Penhall-Jones v State of NSW
[2008] FMCA 832
•24 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PENHALL-JONES v STATE OF NSW (No.2) | [2008] FMCA 832 |
| HUMAN RIGHTS – Disability discrimination – where applicant claimed discrimination in the course of her employment – where applicant alleged discrimination on the basis of displacement from position – whether applicant being required to explain her disability constituted discrimination – where applicant volunteered such information – whether conduct “because of” applicant’s disability – where applicant alleged harassment by members of staff – whether single incident could amount to harassment – where applicant claimed she was denied promotion opportunities on the grounds of her disability – whether applicant treated less favourably – whether conduct “because of” applicant’s disability – where applicant alleged bullying by members of staff and management – whether State vicariously liable for discrimination – whether reasonable precautions taken by employer – whether making suggestion of taking a voluntary redundancy amounted to discrimination – indirect discrimination – whether requirement to attend formal and stressful interviews was discriminatory – no comparator group or base group identified – whether treatment by manager amounted to indirect discrimination. HUMAN RIGHTS – Disability discrimination – victimisation – where applicant alleged employee annexed a file note to an affidavit which was later passed off as a contemporaneous file note – where no detriment suffered by applicant – where applicant alleged the refusal to implement a return to work program, transfer the applicant to another agency or offer suitable duties to the applicant was in breach of s.42 Disability Discrimination Act 1992 (Cth). |
| Disability Discrimination Act 1992 (Cth), ss.5, 6, 15, 35, 42, 123 Evidence Act 1995 (Cth), s.140 Racial Discrimination Act 1975 (Cth), s.18A Sex Discrimination Act 1984 (Cth), ss.28A, 106 Acts Interpretation Act 1901 (Cth), s.22(1) |
| Briginshaw & Briginshaw (1938) 60 CLR 336 de Plevitz, “The Briginshaw ‘Standard of Proof’ in Anti-Discrimination Law: ‘Pointing with a Wavering Finger’” [2003] Melbourne University Law Review 13 |
| Applicant: | MARGARET LEILA PENHALL-JONES |
| Respondent: | state of new south wales (ministry of transport) |
| File Number: | SYG 185 of 2005 SYG 1233 of 2007 |
| Judgment of: | Raphael FM |
| Hearing dates: | 20, 21, 22 February 2008, 27, 28, 31 March 2008 & 1, 14, 15 April 2008 |
| Date of Last Submission: | 15 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Gormly |
| Solicitors for the Applicant: | Oliveri Lawyers |
| Counsel for the Respondent: | Mr I Neil SC Ms V McWilliam |
| Solicitors for the Respondent: | Home Wilkinson Lowry |
ORDERS
In matter no SYG185 of 2005:
Application dismissed.
Applicant to pay the respondent’s costs to be taxed, if not agreed, upon 80% of the Federal Court scale.
In matter no SYG1233 of 2007:
Application dismissed.
Applicant to pay the respondent’s costs to be taxed, if not agreed, upon 80% of the Federal Court scale.
In either matter the parties have liberty to apply on 3 days’ notice in the event that costs are to be determined taking into account any Calderbank or equivalent offer.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 185 of 2005
SYG 1233 of 2007
| MARGARET LEILA PENHALL-JONES |
Applicant
And
| STATE OF NEW SOUTH WALES (MINISTRY OF TRANSPORT) |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The proceedings to which these reasons relate are two claims by Ms Margaret Penhall-Jones against her employer the State of New South Wales, for whom she worked as a public servant in the Ministry of Transport (“MoT”). Action No SYG185 of 2005 seeks relief arising out of alleged acts of discrimination in employment, both direct and indirect. Action No SYG1233 of 2007 seeks relief from acts of victimisation allegedly suffered by Ms Penhall-Jones in breach of s.42 of the Disability Discrimination Act 1992 (Cth) (“DDA”). It was agreed that the two cases would be heard together and that evidence in the one would be taken as evidence in the other. There were two elements to the victimisation claim. The first related to the actions of a Ms Reilly who annexed a document purporting to be a file note to an affidavit sworn on 4 November 2005 which purported to be a contemporaneous report of a meeting between Ms Penhall-Jones and Ms Reilly. In fact two file notes were created and the file note in question was a later one. It is alleged that the respondent contravened s.42 of the DDA by the construction and use of the document which purported to be a file note dated 27 September 2004 on the grounds that the applicant had brought proceedings under the DDA. The second claim alleged that in 2005 another employee of the respondent refused to implement a return to work program for the applicant until certain proceedings under the DDA were determined.
The claims of disability discrimination made in the first in time proceedings relate to the alleged treatment of the applicant upon her return to work at the MoT following a secondment to the Premier’s Department. The applicant claimed that at that time she was suffering from a disability. The respondent accepts that she was suffering from a disability, but only a disability within the meaning of sub-clause (g) of the definition in s.4(1) of the DDA. That is:
“A disorder, illness or disease that affects a person’s thoughts processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”
The applicant has sought to define further that disability in paragraph 2(2) of her Further Amended Points of Claim (“FAPC”) as:
“A condition which is a psychological response to an identifiable stressor such as bullying, confrontation and unnecessary stress, that results in the development, exacerbation or recurrence of clinically significant or emotional behavioural symptoms.”
The respondent only accepts that the applicant suffers from the psychological disability which has been diagnosed as adjustment disorder, and does not admit that the applicant’s disability includes the symptoms set out in sub-paragraph 2(3) of the FAPC which include:
“(i)depression
(ii)anxiety
(iii)muscle and joint aches
(iv)sleep disturbances involving in particular hypersomnia alternating with insomnia
(v)an inability to cope with aggressive situation involving confrontation, in particular bullying
(vi)digestive disturbances.”
The first respondent otherwise denies the allegations of discrimination either direct or indirect.
I shall start the substantive part of these reasons with a discussion of the burden of proof that is required in cases of this nature. I shall then provide a very broad history, which I believe will be non-controversial, and I shall then deal with each and every allegation made by the applicant in turn. By dealing with the matter in this way it will not be necessary to rehearse all of the evidence given over six days.
Standard of Proof
The respondent argues that in relation to all of the matters pleaded as constituting acts of victimisation, harassment or disability discrimination I should be satisfied to what was described as “the higher standard of proof known as the Briginshaw standard”: Briginshaw & Briginshaw (1938) 60 CLR 336 (“Briginshaw”). The Briginshaw standard can best be described by this quotation from the decision of Justice Dixon (at 362):
“…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
But Briginshaw did not create a third standard of proof, as has now been authoritatively concluded by the Full Federal Court in the case of Qantas Airways Limited v Gama [2008] FCAFC 69 (“Gama”). As outlined by Branson J (with whom French and Jacobson JJ agreed) at [125], Dixon J in Briginshaw was there concerned
“ … with the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding.”
There is no third standard of persuasion: Briginshaw at 361 per Dixon J; see also Gama at [110] per French and Jacobson JJ. As stated in the oft-cited passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-50 per Mason CJ, Brennan, Deane and Gaudron JJ:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”
In Gama, Branson J referred to s.140 of the Evidence Act 1995 (Cth) (“Evidence Act”) which applies to all federal courts and is in the following form:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
Her Honour cited Employment Advocate v Williamson (2001) 111 FCR 20 at [65] where she expressed the view (with which Kenny J agreed) that s.140(2) of the Evidence Act was “intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities” (Gama at [128]). In that case her Honour also cautioned against using terms suggesting that a higher level of proof was required (at [66]):
“Although it has been said that in a case of this kind a “standard of proof above mere satisfaction of the balance of probabilities is appropriate” (see Hamberger v Construction Forestry Mining & Energy Union [2000] FCA 1924; BC2000008063 at [30] and Employment Advocate v National Union of Workers (2000) 100 FCR 454; 173 ALR 479 at [25]-[29]), the position is, in my view, better reflected by an acknowledgement that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities in a case of this kind might, depending on the nature of the particular fact or facts, be greater than would be required to establish a fact in issue on the balance of probabilities in a proceeding of a different kind.”
Her Honour in Gama then referred to the Full Court decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [29]-[38] where similar statements were made that s.140(2) reflects the principles in Briginshaw (Gama at [131]). Her Honour suggested that references to the “onerous Briginshaw standard” and references in that context to racial discrimination being a “serious matter not lightly to be inferred” have a tendency to lead a trier of facts into error (Gama at [138]-[139]):
“The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.”
It is open, however, to the court to have regard to other relevant matters outside those prescribed by s.140(2), such as the inherent likelihood of the occurrence of the matter of fact alleged, as outlined in the quotation by Dixon J extracted above at [5] of these reasons (see also Gama at [138]). As noted by their Honours in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [61], it is now accepted that the Briginshaw principle is to be applied in relation to s.140(2)(c) of the Evidence Act 1995 (NSW) which is identical in its terms to the Commonwealth Act; French and Jacobson JJ in Gama at [110] indicating that these statements are consistent with the reasons of Branson J.
Gama was most recently applied in Granada Tavern v Smith [2008] FCA 646 by Heerey J in the context of a contravention of s.400(5) of the Workplace Relations Act 1996 (Cth) involving the application of duress in connection with an Australian Workplace Agreement. At [95] his Honour stated:
“In the light of the Full Court’s decision in Gama one does not say: “Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies”. Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, taken into account the gravity of the particular allegations: s 140(2)(c).”
For example, in the context of anti-discrimination, in Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287 (“the Macedonian Teachers case”), where a breach of s.9(1) of the Racial Discrimination Act 1975 (Cth) was alleged, the Full Court, in considering the gravity of the particular allegations made, took the view that “[t]he mere finding that a government has contravened a provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred” was not enough to attract the Briginshaw principles (at [21]). The court disagreed with the primary judge’s conclusion that the absence of an intention to discriminate did not significantly diminish the gravity of any such finding (at [21]).
Similarly, in Sharma v Legal Aid (Qld) [2002] FCAFC 196 the court, when considering the gravity of the allegations of racial discrimination made in that case, stated as follows (at [53]):
“It should be remembered that the case which the appellant sought to make at both first instance and on appeal was one of conspiracies by members of two selection panels not to appoint the appellant to a position for which he was well qualified for reason of his race, and to give false explanations as to the reasons for his non-appointment. These are extremely serious charges to make. The case sought to be made was not one of a subconscious motivation, but of consciously improper conduct.”
Having regard to the above authorities, a ‘blanket use’ of the Briginshaw principles in anti-discrimination matters merely because of the seriousness of allegations of discrimination is inappropriate (see generally: de Plevitz, “The Briginshaw ‘Standard of Proof’ in Anti-Discrimination Law: ‘Pointing with a Wavering Finger’” (2003) Melbourne University Law Review 13). What I propose to do is to apply the dicta in Gama so that where I consider an allegation to be particularly grave the evidence required to prove it will be consistent with the seriousness of the allegation.
History
Ms Margaret Penhall-Jones (“the applicant”) is a woman in her mid-fifties who has been employed in the New South Wales Public Service for a total of approximately twenty-five years, having rejoined in 1994 after a three year hiatus when she was studying psychotherapy with the Jungian Institute in Zurich. In 1995 she became a permanent employee at the MoT. In December 1997 the applicant went on stress leave because of bullying. She was diagnosed with post traumatic stress syndrome and commenced workers compensation proceedings against the State. She had recovered sufficiently to return to work in April 2000 when she was seconded to the Premier’s Department. Her initial secondment was for twelve months but the Department requested an extension of six months. In July 2000 the workers compensation claim was settled. In April 2001 the applicant’s name was still on the MoT establishment list in a position numbered 1311. On or about 13 September 2001, prior to the applicant returning to work at the MoT, there was a meeting between a Mr Boucher of the MoT and a solicitor from Messrs Phillips Fox concerning the applicant. A file note of that meeting was made and was placed on the applicant’s file. At the end of October 2001, just prior to the applicant returning to work at the MoT, there was a meeting between the applicant and members of the MoT’s HR department, including a Ms Lamond.
In November 2001 the applicant returned to the MoT. She had been told that the position which she had previously occupied in the Department no longer existed and she had become “displaced”. There are special provisions for members of the public service who become displaced. The purpose of these provisions is to bring the displaced person back into the workforce at a level at which they were acting before the displacement and for that to be done as soon as possible. There exists a special unit within the Premier’s Department known as the Workforce Management Centre (“WMC”) that in August and September 2001 was being managed by a Mr Lucarini. There are written policies as to how an employee applies to the WMC and the involvement of that officer’s existing departmental employer. It is common ground that before she returned to the MoT Ms Penhall-Jones considered applying to the WMC and that she was told by Mr Lucarini that she would need to do this through her department. She did not do so. Later, attempts were made to persuade Ms Penhall-Jones to sign on with the WMC but, for reasons which will be explained, she declined.
The applicant commenced work in the MoT in the Customer Relations Branch under the direct supervision of Tim Mitchell, the Portfolio Customer Relations Manager. Mr Mitchell remained her supervisor until July 2002. From late July 2002 until the end of May 2003 the applicant was supervised directly by Ms Beverly Lange, the senior director of the Communications division. During that time, on 20 September 2002, the applicant was given a permanent position as a policy and project officer in the Communications division. In May 2003 the Communications division was restructured and the applicant again became a displaced officer. On 14 February 2004 the applicant was appointed to the position of Senior Policy Officer, School Student Transport Scheme Policy (“SSTS”), in the Transport Policy division. This was a permanent position and the applicant was directly supervised by Mr Nigel Ryan, the principal policy offer for SSTS. The applicant was later supervised by Ms Reilly. In those periods whilst the applicant was a displaced officer she made applications for other positions within the Department. Three of those applications are relevant to these proceedings. She had three interviews for the positions. She did not obtain any of them.
In October 2004 Ms Penhall-Jones felt that she could not return to the workplace. After some time her doctor recommended that she would be able to return on a return to work program, working two days a week from home. This request was refused by the MoT. It was said that there was no suitable work at the time which was capable of being performed at home over two days per week. The applicant has not returned to work since.
The applicant’s claims
The first claim made by the applicant (paragraph 3A(i) of the FAPC) is that in or around May 2001 her position at the MoT as a DTO7 Senior Policy Officer numbered 1311 was given to another employee, making the applicant a displaced employee. The respondent accepts that there are two limbs to this claim, the first being the original deletion of the applicant’s position and the second the alleged appointment of a Ms Burnell to that position. It appears accepted that there was some form of restructure prior to Ms Penhall-Jones returning from her secondment in the Premier’s Department. There is no evidence whatsoever that this restructure came about “because of Ms Penhall-Jones’ disability”. Ms Penhall-Jones seeks to pray in aid a file note of a meeting which took place between a Mr Boucher and a Jenne Tzavaras of Phillips Fox Lawyers. There are three pieces of written evidence regarding this matter. The first is a letter from Phillips Fox dated 3 September 2001 addressed to Mr Boucher in the following form:
“3 September 2001
NSW Department of Transport
GPO Box 1620
SYDNEY NSW 2001
Attention: Andre BoucherDear Andrew
NSW DEPT. OF TRANSPORT ats PENHALL-JONES
WC Claim No: TC82A2318173
Our Ref: JETZ 2348985We refer to the above claim and advise that we have been retained to act on your behalf in this matter by your workers compensation insurer GIO General Limited.
Jenne Tzavaras of our office will have carriage of the matter.
We will keep you advised of the progress of the proceedings.
Should you have any queries, or wish to discuss the matter, please do not hesitate to call the writer.
Yours sincerely
Contact: Jenne Tzavaras
Partner
Direct Line: 9286-8324
Email: [email protected]”The second is an email from Mr Boucher to a Ms Coombs sent on 12 September 2001 and her reply which is set out below:
“Hi Liz
Is it possible for you to confirm Margaret’s current salary?
We are meeting with a lawyer from Phillips Fox tomorrow to discuss management of this case. I will call you later in the week to discuss the Departments course of action.
Regards
Andre”
____________________________________________________________________
“Andre,
Margaret is with us as a 9/10. I understand from Margaret’s statements that she is actually an 11/12 with DoT. I don’t have the details of her exact salary figure with me here but will get it to you.
Looking forward to hearing from you on what DoT is planning.
Regards
Liz”
The third is a handwritten file note which has no date upon it. Ms Lamond said in evidence that she believed Mr Boucher wrote it. I accept that he probably did. The file note commences with an indication of the salary for a DTO7. It sets out some options which would appear to relate to options regarding Ms Penhall-Jones’ continued employment:
“??????? MENTIONED???
- Voluntary redundancy
- Register WMC
- Presents certificate
- Comes back”
Each of these options has some additional sub-categories. There is then the category:
“Premier’s extend secondment on our budget.”
One of the options in relation to Ms Penhall-Jones’ return is expressed as follows:
“Comes back → on p’nell → if declines to resign then go through disciplinary”
Ms Penhall-Jones argued strongly that this document evidences an intention on the part of the MoT to effect a determination of Ms Penhall-Jones’ employment. Mr Boucher was not available to give evidence and neither was Ms Tzavaras. Another solicitor from Phillips Fox was called but he could not help in any way as to the purpose of the correspondence and meeting. There was some suggestion that it could not be established that these notes related to Ms Penhall-Jones’ position upon her returning to work at the MoT but I am satisfied from the dates of the letters and emails that this was the case. The evidence is that the MoT thought that when it settled Ms Penhall-Jones’ workers compensation case for bullying that she had agreed to resign from the MoT. Ms Penhall-Jones had not made that agreement. I think the main purpose of the meeting was for the MoT to be made aware of this by the solicitors who had acted on the commutation of the workers compensation claim. I can see from the note that a number of options were canvassed. I am of the view that the note does evidence an interest by Mr Boucher in ways in which Ms Penhall-Jones’ employment could be terminated. The difficulty which I have is in making a finding that Mr Boucher’s interest was the interest of the Department itself, and in finding that if it was so, it continued.
Ms Penhall-Jones says that I am entitled to draw these inferences from the fact of her treatment thereafter and in particular from the fact that the note itself was left on her personnel file. There is general acceptance that the note was on her file for a period of time and that it should not have been. Ms Lamond says that she saw it there but did not pay it any attention. No one else who gave evidence admitted to having seen it. Mr Boucher may have had an interest in terminating Ms Penhall-Jones’ employment but none of the possible actions set out in that document was taken. Ms Penhall-Jones was received back into the Department of Transport (as it was then known) at her previous level. She is still a permanent officer of the MoT although she is not carrying out her duties. Ms Penhall-Jones sees the notes as evidence of a continuing policy to encourage her to leave the MoT because of her disability. I am not prepared to draw that inference. Mr Boucher is no longer employed in the MoT and the only evidence I have is that one person alone saw the document on Ms Penhall-Jones’ file. There are no other references to it in any document produced in evidence. I do not see this document as supporting a submission by Ms Penhall-Jones that the reorganisation of her section of the MoT took place because of a wish to be rid of her and because of her disability.
In his helpful written submissions Mr Neil unearthed the correct situation with regard to the loss of the position from consideration of the establishment lists which were in evidence. Ms Penhall-Jones sees something sinister in the fact that no establishment lists were published for the months between May and September 2001, but I cannot share her concern. During that period she was still with the Premier’s Department. Mr Neil’s submissions on the evidence from the documents are set out below. I would respectfully adopt them:
“53The applicant tendered a series of establishment lists in support of this complaint. Those establishment lists disclose the following:
(a)In April 2001, there were four positions listed with the number 1311 in the Policy Planning and Administration section. The applicant occupied one of them, her title was Senior Policy Officer, and she was listed as seconded. Ms Wong was listed as temporarily occupying the position of the applicant while she was seconded. Mr Dubois was listed as a temporary DTO 5 level officer, and a final DTO 7 casual temporary position was vacant.
(b)In November and December 2001, there were two positions listed as 1311: one in the Taxi & Hire Car Bureau division at a DTO 6 level, with a title of ‘Project Officer’ occupied temporarily by Ms Burnell, and one in the Customer Relations division at a DTO 7 level, with a title of ‘Senior Project Officer’ against which the applicant’s name appears in the temporary occupant column.
(c)From January 2002, Ms Burnell’s name does not appear and the position previously occupied by her is listed as vacant.
(d)At no stage does Ms Burnell’s name appear listed against a permanent DTO 7 position with the title of Senior Policy Officer.
54.In circumstances where the level (DTO 6), title and temporary nature of Ms Burnell’s position were manifestly different to the position previously occupied by the applicant, it is clear that Ms Burnell was not appointed to the applicant’s position at any stage, even on a temporary basis.”
Mr Neil also points out, correctly to my mind, that there is no evidence before the court, either direct or inferential, of the identity of the person who made the decision concerning Ms Penhall-Jones’ position on the restructure, or any knowledge that that person may have had about her disability. There is thus no support for Ms Penhall-Jones’ allegation that the restructure took place because of her disability.
Ms Penhall-Jones also complains that she was denied the opportunity to apply for her own job after the restructure. However, the evidence from the establishment lists would seem to indicate that there was no senior policy officer job after the restructure, so there was nothing for her to apply for.
A further particular of allegation 3A(i) is that:
“Towards the end of secondment the applicant’s application to be placed on workforce management centre list for displaced employees because 1311 was allegedly “lost” was refused.”
The evidence in relation to this matter, contained in Mr Lucarini’s affidavit, is that in or around early 2001 Ms Penhall-Jones was speaking to a Ms Valerie Corbett about returning to the MoT from the Premier’s Department. There was some discussion about the workforce management centre and its function. Just at that moment Mr Lucarini who was in charge of the centre was walking past Ms Corbett’s office. Ms Corbett called him in and introduced him to Ms Penhall-Jones. There was a discussion. The evidence on the transcript at T.168 is:
“Well, Mr Lucarini, when Ms Penhall-Jones – when somebody approached you – you say Ms Corbett approached you while you were at the Premier’s Department about Workforce Management Centre and Ms Penhall-Jones signing up there? --- No, I remember that quite clearly actually, yes.
You told her that she has to come through the Department? --- That’s correct, yes.
Mr Lucarini, then – and why did you tell her that? --- Because I was asked a question by Valerie Corbett. I was walking past Valerie’s office and she said something to the nature of, “Margaret wants to register,” or something like that, and then I said, “Look, it’s got to come through the Department. We can’t do that,” because we can’t accept applications from individuals. They’ve got to be supported by the Department.
Well, Mr Lucarini, then I wonder at page – paragraph 8 here why you say that:
Registration has to be initiated by the employee.
? --- Well, it’s initiated by the employee with the Department. The Department facilitates that happening and the employee though has to be a willing participant. They actually have to fill in the form, provide a skill summary and submit the application, but they can’t do it in isolation of the Department because the Department actually has to substantiate that the person is actually displaced before they will support them.
And it would be reasonable that Ms Penhall-Jones then assumed that you were saying the Department has to register you. “It has to come through the Department” is effectively saying that Ms Penhall-Jones couldn’t do it herself? --- Yes.
And it’s effectively a refusal for her to sign up with Workforce Management Centre? --- I don’t see how getting pulled into an office walking through a corridor, being asked a question in generic terms amounts to a refusal to register with Workforce Management. I – you know, to me that’s – I was just asked a question when I walked past. That’s – and I answered the question.
Ms Penhall-Jones interpreted Mr Lucarini’s advice as a refusal. I am unable to accept it as such. I agree with the sentiments expressed by Mr Lucarini in the last part of the extracted transcript. There is nothing in Ms Penhall-Jones’ evidence which contradicts this view.
There are two references to the refusal to place Ms Penhall-Jones on the WMC list which are found in the particulars to paragraph 3A(i) and 3A(ii). However, both particulars seem to be of a denial of opportunities under sub-s.15(2)(d) of the DDA. My view of the evidence does not substantiate a refusal. But there is an additional allegation of failing to place Ms Penhall-Jones on the list. As I understand the evidence, it is that Ms Penhall-Jones could have asked the MoT to place her on that list but she did not do so. The failure would appear to have been hers rather than that of the MoT.
Ms Penhall-Jones claims that the writing of the file note by Mr Boucher also constituted discriminatory conduct on the part of the MoT. I am unable to accept that writing a file note without some other action which puts into effect any resolution evidenced by the file note or causes someone to act in a way consistent with it could constitute discriminatory conduct. I cannot see that merely writing a file note denies or limits the applicant’s access to opportunities for promotion, transfer or training or other benefits.
The second matter raised by the applicant in her FAPC is that the respondent caused the file note of the meeting between Mr Boucher and Phillips Fox to be placed on her file, which she argues in paragraph 6 of the FAPC is in breach of s.15(2)(b) of the DDA because it denied or limited her access to opportunities for promotion, transfer or training or to any other benefits associated with her employment. She argues that from the time the note was placed upon the file her employer did not deal or continue to deal with her in good faith, it did not wish to promote her or transfer or train her or afford her any other benefit in the workplace and was, on the contrary, only interested in bringing about her termination in one way or another.
In my analysis of the file note above I looked at it as a piece of corroborative evidence of a desire on the part of the MoT to terminate Ms Penhall-Jones’ employment “because of” her disability. I have been unable to say that it was such. For the same reasons I am unable to say that the placing of it on the file was itself a discriminatory act. Whilst it is accepted that the document should probably not have been put on the file, there is no evidence that it was placed there “because of Ms Penhall-Jones’ disability” or that a similar note would not have been placed upon the file of a comparator. Mr Neil argues that no comparator has been suggested. I do not recall one specifically but it would not be difficult to see as a comparator another person who had a workers compensation claim but did not have the applicant’s disability or another person in respect of whom legal advice had been sought but who did not have the applicant’s disability. In her handwritten submissions, Ms Gormley has identified the comparator as “a person with no ‘personality problems’, which is the same as the applicant when non-symptomatic”. No evidence regarding any of these possible comparators was brought. The failure to prove this element of the definition of discrimination is fatal to the claim regarding the document. But even if it was not, the applicant has not to my mind established that Ms Lamond, who was the only person who saw the document and who said that she disregarded it, in fact treated it as some form of Departmental directive to ensure that Ms Penhall-Jones suffered the detriments that she alleges. If putting the note on the file had no effect, what is the detriment suffered?
Detriment on account of disability – requirement to explain nature of disability
The next substantive allegation in the FAPC at paragraph 7 is that the respondent required her to detail repeatedly the nature of her disability, its effects or potential effects and to defend why her return to work program should be maintained. A list of twelve meetings at which this is said to have occurred is given. The first meeting took place on or around 26 October 2001 prior to Ms Penhall-Jones’ return from the Premier’s Department. At paragraph 76 of her affidavit she deposes as follows:
“I recall statements to the following effect in that meeting:
I said: I developed a stress condition as the result of corporate bullying in Transport. The important thing to note about this stress condition is that if I can return to a normal workplace, where I won’t be subjected to more bullying, then it will not recur. However, a characteristic of these conditions is they can be re-triggered by subjecting the person to behaviour which reflects the previous bullying – it just has to reflect the previous bullying, or feel like bullying.
I said: I still occasionally suffer from insomnia. As well, if I am forced to something out of routine, like attend an early morning meeting, I will inevitably not sleep the night before.”
The respondent submits that this is evidence that the material was offered voluntarily by the applicant. It would seem to me to be difficult for the MoT to make proper arrangements for Ms Penhall-Jones unless it knew what restrictions on her employment existed. The best person to tell it this would have been Ms Penhall-Jones. This is a fact she seems to have accepted by volunteering the information. The allegation is not made out.
The second meeting is referred to at paragraph 78 of Ms Penhall-Jones’ affidavit which is in the following form:
“Shortly before I returned to the MOT, in late October, 2001, I attended an informal meeting between Tim Mitchell, Elaine Lamond and myself. In that meeting, Tim Mitchell told me had had recently been an advisor to Minister, John Watkins and was the “alternate delegate” and Secretary to the Maroubra Branch of the Labor Party. This is then Premier, Bob Carr’s branch.
I said: I was bullied and harassed when I was in the Department previously and developed a stress condition. It can be exacerbated if I have to work in an environment where I am bullied. That’s why I want to start working from home.”
I am satisfied that this is evidence of information voluntarily given by Ms Penhall-Jones and does not substantiate the claim. The third occasion is said to have been a meeting with Mr Mitchell in January 2002. The evidence in relation to this is contained at paragraph 105 to 108 of the affidavit. The claim is that Mr Mitchell told Ms Penhall-Jones that he didn’t understand the requirements of the return to work program or why she should be treated differently and that he did not know anything about her history. She says she emailed him a one page summary (which is at Annexure F(a) of Exhibit MPJ1). Thereafter she was called in to his office where she alleges he said to her:
“Margaret, the Director General and Chris Thomas think you are a trouble maker. You are excess staff, you have one year salary maintenance before they can get rid of you. I will protect you if you are loyal to me.”
I accept the evidence given by Ms Penhall-Jones that her relationship with Mr Mitchell was not a good one. I also accept that Mr Mitchell was aware before Ms Penhall-Jones joined his group that she had had problems at the MoT before she went on secondment, she required some flexibility in the way she was managed and that she had a limited ability to cope with certain types of stressful management. I also accept the evidence that Ms Penhall-Jones advised Ms Lamond about her concerns over Mr Mitchell’s management of her in 2001 and that some meetings were arranged between herself, Mr Mitchell and Ms Penhall-Jones with the aim of assisting them to work together. Mr Mitchell denies that he asked for this information. Ms Penhall-Jones relies on the corroboration of her email dated 8 January 2002, but this email deals with her position in the MoT, not her disability or its symptomology. In these circumstances I am unable to be satisfied the request or requirement for information was made.
But even if it had been I have difficulty in concluding that Ms Penhall-Jones was required to respond to the question. She was well aware of Departmental policy which states that:
“an employee with a mental problem has the same rights of confidentiality regarding her illness as any other colleague. It depends very much on the individual whether they disclose, or discuss aspects of, this illness.”
Ms Penhall-Jones could have refused to provide the information.
The fourth example of a requirement to provide information concerning her condition is at a meeting with Mr Smith in early 2002. This is dealt with at paragraph 77 of the applicant’s affidavit. Mr Neil submits, and I accept, that paragraph 77 does not evidence any requirement placed upon Ms Penhall-Jones but was a voluntary disclosure to assist in the management of her condition. The fifth example is a meeting between the Union and Mr Smith in early 2002. Ms Penhall-Jones’ evidence on this point is contained at paragraph 129 of her affidavit where she explains that she had asked the Union to assist her to address the issue of inappropriate work and Mr Mitchell’s inappropriate behaviour. She says:
“However, in order for everyone to understand the issues I was again in the position of having to describe the symptoms of my disability and the affect [sic] on my work.”
Mr Neil argues that the applicant, in effect, volunteered this information. The applicant would argue that she was required to do so because otherwise the meeting would have no efficacy and that volunteering the information was distressing to her. I do not think that this constitutes a separate discriminatory act. It is the sequelae of her treatment by Mr Mitchell. If the treatment by Mr Mitchell is discriminatory then its effects are exacerbated by what Ms Penhall-Jones was required to do in order to alleviate the situation. But if I am wrong I would say that in any event I have not been offered a comparator or shown how the applicant was treated less favourably than such a person.
The sixth occasion upon which Ms Penhall-Jones claimed she was required to detail the nature of her disabilities was with Bev Lange and Elaine Lamond in May 2002. There is a conflict in the evidence between that of Ms Penhall-Jones who stated that this meeting was called to consider her return to work program and Ms Lange whose evidence was that the meeting was about the applicant’s timeliness and her failure to comply with core hours. The cross-examination of Ms Lange about that meeting is found at T.107 but it was not put to her that the purpose of the meeting was different from that deposed to. As the difficulty that the applicant was having in arriving to work in accordance with core hours was accepted by all parties I am satisfied that this was the purpose of the meeting. If Ms Penhall-Jones explained the nature of her symptoms it was in the context of seeking this relief. I do not believe this would constitute discriminatory conduct. The applicant was not asked the question “because of her disability” but because of her lateness.
There was then a meeting between Ms Lange, Mr Mitchell and Mr Smith in June 2002. There are notes about this meeting apparently written by Mr Smith which, as Mr Neil submits:
“Recalled that the applicant was not supposed to attend the meeting at all but that the applicant thought she should attend and that the applicant wanted to present her concerns. The notes go on to detail the applicant’s concerns including her symptoms. The notes do not record either Mr Smith or Ms Lange requiring the applicant to provide that information.”
A reading of the exhibit indicates that the meeting was mainly concerned with the relationship between Ms Penhall-Jones and Mr Mitchell. There is no indication that any of the parties attending the meeting did not understand Ms Penhall-Jones’ alleged disability so that she was required to repeat them. They appear to have been discussed in the context of her ability to carry out the work that she was required to do in the position she held. I think that this is another example of the applicant volunteering information that she was not required to provide. The actions that are said to constitute discrimination must be looked at objectively. What the applicant thought was required of her will not support a claim unless there is some objective evidence of such a requirement being imposed: see, for example, Herring v Benevolent Society of NSW (1992) EOC ¶92-408 at 78,896-7; Hill v University of New England (1990) EOC ¶92-291 at 77,951.
The eighth example is alleged to have taken place in the meeting with Ms Lange in October 2002 and is described by Ms Penhall-Jones at paragraph 174 of her affidavit. There is nothing in that paragraph that relates to the requirement to give this information and Ms Lange was not cross-examined about it.
The next example is a meeting in November 2002 during a meeting with Mr Cook, Ms Lamond, Mr Hannan and a Ms Richards. This is dealt with at paragraph 178 of Ms Penhall-Jones’ affidavit:
“178 In November 2002, as part of investigation of my issues, Allan Cook arranged a meeting with the union to discuss my situation. In attendance were:
· Allan Cook, Director, Corporate Services and Finance
· Elaine Lamond, Director, Employee Relations
· Terry Hannan, Occupational Health and Safety Officer, Public Service Association
· Sharon Richards, Organiser, Public Service Association; and
· myself.
“178.1 In that meeting, Mr Hannan said:
Tery/Terry/Terry Hannan: Transport is not providing reasonable adjustment for Margaret. I suppose you know, Allan,that under the Occupation Health and Safety legislation managers can be held liable for not acting on occupational health risks.
Allan Cook said: “Can Margaret provide some information for us on the nature of her previous injury and what effects it has.
I said: “Bullying or inappropriate aggression, under-utilisation and marginalisation has already re-created stress symptoms. If it continues and it gets worse, we will have a problem. It is a feature of this condition that because of the previous bullying I am less able to cope with aggression from supervisors. All that is required is good management, without bullying, and that I be given appropriate work for my grade.”
This meeting also seems to have been called as part of Ms Penhall-Jones’ attempts to deal with the problems in her relationship with Mr Mitchell. There is no evidence that Mr Cook, who asked the question, had any detailed information about Ms Penhall-Jones’ symptomology. Can it really be said that a person who makes such an enquiry treats another less favourably because of her disability than, in circumstances that are the same or not materially different, the discriminator would treat a person without the disability? The comparator here would be a person without a disability who was having personality issues with her superior. In the context of understanding what those personality issues might be by someone not familiar with them, the comparator is likely to be asked questions about them. Ms Penhall-Jones perceived that her personality issues with Mr Mitchell arose in part at least from her disability. In this context why should she not be asked what that disability was or to explain how she saw it affecting her work relationship? Of course if Mr Mitchell’s conduct towards her that caused the meeting was in itself discriminatory then having to hold the meeting might have exacerbated the effects. Was the meeting called “because of” her disability? I think not. I think it was called because of the breakdown in her relationship with Mr Mitchell.
The next meeting is one in April 2003 with Ms Lange. The meeting was called by Ms Lange because the applicant had been consistently late to work. Ms Penhall-Jones gave evidence that Ms Lange did not understand what insomnia had to do with her stress condition. Ms Lange denied asking this question. Under cross-examination Ms Lange agreed that she did require Ms Penhall-Jones to explain the nature of her stress condition again. Mr Neil submits that Ms Lange was doing no more than requiring Ms Penhall-Jones to explain the reason for her lateness. That was a requirement that any person without a disability would also have to comply with. The question was not asked “because of” Ms Penhall-Jones’ disability but “because of” her lateness. I am not satisfied that the questioning could constitute discriminatory conduct in these circumstances.
The penultimate allegation concerning the requirement to explain her condition is said to have been at a meeting with Ms Quilty in May 2003. Ms Quilty provided the court with an affidavit but she was not required for cross-examination. That affidavit does not make any reference to a meeting with Ms Penhall-Jones in May 2003. It would seem that her uncontested evidence is that her association with Ms Penhall-Jones commenced in June 2003, when there was a conversation described at paragraph 12 of her affidavit:
“I said: If you wish to continue starting work at 10.00am, we can
accommodate this arrangement.Applicant: That would be good.
I said: And if you have any problems while you're working in the Bus Reform
Branch, you should raise them with me or Nigel at any time and as
soon as possible.Applicant: OK.”
There is no reference to the conversation in May 2003 in Ms Penhall-Jones’ affidavit.This claim cannot be substantiated.
The final occasion upon which Ms Penhall-Jones says that she was required to discuss her disabilities was in a meeting with Mr Nigel Ryan in May 2003. Ms Penhall-Jones’ evidence in this regard is found at paragraph 227 of her affidavit:
“When I first began to work for Nigel Ryan, I explained my changed conditions of work (that I was starting work at 10.00am and had one days’ leave without pay per week for the next two weeks) by explaining my stress condition and that it arose from a previous workers compensation claim.”
This does not appear to me to be evidence of a requirement being placed upon the applicant; it is more evidence of her volunteering the information.
The complaints made by Ms Penhall-Jones in this regard should also be seen in the context of her correspondence with the various members of staff with whom she was involved. There are a large number of emails exhibited to her affidavits which reveal that she was setting down some rigid conditions upon her return to work. Whilst those conditions may have been reasonable and appropriate, they are of a type which persons in a managerial or human resources position within a government organisation might feel require some explanation. For example, in an email to Ms Lamond on 23 July 2002 (at Annexure L, page 44 of Exhibit MPJ1) Ms Penhall-Jones writes (discussing Mr Mitchell):
“I have repeatedly advised, and this has been supported by the Union and is supported by various studies it is inappropriate to take a victim of corporate bullying and place them in a situation where there is a potential for further aggression, manipulation, misrepresentation or harassment. I have repeatedly advised that this is exactly what was happening in my return to work.
You can not allow a manger [sic] to engage in micro-managing vexatious harassment and other inappropriate behaviour in relation to an employee for 8 months, tell him to be nice for one day and expect that the accumulated stresses will disappear.”
And in an email to Mr Mitchell on 10 July 2002 (at Annexure L, page 53 of Exhibit MPJ1), in response to an email from Mr Mitchell where he requested the status of tasks assigned to Ms Penhall-Jones:
“ … It is not appropriate and will only exacerbate occupational health and safety issues not to change deadlines when an additional 50% of time is taken up with Ministers Hotline issues.”
In an email to an Isabelle Myers on 3 April 2002 (at Annexure I, page 35 of Exhibit MPJ1) Ms Penhall-Jones states:
“Lots of staff here are vulnerable for different reasons and as you would be aware, its [sic] easy to unsettle people. My own position – coming back into the Department after a year of corporate bullying and harassment, a workers compensation court case and on my “return to work” finding my position has been “lost” and I am by default “displaced” (amongst so many others, with a management apparently reluctant to take any action to address the situation) and like so many women, finding myself responsible for relatively menial work (neither the Hotline nor the Departmental emails are exactly DTO7 level work, nor challenging) is not ideal.”
Mr Neil submits that to require an applicant to explain the nature of her disability in order to best manage it does not amount to a detriment within the meaning of s.15(2)(d) of the DDA. He says that any person making the kind of requests by Ms Penhall-Jones for special treatment, whether it was for a disability or for any other reason, would be required to offer some explanation to their supervisors and human resources department. I accept that submission. These allegations cannot be sustained as individual or collective acts of discrimination under s.15. In making this finding I include within it the finding that the act constituted harassment within the meaning of s.35(1) or (2).
Division 3 of Part 2 of the DDA relates to discrimination involving harassment. Sections 35-36 deal with harassment in employment, ss.37-38 with harassment in education and ss.39-40 with harassment in relation to the provision of goods and services. The word “harass” is not defined in the DDA. The Shorter Oxford English Dictionary defines “harass” as:
“1. trouble by repeated attacks. Now freq. subject to constant molesting or persecution. 2. Lay waste, devastate. 3. Tire out, exhaust. 4. Overwhelm with cares, misfortunes etc. . chiefly as harassed.”
The Macquarie Dictionary (3rd ed) contains a similar definition of “harass” which is:
“1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment, as with troubles, cares, etc.”
There is little authority on what constitutes “harassment” where a claim under s.35 of the DDA has been made, or in any of the sorts of claims which could be made under Division 3 of the DDA. But that which there is identifies it as something which is repetitious or occurs on more than one occasion consistent with the definition extracted above.
In McCormack v Commonwealth of Australia [2007] FMCA 1245 (“McCormack”) the applicant, who had been diagnosed with cancer, claimed, inter alia, that he had been harassed by a co-worker, Mr Coates, following the death of another employee (Ms Campbell) from cancer, apparently on the basis that Mr Coates blamed the applicant for the death of Ms Campbell. After referring to the definition in the Macquarie Dictionary, Mowbray FM (at [74]-[75]) determined that the “reproaches” made by Mr Coates of the applicant for failing to help Ms Campbell, which included repeated telephone calls to the applicant’s work and home, did amount to harassment.
In McCormack, Mowbray FM also discussed the phrase “in relation to” at [73]:
“In O’Grady v The Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356 at 376 McHugh says:
“The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.””
Applying O’Grady, his Honour (at [77]) concluded that there was a relationship between the harassment involving the “reproaches” of the co-worker and the applicant’s disability: “Mr Coates was harassing Mr McCormack precisely because of Mr McCormack’s history with cancer.”
Similarly, in McBride v State of Victoria (No. 1) [2003] FMCA 285 (“McBride”), McInnis FM examined a claim of harassment in employment where the applicant, who was a prison officer, was diagnosed with fybromyalgia. There were several incidents which the applicant claimed constituted direct discrimination under s.15(2) DDA and in the alternative constituted harassment under s.35(2) DDA. One such incident involved an occasion where the applicant was counselled by a Human Resources Development Officer regarding the levels of sick leave she was taking. The applicant felt her career was under threat because of the counselling. McInnis FM found at [107]:
“The reaction of the Applicant and her perception whilst being perfectly understandable against the back drop of absences and unresolved medical conditions which had not been satisfactorily diagnosed up to that point may well provide some basis for the Applicant feeling aggrieved by the discussions with Mr Beever [who was the Human Resources Development Officer]. However on the evidence before the Court I am satisfied that it is more likely than not that Mr Beever raised the issue of sick leave in the context of concern for the Applicant as this is consistent with his stated role and further consistent with the duty of care that the employer had towards staff who may have taken sick leave considered to be at high levels where suggestions may be made for and on behalf of the employer to alleviate the problem … This indicates a positive and constructive role rather than the perception which I have rejected of the Applicant that this was an attack on her based upon a disability causing high levels of sick leave.”
Examples of incidents which were found not to constitute harassment can be found in other claims made by the applicants in McCormack and also in McBride. In McCormack, another of the applicant’s claims of discrimination occurred at an interview the applicant attended for a transfer to another section of the Department of Communication, Information Technology and the Arts, at which he was unsuccessful in obtaining. The applicant was asked at the interview to explain a 6-month gap in his curriculum vitae (the applicant had taken sick leave for treatment of his cancer). The applicant explained that he had been on sick leave but that he had fully recovered. At [27] Mowbray FM concluded on the evidence that “that was the end of the matter” and that it did not amount to “less favourable treatment” because of the applicant’s disability.
A recent case where it was decided that harassment had occurred on the basis of a single incident was Tan v Xenos (No. 3) (Anti-Discrimination) [2008] VCAT 584. The Tribunal made the finding on the basis that, even though it was “not the worst” case of harassment one could imagine, the respondent was in a position of power over the complainant, deliberately and falsely denied the harassment, and attempted to smear completely the complainant’s character and explored every possible aspect of her professional competence in the hearing, much of which was irrelevant to the trial. This case, however, was a case of sexual harassment, and sexual harassment, unlike harassment in disability discrimination, is defined in s.28A of the Sex Discrimination Act 1984 (Cth), which states:
“(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
"conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”
It is clear that this definition specifically contemplates that a single incident may amount to sexual harassment. I do not think that the ordinary meaning of the word “harass”, used in the context of the DDA, indicates as much.
The reason that I am unable to find that these actions of the respondent through its agents constitute harassment is that although there does exist the necessary repetition of the impugned action, I have been unable to accept that the requests for information were any more than that. I have not found that in any case Ms Penhall-Jones was required to provide the information. I am satisfied that in all cases she knew that she could have declined to do so, that in many cases she volunteered the information herself before any request was made, and in others she provided the information voluntarily.
Loss of promotion opportunities
At paragraphs 9-17 of the FAPC, the applicant alleges that she applied for three positions within the MoT and was denied each of them on the grounds of her disability. It is certainly correct to say that Ms Penhall-Jones applied for those positions and was not given them. There is, however, no direct evidence that her failure to secure any of these positions was “because of” her disability. The evidence from which Ms Penhall-Jones seeks that the court draw an inference that the appointment decisions were made because of her disability relate to the processes by which her application was considered, the interview processes through which she went, and the manner in which the final decisions were made. The conduct of the respondent in relation to these applications is also alleged in paragraphs 26-28 of the FAPC to constitute indirect discrimination as defined in s.6 of the DDA. I shall deal with each of the job applications in turn, but before I do so it is necessary to rehearse the views expressed by Ms Penhall-Jones as to the manner in which any application from a person in her position as a displaced officer should be treated. At T.90 Ms Penhall-Jones was asked by her counsel what she understood a displaced officer was entitled to with regard to finding a new position. She replied:
“Briefly, my understanding was that a displaced officer was entitled to a priority assessment, which is an informal interview, and the committee is to determine whether the displaced officer can take up the duties within a reasonable time. My understanding is also that it is generally accepted in the Public Service that a reasonable time is six months, with training. That does not mean full-time training – it could be training on the job or part-time training. My understanding is also that that is the union position.”
At paragraph 133 of her affidavit Ms Penhall-Jones says:
“As a displaced officer I was supposed to be given priority consideration for these positions. Any interview was supposed to be informal and assess whether I could do the work in a reasonable time, with training.”
Ms Penhall-Jones laid great stress on both the informality of the interview process and the availability of the position to a person who may not have had experience in the field but who could be trained to undertake the position within a reasonable time. The actual policy is found as an annexure to the affidavit of Mr Lucarini. The relevant parts of the policy are set out below:
“Displaced staff may apply to be assessed for vacancies at their substantive DTO grading only. The assessment (known as a priority assessment) is generally undertaken by a panel of two comprising the relevant manager and one other Ministry representative. Where possible, the panel should comprise one male and female representative, one of whom should be from outside the Division. The panel’s role is to assess an individual’s capacity to undertake the duties and responsibilities of the position within a reasonable timeframe with reasonable training if necessary.
Where more than one displaced staff member applies for a position, merit selection applies. In such instances priority assessments are undertaken by a selection panel comprising three members from within the Ministry: at least one male member, one female member and one member from outside of the Division.
The panel assesses each applicant’s capacity to perform the full range of duties and responsibilities of the position within a reasonable timeframe. If more than one applicant is considered suitable, a decision as to the successful applicant will be based on comparative merit.
…
If a displaced staff member does not demonstrate to the selection panel that he or she has the capacity to undertake the duties of the position within a reasonable timeframe, the selection panel prepares an assessment report detailing the reasons why the applicant is considered unsuitable. The assessment report is forwarded to the Manager Employee Relations who forwards a copy to the applicant. The applicant has the opportunity to respond to the assessment report. Responses must be made in writing and returned to the Manager Employee Relations within five (5) working days.”
Ms Penhall-Jones asked the court to accept that “a reasonable time for training” was six months. She sought to do this on the basis of her knowledge of the processes and her experience as a union delegate. Mr Lucarini denied that there was any fixed period and suggested that the amount of training required would have to be considered within the context of the position that became available. In other words, if someone was required urgently in the position, and training would take some time, this might be a reason not to place a displaced officer into a particular position. There is no independent corroboration of Ms Penhall-Jones’ “six month” submission, there is no reference to it in the policy that I have set out, and I prefer Mr Lucarini’s explanation. Mr Lucarini and Ms Penhall-Jones also disagreed as to the “informality” of the interview process for priority assessments. Mr Lucarini did not accept that these interviews should be informal. At T.153 there is the following exchange between Ms Gormly and Mr Lucarini:
“I put it to you that a priority assessment differs from a merits review in that it’s less formal. That’s correct, isn’t it? --- I disagree.
You say that it’s just as formal as a merits review then? --- It’s still an interview and an interview has to follow certain structure and process and there’s really nothing informal about it.
So the interview that you set up was quite formal then? --- It was just a standard interview.”
There is found as Exhibit Q of Exhibit “MPJ1” to Ms Penhall-Jones’ affidavit some comments about the priority assessment report upon her by John Newman, the Director of Metropolitan Strategic Planning, dated 15 August 2002. These comments accept that the assessment is not merit-based or that all essential criteria had to be met immediately. But it goes on to say:
“It is acknowledged that the Priority Assessment Report has had regard to the duties and requirements of the position, as set out in the Position Description and Expression of Interest advertisement. However this has only been done to the extent that it is necessary whether to determine whether or not the person has the ability to meet the requirements of the position in a reasonable time, which Margaret accepts as the critical test. It is not accepted that the assessment is solely merit-based.
In the Priority Assessment Report the Panel clearly concludes, with the appropriate regard to the position’s accountabilities and the nature of the work involved, and acknowledging the relevance of some of her previous work, that Margaret does not presently have the knowledge and experience to meet the most important needs of the position immediately, or within a reasonable time. A reasonable time is indicated in the Panel’s report as being 3 months, which is generous compared to the expectations that would apply to a merit-based appointment. The 6 months indicated in Margaret’s response is not accepted as reasonable.”
I accept the views of Mr Lucarini and those of Mr Newman as reflecting the MoT policy.
Interview for position of Team Leader, Human Resources
Ms Penhall-Jones applied for this position. She was the only displaced officer to apply. She was granted a priority assessment interview. The interview was conducted by Mr Lucarini and Ms Lamond. Prior to the commencement of the interview, Mr Lucarini and Ms Lamond prepared a short series of questions that were to be asked. There is a position description of the Team Leader, Employee Relations, found at Annexure C to the affidavit of Ms Lamond. It states, inter alia:
“The Team Leader, Employee Relations provides operational leadership and manages the service delivery of payroll, leave administration, performance management, staff training and development, recruitment, staff establishment, job analysis functions, together with provision of advice and guidance to staff and managers of the Department.”
The manager had two persons working for her who would have carried out the day-to-day processes of the CHRIS payroll monitoring. But it is clear from the description of the position extracted that service delivery of payroll was an important item in the constituents of the position.
Ms Penhall-Jones attended the interview. She was immediately asked to respond in writing to questions that had been prepared by Ms Lamond and Mr Lucarini. She did this. Some questions were directly relevant to payroll systems. It is not entirely clear what the other questions were, but it is generally accepted that the questions relating to payroll were questions that came out of the interviews with the junior employees who were to report to the Team Leader. Ms Penhall-Jones completed the responses to the questions within the required 30 minutes. However, the interview could not continue because Mr Lucarini had been called away to attend a meeting with the Director-General. It was agreed that the meeting would be reconvened a few days later. When the meeting was reconvened, some comments on the responses made by Ms Penhall-Jones to the written questions were prepared. These are found as an annexure to Mr Lucarini’s affidavit. The questions indicate that Ms Penhall-Jones failed to demonstrate the required depth of knowledge in relation to at least two matters to do with payroll. Ms Penhall-Jones explained that she was not an expert on payroll but that she hoped that she would be able to get up to speed on the subject within a reasonable time. There was some other questioning of her in relation to her knowledge of payroll tax and payroll matters.
Under cross-examination from Ms Gormly, Mr Lucarini recalled that one of his major concerns was that when he asked Ms Penhall-Jones a question about a particular procedure or matter and she advised him that she did not know what the answer was, he asked her how she would find out about it. She said that she would look it up. He asked her how she would know what to look up and she said she would look up what to look up. Mr Lucarini thought these responses ingenuous and was not impressed. The second interview did not go on for very long. It appears that Ms Penhall-Jones came to the view that the interview was not going according to her understanding of the way it should have. She got up with some energy and left the room. According to Mr Lucarini she slammed the door. Ms Penhall-Jones does not accept this. I do not think it is particularly relevant. Mr Lucarini and Ms Lamond prepared a report on the interview, which was given to Ms Penhall-Jones, indicating that she had not met the requirements of the position. Ms Penhall-Jones commenced a grievance procedure relating to the interview process.
A detailed report upon the whole interview process was provided by a Ms S. Kemp of the Kemp Consulting Group and this is found as an annexure to Ms Lamond’s affidavit. In short, Ms Kemp’s report found that the interview process was not entirely satisfactory. Some of the questioning of Ms Penhall-Jones had been inappropriate in so far as it did not really relate to the work that she might have to do. But this is not proof that the MoT, through its agents Ms Lamond and Mr Lucarini, treated Ms Penhall-Jones less favourably than another person without her disability, “because of” her disability. There is no evidence whatsoever that another applicant may not have been the subject of a similarly flawed interview process. There is no evidence that Mr Lucarini and Ms Lamond respectively concentrated on areas of weakness in order to deny Ms Penhall-Jones the position because of her disability. I am asked to make a finding based on inference that this has occurred. It is said that both Ms Lamond and Mr Lucarini knew all about Ms Penhall-Jones and her problems. Mr Lucarini denies very much knowledge of Ms Penhall-Jones at this stage but I have little doubt that some information of her history would have been given to him. Ms Lamond, of course, knew a considerable amount. I discussed the law relating generally to the drawing of inferences in some detail in Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767 at [6] et seq, noting at [7] that:
“An inference may only be reasonably drawn upon the basis of facts which have been established by the applicant in evidence such that “it is more probable that it exists than it does not” per Jordan CJ in Carr v Baker [1936] 36 SR (NSW) 301. Where an applicant claims an inference should be drawn:
“there must be evidence supporting grounds for treating it as a matter existing as a matter of inference and not of conjecture.””
The fact that Ms Lamond and Mr Lucarini had knowledge of Ms Penhall-Jones’ condition does not make it more probable than not that they would act in a particular way towards her. Both Mr Lucarini and Ms Lamond denied being influenced in their assessment of Ms Penhall-Jones by the existence of her alleged disability or its manifestations. Mr Lucarini had not long arrived at the MoT and at the time of the interview did not have a history of difficulties with Ms Penhall-Jones. To make a finding that he engineered this interview, and did so because he did not particularly wish to have Ms Penhall-Jones reporting to him “because of” her disability, would be to do so based upon nothing more than conjecture.
Interview for position of Transport Safety Officer
In November 2002 Ms Penhall-Jones applied for a position as Transport Safety Officer. It was a DTO7 position equivalent to her status before she became displaced. The criteria for the position, which is found as an annexure to the affidavit of a Ms Carolyn Boden, states that the Transport Safety Officer is responsible for assisting the Manager, Passenger Safety with the public transport safety functions of the Transport Safety and Rail Safety Regulations. The selection criteria referred to tertiary qualifications in a related discipline, or relevant industry experience, experience in policy formulation and analysis. On 11 December 2002 Ms Boden notified Ms Penhall-Jones that her application had been received and set a date and time for an interview. On 12 December 2002 Ms Penhall-Jones responded to that email asking that the date and time be rescheduled, advising that she understood the process was an informal one, questioned the idea of a written test, expressed the view that the reasonable timeframe for “skilling up” was six months, and suggested that Ms Boden was not conversant with the priority assessment process. Ms Boden agreed to change the interview date, which then took place on 16 December 2002.
The interview lasted an hour and thirty minutes and Ms Penhall-Jones was required to undertake the written exercise. For the reasons explained, particularly at paragraphs 18-20 of her affidavit, Ms Boden came to the view that Ms Penhall-Jones had not the necessary experience to undertake this position and some of her claimed experience may not have been entirely accurate.
In accordance with the requirements of the public service a priority assessment was sent to Ms Lamond for Ms Penhall-Jones, which indicated that Ms Penhall-Jones did not have a sound knowledge and understanding of the Department and the Transport Safety and Rail Safety Regulation Division’s regulatory role and legislation. Nor did she demonstrate that she possessed the necessary experience in relation to the formulation, implementation and evaluation of specific policy initiatives. There was a concern that Ms Penhall-Jones had indicated that she had chaired a bus driver safety committee which investigations revealed that she had not. There was a concern that Ms Penhall-Jones did not address the criteria of demonstrated project management skills. The report does not deal with whether or not Ms Penhall-Jones could have acquired the skills that it is said that she did not have within a reasonable period of time, and to that extent would appear to have failed to comply with the requirements of a priority assessment.
Under cross-examination it was revealed that at the time the job was advertised, an officer of the Department had been acting in the position for three years, and that after the grievance procedure initiated by Ms Penhall-Jones had been completed, that person was offered the job. Whilst it is certainly open to conjecture that there might never have been a position available for Ms Penhall-Jones, or anyone else, because of the existence of a long-standing “acting”, this goes nowhere towards establishing that the reason for Ms Penhall-Jones’ failure to be offered the position was “because of” her disability, nor does it answer the question as to whether a person who did not have her disability would have been treated any more favourably than she was. These matters are simply not addressed by Ms Penhall-Jones by the provision of evidence that would enable the court to make such a finding by inference or otherwise.
Position of Ministerial Drafting Officer
Prior to Christmas 2003, Ms Penhall-Jones applied for priority assessment for a position in the Ministerial Coordination Unit. Ms Lamond organised a panel to interview her. The panel consisted of Ms Quilty, who was the director of Strategic Policy and Projects, and for whom Ms Penhall-Jones had worked, and a Ms Adkins. Ms Adkins had never met Ms Penhall-Jones before and was not aware of her alleged disabilities. She came to a very firm view as a result of questions asked in the interview and referred to in her affidavit that Ms Penhall-Jones did not have the necessary skills to deal with high-level stakeholders such as Ministerial staff. She was firm in her view both in the affidavit and under cross-examination that this impression was formed solely on what she saw and heard at the interview. In paragraph 9 of her affidavit she refers to one exchange with the applicant:
“I said: What would you do if the Minister’s office requested information with
a very tight timeframe? What steps would you take, how would you
handle it?Applicant: I’d try and deal with the matter, but if it couldn’t be done then I’d just
have to tell the Minister “sorry about that, things happen.””I am satisfied that Ms Adkins genuinely held the views that she expressed in evidence. Nothing was put to me that would indicate that Ms Penhall-Jones’ alleged disabilities had anything whatsoever to do with her decision. Although Ms Quilty recommended Ms Penhall-Jones for the position, Ms Adkins was not prepared to support it. In the end the position was lost to Ms Penhall-Jones but I am unable to say that this was “because of” a disability, or that a person without her disability who gave the same answers to the questions put in the interview would have been treated any more favourably.
The applicant makes an indirect discrimination claim in respect of the interviews which have been discussed above, commencing at paragraph 26 of her FAPC. At paragraph 30 of that document she says:
“The said treatment subjected the Applicant to a detriment contrary to s.15(2)(d) of the Disability Discrimination Act.”
I will deal with these claims of direct discrimination here. The applicant pleads this cause of action as follows:
“26 On her return from the Premiers Department the Applicant as a displaced employee had a right to “priority assessment” for positions at her grade which became vacant. Priority assessment allowed her to be considered for a position before it was advertised at an informal interview to determine her ability to perform tasks required for the position within a reasonable time.
27 The Applicant made three such applications. Each time she was required to go through an interview/application process which was unnecessarily stressful and a situation which she was unable to perform at her optimum ability. The Applicant was well qualified for each of these positions but was not selected for any of them.
Particulars
(1) In August 2002 the Applicant having applied for Team Leader, Human Resources within MOT as a Priority Assessment was made to attend a formal interview. She was the only applicant for this position. Reno Lucarini on the panel was unduly aggressive at the interview and concentrated on an area which was technical, which although the Applicant had no experience could have been learnt within a reasonable period.
(2) A report by an external investigator was critical of the way the interview was conducted.
(3) In February 2003, the Applicant applied for Transport Safety Officcer in MOT. She was made to attend a “stress” interview which lasted 1.5 hours included [sic] a written exercise. The convenor Carolyn Boden on the basis of incomplete old files wrote a false and defamatory report on the Applicant.
(4) In November 2003 the Applicant applied for Ministerial Drafting Officer within MOT. She was not given any reason for her non selection.”
I have already provided an extract from the relevant policy document in relation to priority assessment. There is nothing in that document which says that an applicant for priority assessment should be considered without an interview, and there is no reference to “informal” interviews. The word “informal” is open to as many interpretations as there are degrees of informality. It might mean, for example, that an interview panel is made up of two persons rather than three or four. It might mean that the interview is conducted by only one person in a coffee shop. Ms Penhall-Jones has not assisted the court with any definition of her own as to what informality consists of, she merely says that the interviews she went through were not informal.
For example, at attachment Q of her affidavit, in an email interchange between Ms Lamond and Ms Penhall-Jones on 5 August 2002 regarding her interview for the position of Team Leader, Human Resources after the interview had been concluded, Ms Penhall-Jones stated the following:
“This is a temporary position which was advertised internally as an Expression of Interest. We were supposed to have an “informal interview”. The report reads like a selection committee report for an external interview.”
Similarly, Ms Penhall-Jones states at paragraph 190.1 of her affidavit in relation to the second interview:
190.1 The interview took 2 ½ hours. I was given a written exercise and then felt that I was grilled and cross-examined on every aspect of my CV and application. This was not a “priority assessment”, but a stress interview in my opinion.
In relation to her application for the position of Ministerial Drafting Officer, Ms Penhall-Jones stated in an email to Ms Lamond and a Mr Paul Harris, who Ms Penhall-Jones indicated in her evidence at T.167 was a consultant, on 21 November 2003 (at Annexure BB(a) to Ms Penhall-Jones’ affidavit):
“I want to know why, after we had a meeting yesterday in which 2 staff were able to apply for a promotion without a “convenor” or an “interview” am I not treated the same way as other displaced staff and in line with the process for placing displaced employees. You BOTH (you too Paul) should be doing all you can to assist and match staff, including myself, - NOT participating in a formal interview process which contravenes every undertaking you have given staff and the unions. In particular, not participating in this process for a temporary position.”
In the absence of any evidence as to what an informal interview is meant to have been, it is impossible to compare the interviews that she did have and make a finding that they breached the arrangement. I cannot assist Ms Penhall-Jones on this aspect of her complaint.
The second claim of victimisation is found at paragraphs 7-9 of the Points of Claim:
“The Applicant was victimised by the Respondent through its employee Reno Lucarini in 2005 causing her detriment on the grounds that the Applicant had discrimination proceedings # SYG185/2005.
Particulars
7.1 Despite requests by the Applicant, in 2005 Mr Lucarini refused to implement a return to work program for the Applicant until the discrimination matter was heard.
7.2 Mr Lucarini refused to agree to transfer to another public service agency until the discrimination matter was heard.
7.3 The Respondent would not offer any suitable duties to the Applicant until after the hearing of the discrimination case.
8. The Respondent breached s42 of the Disability Discrimination Act (1992) in that he caused or threatened to cause a detriment to the Applicant because of her proceedings under that Act.”
These points of claim were further particularised in the document which I requested that the applicant provide which set out details of the discriminatory conduct and the evidence that the applicant said established it. In regard to this victimisation claim, she says this:
“The Applicant claims she was victimized by Reno Lucarini when in 2005 he refused to implement a return to work program, refused to agree to her transferring to another public service agency and would not offer her any suitable duties until after the hearing of the discrimination case #185/2005.
Evidence. This is in evidence in the letter of Reno Lucarini of 16 September, 2005 and in the correspondence attached to the Affidavit of Robert Chivers, as well as in the Affidavit of Robert Chivers in the Applicant’s Bundle. This was so despite Mr. Mark McKie from Crawford Health care Management advice to Mr Lucarini that in the event there are no suitable duties in MOT Ms Penhall-Jones should be given a transfer to a new division where she can start her return to work program. In paragraph 2 of his report he says “I understand from my meetings with Ms Penhall-Jones and you (R Lucarini) that there exists other litigation matters……I acknowledge the potential influence of these matters in the process of rehabilitation and return to work.” It is Applicants submission that he was referring to both the discrimination and victimisation proceedings. (Exh A pg1.5) In addition, Crawford Health Care cosigned a letter in which they acknowledge that the reason the Applicant was attempting a work trial is because work was being with-held pending the outcome of the discrimination proceedings (attached to the Applicant’s Affidavit of 2008 regarding economic loss).
Detriment suffered by the Applicant was that she has not been able to return to work since the return to work program was cancelled in November 2004. Since then she has not received her proper salary but an amount equivalent to Workers Compensation which has been paid by the workers compensation insurer . (itemized in aff MPJ sworn Feb 2008).”
The letter of 16 September 2005 is in response to several letters from Ms Penhall-Jones.
16 September 2005
…..
Dear Ms Penhall-Jones,
YOUR LETTERS OF 29 JULY 2005, 26 AUGUST 2005 AND 4 SEPTEMBER 2005
I refer to your letters of 29 July 2005, 26 August 2005 and 4 September 2005, addressed to Mr John Lee, Director-General of the New South Wales Ministry of Transport.
I apologise for the delay in responding to your letters and confirm that the Ministry has been taking legal advice in relation to the matters raised by you.
I note the contents of the latest WorkCover medical certificate provided by you dated 30 August 2005 from Dr E Parmegiani, that you are only able to work from home for two days per week.
The Ministry is not in a position to provide you with suitable duties in relation to your stated capacity to work as contained in the latest WorkCover medical certificate.
As this has consequences with respect to your worker’s compensation rights we respectfully suggest you should direct any further queries you have in relation to your worker’s compensation benefits and/or rehabilitation, including any return to work program, to the Ministry’s workers compensation insurer whose contact details are:
GIO Australia Limited
Attention: Mr Michael Novakovski
Telephone: XXXX XXXX
Claim No.. XXXXX XXXXX XXI will forward Mr Novakovski a copy of this letter.
Yours faithfully,
Reno Lucarini
Manager Administration Services”
There is no mention in this letter of proceedings SYG185 of 2005.
Mr Chivers’ affidavit is dated 3 December 2007. It states that Mr Chivers is the corporate counsel of the MoT and it annexes the letter of 16 September 2005 set out above. It makes reference to an affidavit sworn by Ms Penhall-Jones and filed on 5 September 2007. That affidavit was filed in the substantive discrimination proceedings SYG185 of 2005. The applicant states at the relevant paragraphs that in mid-2006 the workers compensation insurer appointed Crawford & Company as rehabilitation providers. Mr McKie was Ms Penhall-Jones’ case manager. Ms Penhall-Jones says that Mr McKie had several meetings with Mr Chivers and Mr Lucarini. Mr McKie telephoned Ms Penhall-Jones on two occasions following meetings with Mr Chivers and Mr Lucarini. Ms Penhall-Jones deposed to what Mr McKie told her. That is not evidence of what was said. Ms Penhall-Jones stated that Mr McKie and herself drafted a proposal with a view to finding her a position within another public service agency utilising the redeployment service in the Premiers Department. I am satisfied from the evidence of Mr Lucarini that the only relevant agency was the WMC. I believe that Ms Penhall-Jones had confused the WMC with the previous name of that agency and thought that there were two agencies rather than there being one. Ms Penhall-Jones deposes to the fact that Mr McKie developed a return to work program for approval by her treating doctor and the insurer. The first option was to seek a transfer through this facility. She said the insurer approved all the options except the transfer. Mr Chivers, whose affidavit was tendered by Ms Penhall-Jones, was not cross-examined by Mr Neil. He deposes to the fact that he only met Mr McKie on one occasion on 5 July 2006 and that Mr Lucarini was present. He said that Mr McKie was handed a document which is exhibited to Mr Chivers’ affidavit. I set out below those paragraphs of that document which I consider to be immediately relevant. What I have omitted is certain particularisation.
“Establishment of an Injury Management Plan for Ms Margaret Penhall-Jones
3 July 2006
The Ministry has demonstrated a willingness to participate and co-operate in the establishment of an injury management plan for Ms Margaret Penhall-Jones.
It is appropriate to inform all parties concerned that the Ministry is currently defending claims issued by Ms Penhall-Jones in both the Federal Court (NSD 587/2006) and the Federal Magistrates Court (SYG 3013/2005). These claims involve the contention that the Ministry has discriminated against and victimised Ms Penhall-Jones, including with respect to her rehabilitation and as such cannot be ignored in the present context.
The proceedings in the Federal Court are by way of appeal against a decision of the Federal Magistrates Court to dismiss Ms Penhall-Jones’s disability discrimination claim against the Ministry. A decision of the Federal Court as to whether Ms Penhall-Jones should be granted leave to appeal is pending.
In the Federal Magistrates Court proceedings Ms Penhall-Jones alleged she has been victimised by the Ministry, through the actions of its employees and agents, for lodging the disability discrimination claim mentioned directly above. This matter has been heard by the Federal Magistrates Court and a decision is currently pending.
Particulars of Ms Penhall-Jones’s victimisation claim include amongst others:
…
The Ministry denies Ms Penhall-Jones’s claims and has defended the proceedings, which as indicated above, are currently unresolved.
The Ministry is aware of its obligation under section 49(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to provide suitable employment for a worker who is able to return to work. The Ministry is also aware that this obligation does not apply if it is not reasonably practicable to provide employment.
It is relevant to note that the Ministry has previously expended significant resources and costs in attempting to facilitate Ms Penhall-Jones return-to-work on a graduated basis. This included the Ministry voluntarily, and at its own expense, continuing the return-to-work program for a number of months (April to November 2004), after its prior workers compensation insurer (GIO) determined it would not cover the cost of the program.
The Ministry’s previous attempts to facilitate Ms Penhall-Jones return-to-work have failed. Every person (with one exception) appointed to supervise Ms Penhall-Jones has been accused by Ms Penhall-Jones in the Court proceedings of engaging in bullying or harassing behaviour.
Ms Penhall-Jones has claimed in material provided to the Courts during the proceedings that:
…
Ms Penhall-Jones’s stated capacity to work as contained in her WorkCover medical certificates is impracticable. The previous attempts at facilitating work in accordance with Ms Penhall-Jones’s stated capacity has failed.
There remains extant between Ms Penhall-Jones and the Ministry (and most importantly fellow employees of the Ministry who have been Ms Penhall-Jones’s supervisors) unresolved issues with respect to Ms Penhall-Jones ability to take counsel and comply with lawful and reasonable directions, in employment.
Ms Penhall-Jones has not demonstrated any willingness or aptitude to undertake work other than on her own terms.
The medical clearance under which Ms Penhall-Jones contends she is willing to work is not in respect of a work regime which is reasonably practicable.
Based on material provided by Ms Penhall Jones working for the Ministry appears to be contrary to Ms Penhall-Jones’s health interests.
For these reasons the Ministry is firmly of the view it is not reasonably practicable for the Ministry to provide suitable employment to Ms Penhall-Jones.
Reno Lucarini
Manager – Administration Services.”The appeal matter NSD1516 of 2006 was heard by Buchanan J. Judgment was given on 28 June 2007. The appeal was dismissed. His Honour commenced his judgment with the following introduction:
“1. The appellant (Ms Penhall-Jones) is employed in the New South Wales Ministry of Transport (‘the MOT’) as part of the Public Service of New South Wales (‘the Public Service’). It would appear that she has not attended for work since October 2004. It is her contention that she is disabled from doing so. It is not necessary for the purpose of this judgment to express any view whether that contention is well founded or not.
2. Her appeal concerns allegations that she was victimised because she made a complaint of disability discrimination. The Federal Magistrate who heard the proceedings at first instance did not accept that victimisation had occurred (Penhall-Jones v State of NSW (No 2) [2006] FMCA 927. He was critical of the way in which Ms Penhall-Jones conducted her case. His criticism led Ms Penhall-Jones to contend that, in addition to making factual and legal errors, he was apparently biased against her.
3. As will be seen I do not accept that she has made out this complaint or any other ground upon which the appeal can succeed.
The Jurisdictional Basis of the Proceedings in the Federal Magistrates Court
4. On 18 October 2005 Ms Penhall-Jones filed an application in the Federal Magistrates Court of Australia alleging that she had been victimised because she made a complaint under the Disability Discrimination Act 1992 (Cth) (‘the Act’). The disability discrimination complaint was made in January 2004. It is unnecessary to trace its subsequent course although, as will become apparent, a conciliation conference which took place on 28 September 2004 provided the occasion for events of significance to the present appeal.”
And at [11]:
“It must be borne in mind that there were two relevant complaints. Ms Penhall-Jones alleged in the Federal Magistrates Court that she was victimised in various ways for the reason that she had made her earlier complaint of disability discrimination. She said that making the disability discrimination complaint (in January 2004) led to her being subjected to or threatened with detriment. Termination of the later complaint (made on 25 July 2005) alleging victimization gave the Federal Magistrates Court jurisdiction to entertain the proceedings and make the decision from which the present appeal is brought.”
On 31 October 2006 Mr Lucarini wrote to the workers compensation insurer. This letter is extracted below:
“Dear Ms Healey
Margaret Penhall-Jones
Claim No. PO 60338LWe note that Mr Mark McKie (Mr McKie), from Healthcare Management Services, has recommended that Ms Penhall-Jones undertake a Return to Work Program elsewhere within the public sector, that is, not within the Ministry of Transport (the Ministry).
As you are aware the Ministry is not Ms Penhall-Jones’ employer. Rather Ms Penhall-Jones’s employer is the Crown in the right of the State of New South Wales.
On 31 July 2006, in determining to dismiss a complaint lodged by Ms Penhall-Jones against the Crown alleging victimisation, the Federal Magistrates Court (the Magistrates Court) made a number of finding [sic] including the following:
1. “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.” (paragraph 140); and
2. “The employment relationship having broken down and Ms Penhall-Jones having departed the workplace indefinitely 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.” (paragraph 141)
Ms Penhall-Jones has appealed to the Federal Court (the Court) against the decision of the Federal Magistrates Court and her appeal is due to be heard by the Court on 18 December 2006.
Unless, and until, the Court allows Ms Penhall-Jones’s appeal the decision, and finding made by the Magistrates Court apply to the Crown in the right of the State of New South Wales.
To the extent that the issues canvassed by Mr McKie’s recommendation, namely that Ms Penhall-Jones return to employment elsewhere within the public sector (that is, elsewhere within the Crown in the right of the State of New South Wales) involves matters before a court, including appellant proceedings, they are sub judice.
The Crown therefore does not intend considering further the recommendation made by Mr McKie until after the determination of Ms Penhall-Jones’s appeal before the Court.
It appears to us that Mr McKie’s recommendation has been rendered without regard to the findings of the learned magistrate, following a fully contested hearing in the Magistrates Court, that the employment relationship has “probably collapsed” and “broken down”.
We will consider this matter further after a decision in relation to Ms Penhall-Jones’s appeal has been determined by the Court.
Yours faithfully,
Reno Lucarini
Manager Administration Services”
The evidence extracted in the preceding paragraphs does not establish that Mr Lucarini refused to agree to implement a return to work program, or to a transfer to another public service agency, or would offer her other suitable duties until after the hearing of matter number SYG185 of 2005. The evidence all points to such decisions being made on two bases. The first was that Ms Penhall-Jones asked to return to work at the MoT by working from home two days per week. That was the basis of all her correspondence with the MoT. I understand that it is said that given the nature of her symptomology, any return would have to start on this basis. It would then build up to a full return to work. Mr Lucarini gave evidence that there were no suitable duties available for a person working two days a week from home. He was cross-examined about this. I do not think that the cross-examination elicited a retraction from that position. In my view this disposes of the victimisation case in relation to work at the MoT unless it can be shown that there was some other reason additional to this that would amount to victimisation. It is clear that Mr Lucarini did have regard to the proceedings that had been brought in the Federal Magistrates Court and which were being appealed to the Federal Court. These proceedings are not proceedings SYG185 of 2005. Ms Penhall-Jones then sought to use as evidence of the facts contained therein the report of Mr McKie. Mr McKie was not called to give evidence. Mr Neil argues that when he acknowledged the importance of proceedings that had been taken out by the applicant Mr McKie was doing no more than expressing his own view and not purporting to report anything that he had been told by Mr Lucarini:
“Indeed, if my learned friend had sought to draw that much from the letter, then it would have been to rely upon the contents of the letter for an inadmissible hearsay purpose, and there was no suggest[ion] wh[en] the letter was tendered that it was being relied upon for any such purpose. Mr McKie may well have thought that there was a connection between the applicant’s rehabilitation and her proceedings in matter no. 185/2005. He may well have had other proceedings in mind. No-one knows, because Mr McKie was not called, and no explanation was furnished by the applicant for her failure to do so. Mr Lucarini was called. He was an identified participant in the conversation with Mr McKie, but he was not asked about that aspect of the conversation. He was not asked to give evidence about any aspect of the conversation which might give rise to Mr McKie’s state of mind as to a connection between proceedings instituted by the applicant, whatever those proceedings might have been, and her rehabilitation.”
In this submission Mr Neil has succinctly highlighted the reasons why I cannot rely upon Mr McKie to support the submission that SYG185 of 2005 was ever in contemplation.
Ms Penhall-Jones submits that Mr Lucarini declined to assist her by arranging for her to have a transfer to another area of the New South Wales government because of her institution of proceedings SYG185 of 2005. In the letter of 31 October 2006 to the insurer, Mr Lucarini makes reference to employment elsewhere within the public sector. He declines to do anything about this until after the appeal is heard. That, of course, is a reference to a matter that is not connected with SYG185 of 2005. But he also posits another reason, and that is that the only way in which a transfer could occur would be through utilising the WMC. Ms Penhall-Jones has consistently refused to request access to the WMC. In a letter dated 12 September 2007, the Director-General of the MoT wrote to the PSA of New South Wales about Ms Penhall-Jones. That letter reveals that there might have been a possibility of a transfer being given to Ms Penhall-Jones through the discretion of the Director-General. In the letter the Director-General declines to exercise his discretion to assist Ms Penhall-Jones, either to further discuss a return to work plan, or to support a secondment and/or permanent transfer to another government department. The reasons that he gives include the existence matter number SYG3013 of 2005 and the appeal, and the decision of Driver FM in Penhall-Jones v State of NSW (No 2) [2006] FMCA 927. He cites remarks made by his Honour in those proceedings and also the fact that Ms Penhall-Jones has been ordered to pay approximately $50,000.00 worth of costs, which at the date of the letter remained unpaid. That letter was written six months after proceedings SYG1233 of 2007, which I am today deciding, were issued. The letter was not before HREOC. It could not form part of this claim.
Cases under the Commonwealth discrimination Acts appear simple, but they are not. They are complex. Because of this, it has been my practice, and the practice of other members of this court, to require the filing of points of claim so that the issues can be identified at an early stage. The cases are not cheap to run notwithstanding the benevolent cost regime in this court. They involve a considerable amount of executive time on the part of corporate or government respondents, and an equally large amount of emotional energy on the part of the applicants. A perusal of the transcript and of the orders that this court has made in relation to these proceedings will reveal that I have made every effort to try and ensure that Ms Penhall-Jones’ case was articulated as clearly as possible, for her benefit even more than that of the respondents. Eventually, something approximating clarity was provided prior to the hearing in the document that I have previously referred to. Remembering how long this case has taken to be fully argued, the obtaining of some relative degree of clarity was required in the interests of justice. Ms Penhall-Jones has nailed to the mast her claim that the victimisation she received through Mr Lucarini was based upon her bringing proceedings in SYG185 of 2005. Whilst I have my doubts as to whether Mr Lucarini’s conduct amounted to victimisation of any type, it most certainly did not amount to victimisation on this basis.
I have tried my best to deal comprehensively with what I believe are all the issues in these proceedings. I am aware of the strain that the conduct of the proceedings imposed on both Ms Penhall-Jones and Ms Gormly. This court is most appreciative of the assistance that Ms Gormly provided to Ms Penhall-Jones in the bringing of this action. I have little doubt that without her appearance the proceedings would have taken considerably longer. The court would also wish to express its appreciation of the manner in which the case was conducted for the respondents by Mr Neil SC and Ms McWilliam. They were models of the politeness and restraint required in conducting matters of this type.
The effect of the conclusions made in these reasons for judgment is that both applications must be dismissed. In these circumstances costs must follow the event and the applicant must pay the respondent’s costs. This is not a matter that is suitable for an order for costs under Schedule 1 to the Rules of the Federal Magistrates Court. Because the Federal Magistrates Court is intended to be “cheaper” as well as quicker and simpler, I would propose to order that if the costs be not agreed, they be taxed pursuant to the Federal Court Act and Rules, and paid at 80% of the amount so taxed. If there is some argument as to a Calderbank or equivalent, the parties have liberty to apply on three days’ notice.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 June 2008
ANNEXURE
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