Penhall-Jones v State of New South Wales (No 2)

[2006] FMCA 927

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PENHALL-JONES v STATE OF NEW SOUTH WALES (No.2) [2006] FMCA 927

HUMAN RIGHTS – Disability discrimination in employment – alleged victimisation following complaint made to the Human Rights and Equal Opportunity Commission – alleged workplace bullying and threat to employment.

Disability Discrimination Act 1992 (Cth), s.42
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Independent Commission Against Corruption Act 1988 (NSW), s.50

Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573
Ho v Regulator Australia Pty Ltd [2004] FMCA 62
Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721
Travers v New South Wales [2000] FCA 1565

Applicant: MARGARET LEILA PENHALL-JONES

Respondent: STATE OF NEW SOUTH WALES

File Number: SYG3013 of 2005

Judgment of: Driver FM

Hearing dates: 10, 12, 13 April 2006

Date of Last Submission: 13 June 2006

Delivered at: Sydney

Delivered on: 31 July 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Kite SC

Solicitors for the Respondent: Abbott Tout

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3013 of 2005

MARGARET LEILA PENHALL-JONES

Applicant

And

STATE OF NEW SOUTH WALES

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) seeking relief for alleged victimisation contrary to s.42 of the Disability Discrimination Act 1992 (Cth) (“the DDA”)[1].  Ms Penhall-Jones claims that she was subject to verbal abuse on 27 September 2004, the day prior to a conciliation conference conducted by HREOC in relation to a complaint of disability discrimination made by Ms Penhall-Jones.  Ms Penhall-Jones asserts that the New South Wales Department of Transport used the HREOC conciliation conference to threaten her public service career and that a return to work programme she had been engaged upon was cancelled.  Ms Penhall-Jones complained about the alleged victimisation to HREOC which terminated the complaint on 20 September 2005, on the basis that there was no reasonable prospect of the matter being settled by conciliation.

   [1] I have previously dealt with related proceedings in which Ms Penhall-Jones sought compensation for asserted disability discrimination: see Penhall-Jones v State of New South Wales [2006] FMCA 235. That decision is subject to appeal in the Federal Court

2. The State of New South Wales, represented by the Department of Transport, denies the alleged victimisation and seeks the dismissal of her application with costs.

The evidence

1. Ms Penhall-Jones relies upon her affidavit made on 20 March 2006 (filed on 22 March 2006) in which she recites the alleged events constituting the asserted victimisation and provides background to her employment in the Department of Transport.  Ms Penhall-Jones further relies upon her two affidavits made on 6 February 2006 (the first filed 7 February 2006 annexing medical records, the second filed in court by leave on 10 April 2006 to which is exhibited a bundle of documents comprising public employment office policies and Premier’s Department memoranda detailing employment conditions in the New South Wales public sector) and her affidavit in reply made and filed on 7 April 2006.  I also received as an exhibit (exhibit A1) a draft position description for the position of senior policy officer SSTS occupied by Ms Penhall-Jones.

2. Ms Penhall-Jones was cross-examined on her affidavits.  Under cross‑examination Ms Penhall-Jones:

   ·agreed that the flexible working arrangements referred to in paragraph 21 of her affidavit of 20 March 2006 required agreement;

   ·accepted that it was not agreed between the parties that she suffers from a disability for the purposes of the DDA but maintained that there is no doubt and no dispute that she suffers from a work caused injury and is receiving workers compensation benefits for it;

   ·agreed that for some months in 2004 she participated in a graduated return to work programme but disagreed that the programme was successful;

   ·accepted that she was asked to return to work by her employer and said that she declined to do so on the basis of medical advice;

   ·said that she suffered a relapse of her condition as evidenced by medical opinion in October 2004;

   ·agreed that she had not returned to the workplace since then;

   ·said that she had been asking to return to work since January 2005 but required safe conditions of work where she would not be “abused”;

   ·said that she had been “consistently” abused in the workplace since late 2001 and indeed before that;

   ·accepted that she was not abused by everyone at the Department of Transport;

   ·stated that she was abused both before and after her complaint to HREOC but said that no written threats were made until after her complaint to HREOC;

   ·insisted that a manager in the Department of Transport, Catherine Reilly, shouted at her in a discussion on 27 September 2004 arising out of Ms Penhall-Jones’ failure to attend a meeting on that day;

   ·insisted that she had earlier revealed to Ms Reilly that she had made a complaint to HREOC and referred to it during the discussion during which she was allegedly verbally abused;

   ·denied or could not recall the terms of words said to have been used by Ms Reilly by the respondent;

   ·said that Ms Reilly had appeared angry or upset before she spoke to her on the morning of 27 September 2004 but Ms Penhall-Jones did not know why.  She described Ms Reilly as having “an angry mood” and aggressive tone;

   ·agreed that Ms Reilly suffered from an anxiety disorder and had time off on workers compensation and stated that, to her knowledge, Ms Reilly took medication for her condition;

   ·agreed that Ms Reilly was angry and shouting before Ms Penhall-Jones had referred to the HREOC conciliation conference the following day;

   ·agreed that exhibit A1 indicated that it would have been consistent with her job description to attend the meeting on 27 September 2004 that she did not attend and agreed that it had been suggested that she attend it;

   ·could not say that she had indicated before the meeting that she would not attend it although she thought she may have;

   ·denied that she was herself angry or aggressive in her conversation with Ms Reilly but described her tone as “flinty”;

   ·agreed that Ms Reilly had asked her to attend a meeting that afternoon with Mr Bill Grant and that she had declined to attend;

   ·stated that the meeting she had failed to attend which had apparently upset Ms Reilly was scheduled to run from 9.00am until 12.00pm, during which time she had arranged a conference with her solicitors about the HREOC conciliation the following day and that, in any event, she would not have been able to attend until 10.00am when she normally commenced work under her restricted duties;

   ·stated that she had earlier difficulties with Ms Reilly in 2002 over union matters and in 2003 over a work issue;

   ·stated that Ms Reilly had undertaken work which was “seriously flawed”[2];

   [2] see paragraph 51 of the affidavit of 20 March 2006

   ·stated that she had become involved in some of the work undertaken by Ms Reilly in mid 2003;

   ·stated that she was over time “marginalised” and not given useful work to do, apart from a period in 2004 when a supervisor, Joanna Quilty, had ensured that she received productive work to do;

   ·confirmed that she regarded as bullying the incident described in paragraph 83 of her affidavit and the resultant incidents described in paragraph 85 of her affidavit;

   ·confirmed that she regarded Mr Bill Grant as supporting the bullying;

   ·explained that in her opinion Mr Grant had tried to be fair but that his attitude deteriorated after the incident on 27 September 2004 and that he sided with Ms Reilly;

   ·confirmed that after the incident on that day she took sick leave explained as “stress leave”;

   ·confirmed that she attended a meeting with Mr Grant on 6 October 2004 to discuss the incident;

   ·confirmed that she had a further discussion with Mr Grant and Ms Reilly at a later date which may have been 7 October 2004;

   ·confirmed that she may well have been on sick leave on 11 and 13 October 2004 and that she attended a return to work meeting on 14 October 2004;

   ·accepted that she may have had a discussion with Ms Reilly at work on 18 October 2004 and that she may have taken further sick leave on 20 October 2004;

   ·confirmed that her last working day was 21 October 2004 and that she had e-mailed sick leave advice to the Department on 25 October 2004;

   ·confirmed that the bullying allegations the subject of these proceedings cover the period between 27 September 2004 and 25 September 2005, with the involvement of Mr Grant from 6 October 2004;

   ·resisted suggestions that Mr Grant had done all that he could to address the issues raised by Ms Penhall-Jones;

   ·explained that the allegation of a false complaint against her at paragraph 88 of her affidavit was based upon a conversation with Mr Grant;

   ·confirmed that the issue was not pursued further;

   ·confirmed that the issue dealt with in paragraph 90 of her affidavit occurred before 27 September 2004;

   ·confirmed that the incident dealt with at paragraphs 91 to 96 of her affidavit she regarded as “obstructionism” by Ms Reilly and stated that this constituted improper behaviour by Ms Reilly whether or not it was “bullying” – which Ms Penhall-Jones believed it was;

   ·confirmed that she had complained to her grievance officer Mark Cridland about this and asserted that he had not acted properly on it;

   ·explained that she was not previously aware that Mr Cridland considered he could not deal personally with the complaint because of a concern that the complaint might have extended to him;

   ·confirmed that the conduct of the Department of Transport representatives at the HREOC conciliation conference on 28 September 2004 was aggressive and bullying[3];

   [3] see paragraphs 76 to 82 of the affidavit of 20 March 2006

   ·confirmed that she had offered to settle the proceeding by payment to her of $560,000, based upon what she regarded as the value of her job should she resign[4];

   [4] I raised with the parties at this point whether it was appropriate for me to receive evidence of what was discussed at the HREOC conciliation conference.  Mr Kite confirmed that the conference was confidential but submitted that there was no option but to receive evidence of what transpired given that the claim of victimisation was based significantly on the conduct of the conference.  I received the evidence.

   ·explained that she did not wish to resign and had no intention of doing so and had simply made an offer that she was confident would not be accepted;

   ·stated that she was victimised by being asked to sign a deed of release as part of a proposed settlement which contained a “gagging clause” and which provided inadequate monetary compensation;

   ·added that she complained to the Minister for Transport about this incident, who referred the matter to the Independent Commission Against Corruption (ICAC);

   ·accepted that she had stated that she was happy to consider resignation but added that this was conditional upon the payment of appropriate compensation;

   ·stated that her particular concerns with the proposed deed were the recitals at D, in particular (d) concerning misconduct issues;

   ·confirmed that she was aware that she could not be required to resign but that she was being invited to consider it as part of the settlement negotiations;

   ·confirmed that she had demanded the identification and resignation or dismissal of those involved in the settlement proposal[5] on the basis of alleged misconduct;

   [5] see exhibit R4

   ·confirmed that the departmental response to this complaint is at annexure J at page 24 of the annexures to her principal affidavit;

   ·confirmed that she regarded this letter as a threat of “summary dismissal” and added that she regarded the letter as contravening “a number of laws”;

   ·denied that she would have been free to raise allegations concerning criminal offences if she had signed the deed;

   ·denied that she would have able to raise issues of workplace bullying in the context of workers compensation proceedings if she had signed the deed;

   ·confirmed that she regarded the cancellation of her return to work programme on 2 or 4 November 2004 as further evidence of victimisation[6];

   ·accepted that she had discussed a proposed meeting to determine the future of the return to work programme with a Mr Zelma who was representing her interests[7];

   ·refused to withdraw the allegation in paragraph 112 of the principal affidavit that Ms Elaine Lamond had deliberately withheld from her the time of the meeting to discuss the return to work programme (having admitted that she had been aware of the proposed time from Mr Zelma);

   ·accepted that Mr Zelma agreed to the termination of the return to work programme but added that he “had no choice”;

   ·asserted that at the time of the meeting she was confused and distressed and in no state to attend the meeting herself;

   ·stated that as she had suggested deferring the meeting, she thought that the meeting would not go ahead without her;

   ·confirmed that she had told Mr Zelma there was no point in attending the meeting on the basis that the outcome was a “fait accompli" but added that the outcome might have been different if both she and Mr Zelma had been able to attend;

   ·asserted that the refusal by the Department of Transport to implement a return to work programme after November 2004 was continuing victimisation[8] and asserted that the respondent’s solicitors’ correspondence declining to discuss these issues with her during the currency of the present proceedings was an inappropriate response; and

   ·confirmed that she had raised some of these issues with the Director-General of the Department of Transport.

   [6] see the principal affidavit at paragraphs 106 and 110 to 113

   [7] see exhibit R5

   [8] see paragraph 145 of the principal affidavit

3. In re-examination, Ms Penhall-Jones emphasised that flexible work practices were almost mandated in the case of a disabled employee with special needs.  She stated that, while she had experienced abusive behaviour in prior employment in the Premier’s Department that was an isolated incident which had been properly dealt with.  Ms Penhall‑Jones reiterated that she had told Ms Reilly of her HREOC claim prior to the incident on 27 September 2004.  She stated that her letter of complaint to Mr Mark Duffy dated 18 November 2004 was a protected disclosure and was accepted as such by ICAC[9].  Ms Penhall‑Jones emphasised that her allegations centred upon asserted victimisation, whether or not that is properly described as “bullying”.  She emphasised that in October and November 2004 she was under enormous pressure as she had been confronted by the Department of Transport which refused to negotiate properly with her and which was seeking her resignation.  Ms Penhall-Jones stated that her distraught condition at this time made it difficult for her to remember dates and time with precision although she has some idea of the sequence of events at the time.  She stated that her distraught condition at the time may have caused some confusion in her mind.

   [9] Two letters from ICAC to Ms Penhall-Jones became exhibit A2.

4. Ms Penhall-Jones’ evidence was completed by the tender of the following documents:

   ·A1 – Ministry of Transport Position Description;

   ·A2 – letters to ICAC from Ms Penhall-Jones;

   ·A3 – e-mail from Mark Duffy to Ms Penhall-Jones.

Respondent’s evidence

1. The respondent relies upon the following evidence:

   a)two affidavits by Mr Bill Grant filed on 9 December 2005 and 5 April 2006;

   b)two affidavits by Ms Elaine Lamond filed on 9 December 2005 and 5 April 2006;

   c)one affidavit by Catherine Reilly filed on 5 April 2006;

   d)two affidavits by Reno Lucarini filed on 9 December 2005 and 5 April 2006;

   e)one affidavit by Perry Hammond filed on 7 April 2006; and

   f)one affidavit by Mark Andrew Cridland filed on 20 December 2005.

2. Only Mr Grant, Ms Lamond and Ms Reilly were required for cross‑examination. 

3. In the course of dealing with objections to the respondent’s evidence, I ruled on an interlocutory application filed by Ms Penhall-Jones on 20 March 2006.  That application sought orders in relation to an affidavit made by Ms Catherine Reilly on 4 November 2005 that was not read.  I declined to make the orders sought but indicated to Ms Penhall-Jones that she was free to test the credibility of Ms Reilly in cross-examination in relation to her affidavit filed on 5 April 2006, which would be read, and that she could put to Ms Reilly documents annexed to the interlocutory application for the purposes of testing credibility.  I also indicated to Ms Penhall-Jones that she could, if she wished, seek to tender documents from Ms Reilly’s affidavit of 4 November 2005. 

4. In addition to the affidavit material I received the following documents as exhibits in support of the respondent’s case:

   ·R1 – page 71 from Ms Penhall-Jones’ affidavit of February 2005;

   ·R2 – e-mail from SSTS working party

   ·R3 – letter to Mr Scarlett and e-mail, 22 November 2004;

   ·R4 – report to Mark Duffy from Ms Penhall-Jones;

   ·R5 – e-mail exchanges;

   ·R6 – letter to Mr J Lee, received 5 May 2005;

   ·R7 – file note of Mr Grant;

   ·R8 – e-mail to Ms Reilly from Ms Penhall-Jones, January 2004.

Mr Bill Grant

1. Mr Grant is the Acting Director, Transport Policy in the New South Wales Department of Transport.  He deposes as to his work association with Ms Penhall-Jones, her return to work programme in 2004, her work in the bus reform branch of the Department of Transport, meetings with Ms Penhall-Jones in 2004, and he responds to Ms Penhall-Jones’s affidavit made on 20 March 2006.  Mr Grant also deals with a meeting held on 4 November 2004 to discuss Ms Penhall‑Jones’ return to work programme which was terminated as a result of that meeting.  He further deposes as to Ms Penhall-Jones’ working from home arrangements under that programme.

2. Under cross-examination Mr Grant:

   ·admitted that what he set out at paragraph 7 of his second affidavit was not all he had discussed with Ms Quilty about the return to work programme;

   ·admitted that he was not familiar with the policy background or legislative goals of return to work programmes;

   ·admitted that he could recall a meeting with Mr Duffy at which reporting arrangements for Ms Penhall-Jones were discussed;

   ·denied that he was aware of Ms Penhall-Jones’ disability discrimination complaint on 27 September 2004;

   ·admitted receipt of the e-mail at attachment C to his second affidavit and said that the conciliation conference referred to in that e-mail he thought was something to do with Ms Penhall‑Jones’ workers compensation claim;

   ·stated that the two file notes forming attachment B to his second affidavit were sent to him by e-mail on 27 September 2004 by Ms Reilly but he did not know what file they were intended for (he noted that they were also directed to the employment relations area of the Department);

   ·stated that he sought to deal with the issues arising from the events on 27 September 2004 by having a meeting with Ms Penhall-Jones on 6 October 2004;

   ·admitted that he did not work through the return to work grievance officer in relation to that issue;

   ·admitted that he did not raise with Ms Reilly any issue of alleged bullying;

   ·stated that he was satisfied with the outcome of the meeting on 6 October 2004 as putting in place an appropriate process to deal with the allegations;

   ·stated that he concluded that the return to work programme was not achieving its objectives on the basis of his own observations and the meeting on 4 November 2004;

   ·admitted that Mr Zelma may not have attended that meeting in person but may have attended by telephone;

   ·admitted that he left employment relations issues for the employment relations section of the Department to deal with;

   ·accepted that he had a role in attending to staff welfare issues and accepted that medical certificates pointing to a workplace injury raised issues in which he had a role;

   ·denied knowledge of Ms Penhall-Jones’ HREOC complaint prior to the present proceedings;

   ·denied personally benefiting from the cancellation of Ms Penhall‑Jones’ return to work programme;

   ·confirmed that those attending the meeting on 4 November 2004 were all of the view that the return to work programme was not meeting its objectives but admitted that after the meeting there was a concern that a report prepared by Mr Zelma did not reflect the meeting outcome;

   ·denied discussing Ms Penhall-Jones’ “injury” with anyone other than her;

   ·confirmed that in October 2004 he was concerned about Ms Penhall-Jones’ absences from the workplace which was a reason for the cancellation of the return to work programme; and

   ·admitted that he did not consider alternative mechanisms for returning Ms Penhall-Jones to the workplace, stating that this was an employment relations issue.

1. In re-examination Mr Grant stated that he regarded the goals of the return to work programme as a return by Ms Penhall-Jones to her pre‑injury duties and hours of work.  He stated that he first became aware of her discrimination claims in October 2005. 

Catherine Reilly

1. Ms Reilly is the principal policy officer, contract and funding in the bus reform branch in the Department of Transport.  She was Ms Penhall‑Jones’ supervisor between July and November 2004.  She deposes as to her relevant employment history and her qualifications.  She deposes as to the “incident” on 27 September 2004 and the conversation she alleges she had with Ms Penhall-Jones when the latter arrived at the office on the morning of that day.  She also responds to the affidavit of Ms Penhall-Jones made on 20 March 2006.  Ms Reilly deposes that she found Ms Penhall-Jones to be a difficult person to interact with in the workplace but asserts that she always treated her in a professional manner.  Ms Reilly denies the allegations that she victimised, or intended to victimise, or that she bullied, or intended to bully, Ms Penhall-Jones whether or because she had lodged a complaint with HREOC or because she had raised issues relating to discrimination, bullying, harassment or for any other reason, including the fact that Ms Penhall-Jones was attending a HREOC conciliation conference.

2. Ms Reilly deposes that “over the past two or three years” she has had a number of conversations with Ms Penhall-Jones where the latter had referred to an intention to complain to HREOC.  Ms Reilly deposes that she was not aware that Ms Penhall-Jones had proceeded with any specific complaint or, if she had, what it was about.  She deposes that she was not aware that Ms Penhall-Jones was attending a conciliation conference until told by Ms Penhall-Jones at their discussion on 27 September 2004, and even at that stage she did not know what the conference was about.  Ms Reilly deposes that she first knew that Ms Penhall-Jones had made the complaint to HREOC the subject of these proceedings in approximately October 2005 when she was asked to make an affidavit in these proceedings. 

3. A number of documents are annexed to Ms Reilly’s affidavit.  Annexure D is an e-mail from her to Mr Grant and Ms Elaine Lamond enclosing “file notes” of her conversations with Ms Penhall-Jones on 23 and 27 September 2004.  Annexure E is a version of the file note of the conversation on 27 September 2004, signed and dated that day.  Annexure F is what appears to be a later version of the same file note, also signed and dated 27 September 2004.  Annexure G is a marked up composite version of the two versions of the file note, showing the differences between them.

4. I permitted Mr Kite to lead short additional oral evidence from Ms Reilly.  She stated that she had recently discovered an e-mail referring to a HREOC complaint by Ms Penhall-Jones which became exhibit R8.  She otherwise confirmed that the first time she became aware of the HREOC complaint in issue in these proceedings was in October 2005.  Ms Reilly also stated that she suffered a workplace induced psychological injury as a result of bullying and had taken six months leave, but had now returned to normal duties.  She continues to take medication[10]. 

   [10] Arapax

5. Under cross-examination Ms Reilly was questioned extensively about the two versions of her file note of the conversation on 27 September 2004.  She:

   ·admitted that there were differences between the two versions of the file note but denied that the differences were material;

   ·admitted use of the word “the applicant” to describe Ms Penhall‑Jones in the second version of the file note suggests that it could have been prepared after the commencement of these proceedings;

   ·conceded that the second version could have been prepared as late as October 2005;

   ·asserted no recollection of when the second version of the file note was prepared, why it was prepared or the circumstances of its preparation;

   ·was at a loss to explain the second version of the file note;

   ·was also unable to explain why the second version bore the same date as the first version;

   ·accepted that it was her word against Ms Penhall-Jones’ as to what was said at their discussion on 27 September 2004;

   ·denied that her original file note was a self serving document but accepted that it had been prepared following a “very difficult” conversation;

   ·accepted that she had sought advice from Ms Lamond following the conversation and said that she had been concerned when she saw Ms Penhall-Jones’ allegations against her;

   ·denied suggestions that she had prepared her file notes of the discussion between her and Ms Penhall-Jones on 27 September 2004 in order to show herself in a good light and to show Ms Penhall-Jones in a bad light; and

   ·accepted, however, that the second version of the file note might have been prepared by reference to other documents, including affidavit material.

6. Ms Reilly denied that the discussion on 23 September 2004 was amicable.  She:

   ·described Ms Penhall-Jones as being hostile and said that it was a very difficult meeting; and

   ·denied Ms Penhall-Jones’ version of the discussion on that day.

7. Ms Reilly:

   ·asserted that she had concerns about Ms Penhall-Jones’ performance from mid July 2004, including her attendance at work;

   ·insisted that she had discussed a work plan with Ms Penhall-Jones and Mr Grant in July 2004; and 

   ·denied that she had not given any proper work to Ms Penhall-Jones to do. 

8. Ms Reilly was asked about the discussion between her, Ms Lamond and Mr Zelma on 24 September.  She:

   ·said this was not a return to work meeting but an informal discussion in a coffee shop;

   ·said that she had asked for the discussion because she wanted advice;

   ·confirmed that in that discussion Mr Zelma had suggested that she have a meeting with Ms Penhall-Jones to discuss her concerns;

   ·confirmed that a return to work meeting occurred in mid October; and

   ·confirmed that on 4 November a further meeting occurred at which Mr Zelma attended by telephone at which it was agreed that the return to work programme should be cancelled.

9. Ms Reilly was asked about exhibit R8.  She:

   ·denied knowing what was the HREOC complaint referred to in that e-mail;

   ·admitted having had some “discussions” with Ms Penhall-Jones about it;

   ·stated that she thought that the issue related to recruitment action that had come up in the context of their mutual union activities; and

   ·denied knowledge of the resignation offer made by the Department of Transport at the conciliation conference on 28 September 2004.

10. Ms Reilly:

    ·admitted that at the return to work meeting on 14 October 2004 Ms Penhall-Jones had raised issues concerning Ms Reilly’s supervision;

    ·said that she had raised issues concerning Ms Penhall-Jones’ attendance and interaction with others;

    ·agreed that Mr Zelma had raised a proposal for Ms Penhall-Jones to work more autonomously;

    ·said that the meeting agreed that the proposal would be developed and considered;

    ·also said that she was aware from Mr Cridland that Ms Penhall‑Jones had made a grievance complaint against her but had been told that this had been withdrawn;

    ·denied that she benefited or that others benefited from the cancellation of the return to work programme on 4 November 2004;

    ·denied that Ms Penhall-Jones had suffered a relapse of her condition as a result of her (Ms Reilly’s) behaviour;

    ·said that the return to work programme failed because Ms Penhall-Jones stopped attending work and stopped producing work; and

    ·said that although Ms Penhall-Jones was a problem employee the cancellation of the return to work programme was not a good outcome from anyone’s perspective.

11. There was no re-examination of Ms Reilly.

Elaine Lamond

1. Ms Lamond was the manager of employee relations of the Department of Transport between December 2001 to July 2005.  She has since retired.  In her first affidavit she deposes as to her knowledge of the issues arising in Ms Penhall-Jones’ employment in 2004, with particular reference to the return to work programme.  She deposes as to her knowledge of a workers compensation claim made by Ms Penhall-Jones in late 2004.  In her second affidavit, Ms Lamond deposes as to the workers compensation claim made by Ms Penhall‑Jones in January 2004.  She also responds to Ms Penhall‑Jones’ affidavit made on 20 March 2006. 

2. Under cross-examination Ms Lamond:

   ·denied any conflict of interest in dealing with Ms Penhall-Jones’ return to work programme;

   ·admitted that the return to work programme had made some progress in 2004;

   ·admitted that a return to work programme was required following a workplace injury;

   ·stated that, to her knowledge, the return to work programme was cancelled because of a set back due to a resurgence of Ms Penhall-Jones’ illness;

   ·accepted that working from home was a possibility which had been discussed and that she had spoken to Mr Cridland about it, but he had advised that there was no appropriate work for Ms Penhall-Jones to do at home;

   ·did not accept that the resurgence of Ms Penhall-Jones’ illness was only a temporary setback and added that a return to work programme needs a conclusion;

   ·stated that she had not been consulted about the settlement offer put to Ms Penhall-Jones by the Department of Transport in the HREOC proceeding;

   ·confirmed that she attended the informal discussion on 24 September 2004 with Ms Reilly and Mr Zelma;

   ·denied that at the time she was aware that Ms Penhall-Jones had made a complaint to HREOC;

   ·stated that she did not tell Ms Penhall-Jones on 3 November 2004 of the return to work meeting the following day as she “understood” that Mr Zelma would tell her of it;

   ·asserted that Mr Zelma accepted at the meeting on 4 November 2004 that the return to work programme could not proceed any further;

   ·agreed that the “workplace issues” were left unresolved; and

   ·disagreed that the cancellation of the return to work programme circumvented the need to deal with those workplace issues or that those attending had something to gain from the cancellation.

3. In re-examination Ms Lamond said that in the informal discussion between her and Mr Zelma on 24 September 2004 Ms Reilly had stated that she was having problems in supervising Ms Penhall-Jones and had sought ideas and guidance in order to deal with the problem.  Ms Reilly had approached her to arrange the meeting and she had set it up. 

Submissions

1. I invited written submissions from the parties.  The applicant’s written submissions were filed on 12 May 2006 and comprise 104 pages.  Ms Penhall-Jones begins by summarising her case and the procedural history of the proceedings.  Ms Penhall-Jones submits that she has proven her claim of victimisation by reference to nine points of claim previously identified, but adds that the trial of this matter has resulted in additional information emerging establishing victimisation on other bases.  Ms Penhall-Jones identifies her nine original points of claim regarding victimisation as follows:

   ·On 27 September 2005, the day prior to the conciliation conference held at the HREOC, Catherine Reilly, my supervisor, verbally abused me, accused me of deliberately making an appointment with my lawyers in order to avoid a meeting, and attempted to arrange a quasi-disciplinary meeting.

   ·Following this incident, there was significant mismanagement or maladministration in relation to myself.  In particular:

   ¨Catherine Reilly then engaged in a program of bullying which resulted in my being unable to attend the workplace at all for some weeks;

   ¨Bill Grant, Acting Manager, Bus Reform and Catherine Reilly’s supervisor, supported Catherine Reilly’s actions and failed or refused to take any of a number of actions to address the situation; and

   ¨Mark Cridland, Grievance Officer refused to act on my complaints and refused to implement the requirements of my return to work program in line with my treating doctor’s recommendations.

   ·MOT management sought my resignation from my public sector career through and because of the HREOC complaint.  The “Deed of Release” sent to my lawyers bore no relation to the discussions in the HREOC conciliation, and included a “gagging” requirement.  I saw this as a bribe;

   ·In a letter dated 18 November, 2004, then Acting Director-General Mark Duffy directly threatened to terminate my employment with the MOT, and to terminate my public sector career on stated grounds that because I had raised issues in the HREOC which may progress to a case in the Federal Magistrates Court;

   ·Catherine Reilly, Bill Grant and then Director, Employee Relations Elaine Lamond unilaterally cancelled my return to work program at a meeting I could not attend because I was on leave under my treating doctor’s instructions, and which my rehabilitation provider could only attend by teleconference.  This action was contrary to law and policy.

   ·Subsequent to cancelling the return to work program, in at least 2 letters, Elaine Lamond misconstrues my absence due to sick leave in compliance with my treating doctor’s orders as a mere “request” for flexible workpractices, which are available to all staff, and refuses them.

   ·In a letter of 8 December, 2004 Acting Director-General Mark Duffy:

   ¨specifically states that the MOT wants my resignation because I have made a complaint to the HREOC and because this complaint might result in legal proceedings; and

   ¨makes allegations of unspecified “conduct” and “performance issues” in relation to my direct managers and, extraordinarily, in relation to Employee Relations managers, when I do not work in Employee Relations.  In the context these allegations comprise a threat;

   ·In various letters from late 2004 to now, the Director-General, his delegated managers or his legal team wrote to me advising that they refused to re-instate the return to work program and refused to provide me with work because I had brought these legal proceedings in the Federal Magistrates Court.  Specific letters are:

   ¨Letter of 11 February, 2005 from Elaine Lamond, then Director, Employee Relations;

   ¨Letter of 12 May from Abbott Tout lawyers; and

   ¨Letter of September, 2005 from Reno Lucarini, Manager, Administration.

   ·In preparing her Affidavit for this case, Catherine Reilly deliberately constructed and back-dated by hand a file note which misrepresents the incident of verbal abuse on 27 September, 2004.  Catherine Reilly then swore a false Affidavit, using the false file note as evidence.  This is the deliberate and corrupt presentation to the Court of false information, which is material to this case and a victimisation.

2. Ms Penhall-Jones deals with s.42 of the DDA and also identifies New South Wales legislation and New South Wales public sector policies that she considers to be relevant to the resolution of this matter. She submits that of particular importance is the policy promoting the return to the workplace of ill or injured employees, including the right of access to flexible work practices, such as working from home, to assist the return to the workplace. She submits that it would be unlawful and contrary to state government policy for an established return to work programme to be arbitrarily terminated.

3. Ms Penhall-Jones makes the following submissions as to the meaning and intent of victimisation “on the grounds” of having done any of the things in the DDA (s.42):

   Section 42 of the DDA requires that the threats and acts alleged to be victimisation occur “on the grounds that” the person victimised has done one or more things mentioned in s.42(a)-(g) inclusive.

   Case law has established that in order to prove victimisation “on the grounds” of the events identified in the DDA, or any Act requiring proof in these terms, it will not be enough to identify “co-incidental” events. It has been held that even an event which occurs “in relation to” the making of a compliant does not necessarily qualify as proof of victimisation “on the grounds” of the protected activity[11].  There must be a causal link.

   While there has to be a causal connection, the causal connection does not have to be explicit.  It has been held that victimisation “on the grounds” of the actions protected from victimisation requires the person alleging victimisation to show a “conscious or unconscious motivation” to cause harm or detriment because the person has done the thing protected from victimisation[12].  This standard of proof refers to the state of mind of the victimiser as well as the detriment or potential detriment suffered by the victim.

   Nothing in the Act or the case law defines or delimits the “conscious or unconscious” motivating or intentional factors. Therefore, it is not necessary to show malice, fear, rationality, objectively meaningful motivation, or even an objectively identifiable benefit to the person doing the victimising. There is nothing in the DDA or case law to excuse victimisation which occurs for dysfunctional or irrational motives.

   Nor is it necessary to show that the person victimising has been personally implicated in the complaint for which the victim is being victimised.

   Nothing in the Act requires that victimisation must be the sole explanation for any act claimed to be victimisation, in order for a complaint of victimisation to be upheld.  To the contrary, it has been held that the nature of discrimination and related issues (for example, victimisation) is such that alternative reasons, rationalisations and multiple motivating factors will commonly be proposed[13] in order to ensure a finding against the victim.

   It has been held that persons with like-minded intentions or motives or a mutual understanding, or congruent intentions can be considered to victimise.  In some cases, such a mutual understanding may comprise “conspiracy”, depending on the lawfulness or otherwise of the actions and the damage done to the victim[14]. Where managers act together on a mutual understanding or “groupthink”, which often happens in small, close-knit or secretive management groups, it is not necessary for each person involved to be mentioned or implicated in the original complaint which is the cause of the victimisation. In workplaces where bullying is a feature of the organisational culture (as in this case), bullies tend to work together against those who complain, and weaker characters may go along with the majority through fear or pressure. The Human Rights and Equal Opportunity Commission Act 1986 section 3(3) makes reference to “an unincorporated body of persons” and “a refusal or failure to do an act”, which suggests an acknowledgement of the typical ways in which discrimination and victimisation are carried out within an organisation by informal groups aided by others who merely fail to stop it.

   There is nothing in case law that suggests that the reasons the victimiser engages in victimising must be directly related to the complaint for there to be a causal connection.  An indirect relationship is still possible and does not prevent the victimisation being “on the grounds of” the complaint, nor does it necessarily prevent a causal connection being established.  For example, a busy manager who threatens or causes detriment to a complainant, not because s/he is implicated in the complaint, but because it is more “convenient” if the complaint and/or the complainant do not have to be dealt with, is nevertheless victimising.

   The DDA is silent on the issue of the giving of advice. In a situation where (as in this case) the Department Head (the Director-General or Acting Director-General at the time) relies on advice from his senior managers, an internal corporate counsel or an external legal firm, he nevertheless must take responsibility for weighing up that advice and deciding to act on it. It is always open to him to seek further advice or reject the advice.

   Some consideration needs to be given to the accuracy and appropriateness of the advice given.  Whilst every person or entity brought before a court deserves a defence of right, where that defence is only available if that person or a person in the entity must act unethically or contrary to law in order to “reserve” that defence, there really is no legitimate defence available.

   Similarly, lower level managers who rely on advice, or take the position that they can not dissent from a prevailing view, must take responsibility for that position.  Dissent is always possible, and indeed is encouraged, by law and policy, in public servants who are expected to act in the public interest.  Dissent would normally be documented at the time.  Failure to dissent or actions complicit with unlawful acts may comprise victimisation.

   [11] Harrow v Knight [2002] UKEAT 0790_01_1811

   [12] Harrow v Knight [2002] UKEAT 0790_01_1811 at paragraphs14--21

   [13] I V v City of Perth [1997] HCA 30

   [14] McKernan v Fraser & Anor [1931] HCA 54

1. Ms Penhall-Jones then surveys the evidence and, in summary, makes the following submissions on the basis of her survey of the evidence:

   a)the letter from Mr Mark Duffy (the Acting Director-General) to Ms Penhall-Jones dated 18 November 2004 threatened her employment and provides the “clearest proof” of victimisation.  The letter links the threat to Ms Penhall-Jones’ complaint to HREOC and his threat was ultra vires his powers.  The respondent failed to call Mr Duffy to explain his action and the attempt by the respondent to mitigate the effect of the letter was unsuccessful;

   b)a further letter from Mr Duffy dated 7 December 2004 threatened the employment of Ms Penhall-Jones and also provides the “clearest proof” of victimisation.  The letter stands outside the process of negotiation in the HREOC conciliation although the letter refers to Ms Penhall-Jones’ complaint to HREOC.  The respondent attempted to portray the letter as the opposite to what it truly was;

   c)the conciliation discussion at HREOC on 28 September 2004 concentrated on the issue of resignation raised by the Department of Transport although the possibility of a transfer was raised.  A settlement deed forwarded by the Department to Ms Penhall‑Jones’ solicitors did not reflect those discussions and sought to terminate her employment.  The deed contained a “gagging clause” which was intended to silence Ms Penhall‑Jones.  Ms Penhall-Jones acted reasonably in the negotiations whereas the Department of Transport showed “sadistic intention” to cause her “as much actual harm as possible”;

   d)Catherine Reilly attempted to fabricate a file note of her discussion with Ms Penhall-Jones on 27 September 2004.  The conduct of Ms Reilly in relation to these proceedings was itself victimisation;

   e)Ms Reilly’s conduct cannot be excused on the basis of her medical condition and medication and neither should her claim of memory loss be accepted;

   f)the action by the Department of Transport to refuse to reinstate Ms Penhall-Jones’ return to work programme and to require her to deal with its solicitors following the institution of proceedings in this Court is further evidence of victimisation;

   g)the events leading up to the cancellation of Ms Penhall-Jones’ return to work programme establish a conspiracy to victimise.  There was a “mutual understanding” or a “congruence of intentions” on the part of Elaine Lamond and Catherine Reilly. Bill Grant provided support.  The necessary link between their actions and the HREOC complaint can be inferred from the timing of the actions and the purpose, as outlined in Mr Duffy’s letters, was to force Ms Penhall-Jones’ resignation.  Ms  Penhall‑Jones refers, in particular, to the failure of Catherine Reilly to attend return to work meetings in July 2004 and 6 September 2004, the informal meeting between her and Ms Lamond and Mr Zelma at a coffee shop in September 2004, Ms Lamond’s “file note” about the progress of the return to work programme, the discussion between Ms Penhall-Jones and Ms Reilly about bus policy issues on 23 September 2004 and Ms Reilly’s “verbal abuse” on 27 September 2004 and the first created “file note” by Ms Reilly on 27 September 2004, coupled with the events of the next two to three weeks.  The cancellation of the return to work programme was intended to remove a source of support and the grievance officer and to destroy the link between termination of employment and Ms Penhall-Jones’ psychological injury.  This would make it easier to put pressure on Ms Penhall-Jones to resign and to threaten her.  There was a clear intention and motive on the part of Elaine Lamond and Catherine Reilly to do Ms Penhall-Jones harm and Bill Grant later supported these detrimental acts.  On the balance of probabilities, the increased activity at the time surrounding the HREOC conciliation conference and leading up to the cancellation of the return to work programme, comprising detrimental actions, false allegations, the proliferation of self-serving “file notes”, bullying and the cancellation of Ms Penhall-Jones’ return to work program contrary to law comprise victimisation on the grounds of her having made a complaint to HREOC.

2. Ms Penhall-Jones then provides comments on the acts said to comprise victimisation.  She asserts that Elaine Lamond and Catherine Reilly both had prior knowledge of her HREOC complaint before the asserted acts of victimisation.  The file note of 20 September 2004 by Elaine Lamond had an ulterior purpose.  Although Ms Reilly and Ms Penhall‑Jones had a policy disagreement on 23 September 2004, Ms Penhall-Jones was not acrimonious, hostile or aggressive.  Ms Reilly’s file note about this meeting served an ulterior purpose.  It may not have been written until after the incident on 27 September 2004.  The meeting between Elaine Lamond, Catherine Reilly and Ed Zelma on 24 September 2004 was highly irregular.  Neither Mr Grant nor Ms Penhall-Jones knew about it.  This was part of a plot by Ms Lamond to remove the external source of scrutiny and support which Mr Zelma provided.  Ms Reilly gave inaccurate and untruthful evidence about the incident on 27 September 2004.  Ms Reilly’s conduct was deliberate and part of a “programme” of blaming and bullying.  In contrast to the allegations against Ms Penhall-Jones in relation to her performance, she was conscientious and hard working.

3. Ms Penhall-Jones then deals with what she describes as subsequent bullying behaviour by Catherine Reilly.  She submits that the bullying was part of a pattern of behaviour.  She submits that she was targeted in order to “break” her psychologically.  The object was the removal of Ms Penhall-Jones from the workplace.  False allegations were made about Ms Penhall-Jones’ performance in the return to work programme.  There were no genuine performance issues adverse to Ms Penhall‑Jones.  Her manager’s “grasped desperately” at the missed SSTS working party meeting on 27 September 2004. 

4. Ms Penhall-Jones then returns to the cancellation of her return to work programme.  She submits that this was a part of the campaign to remove her from the workplace and that the causal nexus with her HREOC complaint may be inferred from the sequence of events.  She submits that the cancellation should be seen as the culmination of a series of events of victimisation characterised by secrecy, collusion, bullying and other irregularities which are otherwise inexplicable.  The cancellation of the return to work programme was also contrary to law.  Further, it was contrary to medical advice.  There was no factual basis for the assertion that the return to work programme was not working.  The purported justification for the cancellation set out in Ms Lamond’s letter of 23 November 2004 misses the point that Ms Penhall-Jones had suffered an aggravation of her workplace injury because of the conduct of her supervisor.  The arguments that work was not being performed and that the Department could not provide work to do at home are not consistent with the facts.  The timing of the meeting to cancel the return to work programme was deliberate in order to disadvantage Ms Penhall-Jones and prevent effective participation by Mr Zelma.  The fact of the meeting was concealed from Ms Penhall-Jones by Ms Lamond.  The conduct of those involved shows “reckless indifference” to the welfare of Ms Penhall-Jones. 

5. Ms Penhall-Jones concludes by commenting on the evidence of Catherine Reilly, Elaine Lamond and Bill Grant in particular in relation to the credibility of their evidence.

6. The respondent’s written submissions were filed on 30 May 2006.  Mr Kite submits that the elements required to establish victimisation are as follows:

   a)Section 42(2) of the DDA provides that a person is taken to commit an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

   i)has made, or proposes to make, a complaint under the DDA or the HREOC Act;

   ii)has brought, or proposes to bring, proceedings under the DDA or the HREOC Act against any person;

   iii)has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under the DDA or the HREOC Act;

   iv)has attended, or proposes to attend, a conference held under the DDA or the HREOC Act;

   v)has appeared, or proposes to appear, as a witness in a proceeding under the DDA or the HREOC Act;

   vi)has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under the DDA or the HREOC Act; or

   vii)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part 2 of the DDA,

   or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

   b)In order to be successful with the victimisation application the applicant must prove, on the balance of probabilities, that she has been subjected to, or threatened to be subjected to, a detriment on at least one of the grounds set out above.

   c)The grounds referred to must be the “…substantial and operative factor”.[15] 

   d)The respondent submits that the applicant has failed to establish on the balance of probabilities that she has suffered a detriment on any of the grounds set out above.

   e)The respondent bears no legal onus of proof.  Rather it bears an evidentiary onus to address such of the allegations made by the applicant which may, absent explanation, constitute the alleged victimisation.

   f)The respondent submits that it has discharged this evidentiary onus.

   g)In particular, the respondent submits that the evidence of the respondent’s witnesses, and indeed the applicant, clearly establishes that the actions comprising the allegations made by the applicant were not motivated, or caused, by any of the grounds set out above and do not constitute a detriment to the applicant.  Rather, the actions of the respondent, and its officers, agents and employees, arose in the context of managing the applicant’s employment.

   [15] Morrison-Liddy v Director, Department of TAFE (1995) EOC ¶92-744 at 77, 362-3.

7. The respondent’s submissions make the following general points:

   a)first, the respondent invites the Court to conclude that the applicant was a difficult employee to manage.  That in turn led to incidents of conflict with those responsible for her supervision.  Supervision is not victimisation, not even when conflict ensues; 

   b)second, the applicant has a capacity and propensity to interpret events in ways which elevate commonplace behaviour to conspiratorial and destructive conduct (in her mind) which is aimed at causing her harm;

   c)third, the respondent has addressed the particulars of victimisation alleged in the application.  In respect of two such matters the respondent submits they are beyond jurisdiction.  In respect of all it is submitted that there is no victimisation nor is there any evidence of detriment; and

   d)finally, the respondent has made a number of general submissions.

8. In particular:

   a)The respondent submits that the whole of the evidence demonstrates the applicant was a difficult employee to manage; yet it was entitled, indeed obliged, to manage the applicant’s employment, including her conduct and performance (including without limitation, attendance to duty), in the ordinary course of the employment relationship that existed between the respondent and the applicant.  This does not, in the respondent’s submission, amount to victimisation;

   b)the respondent submits that the following examples establish the difficulties encountered by the respondent in the management of the employment relationship with the applicant.  This list is not exhaustive:

   i)the applicant was not satisfied with her reporting relationship (e.g. transcript 10 April 2006, page 44 (lines 44‑47), (line 48));

   ii)the applicant was not satisfied with her position description (e.g. transcript 10 April 2006, pages 44 (lines 44-47 (line 48), 12 April 2006, page 86 lines 14-20, page 89 lines 11-29, pages 91 (lines 44-92) (line 2));

   iii)the applicant was not satisfied with her area of responsibilities (e.g. transcript 12 April 2006, page 86 lines 14-15) and refused to do work outside what she determined was her area of responsibility (transcript 12 April 2006, page 86, lines 12-15);

   iv)the applicant was not satisfied with the amount or quality of the work she was being provided with (e.g. transcript 10 April 2006, page 71 lines 42-47, page 72 lines 1-19; transcript 12 April 2006, page 84 line 37-47, page 85, lines 1-42);

   v)the applicant challenged the right of her senior managers to make decisions regarding work undertaken by the applicant (e.g. transcript 12 April 2006, page 90 lines 36-48 and page 91, lines 1-24);

   vi)the applicant contended her medical condition was such that she was not susceptible to direction and control in accordance with the contract of employment (see Exhibit MPJ3);

   vii)the applicant failed to attend the SSTS working party meeting on 27 September 2004, in circumstances where the applicant had known the meeting conflicted with an appointment the applicant had with her lawyers since (at least) the beginning of September 2004, that is at least four weeks before the scheduled meeting (transcript 10 April 2006, page 50, lines 40-44);

   viii)the applicant’s non-attendance at work, and absences during the day, were performance issues (transcript 13 April 2006, page 208, line 22);

   ix)the applicant alleged being “bullied” as her senior managers “obstructed” and “blocked” her work (e.g. transcript 12 April 2006, page 89, line 3; page 90 lines 19-48; page 91, lines 1-24);

   x)with one exception, each person who was responsible for managing the applicant’s performance has been named by the applicant in the victimisation complaint as allegedly engaging in victimisation of the applicant; and

   xi)additionally, the applicant also named the Acting Director‑General and the Director General of the Ministry of Transport in the victimisation complaint as allegedly engaging in victimisation of the applicant.

   c)The respondent submits that the following evidence provides examples of the applicant’s tendency to interpret events, or omissions, such as to support (in her own mind) her allegations of victimisation.  The respondent does not accept the applicant’s subjective interpretation of these matters, and denies that it or its employees and agents have “conspired” to victimise the applicant as alleged by the applicant.  This list is not exhaustive:

   i)the applicant alleged there was political motivation in the preference of the appointment of Mr Mark Cridland (Mr Cridland) to be appointed to deal with a grievance raised by the applicant (transcript 12 April 2006, page 94, lines 21-22, lines 44-48; page 94, lines 1-2)).  There seemed to be no complaint about Mr Cridland just that Mr Mark Duffy (Mr Duffy) should have been the person appointed (for no stated reason) but was not for some constructed “political” purpose.  This Machiavellian theory lost significance in the proceedings;

   ii)the applicant’s claim that the drafting of file notes by employees of the respondent are “…administratively inexplicable” and “…an extraordinary event”.

   The file notes made by the respondent’s employees, including amongst others those made by Mr Bill Grant (Mr Grant) and Ms Catherine Reilly (Ms Reilly), were made in the context of difficulties encountered by both of them as supervisors in relation to the management of the applicant conduct and performance.  Such actions are commonplace and readily understandable; and

   iii)the applicant’s claim that the HREOC investigation was flawed as it did not “…look at any of my evidence” (transcript 10 April 2006, page 64 line 14; paragraphs 35-38 of the Applicant’s affidavit sworn on 20 March 2006).  This allegation fails to acknowledge the role and actions of the HREOC and demonstrates, in the respondent’s submission, the ridiculous nature of the “conspiracy” theories contended by the applicant.

   d)The respondent submits that the evidence of the applicant as summarised in the applicant’s submissions contains many further examples of the applicant’s tendency to interpret events, or omissions, such as to support (in her own mind) her allegations of victimisation without there being any evidence, or any proper evidence, to support the applicant’s subjective interpretation.  The respondent does not accept the applicant’s interpretation of any of these matters, some examples of which are:

   i)the applicant asserts that Mr Cridland “…refused to act on my complaints”.  This is palpably incorrect as Mr Cridland did act on the applicant’s complaints (exhibit R3).  Moreover, the Court is entitled to disregard this submission as the applicant did not contest Mr Cridland’s evidence, or require him for cross examination;

   ii)the applicant asserts “…senior officers [of the respondent] were placing strong pressure on me to resign”.  The respondent in the context of conciliation and in other attempts to resolve a protracted disagreement made an offer to the applicant which included a payment on resignation.  This allegation seems to be based on the offers of settlement which included a condition that the applicant resign.  The applicant attributes to Mr Duffy (the signatory to the letter of 8 December 2004, Annexure “O”, page 32 of the affidavit of the applicant sworn on 20 March 2006) and others who participated in the conciliation processes, the motive that they were determined to terminate her employment.  This theory is advanced notwithstanding that the applicant had indicated in an email of 30 September (annexure “D”, page 7 of the affidavit of the applicant sworn on 20 March 2006) that she was “happy to consider” options which included resignation.  Notwithstanding that the applicant “…can’t say what Mr Duffy would think” (transcript 12 April 2006, page 99, lines 25-26) she is prepared to ascribe such a motive to him in preference to the straightforward and rational explanation that the question of resignation is but one consideration in a possible settlement.  It is fanciful to draw the distinction which the applicant draws in her submissions.  In this context Mr Duffy has the power to ask, as does the applicant.  Mr Duffy does not have the power to terminate employment (without at least pursuing the due process with which the applicant is so familiar – see Exhibit MPJ4, paragraphs 10 and 99-106);

   iii)in her submissions, the applicant states that it is not clear (to the applicant at least) why the Acting Director-General sent her the letter of 8 December 2004.  The letter (annexure “O” to the applicant’s affidavit sworn on 22 March 2006) clearly indicates it is written in response to the applicant’s letter of 24 November 2004;

   iv)the applicant asserts that nobody at the SSTS working party meeting “…discussed or even noticed my absence”.  The respondent submits there is simply no evidence to support this assertion;

   v)the applicant asserts that “It is clear that by 27 September, 2004 both Elaine Lamond and Catherine Reilly sought to remove me physically from the workplace”.  The respondent submits there is simply no evidence to support this assertion; and

   vi)the applicant asserts her “…inability to remember is itself evidence of Ms Reilly’s inappropriate aggression”.  By this submission the applicant, fancifully, claims her recollection of parts of this conversation should be preferred even though she cannot recall parts of the conversation.  The applicant also reinforces her view that there must have been aggression because she cannot remember, and inability to remember is a product of aggression.  The circularity of this argument is astounding.  The respondent submits that the applicant’s anxiety was more likely the result of feeling guilty as the applicant had not told her supervisors she would not be attending a meeting when the applicant knew that her supervisors thought she would be attending.

   e)Any allegation that the cancellation of the applicant’s return to work program was contrary to the workers compensation legislation is a matter which could have been taken up in the workers compensation proceedings when the respondent’s workers compensation insurer ceased to support the program in April 2004.  It is not a matter for this Court in these proceedings.

1. The respondent notes that the victimisation complaint contains 15 paragraphs, from which seven allegations of victimisation can be distilled as follows:

   a)the applicant alleged verbal abuse at a meeting with her supervisor on 27 September 2004, followed by a “program of bullying”;

   b)the use of a conciliation conference held in the HREOC relating to the disability discrimination complaint to bring about the end of the applicant’s career;

   c)a threat to the applicant’s employment by the Acting Director‑General in a letter of 18 November 2004;

   d)the cancellation of the applicant’s return to work program in November 2004;

   e)on 2 December 2004, the Director of Employee Relations of the respondent misconstrued the applicant’s request that the respondent implement the recommendations of her treating doctor as a mere request and refused the request;

   f)by letter of 12 May 2005, the respondent through its legal representatives limited the applicant’s access to human resources services; and

   g)after 11 July 2005, the respondent offered an undertaking not to victimise the applicant but refused to do anything about the applicant’s allegations of victimisation.

2. The respondent further notes that, in her submissions, the applicant claimed two further grounds of victimisation to those set out above.  These were:

   a)a letter to the applicant from Mr Reno Lucarini (Mr Lucarini) of 16 September 2005, which informed the applicant the respondent was not in a position to provide the applicant with suitable duties in relation to her stated capacity to work as contained in the latest WorkCover medical certificate provided by the applicant; and

   b)the alleged deliberate construction, or reconstruction, by Ms Reilly of a file note regarding the incident which took place on 27 September 2004.

3. In relation to the additional grounds, the respondent notes that s.46PO(3) of the HREOC Act, provides that the unlawful discrimination alleged in an application (made pursuant to s.46PO(1) of the HREOC Act) must:

   a)be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

   b)arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

4. Further, the scope of the proceedings before the Court is “…limited to the scope of the complaint made to HREOC” [16].  In cases where an applicant elaborates on an initial complaint by subsequent correspondence to the HREOC, the scope of the proceedings before the Court will be “…determined by a consideration of the complaint as terminated by the Commission”.[17]

   [16] Penhall-Jones v State of New South Wales [2006] FMCA 235 at [12].

   [17] Paramasivam v O’Shane & Ors [2005] FMCA 1686 at [21].

5. The respondent submits that the additional matters identified are beyond the jurisdiction of the Court.  In the alternative, the respondent submits that these matters do not amount to victimisation.  In view of the strength of the alternate argument the Court may not need to determine the jurisdictional point.

6. The respondent submits that:

   a)the Court can only deal with complaints of discrimination that have been first considered and determined by the HREOC[18] and, as a result, the jurisdiction of the Court in relation to the victimisation application is limited to the allegations contained in the victimisation complaint; and

   b)as a general rule the jurisdiction of the Court in relation to the victimisation application is limited to alleged acts or omissions that pre-date the making of the victimisation complaint by the applicant to the HREOC on 25 July 2005 unless the complaint is amended (even informally) prior to its termination. 

   [18] Miller v Wertheim & Anor [2001] FMCA 103 at [11].

7. There was no change in the scope of the victimisation complaint prior to its termination.  Accordingly, the respondent submits that all allegations of victimisation which occur after 25 July 2005, should not be considered in the victimisation application as they do not form part of the matters before the Court for determination.[19]

   [19] Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 at [43]; Paramasivam v O’Shane & Ors [2005] FMCA 1686 at [23].

8. While s.46PO(3)(b) does allow an applicant to allege different facts from those which are alleged in the terminated complaint, the new facts cannot be different in substance from the facts formerly alleged.[20] 

   [20] Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 at [39].

9. The respondent submits that the allegation in relation to Mr Lucarini’s letter of 16 September 2005 is substantially different from the victimisation complaint lodged by the applicant in the HREOC.

10. In this regard the respondent submits that although reference is made to the letters from the respondent of 11 February 2005 and 12 May 2005 in another context (i.e. there is a direct complaint that the Director of Employee Relations misconstrued the applicant’s request in December 2004, and the letter of 12 May 2005 is specifically referred to as a denial of human resources services), the applicant did not raise in the victimisation complaint to the HREOC, an allegation of victimisation arising from an alleged refusal to reinstate the return to work program generally.

11. In the alternative, the respondent submits that the Court is entitled to accept Mr Lucarini’s evidence in relation to his letter of 16 September 2005, as his evidence was not challenged by the applicant, nor was Mr Lucarini required by the applicant for cross-examination.

12. The respondent submits that the Court has no jurisdiction to determine whether the allegation of reconstructed evidence above amounts to victimisation as it postdates the making of the victimisation complaint by the applicant to the HREOC on 25 July 2005.  It appears that the amendments to the file note occurred in mid to late 2005 (transcript 13 April 2006, page 175, lines 1-2).

13. Additionally, the respondent submits that the Court has no jurisdiction to determine the applicant’s claims of “…newly emerging issues” (which are not specifically articulated) which amounted to victimisation, to the degree that those alleged matters:

    a)are not the same as, or the same in substance as, the grounds set out in the victimisation complaint; or

    b)do not arise out of the same, or substantially the same, acts, omissions or practices that were the subject of the victimisation complaint.

14. In the alternative, the respondent submits that each of the matters raised by the applicant does not amount either to:

    a)victimisation – on the basis that the applicant has not proven any of the allegations of victimisation; or

    b)a detriment – as required by s.42(2) of the DDA.

15. The respondent addresses the factual issues dealt with by Ms Penhall‑Jones as follows:

Meeting on 27 September 2004

1. A meeting took place between the applicant and Ms Reilly on 27 September 2004.  The meeting occurred as a result of the applicant failing to attend a meeting of SSTS Working Party on the same day.  Prior to the meeting the applicant:

   a)gave the impression through the sending of emails that she would be attending the meeting (exhibit R2);

   b)at the very least, gave no indication that she would not be attending the meeting (transcript 10 April 2006, page 51, line 9);

   c)did not advise any person of the fact that the meeting conflicted with an appointment the applicant had with her lawyers which she had known about since (at least) the beginning of September 2004, that is at least four weeks beforehand (transcript 10 April 2006, page 50, lines 40-41) and

   d)was aware that advising her managers of the conflict in the meeting times was the appropriate thing to do (transcript 10 April 2006, page 51, lines 3-4).

2. The applicant admitted under cross examination that she was aware that the meeting conflicted with an appointment the applicant had with her lawyers (transcript 10 April 2006, page 50, lines 42-44).  As a result, the applicant’s evidence, and assertions in the applicant’s submissions of her having an “…unavoidable conflict” which prevented her from attending, should be doubted.  But more importantly the applicant had it well within her control to advise her senior managers that she could not attend the SSTS working party meeting in part or at all.  The meeting with the applicant’s legal representative was at 11.00am (transcript 10 April 2006, page 58, lines 46‑47).  The SSTS working party meeting started at 9.00am and the applicant could have attended a substantial part of that meeting.

3. The applicant also admitted in cross examination that she determined, of her own volition, that her attendance at the SSTS working party meeting was not necessary (transcript 10 April 2006, page 51, lines 14‑24), and justified her decision on the basis that Mr Grant had said to the applicant her attendance “…would be good” however “he didn’t say it was essential.” (transcript 10 April 2006, page 51, lines 27-28).

4. In the premises, it was appropriate for Ms Reilly to raise with the applicant her non-attendance at the meeting of the SSTS working party as a performance issue.

5. On 27 September 2004, Ms Reilly prepared a file note recording the details of her meeting with the applicant.  Ms Reilly emailed that file note to Mr Grant and Ms Elaine Lamond (Ms Lamond).  This was not contested by the Applicant.  Indeed, the affidavit of Mr Perry Hammond (Mr Hammond), of the respondent’s information technology department, filed on 7 April 2006, was admitted into evidence without contest by the applicant, who did not require Mr Hammond for cross‑examination.

6. The respondent submits that the applicant’s recollection of this event should not be accepted.  The applicant’s own evidence was that she has difficulty remembering parts of the meeting (transcript 10 April 2006, page 53, lines 10 and following).  The applicant also admits this in her submissions.  Additionally, the applicant’s oral evidence differed from her affidavit evidence (transcript 10 April 2006, page 39, lines 26 – page 40, line 40).  In the circumstances, Ms Reilly’s version of the conversation is to be preferred supported as it is by a contemporaneous file note.  Ms Reilly’s version also conforms with expectations of a supervisor (see also the comments in paragraphs 81-88 below).

7. Nothing in the evidence credibly suggests there was verbal abuse or bullying by Ms Reilly.

8. Finally, the evidence of Ms Reilly (like Mr Grant) was that she did not become aware of the fact the applicant had made a complaint to the HREOC until about October 2005 (paragraph 39 of Ms Reilly’s affidavit filed on 5 April 2006 and transcript 13 April 2006, page 168, lines 13-15; page 169, lines 1-14).  Any action by Ms Reilly could not be for the reasons identified above.

9. The respondent submits that nothing in the meeting on 27 September 2004, could, or does, amount to victimisation on the grounds set out above.  Ms Reilly was entitled to discuss the applicant’s failure to attend this meeting, nor inform anybody of her intention not to attend, with the applicant as part of the performance management of the applicant as an employee.

The conciliation conference held on 28 September 2004

1. A conciliation conference was held at the HREOC on 28 September 2004, in the disability discrimination application.

2. The applicant admits that she was legally represented:

   a)at the conciliation conference (transcript of 12 April 2006, page 95, lines 45-47); and

   b)at the time she received a Deed of Release from the respondent’s legal representatives (transcript of 12 April 2006, page 99, line 31-34). 

3. During the conciliation conference, and following its conclusion, the applicant (either directly or through her legal representatives) made and rejected offers of settlement of the disability discrimination complaint (transcript 12 April 2006, page 96, lines 27-48; page 99, lines 31-40).

4. The applicant offered to resign from her employment with the respondent (annexure D to the applicant’s affidavit of 20 March 2006).  Additionally, the applicant agreed that the respondent could ask for her resignation (transcript of 12 April 2006, page 102, lines 38-40, transcript of 12 April 2006, page 103, lines 32-34).

5. The respondent submits that this process could not, and cannot, amount to victimisation.  It is a bona fide attempt, on a without prejudice basis, to resolve the complaint and other issues including the breakdown in the employment relationship.  If this were to amount to victimisation the HREOC conciliation process would be seriously undermined.

The letter from the Acting Director-General to the applicant of 18 November 2004

1. The respondent agrees with the applicant’s assertion in her submissions that this letter “…speaks for itself”.  The letter, written by Mr Duffy, was written in response to a letter/email from the applicant of 15 November 2004 (Exhibit R4).  There was no other purpose for writing the letter as Mr Duffy, as Acting Director-General, had no direct supervision of the applicant.  The applicant’s letter/email contains a list of alleged wrongdoings by the respondent and its employees and agents, including (amongst others):

   a)the offer contained in the Deed of Release was “…essentially a bribe”; and

   b)the Deed of Release was an attempt to “…illegally terminate [the applicant’s] contract”.

2. The respondent submits that in the circumstances it was appropriate for Mr Duffy to respond in the manner he did to the applicant’s letter.

3. The respondent submits that the Court should not draw any negative inferences from the fact Mr Duffy was not called to give evidence.  His letter merely responded to matters raised by the applicant in her correspondence to him.  The applicant herself gave evidence of a number of these matters in her affidavit material and cross‑examination.

4. The respondent submits that Mr Duffy’s letter could not, and does not, amount to victimisation.  It is rather a structured letter placing in context (amongst other things):

   a)the allegations made by the applicant;

   b)the fact that the mere raising of such allegations does not establish the fact that wrongdoing has occurred;

   c)the fact that if an employee raises and continues to raise such serious and unfounded allegations, that fact alone would be sufficient to terminate a contract of employment;

   d)the Deed of Release, and particularly the fact that it did not seek to ‘contract out’ of statutory obligations including workers compensation and protected disclosures; and

   e)that the applicant could accept or reject the offer, including seeking any modifications to the Deed,

   with a view to encouraging a review of the applicant’s position in relation to the offer, by clarifying it and the context in which it was made.  This is a regular and proper approach to settlement by negotiation.

Cancellation of the applicant’s return to work programme in November 2004

1. This issue should be seen against the background of the respondent persisting with the applicant’s return to work program notwithstanding the Respondent’s workers compensation insurer ceasing support for rehabilitation services in April 2004.  The respondent’s witnesses confirmed that the return to work programme was cancelled in November 2004 for a variety of reasons including the fact that it was not meeting its stated objectives including the return to work of the applicant.

2. More importantly, the respondent submits that the applicant failed to establish on the balance of probabilities that the return to work programme was terminated because of one of the alleged victimisation grounds set out above.

3. The applicant did not call Mr Edward Zelma (Mr Zelma) to give evidence.  As a result the Court is entitled to assume that Mr Zelma’s evidence would not assist the applicant’s case[21], particularly as his notes (Exhibit MPJ3 page 39) support the evidence of the respondent’s witnesses.

   [21] Jones v Dunkel [1959] 101 CLR 298

4. The respondent submits that, the evidence of the respondent’s witnesses as to what took place at the meeting between Mr Zelma, Mr Grant, Ms Lamond and Ms Reilly on 4 November 2004, should be accepted by the Court.  It is consistent with Mr Zelma’s notes.

5. The applicant admitted in cross examination that:

   a)she was aware of the time and date of the meeting (transcript, 12 April 2006, page 111, line 15 to page 112, line 31); and

   b)that Mr Zelma was of the view that there was no point of the return to work programme continuing at the moment, that is 4 November 2004 (transcript, 12 April 2006, page 113 lines 11-26).

6. The respondent submits that exhibit R5 also clearly establishes these matters.

7. As stated above, any allegation that the cancellation of the return to work programme was contrary to the workers compensation legislation is a matter which could have been taken up in the workers compensation proceedings when the respondent’s workers compensation insurer ceased to support the program in April 2004.  It is not a matter for this Court in these proceedings.

8. The respondent submits that cancellation of the return to work programme could not, and does not, amount to victimisation.  It is rather a decision made by the officers of the respondent on reasonable grounds including:

   a)professional advice tendered by Mr Zelma; and

   b)based upon medical considerations and the applicant’s own conduct.

2 December 2004 – Director of Employee Relations misconstrued the applicant’s request that the respondent implement the recommendations of her treating doctor as a mere request and refused the request

1. The applicant did not lead any evidence, nor cross-examine any of the respondent’s witnesses, about this issue.  The difference between a “request” and a “mere request” is illusory.  The fact is it was a request, not a direction.  The adjective “mere” does not change anything.  Accordingly, the respondent submits that this issue could not, and does not, amount to victimisation.  At worst, it is a misunderstanding by the applicant.

The letter of 12 May 2005 to the applicant from the respondent’s legal representatives

1. The applicant alleges in her submissions that the letter of 12 May 2005 to the applicant from the respondent’s legal representatives, Abbott Tout, is a “clear detriment”.  The respondent rejects this assertion as:

   a)the applicant admitted in cross-examination that the letter did not inhibit the applicant from writing to the Director-General; and

   b)the applicant did in fact write further letters to the Director-General (e.g. annexures “V”, “W” and “X” of the applicant’s affidavit sworn on 22 March 2006); and

   c)Abbott Tout sent the applicant a further letter of 16 May 2005 (exhibit R6) which confirmed amongst other matters:

   i)the illness in respect of which the applicant sought compensation and rehabilitation is the detriment she alleged against the respondent in consequence of alleged disability discrimination.  Consequently the issues relevant to her workers compensation rights were issues in the, so called, discrimination proceedings (i.e. the disability discrimination complaint); and

   ii)the applicant was entitled to write to the Director-General.

2. It is a regular and proper occurrence when litigation is on foot for lawyers to request communications touching upon the litigation to be directed to them.  That is all that occurred here.

3. Accordingly, the respondent submits that this issue could not, and does not, amount to victimisation.

After 11 July 2005, the respondent offered an undertaking not to victimise the applicant but refused to do anything about the applicant’s allegations of victimisation

1. The applicant did not lead any evidence, nor cross examine any of the respondent’s witnesses, about this issue.  In any event, the respondent submits it continued to deny the applicant’s claims and to defend itself against these proceedings.  Accordingly, the respondent submits that this issue could not, and does not, amount to victimisation.

1. Ms Penhall-Jones concludes that she should receive damages for past and ongoing economic loss (taking into account amounts received under workers compensation), general damages, indemnity costs and an order that the respondent cease all victimisation and take steps in a reasonable time to provide for her safe return to the workplace and/or if necessary to find an alternative placement by means of transfer to another Government department and special orders concerning the allegedly false evidence constructed by Ms Reilly, either referring the matter on or allowing Ms Penhall-Jones to take further action as may be open to her. 

2. The respondent filed a further submission on 20 June 2006 which dealt with Ms Penhall-Jones’ adverse comments upon the conduct of the respondent’s legal representatives in her submissions in reply.  Ms Penhall-Jones by letter objected to that submission being taken into account.  My associate advised the parties by letter that submissions had closed with Ms Penhall-Jones’ submission in reply and that the further submission by the respondent would not be taken into account.

Reasoning

1. Ms Penhall-Jones does herself a disservice in the manner in which she has presented her case.  The extravagance of her claims has increased since she parted company with the three legal firms which had represented her at an earlier stage in these proceedings.  Unfortunately, the hyperbole in which Ms Penhall-Jones has indulged is not restricted to these proceedings[24].  Unfortunately, the extravagant formulation and presentation of claims is a relatively common feature in proceedings involving self-represented litigants.  The Court must look beyond that.  Beneath the hyperbole, the hubris and the extravagant (and at times embarrassing) language indulged in by Ms Penhall-Jones in the presentation of her case there is an arguable claim of victimisation that must be considered.

   [24] see Penhall-Jones v Stiftung Ausbildungsfonds Jung'she Psychologie [2006] HCATrans 100

2. Ms Penhall-Jones’ claim is brought pursuant to s.46PO of the HREOC Act on the basis of an asserted breach of s.42 of the DDA. Those sections provide as follows:

3. Section 46PO of the HREOC Act:

   (1)  If:

   (a)a complaint has been terminated by the President under section 46PE or 46PH; and

   (b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

   any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

   Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

   (2)The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

   (3)  The unlawful discrimination alleged in the application:

   (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

   (b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

   (4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

   (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

   (b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

   (c)an order requiring a respondent to employ or re‑employ an applicant;

   (d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

   (e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

   (f)an order declaring that it would be inappropriate for any further action to be taken in the matter.

   (5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 , subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976 ).

   (6)The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

   (7)The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

   (8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.

4. Section 42 of the DDA:

   (1)It is an offence for a person to commit an act of victimisation against another person.

   Penalty:  Imprisonment for 6 months.

   (2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

   (a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or

   (b)has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; or

   (c)has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or

   (d)has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or

   (e)has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or

   (f)has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or

   (g)has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;

   or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

5. Ms Penhall-Jones’ submission that s.46PO of the HREOC Act is limited in its operation to unlawful discrimination and does not extend to victimisation cannot be right. If s.46PO did not include complaints of victimisation the Court would have no jurisdiction to entertain her application. It is true that s.46PO(3) is expressed in terms of “unlawful discrimination”. Unlawful discrimination is defined by s.3 of the HREOC Act as meaning relevantly, any acts, omissions or practices that are unlawful under Part 2 of the DDA and includes any conduct that is an offence under Division 4 of Part 2 of the DDA. That includes s.42 of the DDA. It follows, and I find, that the jurisdictional limitation contained in s.46PO(3) of the HREOC Act applies to a claim of victimisation arising out of a terminated complaint of victimisation.

6. In Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573, Katz J expressed the view that s.46PO(3) does not permit an applicant to rely on acts of discrimination which occur after a complaint has been lodged with HREOC[25].  However, that view was qualified in Travers v New South Wales [2000] FCA 1565 by Lehane J who stated[26] that the ambit of a complaint is to be ascertained, for the purpose of s.46PO(3) by considering the shape of the complaint as at its termination. That is the approach I took in Ho v Regulator Australia Pty Ltd [2004] FMCA 62 and in Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721. I have not changed my view.

   [25] see paragraph 43 of His Honour’s judgment

   [26] see paragraph 8 of His Honour’s judgment

7. The complaint of victimisation made by Ms Penhall-Jones to HREOC was a complaint of ongoing victimisation, illustrated by reference to a number of alleged events.  In these proceedings, Ms Penhall-Jones is entitled to rely on events occurring up to the date of the termination of her complaint of victimisation, where those events formed part of her complaint or so clearly connected to it that they may be considered as part of it.  Ms Penhall-Jones’ complaint of victimisation was terminated by a delegate of the President of HREOC on 20 September 2005.  She cannot, in these proceedings, claim relief in respect of alleged acts of victimisation after that date.  The result is that I will not consider, as an asserted act of victimisation, the reconstruction by Ms Reilly of her earlier file note of her conversation with Ms Penhall‑Jones on 27 September 2004.  As best as Ms Reilly can recall, that reconstruction took place in mid to late 2005 and could well have occurred as late as October 2005, after the termination of the complaint by HREOC.  In the reconstructed file note, Ms Reilly refers to Ms Penhall-Jones as “the applicant”. I find, on the balance of probabilities, that the reconstructed file note was created after the termination of the complaint of victimisation and the institution of the present proceeding in this Court.  The reconstruction of the file note by Ms Reilly remains relevant, however, in considering the credibility of her evidence about the events on 27 September 2004. 

8. I will consider the other acts of victimisation alleged by Ms Penhall‑Jones.  In considering the allegations I require a high degree of satisfaction that victimisation is established.  An allegation of victimisation is an extremely serious matter which may have grave consequences for a respondent.  Such allegations must be proved to the Briginshaw standard.

9. In considering the claim of victimisation it is unnecessary for me to resolve the question whether Ms Penhall-Jones now suffers from, or ever suffered from, a “disability” for the purposes of the DDA. I note that that is a disputed issue but I will not expand upon the observations that I made about it in my earlier judgment dismissing the application asserting disability discrimination. For the purposes of this proceeding, it is sufficient that Ms Penhall-Jones had made a complaint of disability discrimination.

The events of 27 September 2004

1. On the morning of 27 September 2004 Ms Penhall-Jones was to have attended a meeting of the SSTS working party.  Ms Penhall-Jones chose not to attend.  It was her own decision because of the arrangement she had made for a conference with her lawyers in preparation for their attendance at a conciliation conference arranged by HREOC for the following day.  Ms Reilly expected Ms Penhall‑Jones to attend the SSTS working party meeting and had not been given any prior notice by Ms Penhall-Jones that she would not attend.  According to Ms Penhall-Jones’ account, Ms Reilly appeared angry when she met Ms Penhall-Jones at her work station at around 10.30am on that day.  Ms Penhall-Jones asserts that Ms Reilly spoke to her in an angry and abusive manner.  On Ms Penhall-Jones’ account, Ms Reilly was angry and abusive from the outset.  She appears to have been incensed that Ms Penhall-Jones had failed to attend the meeting.  She did not know, at the outset, that Ms Penhall‑Jones had arranged a meeting with her lawyers or that she had a commitment at HREOC the following day.  On Ms Penhall‑Jones’ account, Ms Reilly angrily demanded an explanation for Ms Penhall-Jones’ non attendance at the SSTS meeting and Ms Penhall-Jones explained her appointment with her solicitors and the commitment at HREOC the following day. 

2. I accept that verbal abuse in the workplace (particularly by a supervisor) can be a “detriment” for the purposes of s.42 of the DDA. However, it is plain, from Ms Penhall-Jones’ own account of the discussion between her and Ms Reilly, that what incensed Ms Reilly was the non attendance of Ms Penhall-Jones at the SSTS working party meeting, not Ms Penhall‑Jones’ complaint to HREOC, nor her pending attendance at the HREOC conciliation conference. I am prepared to accept that Ms Reilly dealt with Ms Penhall-Jones in their conversation in a hectoring manner. I regard Ms Reilly’s account of the discussion as unreliable. Her contemporaneous file note of the conversation was prepared in the knowledge that Ms Penhall-Jones had made a complaint against her and was prepared as a personal response to that complaint. It was understandable that Ms Reilly would seek to place an interpretation on the discussion most favourable to herself. But she went further. Ms Reilly acted most unwisely in amending her contemporaneous file note in around October 2005 for the purposes of it being used as evidence in these proceedings. Her action was especially foolish as the contemporaneous version of her file note was already annexed to another affidavit filed in the proceedings and so her amendment was bound to be discovered. It is obvious that Ms Reilly and Ms Penhall-Jones do not like one another. There is a high degree of personal acrimony between them. They had disagreed well before Ms Penhall-Jones’ HREOC complaint over union matters and had had a strenuous disagreement on an issue of policy in a discussion on 23 September 2004. That animosity makes me cautious about accepting the evidence of either of them about the content of the conversation between them, but I prefer the evidence of Ms Penhall‑Jones. There is no issue of perjury or contempt (the affidavit of Ms Reilly in which she sought to rely upon the reconstructed file note was not read) and Ms Reilly should not be further pursued by Ms Penhall-Jones about the matter.

3. Ms Reilly had been made aware, prior to 27 September 2004, that Ms Penhall-Jones had made a complaint to HREOC[27]. There is no evidence that Ms Reilly was aware of the details of that complaint or that she had any interest in it. Ms Reilly was at one time a confidant of Ms Penhall-Jones but the relationship had cooled significantly by July 2004. Ms Penhall-Jones objected to being supervised by Ms Reilly from July 2004. She had a low opinion of Ms Reilly’s professional capacity. For her part, Ms Reilly, although herself an alleged victim of workplace bullying, had shown little interest in Ms Penhall-Jones’ return to work programme put in place as a result of her allegations of workplace bullying. Ms Reilly had failed to attend two meetings to monitor progress in the return to work programme. I find that, as at 27 September 2004 Ms Reilly cared little for Ms Penhall-Jones, her allegations of bullying, her return to work programme, or her complaint to HREOC. Her confrontation with Ms Penhall-Jones on the morning of 27 September 2004 was not linked to the complaint to HREOC or the pending conciliation conference. Rather, it was an overreaction to Ms Penhall-Jones’ failure to attend the SSTS meeting. I find that the conduct of Ms Reilly on 27 September 2004, while open to criticism, was not victimisation for the purposes of s.42 of the DDA.

   [27] exhibit R8

4. Neither was the alleged “programme of bullying” engaged in by Ms Reilly after 27 September 2004 victimisation.  It does appear that after 23 September 2004 Ms Reilly began to take a close interest in Ms Penhall-Jones’ work and that she commenced taking an interest in Ms Penhall-Jones’ return to work programme.  It is highly likely that Ms Reilly formed a view, after her confrontations with Ms Penhall‑Jones on 23 and 27 September 2004, that she could not work with her.  This must be seen in the context also of the prior history of the dealings between the two women.  Mr Grant knew that Ms Penhall-Jones did not want Ms Reilly as her supervisor as she had complained to him about it and both knew that Ms Penhall‑Jones could be difficult to deal with.  Ms Reilly had her own problems as a result of alleged workplace bullying and had had to undergo a return to work programme and remained on medication.  The Department of Transport deals with difficult policy issues of public importance in New South Wales and I have no doubt that the work of its staff can be stressful.  I think it likely that between July and 23 September 2004 Ms Reilly paid less attention to Ms Penhall-Jones and her work than she should have.  After that date she took a close interest.  She found fault with Ms Penhall-Jones and her work.  A supervisor is entitled to scrutinise and criticise the work of those who are supervised.  The attitude of Ms Reilly may well have been coloured by her growing dislike of Ms Penhall-Jones but no link has been established with the HREOC complaint made by Ms Penhall-Jones. 

The conciliation conference

1. Ms Penhall-Jones attended the conciliation conference at HREOC on 28 September 2004 in the company of her legal representatives.  The Department was also represented by its lawyers.  A settlement of the claim of unlawful disability discrimination was discussed.  The payment of money was discussed.  The Department later presented Ms Penhall-Jones with a deed of release.  The Department proposed that, in return for a payment, Ms Penhall-Jones would resign her employment.  The Department also proposed a non disclosure clause.

2. Ms Penhall-Jones now chooses to characterise the offer made by the Department as a “bribe” and the proposal that she resign her employment as a threat amounting to victimisation.  This is ridiculous.  She herself in the conference had offered to resign in return for the payment of a sum of money.  It was reasonable for the respondent to seek to limit its liability to Ms Penhall-Jones by securing the cessation of her employment in return for adequate compensation.  Ms Penhall‑Jones did not regard the monetary offer as adequate but she did not have to accept it.  The HREOC conciliation process is non binding and no one is forced to agree to anything.  The attempt by Ms Penhall-Jones to use the private conciliation conference to support her claim of victimisation is most unfortunate.  If such a tactic were to become common it would imperil the conciliation role of HREOC as respondents would be reluctant to participate in conciliation for fear of the process then being used against them.

3. Neither is there anything untoward in the confidentiality clause in the deed proposed by the respondent.  A non disclosure clause is usual to the point of being standard in such a deed.  The proposed clause was in the usual form. It would not have prevented Ms Penhall-Jones from making protected disclosures to ICAC or other appropriate authorities in the event that Ms Penhall-Jones had wished to take on the mantle of a “whistle blower”.

Correspondence from Mr Duffy

1. On 15 November 2004 Ms Penhall-Jones wrote a letter of complaint to Mr Duffy[28].  Ms Penhall-Jones complained about the settlement offer made to her and alleged serious misconduct on the part of the departmental officers responsible for the offer.  She stated that Mr Duffy was “required to investigate and take appropriate action regarding allegations of misconduct, especially criminal misconduct – not cover them up!”.  Ms Penhall-Jones described the settlement offer as an attempt to “illegally terminate my contract and impose an illegal gagging clause on me”.  Ms Penhall‑Jones referred to an earlier request by her to Mr Duffy for him to reveal the names of those responsible for briefing the Department’s legal representatives.  Mr Duffy had declined to provide that information.  The letter went on to refer to other allegations of misconduct unrelated to the HREOC complaint.

   [28] exhibit R4

1. In his reply dated 18 November 2004[29] Mr Duffy noted that the relevant material had been reviewed and that he had taken advice.  The letter continued:

   [29] annexure J to the affidavit of Ms Penhall-Jones filed on 22 March 2006

   You have raised many issues and allegations against the Ministry and its officers and employees, including but not limited to: unlawful discrimination; victimisation; criminal misconduct (including corruption); breach of contract; and maladministration.  All these matters have been denied by the Ministry for itself and its officers and employees.

   The mere raising, by you, of allegations does not establish the fact that wrongdoing has occurred.  Such matters once asserted by you must be proved by you.  Indeed such is the case with your current Human Rights and Equal Opportunity Commission claim, which as you know is being defended.

   Further, it must be said that if an employee raises and continues to raise such serious (and, in our opinion, unfounded) allegations, which are either false or vexatious that fact alone would be sufficient, on our advice, for the Ministry to terminate your contract of employment.  That is conduct, by an employee, of that kind is completely contrary to the duties of fidelity, trust and good faith owed by an employee to an employer.

   In settling your claims the Ministry seeks a complete release and the Deed of Release, on our advice, is appropriate.  The Deed does not seek to, and cannot “contract out” of statutory obligations for example: workers compensation; disclosures under the Protected Disclosure Act 1994 (NSW); or the like.  Accordingly the Ministry seeks to maintain confidentiality but it does not seek to restrict your statutory rights.

   We are satisfied that the employees of the Ministry involved in the briefing of its external legal advisors have, at all times, acted in accordance with the Ministry’s directions.

   The Ministry’s offer can either be accepted or rejected by you.

   Please let us know if you accept or reject the offer.  If you accept the offer, can you please notify us of any changes you, or your legal representative, propose to the Deed of Release.

   A copy of this letter has been provided to the Ministry’s legal representatives, Abbott Tout Lawyers, to forward to your legal representatives, Jones Staff & Co.

2. Both parties agree that this letter speaks for itself.  It was unnecessary for Mr Duffy to give evidence in relation to it and I draw no adverse inference from the failure of the respondent to call Mr Duffy as a witness.  Ms Penhall-Jones regards the letter as containing a threat to her employment.  She is probably correct.  Mr Duffy came close to asserting directly that Ms Penhall-Jones had already provided sufficient cause for her employment to be terminated.  At the very least, Mr Duffy was warning Ms Penhall-Jones that a continuation of her conduct might lead to the termination of her employment.  Although expressed in general terms, by reference to advice, the letter contains the implication that the duty of trust and confidence essential to the employment relationship had been breached or was at risk of being breached.  In that Mr Duffy was doing no more than stating the obvious.  That is not to say that all of the allegations made by Ms Penhall-Jones, which extended to events unrelated to her complaints to HREOC going back as far as 1999 were necessarily unfounded, false or vexatious.  What is important is that Mr Duffy (and it appears the Department of Transport as an entity) regarded the allegations as unfounded, false and vexatious.  Provided that that view was genuinely held and was not a mere pretext for dismissal, there was no victimisation.  The question then is, was it a genuinely held view, or was it a pretext?

3. It is clear to me from Mr Duffy’s letter that the Department of Transport wished to see the back of Ms Penhall-Jones.  Her employment could not, in the view of the Department, continue once the duty of trust and confidence had been breached.  The apparent breakdown of the employment relationship was the reason why the Department had proposed that Ms Penhall-Jones resign in its settlement offer.

4. Clearly, the involuntary termination of Ms Penhall-Jones would be a detriment. Likewise, a threat to cause such a detriment may constitute victimisation for the purposes of s.42 of the DDA. However, the threat must have been made on one of the enumerated grounds of s.42(2) for victimisation to be established. It cannot be said that Ms Penhall‑Jones' complaint of unlawful discrimination formed no part of the consideration that led to the threat made by Mr Duffy. However, in my view, it was an incidental part. The direct and proximate stimulus for Mr Duffy’s letter was Ms Penhall-Jones’ intemperate letter of three days before, in which she made serious (and unfounded) allegations of misconduct on the part of those representing the Department at the conciliation conference. Ms Penhall-Jones’ letter to Mr Duffy was intended to provoke a reaction, and she got one. It was apparent to Mr Duffy that Ms Penhall‑Jones’ conduct had reached the point where the trust and confidence essential as between employer and employee was at least in peril, rendering it unlikely that she could continue in employment with the Department. It is implicit in the letter that the Department was seeking to “manage her out” but that it was seeking to do so on a negotiated basis that Ms Penhall-Jones could accept or reject as she saw fit. The threat of dismissal was based on advice and a genuine concern. It was not based upon a pretext. Moreover, the threat of dismissal was neither imminent nor certain.

5. Subsequent events have borne this out.  Ms Penhall-Jones rejected the offer and has continued to make serious allegations against officers of the Department of Transport.  Her employment has not been involuntarily terminated.  With the benefit of hindsight, Mr Duffy’s threat appears to have been an idle one.  It would have been better if it had not been made.  It certainly did no good, in terms of modifying Ms Penhall-Jones’ behaviour.  If anything, it had the opposite effect.  However, the threat, in my view, falls short of victimisation.  That is because the threat was a consequence not of the fact of the complaint of unlawful discrimination made by Ms Penhall‑Jones, or her participation in the conciliation conference on 28 September 2004.  Rather, the threat was a consequence of the intemperate and continuing allegations by Ms Penhall-Jones which Mr Duffy, on advice, genuinely viewed as unfounded, false and vexatious, to the extent of probably constituting a breach of the duty of trust and confidence necessary for the continuation of the employment relationship. 

6. Ms Penhall-Jones wrote to Mr Duffy again on 24 November 2004[30] in which she took issue with the threat contained in his letter. Ms Penhall-Jones notes that she has forwarded a copy of her previous letter to the Minister’s office who forwarded it to ICAC for investigation. Ms Penhall-Jones noted that threats to a public sector employee’s employment or any other harassment of a person providing information to ICAC would breach s.50 of the Independent Commission Against Corruption Act 1988 (NSW). In the event, ICAC declined to investigate the matter.

   [30] annexure L to Ms Penhall-Jones’ affidavit

7. Mr Duffy responded on 8 December 2004[31] in which, among other things, he referred to the HREOC proceeding and the rejection of the settlement offer.  Mr Duffy noted the reference to ICAC and stated that he would have no objection to his letter being forwarded to ICAC.  Mr Duffy expressed the view that the conduct of Ms Penhall-Jones with regard to her “supervising managers and staff of the employee relations unit” continued to be unsatisfactory and “there are unresolved performance issues”.  In my view, this letter adds nothing material to Mr Duffy’s letter of 18 November 2004.  There is nothing in it that could be construed as victimisation by any fair minded observer.

   [31] annexure O to Ms Penhall-Jones’ affidavit

Cancellation of the return to work programme in November 2004

1. I have already found that the Department of Transport wanted to be rid of Ms Penhall-Jones, as is obvious from the settlement offer and Mr Duffy’s letter dated 18 November 2004.  The Department had received advice which indicated that the employment relationship had broken down or was at least at risk of doing so.  Those responsible for the cancellation of the return to work programme were Mr Grant, Ms Lamond and Ms Reilly, with the reluctant agreement of Mr Zelma.  There are some troubling aspects to the cancellation of the return to work programme. Ms Lamond was less than frank with Ms Penhall‑Jones in not telling her in advance of the critical meeting to be held on 4 November 2004.  Ms Penhall-Jones nevertheless found out about the meeting from Mr Zelma.  Ms Lamond, Mr Grant and Ms Reilly appear to have acted with undue haste in scheduling the meeting at a time when Mr Zelma could only attend by telephone.  It is a matter of speculation whether there is any link between the cancellation of the return to work programme and the advice referred to in Mr Duffy’s letter of 18 November 2004.  While one may speculate, there is no proof.  The meeting which resolved to cancel the return to work programme occurred on 4 November 2004, before Ms Penhall‑Jones’ letter of complaint to Mr Duffy and his reply.  Mr Duffy’s letter recognised the fact that the employment relationship had probably broken down.  That breakdown had occurred over time between September and November 2004.  The first HREOC complaint was contemporaneous but was not itself the cause of that breakdown.  The cause was the stream of allegations made by Ms Penhall‑Jones, which the Department rejected. 

2. Ms Penhall-Jones asserts that the termination of her return to work programme was contrary to New South Wales law and public sector policy.  That may or may not be the case and I make no finding.  The process could certainly have been handled better but the stimulus for it was the cessation of work by Ms Penhall-Jones, not the HREOC complaint.  Mr Zelma, an independent participant in the process, reluctantly accepted that the return to work programme was not meeting its objectives.  I draw no adverse inference from the failure by Ms Penhall-Jones to call Mr Zelma as a witness.  I do not think that he could have done anything other than confirm his opinion, which is already in evidence.  Although not expressly recognised at the time by Mr Grant, Ms Lamond, Ms Reilly and Mr Zelma, it must have been clear to all of them that Ms Penhall-Jones probably could not and would not be returning to the workplace.  The employment relationship had probably collapsed and it was unrealistic to attempt to revive it.  The only person who did not see that, and who continues not to see it, is Ms Penhall‑Jones. 

3. For the same reasons, the refusal by the Department subsequently to reinstate the return to work programme does not constitute victimisation.  The employment relationship having broken down and Ms Penhall-Jones having departed the workplace indefintitely, it was pointless to reinstate the programme.  There was no serious question of Ms Penhall-Jones returning to work at the Department of Transport.  The outstanding question was the terms upon which Ms Penhall-Jones would be compensated for the loss of her employment, which while not formalised, was then and is now an effective fact.  That issue remains unresolved and needs to be resolved.  It is beyond the scope of these proceedings but the underlying dispute between the parties cannot be resolved until that issue is dealt with. 

4. The remaining allegations of victimisation relate to the conduct of the respondent, and its lawyers, in the proceedings in this Court following the termination of the first complaint by Ms Penhall-Jones to HREOC.  The letter of 12 May 2005 to Ms Penhall-Jones from the respondent’s solicitors was a straightforward request that she communicate through them, rather than to the Department of Transport, in connection with the legal proceedings.  That is not only a normal request to make for the purposes of the conduct of litigation, it is a necessary step so that the solicitors acting for a party can keep track of correspondence relevant to the litigation.  It is nonsense to characterise that request as an act of victimisation.  Likewise, the offer by the respondent after 11 July 2005 to undertake not to victimise Ms Penhall-Jones cannot rationally be characterised as being an act of further victimisation.  I note, in any event, that Ms Penhall-Jones in her submissions in reply appears not to press that assertion.

5. I conclude that Ms Penhall-Jones has failed to establish her claim of victimisation.  I will order that the application be dismissed.

6. I will hear the parties as to costs.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  31 July 2006