Yu v ACT Education Directorate (No 2)
[2021] FedCFamC2G 267
•18 November 2021
FEDERAL CIRCUIT AND FAMIY COURT OF AUSTRALIA
(DIVISION 2)Yu v ACT Education Directorate (No 2) [2021] FedCFamC2G 267
File number(s): CAG 86 of 2016 Judgment of: JUDGE W J NEVILLE Date of judgment: 18 November 2021 Catchwords: INDUSTRIAL LAW – dismissal of long-term teacher – teacher seeking relief including for alleged adverse action – alleged contraventions of provisions of Fair Work Act – alleged lack of assistance to transfer within Education Directorate – whether the Respondent took adverse action against the Applicant for exercising a workplace right – whether the Applicant was coerced by the Respondent to not exercise a workplace right – procedural anomalies largely due to Applicant’s ill health – where there was no cross examination of the Respondent’s witnesses and cross examination only of the Applicant but such course made it almost impossible to make any relevant findings regarding the Applicant’s diverse claims – consideration of appointment of litigation guardian – adverse action found not to have been taken in contravention of the Fair Work Act – no contraventions established – Application dismissed – no orders as to costs. Legislation: Fair Work Act 2009 (Cth), ss 44, 50, 340, 343, 361, 571 Cases cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551
Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Isbester v Knox City Council (2015) 255 CLR 135
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Neill v Nott (1994) 121 ALR 148
Tattsbet Ltd v Morrow (2015) 233 FCR 46
Division: Division 2 General Federal Law Number of paragraphs: 217 Date of last submission/s: 19 October 2021 Place: Canberra Solicitor for the Applicant: Self-represented Solicitor for the Respondent: ACT Government Solicitor Counsel for the Respondent: Ms P M Bindon ORDERS
CAG 86 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: JING YU
Applicant
AND: ACT EDUCATION DIRECTORATE
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
18 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Applicant’s Amended Application filed 3 April 2017 be dismissed.
2.There be no Orders as to costs.
3.All extant Applications are dismissed and the matter is now finalised and will be removed from the docket.
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
There is a long and somewhat troubled history to this matter. The Applicant was a Mandarin teacher employed by the Respondent until 2016 when her services were terminated. She seeks relief for that termination.
In every respect, and above all else, this is a very unfortunate if not sad matter. This is so because an experienced teacher, with perhaps only one hiccup in her employment in 2008 – 2010, which was ultimately determined in her favour, in more recent years found herself facing a decline in students (it seems) resulting in Mandarin no longer being taught at her school, or being taught to the same degree. When asked or directed to teach other subjects, she resisted. Likewise, she resisted compliance with relatively standard procedures that were required to be followed. Ultimately, her persistent non-compliance with some directions led to her being dismissed from her employment. She now finds herself, on her own account, depressed, with anxiety, and with no confidence in almost anyone or anything, including the Court and its processes. To state the obvious, this is genuinely a very sad and sorry state of affairs.
The Applicant has been self-represented throughout the litigation. Unfortunately, in my view, she has had (and continues to have) significantly unrealistic expectations regarding the likely, or even possible, outcome(s) from it. This was partly adverted to by Counsel for the Respondent early in the hearing in March 2018, where it was noted that “the sticking point until now has been the sum that was sought.”[1] Moreover, during the hearing the Court canvassed with the Applicant, at some length, the importance of obtaining some legal advice, prior to having any further possible settlement discussions with the Respondent, precisely because of matters well-known to lawyers but less well-known to litigants in person, such as the diverse range of possible outcomes (some favourable, some less so), and the range of any possible financial outcomes, in view of the wide discretion of the Court.[2]
[1] See Transcript (22nd March 2018) p.56. Hereafter “T” followed by page number. I did not take Counsel for the Respondent’s comment or observation as any concession regarding any asserted liability of the Respondent.
[2] See the extensive discussion with the parties at T 48 – 52. This discussion included the Court providing to the Applicant a list of the names of five workplace lawyers from which she could choose one to speak with for the purposes of possible settlement discussions with the Respondent.
In addition, at times the Applicant has unfortunately suffered from significant emotional and mental health issues during the proceedings. Some of these matters were briefly noted by Robertson J in an appeal before him regarding an unsuccessful recusal Application brought by the Applicant.[3] The Applicant briefly spent some time in hospital following that unsuccessful appeal.
[3] Yu v ACT Education Directorate [2019] FCA 272.
The matter was part-heard following a hearing in March 2018 when some of the matters to which I have referred intervened more markedly.
In order to bring some finality to the substantive Application, notwithstanding the obvious difficulties in doing so, the parties agreed for the matter to be dealt with “on the papers” and to proceed on the basis of (a) reference to the transcript of the evidence given at the hearing in March 2018, (b) the Affidavits and other material filed to date, and (c) written submissions filed by the parties. This is reflected in the Orders of 11th November 2020 which also provided a timetable for the filing of written submissions. This timetable was then amended, by consent, on multiple occasions (detailed below).
The Court continues to have significant concerns in relation to the procedural course agreed to by the parties, including the procedural fairness to the Applicant in choosing now not to cross examine any of the Respondent’s seven witnesses. Earlier in the proceeding she had indicated that all such witnesses were so required. There are, of course, procedural fairness issues for the Respondent in these circumstances also. The Court’s concerns, which are set out in more detail later in these reasons, have been heightened in the course of preparing these reasons. This is because, while the Applicant raised in her Application various matters that arose, in her view, under the Fair Work Act 2009 (Cth) (“the FW Act”), in the course of the wide range of evidence she presented in her multiple Affidavits, in my view, she disclosed potentially a range of other possible, but formally unpleaded, claims. As discussed later in these reasons, these were formally “unpleaded” or at least and clearly “unclaimed” by the Applicant (accepting that pleadings, per se, were not used in the proceeding) and unexplored.
In order to remedy, if that were possible, the procedural and other difficulties that arose as a result of the detailed consideration of all the material put before the Court by the Applicant, even if no formal claim had been made, accepting also that the Applicant is self-represented and suffering various health issues, on its own motion, more recently the Court effectively re-opened the proceedings and raised with the parties the issues outlined below.
The concerns of the Court included the very significant issue of the primary decision-maker (Mr Whitton), who terminated Ms Yu’s employment in 2016, had been actively involved in action against her in 2008, in which he had cautioned that her employment was at risk. As it transpired, ultimately the Administrative Appeals Tribunal (“the AAT”) intervened (in 2010) and Ms Yu was relevantly compensated for the conduct of the school (and others) involved. Further details and references to the AAT’s decision are set out later in these reasons.
Also directly involved in the 2008 – 2010 “litigation” involving Ms Yu was Ms Harman. She attended a number of meetings with Mr Whitton and Ms Yu in 2008. Ms Harman was appointed by Mr Whitton as the principal investigator into Ms Yu’s (mis)conduct in 2016.
Other than the Applicant presenting records of the meetings and correspondence involving herself, Mr Whitton and Ms Harman in 2008, the possible issue of apprehended bias against Mr Whitton and Ms Harman was never formally raised or addressed by either party. In his Affidavit filed in the current matter, Mr Whitton dismissed his involvement in 2008 as irrelevant because, in his view, he could not recall anything about the 2008 proceedings, even when Ms Harman reminded him about attending some meetings with the Applicant. As the authorities make clear, lack of recollection is not relevant, or the relevant standard; it is the apprehension or appearance of possible bias that is critical and attention to all of the other principles articulated by the High Court in particular, noted later in these reasons.
A further procedural issue arose in the long-running litigation this way.
Given the history and circumstances of the proceedings to date, in 2020 the Court raised with the parties whether or not the Applicant required a litigation guardian. There was a brief hearing in relation to this possible procedural course. However, after the Applicant provided medical evidence confirming her capacities, ultimately the Court declined to make such an appointment. In her last Affidavit, filed 7th January 2021, the Applicant confirmed over a number of paragraphs (under the heading, noted below, of “Treatment in the Court proceedings”) how affronted she was by the Court considering such a course. She was equally offended, recorded in the same place, by the Court questioning if she knew or properly comprehended what was meant by dealing with the matter “on the papers.” She confirmed that she understood what was comprehended by this term. It is no criticism of her to suggest that a self-represented litigant is unlikely to appreciate as comprehensively as a legal practitioner the full implications of proceeding in this way.
Be that as it may, in addition to these concerns, the Respondent’s solicitor (Mr Karcher) filed an Affidavit on 5th February 2021, which outlined concerns regarding (a) the fluid and sometimes fluctuating way in which the Applicant had “pleaded” or presented her various claims (by reference to specific Affidavits and other documents, replete with all relevant other references), and (b) the Applicant filing documents without leave of the Court (relevant particulars also provided), and certainly filing outside the consent Orders made in this regard. Three matters should be recorded immediately from this Affidavit.
First, pars. 3 and 4 outline generally the specific concerns, which are detailed in the following paragraphs of the Affidavit, thus:[4]
[4] I note that the paragraph numbering of Mr Karcher’s Affidavit is somewhat askew; it goes from par.3 to par.2 and following.
3. In this proceeding, the Applicant brings claims under ss 340(1), 343(1), 50 and 44. Raising, in broad terms, the following issues for determination:
a. Adverse action: Whether the Respondent contravened s 340(1) by taking adverse action against the Applicant because she exercised a workplace right;
b. Coercion: Whether the Respondent contravened s 343(1) by taking action against the Applicant with the intent to coerce the Applicant to exercise or not exercise a workplace right;
c. Breach of enterprise agreement: Whether the Respondent contravened s 50 by breaching the ACT Public Sector Education and Training Directorate (Teaching Staff) Enterprise Agreement 2014-2018 (Enterprise Agreement);
d. Breach of NES: Whether the Respondent contravened the National Employment Standards (NES) in s 44; and
e. Relief: What, if any compensation or pecuniary penalties should the Court order the Respondent to pay in the event that the Court finds any one or more of the contraventions outlined above to be made out.
2. The Respondent remains concerned as to the contours of the case it is expected to meet due to the fact that the Applicant has stated the grounds of her claim differently as between:
a. the amended grounds for claim attached to the Applicant’s Amended Form 2 filed on 30 April 2017 (Amended Claim), as supplemented in respect of relief sought by the document ‘Compensation and Penalties’ filed on 20 April 2018 (Relief Document);
b. the Applicant’s Outline of Submissions filed on 13 March 2018 (Applicant’s First Submissions); and
c. the Applicant’s Outline of Submissions filed on 6 January 2021 (Applicant’s Second Submissions).
Secondly, there are parts of the Applicant’s claims that refer to an earlier claim she made against Comcare in 2008. That matter was resolved at that time. At the hearing on 22nd March 2018, after discussion with the parties, the Court formally ruled that any matter raised and settled in the Comcare proceedings involving the Applicant in 2008 was not and would not form part of any current matter to be determined by the Court in the current proceeding.[5] In the light of what has already been detailed, and what is set out below, it was necessary that that ruling be re-visited, not in terms of the claims then made, but in terms of the decision-making process (including who was directly involved on behalf of the Respondent) in 2008 and any consequences that might relevantly flow from it in relation to the decision-making process (including who was directly involved on behalf of the Respondent) in 2016.
[5] See T 6.
Thirdly, Mr Whitton, at the relevant time, was the Senior Manager in the Employee Relations section of the People and Performance Branch of the ACT Education Directorate. He was responsible for arranging the investigation on behalf of the Education Directorate into the conduct of the Applicant. Details of this investigation are set out later in these reasons. He filed an Affidavit in these proceedings on 7th September 2017. As already noted, at pars.17 – 19, he confirmed that nothing to do with the 2008 Comcare proceedings involving the Applicant was relevant to his investigation and actions in the current matter. For reasons already given, and those noted below, this was an inapposite conclusion by him.
In addition to these matters, at the outset of the hearing on 22nd March 2018, the Court raised concerns about the expansion of the Applicant’s claims that appeared in the outline of submissions that was filed shortly before the commencement of the hearing. The expansion of claims included an allegation of coercion of the Applicant in relation to the purported exercise of various workplace rights, as well as a range of claims alleging breaches of the Enterprise Agreement (“EA”).[6]
[6] See, for example, T 4.
In any event, as relatively clear as the agreed Orders for filing of material were, as noted in Mr Karcher’s Affidavit, there has continued to be issues regarding, for example, the Applicant filing further Affidavit and other material, which was not accommodated or provided for in the agreed directions, and which obviously poses or compounds the problems for the Court in terms of there being no opportunity to test any evidence in such material in cross examination. Unless otherwise indicated, I cannot, and will not, have any regard to material filed in contravention of the Orders made by consent dated 11th November 2020 and subsequently amended, also by consent. More particularly, unless otherwise specified, the Court’s primary points of reference regarding the Applicant’s claims will be (a) the Amended Application filed 3rd April 2017, and (b) her Summary Affidavit, filed 7th January 2021. I will also have regard to the Applicant’s primary submissions, filed 7th January 2021, and those filed in Reply, on 6th April 2021. However, in accordance with usual practice in contravention proceedings under the FW Act, the submissions will only be considered, in the first instance, regarding matters of liability. Any matters of penalty and/or compensation will be considered only after the Court’s determination regarding liability. They will therefore not be the subject of comment or determination at the current time. Indeed, for the reasons that follow, any discussion of penalty and related matters is moot.
For the reasons that follow, the Amended Application, filed 3rd April 2017, must be dismissed. Neither the processes undertaken by the Respondent, nor any of the reasons provided in support of its actions, constitute circumstances that would entitle the Applicant to any of the relief as sought.
In relation to the unpleaded (or unclaimed) issues, on the evidence, there are significant matters that arise in relation to the apprehended bias issue highlighted by the Court with the parties and upon which they commented in writing, post the hearing. However, for the important and very significant reasons of the Respondent being denied procedural fairness due to the lack of cross examination, any and all of these claims cannot be sustained.
In my view, but only by way of observation rather than any formal finding, for the reasons set out later in these reasons, there was potentially a case of apprehended bias made out on the documentary evidence provided by the Applicant in relation to the decision-maker, Mr Whitton, as a result of his direct involvement with, and investigation of, the Applicant in 2008 regarding her employment, and his similar involvement in 2016. Likewise, in my view, the direct involvement of Ms Harman in 2008 to investigate the Applicant’s employment, and her appointment (by Mr Whitton) and role as lead investigator into the Applicant’s employment in 2016, which resulted in adverse findings against her, which were relied upon by Mr Whitton, potentially also made out a case of apprehended bias against Ms Harman. There could be no suggestion of any actual bias. One would hope that processes are put in place to ensure that any teacher who happens to be the subject of any investigation more than once does not have to face the same inquisitor and investigator more than once.
As a result of such observations, which in my view were at least potentially available on the documentary evidence alone, subject to the usual course of testing all evidence and submissions, the decision to terminate Ms Yu’s employment may have been set aside. However, because of the procedural difficulties in the matter already outlined, including the inability to cross examine Mr Whitton (who is now retired) and Ms Harman (who is also retired), the only course that may have been available could have been to declare the decision of Mr Whitton to terminate the employment of Ms Yu to be voidable, meaning that the decision was capable of being set aside but it was not appropriate to do so in all of the circumstances absent proper process for such a determination.
As a suggestion only, and without seeking to pre-empt anything that the Applicant might ultimately do, but above all else to assist the parties to finalise this long-running litigation, especially having regard to the Applicant’s ill-health, in no binding way, the Court simply suggests that an alternative course be considered. In no directive way, and without any Orders in this regard but in the light of the concerns expressed by the Court in these reasons, the Respondent may consider making an ex gratia payment to the Applicant. It would not, and could not, even approximate anything like the sum sought by the Applicant.
Annotated chronology
The Applicant, Ms Yu, filed her Initiating Application on 18th November 2016 seeking relief under the FW Act. An Amended Initiating Application was filed on 3rd April 2017. The Applicant claimed, among other things, that the Respondent, her former employer, had taken adverse action against her which led to the cessation of her employment.
The trial was heard in March 2018. It did not conclude within the allocated time and was adjourned as part-heard. Due to various other procedural matters, unfortunately, the resumed hearing could not take place until March 2019; the reasons for the disproportionate delay included Court availability, the availability of a critical witness for the Respondent, and an appeal by the Applicant regarding a failed recusal Application.
On 25th May 2018, the Applicant filed an Application in a Case seeking that I recuse myself (the term used by the Applicant was “disqualify”). The Respondent opposed the Application. Written submissions were provided by the parties in July and October 2018. Judgment was delivered and Orders made in this Court on 1st November 2018. The Application was dismissed.[7]
[7] Yu v ACT Education Directorate [2018] FCCA 2835.
The Applicant unsuccessfully appealed the recusal decision to the Federal Court of Australia.[8]
[8] Yu v ACT Education Directorate [2019] FCA 272.
The Applicant did not appear at the [further] pre-hearing directions on 7th March 2019. She was telephoned by an Associate, in open Court. The Applicant advised that she had been too unwell to appear on this occasion and hung up. The Court made Orders vacating the Hearing scheduled to commence on 12th March 2019 and instead listed the matter for directions on that same date.
Following the Orders made on that occasion, the Applicant advised the Court via email (dated 8th March 2019) that she was “…not in a position to proceed with next week’s hearing due to health issue. I have attached the medical certificate.”
The two medical certificates supplied by the Applicant stated that she was unfit to continue her usual occupation/court hearing due to her stress and anxiety-depression.
The Court received a further email from the Applicant on 12th March 2019, approximately one hour prior to the directions listing, in the following terms:
1. I am sorry that I am unable to come to Court today, 12 March 2019, for the Directions hearing.
4. Also I could not talk to the Judge on 7 March 2019 after being contacted by phone because I was so upset that I was continually crying and not able to stop. The Judge terminated the call.
5. Subsequently I received an email requesting me to attend Court on 12 March 2019 which, as stated above, I am not in a physical or mental state to participate. I have had a complete breakdown. On 1 March 2019 I was taken by ambulance from the Court to Calvary Hospital where I waited for further treatment but it was not forthcoming. In the end after my panic attack had subsided I just wanted to get home and recover.
6. This is due to my severe depression, anxiety and stress. I am unable to deal with any matters relating to these proceedings and cannot make any decisions on medical advice I have received. A medical certificate has already been provided.
7. On 9 March 2019 my treating Psychologist advised me that I should not think about or deal with any court matters for at least 6 months.
The substantive hearing on the matter could not proceed in March 2019 and the Applicant did not appear at the directions listing on 12th March 2019. Orders were made on that occasion outlining the Court’s concerns about “balancing the competing interests of the Applicant continuing to prosecute her Application noting that it remains part-heard, and the limited resources and capacity of the Court.” The Court adjourned the matter to June 2019 and Ordered that the Applicant provide a short psychiatric report detailing her condition and capacity to prosecute her Application.
On 12th June 2019 the Applicant provided the Court a short letter from a psychologist. She sought to rely on that letter during the listing on 20th June 2019 to establish her capacity to prosecute her Application. Orders were made on 12th June 2019 for the Applicant and Respondent to file and serve written submissions addressing the Applicant’s capacity to continue prosecuting the matter and what the procedural course of the matter should be.
Judgment was delivered and Orders made on 20th September 2019 which dismissed all extant Applications and granted the Applicant leave to re-open the matter in 6 months’ time, conditional on her filing a psychiatric report by a psychiatrist who has had access to her hospital records.[9] Should it need to be recorded, there was no appeal from that decision.
[9] Yu v ACT Education Directorate [2019] FCCA 2643.
The Applicant filed an Application in a Case on 20th March 2020 seeking that the Amended Application, filed 3rd April 2017, be reinstated and re-listed. A supporting Affidavit was also filed which included a report from psychiatrist, Dr Samad. That report is Annexure JY-3 of the Affidavit filed by the Applicant on 20th March 2020.
The Application in a Case was listed for a first return date on 17th August 2020. The Respondent did not oppose the matter being relisted for Hearing.
The matter came back before the Court for directions on 3rd November 2020. The Notations to the Orders of 3rd November 2020 summarise the concerns surrounding the litigation:
A. The Orders of 17 August 2020 provided that the parties notify the Court if there was agreement to deal with the matter on the papers. The parties indicated that there was agreement for the matter to proceed in this way;
B. Given that the matter has been on foot for a significant period of time and the matter previously progressed to a final hearing where the Applicant gave evidence, the Court sought to enquire what the parties say the Court should do with that earlier evidence;
C. Both parties were of the view that the evidence of the Applicant should be retained and considered by the Court. However, the Respondent indicated that it considered it necessary for the Court to have an oral hearing unless the Court could be satisfied that the Applicant fully understood that (and continues to understand) the balance of the “hearing” would be conducted “on the papers” and that there would be no further cross-examination of any party or witness;
D. The Court is also concerned about the Applicant’s ability to conduct the proceedings, especially given that correspondence was previously sent to the Court by the Applicant in March 2019 indicating that due to her health issues she was unable to deal with matters relating to the proceedings (see Annexure A and B to these Orders). The Court raised the possibility of the appointment of a litigation guardian pursuant to Division 11.2 Federal Circuit Court Rules (2001) (Cth);
E. The Applicant strongly opposed the appointment of a litigation guardianThe Court considered the appointment of a litigation guardian for the Applicant. As noted above, this was strongly opposed by the Applicant who vehemently asserted that she had/has capacity to manage and to conduct her case. The Respondent did not wish to be heard on the issue.
The Respondent was concerned that the Applicant did not understand what was meant about the matter being determined on the papers, in so far as that she would not have the opportunity to cross-examine the Respondent’s witnesses. The Applicant confirmed to the Court multiple times that she understood what the matter being dealt with “on the papers” meant.
With a not insignificant degree of ongoing concern on the Court’s part, on multiple levels, in light of, (a) the abbreviated medical evidence provided by the Applicant which confirmed her ability to prosecute the matter, notwithstanding the history of the Applicant’s inability to pursue the matter in 2018-2019, and her subsequent hospitalisation; (b) the oral submissions made by the parties during the directions listing on 3rd November, and (c) the comments of the High Court in AON Risk Services Australia Limited v Australian National University regarding, inter alia, proper and efficient case management, and the impact upon other litigants in the allocation of scarce public resources,[10] the Court directed that the matter be dealt with “on the papers”, namely, on the basis of the transcript of evidence given at the Hearing in March 2018, all other material filed, and written submissions. A timetable was also included for the filing of an updating Affidavit, written submissions, and a Minute of Orders Sought.
[10] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
Since those Orders were made on 11th November 2020, as also indicated earlier, there have been various amendments to the timetable for filing, primarily as a result of requests made by the Applicant for more time to file. Orders which provided for amended filing regimes were published on 7th December 2020, 17th February 2021 and 18th March 2021. All these alternations to the filing timetable were made by consent, however the Court understands that they all arose from requests by the Applicant. To say that multiple allowances for the filing of material have been regularly granted, is quite an understatement.
After the final request for an extension of filing in late March 2021, the Court noted to the parties via email correspondence that any additional extension of time would not only delay the finalisation of the matter but also potentially risk the Court making adverse costs orders.
The Applicant’s Claims – liability
As already noted, on 3rd April 2017, the Applicant filed an Amended Application. That Amended Application annexed (otherwise without identification) the Notification of termination of employment letter from “ACT Government Education”, dated 17th August 2016. It was signed by Mr Whitton, the Senior Manager, Employee Relations.
Also annexed, and also without other identification, was the Applicant’s “Amended Grounds for Claim, Part G – Contraventions Alleged.” Those Grounds for Claim were as follows (emphasis in original):
1.The Applicant is a Mandarin teacher who commenced teaching with ACT Education in 1991, and became a permanent employee in 1996. She was dismissed in 2016.
2.During her time of employment (almost 25 years), the applicant was dedicated to her work and had a flawless, proven, records with ACT Education Directorate.
3.The respondent and its employees are covered by the Fair Work Act 2009 (Cth) (‘the Act’), the ACT Public Sector Education and Training Directorate Teaching Staff Enterprise Agreement 2014-2018 (the Enterprise Agreement), Work Health and Safety Act 2011 (ACT), and the National Employment Standards.
4.The applicant is bringing a claim against the respondent on the grounds that the respondent has breached section 340 and 343 (1) (a) of the Act. The applicant is additionally bringing a claim against the respondent for breaching sections 50 and 44(1) of the Act.
Respondent’s adverse actions against the applicant:
5.The applicant held a permanent placement at Hawker College since 2010. She enjoyed her work and had excellent rapport with staff, students and parents. No issue was ever raised with her over the quality of her teaching. In December 2013 the respondent identified the applicant as excess to the requirements of Hawker College and removed her from the College. Then, the respondent contracted a casual teacher to fill her position.
6.A month later, the applicant did not receive an offer for a new position as verbally promised. From then on, she became an excess Mandarin teacher with the Education Directorate.
7.In 2014, the respondent sent the applicant to Mawson Primary and in 2015 Telopea Park School, working as an extra staff. The respondent promised to offer the applicant a permanent Mandarin teaching position as soon as it becomes available, but it never happened.
8.On 29 January 2016, for reasons unknown to the applicant and Telopea Park School management, a HR manager verbally removed the applicant from Telopea Park School where she had relief work, and sent her to Canberra High School where no work was offered to her, which amounted to an effective suspension from work.
9.A week later, on 8 February 2016, for reasons unknown to her, the applicant was issued a Six-week Pathway to Improvement Plan written by the school Principal and the Deputy Principal. No evidence was tabled to warrant such action imposed upon the applicant. The applicant has always been efficient in her work over the 25 years of her employment, hence she disputed the legitimacy of the process.
10.From then on, adverse action against the applicant were frequently organised by the respondent, for example, repeatedly pressed the applicant to sign the Improvement Plan, carried on ad hoc lesion observations, produced dishonest lesson observation report, and suggested that she resign.
11.Meanwhile, the school management excluded the applicant from participating in whole school programs, for example, the professional community learning programs which including peer observation in the classroom and feedback.
12.On 7 July 2016, The HR managers formally suspended the applicant and on 17 August 2016, dismissed her.
13.The respondent caused psychological and emotional injury to the applicant through above adverse actions. At Canberra High, she constantly experienced humiliation, despair, mental distress, being bullied and discriminated against, making her unfit for work most of the time.
Alleging Dismissal in Contravention of a General Protection
Contravention Section 343(1)(a) of the Act
14.The applicant says that the respondent contravened s343 (1) (a) of the Act, because the respondent organised the adverse actions (as outlined in para. 5 – 13) with the intent to coerce her not to exercise a workplace right, that is, to be engaged as a permanent employee.
15.The workplace right was provided for in the Enterprise Agreement, Clause B1.1, which states:
A person will be engaged under the PSM Act in one of the categories contained in Part 2 Clauses N2, N3 and N4.
The applicant was in Permanent Employment category under Part 2 Clause N2
Contravention Section 340(a)(ii) of the Act
16.The applicant also says that the respondent dismissed her because she has exercised the workplace rights, as outlined in paragraph 17 – 24.
17.The work place right is provided for in section 28 (a) of Work Health and Safety Act 2011 (ACT), which states that:
While at work –
(a) a worker must take reasonable care for his or her own health and safety;
Under this legislation, the word ‘health’ is defined as ‘physical and psychological health’.
Clause A2.17 of the Enterprise Agreement acknowledges the responsibility of both the respondent and the employees in complying with the Work Health and Safety Act 2011 (ACT).
18.Another work place right is provided for in section 341 (1) (c) of the Act which allows the applicant to make a complaint or injury in relation to her employment.
19.On 27 May 2016, Canberra High Principal instructed the two school leaders, with whom the applicant had a conflict over the pressure to sign the improvement plan, to observe her teaching, in order to make formal reports to HR Managers. The applicant was very worried as she had already received a dishonest report. She felt the management was producing paper work to manoeuvre her out of her job. She was so upset and fearful and unable to carry on her duty in their presence. She went to the Principal and told him of her concerns. The Principal persisted with his decision and showed no empathy to her. She burst into tears and cracked under stress.
20.In the afternoon that day, there was a meeting arranged for the applicant with two HR managers to again sign the Improvement Plan and to discuss her performance. The applicant was too distressed to attend of which she informed the Principal prior to the meeting. However, the Principal persisted in demanding that she attend the meeting, even though she was in a distraught state.
21.The applicant was very upset and was unfit for work for the next ten days, till June 9, 2016. While the applicant was on duty that day, she was notified of allegation of misconduct and was directed to stand-down.
22.The applicant says that on 27 May 2016, she was merely exercising her workplace rights under the legal provisions, that is, expressed her concern in relation to her employment, and took reasonable care for her own health and safety. There was no misconduct on her part.
23.The applicant also says that the respondent took adverse actions against her because she exercised a workplace right in 2008, which is, made a workers’ compensation claim with Comcare for the psychological injuries she suffered. Comcare initially approved the claim. Then the respondent opposed the approval and matter was resolved by ruling of the AAT in the applicant’s favour in 2010.
24.The HR managers who engaged in unreasonable actions against the applicant in 2008 and 2009, directly involved in the course of events leading up to the applicant’s termination in 2016, that is, sent her to Canberra High and refused to engage her in meaningful work and again placed her on a performance improvement process instead; the HR managers accused the applicant of misconduct, suspended and ultimately dismissed her. Therefore, the applicant says that her dismissal stemmed from her successful claim with the Comcare and the respondent dismissed her as a form of retaliation.
Contraventions of Other Civil Remedy Provisions
Contravention Section 44 (1) of the Act
25.Section 44 (1) of the Act states:
An employer must not contravene a provision of the National Employment Standards
26.The applicant says the respondent contravened section 117(2), 90(2) and 53(1) of the National Employment Standards.
27.Pursuant to Section 117 (2) of the National Employment Standards, the respondent must not terminate the applicant’s employment unless the respondent has paid to her payment in lieu of notice. The respondent terminated the applicant’s employment on 17 August 2016, and did not pay her 5 weeks of pay in lieu of notice until November 2016/.
28.Pursuant Section 90 (2) of the National Employment Standards, the respondent must pay the accrued annual leave upon termination. On 17 August 2016, the respondent did not pay the applicant accrued annual leave.
29.Pursuant Section 53(1) of the National Employment Standards, upon termination the applicant became entitled to Long Service Leave payment. On 17 August 2016 the respondent did not pay the applicant accrued Long Service Leave payment.
Contravention Section 50 of the Act
30.Section 50 of the Act states:
A person must not contravene a term of an enterprise agreement
31.The applicant says the respondent contravened clause A2.2, R2.9, H1.4, H2.1, H2.2(e), H2.3, H 7.1, H7.2, A2.16, A2.17, Section K, and H1.2 of the Enterprise Agreement.
32.Under clause A2.2 of the Enterprise Agreement, the respondent agrees to the use of temporary employees only where there is no officer available with the expertise, skills or qualification required for the duties to be performed.
33.In 2013 the applicant was identified as excess to the requirements of Hawker College, and was removed from there by the respondent. However, her position was filled by a temporary/casual staff.
34.In 2016 at Canberra High, the respondent refused to offer the applicant with any meaningful work, not even relief work. They used casual staff instead.
35.Under clause R2.9 of the Enterprise Agreement, the respondent had the right and obligation to place the applicant in a suitable position as required, and this requirement takes precedence over any other method of filing vacancies. In 2015/2016, the respondent failed to meet its obligation.
36.The applicant says that the respondent contravened clause H1.4 of the Enterprise Agreement which requires the respondent acting in accordance with the principles of natural justice and procedural fairness, and in a manner that promotes the values and general principles of the ACTPS set out in section 9 of the PSM Act 1994. The particulars were outlined in para. 37-40.
37.Under clause H2.1, H2.2 (e) and H2.3 of the Enterprise Agreement, the manager/supervisor must initiate a preliminary assessment process and then make recommendations to the head of service in cases where an allegations of inappropriate behaviour is made and the future action is required; that the employee will be informed where a preliminary assessment process is commenced.
38.The school Principal wrote a summary of event (observation) to the HR managers. However, he did not make an allegation of inappropriate behaviour, let alone any preliminary assessment or recommendation for further action in relation to the incident on 27 May 2016.
39.Under clause H7.1 and H7.2 of the Enterprise Agreement, the respondent may commence the investigation process and may stood down/suspend the applicant after receiving a recommendation from the school management under clause H2.2 (e).
40.Without receiving any recommendations from the school management under Clause H2.2 (e), the HR managers commenced investigation process on 2 June 206, stood down the applicant on 9 June 2016, and suspended her on 7 July 2016.
41.Under clause A2.16 and A2.17 of the Enterprise Agreement, the respondent is committed to promoting, achieving and maintaining the highest levels of health and safety of all employees and will take all reasonable steps and precautions to provide a healthy, safe and secure workplace for the employee; that the respondent and all employees will act in a manner that is consistent with the Work Health and Safety Act 2011.
42.The applicant says that the respondent not only failed to fulfil its duty of care under clause A2.16 and A2.17, but also took adverse actions against the applicant for taking reasonable care of her own health and safety.
43.The applicant was made an excess Mandarin teacher by the respondent. But even then, the respondent refused to treat the applicant fairly as an excess staff in accordance with Section K of the Enterprise Agreement. Rather, they manoeuvred her out of the work place using disciplinary action instead.
44.The applicant says that the HR managers and the school leaders who took adverse actions against her and who contravened the legal provisions have also breached clause H1.2 of the Enterprise Agreement which requires them to act responsibly and to be accountable for their actions and decisions.
Remedies sought
45.As a result of the respondent’s adverse actions, the applicant suffered losses and damages. Therefore, the applicant is asking the Court to make an order for compensation:
i) Past and future economic loss: income, superannuation, long service leave and annual leave loading
ii) General damages: suffering and damage of reputation.
46.The applicant is asking the Court to make pecuniary penalty order against the respondent.
The Respondent’s Grounds of Opposition
The Respondent’s Amended Response, filed 10th April 2017, set out its Grounds for opposing the Applicant’s claims and that the Amended Application be dismissed. The Grounds of opposition were as follows (emphasis in original):
1. The respondent admits paragraph 1.
2. The respondent denies paragraph 2.
3. The respondent admits paragraph 3 and says further that the National Employment Standards are contained in Part 2-2 of the Fair Work Act 2009 (Cth) (Act).
4. The respondent denies that it has breached ss. 44, 50, 340, or 343, of the Act.
5. As to paragraph 5, the respondent:
a. admits that the applicant had a permanent appointment at Hawker College from 2010 to 2013;
b. admits that the applicant was excess to the requirements of Hawker College from December 2013; and
c. otherwise denies the paragraph.
6. As to paragraph 6, the respondent:
a. admits that in January 2014 the applicant applied for, but was not successful in obtaining, a transfer to a permanent appointment;
b. admits that the respondent then placed the applicant in a supernumerary position at Mawson Primary School for 2014;
c. otherwise denies the paragraph.
7. As to paragraph 7, the respondent:
a. admits that the respondent placed the applicant in a supernumerary position at Mawson Primary School in 2014;
b. says that in January 2015 the applicant applied for, but was not successful in obtaining, a transfer to a permanent appointment;
c. admits that the respondent then placed the applicant in a supernumerary position at Telopa Park School for 2015; and
d. otherwise denies the paragraph.
8. As to paragraph 8, the respondent:
a. says that the applicant failed to apply for a transfer to a permanent appointment in January 2016;
b. admits that the respondent then placed the applicant in a supernumerary position at Canberra High School for 2016; and
c. otherwise denies the paragraph.
9. As to paragraph 9 the respondent says that:
a. the procedures for performance and development under the ACT Public Sector Education and Training Directorate (reaching Staff) Enterprise Agreement 2011 -2014 (Previous Enterprise Agreement) continue to operate pending a review of various guidelines and procedures provided for by clause M2.3 of the ACT Public Sector Education and Training Directorate (reaching Staff) Enterprise Agreement 2014 -2018 (Enterprise Agreement);
b. clauses R9 and RIO of the Previous Enterprise Agreement provide that all teachers must develop a 'Professional Pathways Plan' which is the responsibility of the teacher and their supervisor and which must be signed off by the teacher, their supervisor and their principal/manager;
c. as for all staff, the various representatives of the respondent engaged with the applicant in an attempt to develop her ordinary 'Professional Pathways Plan'. To that end, the respondent provided the applicant with a draft Professional Pathways Plan, which she was invited to adapt according to her needs and those of the respondent;
d. conversely, clauses R12 -R14 of the Previous Enterprise Agreement provide that teachers who have been under-performing must develop a 'Pathways to Improvement Plan', during which time the Professional Pathways Plan will be suspended;
e. the respondent did not issue the applicant with a 'Pathways to Improvement Plan';
f. it otherwise denies the paragraph.
10. As to paragraph 10 the respondent:
a. says that 'lesson observations' are a standard performance assessment tool of the respondent and a common practice across the school system;
b. says that, in the process of attempting to develop the applicant's Professional Pathways Plan, it attempted to conduct lesson observations of the applicant on 4 occasions between 23 March 2016 and 27 May 2016; and
c. otherwise denies the paragraph.
11. The respondent denies paragraph 11.
12. The respondent admits paragraph 12.
13. As to paragraph 13, the respondent:
a. does not know and cannot admit the applicant's allegations about her mental states; and
b. otherwise denies the paragraph.
14. As to paragraph 14, the respondent says that the allegation is vague and embarrassing and under cover of that objection it denies the paragraph.
15. As to paragraph 15, the respondent:
a. admits that the applicant was a permanent employee under clause N2 of the Enterprise Agreement;
b. relies on the Enterprise Agreement for the content of its clauses; and
c. otherwise denies the paragraph.
16. As to paragraph 16, the respondent:
a. admits that it terminated the applicant's employment; and
b. otherwise denies the paragraph.
17. As to paragraph 17, the respondent says that:
a. pursuant to the Work Health and Safety Act 2011 (ACT) the applicant had a responsibility to take reasonable care for her own safety;
b. pursuant to clause A2.17 of the Enterprise Agreement the respondent and the applicant had a responsibility to act in a manner consistent with the Work Health and Safety Act 2011 (ACT); but
c. it otherwise denies the paragraph.
18. As to paragraph 18, the respondent says that the allegation is vague and embarrassing and under cover of that objection it denies the paragraph.
19. As to paragraph 19, the respondent:
a. admits that on 27 May 2016 the respondent directed the applicant to teach a class while being observed by Deputy Principal Samara Chisholm;
b. does not know and cannot admit the applicant's allegations about her mental states; and
c. otherwise denies the paragraph.
20. As to paragraph 20, the respondent:
a. admits that it scheduled a meeting for the applicant to discuss her Professional Pathways Plan with members of its human resources team, that it directed the applicant to attend the meeting, and that she failed to attend;
b. does not know and cannot admit the applicant's allegations about her mental states; and
c. otherwise denies the paragraph.
21. As to paragraph 21, the respondent
a. admits that the applicant took personal leave from 30 May 2016 to 8 June 2016;
b. admits that on 9 June 2016 the applicant was notified of the allegations of misconduct (being refusal to teach a class while undergoing lesson observation and refusal to attend meetings to discuss her Professional Pathways Plan) and that she was being stood down pending the investigation into the allegations; and
c. otherwise denies the paragraph.
22. As to paragraph 22, says that the allegations are vague and embarrassing and under cover of that objection it denies the paragraph.
23. The respondent denies paragraph 23.
24. The respondent denies paragraph 24.
25. The respondent admits paragraph 25, subject to relying on the Act for the content of its provisions.
26. The respondent denies paragraph 26.
27. As to paragraph 27, the respondent relies on the Act for the content of s 117(2) of the Act and otherwise denies the paragraph.
28. As to paragraph 28, the respondent relies on the Act for the content of s 90(2) of the Act and otherwise denies the paragraph.
29. The respondent denies paragraph 29.
30. The respondent admits paragraph 30.
31. The respondent denies paragraph 31.
32. As to paragraph 32, the respondent relies on the Enterprise Agreement for the contents of clause A2.2 and otherwise denies the paragraph.
33. As to paragraph 33, the respondent admits that the applicant was identified as excess to the requirements of Hawker College in 2013, but otherwise denies the paragraph.
34. The respondent denies paragraph 34.
35. As to paragraph 3 5, the respondent relies on the Enterprise Agreement for the contents of clause R2.9, and otherwise denies the paragraph.
36. As to paragraph 36, the respondent relies on the Enterprise Agreement for the content of clause Hl .4, and otherwise denies the paragraph
37. As to paragraph 37, the respondent relies on the Enterprise Agreement for the content of clause H2.1, H2.2(e), and H2.3.
38. The respondent denies paragraph 38.
39. As to paragraph 3 9, the respondent relies on the Enterprise Agreement for the content of clauses H7.1 and H7.2.
40. As to paragraph 40, the respondent:
a. admits that the respondent commenced an investigation into allegations that the applicant had engaged in misconduct on 9 June 2017 and refers to and repeats subparagraph 21 (b) above;
b. admits that the respondent suspended the applicant with pay on 7 July 2016 pursuant to clause H8 of the Enterprise Agreement; and
c. otherwise denies the paragraph.
41. As to paragraph 41, the respondent relies on the Enterprise Agreement for the contents of clauses A2.16 and A2.17.
42. The respondent denies paragraph 42.
43. As to paragraph 43, the respondent:
a. admits that the applicant was excess to requirements at Hawker College from December 2013;
b. admits that the applicant did not secure a permanent placement thereafter ( and, in the case of 2016, the applicant did not apply for one );and
c. otherwise denies the paragraph.
44. The respondent denies paragraph 44.
45. As to paragraph 45, the respondent denies that the applicant is entitled to any or all of the remedies asserted in that paragraph.
46. As to paragraph 46, the respondent denies that applicant has pleaded or can establish any grounds on which this Honourable Court may make pecuniary penalty orders against the respondent.
Other materials
For ease of reference, annexed to these reasons (Annexure A) is a copy of the Applicant’s Submissions, filed 13th March 2018, which set out in significant detail, and the reasons for, the multiple claims against the Respondent.
Finally, set out below is the Applicant’s document styled “Compensation and Penalties” which sets out, in tabular form, each of her claims and the amounts which she says she is entitled to. Summarily stated from that document, the Applicant seeks compensation for past and future economic loss, for a period of 15 years, of $1,920,766, and pecuniary penalties that total between $893,700 and $1,023,300. Also summarised, there are 3 claims in relation to alleged breaches of s.340 of the FW Act (all claims are under the FW Act unless otherwise stated); 3 claims under s.343; 2 claims under s.44; and 16 claims under s.50. This document, which provides a very convenient summary and overview of the Applicant’s claims, is set out below:
Compensation and Penalties
Compensation for part and future economic loss – 15 years
1 Salary $101.821pa x15years $1,527,315 2 Superannuation $1,527,315 X (11%+10%) $320,736 3 Long Service Leave ($101.821 +365 )x9days x15years $37,659 4 Annual Leave Loading ($101821 + 13)x17%x15years $19,972 5 8 weeks of LSL leave in 2016 ($101821 +54)x8weeks $15,084 Total $1,920,766 Non-economic damages: $120,000 - $200,000
Pecuniary Penalties Recommendations*
Contravention under the FW Act 2009 Proposed Range Penalty Amount 1 s340 (l)(a) - suspended Ms Yu on 7 July 2016 because she had exercised a workplace right. 80%-90% $43,200 -$48,600 2 s340 (l)(a) and s343(1)(a) - terminated Ms Yu's employment on 17 August 2016. 85%-95% $45,900 -$51,300 3 s340 (l)(b)- imposing upon Ms Yu an unlawful process as a precondition for her to get a legal entitlement in 2016. 80%-90% $43,200 -$48,600 4 s343(1)(a) and/or s340(1) - coercing Ms Yu to attend a counselling meeting by threatening her with disciplinary actions on 29 March 2016. 80%-90% $43,200 -$48,600 5 s343(1)(a) and /or s340(1) - coercing Ms Yu to participate in the unlawful process and/or to leave the teaching service on 9 May 2016. 80%-90% $43,200 -$48,600 6 s343(1)(b) - coercing Ms Yu to take LSL or LWOP in a particular way. 60%-70% $32,400 - $37,800 7 s44(1) - contravened the NES by failing to pay Ms Yu 5 weeks notice on termination. 40%-50% $21,600 -$ 27,000 8 s44(1) - contravened the NES by failing to pay Ms Yu accrued annual leave on termination. 40%-50% $21,600 -$ 27,000 9 s50 -contravened cl F25.4 of the Enterprise Agreement by failing to pay Ms Yu accrued Long Service Leave entitlements on termination. 40%-50% $21,600 -$ 27,000 10 s50-contravened cl Ul0.5 of the Enterprise Agreement by failing to pay Ms Yu the annual leave loading on termination. 20%-30% $10,800 -$16,200 11 s50 -contravened cl A2.2 and cl Hl.2 of the Enterprise Agreement by using temporary employees to teach Mandarin during December 2013 to 2016 -multiple contraventions. 80%-90% $43,200 -$48,600 12 s50 -contravened cl R3.10 and cl Hl.2 of the Enterprise Agreement by advertising a Mandarin teaching position at Jobs ACT in December 2015. 70%-80% $37,800 -$43,200 13 s50 -contravened cl R4.1, R2.9 and cl Hl.2 of the Enterprise Agreement by failing to comply with the Procedures for Filling Classroom Teacher Vacancies and by failing to place Ms Yu in a suitable position from 2014 -2016 -multiple contraventions. 80%-90% $43,200-$48,600 14 s50 -contravened cl A2.10 and cl Hl.2 of the Enterprise Agreement by using the performance management schemes for disciplinary purposes. 80%-90% $43,200 -$48,600 15 s50 -contravened cl Gl.1 and cl Hl.2 of the Enterprise Agreement by failing to consult with Ms Yu in decisions that affected her employment - multiple contraventions. 80%-90% $43,200-$48,600 16 s50 -failed to comply with cl Hl.4 and cl Hl.2 of the Enterprise Agreement when conducting investigations and making decisions in relation to Ms Yu in 2016. 80%-90% $43,200 -$48,600 17 17 s50 -contravened cl H2.2(b) and cl Hl.2 of the Enterprise Agreement by unlawfully organising and conducting counselling meetings in 2016 –multiple contraventions. 80%-90% $43,200 -$48,600 18 S50 -contravened cl Hl0.1 and cl Hl.2 of the Enterprise Agreement by demoting and transferring Ms Yu during 2014 to 2016 -multiple contraventions. 80%-90% $43,200 -$48,600 19 s50-contravened cl H7.1 and cl Hl.2 of the Enterprise Agreement by commencing the investigation without conducting a preliminary assessment in 2016. 50%-60% $27,000 -$32,400 20 s50-contravened cl U7.6 and cl Hl.2 of the Enterprise Agreement by unlawfully standing down Ms Yu in June 2016. 70%-80% $43,200 -$48,600 21 s50- contravened cl R9.2 and cl Hl.2 of the Enterprise Agreement by failing to conduct the Professional Pathways process in a professional, objective and fair manner in 2016 -multiple contraventions. 60%-70% $32,400 -$37,800 22 s50- contravened cl A2.16 and cl Hl.2 of the Enterprise Agreement by failing to meet its health and safety obligations -multiple contraventions. 80%-90% $43,200 -$48,600 23 s50-contravened cl A2.17 and cl Hl.2 of the Enterprise Agreement by failing to take reasonable steps and precautions in respect of Ms Yu's health and safety -multiple contraventions. 80%-90% $43,200 -$48,600 24 s50-contravened cl A2.18 and cl Hl.2 of the Enterprise Agreement by failing to investigate workplace bullying, harassing or discrimination and by tolerating inappropriate behaviours of the senior staff-multiple contraventions. 80%-90% $43,200 -$48,600 Total $893,700 -$1,023,300 * Maximum Penalty for a Corporate Entity is $54,000 for a contravention of a civil penalty provision under the FW Act
The Respondent prepared a document (filed 27th September 2017), which provides an overview (unsurprisingly called “Overview Document”) of the claims made by the Applicant, the relevant sections of the FW Act involved in relation to each claim, and the witnesses on behalf of both parties who would be called for each contravention. Helpfully, it reduces the multiple claims to a more manageable, grouped collection, thereby bringing the contraventions claimed within 4 broad categories: (a) adverse action for exercising a workplace right (s.340(1) FW Act); (b) coercion not to exercise a workplace right (s.343(1)(a) FW Act); (c) contravention of an enterprise agreement (s.50 FW Act); and (d) contravention of the National Employment Standards (s.44 FW Act). That document, for convenience, is set out below:
OVERVIEW DOCUMENT
FW Act provision Alleged contravention Applicant witnesses Respondent witnesses s340(1) Adverse action for exercising workplace right · On 17 August 2016 Applicant was dismissed from her employment Jing Yu Lauren Harman
Dougal Whitton· On 27 May 2016 the Applicant exercised a workplace right under s 28(a) Work Health and Safety Act 2011 (ACT) and cl A2.17 EA to take reasonable care for her own health and safety while at work by not attending a meeting with HR about signing her PPP Jing Yu Natalie Stewart Phil Beecher Samara Chisholm Dougal Whitton Cathy Crook Lauren Harman · On 27 May 2016 Applicant exercised a workplace right under s 341(1)(c) to make a complaint or enquiry in relation to her employment by expressing concern to the Principal about attending a meeting with HR about signing her PPP Jing Yu Natalie Stewart Phil Beecher Samara Chisholm Dougal Whitton Cathy Crook Lauren Harman · In 2008 the Applicant exercised a workplace right to make a workers’ compensation claim to Comcare Jing Yu Lauren Harman Dougal Whitton s343(1)(a) Coercion not to exercise workplace right · Applicant had a right to be engaged as a permanent employee under cl B1.1 of the EA
· Over December 2013 – August 2016 the Respondent engaged in various action with the intent to coerce the Applicant not to exercise her right to be engaged as a permanent employee
Jing Yu Katrina Sheaves Cathy Crook
Phil Beecher Samara Chisholm Natalie Stewart Eileen Curries50 Contravening an enterprise agreement · In 2013 the Respondent contravened cl A2.2 by using a temporary employee in place of the Applicant Jing Yu Katrina Sheaves Cathy Crook · In 2015/2016 the Respondent contravened cl R2.9 by failing to place the Applicant into a suitable position when one became available Jing Yu Katrina Sheaves
Cathy Crook
Phil Beecher· In May 2016 the Respondent contravened cl H2.1. H2.2(e) and H2.3 by not making a preliminary assessment before taking further action in relation to an allegation of inappropriate behaviour Jing Yu Phil Beecher Lauren Harman Dougal Whitton · In June 2016 the Respondent contravened cl H7.1 and H7.2 by commencing an investigation and standing
· down/suspending the Applicant without having received a recommendation from school management under cl H2.2(e)
Jing Yu Phil Beecher Lauren Harman Dougal Whitton · The Respondent contravened cl A2.16 and A2.17 by failing to take reasonable steps and precautions to provide a healthy, safe and secure workplace for the Applicant Jing Yu Katrina Sheaves Cathy Crook
Phil Beecher Samara Chisholm Natalie Stewart Eileen Currie
Lauren Harman
Dougal Whitton· The Respondent contravened cl K by failing to treat the Applicant as an excess employee under the excess employee provisions Jing Yu Katrina Sheaves Cathy Crook · The Respondent contravened cl H1.2 by taking the adverse action against the Applicant as pleaded above in that they failed to act responsibly and were not accountable for their actions and decisions Jing Yu Katrina Sheaves Cathy Crook
Phil Beecher Samara Chisholm Natalie Stewart Eileen Currie
Lauren Harman
Dougal Whittons44 Contravening the National Employment Standards · In August 2016 the Respondent contravened s 117(2) of the NES by failing to make a payment in lieu of notice until November 2016 Jing Yu Dougal Whitton · In August 2016 the Respondent contravened s 90(2) of the NES by failing to pay accrued annual leave on termination Jing Yu Dougal Whitton · In August 2016 the Respondent contravened s 53(1) of the NES by failing to pay accrued long service leave Jing Yu Dougal Whitton
The Applicant’s Evidence – Part 1
The Applicant’s evidence was in two parts: her multiple Affidavits, and her oral evidence. As specified in a number of places, including her final submissions, filed 7th January 2021, the Applicant relied upon her Affidavits filed 5th May 2017, 20th September 2017, 13th March 2018, 26th June 2020, and in what she described as her summary Affidavit, filed 7th January 2021. For convenience, and as already observed, I will refer in particular to her latest Affidavit.
From the material already noted, it will be apparent that the evidence and issues generally relevantly fall between the Court making such findings as it can on factual matters, as well, in due course, in making determinations regarding the interpretation and operation of the ACT Public Service, Education and Training Directorate (Teaching Staff) Enterprise Agreement 2011 – 2014 (“the EA”).[11] As earlier remarked, the Applicant avers that the EA was regularly breached as set out in, among other places, her Amended Application, as well as in her document entitled “Compensation and Penalties.”
[11] A copy of this EA is Annexure DW-1 to the Affidavit of Douglas Whitton, filed 17th September 2017.
The Applicant’s “summary Affidavit” of January 2021 is in three parts: (a) what she describes as her “background and past industrial disputes” (pars.1 – 5); (b) “Treatment at work between 2013 and 2016” (pars.6 – 41); and (c) “Treatment in the Court proceeding” (pars.42 – 63).[12] Regrettably, the third part of this Affidavit (pars.42 – 63) repeats and or rehearses quite a number of matters that were raised in her unsuccessful recusal Application before this Court, and on appeal in the Federal Court. Accordingly, they will not be considered further here.
[12] The latter section of the Applicant’s Affidavit here noted, at footnote 19 that, in addition to making formal complaints to the Attorney-General of the Australian Capital Territory regarding the conduct of the Respondent’s solicitor (among others), she stated: “I have also been subjected to various unethical behaviours of other individuals including the lawyer I engaged and the doctors I sought for treatment.” No details were provided.
However, because they provide a convenient “witness statement”, in a manner of speaking, I set out in full pars.6 – 41 from that Affidavit:
Treatment at work between 2013-2016
6. In 2010 I commenced Mandarin teaching at Hawker College. I enjoyed my work and was well established there. I knew that I was doing well because I always received a high satisfactory level from the students' feedback.
7. In December 2013, the Respondent appointed Mr Wang, a casual Maths teacher who was on a temporary working visa, to take my Mandarin classes from 2014 onwards. Mr Sollis (principal of Hawker College) and Ms Sheaves (HR manager) told me that my position was identified as surplus and I would be transferred to another school. I was very upset. Mr Sollis recommended me to contact the OTC counselling service.
8. In January 2014, HR Manager Ms Crook and Ms Sheaves declined to offer me a new teaching position. I requested to resume my College duties but was refused. I was depressed and was unfit for work for 3 weeks. I provided the Medical Certificates to Ms Crook and Ms Sheaves.
9. I never did get the next teaching position. Ms Crook and Ms Sheaves told me there were no Mandarin teaching positions available. Unbeknownst to me they continued offering Mandarin teaching positions to other temporary staff.
10. ln 2014 and 2015 I was sent to Mawson Primary and Telopea Park School respectively, to perform primarily the duties of a teacher's aide and to be a subordinate to other peer teachers. I believe that the Respondent had the intention to make me suffer, then resign.
11. In 2015 and 2016, a number of teachers at Telopea Park School raised concerns with the Respondent about my teaching position and my treatment.
12. On 1 December 2015 Mr Beecher (Canberra High School Principal), advertised a Mandarin teaching position in the ACT government gazette on the Jobs ACT website (approved by Ms Crook and Ms Sheaves). Mr Beecher notified and encouraged Ms Zheng, a temporary Arts teacher with whom he had a friendship to apply for this position. I was not notified.
13. After offering the above position to Ms Zheng, Ms Crook transferred me to Canberra High School. I was not assigned any duties. Mr Beecher directed me to be a subordinator to Ms Zheng and to undergo a performance 'support' process (the Process), saying that I had not been teaching Mandarin for some years and needed to go through the process to get a teaching position. This disturbed me greatly.
14. Iwas asked to sign a performance agreement plan (the Agreement) prepared by Mr Beecher, Ms Chisholn ( Deputy Principal ) and Ms Stewart (School Leader C). The Agreement contains inappropriate and unrealistic requirements including that I develop units of work that are inconsistent with the level of the students and the approved documents. They called the Agreement the "Professional Pathways Plan' - an ordinary professional development plan that every classroom teacher does.
15. I realised that this process was for an improper purpose and would bring serious harm to my career and well-being. For my own protection, I did not accept the process. Mr Beecher then directed me to attend a behaviour management counselling meeting (the meeting) with the HR managers. I was upset and was unfit for work for 2 days.
16. On 12 February 2016 at the meeting with Ms Harman, Ms Sheaves and Ms Chisholm, I pleaded to undertake any meaningful work instead of this process, they refused me and insisted that I must undergo this process or resign. I cried. Then they directed me to attend another meeting on 16 February 2016. I got sick and was unfit for work for about 2 weeks.
17. When I was sick at home, A letter from Ms Harman was delivered by courier to me at my home directing me to attend the meeting on 29 February 2016, to finalise the Agreement.
18. I returned on 29 February feeling miserable. I told Ms Chisholm and Ms Harman that I was too distressed to attend the meeting. They couldn't care less. Mr Beecher then called me and my supervisor Ms Currie to his office. He complained about my failure to sign the plan (the Agreement) and warned me with disciplinary actions. I burst into tears. Mr Beecher showed indifference and directed me to attend the meeting the next day and reiterated the consequences. I became very sick for the next three weeks due to anxiety, distress and fear.
19. I returned on 22 March 2016 and immediately I was directed to attend the meeting with Ms Harman, Ms Sheaves, Mr Beecher and Ms Chisholm. At the meeting, I was again asked to sign the Agreement. I did not sign. Ms Harman warned me. I got frustrated and said 'A person who can walk does not need the support of a wheelchair. I am efficient in my work and don't need this support". I told them that I would take some Long Service Leave.
20. On 25 March 2016 Ms Harman notified me of her decision to put a restriction on my long service leave and leave without pay entitlement, i.e. I must provide a medical certificate to access those leave entitlements ..
21. When I was at school, Mr Beecher would organize Executive Teachers Ms Currie and Ms Stewart to assess my teaching ability. I was directed to teach some Ms Zheng's classes for that purpose. Mandarin teachers were not allowed to be present while I was assessed.
22. Because I did not sign the Agreement and accept the· Process, on 9 May 2016 HR Senior Manager Ms Crook sent me a final warning letter compelling me to choose between the 'support' process, disciplinary action and resignation. I was deeply hurt and felt overwhelmingly distressed by the treatment. I was unfit for work for more than two weeks.
23. I returned to work on 26 May 2016. Ms Crook directed me to attend a meeting with her and Mr Whitton, the HR Senior Manager who had intimidated me in 2008, I was very scared.
24. That day Ms Stewart gave me an unjustifiable and dishonest lesson observation report. I was deeply hurt, feeling hopeless.
25. The next day Mr Beecher again directed Ms Stewart to observe and assess my teaching ability. I was fearful about being falsely reported on again. I broke down and cried before Mr Beecher. Mr Beecher was unconcerned and sent Ms Chisholm to assess me. Distressed, frustrated and fearful, I did not take the class as directed.
26. To protect myself from further harmful treatment, I did not attend the meeting scheduled after lunch that day. Mr Beecher and Ms Chisholm came to the staff room to coerce me to attend the meeting. Mr Beecher warned me in the presence of other staff members. I was tearful and was too distraught to speak. I felt anger and humiliation boil up inside me and I almost went mad. I went through some very strange psychiatric experiences. I deteriorated further and became very sick.
27. The Respondent then relied on the incidents on 27 May 2016, alleged misconduct on my part, i.e, not complying with the reasonable and lawful directions. Mr Whitton appointed Ms Harman, who had been pressuring me to accept the Process/Agreement, to commence an investigation process.
28. I returned on 9 June 2016. Ms Chisholm directed me to sign the plan and to teach under her observation. For my own protection I did not accept her direction. Ms Harman immediately stood me down ( I was then alleged for serious misconduct). I was in a state of hopeless despair.
29. On 3 June and 15 June 2016 I provided Ms Harman with the evidence of inappropriate behaviour of the management. Nevertheless Ms Harman found that I did not comply with the lawful and reasonable directions of the school leadership.
30. On 7 July 2016 Mr Whitton made a decision to suspend me and proposed to terminate my employment. I was in intense agony.
31. On 3 August 2016 I submitted a response addressing all the HR managers and copied to Ms Corralie McAlister, the Director People and Performance, reiterating my ill treatment and the need to protect myself from harm. Again, my grievance was ignored and on 17 August 2016, Mr Whitton terminated my employment. I was falling apart. That day Mr Whitton did not provide me with my final payment including 5 weeks of notice, accrued long Service leave and annual leave.
32. The Teacher Quality Institute (for teacher registration) was notified of my misconduct and the termination. I was inconsolable to be labeled as someone engaged in misconduct.
33. As a result of the workplace treatment, I have developed permanent psychiatric conditions which prevent me from working again. I was medically certified as being totally and permanently incapable to work from 17 August 2016.
34. The key facts above are detailed in my previous affidavits.
loss of income and benefit
35. If the Respondent has not acted unlawfully, I would continue to work full time with the Respondent at least till and through to the age of 67, then I may work part time (e.g. 2 days per week) of casual teaching for a further 2 years as many retired teachers do. I would also continue to receive long service leave entitlement, leave loading, and 3% p.a. of pay raise. If I had not been moved out from Hawker College, I would likely have advanced to a highly accomplished teacher certification by 2017 and receive monetary benefit. Now all my income and opportunities have been lost.
pain, suffering, loss of career, permanent impairment, loss of enjoyment of life
36. Prior to my illness, I was fit and active, enjoyed good health, I had no underlying medical conditions that might adversely affect my capacity to work. However, due to workplace treatment, I have developed serious chronic mental conditions. Now my health is gone, my happiness is gone, my career is gone, my reputation is gone, my income is gone, my opportunity is gone, and my way of life is gone.
37. My ongoing symptoms include but are not limited to: sadness, mood swings, empty and miserable feelings, headaches, dizziness, insomnia, loss of appetite, preoccupation, nervousness, anxiety attacks, and a lack of energy.
38. At times when I was extremely miserable, I have hit some of the lowest lows I could ever imagine and I find it hard to describe in words.
39.1 used to enjoy many things in life and was competent in all aspects of my working, social and personal life. For example:
a. I found my job fulfilling. I enjoyed teaching Mandarin as well as performing many other duties, such as conducting Access Asia in school workshops, being the Access Asia coordinator, being leader of the Teacher In-Country Fellowship to Asia Program, being Hawker College Overseas Students Coordinator, and being supervisor of training teachers,
b. I frequently travelled overseas and interstate during school holidays. enjoyed sightseeing and meeting with many new people.
c. I enjoyed being with friends and relatives and often organised social gatherings and celebrations.
d. I regularly organized and participated in the activities in my religion group.
e. I took good care of myself and my family.
40. Now I have lost all interests. I am unable to attend the activities above. My usual hobbies and enjoyments seem dull and worthless. My concentration and self-confidence are very low. I am often absent-minded and neglect my personal care. I spend most of my time talking to myself. I became withdrawn. I can not identify any element of a 'normal existence' in my life. feel my life is a mess, hopeless and helpless.
Loss of dignity
41. I feel this to be an intolerable insult to my dignity to be labelled as someone engaged in misconduct, and to be terminated for that reason, after 25 years of dedicated and unblemished service. I have lost the sense of dignity. My self-image and self-esteem have suffered greatly.
The Applicant’s Evidence – Part 2
To the degree that it was not covered in her summary Affidavit, the Applicant’s oral evidence from the hearing in March 2018, summarised, was as follows.
The Applicant confirmed that she had been a teacher for approximately 30 years. She taught Mandarin between 1991 until 2006 at Belconnen High School. From time to time, she taught some other subjects but with difficulty. Her preference and specialty was to teach Mandarin.[13]
[13] T 10 – 11.
The Applicant confirmed that she followed the Australian curriculum in the course of designing her own teaching program, “where necessary and appropriate.”[14] The Applicant confirmed that in 2008 or thereabouts, when the Chinese program was closed down at Belconnen High School, she moved to Canberra High School. She said she moved because she was scared of losing her job if she did not do so. Whilst at that high school, the Applicant was placed on a “performance improvement plan”, which suggested that the administration of the school considered there were areas in the Applicant’s teaching skills that required some attention.[15] The Applicant said that she felt bullied at that time at the school, which included being forced, in her view, to undertake that program. In retrospect, it was the Applicant’s view that this process in 2008 was part of a larger plan to dismiss her.[16] The Applicant initially refused to undertake that performance improvement plan because she felt threatened, even though she was a permanent employee. It appeared that the Applicant ultimately did not undertake that performance plan, nor did she seek clarification of it.[17]
[14] T 11.
[15] See the discussion at T 14 – 15.
[16] T 15.
[17] See T 18.
In 2014, the Applicant went to Mawson Primary School. There she taught some Mandarin but that school had multiple teachers for Mandarin, so she helped out in various other capacities. At that time, the Applicant did not have a permanent position, which she agreed was her preference and preferable for all teachers. Formally, she agreed that she was a “supernumerary employee.”[18]
[18] T 12 – 13.
The Applicant confirmed that, although supported by the Principal at Mawson Primary School to apply for a permanent teaching position, there were no permanent positions available for a Mandarin teacher. She applied, it would seem, more generally for permanent positions, but without success. She said that she was not actually qualified for these other positions.
The following year, the Applicant moved to a (non-permanent) teaching position at Telopea Park School. On her evidence, she was a relief teacher at that school but there was no Mandarin class.
The Applicant confirmed, in the course of a number of clarifying questions, that for the purposes of the current matter, the primary issue was whether the Directorate’s actions were undertaken in response to the Applicant exercising some “workplace right”.[19]
[19] See T 18.
The Applicant confirmed her belief that, in 2008, she was not an under-performing teacher.[20] She also thought that the performance plan was unreasonable.
[20] T 19.
More generally, the Applicant agreed with the propositions that there is some ebb and flow regarding the demands for teachers, within the Education Directorate, in different schools at different times, based on things like, the number of students enrolled, and the number of students seeking certain classes in, for example, Mandarin. In short, the Applicant accepted that:[21]
Equally, a particular school may have high – or ebbs and flows in its enrolment numbers. So certain schools may experience an increase for a certain period of time, and other schools a decrease; do you accept that?---Yes.
Yes. So staff need to move around within the Directorate?---Yes. For lots of reasons. Yes.
Even though the demand for teachers is still the same, the demand at given schools can go up and down; do you accept that?---Mmm.
Yes?---Yes.
All right. So when it happens that you need to look for a different school, either because a school has had a reduction in the number of enrolments or because their curriculum means that your subject area isn’t being taught anymore, you are not an excess employee at that point, are you?---No. If there is still position, yes. No.
Yes. So there are spaces across the Directorate, even though at a given school there may not be space for you?---Yes.
Yes. You accept that?---Yes, yes, yes.
[21] T 21.
The Applicant confirmed that her placement at Hawker College from 2009 until 2013 was for a slightly shorter term because the requirements at that College for teachers changed along the way. She agreed that certain teachers were “surplus to requirements.”[22]
[22] T 23.
The Applicant confirmed that while she was in the role of a supernumerary teacher at Telopea Park in 2015, she did not apply for any other permanent positions for the next teaching year in 2016.[23] The Applicant was then taken to Clause R3.2 of the EA, which deals with “teacher transfers”, and in more detail, at clause R3.13, which is in the following terms:[24]
The onus is on the teacher to nominate a reasonable range of positions and schools to enable successful transfer. Principals have a responsibility to support the teacher in this process and support career development through the professional pathways plan or its replacement.
[23] T 26.
[24] I have already noted that a copy of the EA is located in a number of places, including Annexed to Mr Whitton’s Affidavit. The text here is taken directly from the transcript as quoted to the Applicant. See T 27.
There followed a somewhat confused discussion with the Applicant regarding (a) what her understanding was of her, and the Education Directorate’s, responsibilities regarding finding other placements, and (b) the interpretation of the relevant clauses in the EA in relation to these matters. The discussion waxed and waned. The following is a limited part of it to highlight matters:[25]
[25] T 27, 28 and 29..
So you accept, Ms Yu, that it’s your responsibility to look for suitable roles in your area of interest. It’s not for HR to contact you about the roles that you should be applying for?---No, it is – is – if they remove me from one place, they have to give to me another place to – to move in – to – if they have a – and the Department in the course are – 2.9, I think, they have the responsibility to place a teacher in the – in a suitable position.
It says - - -?---And - - -
- - at – the next clause down, 3.14, says:
A teacher who is unsuccessful in transferring at the end of their nominal placement at a school will be placed in accordance with subclause R2.9.
Which is the one you were just referring to, which is back on page 136. So if a teacher fails to achieve a transfer through the application process, then – yes, the
Directorate needs to place them somewhere?---I think - - -
Do you agree that that’s the meaning of those clauses?---No. Teacher transfer is – if, for example, I was in Hawker College. Then during that time, if I want transfer, if I choose to transfer to somewhere else, right, then I can apply. And if I apply, if I’m not successful, usually, if you are not successful, usually, you – you go back to where you – for example, if I in Hawker College, if I apply. If I’m not successful, I will be still staying in Hawker College.
Okay. But you agree - - -?---But if - - -
- - you – you – Ms Yu, could - - -?---Yep.
- - could you – could tell me, is this what you – you think to be the case or are you reading from some part of the enterprise agreement that indicates that this is the process? Is this your belief or do you believe that it’s in the enterprise agreement?---I think in Ms Hammen’s investigation report, as said as well, and he said that if for – and there’s a few teacher in the system and – that doesn’t have place, then they go back their original schools.
…
… if there’s a Mandarin position suitable for you, the scheme of the enterprise agreement is that it’s your responsibility to apply for those roles? If you’re unsuccessful, the Directorate will try to find the best placement for you. Do you agree that that - - -?---Yeah, sure, if there is a – a – if – if there is a position.
…
But there was a position, though, wasn’t there, Ms Yu?---After I find it. In 2016, I find that there was a position, and they give to someone else.
It had been advertised the year before, but you didn’t look for any vacancies, so you didn’t apply for it?---There’s no position.
There was a position at Canberra High School where you, subsequently, went that was filled by Ms Zheng who was a temporary teacher there; that’s your evidence, isn’t it?---They advertised in the Jobs ACT.
Yes. They advertised the role - - -?---Yes. But, no – no permanent – I won’t look – how – I never seen they will put the advertisement in the Jobs ACT. They should have given me the job first, so why they put in the Jobs ACT?
But you accept there was a vacancy for a Mandarin teacher at Canberra High School, and you didn’t apply for it?---I didn’t know.
Okay?---I only know when I went to Canberra High School I find it out.
Did the Respondent take adverse actions against the Applicant in contravention of subsection 340 (l)(b) of the FW Act?
39.The evidence indicates that at all relevant times, I was entitled to a suitable position under clause 2.9 of the Enterprise Agreement. In 2016 at CHS, the Respondent took adverse actions against me to prevent me getting this legal entitlement, that is, imposing upon me a 'support process' as a precondition to get a suitable position (Affidavit Yu 1 [51]-[SS]). By so doing, the Respondent contravened subsection 340(1)(b) of the FW Act.
40.Alternatively, the Respondent imposed upon me a 'support process' with intent to coerce me to leave the teaching service and prevent me receiving benefits and entitlements. By so doing, the Respondent contravened subsection 343(1)(a) of the FW Act.
Did the Respondent dismiss the Applicant in contravention of subsection 343(l)(a) of the FW Act?
41.Subsection 343(l)(a) of FW Act states:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right.
42.At all relevant times, I have a role or responsibility as a classroom teacher under the Enterprise Agreement and I am entitled to the benefits as an experienced Teacher 2 at the top 3.2 incremental level under the Agreement (Affidavit Whitton at [20]).
43.The Respondent dismissed me with intent to coerce me to leave the teaching service and prevent me receiving benefits and entitlements. By doing so, the Respondent contravened subsection 343(1)(a) of the FW Act.
Did the Respondent take other actions in contravention of subsection 343(1)(a) of the FW Act?
44.The evidence indicates that the Respondent directed me to attend a counselling meeting on 29 February 2016. I did not attend the meeting because I was upset, fearful and anxious (see Affidavit Yul at [61], Affidavit Yu2 at [50]). My conduct was the exercise of a workplace responsibility to take reasonable care of my own health and safety. Then Mr Beecher coerced me to attend the counselling meeting by threatening me with disciplinary action (see Affidavit Yul at [62], p.72). By doing so, the Respondent contravened subsection 343(1)(a) of the FW Act.
45.On 9 May 2016 another disciplinary warning was issued by Ms Crook, to coerce me to sign the support plan and to participate in the process. She also coerced me to choose between compliance with support process or resignation (see Affidavit Yul at pp.96 -101). The actions were taken with the intent to coerce me to leave the teaching service and prevent me receiving entitlements under the Enterprise Agreement. By doing so, the Respondent contravened subsection 343(1)(a) of the FW Act.
Did the Respondent take action in contravention of subsection 343(1)(b) of the FW Act?
46. Subsection 343(1)(b) of FW Act states:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(b) exercise, or propose to exercise, a workplace right in a particular way.
47.Under clauses F24 and F25 of the Enterprise Agreement, employees are entitled to apply for Long Service Leave after seven years eligible service, and to apply for leave without pay for a variety of reasons.
48.On 25 March 2016, Ms Harman wrote to me advising that 'Any applications you make for long service leave or leave without pay will not be approved unless it is for a medical or caring reason and is accompanied by a medical certificate.' At that time I had a credit of 5 months and 17 days of Long Service Leave. Also at that time I had no teaching duties. (see Affidavit Yu3 at [3] & [4]). By so doing, the Respondent contravened s343(1)(b) of the FW Act.
49.The Respondent's actions outlined at [44],[45] and [48] above not only negated my choice, but also are unlawful because the Respondent had no power to make such decision or do the act under workplace law or the Enterprise Agreement.
Did the Respondent contravene subsection 117(2) of the FW Act and thereby contravened subsection 44(1) of the FW Act?
50.Pursuant to subsection 117(2) of the FW Act (a provision of National Employment Standards), the Respondent must not terminate my employment unless they have provided me with five weeks notice of termination of my employment or have made a payment in lieu of notice.
51.The evidence indicates, that the Respondent terminated my employment on 17 August 2016, neither providing me with 5 weeks notice nor making a payment in lieu of notice. By so doing, the Respondent contravened a provision of the National Employment Standards and thereby contravened subsection 44 (1) of the FW Act.
Did the Respondent contravene subsection 90(2) of the FW Act and thereby contravened subsection 44(1) of the FW Act?
52.Pursuant to subsection 90(2) of the FW Act (a provisions of the National Employment Standards), the Respondent must pay the employee accrued annual leave upon termination.
53.The evidence indicates that on 17 August 2016, the Respondent did not pay me the accrued annual leave. By so doing, the Respondent contravened a provision of the National Employment Standards and thereby contravened subsection 44(1) of the FW Act.
Did the Respondent contravene clause F25.4 of the Enterprise Agreement?
54.Pursuant to clause F25.4 of the Enterprise Agreement, employees will receive payment on separation of any pro rata Long Service Leave entitlements after seven years eligible service.
55.The evidence indicates that on 17 August 2016, when the Respondent terminated my employment, they did not provide me with accrued Long Service Leave payment. By so doing, the Respondent contravened a term of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
Did the Respondent contravene clause U10.5 of the Enterprise Agreement?
56.Pursuant to clause U10.5 of the Enterprise Agreement, the Respondent must pay the accrued annual leave loading not yet paid and leave loading on pro rata annual leave entitlement due on separation.
57.The evidence indicates that on 17 August 2016, when my employment ceased, the Respondent did not pay me the annual leave loading. In doing so, the Respondent contravened a term of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
58.My entitlements were not paid until 3 November 2016 (see Affidavit Yul at [128][129])
Did the Respondent contravene clause A2.2 of the Enterprise Agreement?
59.Under clause A2.2 of the Enterprise Agreement, the Respondent agreed to the use of temporary employees only where there is no officer available with the expertise, skills or qualification required for the duties to be performed.
60.The following evidence indicates that the Respondent failed to comply with clause A2.2 of the Enterprise Agreement:
a.In December 2013, the Respondent engaged a temporary employee to take over my teaching duties (see Affidavit Yul at [22], Affidavit Yu2 at [2]-[3]).
b.From 2014 to 2016 the Respondent engaged a number of temporary employees to teach Mandarin instead of using me (see Affidavit Yu2 at [6], Affidavit Beecher at [7], Affidavit Sheaves at [16],[24]&[30]).
Did the Respondent contravene clause R2.9 of the Enterprise Agreement?
61. Clause R2.9 of the Enterprise Agreement states:
The head of service has the right and obligation ta place permanent teachers in suitable positions, as required. This requirement takes precedence over any other method of filling vacancies.
62. The evidence indicates that in 2014, 2015 and 2016 the Respondent failed to comply with its legal obligations by not placing me in a suitable position and by filling vacancies using other methods (see Affidavit Yul at [25], Affidavit Yu2 at [3]-[9], Affidavit Sheaves at [16]&[30] ).Thus, by failing to comply with clause R2.9 of the Enterprise Agreement, the Respondent contravened section 50 of the FW Act.
Did the Respondent contravene clause R3.10 of the Enterprise Agreement?
63.Under clause R3.10 of the Enterprise Agreement, only vacancies unable to be filled through transfer or central placement will go to open advertisement.
64.The evidence indicates that on 1 December 2015, the Respondent advertised a Mandarin position on the Jobs ACT website when the vacancy was able to be filled- by me -through transfer or central placement (see Affidavit Yu 2 at [8]&[9], Affidavit Beecher at [7]). Thus, by failing to comply with clause R3.10 of the Enterprise Agreement, the Respondent contravened section 50 of the FW Act.
Did the Respondent contravene clause R4.l of the Enterprise Agreement?
65. Clause R4.l of the Enterprise Agreement states:
Classroom teacher vacancies will be filled in accordance with process agreed between the Directorate and AEU and detailed in the Procedures for filling classroom teacher vacancies referenced at clause M2 of this Agreement.
66.The evidence indicates that in 2014, 2015 and 2016, the Respondent failed to comply with the Procedures for Filling Classroom Teacher Vacancies in respect of my placement, that is, the system placement procedures were not observed at all in my case (see Affidavit Yu3 at [Sb]). Thus, by failing to comply with clause R4.1 of the Enterprise Agreement, the Respondent contravened section 50 of the FW Act.
Did the Respondent contravene clause A2.1O of the Enterprise Agreement?
67.Pursuant to clause A2.10 of the Enterprise Agreement, any performance management schemes in the ACTPS will not be used for disciplinary purposes.
68.The evidence indicates that in 2016, the Respondent used performance management schemes, namely the Professional Pathways Plan, as a first step for disciplinary action, that is, the Respondent used the Professional Pathways Plan to set up for the Pathways to Improvement, a performance process that could easily lead to dismissal (see Affidavit Yu 1 at [49]&[59], Affidavit Yu2 at [21]-[23],[27]&[28]; Affidavit Harman at [10]&[11]; Affidavit Whitton at [10]). Ms Crook's letter dated 9 May 2016 also demonstrated this purpose: "If progress is not made against the goals in this Plan by Friday 10 June then you will transition to Pathways to Improvement and potentially to underperformance action" (see Affidavit Yul at p.99).
69.Thus, the Respondent, by using performance management schemes for disciplinary purposes, contravened clause A2.10 of the Enterprise Agreement, and thereby contravened section 50 of the FW Act.
Did the Respondent contravene clause Gl.1 of the Enterprise Agreement?
70.Under clause Gl.1 of the Enterprise Agreement, there should be effective consultation and employee participation in decisions that affect an employee's employment.
71.The evidence indicates that on numerous occasions, the Respondent failed to comply with the above legal obligation and did not consult with me about decisions that affect my employment. Examples:
a.The Respondent did not consult with me when they removed me from Hawker College in 2013.
b.The Respondent did not consult with me when they placed me at Mawson Primary in 2014.
c.The Respondent did not consult with me about learning and assessment at Telopea Park School in 2015.
d.The Respondent did not consult with me when transferred me to CHS in 2016.
72.Thus the Respondent, by failing to consult with me in decisions that affected my employment, contravened a term of the Enterprise Agreement, and thereby contravened section 50 of the FW Act.
Did the Respondent contravene clause Hl.4 of the Enterprise Agreement?
73. Clause Hl.4 of the Enterprise Agreement states:
These procedures for managing workplace behaviours and values must be applied in accordance with the principles of natural justice and procedural fairness, and in a manner that promotes the values and general principles of the PSM Act 1994 set out in section 9 of the PSM Act 1994.
74.The evidence indicates that Mr Whitton and Ms Harman failed to exercise reasonable care and skill, and failed to act impartially as required in s9 of PSM Act in respect of my employment in 2016. For example, they failed to take relevant considerations into account such as whether the management had the authority under the Enterprise Agreement to impose upon me a support process and whether the management complied with its legal obligations in relation to my teaching position. They also failed to give genuine consideration to the issues and grievances stated in my written responses (see Affidavit Yu 1 at pp.125, 129-133, 149-150); Annexure LH21 of Affidavit Harman; Annexure DW5 and DW7 of Affidavit Whitton). Thus, by failing to comply with clause Hl.4 of the Enterprise Agreement, the Respondent contravened section 50 of the FW Act.
Did the Respondent contravene clause H2.2(b) of the Enterprise Agreement?
75.Pursuant to clauses H2.2(b) of the Enterprise Agreement, the Respondent may conduct counselling in cases where an allegation of inappropriate behaviour is made and the manager/supervisor has made such a determination after following the preliminary assessment process.
76.In 2016 without undertaking any preliminary assessment process, the Respondent organised six counselling meetings to demand me to sign the Plan (Affidavit Yul at [51]-[56], [58], [62], [68] & [92]). By so doing, the Respondent contravened a term of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
Did the Respondent contravene clause Hl0.1 of the Enterprise Agreement?
77.Pursuant to clause Hl0.1 of the Enterprise Agreement, written warning and admonishment, demotion, reassinment or transfer may be imposed upon an employee where the Respondent, following an investigation, determines that misconduct has occurred, and considers disciplinary action is appropriate.
(c)78. The evidence indicates that on 9 May 2016 Ms Crook issued me written warning and admonishment without meeting the established legal requirements. By so doing, the Respondent contravened a term of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
79.The evidence indicates that from December 2013 to 2016, the Respondent demoted, reassigned, and transferred me without meeting the established legal requirements. By so doing, the Respondent contravened a term of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
Did the Respondent contravene clauses H7.1 of the Enterprise Agreement?
80.Pursuant clauses H7.1 of the Enterprise Agreement, the head of service will commence the investigation process - if, after receiving a recommendation from CHS management under clause H2.2(e), the head of service is of the opinion that the alleged misconduct cannot be resolved without recourse to investigation.
81.No evidence indicates that CHS management has undertaken the preliminary assessment process and has made recommendation to the head of service. It appears that Mr Whitton made the decision to commence the disciplinary investigation process based on his own perception (Affidavit Whitton at [24]). By so doing, the Respondent contravened clause H7.1 of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
82.Furthermore, the Respondent's attempt to use Mr Beecher's observation statement to satisfy the above legal requirement, simply reveals the unjust and harsh nature of this dismissal process. In the Oxford on line dictionary, 'assessment' means the action of assessing someone or something, and 'process' means a series of actions or steps taken in order to achieve a particular end. In the Enterprise Agreement, the preliminary assessment process is the first step in a behaviour management process that may ultimately lead to disciplinary action. It is a formal process and carries potentially serious consequences for the teacher concerned. Therefore it is reasonable to expect that the process should be properly conducted and recorded. To date, no evidence indicates that such an assessment process has actually occurred.
Did the Respondent contravene clauses U7 .6 of the Enterprise Agreement?
83.Pursuant clause U7.6 of the Enterprise Agreement, the Respondent may stand down an employee where particular circumstances related to section H justify it.
84.The evidence indicates that on 9 June 2016, Ms Harman stood me down where my circumstances did not relate to section H nor could section H justify it. Thus, by so doing, the Respondent contravened clause U7.6 of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
Did the Respondent contravene clause R9.2 of the Enterprise Agreement?
85.Clause R9.2 of the Enterprise Agreement requires that principals/managers and supervisors ensure that the Professional Pathways process is conducted in a professional, objective and fair manner (see Affidavit Harman p.209).
86.The evidence indicates that at CHS in 2016, the Professional Pathways process was not conducted in a professional, objective and fair manner, that is, the decisions and actions of the management in respect of my Professional Pathways process were inconsistent with clause R9 of the Enterprise Agreement and the adopted guidelines or practice under the Agreement, such as CHS Professional Pathways Instructions. For example, the Respondent initiated a 'support plan' to replace my Professional Pathways Plan and pressured me to sign it; I was excluded from the standard staff Professional Pathways process (see Affidavit Yul at [41], [42],[65], [76],[77], [116]&[130]; Affidavit Yu2 at [19]&[20]).
87.Thus, by failing to ensure the process was conducted in a professional, objective and fair manner, the Respondent contravened a term of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
Did the Respondent contravene clauses A2.16 of the Enterprise Agreement?
88.Clause A2.16 of the Enterprise Agreement states:
The ACTPS is committed to promoting, achieving and maintaining the highest levels of health and safety of all employees.
89.The evidence indicates that on numerous occasions the delegates of the Respondent failed to meet its obligations and treated me unlawfully. As a result, I frequently experienced humiliation, despair, mental distress, being bullied and harassed by the senior staff members (Affidavit Yul, Affidavit Yu2 and Affidavit Yu3).
Did the Respondent contravene clause A2.17 of the Enterprise Agreement?
90.Clause A2.17 of the Enterprise Agreement states:
The ACTPS will take all reasonable steps and precautions to provide a healthy, safe and secure workplace for the employee. The ACTPS and all employees will act in a manner that is consistent with the Work Health and Safety Act 2011.
91.The evidence indicates that the Respondent not only failed to take reasonable steps and precautions to provide a healthy, safety and secure workplace for me, but also took adverse actions against me for taking reasonable care of my own health and safety (see [29]-[36] above and [94(a)-94(e)] below).
Did the Respondent contravene clause A2.18 of the Enterprise Agreement?
92.Clause A2.18 of the Enterprise Agreement states:
Bullying and harassment and discrimination of any kind will not be tolerated in ACTPS workplace ...
a.If the head of service is made aware of instances, or reported instances, of bullying and harassment or discrimination, the head of service will investigate the concerns as soon as possible in accordance with the Workplace Values and Behaviours provisions in Section Hof this Agreement;
b.If the head of service independently considers that inappropriate behaviour may be occurring, then the head of service will respond, as soon as possible, in a manner commensurate with the seriousness of this issue.
93.Firstly, it is reasonable to expect the Respondent, as a government agency, with all its collegiate competence and wisdom, to independently consider that inappropriate behaviour may be occurring, and they failed to do so.
94.Secondly, on numerous occasions the head of service was made aware of the instances of bullying, harassment and discrimination, but they failed to investigate the concerns. The evidence includes but is not limited to the following:
a. The Respondent was aware that I was deliberately not offered a teaching position after they had removed me from Hawker College, even though there was a teaching position available.
b.The Respondent was aware that I was frequently unfit for work and had provided medical certificates (see Affidavit Yu 1 at [25],[47],[55],[66],[67],[91], [109]).
c.I disputed and made complaints about the 'support process' and my unfair treatment to the senior management on 8 February 2016, 12 February 2016, 29 February 2016, 22 March 2016 and 27 May 2016 (see Affidavit Yul at[46],[51][55], [62], [63], [98]&[99]).
d.I was visibly upset during my time at CHS. The delegates of the Respondent were well aware of my state of health. For example, in her Affidavit at [35], Ms Sheaves noted: "I remember the Applicant crying. I remember her saying 'this is not support'". In a statement to Ms Harman, Mr Beecher noted that I was upset during and after the meeting on 29 February 2016: 'Jing was upset....she also said that in meetings she ….felt intimidate ... she was obviously so upset....' (Affidavit Harman p.251).
e.My letter to the Respondent dated 3 June 2016, 15 June 2016 and 3 August 2016 stated the bullying, harassment and discrimination behaviours of the management and my unfair treatment.
f.My application to the Fair Work Commission on 6 September 2016 stated the unlawful decisions and actions of the management and my unfair treatment.
g.My application to the Federal Circuit Court on 18 November stated the unlawful decisions and actions of the management and my unfair treatment.
h.My amended application to the Federal Circuit Court dated 10 April 2017 stated the unlawful decisions and actions of the management and my unfair treatment.
i.My affidavit dated 7 July 2017 and 20 September 2017 described bullying, harassing and discrimination behaviours of the senior staff towards me.
95.Thirdly, the Respondent's Response dated 10 March 2017, Amended Response dated 17 April 2017, Affidavits from the Respondent dated 31 July 2017 and 7 September 2017, and its Submission dated 22 September 2017 demonstrated that the Respondent not only failed to investigate the unlawful decisions and actions of the delegates in respect of my employment, but also supported those behaviours.
96.Thus, the Respondent by failing to meet its obligations under clause A2.18 of the Enterprise Agreement and by tolerating and supporting bullying and harassing or discrimination behaviours, contravened a term of the Enterprise Agreement and thereby contravened section 50 of the FW Act.
Did the Respondent contravene clause Hl.2 of the Enterprise Agreement?
97.Clause Hl.2 of the Enterprise Agreement states:
Managers/supervisors and employees have a common interest in ensuring that workplace behaviours are consistent with, and apply the values and general principles set out in section 9 of the PSM Act 1994 and ACT Public Service Code of Conduct and Signature Behaviours. This involves the development of an ethical and safe workplace in which managers, supervisors and employees act responsibly and to be accountable for their actions and decisions.
98.The evidence in this submission indicates that the Respondent and its delegates, on numerous occasions persistently engaged in unlawful decisions and actions and failed to comply with clause Hl.2 of the Enterprise Agreement.
99.To date, while the Respondent was made aware of the misconduct of the delegates and the relevant legal provisions, the Respondent denied all allegations and liabilities. The Respondent insist that their decisions and actions in respect of my employment are lawful and reasonable and further claims that "it was the Applicant who refused to act responsibly or to be accountable for her actions and decisions." This is clearly evidenced in the Response to Amended Application dated 10 April 2017, Affidavits from the Respondent dated 31 July 2017 and 7 September 2017, and Respondent's submission dated 22 September 2017.
100.The conduct of ACT Education Directorate, as a government agency and throughout this matter, has been a persistence of deliberate wrongdoings. There is no indication to this day that the Respondent has any remorse for its contraventions of workplace law and no concerns whatsoever for the damaging effect they have had on me.
ANNEXURE B
Yu v ACT Education Directorate CAG 86/2016
Aide-memoire: outline of “new issues”:
not raised at trial but referred to in documents attached to Applicant’s AffidavitsIssue 1 – Respondent decision-makers & investigators
1.As a matter of procedural fairness to both parties, and particularly having regard to the Court’s responsibility to a self-represented litigant, I note and seek to explain the following matters. They were not formally raised during the hearing, or in the Amended Application (or Response). However, in preparing the judgment and checking documents, including in particular annexures to the Applicant’s Affidavits, a number of issues seemed to be apparent that require the Court to raise them with the parties and to give them an opportunity to comment. This note is being made available to the parties. None of the issues should be taken to be any indication of the Court’s view about them, or anything else raised in the course of the proceeding.
2.I note further the High Court’s comments in Neill v Nott (1994) 121 ALR 148 at p.150: “A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.” See also the detailed discussion by the Full Federal Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479 and the discussion at [51] – [57] regarding the Court’s duties to a self-represented litigant, which includes “ensuring the litigant has not, because of a lack of legal skill, failed to claim rights or put forward arguments.”
3.I made a ruling at the commencement of the hearing in 2018 that the 2008 claims and resolution of them were not of relevance to the current proceeding. I stand by that ruling in so far as it relates to the claims; however, in terms of the decision-making and the decision-makers, it may be that those things are or remain potentially relevant.
4.In 2008, Mr Whitton and Ms Harman were decision-makers and investigators into Ms Yu’s conduct at her school. In addition to attending meetings with her (and Ms Harman) in 2008, Mr Whitton wrote to Ms Yu in April 2008 to caution her about her conduct and the potentially dire consequences that might flow from it.
5.The actions taken against Ms Yu in 2008 were overturned by the AAT in 2010. The AAT determined that the actions taken against her and her consequent injury (using the AAT’s words) “was not the result of reasonable administrative action undertaken in a reasonable manner.”
6.In 2016, Mr Whitton was the decision-maker who terminated Ms Yu’s employment. Ms Harman was the investigator, appointed by Mr Whitton, into Ms Yu’s conduct at Belconnen High School. In two paragraphs, Mr Whitton said that the matters in 2008 were not relevant to the matters involving Ms Yu in 2016 and that he had no recollection of them. Ms Harman deposed that she had reminded him of them.
7.It may be that, on the documents filed, an “unpleaded” claim of apprehended bias could be made out because of the apparent nexus between the investigators and decision-makers in 2008 who acted in similar capacities in 2016.
8.A case that deals with administrative decision-making and principles regarding claims for possible apprehended bias is Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438. That case speaks about the significance of how central, or peripheral, were the roles of those involved in the potentially impugned decision-making.
Issue 2: Applicant’s health
9.Ms Yu annexed to her Affidavits a series of medical certificates, particularly through the months of February, March and May 2016. Unfortunately, they simply state Ms Yu to be in a state of ill-health for a certain period of time. They do not elaborate on the reason for her ill-health, nor do they specify what she needed to do to aid her ill-health, e.g. not attend meetings with management of the school or with representatives of the Respondent Directorate.
10.In the course of a longer discussion with Counsel for the Respondent, there was the following exchange:
HIS HONOUR: No, no. I wasn’t saying anything of those things. I was just simply suggesting, in the light of your questions to Ms Yu about what she had or hadn’t said about her state of her wellbeing, that just simply linking those dots or those facts between obvious distress, meetings, leave, medical certificate – that they’re part of a package. That’s all. Whatever consequence flowed from it or flows from it now: that’s separate. I’m just simply factually saying that it seems to me, that those things are all interrelated without necessarily having a dissertation on – “Well, why are you distressed again?” A, B and C, whatever it is.
MS BINDON: Certainly. The only further comment I would make, your Honour, is – if I could put it another way, which is to say – had Ms Yu said “I had doctor’s advice that undergoing meetings with management is perilous to my health”, then, potentially, the directorate’s approach to her is completely different.
11.In the light of the AAT’s decision in 2010, it might be that the procedures adopted by the Directorate in relation to Ms Yu, in the light of her ongoing distress, meetings, leave, and medical certificates, in 2016 were again, and similarly, “unreasonable” – using the definition of “unreasonable” adopted by the AAT in 2010.
Issue 3: ADR & “Buddies”?
12.Related to Issue 2, it is unclear how, when and by whom (if at all), alternative dispute resolution (including counselling) was attempted or otherwise pursued (or proposed), as opposed to [apparently] proceeding only in accordance with the Enterprise Agreement processes.
13.Also partly related to counselling/reasonableness of procedures, Annexure 40 to Ms Yu’s 5th July 2017 Affidavit (par.130) provides copies of emails sent to teachers at Belconnen High School in early March 2016 from Ms Stewart (a witness in the current proceeding). These emails only came to light, as deposed to by Ms Yu, after her termination via FOI processes which she pursued. On their face, Ms Yu was excluded from these emails, which urged teachers at the school to find and to list their “buddies” on their class Observation Sheets. It would seem that Ms Yu was not offered to seek out a “buddy” for support. If this was the case, the exclusion from the email chain, and the denial of obtaining a “buddy”, could result in these procedures not being reasonable in a way similar to the AAT found in 2010.
Issue 4: process and length of Applicant’s employment
14.In his trial Affidavit, (par.3) Mr Whitton referred to and implicitly relied upon his “over 40 years of experience in Human Resources” for ACT Education. Apart from the imbroglio in 2008, which was resolved in her favour in 2010 by the AAT, Ms Yu had essentially an unblemished teaching record. However, it would seem that her long record of perhaps two decades or so teaching, was not (apparently) taken into account in the processes undertaken by the school and or by the Directorate in 2016, and equally so in the decision to terminate her employment.
15.If it be the case that Mr Whitton did seek to rely – directly or indirectly – on his extensive experience (or even if he did not), what if anything was relevantly taken of Ms Yu’s extensive, largely unblemished years of teaching?
Issue 5: if any of the above matters are established, what procedural course is appropriate?
16.To repeat, the procedural course agreed by the parties based upon (i) evidence given at trial by the Applicant, (ii) reliance upon Affidavits filed, and (iii) written submissions, while economical, makes it very difficult for the Court to make findings that otherwise would require the cross examination of witnesses. However, findings may be able to be made based solely upon records or documents (e.g. letters, minutes of meetings, emails), which may be sufficient and speak for themselves, so to speak.
17.However, for the purposes of discussion, if any of the matters noted here were relevantly established, what is the procedural course open to the Court? For example, the Court might find that (a) no liability is established, or (b) limited liability of the Respondent is established (on the Grounds set out in the Amended Application), or (c) some liability is established against the Respondent on one or more of the “non-pleaded” matters set out in Ms Yu’s Affidavit material.
18.Further, if any liability is established, what options might there be to resolve the matter finally regarding any compensation or penalty? For example, if liability is established regarding any of the claims under the FW Act, the process of determining penalty is well known under that Act and the large number of cases that deal with such matters. However, if liability is established but not under the FW Act, usually some form of compensation might have to be determined. It might be appropriate and more expeditious, in the circumstances, that any penalty or compensation be determined by reference to the cases usually cited in penalty cases under the FW Act. A short list of those cases can be provided to the Applicant if required for her consideration.
19.An alternative course regarding any “compensation”, if the matter gets to that stage, is the Court may choose to exercise any such discretion under what might be described as an ex gratia payment and the principles that usually apply to such circumstances. In Commonwealth matters, such things are considered under the Financial Management and Accountability Act 1997 (Cth), s.33. Cases in that area usually talk about a “moral obligation” to make such a payment.
20.Finally, as mentioned during the hearing on 10th August 2021, the Applicant provided a document during the hearing that set out the range of penalties she sought. By way of observation only, respectfully, and understandably because she is a self-represented litigant who feels immensely aggrieved by her treatment, as an observation only, all of the penalties are at the very highest end of any penalty range. However, as explained to her, the Respondent is not, by any measure, a recalcitrant and regularly defaulting litigant, which might, therefore, attract high penalties. For many reasons, not least by reference to the usual principles that apply to the determination of penalty under the FW Act, the penalty range outlined by the Applicant is unrealistic and very significantly beyond anything that any Court would likely consider to be within the proper and appropriate range of penalties, assuming they were established and there were no relevant mitigating factors.
3
5
1