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[2026] NSWIRComm 1102
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-10-26
Commissioner McRobert
Original judgment source is linked above.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Acunzo v Secretary of the NSW Department of Education [2026] NSWIRComm 1102
Hearing dates: 1,2 and 3 September 2026
Date of orders: 26 October 2026
Decision date: 26 October 2026
Jurisdiction: Industrial Relations Commission
Before: Commissioner McRobert
Decision: 1 The proceedings are dismissed.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW- Victimisation – Protected complaints and inquiries – Detriments arising from recruitment and appeal processes – Causation – Whether protected conduct formed a substantial and operative reason for the impugned decisions – Reverse onus under s 213(5) – Presumption rebutted – Application dismissed.
Legislation Cited: Government Sector Employment Act 2013 (NSW)
Industrial Relations Act 1996 (NSW) ss 162, 170, 210, 213
Industrial Relations Commission Rules 2022
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Briginshaw v Briginshaw (1938) 60 CLR 336
CFMEU v Anglo Coal (Dawson Services Pty Ltd) (2015) 238 FCR 273
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Grant v Commissioner of Police (No 2) [2025] NSWIRComm 1060
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001
Tattsbet Ltd v Morrow (2015) 233 FCR 46
Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 146
Wong v National Australia Bank Ltd (2022) 318 IR 148
Category: Principal judgment
Parties: Margaret Acunzo (Applicant)
Secretary of the NSW Department of Education (Respondent)
Representation: Counsel:
Willink, P (Respondent)
Solicitors:
Irwin, H Sparke Helmore Lawyers (Respondent)
Other
D Acunzo (Applicant)
File Number(s): 2025/00431229
Publication restriction: NIL
This is an application by Margaret Acunzo (the applicant) pursuant to s 213 of the Industrial Relations Act 1996 (NSW) (IR Act) alleging victimisation contrary to s 210 of that Act arising from a recruitment process conducted by the Respondent in 2025.
The applicant remains employed by the Respondent in her substantive position as a classroom teacher. Prior to the events giving rise to these proceedings, she had for several years performed non-school-based temporary roles. The Department permits teachers to undertake temporary non-school-based positions for fixed terms, following which they must either successfully reapply for the position or return to their substantive school-based role.
The applicant commenced employment with the respondent’s Assisted School Travel Program (ASTP) in an Education Services Advisor SEO1 position in or about 2020. In 2022, she was appointed to the position of Education Services Advisor (SEO2) (the SEO2 Position). From October 2022, she occupied that position on a temporary three-year basis and, from time to time, performed higher duties as an Education Services Coordinator (PEO).
In 2025, prior to the expiration of her temporary appointment, the applicant unsuccessfully applied for both the PEO position occupied by her supervisor, Ms Margaret McEwan, and the SEO2 Position within ASTP. The SEO2 Position was advertised on a fixed term basis for a period of three years and the recruitment process for that position forms the subject matter of these proceedings. The applicant subsequently lodged an internal appeal in relation to the SEO2 recruitment process, which was dismissed on 27 October 2025.
The applicant was unrepresented throughout the proceedings. She appeared on her own behalf during interlocutory proceedings referred to below. At the substantive hearing, leave was granted for her daughter, Danielle Acunzo, to appear on her behalf. Neither Ms Acunzo nor Danielle Acunzo is a legal practitioner or professional industrial representative.
Given the applicant’s self-represented status and the complexity of the issues arising in the proceedings, the Commission afforded the parties a reasonable opportunity to clarify and narrow the issues in dispute and the statutory basis of the claim.
The proceedings commenced on 7 November 2025 by an application filed under s 213 of the IR Act. The application named both the Secretary of the NSW Department of Education and Ms Margaret McEwan as respondents.
On 5 February 2026, the respondent filed a Notice of Motion seeking summary dismissal of parts of the proceedings, including dismissal of the claim against Ms McEwan.
By interlocutory decision delivered on 22 April 2026, leave to amend was granted in part and refused in part, and the proceedings against Ms McEwan were dismissed.
On 6 May 2026, the applicant filed a further amended application confined to the matters for which leave had been granted. The respondent subsequently filed an amended defence.
Following the filing of the amended application, the respondent sought further and better particulars, which were subsequently provided by the applicant in May 2026.
The parties later filed a Statement of Agreed and Disputed Facts and Issues identifying the matters remaining in dispute in the proceedings. Not all disputed factual matters require determination. The findings that follow are confined to those matters necessary for the determination of the issues arising for decision.
During the proceedings the applicant’s case underwent considerable refinement. Several matters identified in the pleadings, particulars, affidavits and written submissions were ultimately relied upon as contextual evidence relevant to knowledge, motive and causation rather than as separate acts of victimisation or standalone detriments.
On the first day of the hearing, clarification was required concerning the complaints and inquiries relied upon by the applicant, the categories of protected conduct said to arise from those matters and the detriments said to constitute victimisation.
By the conclusion of the hearing, the applicant’s case had narrowed materially from that reflected in the written material filed earlier in the proceedings. These reasons therefore proceed by reference to the issues ultimately identified and pursued at hearing. The parties’ oral closing submissions were directed to those issues rather than the broader matters canvassed in their earlier material.
Further, the applicant relied upon aspects of her reply affidavit concerning complaints and inquiries predating the recruitment process. The respondent objected to portions of that evidence on the basis it was not properly evidence in reply and raised matters not previously particularised. The Commission admitted the evidence, subject to questions of weight and procedural fairness.
In those circumstances, the respondent sought and obtained leave to call Ms Carly Farrow as an additional witness in response to matters raised in the applicant’s reply evidence. The respondent also submitted that her evidence addressed matters which might otherwise give rise to a issue. Ms Farrow subsequently gave evidence by audio visual link on the last day of the hearing.
The applicant relied upon the following:
her affidavit affirmed on 8 July 2026;
her affidavit in reply affirmed on 21 August 2026;
the affidavit of Ms Kim Kelly sworn on 13 June 2026.
outline of submissions dated 8 July 2026;
submissions in reply filed on 24 August 2026; and
oral submissions made at the hearing.
The applicant’s case, summarised broadly, was as follows.
Prior to the hearing, the applicant relied upon several categories of protected conduct under s 210(1) of the IR Act. Those included:
(a) making a complaint or inquiry about her employment within the meaning of s 210(1)(l); (b) being entitled to, or claiming, a benefit under the Workers Compensation Act 1987 (NSW) or the Workplace Injury Management and Workers Compensation Act 1998 (NSW) within the meaning of s 210(1)(j); (c) exercising or proposing to exercise functions conferred under the IR Act within the meaning of s 210(1)(f); and (d) being entitled to, or claiming, a benefit under industrial relations legislation or an industrial instrument within the meaning of s 210(1)(i).
During the first day of the hearing, the applicant abandoned reliance upon ss 210(1)(f) and (i).
The applicant relied upon what she described as an “antecedent history” of complaints and inquiries concerning workplace conduct, management practices, procedural fairness, recruitment integrity, conflicts of interest, employee performance, work allocation and the use of public resources. She contended that those complaints and inquiries had been raised over an extended period before the SEO2 Position recruitment process, were known to Ms McEwan and other managers within ASTP, and were relevant to issues of knowledge, motive and causation.
The applicant disputed the respondent’s contention that her complaints commenced only after she was unsuccessful in the SEO2 Position recruitment process. She contended that she had made complaints and inquiries, both verbally and in writing, well before the recruitment process and that her reluctance to formalise some concerns did not mean they had not been made.
At the commencement of the hearing, the applicant confirmed that her case proceeded primarily by reference to complaints and inquiries said to constitute protected conduct within the meaning of s 210(1)(l) of the IR Act. Although the articulation of the statutory basis of the claim evolved during the proceedings, the substance of the applicant’s case remained that the complaints and inquiries relied upon constituted protected conduct for the purposes of s 210 of the IR Act. I have determined the matter on that basis.
A central aspect of the applicant’s case was that comments allegedly made by Ms McEwan during a performance and development meeting on 28 July 2025, including that the applicant lacked the skillset for advancement and should seek employment elsewhere, together with Ms McEwan’s subsequent role as convenor of the SEO2 recruitment process, demonstrated that Ms McEwan had formed a pre-existing adverse view of her suitability for advancement and thereby deprived her of a genuine and impartial merit-based assessment.
In support of that contention, the applicant relied upon her prior performance of the SEO2 Position and higher duties in the PEO role, her application for the substantive PEO position, Ms McEwan’s alleged knowledge of that application, the conflict-of-interest declaration, the conduct of the recruitment process, the absence of referee checks, aspects of the recruitment documentation and the circumstances of the internal appeal process.
As I understand it, the complaints relied upon by the applicant were:
(a) the email of 12 September 2024 (Complaint 1); (b) the recruitment-related complaint of 7 March 2025 (Complaint 2); (c) the formal complaint dated 4 September 2025 (Complaint 3); (d) the email to the Secretary dated 24 September 2025 (Complaint 4); and (e) complaints and inquiries concerning workers compensation, leave and return-to-work matters (Complaint 5).
Although the applicant relied upon each of those matters as protected conduct, the relationship between the timing of the complaints and the alleged detriments became a significant issue during the hearing. The applicant's causation case ultimately focused principally upon Complaints 1 and 2.
The applicant’s case concerning detriment also narrowed considerably during the hearing. By the conclusion of the evidence and submissions, she principally relied upon:
(a) non-selection for the substantive Education Services Advisor (SEO2) position; (b) comments allegedly made by Ms McEwan during a performance and development meeting on 28 July 2025; and (c) dismissal of her internal appeal on 27 October 2025.
(a) the witness statement of Mr Rick Seretis dated 11 August 2026; (b) the witness statement of Mr David Gilder dated 11 August 2026; (c) the witness statement of Ms Lyndall Franks dated 11 August 2026; (d) the witness statement of Ms Margaret McEwan dated 12 August 2026; (e) the witness statement of Mr Nicholas Sabato dated 12 August 2026; (f) the oral evidence of Ms Carly Farrow, given pursuant to leave granted during the hearing; (g) the respondent’s exhibit bundle of documents; (h) its Outline of Submissions dated 12 August 2026; and (i) oral submissions made at the hearing.
The respondent denied that the applicant had been subjected to victimisation contrary to s 210 of the IR Act and contended that the evidence did not establish the statutory requirements necessary to sustain the claim.
In its written submissions, the respondent contended that the applicant’s case lacked precision and there was a disparity between the matters identified in the application, particulars, affidavits and submissions. The respondent submitted that the alleged detriments and protected conduct relied upon by the applicant were not always clearly identified and that the claim evolved during the course of the proceedings.
The respondent accepted the applicant had made a formal complaint against Ms McEwan on 4 September 2025 and that it constituted a complaint about her employment within the meaning of s 210(1)(l) of the IR Act. However, it disputed that the applicant had established the remaining categories of protected conduct originally relied upon under ss 210(1)(f), (i) and (j). The respondent further contended that not all matters relied upon by the applicant constituted complaints or inquiries within the meaning of s 210(1)(l). It submitted that many matters forming part of what the applicant referred to as the antecedent history amounted to workplace disagreements, management issues or interpersonal conflict rather than protected complaints or inquiries and were either unrelated to the impugned decisions or incapable of establishing that any relevant decision-maker acted for a prohibited reason.
By the conclusion of the hearing, the respondent’s position was that the applicant principally relied upon three detriments, namely:
(a) non-selection for the SEO2 position; (b) comments allegedly made during the PDP meeting on 28 July 2025; and (c) dismissal of the internal appeal on 27 October 2025.
The respondent denied the SEO2 recruitment process was predetermined. It submitted that the selection panel assessed candidates following interview and unanimously concluded that the successful candidate was the preferred candidate. The respondent relied upon the evidence of the selection panel members that the recruitment outcome was based upon the comparative merits of the candidates, including their interview performance.
The respondent also disputed the applicant’s account of the PDP meeting on 28 July 2025. It submitted that Ms McEwan provided developmental feedback to the applicant and discussed future career opportunities but did not act for any prohibited reason and did not victimise the applicant.
In relation to the internal appeal, the respondent submitted that the appeal panel independently considered the matter and concluded there was no irregularity or impropriety in the recruitment process. It further submitted that several matters relied upon by the applicant, including aspects of her workers compensation claim and elements of the history, were not before the appeal panel. The respondent denied that any complaint or inquiry relied upon by the applicant formed part of the reasoning of the appeal panel.
The respondent further submitted that most of the alleged detriments occurred outside the 21-day period prescribed by s 213(3) of the IR Act, that there was no sufficient basis for an extension of time and that, in any event, any impugned action occurred for legitimate reasons unrelated to the exercise of workplace rights.
Accordingly, the respondent submitted that the application should be dismissed.
Section 210 of the IR Act prohibits an employer from dismissing an employee, injuring an employee in employment, altering an employee’s position to the employee’s prejudice or otherwise subjecting an employee to detriment because of one of the matters identified in that section.
Pursuant to s 213(3) of the IR Act, an application alleging a contravention of s 210 must be made within 21 days after the alleged contravention occurred unless the Commission is satisfied there is sufficient reason to accept a late application pursuant to s 213(4).
The applicant bears the burden of establishing the factual matters said to constitute the relevant protected conduct and the alleged detriment. If those matters are established, s 213(5) provides that it is presumed, unless the contrary is proved, that the protected conduct was a substantial and operative reason for the impugned conduct. In those circumstances, the respondent bears the onus of satisfying the Commission that the protected conduct was not a substantial and operative reason for the conduct relied upon as constituting the detriment.
The parties referred to a number of authorities concerning analogous reverse-onus provisions and “because” tests in industrial and workplace legislation, including Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (Barclay), Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (BHP Coal), Tattsbet Ltd v Morrow (2015) 233 FCR 46, Wong v National Australia Bank Ltd (2022) 318 IR 148, CFMEU v Anglo Coal (Dawson Services Pty Ltd) (2015) 238 FCR 273, Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 146 and Australian Red Cross Society v Queensland Nurses*’* Union of Employees [2019] FCAFC 215; 273 FCR 332. Although those authorities were decided in different statutory contexts, the parties accepted they provide useful guidance concerning causation, proof and the operation of reverse-onus provisions analogous to s 213(5) of the IR Act.
Consistent with those authorities, the statutory presumption does not relieve an applicant from establishing, as an objective fact, the protected circumstance or conduct relied upon, and the conduct said to constitute the alleged detriment. Only once those matters are established does the statutory presumption arise.
The question of causation requires identification of the actual reasons for the impugned conduct. The issue is whether the protected conduct was a substantial and operative reason for the action said to constitute the detriment.
The Commission’s task is to ascertain the reasons which actuated the relevant decision-maker or decision-makers. The focus is upon those reasons, rather than whether the impugned decision was correct, preferable or objectively justified: ; ; *’* [2024] NSWIRComm 1001 at [32]-[45] (); and [2025] NSWIRComm 1060 at [31], [121] ().
The applicant identified several matters capable of criticism. Those matters included aspects of the conflict-of-interest declaration process, the limited information required by the form then in use, Ms McEwan’s participation in the recruitment process notwithstanding her views and the history between her and the applicant, and limitations inherent in the internal appeal process.
I accept some of those criticisms are not without force. In particular, the evidence established that, prior to the SEO2 recruitment process, Ms McEwan had formed adverse views concerning aspects of the applicant’s interpersonal skills and people-management capabilities. In those circumstances, there is some merit in the applicant’s submission that questions may arise as to whether it was appropriate for Ms McEwan to continue as convenor of the panel.
I also accept that the conflict declaration form in use at the relevant time required only limited disclosure and neither identified the relevant individual nor sought meaningful particulars of the circumstances said to give rise to a potential conflict. As a result, it provided only limited material upon which any assessment of a potential conflict could be made. Evidence was also led that the form has since been revised.
Equally, I accept that the internal appeal process was confined by the material placed before the panel and was not a rehearing of the recruitment process. It therefore did not consider all matters traversed in these proceedings.
More broadly, it was apparent from both the evidence and submissions that the applicant feels genuinely aggrieved by the matters giving rise to these proceedings. She contends that concerns raised by her over an extended period were not appropriately recognised or addressed and ultimately influenced the recruitment process and appeal outcome.
The Commission’s task is not to determine whether every decision made during the relevant period represented best practice, nor whether alternative courses may, with the benefit of hindsight, have been preferable. A process may be open to criticism in some respects without establishing victimisation contrary to s 210 of the IR Act. Procedural imperfections, administrative deficiencies, unfairness or errors of judgment do not, of themselves, establish victimisation. The issue remains whether the applicant’s protected complaints and inquiries were a substantial and operative reason for the detriments alleged.
The first issue concerns the protected conduct ultimately relied upon by the applicant. The applicant relied upon Complaints 1 to 5, together with aspects of the broader history between herself and Ms McEwan. The respondent submitted that some of those matters amounted to no more than workplace disagreements, interpersonal issues or management concerns and did not constitute complaints or inquiries within the meaning of s 210(1)(l).
The applicant relied upon several complaints and inquiries. Not all those matters are capable of constituting protected conduct for the purposes of the present claim, and not all preceded the alleged detriments.
The complaints relied upon were*:*
the email of 12 September 2024 concerning the allocation of work associated with Ms Todd (Complaint 1);
the recruitment process concern raised with Mr Sabato in March 2025 (Complaint 2);
the formal complaint lodged on 4 September 2025 (Complaint 3);
the complaint made to the Secretary on 24 September 2025 (Complaint 4); and
matters associated with the applicant’s workers compensation claim (Complaint 5).
The temporal relationship between those complaints and the alleged detriments is important.
Complaint 1 and Complaint 2 preceded the SEO2 recruitment process and are therefore matters capable of having influenced decisions associated with that process.
Complaint 3 post-dated both the interview on 26 August 2025 and the notification of the recruitment outcome on 3 September 2025. The applicant ultimately accepted Complaint 3 could not have formed part of the interview panel’s decision-making process.
Complaint 4 was made on 24 September 2025, after the recruitment outcome had been communicated. The applicant accepted the appeal panel was not provided with that complaint.
Complaint 5 arose after the recruitment process had concluded. The applicant accepted that the interview panel could not have taken the workers compensation claim into account and that the appeal panel did not consider it.
Accordingly, insofar as the applicant alleges the non-selection for the SEO2 Position was the product of victimisation, the complaints capable of bearing upon that issue are principally Complaint 1 and Complaint 2.
The next issue is to identify the detriments ultimately maintained by the applicant at the hearing.
The applicant's pleaded case evolved during the proceedings. Whilst several workplace interactions, disagreements and complaints formed part of the factual context relied upon by the applicant, not all were ultimately advanced as separate detriments for the purposes of s 210.
In substance, the applicant’s case ultimately focused upon:
(a) the decision not to recommend the applicant for appointment to the SEO2 Position; (b) the decision not to place the applicant on the eligibility list arising from that recruitment process; and (c) the dismissal of the applicant’s recruitment appeal on 27 October 2025.
The applicant also relied upon aspects of the PDP discussion conducted on 28 July 2025. The applicant contended that comments made during that meeting reflected adverse views held by Ms McEwan concerning the applicant’s management style, interpersonal skills and suitability for leadership positions. It was not entirely clear whether the applicant advanced the PDP meeting itself as a discrete detriment or relied upon it as evidence bearing upon Ms McEwan’s state of mind and the subsequent recruitment process. Having regard to the manner in which the case was conducted, I am satisfied that the latter characterisation is correct. The PDP discussion was relied upon principally as evidence bearing upon causation, rather than as a stand-alone act of victimisation.
Similarly, the applicant repeatedly contended she was denied a genuine opportunity to be assessed on merit. Properly understood, that contention was not advanced as a separate detriment. Rather, it formed part of the applicant’s broader case that the SEO2 recruitment process was affected by pre-existing views and prior complaints, and her non-selection was therefore not the product of a genuinely merit-based assessment.
Several other matters were raised during the proceedings but were not pressed as independent detriments. These included:
(a) disagreements concerning staff management and people-management practices; (b) the September 2024 meeting with Ms McEwan and Ms Farrow; (c) criticisms expressed by Ms McEwan concerning the applicant’s management style; (d) concerns regarding the adequacy of the conflict-of-interest process; (e) the composition of the recruitment panel; and (f) alleged deficiencies in the disclosure of prior dealings between Ms McEwan and the applicant.
The respondent submitted that several of the detriments relied upon by the applicant occurred outside the period prescribed by s 213(3) of the IR Act.
The applicant submitted that any delay should be excused pursuant to s 213(4). In support of that submission, she relied upon the internal appeal process and contended that the relevant events formed part of a connected factual sequence culminating in the appeal outcome.
It is therefore necessary to determine whether any of the detriments relied upon fall outside the period prescribed by s 213(3) and, if so, whether sufficient reason exists to grant an extension of time pursuant to s 213(4), having regard to the chronology of events, any prejudice to the parties and the apparent merits of the claim.
To the extent the applicant relied upon the SEO2 recruitment outcome and the PDP discussion as independent detriments, those matters occurred outside the period prescribed by s 213(3). The dismissal of the applicant’s appeal on 27 October 2025 was within time.
The limitation period runs from each alleged detriment and not from the culmination of an asserted course of conduct. Earlier events may provide relevant factual context but do not become timely because a later detriment is alleged: Grant.
Nevertheless, the applicant pursued the internal appeal process before commencing these proceedings and relied upon that process as a means of seeking review and possible correction of the recruitment outcome. The relevant events arose from a closely related factual matrix, the principal witnesses remained available, and no substantial forensic prejudice to the respondent was identified.
Having regard to the matters referred to in s 213(4), including the reason for and length of the delay, the applicant’s pursuit of the internal appeal process, the limited prejudice to the respondent and the interests of justice, I am satisfied that sufficient reason exists to permit the applicant to rely upon those earlier detriments.
Accordingly, I grant an extension of time pursuant to s 213(4) to the extent necessary.
The applicant’s allegations ultimately require consideration of the evidence of the applicant and the individuals involved in, or otherwise relevant to, the recruitment and appeal processes, including Ms McEwan, Mr Sabato, Ms Franks, Mr Seretis and Mr Gilder.
The applicant’s case focused particularly upon the role of Ms McEwan and the proposition that her prior dealings with the applicant, together with her awareness of certain complaints made by the applicant, influenced subsequent decisions concerning the SEO2 recruitment process.
The respondent submitted that the relevant decisions were the product of independent assessments undertaken by the various decision-makers and that the evidence did not support a finding that protected conduct materially influenced the recruitment outcome or the appeal process.
In those circumstances, it is necessary to examine the evidence of the relevant decision-makers, the part each played in the decisions complained of and the extent to which any protected conduct may have influenced those decisions.
Ms Acunzo’s evidence was directed both to the complaints and inquiries upon which she relied as protected conduct and to the broader history of her dealings with Ms McEwan. She maintained that concerns she raised regarding work allocation, recruitment integrity, staff performance, workplace management and procedural fairness increasingly became a source of tension between herself and Ms McEwan.
Ms Acunzo further gave evidence that, by the time of the SEO2 Position recruitment process, Ms McEwan had formed adverse views concerning her interpersonal skills, management style and suitability for leadership positions. Her evidence was that those views influenced the recruitment process, including the decision not to contact her referees, and continued to affect the subsequent appeal process.
Ms Franks was an independent panel member drawn from outside ASTP. She had not previously met the applicant and had no prior knowledge of the complaints relied upon by the applicant or of the relationship between the applicant and Ms McEwan. She participated in the shortlisting process, interviews and subsequent panel deliberations. Her evidence was that the successful candidate was the strongest candidate based upon the applications and interviews and that the recommendation was unanimous.
Ms Franks further gave evidence that nothing said or done by either Ms McEwan or Mr Sabato suggested that extraneous matters influenced the panel’s deliberations. She stated that she had no knowledge of the matters now relied upon by the applicant as protected conduct and no knowledge of any prior disagreements between the applicant and Ms McEwan.
Mr Gilder participated as the Department representative on the appeal panel which considered the applicant’s appeal of the SEO2 recruitment process. His evidence was that the appeal panel reviewed the appeal materials, met with Ms McEwan and unanimously concluded that the recruitment process was neither irregular nor improper. He further gave evidence that the appeal panel was satisfied that any conflicts of interest had been appropriately managed and that he did not recall the panel being made aware of, discussing or taking into account complaints made by the applicant about Ms McEwan or the nature of the relationship between them.
I accept that, shortly after the PDP meeting, the applicant recounted aspects of the discussion to Ms Kelly and appeared upset and distressed. Ms Kelly was not present at the meeting and her evidence does not assist in determining the precise words used during that discussion.
I accept that, by the time of the PDP meeting on 28 July 2025, Ms McEwan had formed concerns regarding aspects of the applicant’s interpersonal skills, management approach and suitability for leadership positions. Those concerns pre-dated the SEO2 recruitment process. Whether every statement alleged by the applicant was made during that discussion is not necessary to determine. For present purposes, the significance of the meeting is that it reflected views already held by Ms McEwan concerning the applicant’s suitability for leadership positions.
The applicant’s case was that the relevant complaints and inquiries could not be viewed in isolation. Rather, she submitted that the chronology, the history between herself and Ms McEwan, the recruitment process, the appeal process and the protected conduct relied upon, when considered together, support an inference that the protected conduct was a substantial and operative reason for the decisions of which she complains.
It is not sufficient to establish that a decision-maker was aware of protected complaints or inquiries. Knowledge of protected conduct does not itself establish causation. The question remains whether the protected conduct formed a substantial and operative part of the reasoning process which produced the impugned decision.
The applicant relied heavily upon the proposition that Ms McEwan’s prior dealings with her, together with the complaints she had made, affected the recruitment outcome and the appeal process. The issue is whether those matters, either directly or through their effect upon Ms McEwan’s views of the applicant, formed a substantial and operative reason for the decisions complained of.
Several matters emerged during the course of the evidence which bear directly upon the causation inquiry. The applicant ultimately accepted that Complaint 3 post-dated the recruitment decision and could not have formed part of the interview panel’s decision-making process. She also accepted that Complaint 4 was not before the appeal panel and that the workers compensation claim arose after the recruitment process had concluded. In relation to those matters, she accepted that neither the interview panel nor the appeal panel considered them in making the relevant decisions.
Those concessions significantly narrow the causation inquiry. In practical terms, the principal complaints capable of bearing upon the recruitment process are Complaints 1 and 2. The question is whether those complaints, either directly or through the influence they are said to have had upon Ms McEwan’s views of the applicant, formed a substantial and operative reason for the recruitment outcome, the decision not to place the applicant on an eligibility list and the dismissal of the appeal.
Particular attention must therefore be directed to the reasons of the relevant decision-makers. In circumstances where more than one person participated in the recruitment and appeal processes, it is necessary to consider not only the role played by each participant, but also whether each exercised independent judgment in reaching their conclusions.
The fact that information originated with, or was known by, a particular participant does not establish that the views or motivations of that person infected the ultimate decision. The issue is whether the evidence demonstrates that the relevant decision-makers independently considered the material before them and reached their own conclusions.
Acunzo
Secretary of the NSW Department of Education
(2012) 248 CLR 500
(1938) 60 CLR 336
(2015) 238 FCR 273
(2014) 253 CLR 243
(2015) 233 FCR 46
(2019) 272 FCR 146
(2022) 318 IR 148
Whilst evidence from relevant decision-makers concerning their reasons may be significant and, in an appropriate case, sufficient to rebut the statutory presumption, such evidence is not conclusive. The Commission must consider the whole of the evidence, including the surrounding facts and circumstances and any inferences properly drawn from them. The reasons advanced by a decision-maker must be assessed in the context of the entirety of the evidence: Saraceno at [44]; Grant at [123]-[145].
Where more than one person participates in a decision-making process, attention must be directed to the reasons of those individuals whose participation was sufficiently significant to bear upon the outcome. Where a decision-maker undertakes an independent assessment and reaches an independent conclusion, the focus remains upon that decision-maker’s reasons. Conversely, where a decision-maker merely adopts the views, information or recommendation of another without exercising independent judgment, the motivations of the informing person may assume significance in determining whether the statutory presumption has been rebutted: Saraceno at [49]-[50]; Grant at [123]-[129].
Whether a decision was fair, reasonable, correct or preferable is not the question arising under s 210. Nor does the fact a decision may have involved an error of judgment establish a contravention. The issue is whether the impugned conduct occurred because of the protected conduct relied upon by the applicant.
The parties also referred to the principles discussed in Briginshaw v Briginshaw (1938) 60 CLR 336. Although the applicable standard of proof remains proof on the balance of probabilities, the seriousness of the allegation, the inherent unlikelihood of an occurrence of a given description and the gravity of the consequences flowing from a particular finding are relevant considerations in determining whether the Commission is reasonably satisfied that a fact has been established. Findings should not be made based on conjecture, speculation, inexact proofs or indefinite testimony.
It is therefore necessary to identify which of the matters relied upon by the applicant constituted protected conduct for the purposes of s 210 and which formed part of the broader factual context.
It is therefore necessary to examine the evidence concerning the reasons for the relevant decisions and determine whether, having regard to all the circumstances, the respondent has rebutted the presumption arising under s 213(5).
Of particular significance is the evidence of Ms Franks. She was an independent panel member who had no knowledge of the complaints relied upon by the applicant or of the history of dealings between the applicant and Ms McEwan. The applicant did not require Ms Franks for cross-examination and I accept her evidence.
Ms Franks independently formed the view that the successful candidate was the strongest candidate. Further, there is no evidence that any complaint, workplace disagreement, prior interaction between the applicant and Ms McEwan, or other extraneous matter was raised during the panel's deliberations or formed part of her reasoning process. Her evidence weighs strongly against a conclusion that the recruitment outcome was materially influenced by the protected conduct relied upon by the applicant.
I also accept the evidence of Mr Sabato that prior dealings between Ms McEwan and the applicant did not form part of the panel’s deliberations. Whilst he was aware of the recruitment concern relied upon as Complaint 2, no admission was obtained that the matter consciously or unconsciously influenced his assessment of the applicant. Nor does the evidence establish that the complaint was raised during the panel’s deliberations.
Similarly, whilst Mr Seretis was aware of certain prior disagreements between the applicant and Ms McEwan, he was not a participant in the recruitment decision-making process. His evidence does not support a conclusion that those matters formed part of the reasoning process that produced the recruitment outcome.
Mr Gilder was also not required for cross-examination and I accept his evidence. In particular, I accept his evidence that the appeal panel was not made aware of, did not discuss and did not take into account complaints made by the applicant concerning Ms McEwan or the nature of their working relationship. Whilst the applicant criticised aspects of the appeal process and its limited scope, Mr Gilder’s evidence does not support a conclusion that those matters formed part of the appeal panel’s reasoning process.
Ms Farrow’s evidence provides limited assistance in resolving disputes concerning the precise words used during the September 2024 meeting. Her recollection of the meeting was limited and she was unable to recall many of the specific matters later relied upon by the applicant. Further, she made no contemporaneous notes or record of the meeting.
Whilst some aspects of the recruitment and appeal processes were capable of criticism, including the limited nature of the appeal process and Ms McEwan’s continued participation in the recruitment process notwithstanding her pre-existing concerns regarding aspects of the applicant’s interpersonal skills and management approach, those matters do not themselves establish that the applicant’s protected complaints and inquiries formed a substantial and operative reason for the decisions complained of. Those matters must be assessed in the context of the evidence as a whole. The existence of procedural imperfections, deficiencies in process or errors of judgment is not, without more, sufficient to establish victimisation contrary to s 210.
The evidence establishes that Ms McEwan was aware of Complaints 1 and 2 before the recruitment process commenced. Having regard to the whole of the evidence, I am not satisfied that Complaints 1 and 2 formed a substantial and operative reason for the recruitment outcome, the decision not to place the applicant on the eligibility list or the dismissal of the recruitment appeal.
Whilst some of the relevant decision-makers were aware of matters relied upon as protected conduct, I am not satisfied that those matters materially actuated the decisions complained of.
To the extent that the presumption arising under s 213(5) is engaged, I am satisfied that the respondent has rebutted that presumption.
Accordingly, the applicant has not established a contravention of s 210 and the application is dismissed.