St Joseph's Hospital Ltd v Correy (No 2)

[2009] NSWADTAP 58

Appeal Panel - Internal

CITATION:	St Joseph’s Hospital Ltd v Correy (No 2) [2009] NSWADTAP 58
PARTIES:	APPELLANT St Joseph’s Hospital Ltd RESPONDENT Kathryn Correy
FILE NUMBER:	099014
HEARING DATES:	7 July 2009
SUBMISSIONS CLOSED:	7 July 2009
DATE OF DECISION:	1 October 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	Appeal - meaning of ‘on the ground of’ in relation to victimisation complaints under the Anti-Discrimination Act 1977, burden and standard of proof in victimisation complaints, meaning and application of ‘by reason of’ in relation to remedies under the Anti-Discrimination Act 1977.
DECISION UNDER APPEAL:	Correy v St Joseph’s Hospital Ltd [2009] NSWADT 40
FILE NUMBER UNDER APPEAL:	081013
DATE OF DECISION UNDER APPEAL:	02/25/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Evidence Act 1995
CASES CITED:	B & L Linings Pty Limited and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456; (2005) 65 NSWLR 245 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200 Browne v Dunn (1893) 6 R 67 Re Minister for Immigration and Multicultural Affairs Ex Parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Qantas Airways v Gama [2008] FCAFC 69; (2008) 167 FCR 537 State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287; (1999) 91 FCR 47 Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp [1985] 1 NSWLR 561 Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 Commissioner of Police, NSW Police v Mooney (No 2) [2003] NSWADTAP 67 The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 Byrne & Frew v Australian Airlines Ltd [1995] HCA 52; (1995) 185 CLR 410
REPRESENTATION:	APPELLANT P Newall, counsel RESPONDENT E Brus, counsel
ORDERS:	1. Leave granted to extend the appeal to the merits of the Tribunal’s decision 2. Complaint of victimisation substantiated 3. The order that the Respondent pay the Applicant the sum of $23,665 within 28 days is set aside.

REASONS FOR DECISION

Introduction

1 St Joseph’s Hospital has appealed against a decision of the Tribunal which found it had victimised a former employee, Ms Correy, in breach of the Anti-Discrimination Act 1977 (AD Act). The Tribunal ordered the Hospital to pay damages of $23,665. The Hospital has appealed on questions of law and sought leave for the appeal to be extended to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. The questions of law fall into two broad categories. The first category relates to questions about whether complaints Ms Correy made about discrimination led to the Hospital’s decision to roster her in an area where she said she could not work (the causation grounds). The second category relates to questions about whether the rostering decision caused Ms Correy to lose income (the remedy grounds).

Issues

2 The Appeal Panel’s task when determining questions of law is to determine:

a) whether the question of law has been erroneously answered;
b) if so, to determine the correct answers to the questions of law;
c) to make such orders disposing of the proceedings before the Tribunal as are necessary, based on the findings of fact made and inferences drawn by the Tribunal and where no other conclusion is open.: ADT Act, s 113(1), s 113(2)(a) and s 114 and B & L Linings Pty Limited and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 at [126] per Basten JA.

3 It is not necessary that an error of law be demonstrated before consideration can be given to extending an appeal to the merits: Lloyd v Veterinary Surgeons Investigating Committee [2005]; NSWCA 456; (2005) 65 NSWLR 245. We will consider the alleged questions of law first.

Factual background

4 Ms Correy, an enrolled nurse, went on maternity leave in May 2004. Prior to that she had worked for nine years almost exclusively on night shift in the Palliative Care Unit (PCU) of St Joseph’s Hospital. Ms Correy had taken two periods of maternity leave before taking leave in 2004 and had returned to work in the PCU on both occasions. When she was due to return from leave on the third occasion, she asked that she be rostered back in the PCU on night shift but that her hours be reduced from 24 to 16 per week. The Hospital initially agreed to her requests, however in mid May 2005 she was told that she had been rostered to work in one of the three other units of the Hospital. She met with Mr Geoghegan (Director of Nursing) and Ms McCarthy (Nurse Manager) on 7 June 2005 and was told that her position in the PCU had been filled by a person who was working full-time. Ms Correy made known her wish to return to PCU and, in a later conversation, said that there was ‘no way’ she could work in the Aged Care Psychiatry Unit because she had experienced domestic violence and would find it distressing to work in a locked ward. After a conversation with Ms Correy on 10 June 2005, Mr Geoghegan noted in his diary that she would ‘take it further’.

5 Ms Correy wrote to Mr Geoghegan on 16 June 2005 reiterating that she wished to return to work in the PCU and that she found working in the other units, particularly the Aged Care Psychiatry Unit, unsuitable. That letter crossed with a letter from Ms McCarthy advising her of the rostering arrangements for July 2005. She was rostered to work 10 shifts, 8 in Aged Care Rehabilitation and two in the Aged Care Psychiatry Unit. Ms Correy replied saying the proposal was unacceptable because she was being treated like a casual employee. Mr Geoghegan telephoned Ms Correy advising her that the Hospital’s position remained unchanged and that there were no permanent positions available for her in PCU or any other unit. Ms Correy did not attend work. After further correspondence, Mr Geoghegan wrote to her on 29 June 2005 stating that her preference to work in a specific unit on specific shifts would be taken into consideration in future.

6 On 5 July 2005 Ms Correy’s solicitors wrote to Mr Geoghegan alleging that the Hospital had discriminated against their client and re-iterating that she was not able to work in the Aged Care Psychiatry Unit. The solicitors stated that Ms Correy would be unable to work until she was returned to her pre-maternity leave role, or provided with another suitable alternative role. Mr Geoghegan replied rejecting the allegation of discrimination and stating that Ms Correy had rarely been asked to work in the Aged Care Psychiatry Unit. The roster for August was issued to Ms Correy by letter of 27 July 2005. That roster entailed Ms Correy working 10 shifts, 8 in the Aged Care Psychiatry Unit and none in PCU. On the same day, the Hospital’s Executive Director, Mr Anderson wrote to Ms Correy saying that if she did not return to work on 1 August the Hospital would treat her as having abandoned her employment and termination action would proceed.

7 The two 27 July letters crossed with a letter from Ms Correy’s solicitor stating that as a result of the Hospital’s ‘repudiatory conduct. . . in conjunction with the breach of trust and confidence . . . our client has instructed us to accept the Hospital’s repudiation of her contract of employment and bring it to an end effective immediately.’ The letter concluded with a hope that the matter could be resolved through ‘sensible and open discussion’. Mr Geoghegan said that Mr Anderson had directed him to stop negotiating with Ms Correy after receiving this letter. Meanwhile, Mr Geoghegan had written to Ms Correy on 28 July advising her that the August roster involved her working 9 shifts (not 8) in the Aged Care Psychiatry Unit. Ms Correy did not return to work on 1 August and the following day Mr Anderson advised her that the Hospital considered that she had terminated her employment because of her failure to return to work.

Complaints of discrimination and victimisation

8 Tribunal’s first decision. Ms Correy complained of discrimination on the ground of sex and carer’s responsibilities as well as victimisation under the AD Act. The Tribunal found in her favour in relation to the complaint on the ground of carer’s responsibilities and in relation to the victimisation complaint and awarded her $26,121.00 for economic loss. The Tribunal dismissed the complaint of sex discrimination: Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104 (10 May 2007).

9 First appeal. The Hospital appealed against the Tribunal’s first decision. The Appeal Panel found that the Tribunal had made certain errors of law in relation to the finding of discrimination on the ground of carer’s responsibilities and dismissed that complaint. In relation to the victimisation complaint, the Appeal Panel found that the Tribunal’s reasoning contained an error in relation to its application of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and its reliance on the decision of Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217: St Joseph's Hospital Ltd v Correy [2008] NSWADTAP 4.

10 Rule in Jones v Dunkel. The Appeal Panel concluded at [81] that the Tribunal had correctly applied that rule when it decided that since the Hospital did not call the people who actually prepared the July and August rosters, an inference could be drawn that their evidence would have been of no assistance. However, the Appeal Panel decided that the Tribunal had erred to the extent that it applied the rule to the absence of a plausible explanation from management as to why Ms Correy was rostered in the Aged Care Psychiatry Unit. The Appeal Panel’s view was that since Mr Geoghegan had given evidence about the preparation of the rosters, the rule in Jones v Dunkel did not apply to that evidence. The Appeal Panel found at [80] that the decision in Weissensteiner v R was not applicable. The Appeal Panel made the following orders and directions:

The victimisation complaint is remitted to the Tribunal (as originally or similarly constituted) to be heard and decided again, in accordance with the following directions:

a) the issue for determination is whether the necessary causal connection exists between any of the matters in section 50(1)(a) to (d) and the detriment suffered by the Appellant;

b) that issue is to be determined in accordance with the Appeal Panel’s decision on the applicability of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and R v Weissensteiner [1993] HCA 65; (1993) 178 CLR 217;

c) if the Tribunal finds that the relevant connection exists, it should then decide, on the basis of the existing evidence, whether the Appellant is entitled to a remedy.

11 The Tribunal heard and decided the victimisation complaint again and found the complaint substantiated. The Tribunal ordered the Hospital to pay Ms Correy $23,665 in damages.

12 Tribunal’s second decision. The Tribunal’s task was to determine whether the Hospital had breached s 50 and, if so, whether it was appropriate to order a remedy. Section 50 makes victimisation unlawful:

(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. The questions of law turn, to Matter was remitted on victimisation and remedy (set out orders)

13 Trigger. The first element of victimisation is that there is an event which is a trigger for a subsequent detriment. The Tribunal held that the Hospital’s managers had been aware as early as March 2005 that Ms Correy believed that the decision not to return her to the PCU constituted discrimination. She repeated that allegation in the meeting on 7 June 2005 with Mr Geoghegan and Ms McCarthy.

14 Detriment. The alleged detriment was said to be both the decision of the Hospital communicated by letter of 27 July 2005 to roster Ms Correy mainly in the Aged Care Psychiatry Unit and the continuing decision not to place her back in the PCU.

15 Causation. The Tribunal set out its understanding of the meaning of ‘on the ground of’ in s 50. It then repeated the evidence and findings left undisturbed by the Appeal Panel in its first decision. That evidence included the history of Ms Correy’s communications with the Hospital from 7 June 2005. The Tribunal concluded that while the decision not to place her back in the PCU was not made as a result of Ms Correy’s complaints, the decision to roster her in the Aged Care Psychiatry Unit was made as a result of those complaints. The Tribunal’s finding had three evidential bases: inferences based on the factual circumstances; a Jones v Dunkel inference as a result of the fact that the person or people who actually prepared the rosters did not give evidence; and the failure of the Hospital to provide any adequate explanation for the rostering decision.

16 Absence of an alternative explanation. Relying on the judgement of Dixon J in Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200 at 219, the Tribunal held at [51], that . . .while the legal onus of a plaintiff to adduce sufficient evidence to raise a prima facie (case) does not shift, the evidential onus may shift so that, absent an explanation from the person who might be expected to provide the relevant information, the inference supporting the plaintiff may be so strong that to reject it would be unreasonable.’ The Tribunal said at [53] to [54] that the Hospital has chosen not to produce evidence that would explain the odd rostering of Ms Correy and has thereby left a significant gap in its own case:

53 If the facts appear to point one way, the absence of a reasonable alternative hypothesis or explanation makes the conclusion, if not inevitable, easier to draw with comfortable satisfaction. As Barwick CJ remarked, ‘a case is normally better tried on the evidence which is produced than on that which is not’. In this instance, the Hospital has apparently chosen not to produce evidence that would explain the odd rostering of Ms Correy and has thereby left a significant gap in its own case.

54 In our view, the chronology of this saga demonstrates that the Hospital intended to teach Ms Correy some sort of lesson by forcing her to accept rosters it knew she believed she could not work and from which she had begged to be excused. It denies this and denies that anything other than normal rostering was taking place during this period. Those assertions cannot be accepted.

Grounds of appeal relating to causation

17 Summary of grounds. The grounds of appeal in relation to the causation issue were, in summary, that:

a) the Tribunal breached procedural fairness by making a finding that the Hospital intended to teach Ms Correy ‘some sort of lesson’ without that matter having been put to the witnesses; and

b) the Tribunal erred by finding the Hospital vicariously liable for the acts of its employees when the employee who prepared the August roster had not been identified; and

c) the Tribunal misapplied the concept of shifting evidential onus; and

d) given the absence of any direct evidence of causation, circumstantial evidence and a Jones v Dunkel inference were insufficient to meet the standard of proof required by Briginshaw.

18 Procedural fairness. The Hospital alleges that the Tribunal erred when it found at [54] that the Hospital intended to teach Ms Correy ‘some sort of lesson’ by forcing her to accept rosters it knew she believed she could not work and from which she had begged to be excused. The Hospital’s submission was that none of their witnesses said they were attempting to teach Ms Correy a lesson and it was never put to Mr Geoghegan that that was his motive. In addition, it was not put to Mr Geoghegan that he intended to victimise Ms Correy when approving the rosters. This ground alleges a denial of procedural fairness by not complying with the rule in Browne v Dunn (1893) 6 R 67.

19 Conclusion. The Tribunal is not bound by the rules of evidence but is subject to the rules of natural justice: ADT Act, s 73(2). The rule in Browne v Dunn is that a party wishing to present evidence which is inconsistent with the evidence given by a witness for the opposing party must give that witness an opportunity during cross-examination to comment on the contradictory evidence. The High Court has held that the rule does not apply to the Refugee Review Tribunal which is making administrative decisions in an inquisitorial manner: Re Minister for Immigration and Multicultural Affairs Ex Parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437. However in anti-discrimination proceedings, the decision maker is adjudicating in relation to party/party proceedings which are often adversarial in nature. Even if the rule applies it has not been breached because Mr Geoghegan knew that the complaint was a complaint of victimisation and that he was being asked to explain his actions in that context. This was not a case where there was inconsistent evidence which should have been put to Mr Geoghegan.

20 No evidence. The Hospital also submitted that there was no evidence to support the Tribunal’s finding that the Hospital intended to teach Ms Correy some sort of lesson. That finding was merely another way of saying that the Hospital had victimised Ms Correy in breach of s 50. There was no need for one of the Hospital’s witnesses to use those words in order for the Tribunal to make that finding.

21 Vicarious liability. The Hospital submitted that it could not be vicariously liable for victimisation because the identity of the person who drafted the August roster had not been established. The Tribunal came to the following conclusion at [61]:

61 Ms Correy does not have to prove the identity of a particular person who has victimised her. Nevertheless, the circumstantial evidence suggests that Mr Geoghegan was more involved in the formulation of the rostering than he has admitted. He was the principal recipient of Ms Correy’s complaints and correspondence; he was directly responsible for rostering and he has identified no one else who was taking the decisions which Ms Correy understood were his to make. This suggests that it was he, or he in conjunction with others, who decided to take this action against Ms Correy .

22 Section 52 of the AD Act makes an employer vicariously liable for an act done by an employee in certain circumstances:

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

23 It is apparent from the Tribunal’s finding at [61] that it regarded Mr Geoghegan as being responsible for signing off on the rostering decisions. The Hospital is vicariously liable for that act if it amounts to a contravention of s 50. The fact that other unidentified employees may also have been involved in those decisions is not a basis for concluding that the Hospital is not vicariously liable.`

24 Burden of proof. The Hospital submitted that the Tribunal misapplied the concept of shifting evidential onus. In cases under the AD Act, the legal burden of proof is on the applicant except in relation to exceptions to unlawful conduct in which case the onus is on the respondent: AD Act, s 104. That means that where a complaint is made under s 50(1), it is for the applicant to prove the causal connection between a matter listed in s 50(1)(a)-(d) and the alleged detriment. Causation is an essential element of the cause of action and the burden of proof remains on the applicant. Once the applicant has given its evidence, a respondent has the choice of adducing no evidence or of adducing evidence which tends to contradict or diminish the applicant’s claim. The respondent should, as a matter of prudence, adduce some evidence on disputed issues or risk losing on that issue: Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 at 197.

25 Evidential burden. The evidential burden relates most commonly to circumstances where a jury is hearing a case, whether criminal or civil. The plaintiff or prosecutor in such a case must first adduce sufficient evidence to prevent the judge from withdrawing the issue from the jury. If the evidential burden is met, then the plaintiff or prosecutor must go on to persuade the jury of that issue. The evidential burden has been described as ‘the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue’: Byrne D and Heydon JD, Cross on Evidence , Vol 1, [7200] (2004) Butterworths. The authors go on to say that,

[T]he question whether there is sufficient evidence to raise the issue of the existence of a particular fact can be answered only once in the course of a case and, if there is a jury, the answer must be given by the judge.

The question whether a fact in issue has been proved can be answered only after both parties have called their evidence . . .

The concept of the evidential burden is the product of trial by jury and the possibility of withdrawing an issue from that body. Unlike the concept of the legal burden it is not a logical necessity of litigation about questions of fact . . .

26 The principles relating to the evidential burden of proof do not apply to this case. Contrary to the Tribunal’s comment at [51], there is no evidential onus which shifted to the Hospital at some stage in the proceedings. The Tribunal made an error of law by finding that the Hospital had such an onus which it failed to discharge.

27 Res ipsa loquitur. The Tribunal referred to a negligence case, Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200 at 219. While the onus of proving negligence is on the plaintiff, in certain circumstances the mere occurrence of an accident (in that case a bag falling) is a fact from which negligence can be inferred. This principle is sometimes referred to as ‘res ipsa loquitur’ or ‘the thing or matter speaks for itself’. The principle will be applicable where the cause of the damage is unknown, the event is within the control of the defendant and such an accident does not occur in the ordinary course of events. Apart from the fact that this is not a negligence case, it cannot be said that the August rostering decision necessarily speaks for itself giving rise to a presumption of discrimination. In our view, the Tribunal made an error by comparing this situation with the situation that sometimes arises in negligence cases.

28 Decision in Briginshaw. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361, Dixon J said:

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.”

29 Tribunal’s findings. The Tribunal found, at [6], that the ‘Briginshaw standard’ applies to complaints of victimisation. In its first decision at [30], the Tribunal explained its understanding of that ‘standard’:

In determining whether Ms Correy has established her case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent.

30 The Tribunal did not make a finding about how serious or grave the allegations were or how serious or grave an adverse finding would be. It merely noted that it would take the seriousness or gravity of those matters into account. The Hospital agreed that the Briginshaw standard was appropriate and said that allegations that a public authority has breached the AD Act and actively victimised an employee was a serious matter and could constitute grounds for dismissal.

31 Decision in Gama. The Appeal Panel drew the parties’ attention to the decision of the Full Federal Court in Qantas Airways v Gama [2008] FCAFC 69; (2008) 167 FCR 537. That decision was handed down after the first Appeal Panel’s decision but before the Tribunal’s second decision. While that decision applied to the Racial Discrimination Act 1975 (Cth), it is the most recent and authoritative statement of the law on this question. Branson J (with whom French and Jacobson JJ agreed) said at [139] that the application of ‘the Briginshaw standard’ is likely to lead a trier of facts into error:

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 . . . 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.

32 This statement of the law is consistent with the Tribunal’s characterisation of the standard of proof in its first decision. Section 140 of the Evidence Act 1995 states that:

(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.

33 Application of Briginshaw. The Hospital’s ground of appeal was that the Tribunal could not have been satisfied on the ‘Briginshaw standard’ that there was a causal link between the August rostering decision and Ms Correy’s complaints of discrimination. In particular, the Hospital said that a ‘Jones v Dunkel inference’ is insufficient as the foundation for a finding of victimisation. This Tribunal commented on the kind of evidence to which Briginshaw refers in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [48]:

Evidence which meets the appropriate standard is identified in Briginshaw only by exclusion: it would not be "slender and exiguous proofs or circumstances pointing with a wavering finger" (per Rich J at p 350), nor "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). Put positively and in contemporary terms, evidence of the Briginshaw standard might be said to be evidence of high probative value.

34 In accordance with Gama, we have approached these questions on the basis of s 140 of the Evidence Act and the authorities relating directly or indirectly to that provision rather than on the so-called ‘Briginshaw standard’. We also note that the Tribunal is not bound by the rules of evidence: Tribunal Act, s 73.

35 Jones v Dunkel inference. It was submitted that any inference arising from the rule in Jones v Dunkel will never be sufficient to substantiate a complaint where the allegations are ‘serious’. We accept that the rule in Jones v Dunkel cannot be used to fill gaps in the evidence or convert conjecture and suspicion into inference. However, it can be used to assist a fact finder to decide which of more than one conflicting inferences to draw: Jones v Dunkel at 308, 312 and 320-1. That is how we understood the Tribunal to have applied the rule in the present case. The Jones v Dunkel inference was only one of three bases on which the Tribunal made its finding. While there was no direct evidence (that is, no admission by the Hospital) that the rostering decision was on the ground of Ms Correy’s complaints, there was evidence from which an inference could be drawn to that effect. Mr Geoghegan failed to provide any persuasive reason for the rostering decision. The Tribunal had a choice of finding that the rostering decision was made because of Ms Correy’s complaints or that it was made for some other undisclosed or unknown reason not connected with her complaints. The Tribunal used the Jones v Dunkel inference to assist it to decide which of those inferences to draw. That reasoning did not involve any error.

Consequential findings and/or orders

36 We have found that the Tribunal erred by finding that the Hospital had an evidential onus to adduce evidence. The Hospital submitted that the only option for the Appeal Panel if it found that the Tribunal had erred would be to set aside its decision and dismiss the complaint. It does not follow that these errors require the complaints to be dismissed. New findings need to be made applying the correct legal principles to the facts. That can be done either by remitting the matter to the Tribunal or by granting leave for the appeal to be extended to the merits of the Tribunal’s decision: ADT Act s 114 and 115. As this matter has already been remitted to the Tribunal, the most efficient course is to give leave to extend the appeal to the merits of the Tribunal’s decision and make a finding about causation.

Merits of victimisation complaint

37 Seriousness of the allegations. Not every case involves issues of importance and gravity in the Briginshaw sense: State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287; (1999) 91 FCR 47 citing G v H [1994] HCA 48; (1994) 181 CLR 387 per Deane, Dawson and Gaudron JJ at 399). In State of Victoria the Full Federal Court said 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 is not, in our view, sufficient to attract the Briginshaw test". The correct approach in these circumstances was elucidated by Heerey J in GranadaTavern v Smith [2008] FCA 646; (2008) 173 IR 328; at [95]. His Honour was hearing an appeal against a decision of the Federal Magistrate’s Court that an employer had applied duress to an employee in connection with an Australian Workplace Agreement (AWA) contrary to s 400(5) of the Workplace Relations Act 1996 (Cth):

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, take into account the gravity of the particular allegations: s 140(2)(c).

38 While the Hospital submitted that a finding that it had victimised Ms Correy was a serious matter that could result in the dismissal of an employee, we do not regard it as a matter of such seriousness that it cannot be proved by way of inferences from primary facts. The nature of victimisation and discrimination complaints is such that there is rarely direct evidence of a breach. In Dutt at [70] the Tribunal set out a useful summary of the relevant principles when drawing inferences in discrimination cases. The same principles apply to victimisation complaints.

i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts

ii. an inference must be reasonably drawn on the basis of the primary facts

iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference

iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof

v. it is not enough that the inference is a mere possibility: it must be one of "probable connection"

vi. the inference must be a logical one, and not supposition

vii. an inference cannot be made where more probable and innocent explanations are available on the evidence.

39 Relevant matters. When determining whether an applicant has discharged his or her legal onus, several matters are relevant. As well as the matters listed in s 140 of the Evidence Act, the Full Federal Court in Gama mentioned that a court may also take into account other matters including ‘the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged’ and ‘the long standing common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict: Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 per Branson J at [76]). This proposition was supported by decisions including Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp [1985] 1 NSWLR 561 at 565 citing Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. We note that those authorities relate to the proof of a negative proposition so are not directly applicable to this case where the onus is on Ms Correy to prove an affirmative proposition (that the rostering was on the ground of her having made complaints of discrimination).

40 The primary facts. The factual circumstances were that:

a) Ms Correy had complained of discrimination in March 2005 and again in a meeting on 7 June 2005;

b) Ms Correy was rostered to work 2 out of 10 shifts in the Aged Care Psychiatry Unit in the July roster and 9 out of 10 in the August roster;

c) when the rosters were approved Mr Geoghegan knew Ms Correy had complained and that she objected to working in the Aged Care Psychiatry Unit;

d) there were three other units in the Hospital where Ms Correy could theoretically have been rostered; and

e) Mr Geoghegan said initially that he ‘could not answer’ why he had signed off on the August roster. Later he said that he had told Ms Correy that every consideration would be taken in relation to her requests and that he believed that ‘closer to the day’ the roster may have been changed to accommodate her requests. The roster was not changed.

f) Mr Geoghegan did not offer an innocent explanation for the rostering decisions. He conceded that he could have changed the rosters but didn't.

g) The Hospital did not call the employees who prepared the rosters to give evidence.

41 Findings. Given these primary facts, an inference can reasonably be drawn that the August rostering decision was made because Ms Correy had complained of discrimination rather than for some other undisclosed or unknown reason not connected with her complaints.

Grounds of appeal relating to remedy

42 Introduction. Ms Correy did not return to work after her maternity leave and it was not in dispute that she lost income. The Tribunal awarded Ms Correy $23,665 in damages for economic loss pursuant to s 108(2)(a) of the AD Act:

If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a) . . . order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

43 Tribunal’s decision. The loss or damage suffered must by ‘by reason’ of the respondent’s conduct. The Tribunal found at [78] – [79] that this means that the victimising conduct ‘materially contributed’ to Ms Correy’s economic loss, whether or not other factors or conditions played an even more significant role in producing the loss or damage: Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 493 per McHugh J and Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22 at [33]. The Tribunal then set out the history of the correspondence between Ms Correy and the Hospital in late July 2005 and found that ‘a key reason’ for Ms Correy’s decision not to return to work ‘was her belief that she held an entitlement to a position in the PCU.’ The Tribunal then considered whether the decision to roster her in the Aged Care Psychiatry Unit materially contributed to her not returning to work in August. The Tribunal found that even if Ms Correy had been rostered to work in a Unit other than Aged Care Psychiatry or the PCU she would not have returned to work in August 2005. Despite that finding, the Tribunal concluded that the August rostering decision constituted a repudiation of her contract of employment entitling her to damages. The Tribunal’s reasoning was set out at [87] to [92]:

87 It is apparent that had Ms Correy been rostered to work in a Unit other than Aged Care psychiatry or the PCU she would not have returned to work in August 2005. Nonetheless can it be said that the Hospital’s action in rostering her to work in Aged Care Psychiatry ‘materially contributed’ to her loss?

. . .

89 If, as the Hospital contends, Ms Correy was in breach of her contract of employment, that breach did not lead to the termination of the contract. The Hospital took no action to terminate the contract but elected to continue to roster her. On the other hand, the Hospital, in our view, breached an implied term of the contract by victimising Ms Correy in her employment. Any contract of employment almost certainly contains an implied provision that an employer will comply with the Anti-Discrimination Act insofar as it affects the terms and conditions of employment . We think that the Hospital repudiated the contract, as alleged in the letter of 28 July, by rostering Ms Correy into a Unit which it knew would result in her refusal to work.

90 It is apparent that Mr Geoghegan had signed off on the August roster before receiving Ms Correy ’s letter of 28 July which contained the notification about the termination of the contract.

91 We think, taking all the circumstances into account, that from a pragmatic and commonsense perspective the date of repudiation was the date the August roster was issued to Ms Correy, 27 July 2008.

92 Damages for loss of income, therefore, would seem to run from that date. On the basis of the figures agreed by the parties we calculate that loss to be $26,121 less the wages claimed for July ($2456) = $23,665.

44 Grounds of appeal. The Hospital’s grounds of appeal in relation to these findings can be summarised as follows:

a) The Tribunal did not award Ms Correy compensation for victimisation in the first decision and it was not open to them to do so in the second decision.

b) The Tribunal’s decision that the Hospital repudiated the contract on 27 July 2005 differs from its first decision.

c) The Hospital’s August rostering decision did not materially contribute to Ms Correy’s loss of income because she had decided that she would not return to work unless rostered in PCU.

c) Alternatively, even if the Hospital victimised Ms Correy by issuing the August roster, that does not amount to a repudiation of the contract of employment because:

i) it is not an implied term of the contract of employment that the Hospital comply with provisions of the AD Act; and/or

ii) Ms Correy had already repudiated the contract of employment the previous day.

45 Failure to award compensation for victimisation in first decision. The Hospital submitted that because the Tribunal did not award Ms Correy damages in relation to the victimisation complaint in the first decision, they had no power to do so in the second decision. The Tribunal rejected that proposition at [67] and [68]:

67 In the original proceedings Ms Correy claimed damages for economic loss in respect of the claims of discrimination on the grounds of carer’s responsibilities and sex, and victimisation. The Hospital was ordered to pay Ms Correy damages for lost income that resulted from the Hospital’s contravention of s 49V(2) of the Act. Having found that she was entitled to compensation for economic loss as a result of that contravention, we did not proceed to consider whether in addition she should also be awarded damages on account of the contravention of s 50, as the amount awarded was the extent of her loss. (The Hospital did not challenge Ms Correy’s estimate of lost income-Exhibit A1.)

68 The Appeal Panel has now decoupled the two issues of unlawful discrimination and victimisation. The Appeal Panel made no finding that Ms Correy did or did not suffer a loss. It remitted to us the issue of whether the Hospital’s conduct constituted victimisation and if so, ‘on the basis of the existing evidence, whether [Ms Correy] is entitled to a remedy’ (Order 4(c)). There is nothing in the Panel’s Reasons to suggest that we cannot now consider whether the contravention of s 50 of the Act could now give rise to orders for relief. Indeed Order 4(c) directs us to do just that.

46 We agree that there was nothing to prevent the Tribunal from awarding damages for the victimisation complaint once the Appeal Panel had set aside its decision in relation to the complaint of discrimination.

47 Second decision different from first decision? According to the Hospital, the Tribunal’s decision that the Hospital repudiated the contract on 27 July 2005, differs from its decision in the first proceeding. In the first decision, the Tribunal identified the issue as whether Ms Correy was entitled to elect to treat her contract of employment as ‘terminated’ as a consequence of the conduct of the Hospital. That conduct was identified at [170] as telling Ms Correy that she would not be returned to her pre-maternity leave position and giving her no clear indication or guarantee that this would change in the foreseeable future. The Tribunal added that over half Ms Correy’s shifts in the two months after her return were in the Aged Care Psychiatry Unit.

48 Ms Correy elected to terminate the contract of employment by letter of 28 July, before she had received the August roster. It follows that any repudiatory conduct prompting that election must have occurred before that time. We agree with the Hospital that in the second decision the Tribunal found that the repudiatory conduct was the issuing of the August roster. That was inconsistent with the first decision in which the Tribunal found that the repudiatory conduct was refusing to return Ms Correy to her pre-maternity position in the PCU. In either case, there can have been no constructive dismissal until Ms Correy elected to accept the repudiation. As that occurred before the issuing of the August roster, the issuing of that roster, whether or not it would also have amounted to a repudiation of the contract by the Hospital, cannot have materially contributed to Ms Correy’s loss of employment. This finding also applies to the next ground of appeal.

49 Causation. The Tribunal found that even if Ms Correy had been rostered to work in a Unit other than the Aged Care Psychiatry Unit or the PCU she would not have returned to work in August 2005. That finding was based on evidence Ms Correy gave that she had decided not to work in any ward except the PCU well before 27 July 2005 and that she had not worked any shifts, even those that were not in the Aged Care Psychiatry Unit, that were on her roster. Having made that finding, it was not open for the Tribunal to conclude that the August rostering decision ‘materially contributed’ to her economic loss. That decision cannot have had any causative effect on Ms Correy’s loss as she would not have returned to work regardless of that decision. The Tribunal’s finding that the August rostering decision materially contributed to Ms Correy’s loss was not open to it on the evidence and constitutes an error of law: The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 138.

50 Had Ms Correy already repudiated the contract prior to 28 July? Alternatively, the Hospital submitted that the Tribunal erred when it found that the Hospital repudiated the contract on 28 July. According to the Hospital, it is not an implied term of the contract of employment that they comply with provisions of the AD Act. Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 420 is authority for the proposition that damages cannot be obtained for breach of an award provision unless that provision has been expressly included in the contract of employment or its inclusion can be implied in fact. The Hospital said that the same reasoning applies to a breach of a statutory provision such as s 50 of the AD Act. The Hospital also said that even if there was an implied term to comply with s 50, that term was not an ‘essential’ term, the breach of which amounted to a repudiation of the contract.

51 The Appeal Panel brought the parties’ attention to the decision in Mooney (No 2) [2003] NSWADTAP 67. The relevant passages from that decision are at [43] to [45]:

43 The decided cases do not explicitly identify how, in terms of the law governing contracts of employment, conduct by an employer which constitutes discrimination on the ground of disability amounts to a repudiatory breach of the contract. But such conduct may be characterised as a breach of the implied term of mutual trust and confidence. As Kirby J pointed out in Concut Pty Ltd v Worrell [2000] HCA 64 at [52]: "The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust". The implied term of trust and confidence, in so far as it applies to employers, was described by Lord Steyn in Malik v Bank of Credit & Commerce International SA (In liq) [1997] UKHL 23; [1998] AC 20 at 45 as requiring an employer not to "without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee".

44 The High Court has not specifically identified the implied term of mutual trust and confidence as a term implied by law in all contracts of employment unless specifically excluded. But the Full Court of the Industrial Relations Court held in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 that there was ample authority for the implication of this term. There have been numerous Australian cases since Burazin in which the existence of this implied term has been accepted (see K Godfrey, "Contracts of Employment: Renaissance of the implied term of trust and confidence" (2003) 77 ALJR 764).

45 In many instances, discriminating against an employee on the ground of disability will constitute conduct which is likely to destroy or seriously damage the relationship of confidence and trust between an employer and an employee. In this case the discrimination against Mr Mooney on the ground of his disability took the form of placing him under pressure, over a sustained period of time, in relation to leave which he was quite entitled to take. In our judgment, this amounted to a breach of an implied term of the contract of employment between Mr Mooney and the Commissioner. Such conduct may be characterised as either a breach of an essential term of that contract or, otherwise, as a repudiatory breach of the contract. An employee is clearly entitled to expect as part of his/her contract of employment that the employer will not treat him/her in a way that constitutes a breach of anti-discrimination laws.

52 In accordance with Mooney (No 2), we agree with the Hospital’s submission that it was incorrect for the Tribunal to find that it was an implied term of the contract of employment that the employer will comply with the AD Act. Nevertheless, we accept Ms Correy’s submission that it is an implied term that an employer and employee maintain mutual trust and confidence. A breach of the AD Act may constitute a breach of trust. While the Tribunal has overstated the proposition about implied terms, the principle enunciated in Mooney (No 2) is correct. That principle may have provided an alternative justification for the Tribunal’s finding that there had been a breach of an implied term justifying repudiation. Nevertheless, it remains the case that the August rostering decision on 28 July 2005 cannot have had the effect of constructively dismissing Ms Correy because she did not elect to terminate the contract as a result of that conduct. Furthermore, she had previously elected to terminate the contract as a result of different conduct.

Merits of decision on remedy

53 Having identified an error of law in the Tribunal’s decision about remedy, we give leave to extend the appeal to the merits of that part of the decision. While there is no merit in compensating Ms Correy for economic loss because the August rostering decision did not materially contribute to that loss, there may be merit in compensating her for other loss or damage. In her counsel’s written submissions filed on 20 October 2006, Ms Correy claimed damages “for the anxiety and disruption” caused to her life by the acts of victimisation. However, in further submissions dated 28 April 2008, after the matter had been remitted by the Appeal Panel to the Tribunal, Ms Correy sought damages only for economic loss of $26, 121.00. A party is bound by the manner in which the case was conducted before the Tribunal: Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481 at 483. As there was no claim for a remedy other than economic loss we make no order under s 108.

Summary

54 This is the second appeal against a decision of the Tribunal relating to Ms Correy’s complaints under the AD Act. In these reasons we have decided that the Tribunal made an error of law when it found that the Hospital had an evidential onus in relation to Ms Correy’s complaint of victimisation which it failed to discharge. We have also found that the Tribunal erred by incorporating principles applicable in certain negligence cases to complaints under the AD Act. Having identified those errors we extended the appeal to the merits of the Tribunal’s decision on the question of whether the Hospital had breached s 50 of the AD Act. Applying what we understand to be the correct principles to the existing evidence, we agreed with the Tribunal’s finding that Ms Correy’s complaint of victimisation was substantiated. Nevertheless, we have decided to set aside the Tribunal’s decision to order the Hospital to pay Ms Correy damages for economic loss. That decision was based on our view that the Tribunal’s finding that the victimising conduct materially contributed to Ms Correy’s loss was not open to it on the evidence. As no claim was made for any other remedy, no remedy has been ordered.

Costs

If either party wishes to apply for costs they should do so within 21 days of the date of this decision. The other party should file and serve any response within a further 21 days. A decision in relation to any such application will be made ‘on the papers’ pursuant to s 76 of the ADT Act.

1. Leave granted to extend the appeal to the merits of the Tribunal’s decision.

2. Complaint of victimisation substantiated.

3. The order that the Respondent pay the Applicant the sum of $23,665 within 28 days is set aside.