about the Nicholls. On 9 April 2003, he wrote to Ms Lloyd, Ms Singh, Ms Willcockson, Ms Carson, Ms Borneman, Ms Haylock and Mr Cavanagh and advised them of the particulars of the complaints made about each of them by the Nicholls, which had been received in the early part of 2003.
111 On 7 April 2003, a petition signed by over 50 parents was presented to the Department expressing support for the Nicholls and concern with their absence from school.
112 On 9 April 2003, at the instigation of the Teachers Federation, a meeting was held in Sydney attended by the Nicholls, Mr Urry and Federation officials. At that meeting, the Nicholls tabled a document headed ‘Particulars of Complaints’. According to Mr Urry, the focus of that meeting was the prioritisation of those complaints. He claims that the Nicholls made no mention of race discrimination at that meeting.
113 On 15 May 2003, Mr Urry wrote to Assistant Director General, Primary Education, Dr Phil Lambert, and recommended that the Nicholls be transferred ‘away from DNPS … to facilitate a more positive welfare and working environment for Mr and Mrs Nicholls and the staff at DNPS’. He also advised that the allegations made against Ms Lloyd, Ms Singh, Ms Willcockson, Ms Carson, Ms Borneman, Ms Haylock and Mr Cavanagh were found not to have been substantiated or resolved.
114 Subsequently, the Nicholls wrote to the Minister for Education alleging that Mr Urry had been biased against them. That complaint was referred to the Department’s Deputy Director General, Dr Alan Laughlin, who dismissed the complaint.
115 On 29 May 2003, the Teachers Federation wrote to Dr Lambert and proposed, among other things, that when the Nicholls were fit to return to work that Mr Nicholls be transferred to Dubbo College and Ms Nicholls to a primary school of her choice in the Dubbo area.
116 Subject to a detriment? It is not in dispute that following the presentation of the petition the relationship between staff and the Nicholls went into freefall.
117 It was or should have been apparent to the Department that without some form of intervention, reconciliation would not have been possible and as a consequence it would be untenable for the Nicholls to remain at DNPS.
118 Whatever the reason for the inaction, by failing to intervene and attempt to broker a peace, the Department subjected the Nicholls to a detriment.
119 Reason for Inaction To succeed in their complaints of victimisation the Nicholls must establish that the reason the Department, through its officers, did not canvass mediation or the like was because they had alleged that the Department had unlawfully discriminated against children at DNPS.
120 The parties differ on the reason mediation was not attempted. The Department argues that the explanation was simple: staff refusal. The Nicholls claim that it is disingenuous that mediation was ever seriously promoted and argue that the reason for that was because Departmental officers, Ms Borneman and Mr Cavanagh, in particular, had sided with the signatories.
121 The evidence reveals that the efforts made to encourage the parties to sort out their differences were at best minimal. At its highest, Ms Borneman’s evidence is that she spoke to at most six signatories who all refused to meet with the Nicholls. Mr Cavanagh claimed that he made some efforts and raised mediation with about half the petitioners. His claim sits uncomfortably with other evidence. First, Mr Cavanagh admitted that he was unable to find out until these proceedings commenced who signed the petition. Second, under cross-examination, Mr Cavanagh could name only one teacher he had approached. Third, he saw his role as limited. He claimed that he had been directed by his supervisor that it was the ‘principal’s issue’ and he was to help but not become involved. Somewhat remarkably, he stated that things would have been different had a ‘formal complaint’ been made and that then he would have been obliged to take action.
122 The history of Mr Urry’s involvement in the dispute makes it plain that he formed the view early on, based on advice given by Ms Borneman, that staff were unwilling to entertain mediation. He did not raise the issue directly with staff until May 2003.
123 Nor does the evidence given by the petitioners support a finding that energetic steps were taken to encourage resolution. Most claimed that they had hoped that signing the petition would lead to a round table discussion. Ms Munroe, Ms Parry and Ms Sherwood said that that they had never been approached by any officer of the Department about mediation. While the other signatories were not questioned on this point, none indicated that Ms Borneman or anyone else from the Department had encouraged them to discuss the matter with the Nicholls.
124 In our view, in evidence Mr Cavanagh and Ms Borneman overstated the efforts they made to resolve the dispute between staff. As Mr Cavanagh’s report to the Minister makes clear, he had formed the view early on that the Nicholls’ complaints were ‘vindictive’ and continued ‘a pattern of unsubstantiated claims’. He saw no role for the Department unless a formal complaint was lodged - an approach Mr Urry considered to be ‘less than ideal’.
125 It is not possible to say with any certainty whether had dispute resolution been encouraged staff would have agreed to participate or, if they did, the dispute would have resolved. What is clear, however, is that without some intervention the likelihood of resolution was at best remote. The key question, however, is not whether prompt action could have resolved the dispute but whether the reason for the Department’s inaction was, as the Nicholls claim, the subject allegations.
126 We think it more probable than not that by the time the petition was received both Ms Borneman and Mr Cavanagh saw the Nicholls as trouble-makers and felt worn down by their complaints and allegations. By that time, they regarded the Nicholls, and Mr Nicholls in particular, as querellents. Mr Cavanagh says as much in his report to the Minister: ‘the [Nicholls’] claims are vindictive and continue a pattern of unsubstantiated claims’ (Exhibit R 26, TU 7, Tab A), and as Ms Borneman was to report to Mr Urry in mid-December, ‘numerous complaints [were] being fired in by the Nicholls about old issues’ (Exhibit R 26, TU 2 page 2).
127 The more difficult issue is the role, if any, the subject allegations played in their failure to act. Both Ms Borneman and Mr Cavanagh knew of, and were implicated in, some of subject allegations - for example, the allegations concerning the relocation of Ms Dunn and Ms Doole. Similarly, both knew of and were named in allegations that could be not be characterised as subject allegations, for example the allegations surrounding the conduct of the 2001 school captain elections.
128 It is often difficult to identify with any certainty what caused one person to form a poor opinion of another. This is no exception. The decision-making process, which led to the formation of the opinion, is not always rational or even conscious. In this case, it is not an easy task to determine why Mr Cavanagh and Ms Borneman held a poor opinion of the Nicholls. The volume and perceived trivial nature of the complaints/allegations at large were factors, as no doubt were the subject allegations. The latter, especially those where Ms Borneman and Mr Cavanagh were personally implicated, were serious in nature and no doubt seen as such by both officers.
129 The poor opinion of the Nicholls in our view was not the sole reason for the inaction. Ms Borneman, then new to her role, seemed to lack the insight, experience or leadership skills necessary to broker a peace among staff. Mr Cavanagh was at pains to distance himself from the dispute at DNPS and to leave the problem to Ms Borneman to sort out.
130 The evidence does not support a finding that Mr Urry formed the same poor opinion of the Nicholls, at least when he first arrived on the scene. It is to be remembered that by the time he came on board no action had been taken in relation to the petition for over two months, further complaints had been made and the relationship between staff had deteriorated even further. It seems to us that he did not seek to intervene because first, he concluded - in our view not unreasonably - that the time for mediation had passed; second, he had accepted the advice of Ms Borneman that staff had refused to participate in mediation; and third, he had heard through the Nicholls’ solicitor that they were amenable to a transfer. While the Nicholls, as claimed, might not have given their solicitor those instructions, there is no evidence to contradict Mr Urry’s claim that this is what he was told.
131 We agree with the proposition put for the Nicholls that the failure of the Department to intervene meant that their departure from DNPS was inevitable. We accept that the subject allegation was one of the reasons Mr Cavanagh and Ms Borneman failed to act. However we could not be comfortably satisfied that this was ‘real or operative’ reason for the inaction or that, put another way, ‘but for’ these allegations the Department would have at least attempted to resolve the dispute.
132 Accordingly, this part of the complaint is dismissed.
Claim 3: Principal ignores the Nicholls’ complaint (Amended Points of Claim paragraphs 7B)
133 In late December 2002, Ms Borneman, at the request of the Nicholls, distributed written complaints to nominated staff members. The following day she returned the letters at the request of the Nicholls with an accompanying note recording that the complaints had been withdrawn. Subsequently, Ms Borneman informed Mr Urry that the Nicholls had withdrawn their complaints.
134 Soon after receiving the note Mr Nicholls contacted Ms Borneman and advised that she was mistaken, the complaints had not been withdrawn - he had simply asked for the letters to be returned so that copies could be made. He then provided Ms Borneman with copies of the letters, which she distributed to staff, as requested.
135 Ms Borneman updated Mr Urry on this development.
136 A detriment? At its highest the loss suffered by the Nicholls would appear to be the possibility that Mr Urry put his enquiries on hold for 24 hours. In our view, any loss suffered was trivial. For this reason, we are not satisfied that the Nicholls were subjected to a detriment.
137 Accordingly, this part of the complaint is dismissed.
Claim 4: The Nicholls provided with unsolicited employment advertisements (Amended Points of Claim, paragraph 5A)
138 Throughout term 4 of 2002, the Nicholls received what they believed to be an unusually large number of unsolicited recruitment advertisements for teaching positions outside DNPS. They saw this as a none-too subtle hint that they were no longer welcome at the school. They assert they were the only teachers to receive this volume of advertisements, basing this claim on the noticeable absence of advertisements in the pigeonholes of other staff members.
139 Ms Dianne McNobe, a teacher at West Dubbo Infants School was called by the Nicholls to give evidence. She testified that when the Nicholls raised this issue with her towards the end of 2002, she advised that she had not received the same volume of advertisements. Ms McNobe identifies as an Aboriginal person and at that time had been teaching for two years.
140 Ms Borneman does not dispute that unsolicited advertisements were provided to the Nicholls but denies any sinister motives. She claimed it was her practice to alert staff to any Departmental vacancy they might be eligible to apply for. She claimed that it was not unusual for the number of advertised positions to be higher at the end of the school year than at other times. On her account, some positions specified Aboriginality as a mandatory selection criterion and this would explain why the advertisements provided to the Nicholls were not distributed to all staff.
141 A detriment? No doubt by the end of 2002, Ms Borneman would have been relieved if the Nicholls had accepted positions outside the school. It does not follow however that providing unsolicited advertisements constitutes a detriment.
142 There is no evidence to contradict the claim that it was common practice for internal vacancies to be brought to the attention of eligible staff. That the advertisements were not widely distributed is not surprising given that as agreed Aboriginality was a mandatory or desirable criterion for many of the advertised positions. That Ms McNobe did not receive the same volume of advertisements as the Nicholls is inconclusive given that many of the positions called for greater experience than she possessed at the time.
143 There is no evidence that the vacancies were invented to entice the Nicholls out of DNPS. Nor is there any evidence that the Nicholls were penalised or subject to any adverse treatment because they did not apply.
144 That the Nicholls viewed the advertisements as yet another example that they were unwelcome in DNPS is not surprising given the events, which had transpired, in the latter part of the school year. However, we are not satisfied that the provision to the Nicholls of unsolicited advertisement constitutes a detriment.
Claim 5: Intimidation by staff (Amended Points of Claim, paragraph 9B)
145 On 14 February 2003, a notice was placed on a staff notice board inviting staff to attend a dinner at a local restaurant and to indicate their interest by placing their name on a list. Within 24 hours of the Nicholls putting their names on the list, five names were removed.
146 A detriment? We accept the Nicholls’ claim that they were deeply hurt and embarrassed by their colleagues’ indecent haste to withdraw from the social night once their attendance had been announced. We are satisfied that the Nicholls had been subjected to a detriment.
147 Reason for removal The staff who removed their names from the list were Ms Borneman, Ms Lloyd, Ms Munroe, Ms Willcockson and Mr Rawson, whose name had been added by Ms Willcockson. Each gave a plausible explanation for withdrawing from the evening. All denied not wanting to socialise with the Nicholls. Ms Borneman claimed that she withdrew her name after being reminded by her husband that they had planned to visit Canberra for their son’s birthday. Ms Munroe claimed she became aware she could not attend when told by her husband that he had made arrangements to visit his family in Nyngan. Ms Lloyd said she took her name off once she realised that she had promised to drive her daughter to Sydney who was leaving on an overseas trip. Ms Willcockson said she could not attend as the dinner clashed with a long-standing commitment to travel to the coast with her husband to celebrate Mr Rawson’s birthday.
148 There is some strength in the Nicholls’ contention that it is improbable that five staff members could not only have overlooked significant family and social commitments but realised that they had and acted to correct the oversight within hours of each other.
149 Given the events of Term 4 2002 it is not surprising that some staff might have been reluctant to attend a staff dinner with the Nicholls.
150 Even if the Nicholls’ suspicions were correct, it does not follow that the names were removed because they made the subject allegations. By the time the names were removed from the list it is apparent that relationships within the school had gone from bad to worse. Complaints and counter complaints had been exchanged.
151 It might be that one of the reasons staff withdrew from the dinner was because the Nicholls had made the subject allegations. However, for essentially the same reasons we gave at paragraphs [67] – [89] of these reasons we are not satisfied that, but for those allegations, the names would not have been removed.
152 Accordingly, this part of the complaint is dismissed.
Claim 6: Nicholls prevented from raising issues relating concerning their children’s education with school (Amended Points of Claim, paragraph 14B)
153 The Nicholls contend that in late 2002 they sought to discuss their son’s progress at school with Ms Borneman. They asserted that he been in the care of an inexperienced teacher and his academic performance had suffered as a consequence. They claimed that when they received no response from Ms Borneman they had no option but to lodge a formal complaint against the school. Two months later, they wrote to Ms Borneman seeking an acknowledgement of the complaint. Ms Borneman replied that after ‘thoroughly investigating your claim that the school has not provided an adequate education for your son …[I] have found your claim is not substantiated’. Ms Borneman invited the Nicholls to discuss the matter further. The Nicholls replied that they were not satisfied by that response and were then told their complaint had been referred to Mr Cavanagh.
154 Ms Borneman gave evidence that she spoken to the teacher of the Nicholls’ son and concluded that the complaint was baseless.
155 Findings and Conclusions As we understand it, the alleged detriment was the failure by Ms Borneman to properly investigate the complaint in a timely fashion.
156 From the evidence before us, it is not possible to say whether, as claimed, Ms Borneman did not properly investigate the complaint. But even if we were to accept that she dealt with the complaint in a perfunctory manner, we could not be satisfied that the reason for doing so was because the Nicholls had made the subject allegations.
157 Therefore this part of the complaint is dismissed.
Claims relating to Ms Nicholls
Claim 7: Removal of Ms Nicholls as reading recovery teacher (Amended Points of Claim, paragraph 2A)
158 In 2002, Ms Nicholls commenced a two-year reading recovery course sponsored by the School. She claimed that mid-way through the course Ms Borneman terminated her enrolment without consultation. On Ms Nicholls’ account, she first learnt of that decision in August 2002 when asked by the reading recovery tutor why she would not be continuing. Ms Nicholls claimed that she promptly raised the issue with Ms Borneman who confirmed that she had decided to enrol Ms Munroe in the course in 2003. Ms Nicholls conceded that she did not ask Ms Borneman directly if she was to be replaced and left the conversation having decided that, to avoid further confrontation, it was best that she relinquish her position.
159 According to Ms Borneman, she had never intended to replace Ms Nicholls. On her account, she put in a bid for training a second teacher after hearing that additional funding might become available and nominated Ms Munroe who had expressed interest in moving into a teaching role.
160 Under cross-examination, Ms Borneman said she could not recall how she came to learn that Ms Nicholls might not be continuing in the course. On her account, she recalled that Ms Nicholls had told her at various times that she found the course ‘a bit much’ because of family and teaching responsibilities, a claim Ms Nicholls strenuously denied.
161 Findings and conclusions The best evidence is that on learning that Ms Munroe was to be enrolled in the reading recovery course, Ms Nicholls concluded that she had been replaced and rather than confront Ms Borneman decided not to continue with the course. Ms Borneman did not attempt to persuade her to change her mind.
162 While this incident provides one of a number of examples of the poor relationship that had developed between Ms Borneman and Ms Nicholls in the later part of 2002, we cannot be satisfied on balance that Ms Nicholls’ enrolment was terminated by Ms Borneman or that the reason for failing to encourage Ms Nicholls to remain in the course was because she had made the subject allegations.
163 Accordingly, this part of the complaint is dismissed.
Claim 8: Principal ignored Ms Nicholls’ teaching preferences (Amended Points of Claim, paragraph 6A)
164 As was usual practice in late 2002, all teachers at DNPS were invited to nominate three preferred classes for the following year. Ms Nicholls was allocated a composite Year 1/2 class, which was not one of her choices. She was the sole teacher not to be allocated one of their preferred classes in 2003.
165 Ms Nicholls claimed that this was the first time in her teaching career that she had not been allocated one of her class choices. No evidence was led to contradict that claim.
166 According to Ms Borneman, Ms Nicholls was appointed to teach the 1/2 class because in her opinion she was best placed to do so because of her skill and experience. She stated that, in her opinion, the other available teachers, Ms Ann Long and the causal teacher who would be replacing her if she continued as relieving Principal, were better placed to teach what she believed to be the less challenging straight Year 1 and 2 classes. This arrangement, Ms Borneman argued, enabled Ms Nicholls to mentor Ms Long and support the casual teacher.
167 A detriment? The evidence shows that as a general rule the class preferences of staff were accommodated. Objectively viewed, not being allocated a nominated class constitutes a detriment.
168 We address the reasons for this decision below.
Claim 9: Ms Nicholls not provided with teaching support (Amended Points of Claim paragraph 10A)
169 In 2003, Ms Nicholls was not allocated any ‘class support’ that is, support from teaching aides, Aboriginal tutors or the Learning Support Teacher. As a consequence, she enlisted support from parents. While the help was welcome, in Ms Nicholls’ opinion it was not ideal. Ms Nicholls claimed that she could not recall any instance of class support not being allocated to an infant class at DNPS.
170 Ms Borneman claimed the reason support was not provided was because resources were limited and priority had to be given to classes with the greatest need. She argued that Ms Nicholls’ class did not have the same need for support as it was made up of the more academically able students and that this had been explained to Ms Nicholls.
171 A detriment? Objectively viewed, by not providing Ms Nicholls classroom support, she had been subjected to a detriment.
172 On the grounds of Ms Borneman’s explanation for not giving Ms Nicholls at least one of her class preferences or any teaching support are plausible. The allocation of classes required various factors to be taken into account including the skills, experience and interests of individual teachers and the needs of students. However, as the evidence reveals, the management of DNPS was generally able to balance those factors and at the same time accommodate staff preferences. In regard to teaching support, like any state primary school, the teaching resources in DNPS were finite.
173 We note that, on the evidence, both of these decisions ran contrary to established practice.
174 Ms Borneman’s hands were not tied in respect of either decision. She had discretion and chose to exercise it in a way that was unfavourable to Ms Nicholls. It is possible that in the mix of factors taken into account in making those decisions, Ms Borneman’s exasperation with the Nicholls came into play. Even if that were the case, for the reasons given at paragraphs [119]-[132] of these reasons, we could not be satisfied that had it not been for the subject allegations the offending decisions would not have been made.
175 Accordingly, this part of the complaint is dismissed.
Claims relating to Mr Nicholls
Claim 10: Mr Nicholls prevented from attending School Sport Carnival (Amended Points of Claim paragraph 3A)
176 Ms Borneman refused Mr Nicholls’ request to attend the 2002 annual Dubbo District School Sports Carnival as a teacher representative.
177 The Carnival was a significant event in the school calendar. Fifty-three DNPS students competed including two of the Nicholls’ children. It is not in issue that Mr Nicholls had a long-standing interest and involvement in sporting events such as the Dubbo District School Sports Carnival. While there is some dispute about the extent of his involvement, it is common ground that throughout 2002 he trained DNPS track and field competitors.
178 After calling for expressions of interest, Ms Borneman announced that Ms Acton, Ms Haylock and Ms Munroe would be attending the Carnival. Ms Borneman claims she did not learn of Mr Nicholls’ interest until after that announcement. Consistent with Mr Nicholls’ evidence, Ms Haylock testified that before the announcement was made she had passed on Mr Nicholls’ expression of interest to Ms Borneman. Their evidence is preferred.
179 Four days before the Carnival, at Mr Nicholls’ request, the Principal of Dubbo South Public school, Mr Paul Loxley rang the Carnival coordinator, Mr Phillip Maher, and put in a plug for Mr Nicholls. According to Mr Loxley, Mr Maher indicated that he was happy for Mr Nicholls to attend but that he would require permission from his Principal.
180 Mr Maher contacted Ms Borneman and, on her account, said he had received a ‘weird’ phone call from Mr Nicholls requesting that he tell her he was needed at the Carnival. Following that call Ms Borneman relented and told Mr Nicholls that he could attend but not before mid morning because he could not be replaced in the classroom before that time.
181 The day before the Carnival, Ms Borneman learnt that Ms Munroe, who had been off work on account of illness, was unable to attend. Ms Borneman decided Ms Munroe would not be replaced.
182 Ms Borneman conceded that Ms Munroe had no demonstrated interest in school sport but argued that she had been sent to ‘support’ the Aboriginal students not ‘supervise’ students or perform any duties as an official.
183 Much evidence was given about the optimal number of staff required to meet the needs of the school team. Mr Nicholls claimed that at least three staff were needed and in support pointed to the alleged lack of assistance provided to a DNPS student who had fallen ill at the Carnival. Ms Borneman contended that two were adequate. Whatever the appropriate number, the evidence makes it clear that up until the day before the Carnival, Ms Borneman believed it necessary to release three members of staff from their usual duties to attend the Carnival.
184 Findings and Conclusions Mr Nicholls had a longstanding involvement in school sport. He had a particular interest in attending the 2002 Carnival because he had trained some of the competitors and two of his children were competing. That Ms Borneman subsequently relented and allowed him to attend for part of the day does not, as we understand the Department to contend, change the character of the decision. Mr Nicholls was denied the status of attending as a member of the official DNPS delegation and that, in our view, constitutes a detriment.
185 The real issue raised by this claim is why the decision was made. This was not a case of a teacher being denied the opportunity to attend an event in which they had a peripheral interest. Mr Nicholls had a deep and longstanding interest in school sport and this was a matter of common knowledge within the school.
186 On three separate occasions, Ms Borneman decided not to exercise her discretion to allow Mr Nicholls to attend the Carnival: when she first announced the staff who would be attending; when approached by Mr Maher and, when it became clear that Ms Munroe would not be attending.
187 As noted we believe by late 2002, Ms Borneman was not well disposed to Mr Nicholls for a number of reasons. We could not be satisfied however that had it not been for Mr Nicholls’s part in the subject allegations, that he would have been included in the DNPS delegation to the Carnival.
188 Accordingly, this part of the complaint is dismissed.
Allegation 11: Mr Nicholls allocated to teach a class where Aboriginal students had been ‘clustered’ (Amended Points of Claim, paragraph 8C)
189 Mr Nicholls claims that the decision to cluster a large number of Aboriginal students and students with learning difficulties in his class constitutes unlawful discrimination and victimisation.
190 In 2003, there were two Year 3 classes at DNPS: a straight class and a composite 3/4 class. Mr Nicholls was allocated the former; Ms Haylock the latter. Approximately 30 students were enrolled in each.
191 Of the 14 Aboriginal students in Year 3 all but two were placed in Mr Nicholls’ class. While the parties do not agree on the exact numbers, it is common ground that a significant number of students with learning difficulties were allocated to Mr Nicholls’ class.
192 Ms Borneman conceded that the more academically able Year 3 students had been placed in Ms Haylock’s composite class. She claimed that where as in this case, there were insufficient student numbers to make up two classes in one grade it was common practice to combine the more capable students from the lower grade with students from the higher grade. She asserted that composite classes were not always successful and that a number of children with ‘challenging behaviours’ had been placed in Ms Haylock’s class.
193 In February 2003, Mr Nicholls approached Ms Borneman to discuss the composition of his class. He claims she refused to discuss the issue. That is denied but Ms Borneman agreed that after Mr Nicholls raised the issue she took no action.
194 Detriment We understand that Mr Nicholls identifies the detriment as first, the segregation of Aboriginal and non-Aboriginal students and second, the difficulties of teaching a class with a large number of students with learning difficulties.
195 As a first step to establishing a claim under section 50, Mr Nicholls must establish that he was subjected to a detriment. While he might be correct that Indigenous students were disadvantaged by being clustered together, it is unclear how this subjected him to a detriment. On the other hand, teaching a large number of students with learning difficulties self evidently makes teaching difficult, and in our view constitutes a detriment.
196 On the grounds of For the reasons as given, we could not be satisfied that the reason Mr Nicholls was given some of the less academically capable students was because of the subject allegations. Ms Borneman provided a cogent and plausible explanation for her decision. There is no evidence to contradict her claim that it was common practice for the ‘better’ students to be placed ‘up’ in the composite class. While Mr Nicholls might have suffered a detriment, it could also be said that Ms Haylock had her own difficulties managing a composite class.
197 We could not be satisfied that had it not been for the subject allegations Mr Nicholls would not have been allocated the students placed in his class. Accordingly, this part of the claim is dismissed.
Allegation 12: Complaint lodged by Mr Nicholls ignored (Amended Points of Claim, paragraph 12A)
198 In March 2003, while assembling for the annual school photograph, Ms Willcockson said to the photographer, ‘I’m not standing behind him [Mr Nicholls]’. Mr Nicholls claimed that most teachers overheard the comment and he was deeply embarrassed.
199 Mr Nicholls complained to Ms Borneman. He alleged she took no action. This is disputed by Ms Borneman who claimed that she counselled Ms Willcockson who agreed her conduct had been inappropriate. Ms Willcockson corroborated that account.
200 Did Ms Borneman ignore the complaint? There is no direct evidence to contradict the evidence given by the respondent’s witnesses. That Ms Borneman did not report to Mr Nicholls does not, as he contends, establish that she ignored his complaint about Ms Willcockson. On the evidence before us, we could not be satisfied that Ms Willcockson was not counselled.
201 Accordingly, this part of the claim is dismissed.
Allegation 13: Mr Nicholls intimidated by teachers observing his class (Amended Points of Claim, paragraph 15B)
202 Mr Nicholls claims that the decision of two teachers, Ms Lloyd and Ms Hetterick, to sit in on his class without invitation on 19 March 2003, constitutes victimisation. The teachers claim that the sole reason they did so was to assist a student who was in the process of being integrated into a mainstream class.
203 Headed by Ms Lloyd, the Unit for Emotionally Disturbed Children was referred students identified as having problems with school. In 2002, a student who we refer to by the pseudonym, Student A, was a member of a small class established by the Unit designed to assist students unable to participate in a mainstream class develop strategies to manage their behaviours.
204 In late 2002, the Unit decided that Student A was ready for an integration trial. It was planned that he would attend Mr Nicholls’ class, initially for one hour a week. On the first day of the trial he was disruptive and poked another student with a pencil.
205 Following this incident, Mr Nicholls contacted the Teachers Federation and received advice to the effect that he was not obliged to accept the student if he believed he posed a risk to other students. When Ms Hetterick accompanied Student A to Mr Nicholls’ class the following week, Mr Nicholls told her that he believed the child was not ready for integration and passed on the advice given by the Federation. On his account the conversation was courteous and professional. Ms Hetterick gave a very different account and claimed that when she arrived she was confronted by Mr Nicholls who criticised her management of Student A in strong terms. She reported this incident to her supervisor, Ms Lloyd, in tears. Ms Lloyd lodged a formal complaint with Ms Borneman.
206 The following week, Ms Lloyd accompanied Ms Hetterick and Student A to Mr Nicholl’s class. On his account, after entering the class without knocking, Ms Lloyd announced, ‘we are here to observe your teaching’. He claimed that when he asked them to leave, Ms Lloyd said again in front of the class, ‘you feel threatened by me don’t you?’ He said he asked Ms Lloyd to step outside and when she proceeded to speak to him in a loud and threatening voice he asked a student runner to find Ms Borneman and request that she to attend ASAP.
207 Ms Lloyd and Ms Hetterick gave a very different account. They claim they knocked before entering and after seating Student A went quietly to the back of the classroom. On their account, Ms Lloyd explained they were there to support Student A and, when questioned, reassured Mr Nicholls they were not there to observe his teaching. They claim as the exchange continued outside Mr Nicholls became increasingly agitated. Mr Nicholls claimed it was Ms Lloyd who became agitated.
208 Throughout the disputed exchange, a parent, Ms Elisabeth Copas, was in the hatroom, a small room running off the classroom, helping her son with his reading. She claimed she had full view of the classroom and could overhear the exchange when it continued outside the classroom. Her account broadly corroborates that given by Mr Nicholls. She testified that Ms Lloyd announced on arrival that she and Ms Hetterick would be ‘sitting in on the class’; when the parties stepped outside she heard Ms Lloyd say, ‘You are saying I’m unwelcome in the class’. According to Ms Copas, Mr Nicholls replied that he just wanted to know why she had decided to attend. According to Ms Copas, throughout these discussions Ms Lloyd became increasingly aggressive but Mr Nicholls was controlled, ‘He was just David’.
209 The following day, Mr Nicholls lodged a complaint about Ms Lloyd and Ms Hetterick and set out a detailed account, which broadly accords with that given in these proceedings. Ms Lloyd and Ms Hetterick also made a record of the incident which accords with their evidence given in these proceedings.
210 On Mr Nicholls’ account, this was the first occasion in 11 years two teachers had accompanied a student from the EOD unit to his class. Ms Hetterick and Ms Lloyd claimed it was not unusual for two members of the Unit to accompany a student to class when necessary. Mr Murrell corroborated their claim.
211 A detriment? As all parties agree, when this incident occurred, the situation at DNPS was ‘far from normal’. It was in that context that, unannounced, Ms Lloyd and Ms Hetterick arrived to sit in on Mr Nicholl’s class. Mr Nicholls had expected only Ms Hetterick. Given the environment of mistrust, it is not surprising that each suspected the other of the worst. Mr Nicholls believed that Ms Lloyd had an ulterior motive for her surprise visit; Ms Lloyd feared a repeat of the previous week and was there to protect the more junior Ms Heterick and ensure that the integration went ahead smoothly. In those circumstances, it is not surprising that the situation became explosive. While Mr Nicholls and Ms Lloyd each insist that it was they who were calm and reasonable and the other who was not, we think it likely that neither were as mannered and controlled as they would now like to think.
212 Mr Murrell’s evidence makes it clear that it was not an accepted practice for teachers to observe a colleague’s class and this only happened after extensive discussion. While he supported Ms Lloyd’s claim that this protocol did not extend to teachers from the Unit, it puts in context Mr Nicholls’ concerns with the unexpected arrival of Ms Lloyd. In these circumstances, we believe the decision for two teachers to attend Mr Nicholls’ class constituted a detriment.
213 On the grounds of Ms Lloyd, as noted, was a signatory to the petition and by attending as proxy for Mr Rawson at ASSPA meetings had first hand knowledge of many of the allegations made by the Committee and Mr Nicholls’ involvement in the Committee. Ms Hetterick, who identifies as Aboriginal, had not signed the petition and had only a passing knowledge of it.
214 Ms Lloyd’s decision to attend the class was in part motivated by her poor opinion of Mr Nicholls and her belief that he might once again confront Ms Hetterick. Her explanation that she was there to support Student A is only partially accurate - she was also there to ‘protect’ her junior colleague from a repeat of the earlier week. Ms Lloyd knew or should have been aware that Mr Nicholls felt under siege following the events of the previous year. Through Ms Hetterick, she knew that he had concerns about the integration trial and not unreasonably concluded that he might raise those issues again during Student’s A next visit. In that context, the decision to accompany Ms Hetterick without notice was in our view a serious error of judgement.
215 It may be that Ms Lloyd’s concern about how Mr Nicholls might react on a return visit from Ms Hetterick was in part influenced by the subject allegations. Likewise, her concern might have been influenced by her view of the treatment meted out to Ms Munroe. We could not be satisfied that had it not been for the subject allegations she would not have accompanied Ms Hetterick and Student A to Mr Nicholls’ class.
216 Accordingly, this part of the claim is dismissed.
SECOND COMPLAINT 051038
217 The Amended Points of Claim identify eight separate incidents each of which, it is asserted, constitute unlawful race discrimination and victimisation. In respect of the complaints of victimisation, the Nicholls assert that they were subjected to a detriment because they had ‘brought proceedings under the Act’. By this we understand them to refer to the complaint lodged with the Board on 5 August 2003 that is, Complaint 051039 referred to above.
218 For convenience we deal with the second complaint in two parts. The first involves the circumstances surrounding the Nicholls’ transfer out of DNPS. The second involves the conduct of Departmental officers after receipt of the ‘vexatious allegations’ (Amended Points of Claim, Complaint 051038, paragraphs 7A, 7B, 8A, 8B, 9A and 9B). We will consider the complaints of victimisation and unlawful discrimination separately.
(i) Claims relating to the transfer
219 After the Student A incident, Mr Nicholls proceeded on sick leave and subsequently filed a claim for workers compensation. Not long after that, Ms Nicholls commenced sick leave and also made a claim for workers compensation. By March 2004, both were certified as fit to return to suitable duties.
220 The Nicholls contend that a succession of related decisions concerning their transfer constitute both unlawful discrimination on the ground of race and victimisation. The offending decisions are:
221 Forced transfer The background to the transfer is set out above. To summarise, in May 2003 Mr Urry recommended that the Nicholls be transferred out of DNPS to ‘facilitate a more positive welfare and working environment for Mr and Ms Nicholls and the staff at DNPS’. In March 2004, Mr Cavanagh wrote to the Nicholls advising that as they had now been certified fit for suitable duties he had decided to transfer Mr Nicholls to Dubbo Central and Ms Nicholls to Buninyong Public, both primary schools in the Dubbo area. Mr Cavanagh wrote ‘Having regard to the Department’s duty of care … it would not be in the best interests of the school, the Department and yourself for you to return to DNPS…You should understand that if you fail to comply with this direction you may be liable to disciplinary action.’ In that letter he noted that no transfer request had been received.
The decision to transfer them without consent or negotiation (Amended Points of Claim, Complaint 051038, paragraph 2 and 2A);
The dismissal of their transfer appeals (Amended Points of Claim, Complaint 051038, paragraph 5A and 5B);
The refusal to grant Ms Nicholls a compassionate transfer to the same school as her husband (Amended Points of Claim, paragraph 3 and 3A);
The decision not to allow Ms Nicholls apply to transfer to a school where there was a vacancy (Amended Points of Claim, Complaint 051038, paragraph 6 and 6A).
222 While the Nicholls claim they were not given an opportunity to nominate their preferred schools that claim is not supported by the evidence. Messrs Cavanagh and Urry and Ms Deborah Anemaat, the officer responsible for supervising the Nicholls return to work throughout 2004, testified that the Nicholls were given a number of opportunities to nominate their preferred place of work but failed to do so. This claim is supported by files notes and correspondence.
223 It is not contested that the Nicholls did not expressly consent to a transfer.
224 Refusal of compassionate transfer Following her transfer to Bunniyong Public, Ms Nicholls sought a compassionate transfer under the provisions of the Department’s transfer policy so that she could work in the same school as her husband. She nominated as an alternative, the School of Distance Education. In October 2004, Ms Nicholls was advised that her application had been declined as ‘she had not met service requirements’. By letter dated 30 November 2004, Ms Lynda Shearer, Acting Assistant Director, Staffing, advised that the application had been refused on the ground that the medical certificate provided did not constitute ‘a compelling reason’ and noted that Ms Nicholls was ‘not currently appointed to a substantive position’.
225 In January 2005, Ms Shearer wrote to Ms Nicholls and apologised for any distress caused by the erroneous statement that she did not hold a substantive position. She wrote that the application for a transfer remained active and she would continue to be considered for vacancies as they arose in the Dubbo District, with the exception of DNPS.
226 Ms Shearer gave detailed evidence about the Department’s transfer policy. She said that Ms Nicholl’s application remained active and had priority status because of her ATSI (Aboriginal and Torres Strait Island) status and because it had been made on compassionate grounds. She was not required for cross-examination.
227 According to Mr Cavanagh, the Nicholls were not placed in the same school because throughout the relevant period two vacancies did not arise in the one school. He claimed that in the relevant period the vacancies to which the Nicholls were transferred were the only ones that arose in the Dubbo area.
228 In our view, the decision not to grant Ms Nicholls a compassionate transfer constitutes a detriment.
229 Dismissal of Appeal In May 2004, Mr and Ms Nicholls requested Mr Cavanagh to arrange a review by a ‘higher authority’ of his decision not to return them to DNPS. That decision was affirmed by Ms C McDiarmid, Regional Director, Western New South Wales.
230 A Detriment? In our view, the decisions referred to, about which the Nicholls complain, with the exception of the purported decision not to provide them with an opportunity to nominate their preferred schools each constitute a detriment for the purpose of section 50.
231 Reason for the conduct To succeed in their complaint of victimisation the Nicholls must establish that they were subjected to a detriment because they had lodged a complaint with the Anti-Discrimination Board.
232 Mr Cavanagh had been named in that complaint and when the offending decisions were made he knew that it had been lodged. As stated, we believe by 2002 Mr Cavanagh was not well disposed to the Nicholls. While the 2003 complaint is unlikely to have improved his view of them, it does not necessarily follow that he decided not to return them to DNPS because of it. He had before him the opinion of Mr Urry and the Nicholls’ rehabilitation provider both of whom recommended that they not return to DNPS. Mr Urry made it clear that, in his opinion, the breakdown in relationships at the school was irretrievable. By 2004, for all practical purposes, three options were available to Mr Cavanagh - transfer the Nicholls to another school; transfer the 20 petitioners out of DNPS or return the Nicholls to the school and risk a return to the events of 2002/2003. In those circumstances it was not surprising that Mr Cavanagh made the decision he did. We are not satisfied that the reason he did so was because the Nicholls had lodged a complaint with the Board.
233 There is no evidence that Ms McDiarmid, the officer who reviewed Mr Cavanagh’s decision, was aware of the complaint lodged with the Board. Even if she was, there is no direct evidence or evidence to support the inference that she made the decision she did because the complaint had been lodged.
234 In respect of the decision not to grant Ms Nicholls a transfer on compassionate grounds there is no evidence to contradict that given by the respondent witnesses that throughout the relevant period the only two vacancies that arose in the Dubbo area were at the schools to which the Nicholls were transferred.
235 For these reasons, we are not satisfied that the offending decisions were made on the grounds that the Nicholls lodged a complaint with the Board in August 2003.
(ii) Claims relating to ‘vexatious allegations’
236 In August 2004, an altercation occurred on the main street of Dubbo involving Mr Nicholls, Ms Munroe and Ms Willcockson. Ms Willcockson and Ms Munroe reported to police they had been verbally abused by Mr Nicholls. Ms Willcockson also reported the matter to Ms Borneman. Mr Nicholls strenuously denied those allegations. No charges were laid.
237 A month later Mr Nicholls claimed that Ms Willcockson made a fist at his wife and when he asked her to desist, abused him. This is denied. Ms Willcockson claimed that it was Mr Nicholls who had been abusive. Ms Willcockson made a further report to Ms Borneman.
238 Mr Nicholls claims that Mr Cavanagh and Ms Borneman passed on Ms Willcockson’s ‘vexatious complaint’ to Greg Shortis, the Principal of Dubbo Central, the school to which he had been transferred. Mr Cavanagh and Ms Borneman both deny speaking to Mr Shortis. Their respective claims are inconsistent with Mr Shortis’ evidence and the complaint evidence given by Mr Nicholls and are not accepted by us.
239 After these incidents, Mr Cavanagh wrote to Mr Nicholls and drew his attention to the Department’s Code of Conduct. He claims he wrote to Ms Willcockson in similar terms.
240 Findings and conclusions While the evidence does not support a finding that Mr Shortis acted on the allegations, it is plain, given their serious nature, that they had the potential to be damaging to Mr Nicholls especially given he was then new to Dubbo Central. Neither Mr Cavanagh nor Ms Borneman attempted to investigate the truth or otherwise of the allegations. As their subsequent conduct indicates, both tacitly accepted that Mr Nicholls was the offending party. In our view, the passing on of an unsubstantiated report in these circumstances constitutes a detriment.
241 This incident provides yet another example that despite their claims to the contrary, both Ms Borneman and Mr Cavanagh had a very poor opinion of Mr Nicholls. Their actions, in this instance, showed a lack of professional detachment.
242 It is not enough for Mr Nicholls to prove that by this time Mr Cavanagh and Ms Borneman had a set against him. It falls to him to establish that one or both subjected him to the detriment of informing his supervisor and in Mr Cavanagh’s case, sending him a letter of caution, because he had complained to the Board. As previously stated, we believe that there were many reasons why Mr Cavanagh and Ms Borneman were not well disposed toward Mr Nicholls. However, we are not satisfied that the substantive reason they gratuitously passed on the allegations to Mr Shortis was because Mr Nicholls had lodged a complaint with the Board.
COMPLAINT OF RACE DISCRIMINATION
243 Complaints 035018 and 035019 also allege unlawful discrimination on the ground of race in the area of employment. The Nicholls cast these complaints as allegations of ‘direct discrimination’ (section 7(1)(a)). Accordingly, they must establish on the balance of probabilities that:
244 A detriment In the context of unlawful discrimination, detriment carries the same meaning as that given to the term in section 50 (see Bonella v Wollongong City Council [2001] NSWADT 194 (at [50]). Accordingly, it is not necessary to revisit those claims where we have found that the offending conduct constitutes a detriment for the purpose of section 50. In respect of the balance of the claims we have considered whether they might be caught by paragraphs (a) and (b) of section 8(2) and concluded in each case that they are not.
First, that the alleged incident/s constitutes a ‘detriment’ within the meaning of section 8(2)(c);
Second, that they were treated less favourably than a non-Aboriginal teacher was treated or would probably have been treated in similar circumstances;
Third, that one of the reasons for any less favourable treatment was their race.
245 Less favourable treatment Section 7(1)(a) requires the treatment afforded the Nicholls to be compared with that afforded to an actual or hypothetical non-Aboriginal teacher who was, or would be, in the same, or not materially different circumstances to them (‘the comparator’).
246 As no evidence of an actual comparator was adduced, that is, a non-Aboriginal teacher in similar circumstances to each of the Nicholls, it is necessary to compare the treatment afforded to the Nicholls with that which probably would be afforded to a hypothetical person, namely a non-Aboriginal teacher in similar circumstances. The task of identifying those circumstances was considered by the High Court in Purvis v New South Wales (2003) 217 CLR 92. The majority (at pages 160, 161) described the approach to be taken, in this way:
247 Purvis requires the ‘objective features’ surrounding the offending treatment to be identified. This was not addressed by the Nicholls in submissions.
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, section 5(1) [Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled …
The circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability …
248 Before determining whether the Nicholls were subjected to differential treatment, we will address the issue of causation, adopting the approach taken in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] and Martin v McKensey (No.2) [2003] NSWADT 126 at [46] (cf Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45]).
249 On the ground of The Nicholls must establish that one of the reasons for any differential treatment was their race. As conceded, there is no direct evidence that race played any part in the offending treatment. It is therefore necessary to consider whether the evidence, taken as a whole, supports that inference being drawn.
250 While not determinative, it is noteworthy that there is no evidence to suggest that throughout the period of the offending conduct the Nicholls themselves perceived it to be racially based. Mr Nicholls’ evidence indicates that he was at best unsure whether race played any role in his treatment. He put it no higher than a possibility. Ms Nicholls was more convinced that race might have played some role. It is telling that the lengthy document prepared by the Nicholls in answer to Mr Urry’s request to particularise their complaints and tabled in May 2003, makes no mention of race discrimination. (Exhibit R 26 TU 7, Tab J.)
251 Race discrimination is seldom overt and notoriously difficult to establish. It is possible that in similar circumstances the Department’s officers and DNPS staff might have been more tolerant of non-Aboriginal teachers and that race played some role in their treatment of the Nicholls. However, having carefully examined each of the offending incidents we could not be satisfied that the evidence before us supports a finding that one of the reasons the Nicholls were subjected to a detriment was their race.
252 Given this finding, it is not necessary to make a finding on whether the Nicholls were subjected to a ‘less favourable treatment’.
Orders
1. The complaints of unlawful discrimination on the grounds of race are dismissed
2. The complaints of victimisation are dismissed.
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