(a) in the case of a list prepared in relation to a base grade or entry level position, for 12 months after the list was created; or
(b) in the case of a list prepared in relation to a position that is not a base grade or entry level position, for six (6) months after the list was created.
107 The Applicant recalled that, in July 2007, she was advised by Mr Coughlan that Mr Dave Kiernan, a Greyhound Racing Steward, had departed on long leave and was to be replaced by Dean Degan, a Harness Racing Steward. Her position on the eligibility list meant that she was a candidate for the position of full-time Harness Racing Steward vacated by Mr Degan. She decided to accept the role, which required her to relocate from Newcastle to Sydney. The Applicant acknowledged that the letter confirming that appointment, dated seven days prior to taking up the position, stated in part that "Should the Greyhound Steward who is on Extended Leave return to the employ of the Authority, this position will cease." Nevertheless, she insisted that she was, at no stage, led to believe that the appointment would cease if that Steward resigned his employment. She insisted that Mr Coughlan assured her at the time the offer was made that the move would be permanent, "You don't need to worry Barbara. Dave's not coming back, we have had his farewell. Once he resigns you will be made permanent". Ms Scott insisted, during cross-examination, that John Coughlan went to great lengths to reassure her, in terms of the appointment being temporary, that a farewell had been held for Dave Kiernan and he would not be returning. Whilst the term "on-going" was not used to describe the position to her, she agreed that in all cases, the position was referred to as a full time "temporary" position. Ms Johnson insisted that the intention of the Respondent was always that the acting temporary position would be strictly temporary in nature. She could not recall ever advising the Applicant that the temporary position would guarantee her permanent position nor was she aware of anyone else doing so. Mr Coughlan denied that he confided in Ms Scott that Mr Kiernan had indicated an intention to formally resign and that he promised Ms Scott that she would be confirmed in his position as a full-time employee. He insisted that at all relevant times, the Applicant's appointment to the temporary position was subject to a temporary status, that Mr Kiernan never indicated to him that he was going to resign and that Mr Kiernan had taken extended leave because he was unwell. He agreed that there was a possibility that Mr Kiernan may not return to his job, but insisted there was nothing determined. He agreed that in the conversation he had with Ms Scott he had referred to a farewell luncheon organised by his stewards panel. Mr Coughlan accepted that the only condition that was placed on the appointment of Ms Scott, given its temporary nature, was the following sentence in the said letter, "Should the greyhound steward who is on extended leave return to the employ of the Authority, this position will cease". He did not recall saying to Ms Scott over the telephone words to the effect, "Once he resigns, you will be made permanent".
108 Ms Scott pointed out that Mr Coughlan had congratulated her on being a "pioneer" as she was the first female horse racing Steward in the State and, in addition, he had repeated his congratulations in the letter of appointment which had concluded with the words, "... I would like to congratulate you on your selection and wish you well in your career with the Authority."
109 At that point in time, the Applicant had very little to do with Mr Coughlan, she had been happy with the way Ms Johnson had handled her complaints regarding Kevin Adams and she had mainly telephone contact with Mr Perry when he called to discuss rosters and inquired about her training. She confirmed that both Ms Johnson and Mr Perry were supportive of her at that time.
110 In correspondence confirming her appointment, the Applicant was advised that the appointment was subject to a 6-month probation period and that should Mr Kieran return to that position, then her employment would cease. The Applicant successfully completed that probationary period. Mr Murphy pointed out that the Applicant was appointed to the full-time position, a feature of which was its ongoing or indefinite nature, terminable only if the greyhound steward she replaced decided to return to work. Ms Scott's clear recollection of the terms of that offer were not tested in cross-examination and while Mr Coughlan could not recall giving that assurance, he could not deny it either. The question needed to be asked, it was submitted, as to why else Mr Coughlan would make reference to the farewell function in his evidence. Mr Coughlan's prediction was correct to the extent that the condition she was told would not eventuate did not indeed eventuate. However, his promise to her that she would be made permanent once Mr Kiernan resigned did not happen.
111 In or around March 2008 the Respondent advertised to fill the vacant full-time position on the Steward Harness Panel. Ms Scott said that she contacted Kay Johnson and sought her opinion as to whether she ought to apply for the position. She considered that it would be quicker to obtain a permanent position that way than waiting for Dave Kiernan, the Greyhound Steward, to resign.
112 On 2 April 2008, just under three weeks prior to the interview, Ms Johnson forwarded a letter to Ms Scott advising of the composition of the selection panel which comprised four members, including Mr Beattie and Ms Johnson. The other two members were Independent persons. Ms Johnson denied that the inclusion of herself and that of Mr Beattie on the selection panel was unsuitable or inappropriate. She pointed out that it was part of her role to participate on selection panels and it was also a standard requirement for the Chair of any Steward Panel within the Authority to be involved in the selection and appointment of Stewards within their Division. She denied that either of them had more influence on the selection that other members of the panel. She pointed out that the Applicant did not contact her either before or after the interview which was held on 21 April 2008 in relation to any concerns over the composition of that selection panel. Ms Scott said that she considered the inclusion of Michael Beattie and Kay Johnson on the Selection Panel was unsuitable and inappropriate in view of the circumstances and particularly since they both exerted more influence in relation to the selection than the other members of the panel. Ms Scott said that she had been disappointed to learn from Kay Johnson, in the presence of Michael Beattie, on 1 May 2008, that she was unsuccessful in her application for that position particularly as she had been at the top of the eligibility list. She pointed out that she had not been advised where she ranked or why she had not been successful - only that Matthew Bentley was the successful applicant. Mr Beattie stated that he could not recall Ms Johnson advising the Applicant, nor was it usual to inform unsuccessful applicants, of the reasons or their ranking amongst the other candidates.
113 Mr Murphy submitted that it was inappropriate for Mr Beattie to have sat on the selection panel. He should have stood down and indeed he should have been so advised by Ms Johnson to do so, even though he was chairman of the panel. There was clear bias, not just apprehension of bias, as a result of his actions towards Ms Scott and her complaints to Ms Johnson about them. Unsurprisingly Ms Scott, despite the fact that the Applicant was at the top of the eligibility list and despite the fact that she had far more experience than Mr Bentley as a steward (he was a 21 year old law student working as a casual), she was advised on 1 May 2008 that Mr Bentley was the successful applicant for the position. Mr Beattie insisted that his inclusion on the selection panel was both suitable and appropriate and pointed out that he had the same degree of influence on the panel as every other member of that panel. He further insisted that he had treated the Applicant in a professional manner at all times.
114 Mr Murphy argued that it was "just sheer nonsense" to suggest that the Applicant should have objected to the composition of the selection committee. The Applicant was keen to obtain a permanent position and did not want to antagonise those who had the authority in that regard. She stood no chance whatsoever. He said that it would be tantamount to "committing hari kari" if she had objected in any way to the composition. He argued that the personnel handbook put the onus on Mr Beattie to consider whether or not there was a conflict, or a potential conflict or a situation of bias and to stand down. That notion has been recognised by the High Court in Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 516 to 517 and 525, albeit in regards to a disciplinary meeting, was recently cited with approval by his Honour, Boland P, in Wheelahan v North Coast Area Health Service (2008) NSWIRComm 164. In Stollery, it was held that the presence of a person in a meeting who is biased or acting as accuser may be sufficient for such a meeting to constitute a denial of natural justice and to be improperly conducted, even if that person does not play an active part in the meeting. It was argued, therefore, that the mere presence of Mr Beattie on the selection panel had the potential, and did render the process unfair to Ms Scott.
115 Mr Coughlan said that in or around February/March 2008, there was pressure brought on the Authority by the Minister for Racing that the Authority had to be more stringent in its expense area. A review was undertaken by all departments in the organisation to determine how expenses could be curtailed. Mr Coughlan said that he met with the Managers of the various departments and asked what they could do to assist him in framing the budget for fiscal year 2009 in relation to these areas. Mr Beattie, who had a wealth of experience in the racing industry, designed a better and more efficient manner of rostering which satisfied the requirements of the harness industry with fewer Stewards. As a consequence of a revised rostering schedule, the number of full time permanent employees reduced from 10 down to eight thereby eliminating the requirement for any temporary positions. He did not finalise that proposal until May 2008.
116 In around May 2008, staffing arrangements changed within the Authority's two Steward Panels - the Greyhound and Harness Panels. Mr Kiernan ultimately resigned in May 2008, almost a year after Mr Coughlan advised Ms Scott of the possibility of him resigning. Mr Coughlan said that he had been actively seeking his resignation throughout that period of time but Mr Kiernan was reluctant to provide it to him. Mr Degan was not able to be confirmed in that acting position on the harness panel because there was no eligibility list for that position and the current policy was that the position would be advertised. The position was advertised and Mr Degan was the successful applicant. That meant Mr Degan's position, which Ms Scott was filling on a full-time temporary basis on the harness panel, ceased. It could not be permanently filled by Ms Scott as a result of the structure proposed by Mr Beattie. The Respondent already had eight full-time permanent employees and budgetary constraints prevented any additional full-time staff on the harness panel. The Applicant would be reverting to a casual Harness Steward position if she chose to. Kay Johnson advised the Applicant of that fact both verbally and by email on 8 May 2008. Ms Scott explained that she had driven 4.5 hours from Wagga to Parkes on 8 May 2008 when Kay Johnson telephoned to give her the news. She had diarised that conversation. The email advice she received advised that two positions were to be advertised - the position of Greyhound Steward vacated by Dave Kiernan and the temporary position of Greyhound Steward filled by the Applicant while Dean Degan acted in Mr Kiernan's position. It pointed out that neither Dean Degan nor herself would automatically be appointed to the positions in which they had been acting. It was further pointed out that another candidate who had ranked highest on the eligibility list created after the April 2008 interviews would be offered the position on the Harness Steward panel and the Applicant would revert to a casual. The Applicant was invited to apply for either or both positions if she wished to be considered for either of those roles. Mr Murphy argued that there was no evidence of changed staffing arrangements in May 2008 except for the dismissal of Barbara Scott. The Applicant had no opportunity to respond to any allegations of misconduct or the like as none were put to her.
117 On 19 May 2008, the Applicant, upon pointing out that section 20 of the PSE Act provided that eligibility lists lasted for 12 months, was advised by Ms Johnson that the GHRRA Board had recently decided that the period would be reduced to six months. Ms Johnson gave evidence that eligibility lists, as at June 2007, when the permanent full-time Steward position on the Harness Panel became vacant, were only current for a period of six (6) months. Mr Murphy pointed out that the Applicant was shuffled down the eligibility list without any explanation to her or objective assessment being made of the respective merits of the job applicants. In the absence of any action on behalf of the Applicant that would provide a valid reason for her dismissal, the purported reason for terminating her full-time employment would appear to be a device constructed to remove the Applicant from her position. Ms Johnson gave evidence that he had not been made aware of the recent changes to that section of the PSE Act until 18 June 2008.
118 Mr Murphy pointed out that, despite the fact that an independent investigator found the Applicant's complaints of bullying and sexual harassment to be valid, as a result of the complaints she made in that regard, she was treated unfairly by the Respondent in her employment and was regarded in an unfavourable light by senior staff. He added that the Applicant was treated unfairly in relation to job applications she made during her employment. In particular, the four member selection panel was manifestly unfair in that it was composed of two senior staff members who had already formed adverse views about her, including one who she had earlier made a legitimate complaint about.
119 Ms Scott gave evidence that although she was not interested in greyhounds, she had, on 21 May 2008, applied for both the permanent and temporary greyhound steward positions in order to keep working as a Steward. The advice she received on 28 May 2008, that the successful applicants for both positions had a greater level of knowledge and experience in greyhound stewarding than she did, reinforced her view that the outcome of the interviews in April 2008 was flawed as she had possessed a greater level of knowledge and experience than the candidates who had ranked above her.
120 On 2 June 2008, she received a letter from John Coughlan and Kay Johnson terminating her employment from the temporary position effective on the same date. She was required to return the Authority's property, was paid two additional weeks' salary in lieu of notice and then reinstated to the casual steward role.
121 Mr Murphy pointed out despite the fact that the Respondent was working on a roster that would reduce the numbers of full-time harness stewards, it went ahead and advertised and appointed Mr Bentley in April 2008 and Ms Scott was relieved of her temporary position in May 2008. Ms Scott was one of the applicants for that position. An examination of the rosters for the relevant period revealed that in July 2008 when the Applicant's temporary employment ceased, there were seven full-time stewards, plus Mr Clarke - one less than the number required. Mr Coughlan argued that another Steward was still on extended leave and had not yet tendered his resignation. Therefore, if he decided to return, the Respondent was duty bound to take him back.
122 In relation to numbers engaged during the period under examination Mr Coughlan gave conflicting, evasive and, in my view, deliberately confusing evidence about the status of Mr Clarke at various times during cross-examination. Initially, he insisted that Mr Clarke was not a full time employee of the Respondent. He was the subject of a 12-month traineeship agreement with TAFE and partly funded by the Department of Sport and Recreation. He was obviously not available for work on days when he was required to attend TAFE. When questioned as to whether a trainee was able to be utilised as a fully qualified steward, Mr Coughlan had responded:
A. If the chairman of stewards thinks that the trainee is of sufficient quality, ability and has sufficient knowledge, they can be used in that manner. Obviously it wouldn't happen, you wouldn't think immediately, but it's part of the training program.