WAUCHOPE and DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
[2021] WASAT 68
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: WAUCHOPE and DIRECTOR GENERAL, DEPARTMENT OF EDUCATION [2021] WASAT 68
MEMBER: JUDGE D R PARRY, DEPUTY PRESIDENT
HEARD: 25 FEBRUARY 2021 and 29 APRIL 2021 - FURTHER EVIDENCE FILED ON 10 MAY 2021
DELIVERED : 14 MAY 2021
FILE NO/S: EOA 26 of 2020
BETWEEN: VERONA WAUCHOPE
Applicant
AND
DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent
Catchwords:
Anti-discrimination Complaint of impairment discrimination in employment Application by complainant for interim orders under s 126 of the Equal Opportunity Act 1984 (WA) Whether orders sought are interim orders to preserve status quo between parties to complaint or rights of parties to complaint Whether there is a serious question or issue of unlawful impairment discrimination in employment to be tried Whether balance of convenience favours grant of injunction to restrain disciplinary process by respondent against applicant Words & phrases: 'preserve'
Legislation:
Equal Opportunity Act 1984 (WA), s 66A(1), s 66B(2), s 83, s 84, s 85, s 90, s 93, s 126, s 127(b)(iii)
Industrial Relations Act 1979 (WA), s 23A, s 23A(3), s 23A(4), s 23A(5)
Public Sector Management Act 1994 (WA), s 78(2)(b)(iv), s 82A(3)(b)
School Education Act 1999 (WA), s 239(1), s 240
Result:
Application for interim orders dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr S Pack |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 21 November 2020, Ms Verona Wauchope (applicant) filed an application in the Tribunal purportedly under s 85 of the Equal Opportunity Act 1984 (WA) (EO Act) seeking an order for 'Reinstatement of employment' against the Department of Education (Department) on the grounds of 'Discrimination[,] Lack of procedural fairness[,] Criminal Defamation [and] Victimisation'. However, an application under s 85 of the EO Act, which is 'for the making of an interim order under [s] 126 [of the EO Act]', can only be made by the Commissioner for Equal Opportunity (Commissioner).
On 3 February 2021, the applicant filed a document setting out the orders she seeks from the Tribunal in this proceeding as follows:[1]
1. The Applicant be reinstated in her relative position of employment at the earliest possible convenience as is just and fair to do so.
2. Lost income and Super for the period of leave not paid, be paid forthwith.
3. The Applicant's employment file not be red-flagged.
4. The s.240 investigation dropped in lieu of the vexatious, untrue and trumped up allegations about the Applicant.
5. Legal fees reimbursed for the current matters.
6. Union fees reimbursed due to SSTWA directive from Department not to represent Applicant.
7. Injunction to prevent further bullying and harassment from Labour Relations Manager.
8. Review of Applicant's complaints to SID [Standards Integrity Directorate] which were not genuinely considered.
[1] As written.
At a directions hearing on 5 February 2021, Deputy President Judge Glancy ordered that the application made by the applicant on 21 November 2020 'seeking an interim order that the [a]pplicant be reinstated … be treated as an application made under s 126 of the EO Act' and that the name of the respondent to the application be amended to 'Director General, Department of Education' (respondent). Judge Glancy made programming orders and listed the matter for hearing. Her Honour also ordered the applicant to 'identify in her outline of written submissions the relief that she seeks by way of the [a]pplication'.
On 23 February 2021, the applicant filed her written submissions in which she set out the relief that she seeks in this proceeding as follows:[2]
[2] Applicant's written submissions filed on 23 February 2021 (applicant's written submissions) [13.0] (as written).
As against the DoE [Department]:
13.1.An order that the current permanent Employment Contract is valid and enforceable;
13.2Litigation costs of APPLICANT to be paid by the RESPONDENT.
AND
13.3An injunction to restrain any disciplinary measure by the Director General, based on the evidence and discriminatory process carried out, until such time as the current proceedings are finalised in the SAT.
13.4A public apology for the untrue, defamatory, and unlawful allegations made about the APPLICANT to her employer, especially with regard to the complaints from the Principal at Ocean Road Primary School, Dean Finlay.
13.5Lost income and Super for the period of leave not paid, to be paid forthwith.
13.6Reimbursement of Union Fees for the period denied by the DoE.
13.7.An injunction on any further harassment, bullying or discrimination from the Department of Education.
13.8Public authorities in the DoE who have acted improperly with regard to 'whistleblowers' legislation, be disciplined accordingly.
As can be seen, there is substantial, although not complete, overlap in the relief sought by the applicant in the two documents she has filed.
Section 126 of the EO Act states as follows:
The Tribunal may, on the application of the Commissioner under section 85, or on the application of a party to an investigation at any time after the lodging of the complaint into which that investigation is held, make an interim order to preserve —
(a)the status quo between the parties to the complaint; or
(b)the rights of the parties to the complaint,
pending determination of the matter that is the subject of the complaint.
Background
The applicant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) many years ago. She manages her ADHD with medication and is under the care of a psychiatrist in relation to it.
The applicant is a qualified teacher and specifically an English and literacy specialist. She holds a Master's Degree in Linguistics and Education Leadership and a Certificate in Data Analytics. The applicant was first employed by the Department in 1997 and has subsequently worked in State and private schools in Western Australia and overseas. She was appointed as a lecturer and executive manager of teaching and learning at Curtin University in January 2007 and remained in these positions for seven years. She was subsequently an educational consultant. In 2017, the applicant was reemployed by the Department and worked four days a week at Melville Senior High School.
In 2019, the applicant was approached by Ms Jacquie Abbiss, the Principal of Waroona District High School (Waroona DHS) and asked by Ms Abbiss to come to the school to teach English and to be a data coach in 2020. The applicant commenced teaching English at 0.6 and as a data coach at 0.4 in Term 1 of 2020. The applicant gave evidence that Ms Abbiss 'praised me for my work and behaviour management, asked me to do model teaching for all staff and had taken photos of my student's work to put on Facebook' and that she 'received an award (with another teacher) for best online teaching at the end of Term 1'.[3]
[3] Witness statement of Verona Wauchope dated 22 March 2020 (Exhibit 8) [12].
Between March 2020 and August 2020, the Department's Standards and Integrity Directorate (SID) received various complaints in relation to the applicant's alleged conduct. On 11 March 2020, Ms Abbiss called the applicant in for a meeting to discuss what appears to have been the first of these complaints, which, as Ms Abbiss said in an email to the applicant dated 13 March 2020 summarising the matters discussed at their meeting on 11 March 2020, related to 'an alleged Tik Tok account which featured a video of Waroona [DHS] students' and that 'a number of students were following'.[4] In her email to the applicant dated 13 March 2020, Ms Abbiss appears to accept the applicant's statements made at the meeting on 11 March 2020 that she did not film any students, had no knowledge of the video in question and did not have a Tik Tok account. Ms Abbiss said in her email dated 13 March 2020 that '[t]he inquiry and resolution process into this matter has now been concluded' and 'I would like to confirm that as the matter has been resolved at local level, no further action will be taken'.[5]
[4] Exhibit 4.
[5] Exhibit 4.
In an undated letter to the respondent, the applicant states that '[i]n late March [2020] I was asked to come to the office regarding a breach of Code of Conduct'.[6] She said that this was because '[m]y son's Primary school (who [sic] had breached safety) had complained falsely to SID at the Department that I was using my work email to email the school in a perfectly normal manner'.[7] Although the applicant's reference to a meeting '[i]n late March [2020]' does not accord with the date of the meeting on 11 March 2020 referred to in Ms Abbiss' email dated 13 March 2020, it appears that the applicant is referring to the same meeting, because she says that when she pointed out to Ms Abbiss that using her work email to email her son's school is permitted, '[Ms Abbiss] then showed me a photograph with my name on it and said it was alleged I had a [T]ik [T]ok account and had students as friends'.[8] The applicant says that 'I then realised the complaint from my son's school was an act of reprisal'.[9]
[6] Exhibit 2 [6].
[7] Exhibit 2 [6].
[8] Exhibit 2 [6].
[9] Exhibit 2 [6].
The applicant says that '[s]uddenly and very strangely, in the following weeks I became the victim of a smear campaign by David Mattin the [D]eputy [Principal of Waroona DHS]', who 'began complaining incessantly to the office staff (not to me) about allegations I was unaware of'.[10] The applicant says that 'I would then discover these allegations via Ms Abbiss' who 'would email me as though I was guilty of the allegation without discussion'.[11] The applicant says that 'I was perplexed as the allegations became more and more farfetched and fraudulent' and that 'I asked Ms Abbiss to assist me as I was unsure why this was happening' and '[s]he refused'.[12]
[10] Exhibit 2 [7].
[11] Exhibit 2 [7].
[12] Exhibit 2 [7].
It appears that during Term 1 or during the school holidays between Terms 1 and 2 in 2020, Ms Abbiss became concerned about aspects of the applicant's conduct indicating that she may not be fit for work. On 23 April 2020, which was the Thursday before the commencement of Term 2 the following week, Ms Abbiss wrote the following letter to the applicant:[13]
[13] Exhibit 10 (original emphasis).
Dear Ms Wauchope
RE: MEETING
Prior to the commencement of Term next week, I would like to meet with you to discuss recent issues. You are more than welcome to bring a support person to attend with you. Also in attendance will be Ms Penny White, Coordinator Regional Operations, from the Regional Office.
The purpose of the meeting is to discuss a series of emails you have forwarded to a range of people, both at the end of Term 1, and increasingly during the current vacation period. These emails are such that I have concerns as to your state of health. This issue is the sole matter for discussion at the meeting.
Upon your arrival at 8.30am on Tuesday, please attend my office, with the support person of your choosing
Jacquie Abbiss
Principal
Waroona District High School23 April 2020
The meeting referred to in Ms Abbiss' letter to the applicant dated 23 April 2020 did not take place on the following Tuesday, which was 28 April 2020. It appears that the applicant informed Ms Abbiss that she could not attend the meeting, because she had another engagement at that time, but was available to attend a meeting on the following day.
However, on Sunday 26 April 2020, Ms Abbiss sent the following letter to the applicant:[14]
[14] As written.
Dear Ms Wauchope
As you would appreciate the Department of Education has a statutory obligation to protect the safety and wellbeing of both its employees and students. Based on recent incidents I have formed a genuine concern over your medical fitness to undertake your duties at this time and if allowed to remain at work, I have concerns that you may be putting your health and safety at risk and/or the health and safety of others at risk.
My priority is to ensure that your health is not at risk and therefore I require the assurance of one of the Department's consultant Occupational Physicians that you can safely and effectively carry out the functions for which you are employed. I believe that I will be neglecting the Department's duty of care to you if I do not act on this belief. As you are required to undergo this examination at my request, the Department will pay the fee and any associated expenses incurred in having to attend the examination.
In the interim, and in accordance with clause 41 (4) (a) (iv) (aa) of the Teachers (Public Sector Primary and Secondary Education) Award 1993 (Employees Fitness for Work) I am directing you to remain away from Waroona District High School and refrain from communicating with staff and students. You will be placed on sick leave until a determination of your fitness for duty is received from the Department's Occupational Physician. You are not to report for work from the date of receipt of this letter, or any time thereafter, until the Department advises to the contrary.
As an employee of the Department you are required to follow all reasonable and lawful directives including abiding by the Code of Conduct.
An appointment will be scheduled for you as soon as possible and you will be notified of the date and time of the appointment. You will be given the opportunity to be provided with further information as to the reasons why I think this action is necessary.
I understand this matter may be distressing for you. The Department's Employee Assistance Program uses an external provider, PeopleSense by Altius, to deliver independent, confidential and professional counselling services at no cost to employees (up to 6 sessions annually). You are encouraged to access this service if you have not already done so and they can be contacted directly on 1300 307 912. Further information is available on the Department's intranet homepage under Employee Assistance Program.
Yours sincerely
Jacquie Abbiss
Principal
Waroona District High School26 April 2020
Although Ms Abbiss did not detail in her letter to the applicant dated 26 April 2020 the 'recent incidents' on the basis of which she had 'formed a genuine concern over [the applicant's] medical fitness to undertake [her] duties at this time', it appears that the incidents included the 'series of emails [the applicant had] forwarded to a range of people, both at the end of Term 1, and increasingly during the current vacation period' referred to in Ms Abbiss' letter to the applicant dated 23 April 2020. Also on 26 April 2020, Ms Abbiss completed a referral form for a consultant occupational physician to assess the applicant and express an opinion as to whether she was fit for work. Ms Abbiss wrote the following under 'Reason for Referral' on the referral form:[15]
[15] Exhibit 10 (as written; original emphasis).
·Verona reports feeling stressed, anxious and bullied in response to performance feedback
·Any feedback provided to Verona has been disputed
·Verona has made irrational accusations about others
Verona is sending emails to multiple sources with high frequency outside of school hours, including weekends and holidays. Examples including, but not limited to those below:
For example, emails to Manager Corporate Services during holiday period sent on Thursday 16/4/2020 at:
1.44AM
10.26PM
10.37PM
11.08PM
11.30 PM complaint regarding MCS sent to Principal18/4/2020 – email complaint sent to MCS and CC to Principal and A/RED
·Interpersonal relationships with staff have been impacted by her communications tone and approach
Staff report incidents of quick to anger
·Verona has recently requested Working From Home Arrangements due to medical condition during COVID19 for autoimmune disease and hypersplenism
·Concerned that she does not meet criteria for WFH or COVID19 Leave and sick leave credits are insufficient (10.59 days)
·Irregular leave Term 1 2020:
14/2 (Short Leave)
17/2 (Sick Without Evidence)
17/3 (Family Carer's leave)
18/3 (Sick Without evidence)
27/3(No leave entered – left school following incident/ distressed)
The applicant disputed or indicated that she was unaware of a number of the matters referred to by Ms Abbiss on the referral form. In relation to the example of emails sent to the Manager Corporate Services and Ms Abbiss on 16 April 2020, the applicant responded as follows:[16]
I do not believe that I should be held to account for the upload speed of home internet which may experience delays from time to time. This is a common experience on both ADSL and NBN networks for many Australians. I have experienced problems and had Optus attend to no avail and I have received compensation for this fault from OPTUS.
[16] Exhibit 10 (as written).
In relation to the example of the email complaint sent to the Manager Corporate Services and copied to Ms Abbiss on 18 April 2020, the applicant responded as follows:[17]
I emailed a genuine concern to Ms Abbiss that the MCS would not assist me to place an order for an online program for term two.
The order has not been placed after clarifying concerns that it was NOT at American Program and it was an approved Australian Curriculum content.I look forward to clarifying roles and responsibilities and authorities for processing – or denying requests.
[17] Exhibit 10 (as written).
On 13 May 2020, the applicant saw Dr Roger Lai, who is a consultant occupational physician, for a fitness for work assessment over about two hours. Dr Lai said in a report to Ms Abbiss written on the same day that '[b]ased on the severity of the workplace concerns I recommend assessment by an independent psychiatrist to clarify whether there is an underlying medical concern affecting work'.[18]
[18] Exhibit 3.
On 21 May 2020, the applicant saw Dr Darryl Bassett, who is a psychiatrist, on the referral of Dr Lai. Dr Bassett expressed the opinion in a report to Dr Lai written on the same day that 'I do not believe [the applicant] is suffering from a mental health condition which adversely affects her capacity to work safely and effectively'.[19] However, Dr Bassett suggested in his report that 'a [c]linical [p]sychologist could be very helpful to [the applicant] in approaching her work to manage interpersonal problems more successfully'.[20] Dr Bassett also noted in his report that the applicant suffers from ADHD and said that she 'is receiving appropriate management from a [p]sychiatrist for this illness'.[21]
[19] Exhibit 4 Attachment E.
[20] Exhibit 4 Attachment E.
[21] Exhibit 4 Attachment E.
Following receipt of Dr Bassett's report, Dr Lai expressed the opinion in a letter to Ms Abbiss on 26 May 2020 that '[a]s no mental health condition affecting work has been identified, from a medical perspective [the applicant] is "fit for work"'. However, Dr Lai also expressed the opinions that '[t]he workplace concerns are related to [the applicant's] personality' and that '[u]nless [the applicant] is motivated to engage with a clinical psychologist to manage interpersonal problems more successfully, future personality clashes will arise, particularly if there is a need to engage with constructive feedback and performance management'.[22] Dr Lai recommended that '[e]ngaging with a clinical psychologist may enable [the applicant] to better manage future interpersonal problems'.[23]
[22] Exhibit 3.
[23] Exhibit 3.
The applicant remained on sick leave and subject to the direction made by Ms Abbiss on 26 April 2020 under cl 41(4)(a)(iv)(aa) of the Teachers (Public Sector Primary and Secondary Education) Award 1993 (Teachers Award) that she was to remain away from Waroona DHS and refrain from communicating with staff and students. In a letter dated 24 July 2020, Mr Paul Wilding, Director Employee Relations at the Department, advised the applicant's solicitor that, on the basis of Dr Bassett's and Dr Lai's reports, as at that date, 'the Department is of the opinion that counselling from a suitably qualified [c]linical [p]sychologist is essential to supporting a successful return to work for [the applicant]'.[24] Mr Wilding said that, while the Department was under no obligation to do so, it had sourced and was willing to pay for a suitable clinical psychologist to conduct the counselling. It appears that the applicant was also willing at the time to attend psychological counselling. However, it is unclear whether the recommended psychological counselling ultimately took place.
[24] Exhibit 4 Attachment N.
On 25 August 2020, the applicant was called in to the Department's district office and handed a letter from the respondent dated 25 August 2020. This letter advised the applicant of the receipt of several complaints about her alleged conduct in relation to failing to maintain appropriate professional boundaries with students and ordered her to continue to remain away from Waroona DHS and the premises of any other government school or residential college under s 240 of the School Education Act 1999 (WA) (School Education Act). The letter from the respondent to the applicant dated 25 August 2020 states as follows:[25]
[25] Original emphasis.
Dear Ms Wauchope
Several complaints have [sic] received about your conduct and I suspect that you may have committed a breach of discipline as defined in section 80 of the Public Sector Management Act 1994. An investigation into your alleged conduct has commenced.
It is reported that:
You have acted contrary to the Department's Code of Conduct by failing to maintain appropriate professional boundaries with students, primarily in relation to your interaction with students outside of school hours.
Order to Leave School Premises
I am aware that you are currently required to remain away from Waroona District High School until you have completed counselling as requested by Employee Relations.However, given my concerns about your conduct, I suspect that your presence on school premises would constitute a risk to the safety or welfare of students. Pursuant to section 240 of the School Education Act 1999 (Order), you are ordered to continue to remain away from Waroona District High School until further notice. You are also ordered, under the same provisions, to remain away from the premises of any other government school or residential college.
It is an offence under section 240(3) of the Act, if you fail to comply with this Order.
Although this Order is in place, you are still to be available and contactable during your normal work hours.
Leave and Allowances
Any requests for leave and allowances will need to be approved by your line manager. You are not entitled to accrue "Time Off in Lieu"; however, you will continue to be paid as per your award/agreement.Any communication you wish to make with the Waroona District High School, or the staff, must be authorised by Ms Sara Young, A/Manager, Employee Relations, on 9264 5585,
Responding to the Order
You are under no obligation to provide a response about your reported conduct unless you wish to. Further particulars concerning your conduct will be forwarded to you at a later date and you will have an opportunity to respond.
If you wish to provide reasons as to why the Order should not remain in place, please provide that response in writing, within 10 business days of your receipt of this letter, to the following:
Email: [email protected]: or
Post: Private and Confidential
Director, Standards and Integrity
Department of Education
151 Royal Street
EAST PERTH WA 6004You may also request an interview with investigators to respond to this order. Please contact Ms Amanda Cann, Senior Investigator, Standards and Integrity Directorate on 9264 4334 or [email protected], if you wish this to occur. You are entitled to have a support person at any meeting or interview.
Your removal from school grounds should not be interpreted as pre-judgment about the outcome of the discipline process.
Confidentiality
The confidentiality of this process is to be respected at all times. Disciplinary measures may result if confidentiality is breached. Any intimidation or unauthorised approach towards any person, or any improper interference in the investigative process, may result in further disciplinary action.
Lawful directive - No contact with students
In addition to this Order, I am directing you to cease all contact with students, by whatever means. This includes in person, by email correspondence or any other sources of communication, including but not limited to, phone calls, text messaging and social media.
Any conduct contrary to this will be considered a breach of the lawful directive and may result in further disciplinary action.
Employee Support
I am mindful of the impact that the discipline process can have on employees and their families; however, the Department has a responsibility to ensure that all allegations of a breach of discipline are considered and acted upon appropriately.
The Department offers a professional and confidential counselling service to employees of the Department and their immediate family. If you feel that you may benefit from this service, I encourage you to contact PeopleSense on 1300 307 912 or at I have enclosed a brochure providing you with more information about the service.
If you have any questions in relation to this matter, please do not hesitate to contact Ms Cann on 9264 4334.
Yours sincerely
Lisa Rodgers
Director General2 5 AUG 2020
As can be seen, the letter from the respondent to the applicant dated 25 August 2020 acknowledged that 'you [the applicant] are currently required to remain away from Waroona [DHS] until you have completed counselling as requested by Employee Relations'. As indicated earlier, that requirement was made in accordance with the Teachers Award. However, the respondent said that 'given my concerns about your conduct, I suspect that your presence on school premises would constitute a risk to the safety or welfare of students' and consequently the respondent formally ordered the applicant to continue to remain away from Waroona DHS and the premises of any other government school or residential college under s 240 of the School Education Act. This section authorises the respondent to require an employee of the Department to leave the premises of a government school or residential college and to remain away from those premises and the premises of all government schools and residential colleges, if the respondent suspects that the employee may have committed a breach of discipline and that the presence of that person on the premises of a government school or residential college constitutes a risk to the safety or welfare of students, until, relevantly, a decision is made by the respondent as to whether to take improvement action or disciplinary action with respect to the employee in consequence of the suspected breach of discipline or the order is revoked.
Significantly, whereas the reason for the direction made by Ms Abbiss on 26 April 2020 under the Teachers Award that the applicant was to remain away from Waroona DHS and refrain from communicating with staff and students was to ensure that the applicant's health and safety is not at risk, the reason for the order made by the respondent on 25 August 2020 under s 240 of the School Education Act that the applicant was to continue to remain away from Waroona DHS and the premises of any other government school or residential college and for the respondent's direction also made on 25 August 2020 that the applicant was to cease all contact with students was to ensure that there is no risk to the safety and welfare of students. It is therefore clear on the evidence that from at least 25 August 2020 onwards, the focus and character of the Department's dealings with the applicant fundamentally changed from ensuring the applicant's health and safety to ensuring the safety and welfare of students. In effect, the serious allegations of misconduct made against the applicant and the ensuing investigative and disciplinary process entirely overtook the Department's earlier health related concerns about her.
As stated in the letter from the respondent to the applicant dated 25 August 2020, the applicant was 'under no obligation to provide a response about your reported conduct unless you wish to' and '[f]urther particulars concerning your conduct will be forwarded to you at a later date and you will have an opportunity to respond'. On 4 September 2020, the applicant's solicitor responded to the respondent's letter dated 25 August 2020 and requested that the order under s 240 of the School Education Act be revoked. However, the respondent did not revoke the order.
On 2 October 2020, the Executive Director, Professional Standards and Conduct at the Department wrote to the applicant's solicitor detailing allegations of misconduct made against the applicant and informing the applicant that an investigation had been commenced and that she had the opportunity to respond to the allegations. Nine allegations of misconduct were detailed in the letter, including sending messages on social media platforms to students for noneducational purposes, including about other teachers, being Facebook friends with students, and allowing a student to stay at her house and buying clothes for her. On 12 October 2020, the applicant's solicitor responded to the letter dated 2 October 2020 on the applicant's behalf generally denying the allegations.
On 2 November 2020, the Acting Director of the SID wrote to the applicant detailing four further allegations of misconduct made against her and informing her that an investigation had been commenced in relation to these further allegations and that she had the opportunity to respond to the further allegations. The further allegations include allowing a student staying overnight at her house to drink alcohol and smoking cannabis with her. On 16 November 2020, the applicant's solicitor responded to the letter dated 2 November 2020 on the applicant's behalf generally denying the allegations.
On 19 February 2021, the respondent wrote to the applicant informing her that the investigation into the 13 allegations of misconduct detailed in the letters dated 2 October 2020 and 2 November 2020 had been completed and that the respondent had considered the SID investigation report and the applicant's submissions in relation to the allegations. The respondent also advised the applicant of her findings in relation to the 13 allegations of misconduct. The respondent decided to 'discontinue' three of the allegations and to 'substantiate' the other 10 allegations, including those to which I have referred earlier. The respondent said that '[s]hould I maintain the findings in respect of the allegations above, I am proposing to dismiss you as a penalty for the accumulation of your conduct', because 'the accumulation of your conduct demonstrates a general disregard for the standard of behaviour expected at the Department'.[26] The respondent also said that '[b]efore I make a final decision and take the action outlined above, you have an opportunity to respond to the findings and proposed action, in a written submission or in person with the investigator'.[27] The applicant was given 10 days to respond.
[26] Affidavit of Nicholas Austin Wells dated 23 February 2021 (Exhibit 1) page 35.
[27] Exhibit 1 page 36.
The letter from the respondent to the applicant dated 19 February 2021 enclosed the SID investigation report in relation to the 13 allegations of misconduct. The investigation report, which comprises 43 pages together with 58 attachments over 364 pages, appears to be detailed and thorough. The SID investigator interviewed a large number of witnesses, including students at Waroona DHS. A student (student 1), who did not previously know that she would be interviewed and was interviewed in the presence of her mother, told the investigator that the applicant bought her boots and clothes, because she had run away from home and did not have clothes, and that she stayed at the applicant's house for just over one week during the school holidays between Terms 2 and 3 in 2020. Student 1 said that during that time she and the applicant smoked marijuana together on one occasion. She also said that on two occasions while she stayed with the applicant, she and the applicant drank wine at dinner. Student 1 said she posted a video of her dancing next to the applicant's pool on Instagram. Student 1 also said that she was a friend of the applicant on Facebook. Another student (student 2) said that the applicant had given her a mobile phone to be able to contact student 1. Student 2 said that student 1 told her that she stayed at the applicant's house over the holidays and that the applicant and student 1 had smoked marijuana together when she stayed at her house.
A third student (student 3) told the investigator that she had conversations with the applicant via the Messenger app outside of school and that they were friends on Facebook. Student 3 said that she knows three other people who have contact with the applicant via Messenger, including student 1 and student 1's exboyfriend. A fourth student (student 4) told the investigator during a telephone interview that she also became a friend of the applicant on Facebook.
A number of the attachments to the investigation report support allegations about the applicant having contact with students for noneducational purposes on social media or being Facebook friends with students.
The applicant denies the allegations of misconduct. She describes the allegations against her as 'trumped up', 'fabricated', 'unlawful and vexatious' and 'false and horrific'. The applicant suggests that most of the allegations come from Mr Mattin, the Deputy Principal of Waroona DHS, by whom she said she was bullied, and who she said sought to incite students and parents to make allegations about her.
The applicant gave evidence that over a working life from 1996 to 2019 she had an '[e]xceptional career with shining references' and was subject to no adverse accusations. The applicant also referred to her own publication of a book in which she advised teachers to not be friends with students on Facebook and submits that it is inconceivable that she would advise other teachers not to be friends with students on Facebook and then engage in the same misconduct.
The applicant tendered five photographs of undated text messages on her son's mobile phone apparently exchanged between student 1 and her son.[28] The first photograph shows what appears to be part of one exchange and the other four photographs show what appears to be part of another exchange. The first photograph of the second exchange (which does not appear to be the beginning of that exchange) shows the following texts:[29]
[28] The five photographs (which the applicant referred to as 'screenshots') and a short video were filed by the applicant without leave on 10 May 2021. On 12 May 2021, I granted the applicant leave to reopen her case in order to tender the video (Exhibit 13) and the photographs (Exhibit 14).
[29] Exhibit 14 (as written).
[student 1] they thought coz I ran away again an me Mattin called the detectives n said I was at urs
[applicant's son] When was this
[student 1] Couples wks ago
I left to Armadale n Bunbury
[applicant's son] But u never was at my place
[student 1] My heart got destroyed by my ex
[applicant's son] How did you get there ? By bus
[student 1] N nah I wasn't
Train
[student 1's sister] helped ne
The last photograph of the second exchange (which does not appear to be the end of that exchange) shows the following texts:
[applicant's son] Hey why did mattin tell the cops u came to my place …
[student 1] Coz mum told the school she didn't know where I was
[applicant's son] But why wld he say u were at my place when u coulda been anywhere
Like Perth or Bunbury why mums place
Why didn't [student 1's sister] call ur mum and tell her
[student 1] Bc I was in Armadale and my bf didn't want … at his place
The first photograph showing part of the first exchange includes the following texts:[30]
[applicant's son] Anyway I'll probly get mum in more trunks talkin to u so I should get going
Trouble I meant
[student 1]Alright well I better let u go hope things turn out coz ok ur mums innocent
[30] Exhibit 14 (as written).
In an email to the Tribunal dated 10 May 2021, the applicant submits that '[t]hese are highly relevant texts' which '[have] been airbrushed out of the investigation'. Insofar as student 1 appears to say that she was not at the applicant's house and that the applicant is 'innocent', the texts are relevant to the investigation and determination of the allegations of misconduct involving the applicant and student 1. However, it is unclear whether the applicant provided the texts to the investigator. Furthermore, the texts would need to be considered together with all of the other information obtained in the investigation, including the investigator's interview with student 1, which is the primary evidence in relation to those allegations.
The applicant also contends that one of the people interviewed, who is student 1's sister, is a 'known drug dealer' and consequently not a credible witness. However, student 1's sister only told the investigator what she said student 1 had told her. As indicated earlier, the primary evidence in relation to the allegations concerning the applicant and student 1 is from the investigator's interview with student 1.
It is not within the Tribunal's function in this proceeding to rule on whether the allegations of misconduct made against the applicant, which are the subject of the current disciplinary process by the Department and the proposed action by the respondent against her, are or are not established. That is presently a matter for the respondent and, if the applicant is ultimately dismissed for misconduct by the respondent, the applicant has available appeal rights and remedies, including reinstatement, under industrial relations and employment laws, in particular under s 78(2)(b)(iv) and s 82A(3)(b) of the Public Sector Management Act 1994 (WA) (PSM Act), s 239(1) of the School Education Act and s 23A of the Industrial Relations Act 1979 (WA) (IR Act). However, as the respondent submits, it is clear from the SID investigation report that the allegations of misconduct made against the applicant 'have a real evidential backing'.
Complaint of impairment discrimination
On 22 September 2020, the applicant made a complaint to the Commissioner under s 83 of the EO Act alleging unlawful discrimination in her employment with the Department. The applicant summarised her complaint in an undated letter to the respondent as follows:[31]
I assert that the Department unlawfully discriminated against me by suggesting that I could not return to work based on my ADHD. I have had ADHD for over 20 years and managed it successfully and diligently as Dr Williams stated. I have never had erratic behaviour or complaints of such a nature that have come to DoE [Department] in the 8 short weeks at Waroona DHS.
[31] Exhibit 2 [26].
The applicant's complaint to the Commissioner that 'the Department unlawfully discriminated against me by suggesting that I could not return to work because of my ADHD' involves a complaint of unlawful discrimination on the ground of impairment in employment under s 66A(1) and s 66B(2) of the EO Act. Section 66A(1) of the EO Act states as follows:[32]
For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of —
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person’s impairment,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
[32] Original emphasis.
Section 66B(2) of the EO Act states as follows:
It is unlawful for an employer to discriminate against an employee on the ground of the employee’s impairment —
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
As required by s 84 of the EO Act, the Commissioner is investigating the applicant's complaint of unlawful impairment discrimination. Consequently, the applicant is 'a party to an investigation' for the purpose of s 126 of the EO Act and therefore has standing to make an application for interim orders under that provision.
Applicable principles
The Tribunal comprising Deputy President Judge Eckert and Senior Member Ms Jill Toohey set out the applicable principles in relation to an application for interim orders under s 126 of the EO Act in Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317 at [17] and [19] as follows:
17The principles to be applied in determining an application for an interim order under s 85 and s 126 of the Act should follow the principles of injunctive applications under the general law (Davies v University of New England (1994) EOC 92‑103). In Michael v State Housing Commission (1996) EOC 92‑829 and Penny v State Housing Commission (Unreported, Equal Opportunity Tribunal of Western Australia; 11 November 1996) those principles were stated as follows:
1.Is there a serious question or issue to be tried?
2.What is the balance of convenience, that is, will the harm to Mr Barrett [who was the complainant] if the injunction is not granted outweigh the benefit to Alcoa if the injunction is not granted?
3.Are the available remedies adequate to compensate Mr Barrett?
…
19We have considered these three principles in the context that the power in s 126 is one that we should not exercise lightly. We are of the view that we must exercise caution in exercising our discretion in the Commissioner's favour in these circumstances, in that to grant an interim order would be to directly interfere with the employment relationship between Mr Barrett and Alcoa and it would deprive Alcoa of its lawful rights under that employment arrangement. We note that in Penny v State Housing Commission the President of the then Equal Opportunity Tribunal, when considering whether she should impose a new tenancy agreement on a landlord stated at page 9 that:
"An order that includes a term that the parties agree to abide by the terms of the tenancy agreement as it existed prior to 8 October, would seem to be inappropriate unless it was conditional on all the breaches being remedied forthwith. It would hardly be fair to inflict on a landlord a new tenancy agreement when there are continuing breaches of the previous agreement and no apparent prospect of those being remedied."
Although the Tribunal in Commissioner for Equal Opportunity and Alcoa of Australia Ltd referred to the consideration '[a]re the available remedies adequate to compensate [the complainant]?' as a separate matter from '[w]hat is the balance of convenience[?]', in substance, the consideration of whether, if an injunction is not granted, there are available remedies adequate to compensate the complainant forms part of the overall consideration of whether the balance of convenience favours the grant of an injunction.
Furthermore, and significantly in terms of most of the relief sought by the applicant in this proceeding, s 126 of the EO Act only authorises the Tribunal to make an interim order 'to preserve … the status quo between the parties to the complaint … or … the rights of the parties to the complaint'. The verb 'to preserve' relevantly means 'to keep alive or in existence; make lasting' and 'to keep safe from harm or injury; save'.[33] Thus, s 126 of the EO Act only authorises the Tribunal to keep in existence or save the status quo between the parties or the rights of the parties. It does not authorise the Tribunal to create a new relationship or new rights that the parties do not currently have.
Parties' submissions
[33] Macquarie Dictionary Online.
In her written submissions filed on 23 February 2021, the applicant cites a plethora of legal principles, authorities and statutes that have no relevance to the Tribunal's jurisdiction and power to make interim orders under s 126 of the EO Act in this case. The applicant submits that she has been denied procedural fairness by the Department and that the Department breached its own Code of Conduct in relation to the investigation of the allegations of misconduct against her. She submits that she has been discriminated against and victimised under 'Article 3 of the International Human Rights Treaty'. The applicant also submits that the Department has breached laws in relation to restraint of trade and has committed negligence in its consideration of the allegations. However, none of these submissions properly bear on the application in this proceeding.
Moreover, the applicant's submissions do not seek to, or succeed in, demonstrating that there is a serious question to be tried in relation to her complaint to the Commissioner that she has been unlawfully discriminated against by the Department on the ground of impairment in employment in terms of her ADHD, and indeed do not even address her complaint.
In her oral submissions, the applicant maintained that the principles of procedural fairness have not been afforded by the Department and argued that workplace investigations are launched by the Department, and in her case were launched, with a preconceived outcome. She submits that the balance of convenience favours the granting of an injunction to restrain the continuation and completion of the disciplinary process against her for three reasons, namely that there is a serious question to be tried, she sought to remedy the matter, and she cannot be adequately compensated by a sum of money. The applicant also submits that, as a single mother who is now behind in her mortgage payments, dismissal from her employment would be detrimental not only to her, but also to her son.
The respondent submits that other than '[a]n injunction to restrain any disciplinary measure by the [respondent]'[34] and '[a]n injunction on any further harassment, bullying or discrimination from the [Department]',[35] none of the relief sought by the applicant in this proceeding falls within the Tribunal's jurisdiction and power under s 126 of the EO Act.
[34] Applicant's written submissions [13.3].
[35] Applicant's written submissions [13.7]
The respondent also submits that there is no serious question to be tried in relation to the applicant's complaint that she has been unlawfully discriminated against on the basis of impairment in terms of her ADHD and that, in any case, the balance of convenience favours the refusal of an injunction to restrain the disciplinary process, given that the applicant has other available remedies and the public interest in ensuring that there is no risk to the safety or welfare of school students.
Consideration of application for interim orders
As the respondent submits, other than an injunction to restrain the continuation and completion of the current disciplinary process and an injunction to restrain 'any further harassment, bullying or discrimination', none of the other disparate relief sought by the applicant in this proceeding falls within the Tribunal's jurisdiction and power under s 126 of the EO Act, because they are not interim orders 'to preserve', that is to keep in existence or save, the status quo between the parties or the rights of the parties to the complaint.
Furthermore, for the reasons that follow, I am not satisfied that there is a serious question or issue to be tried in relation to the applicant's complaint that she has been unlawfully discriminated against on the basis of impairment in employment in terms of her ADHD.
There is no evidence that the applicant's alleged behaviour and conduct referred to in the referral form completed by Ms Abbiss on 26 April 2020 that led to the direction by Ms Abbiss on that day that the applicant was to remain away from Waroona DHS and refrain from communicating with staff and students and the requirement that the applicant was to attend medical assessments and psychological counselling was in any way related to the applicant's ADHD. The suggestion by Dr Bassett in his report to Dr Lai dated 21 May 2020 and the recommendation by Dr Lai in this letter to Ms Abbiss dated 26 May 2020 that the applicant should attend psychological counselling was not in consequence of the applicant's ADHD, but rather, as Dr Bassett said, because it 'could be very helpful to [the applicant] in approaching her work to manage interpersonal problems more successfully',[36] and, as Dr Lai said, 'to better manage future interpersonal problems'.[37] As indicated earlier, Dr Lai formed the opinions that '[t]he workplace concerns are related to [the applicant's] personality' and that '[u]nless [the applicant] is motivated to engage with a clinical psychologist to manage interpersonal problems more successfully, future personality clashes will arise, particularly if there is a need to engage with constructive feedback and performance management'.[38]
[36] Exhibit 4 Attachment E.
[37] Exhibit 3.
[38] Exhibit 3.
Furthermore, although, after Dr Lai became aware from Dr Bassett's report that the applicant has ADHD and sought to clarify with her in a Telehealth review on 3 June 2020 why she had not referred to it when he saw her on 13 May 2020, he said in his letter to Ms Abbiss on 3 June 2020 that 'I explained [to the applicant] that she would benefit from a clinical psychologist who took an executive coaching approach to improve her interpersonal interactions in the workplace'.[39] In the same letter, Dr Lai also said that '[i]n the context of work concerns and inconsistency in the disclosed medical history I recommend that a satisfactory letter from [the applicant's] psychiatrist is received before she returns to any work' and he observed that '[p]oorly controlled ADHD or inappropriate use of medication (stimulant abuse) can certainly cause problems at work'.[40] However, Dr Lai did not say or indicate that the psychological counselling he recommended for the applicant had any connection with her ADHD. Rather, the reason Dr Lai recommended that the applicant attend psychological counselling was for her to be able to better manage interpersonal interactions in the workplace in circumstances where he said that '[t]he workplace concerns are related to [the applicant's] personality'.[41]
[39] Exhibit 4 Attachment H.
[40] Exhibit 4 Attachment H.
[41] Exhibit 3.
The applicant provided a letter from Dr Jonathan Williams, her psychiatrist, dated 7 February 2020, which confirms that 'I have been seeing [the applicant] [s]ince April 2018 in my capacity as [c]onsultant [p]sychiatrist for management of her [ADHD]' and that the applicant 'is managed on medication' and 'her ADHD is stable on this'.[42] As indicated earlier, Dr Bassett also said in his report to Dr Lai on 21 May 2020 that the applicant 'is receiving appropriate management from a [p]sychiatrist for this illness [ADHD]'.[43]
[42] Exhibit 4 Attachment J.
[43] Exhibit 4 Attachment E.
The applicant gave evidence that during a telephone conversation on 5 June 2020 that she had with Mr John O'Brien, who is Manager Labour Relations at the Department, Mr O'Brien said to her that '[y]ou have a mental illness and this is probably the reason you can't work' and that 'you have a mental illness that deems you unfit to work and you didn't tell Dr Lai'.[44] The applicant also said in her evidence that her friend, Ms Donna Oldfield, was present while the applicant spoke to Mr O'Brien on the telephone and provided a witness statement as to the telephone conversation. In her statement, Ms Oldfield says that she heard Mr O'Brien say to the applicant 'Verona, you have ADHD, this is a mental illness and you didn't tell Dr Lai, or anyone at work about this', but does not say that Mr O'Brien said that ADHD 'is probably the reason you can't work' or that 'you have a mental illness that deems you unfit to work'.[45] However, accepting for the purposes of the application for interim orders that Mr O'Brien said the words attributed to him by the applicant, that was not the opinion of Dr Lai or the view of the Department. As indicated earlier, Dr Lai said in his letter dated 3 June 2020 to Ms Abbiss that he 'explained [to the applicant] that she would benefit from a clinical psychologist who took an executive coaching approach to improve her interpersonal interactions in the workplace'.[46] Although, by the time he wrote this letter, Dr Lai was aware of the applicant's ADHD, the psychological counselling he recommended was unrelated to her ADHD. As also indicated earlier, Mr Wilding, who is Director Employee Relations at the Department, said in a letter to the applicant's solicitor on 24 July 2020 that 'the Department is of the opinion that counselling from a suitably qualified [c]linical [p]sychologist is essential to supporting a successful return to work for [the applicant]'.[47] The Department's position and conduct in relation to its health concerns about the applicant was unrelated to the applicant's ADHD.
[44] Exhibit 8 [35].
[45] Exhibit 4 Attachment I.
[46] Exhibit 4 Attachment H.
[47] Exhibit 4 Attachment N.
Furthermore, as I found earlier, it is clear on the evidence that from at least 25 August 2020 onwards, the focus and character of the Department's dealings with the applicant fundamentally changed from ensuring her health and safety to ensuring the safety and welfare of students. As I said, in effect, the serious allegations of misconduct made against the applicant and the ensuing investigative and disciplinary process entirely overtook the Department's earlier health related concerns about her. As the respondent submits, there is no connection on the evidence between the allegations of misconduct (and the investigative and disciplinary process that has resulted) and the applicant's complaint of discrimination on the ground of impairment in employment.
The balance of convenience – or, as it is sometimes expressed, the balance of the risk of doing an injustice – also does not favour the granting of an injunction in the circumstances of this case. For the reasons that follow, on balance, in the circumstances of this case, the harm to the applicant if an injunction is not granted is outweighed by the benefit to the respondent (and the public interest) if an injunction is not granted.
I accept that if an injunction to restrain the continuation and completion of the respondent's disciplinary process against the applicant is not granted under s 126 of the EO Act, and if the respondent dismisses the applicant from her employment at the conclusion of that process, the applicant will suffer financial harm, because she will lose her income, and that her son may also be affected if she is unable to keep up her mortgage payments. However, the applicant is currently employed on full pay and, if she is ultimately dismissed for misconduct, she has, as indicated earlier, available appeal rights and remedies under industrial relations and employment laws, in particular under s 78(2)(b)(iv) and s 82A(3)(b) of the PSM Act, s 239(1) of the School Education Act and s 23A of the IR Act. Under s 239(1) of the School Education Act and s 78(2)(b)(iv) of the PSM Act, if the respondent dismisses the applicant from her employment, she may refer that decision to the Western Australian Industrial Relations Commission (WAIRC). If the WAIRC determines that the dismissal was 'harsh, oppressive or unfair', then it may order the respondent to reinstate the applicant to her former position (under s 23A(3) of the IR Act), or if the WAIRC considers that reinstatement would be impracticable, order the respondent to reemploy the applicant in another position that the respondent has available (under s 23A(4) of the IR Act), and in either case the WAIRC may also make any order it considers necessary to maintain the continuity of the applicant's employment and an order that the respondent pay to the applicant any remuneration lost by her because of the dismissal (under s 23A(5) of the IR Act). Additionally, if the applicant's complaint of discrimination on the ground of impairment in employment is referred by the Commissioner to the Tribunal under s 90 or s 93 of the EO Act, and if the Tribunal were to find the complaint substantiated, the Tribunal has power under s 127(b)(iii) of the EO Act to 'order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant', including, if the applicant has been dismissed from her employment, reinstating her to that position. Consequently, if an injunction to restrain the continuation and completion of the disciplinary process against the applicant is not granted, and if the respondent ultimately dismisses the applicant from her employment, there are available remedies adequate to compensate her.
Furthermore, as the respondent submits, 'if the allegations [of misconduct against the applicant] are substantiated, the applicant presents as a serious risk to the safety and welfare of students'.[48] It is in the public interest to avoid or mitigate serious risk to the safety and welfare of school students and therefore to continue and complete the current disciplinary process.
[48] Respondent's written submissions in opposition to the application for interim orders dated 24 February 2021 [23(a)].
Further, as the Tribunal said in Commissioner for Equal Opportunity and Alcoa of Australia Ltd at [19], the Tribunal should be cautious in the exercise of its discretion to grant an interim injunction if to do so 'would be to directly interfere with the employment relationship' between the parties and in particular if 'it would deprive [the employer] of its lawful rights under that employment arrangement'. An injunction to restrain the disciplinary process from being continued and completed in this case would do precisely that.
Finally, as the respondent submits, if an injunction were granted to restrain the disciplinary process from being continued and completed, it is likely that the order under s 240 of the School Education Act would remain in place. Consequently, even if, absent an injunction, the allegations would be substantiated and the applicant would be dismissed from her employment, the Department would have to continue to expend public funds on paying the applicant's salary.
I note that in her oral submissions, the applicant argued only for an injunction to restrain the disciplinary process from being continued and completed and not for an injunction to restrain 'further harassment, bullying or discrimination'.[49] In any case, there is no credible or cogent evidence of any threat of such conduct and, if such conduct were to take place in the future, the applicant has remedies available to her, including lodgement of a further complaint with the Commissioner under s 83 of the EO Act.
[49] Applicant's written submissions [13.7].
As I am not satisfied that there is a serious question or issue of unlawful impairment discrimination in employment to be tried and the balance of convenience does not favour the granting of an injunction, the injunctions sought by the applicant should be refused.
Conclusion
For the reasons set out above, the application for interim orders under s 126 of the EO Act should be dismissed.
I make the following order:
The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D R PARRY, DEPUTY PRESIDENT
14 MAY 2021
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