Bir v Secretary, Ministry of Health

Jurisdictional issue

1. In written closing submissions, the Respondent referred to evidence demonstrating that the Applicant was a resident of Perth, Western Australia, in support of a submission that: The Applicant is someone who demonstrated during the trial to be very capable of lying to serve her own interests… It can only be presumed that with the benefit of legal advice, the Applicant is very much aware that she must be a NSW resident to be entitled to interim and final relief from this Tribunal.
2. The Respondent first raised concerns with the issue of whether the Tribunal had jurisdiction to determine the Applicant's complaint in closing submissions, after the evidence had been heard by the Tribunal, because: It was not until the hearing of the substantive matter that the Respondent had cause for concern that the Applicant had not truthfully disclosed her residency in NSW. The substantive matter involves the State of New South Wales as a respondent employer and during the course of the trial questions have arisen as to whether the Applicant, as a natural person, is properly a resident of New South Wales.
3. As a result of this issue being raised in closing submissions, the Tribunal ordered the parties to put on evidence and submissions on the issue of jurisdiction, and held two further days of hearing on 12 October 2023 and 4 December 2023. On 12 October 2023 the Respondent made an oral application for the proceedings to be dismissed on the basis of a want of jurisdiction, premised on s 75(iv) of Commonwealth of Australia Constitution Act (the Constitution), arising from the Applicant's alleged residence outside of New South Wales. The Respondent submitted that the relief sought by the Applicant in these proceedings (and the interim relief already ordered) would require the exercise of federal judicial power because the Applicant was a "resident of another state", specifically Western Australia.

Whether this Tribunal can determine the question of jurisdiction

1. Deciding jurisdiction itself is not an exercise of judicial power. In Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316 (Lux Cuttings) this Tribunal's Appeal Panel considered whether it was enough to deprive the Tribunal of jurisdiction where it was genuinely arguable that a party was the Commonwealth, even before determination of that fact. The submission in those proceedings was that an issue - whether a party was the Commonwealth - could "arise under" the Constitution within the meaning of s 76(i) of the Constitution, if it were "genuinely arguable", or not "manifestly hopeless". That submission was said to be based on the decision in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta).
2. This was rejected by the Appeal Panel in Lux Cuttings because the issue in question needs to be the "matter", not just a question for factual determination anterior to the matter: As was made clear in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15, this Tribunal has no jurisdiction to exercise judicial power over a matter within federal jurisdiction. That is because it is not a court and, more precisely, not a Court of a State endowed with jurisdiction under Chapter III of the Constitution. It does, however, have incidental (or anterior) jurisdiction to decide whether proceedings brought before it are within its limited jurisdiction: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26; Wilson v Chan & Naylor Parramatta Pty Ltd (2023) 103 NSWLR 140; [2020] NSWCA 213 (Wilson NSWCA); Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta).
3. In Citta the question of jurisdiction arose over a justiciable matter, specifically that the defence to the discrimination complaint asserted that provisions in the Tasmanian Anti-Discrimination Act 1988 (TAS) were inconsistent with the Commonwealth Disability Discrimination Act 1992 (Cth) and Disability (Access to Premises - Buildings) Standards 2010 (Cth). There, the High Court stated at [31]: A "matter" referred to in s 75 or s 76 of the Constitution encompasses a justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated.
4. Here, the issue raised by the Respondent is about the "commencement of a proceeding in the forum", not the justiciable controversy.
5. In Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (Burns HCA) in considering the jurisdiction of this Tribunal in relation to proceedings under the Act, Gageler J stated at [119] - [120]: On the unchallenged assumption that NCAT is not a State court, the implied constitutional exclusion of State legislative power to confer State judicial power on a non-court State tribunal has consequences for the provisions of the NCAT Act which purport to confer State judicial power on NCAT. The provisions are invalid to the extent that they purport to confer State judicial power with respect to subject matters identified in ss 75 and 76 of the Constitution. The provisions can and should be read down pursuant to s 31 of the Interpretation Act 1987 (NSW) to exclude conferral of State judicial power with respect to those subject matters [140]. That reading down is to be achieved with respect to matters arising under the Anti-Discrimination Act 1977 (NSW) ("the AD Act") between residents of different States within s 75(iv) of the Constitution by excluding from the jurisdiction conferred on NCAT by the NCAT Act authority to determine a complaint by a resident of one State that a resident of another State contravened a provision of the AD Act.
6. Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) deals with 'Federal Proceedings'. Section 34A defines 'federal jurisdiction' as jurisdiction of a kind referred to in ss 75 or 76 of the Constitution. The Tribunal has no jurisdiction to determine such matters, it not being one of the "courts of the States" as referred to in s 77 of the Constitution: Burns HCA per Kiefel CJ, Bell and Keane JJ. The "subject matters identified in ss 75 and 76 of the Constitution" include, at s 75(iv) of the Constitution: In all matters: … between States, or between residents of different States, or between a State and a resident of another State; the High Court shall have original jurisdiction.
7. The Respondent contended that these proceedings constituted a matter between a State and a resident of another State. The Applicant disputed that the Respondent is "a State", and that the Applicant is "a resident of another State". Although it is genuinely arguable that the Applicant is "a resident of another state", and that these proceedings thereby could constitute "a matter between a State and a resident of another State", merely raising this issue as being "genuinely arguable" or "not manifestly hopeless" does not deprive this Tribunal of jurisdiction. This is because, consistent with Citta and Lux Cuttings, the justiciable controversy between the parties in these proceedings is whether or not the Respondent has contravened the Act, not the identification of the parties. The identification of the parties is a question for factual determination, anterior to the justiciable matter.
8. The approach I have therefore taken to determine whether the Tribunal has jurisdiction, is to consider and make factual findings about whether the Respondent is "a State" and whether the Applicant is "a resident of another State".

Who or what is the Respondent

1. There has been dispute between the parties since the commencement of proceedings as to the proper identification of the Respondent or Respondents. The Applicant initially identified the WSLHD as her employer and therefore the respondent to her complaint. On 3 June 2022, the Applicant made an application to amend the Complaint and filed Proposed Points of Claim pursuant to orders made by the Tribunal on 3 June 2022, which identified the WSLHD as Respondent. On 11 July 2022, the Applicant filed an Amended Points of Claim which added the Secretary, Ministry of Health as Second Respondent. As noted in Bir v Western Sydney Local Health District [2022] NSWCATAD 286 at [16], the Respondent took issue with the identification of the proper Respondent at that time and submitted it should be only the Secretary, Ministry of Health.
2. In submissions dated 17 November 2022, the Applicant stated: 141. It seems that all parties agree that it is proper to name as a respondent at least the Secretary, Ministry for Health. However, it is noted that the Points of Defence at (6)(b) state that the Tribunal is yet to determine if the Secretary, Ministry for Health is properly a party to the proceedings. 142. As to the WSLHD, it is asserted that the entity is not a proper respondent. The issue (to the extent that there is one) is one of WSLHD's own making. It, and not the Secretary, has threatened Ms Bir in her employment… 143. Ms Bir has attempted, to no avail, to clarify the issue with the Respondent(s). 144. Further, the issue raised by the Respondent(s) is not who is the employer under a common law contract or under the Health Services Act 1997 (NSW). The question is the correct construction of the meaning of the words "employment" and "employee" in s 8 of the ADA. 145. As was stated by Spigelman CJ in the Court of Appeal in Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232… at [87] to [88] (and the Court agreed) that a liberal interpretation is to be given to the word "employee"… 87 In the statute presently under consideration, the word "employee" appears in each of the provisions of the Act rendering it "unlawful for an employer to discriminate against an employee" on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act, a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s33 of the Interpretation Act 1987. (See IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.) 88 Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include work under a contract for services. Insofar as persons do "work" in a context closely analogous to "employment", the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word "employment". But where such context exists, the Court should be slow to hold that the Act has no application. 146. This broad approach to characterising what amounts to an employment relationship for the purposes of anti-discrimination law is reflective of the general approach in other discrimination law jurisdictions in Australia to such relationships (see N.Rees, S.Rice & D.Allen Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 2018) p518 at 11.2.11 where the learned authors state that this has transcended most of the difficult problems associated with characterisation of work relationships which have created problems in the law of employment). 147. In this matter, there is regularity and permanence in the relationship between the Applicant and WSLHD. The Applicant is also at the direction and control of WSLHD. Indeed, that direction and control forms a significant part of these proceedings. For those reasons, it is submitted that, regardless of the position at common law or under other statutes, under s8 of the ADA the Applicant is properly understood as an employee of WSLHD for the purpose of these anti-discrimination proceedings.
3. The Respondent consistently submitted since the first case conference on 2 March 2022 that the proper employer of the Applicant for the purposes of the substantive proceedings under the Act should be the Secretary, Ministry of Health (Health Secretary), pursuant to ss 115 and 116 of the Health Services Act 1997 (NSW) (HS Act) and s 4B of the Act.
4. Sections 115 and 116 of the HS Act provide: 115 The NSW Health Service (1) The NSW Health Service consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown. (1A) Those persons are not employed in the Public Service of New South Wales. (2) This Part does not affect any other means (statutory or otherwise) by which persons may be employed in the service of the Crown. Note - Other ways in which persons are employed in the service of the Crown include employment in the Public Service, the Teaching Service or the Transport Service. 116 Employment of staff generally (1) The Government of New South Wales may employ staff under this Part - (a) to enable local health districts and statutory health corporations, and the public hospitals that they control, to exercise their functions, and (b) to enable declared affiliated health organisations to exercise their functions in relation to their recognised establishments and recognised services, and (c) to enable the Health Secretary to exercise his or her functions under Chapter 5A in relation to ambulance services, and (d) to enable the Health Secretary to exercise his or her functions under Part 1A of Chapter 10 in relation to the provision of services to public health organisations and the public hospitals that they control, and (e) to enable the Health Administration Corporation to exercise its functions under this or any other Act, and (f) to enable the Cancer Institute (NSW) to exercise its functions under this or any other Act. (2) The employment of staff in the NSW Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff. (3) The Health Secretary may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the staff employed in the NSW Health Service (except as otherwise provided by subsections (3A)-(3D)). Note - The Health Secretary's functions under this or any other Act may, under section 21 of the Health Administration Act 1982, be delegated to any person. (3A) A local health district board may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the chief executive of the local health district. (3B) The chief executive of a local health district may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the other NSW Health Service senior executives employed to enable the local health district to exercise its functions. (3C) The board of a specialty network governed health corporation may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the chief executive of the health corporation. (3D) The chief executive of a specialty network governed health corporation may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the other NSW Health Service senior executives employed to enable the health corporation to exercise its functions. (4) The Health Secretary may create divisions (however described) of staff in the NSW Health Service. (5) This section does not limit the purposes for which, or the manner in which, staff may be employed in the NSW Health Service.
5. The Respondent also submitted that the operation of s 22(2) of the HS Act and s 47A of the Constitution Act 1902 (NSW) prevented the WSLHD from being the Applicant's employer for the purpose of these proceedings.
6. Section 22 of the HS Act states: 22 Provisions relating to the corporate nature of local health districts (1) A local health district - (a) has perpetual succession, and (b) is to have an official seal, and (c) may take proceedings, and be proceeded against, in its corporate name, and (d) may do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for or incidental to the purposes for which the local health district is constituted, and (e) does not represent the Crown. Note - Section 150(1) of the Evidence Act 1995 provides for judicial notice to be taken in relation to a seal of any body established under an Act. (2) However, a local health district cannot employ any staff. Note - Staff may be employed under Part 1 of Chapter 9 in the NSW Health Service to enable a local health district to exercise its functions.
7. Section 47A of the Constitution Act 1902 (NSW) states: 47A Employment of Staff (1) Persons employed by the Government of New South Wales in the service of the Crown are to be employed in the Public Service of New South Wales under the Government Sector Employment Act 2013 or in any other service of the Crown established by legislation. (2) A statutory body that is a NSW Government agency, or a person holding a public office under the Government of New South Wales, cannot employ persons unless legislation specifically authorises the body or person to do so. (3) This section does not apply to - (a) a State owned corporation, or (a1) the employment of persons referred to in section 47B, or (b) the engagement of independent contractors or volunteer workers.
8. In submissions to the Tribunal dated 20 January 2023, the Respondent sought dismissal of the Applicant's complaint and stated: The Applicant persists with claims against two respondents, when there is no sustainable cause of action against the First Respondent. The First Respondent is not the Applicant's employer and is not in a relationship with the Applicant recognised by the Anti-Discrimination Act 1977 (AD Act).
9. In her submissions filed on the issue of jurisdiction, the Applicant stated: 15. As to the first, the proceedings are separately brought against: a. the Western Sydney Local Health District as the First Respondent; and b. the Secretary, Ministry of Health in Respect of Western Sydney Local Health as the Second Respondent. 16. There is doubt as to whether a corporation is the State, or the resident of a State, for the purpose of s75(iv) of the Constitution: Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 (Howe); Cox v Journeaux (1934) 52 CLR 282 (Cox); Crouch v Commissioner for Railways (1985) 159 CLR 22. Arguably, the First Respondent is a corporation as it: a. may be proceeded against in its corporate name: s22(1)(c) of the Health Services Act 1997 (NSW) (Health Services Act); b. may suffer all other things that a body corporate may: s22(1)(d) of the Health Services Act; and c. does not represent the Crown: s22(1)(e) of the Health Services Act. 17. The Applicant reserves her position on this issue and awaits submissions on this matter by the Respondents.
10. No further submissions were made by the Applicant on this issue.
11. Mr David Holmes, Employee/Industrial Relations Manager at Nepean Blue Mountains Local Health District (NBMLHD), provided the Tribunal with an affidavit dated 20 January 2023 which explained: 14. NSW Health consists of persons employed under Chapter 9, Part 1 of the Health Services Act 1997 (HS Act) by the Government of New South Wales in the service of the Crown. Under the Government Sector Employment Act 2013 (NSW) (GSE Act), NSW Health is part of the government sector (s 3(1)). 15. Employees of NSW Health are not in the Public Service of New South Wales, but are in government sector employment where the Secretary, Ministry of Health (Health Secretary) may exercise, on behalf of the Government of New South Wales, the employer functions of the Government. 16. For example, while I performed duties within the WSLHD (between February 2020 and August 2022), WSLHD was not my employer. Equally, I now perform duties for NBMLHD, but NBMLHD is not my employer. My employer has not changed despite me now performing duties for a different local health district.
12. Based on the evidence and submissions before me, I find that: 1. The Respondent may employ staff to enable local health districts and the public hospitals they control to exercise their statutory functions: s 116(1)(a) HS Act. The WSLHD is one such local health district. 2. The Respondent exercises, on behalf of the Government of New South Wales, the employer functions of the Government in relation to the staff employed in the NSW Health Service: s 116(3) of the HS Act. 3. The Applicant is "staff employed in the NSW Health Service", and an employee of the Government of New South Wales in the service of the Crown: s 115 of the HS Act. 4. The WSLHD cannot employ staff: s 22(2) HS Act; s 47A(2) Constitution Act 1902 (NSW). Despite providing the Applicant with direction on a day to day basis, the WSLHD (by its officers) is not the Applicant's employer. In giving the Applicant directions and managing her employment, the WSLHD and its officers are exercising the Respondent's functions, as delegated by the Respondent in accordance with ss 116(3A), (3B), (4) of the HS Act and s 21 of the Health Administration Act 1982 (NSW). 5. The findings in Commissioner of Police v Estate of Russell [2002] NSWCA 272 are distinguished from the circumstances in these proceedings on the basis that the statutory provisions relevant to NSW Health Service employment do not create the same difficulties in characterising employment relationships as the Police Service Act 1990 (NSW) did. 6. Pursuant to s 3(1) of the Government Sector Employment Act 2013 (NSW) (GSE Act), NSW Health is part of the government sector. The Applicant is employed in the Public Service pursuant to s 21 of the GSE Act.
13. Section 4B of the Act states: 4B References to Certain Employers (1) A reference in this Act to an employer - (a) in relation to employment in a Public Service agency, is a reference to the head of the agency, and (b) in relation to employment in the NSW Police Force, is a reference to the Commissioner of Police, and (c) in relation to employment in the Teaching Service, is a reference to the Secretary of the Department of Education. (2) Any thing determined or done with respect to any matter concerning any such employment by a person who is employed in any Public Service agency, the NSW Police Force or the Teaching Service and who is authorised to determine and do things in that respect is taken to have been determined or done by the head of the agency, the Commissioner of Police or the Secretary of the Department of Education, respectively. (3) Subsection (2) includes anything determined or done with respect to - (a) any offer of employment, or (b) the terms and conditions on which employment is offered, or (c) the opportunity afforded for promotion, transfer, training or other benefits associated with employment, or (d) dismissal from employment.
14. Pursuant to s 4B of the Act, the employer for the purposes of these Tribunal proceedings is therefore the Respondent.
15. As to whether the Respondent is the State of New South Wales, the Respondent submitted: …it is not unusual for the nomenclature of the Applicant's employer to be styled differently by different statutes in different contexts. For example, in the regular courts, the respondent would be styled the State of New South Wales: s 5 Crown Proceedings Act 1988 (NSW)
16. Sections 12 and 13A of the Interpretation Act 1987 (NSW) provide that a reference to the Secretary, Ministry of Health is a reference to the State of New South Wales. For the purposes of s 75(iv) of the Constitution, then, the Respondent is "a State".

The Applicant's residence

1. The Applicant submitted that the Respondent bore the onus to positively establish that the Applicant was a resident of another State, as it was the Respondent's application that the Tribunal lacked jurisdiction on that basis. The Applicant also submitted that: In determining this question, the Tribunal would also not proceed on antiquated societal notions that pervade historical cases on this issue.
2. The Respondent submitted that the relevant principles were stated in Shuttleworth and Pearson [2018] WASAT 112 at [40]. Whilst I agree with the Applicant that that decision is not binding, it helpfully distils the relevant principles from High Court decisions: (1) Only a natural person can be a resident; see The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe [1922] HCA 50; (1922) 31 CLR 290 (Howe's case) in which the High Court (Knox CJ, Gavan Duffy and Higgins JJ) held that the word 'residents' in s 75(iv) of the Constitution refers to natural persons only and not to artificial persons or corporations. The High Court refused to re­open that decision in Cox v Journeaux [1934] HCA 72; (1934) 52 CLR 282 (Cox) and again in Crouch v Commissioner for Railways [1985] HCA 69; (1985) 159 CLR 22, in which the Court applied it. (2) A natural person can only be a resident of one State at any time; see Howe's case at 296, where it was stated by Knox CJ and Gavin Duffy J that s 75(iv) of the Constitution seems to assume that a resident of one State cannot at the same time be a resident of another State. (3) A resident is a natural person who resides permanently in a place, which is his or her home; see Howe's case where it was stated, by Knox CJ and Gavin Duffy J at 295 and by Higgins J at 327, that a resident is a natural person who resides permanently in a place. Also, in Howe's case it was stated by Isaacs J at 324, that a natural person is a resident of the State where, in fact, the nature of his residence shows it is his real home. And also, in Howe's case it was stated by Starke J at 327, that a resident is a natural person who lives, dwells and has his home in some place. (4) A natural person can be a resident of a State after residing there for only a brief period of time; see R v Macdonald; Ex parte Macdonald [1953] HCA 35; (1953) 88 CLR 197 (a month), R v Langdon; Ex parte Langdon [1953] HCA 66; (1953) 88 CLR 158 (five months) and R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323 (two and a half months). … (7) The relevant date of a natural person's residence is the date the proceeding is commenced as opposed to the date of the conduct in question in the matter; see Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 623 and Momcilovic v The Queen [2011] HCA 34 at [134]. (8) A proceeding may become a 'matter between residents of different States' after it has commenced and before it is determined. If that happens the matter will then fall within federal jurisdiction under s 75(iv) of the Constitution. 'Jurisdiction' is the authority to adjudicate or determine a matter, which is to be distinguished from the law that is applied in the exercise of that jurisdiction; see Rizeq v Western Australia [2017] HCA 23 at [8], [9], [49], [50], [51], [52], [127] and [128]. Therefore, although a proceeding, when it is commenced in a court or the Tribunal, may be within State jurisdiction, the authority to adjudicate under State jurisdiction will cease if the matter subsequently falls within federal jurisdiction.
3. The Applicant submitted that the proper approach to this factual inquiry of the Applicant's residence was: a. look first, and significantly, to the person's residence at the date the proceedings were commenced: Watson v Marshall and Cade (1971) 124 CLR 621 at 623 and Momcilovic v The Queen [2011] HCA 34 at [134]; b. the essential inquiry, on this case, is where there a sense of permanence of residency: Henry v Boehm (1973) 128 CLR 482 citing Howe; c. primarily consider, on this inquiry, where the person: i. sleeps and lives: Howe at 327; ii. holds and continues employment: R v Oregan; Ex Parte Oregan (1957) 97 CLR 323 at [20]; iii. has a primary physical presence; and d. note that even lengthy periods outside a State does not necessarily mean that a person is not a permanent resident of the State: Anagnostou v Leo [2020] NSWCATAP 272 at [18].
4. I see no inconsistency between the approaches submitted by the parties for the purpose of the factual finding I need to make in these proceedings.

Evidence of residence

1. The Applicant's solicitor, Scott Calnan, swore an affidavit on 28 November 2023 (Exhibit A24) which annexed all the evidence of the Applicant's residence in New South Wales. Mr Calnan was not required for cross examination on that evidence by the Respondent. The following evidence was submitted as demonstrating the Applicant's residence was in New South Wales: 1. The Applicant affirmed an affidavit on 12 November 2022 which stated her address as 21 [REDACTED] Road, Oatlands, New South Wales (21 [REDACTD] Rd); 2. The Applicant affirmed affidavits on 3 February 2023 and 20 February 2023 which stated her address as 30 [REDACTED] Road, Oatlands, New South Wales (30 [REDACTED] Rd); 3. The Applicant's husband, Sarab Bir, affirmed an affidavit on 12 November 2022 which stated his address as 21 [REDACTED] Rd; 4. The Applicant's son, Sahir Bir, affirmed an affidavit on 10 November 2022 which stated his address as 21 [REDACTED] Rd and "I live in the same house as my mother"; 5. The Applicant's son, Sahir Bir, affirmed an affidavit on 17 February 2023 which stated his address as 30 [REDACTED] Rd; 6. During the period that she lived at 21 [REDACTED] Rd, the Applicant held a New South Wales Driver Licence, with an expiry date of 19 November 2023; 7. On 15 October 2019, the Applicant purchased a car for use within New South Wales, bearing registration number "EDW70F"; 8. Phone calls were made from the Applicant's phone within New South Wales on the following dates: 1. 13-30 January 2021; all of February, March, April 2021; 1, 3-15, 17-21, 23 - 31 May 2021; 1-11, 15-25, 28-30 June 2021; 1-10, 12-17, 19-23, 25-31 July 2021; 1-6, 8-13, 16-18, 20, 23- 24, 26-27, 30-31 August 2021; 1-10, 13-25, 27-30 September 2021; 1-2, 4-15, 18-23, 25-29 October 2021; 1-5, 8-27, 29-30 November 2021; 1-3, 6-11, 25-31 December 2021; 2. 2-13, 15-28, 31 January 2022; 1-5, 7-11, 13-19, 21-28 February 2022; 1-3, 9-12, 14-17, 25, 27-31 March 2022; 1, 4-16, 18, 19, 21-23, 26-30 April 2022; 1-13, 15-20, 23-27, 31 May 2022; 1-6, 8, 10-12, 14-17, 20-28, 20 June 2022; 1-28, 30-31 July 2022; 1-13, 15-25, 27, 29, 30, 31 August 2022; 1-24, 28, 29 September 2022; all of October 2022; 1-2, 12-19, 21-26, 30 November 2022; 1-17, 19-31 December 2022; 3. 1-15, 17-31 January 2023; 1-9, 12-22, 27-28 February 2023; 1-9, 13-24, 28-31 March 2023; 1-6, 11-14, 17-28, 30 April 2023; 1-11, 15-19, 22-31 May 2023; 1, 4-13, 15, 18-30 June 2023; 5-14 July 2023; 13-28 September 2023; 2-12 October 2023. 1. The Applicant was issued with electricity invoices for 21 [REDACTED] Rd on 14 February 2022, 13 May 2022, 15 August 2022, 11 November 2022; 2. The Applicant was issued with gas invoices for 21 [REDACTED] Rd on 23 February 2022, 3 June 2022, 25 August 2022, 25 November 2022; 3. On 9 September 2022 the Applicant and her husband sold 21 [REDACTED] Rd. The sale completed on 3 February 2023; 4. On 14 January 2023, Quick and Easy Removals issued an invoice for removalist services to the Applicant. The Applicant's address is listed at 30 [REDACTED] Rd. Items were moved from 21 [REDACTED] Road to 30 [REDACTED] Rd; 5. On 29 January 2023, the Applicant entered into a residential tenancy agreement for 30 [REDACTED] Rd, and paid rent to Ms Chin on 13 February 2023, 28 February 2023, 14 and 30 March 2023, withdrew cash on 4 April 2023 to pay rent, paid rent to Ms Chin on 19 July 2023, 13 September 2023, 22 September 2023, 11 October 2023, 25 October 2023, 6 November 2023 and 22 November 2023; 6. On 8 February 2023, the Applicant obtained a Pre-Inspection Building and Timber Pest Report for the purpose of considering the purchase of a property at 150C [REDACTED] Road Oatlands, New South Wales; 7. In early 2023, the Applicant's real estate agent, Daniel Mourad, visited the Applicant at 30 [REDACTED] Rd and observed the Applicant's personal items there; 8. Both the Applicant's husband and son stated in cross examination on 9 March 2023 that the Applicant was not living in Perth as at that date; 9. On 24 May 2023, the Applicant updated her address with the Australian Electoral Commission to 30 [REDACTED] Rd; 10. The Applicant presently resides at 30 [REDACTED] Rd, holds a driver licence issued by the State of New South Wales that shows her address to be 30 [REDACTED] Rd, and does not hold any other driver licences. She presently drives a vehicle registered in New South Wales.
2. The Respondent submitted the following evidence, provided via affidavits from Mark McKenna (Exhibit R34 [3] ), Andrew Finlay Yahl (Exhibit R35), and Stefannie Guzewicz (Exhibit R36), conflicted with the Applicant's residence being in New South Wales: 1. The Applicant owns as a joint tenant with her husband two residential properties in Western Australia: 10 [REDACTED] BALVIDIS WA 6171; and 38 [REDACTED] BALVIDIS WA 6171. Documents produced to the Tribunal from the Registrar of Titles, Western Australia describe both the Applicant and her husband as "of 10 [REDACTED] Balvidis WA 6171"; 2. The Applicant's husband and son currently live in the property at 10 [REDACTED], Perth, Western Australia; 3. On 13 July 2023, Mark McKenna, an employee of the Respondent's solicitors, called Mindwise Health and Wellbeing, the Applicant's longstanding secondary employer, and was told over the phone that the Applicant was "not working with us at the moment" and was "living in Perth at the moment"; 4. On 21 September 2023, a process server attended 30 [REDACTED] Rd, and was told that the Applicant did not live there, and that person also stated that the Applicant did not live there and that he had lived at the address for "some years"; 5. The Applicant, in cross-examination on 7 March 2023, was asked why she told her psychiatrist on 30 March 2020, that at that time she was in the process of packing up to go to Perth, Western Australia. The Applicant responded "We've been thinking of lots of options", and did not deny having started packing up to move to Perth in 2020. The Applicant was coincidentally absent from work for most of March 2020 on a combination of annual, RDO and long service leave; 6. Both of the Applicant's parents lived in Perth. The Applicant's father died there on 12 September 2018 and the Applicant's mother died there on 20 December 2021; 7. The Applicant was absent from her employment with the Respondent on annual and long service leave for all of July, August and most of September 2021, and the last 3 weeks of December 2021; 8. The Applicant's husband Sarab Bir admitted that he and the Applicant jointly owned property at 21 [REDACTED] Road and then sold that property for close to $3 million in September 2021. He said in cross examination: Mr Gardner: And have you moved to Perth and bought new property there? Sarab Bir: That's right. We have moved. [emphasis added] Mr Gardner: "We are moving?" Is that - Sarab Bir: No, we are not moving. We are - I'm saying it's temporary and because we have always stayed in Sydney for 30 years. So we are just wanting to see that how we feel. We want to come back actually. 1. In cross-examination, the Applicant's husband and son admitted that they both moved to Perth after the sale of the family home at 21 [REDACTED] Rd. The Applicant's husband, Sarab Bir said he has never lived at 30 [REDACTED] Rd, and did not know that his wife lived there either. 2. The Applicant's son in his affidavit of 10 November 2022 states that "I live in the same house as my mother…" and he admitted in cross examination that at the time he swore his affidavit of 17 February 2023, despite stating his address as 30 [REDACTED] Rd, he was already living in Perth, Western Australia. 3. Removalist records produced by the Applicant to the Tribunal disclosed items of the Applicant's personal property were transported to Perth Western Australia in or around January 2023 in a 20-foot container. 4. Mobile phone records demonstrate that the Applicant regularly leaves NSW to travel to Western Australia; 5. The Applicant has most recently been absent from work for an extended period in Perth Western Australia; 6. Identification of a grey Mercedes Benz sedan, alleged to be the Applicant's, now being parked at 10 [REDACTED] Balvidis WA 6171.
3. The Applicant did not cross examine the witnesses who provided affidavit evidence for the Respondent in relation to the issue of the Applicant's residence. In reply submissions, the Applicant stated in relation to the evidence of residence: 1. The Applicant presently resides at 30 [REDACTED] Road, in the State of New South Wales. She holds a driver licence issued by the State of New South Wales that shows her address to be 30 [REDACTED] Road, Oatlands in the State of New South Wales. The Applicant does not hold any other driver licences. She presently drives a vehicle registered in New South Wales. 2. The Applicant is not named on electricity invoices issued in respect of 10 [REDACTED] in Western Australia. Rather, they are issued to the Applicant's husband, Mr Sarab Bir - as he is the one living in Perth. 3. The Respondent's submissions on the Applicant's residence are conjecture, and nothing typifies this more that the submission concerning the car parked outside 10 [REDACTED]. The car referred to belongs to the Applicant's husband. 4. With respect to an alleged conversation between the Applicant and her psychologist in March 2020, the evidence is of extremely low probative value, because the psychologist was not called to give evidence, or tested on whether the notes were accurate, and the Applicant was not shown the notes at the time that they were made.
4. Regarding the car parked at 10 [REDACTED], there is insufficient evidence to support a finding that the car pictured belonged to the Applicant. Even if I did so find, I consider the presence of a vehicle belonging to the Applicant is of extremely limited value in determining the Applicant's place of permanent residence, in circumstances where the Applicant's husband and son live at that location, giving her an obvious reason to be present there. Presence is not residence. I also accept that the Applicant's psychologist recorded in her notes in 2020 that the Applicant expressed an intention to move to Western Australia, but that doesn't mean it was an accurate recording, or that it ultimately occurred.
5. The Applicant submitted that limited weight should be given to the evidence of conversations with third parties about the Applicant's residence, on the basis that the evidence was indirect or hearsay. I agree. There are two conversations with third parties deposed to by the Respondent's witnesses on the issue of jurisdiction: the receptionist at Mindwise Psychology, and a man located by a process server at 30 [REDACTED] Rd. None of the parties to those conversations was called for cross examination. I therefore accept that those conversations took place as stated. However, they don't prove or disprove the Applicant's residence. The receptionist at Mindwise stated the Applicant was "living in Perth", but that statement doesn't prove the fact, only that the receptionist believed or had been told that was the reason the Applicant had ceased taking new patients.
6. I accept also that a conversation between a process server and a "male aged approx. 70 years old, white European in appearance, and approx. 5'8'' - 5'10'' tall" took place at 30 [REDACTED] Rd on 21 September 2023, however I cannot make any findings in relation to what was said in that conversation, or the truth of its content, in circumstances where Mr Calnan has then deposed to a conversation with a "Mr Smith" which casts doubt on the conversation, and neither the process server, the unnamed man, Mr Smith, or Mr Calnan are called or required for cross examination.
7. The Respondent submitted: …just because the Applicant may be able to work or conduct business in NSW at times is not determinative of the question as to whether she is resident of NSW: for example, Howe per Isaacs J at 308. Whether she is a resident of a State in the sense required by s 75(iv) of the Constitution, involves consideration of her residential connection with that State contrasted with all other States. Whether the Applicant has her real "home" in NSW involves consideration of her status in Western Australia (where there is evidence of property owned by her and family that resides there), where she dwells; eats; socialises; spends time with family and friends; the frequency of her travel between locations; and everyday expenses associated with her real home and other places.
8. Having considered all of the evidence presented to the Tribunal in relation to the Applicant's residence, and having considered the evidence presented of her residential connection with Western Australia, I am satisfied that the Applicant is a resident of New South Wales. The evidence demonstrates that following the sale of the family home at 21 [REDACTED] Rd in 2021, the Applicant remained a resident of New South Wales while her husband and son moved to Western Australia in early 2023. She pays rent and electricity in New South Wales. Her employment with Cumberland Hospital is in New South Wales. Her drivers licence is from New South Wales and her electoral enrolment is in New South Wales. According to her mobile phone records, she has been physically present in New South Wales for the vast majority of days between January 2021 and October 2023, when the evidence in the proceedings concluded. The fact that her late parents lived in Western Australia, her husband and adult son live in Western Australia, and that she visits Western Australia from time to time - even regularly - does not displace her residence in New South Wales in the circumstances of the evidence I have already referred to. Even accepting the evidence that the Applicant may have had or still has plans to move to Western Australia, on the evidence before the Tribunal I find that this has not yet occurred, and her residence remains in New South Wales.
9. Accordingly I find that these proceedings are not a matter falling within s 75(iv) of the Constitution, being a matter between a State and a resident of another State. The Applicant is a resident of New South Wales and the Tribunal therefore has jurisdiction to hear and determine her complaint under the Act.

Factual allegations

1. The Applicant's Consolidated Points of Claim (CPOC) allege 9 distinct instances of conduct by the Respondent were unlawful race discrimination against her, as an employee, pursuant to ss 8(2)(b) and (c) of the Act. Those were: 1. the 1 September 2020 Conduct; 2. the 14 January 2021 Conduct; 3. the 2021 Investigation into the Applicant Conduct; 4. the 2021 Dismissal of the Applicant's Complaint Conduct; 5. the 25 and 26 March 2021 Conduct; 6. the 7 May 2021 Statement; 7. the 25 June 2021 Statement; 8. the First Continued Investigation and Disciplinary Conduct; and 9. the Second Continued Investigation and Disciplinary Conduct.
2. The Applicant also alleged that the following conduct constituted unlawful victimisation of her pursuant to s 50(1) of the Act: 1. The First Continued Investigation and Disciplinary Conduct; 2. the Second Continued Investigation and Disciplinary Conduct; and 3. the Suspension and Medical Examination Direction.
3. I will address each of the factual allegations in turn, after consideration of the relevant legal principles and making some general findings about the witness evidence.

The 1 September 2020 Conduct

1. Although alleged in the CPOC as unlawful discrimination pursuant to ss 8(2)(b) and (c) of the Act, the 1 September 2020 conduct was described in the "Background Events" section of the CPOC, not the "Discriminatory Conduct" section. The Applicant alleged: 13. On 1 September 2020, the First or Second Respondent issued a letter titled "Re: Performance Concerns Counselling Conversation 3 September 2020" to the Applicant, in which it made unfounded and minor performance and conduct allegations about aspects of the Applicant's communication with management in her position as a Union Delegate (1 September 2020 Conduct). 14. On or about 1 September 2020, the Applicant, including through the Health Services Union, complained that the 1 September 2020 Conduct was discriminatory. 15. On or about 4 May 2021, the First or Second Respondent withdrew the 1 September 2020 letter titled "Re: Performance Concerns Counselling Conversation 3 September 2020".
2. The Respondent denied the allegations described as the 1 September 2020 Conduct, other than admitting that on 1 September 2020 it issued to the Applicant via letter "a direction for her to attend a counselling meeting on 3 September 2020 to discuss concerns and expected standards of behaviour".

The 14 January 2021 Conduct

1. The 14 January 2021 Conduct is central to the Applicant's complaint against the Respondent. The Applicant alleged: 16. On 3 December 2020, the Applicant complained to the First or Second Respondent that a colleague, Ms X, was: a. failing to follow COVID-19 safety policies established by the First or Second Respondent; and b. distracting employees in respect of whom the Applicant had managerial responsibility. 17. On or about 18 December 2020, Ms X made a retaliatory complaint against the Applicant. 18. On or about 22 and 23 December 2020, the First or Second Respondent, through both Carolyn Fozzard and Gerard Drinan confirmed that the Applicant had not done anything wrong in respect of the retaliatory complaint made by Ms X. 19. On 23 December 2020, the Applicant complained to the First or Second Respondent that a colleague, Ms X, had repeatedly mocked the Applicant. 20. On 14 January 2021: a. the Applicant again complained to the First or Second Respondent that Ms X had mocked her; b. the First or Second Respondent's representative, Mr Paul O'Halloran, responded to the Applicant's complaint in belittling and dismissive tone; and c. the First or Second Respondent's representative, Mr O'Halloran, accused the Applicant of engaging in preferential treatment towards Ms Rajinder Kaur, by suggesting that the Applicant facilitated Ms Kaur breaching the First or Second Respondent's Covid-19 safety policies, and did not complain about Ms Kaur's breaches of Covid-19 safety policies. (14 January 2021 Conduct). 21. The 14 January 2021 Conduct was harmful to the Applicant because: a. it suggested that the Applicant showed favouritism to people with whom she shared, or with whom she was perceived to share, Ethnicity, Country of Origin or Skin Colour; b. it was made in response to the Applicant bringing complaints against a WSLHD employee; c. it caused the Applicant to feel distressed and traumatised, and to cry - the First or Second Respondent's response to which was to accuse the Applicant of raising her voice; and d. it was untrue. 22. The 14 January 2021 Conduct was discriminatory because it was for reasons that included the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour.
2. The Respondent denied the allegations described as the 14 January 2021 Conduct, save for admitting the following facts: 1. On 3 December 2020 the Applicant sent an email to Paul O'Halloran (Head of Department - Psychology) and Carolyn Fozzard (Executive Manager Mental Health) with the subject line "Staff office space - OT department and Ms X". The email stated that Ms X was "distracting all other staff with loud conversation and social chit chat"; 2. The complaint made by Ms X was serious and was the subject of facilitated resolution discussions under relevant NSW Health Policy, PD2016_046 Resolving Workplace Grievances; 3. On 23 December 2020 the Applicant complained that a colleague, Ms X, had repeatedly mocked the Applicant; 4. The Applicant sent an email to Ms Fozzard, Geoff Sheargold (Human Resources Manager - Mental Health Services) and Mr Brakoulias in which she states, inter alia, "Ms X has mocked me on a number of occasions"; 5. In a meeting with Ms Fozzard and Mr O'Halloran on 14 January 2021: 1. the Applicant attended remotely by Skype at around 9 am, during which she: 1. spoke to Mr O'Halloran in a loud and aggressively raised voice and tone; 2. yelled at Ms Fozzard and Mr O'Halloran when they were trying to de-escalate the Applicant's behaviour; 3. abruptly concluded the meeting by hanging up on Skype; 1. the Applicant stated words to the effect that she felt mocked by Ms X; 2. Mr O'Halloran said words to the effect of "Does Rajinder visit at all?"; and 3. The Applicant cried.
3. The Respondent also alleged that the matters alleged in [16] - [20] of the CPOC have already been the subject other proceedings, complaints and claims, including: 1. proceedings commenced by the Health Services Union, NSW Branch (HSU), on behalf of the Applicant against the Respondent in the Industrial Relations Commission of NSW (IRC) on 22 February 2021; where Commissioner Webster conducted a compulsory conference and conciliation and issued recommendations on 3 March 2021; 2. complaints by the Applicant under the Work Health and Safety Act 2011 (NSW) (WHS Act) to SafeWork NSW, where SafeWork NSW conducted a review and determined not to investigate the allegations; 3. a workers' compensation claim made by the Applicant under the Workers Compensation Act 1987 (NSW) (WC Act) where the Personal Injury Commission (PlC) has exclusive jurisdiction in respect of alleged work injury damages claim, and where the Respondent's insurer appeared and consented, without admission of any liability, to pay sums specified in a Certificate of Determination by consent on 14 October 2021.

The 2021 Investigation into the Applicant, and 2021 Dismissal of the Applicant's Complaint

1. With respect to the 2021 Investigation into the Applicant Conduct, and the 2021 Dismissal of the Applicant's Complaint Conduct, the Applicant alleged: 23. On 14 January 2021 the Applicant complained to Mr Geoff Sheargold, the First or Second Respondent's representative, about the 14 January 2021 Conduct. 24. On 14 January 2021 the Applicant complained to Ms Carolyn Fozzard, the First or Second Respondent's representative, about the 14 January 2021 Conduct. 25. On 14 January 2021, the First or Second Respondent commenced an investigation into the Applicant's complaints about the 14 January 2021 Conduct. 26. On 3 February 2021, the Applicant complained about the First or Second Respondent's investigation into the Applicant's complaints about the 14 January 2021 Conduct. 27. On about 17 February 2021, the First or Second Respondent, through its representatives Mr O'Halloran, Dr Vlasios Brakoulias, and Mr Gerard Drinan made allegations against, and commenced an investigation and continued it against, the Applicant, concerning the events of 14 January 2021 (2021 Investigation into the Applicant Conduct). 28. On 3 March 2021, the First or Second Respondent concluded the investigation into the Applicant's complaints about the 14 January 2021 Conduct and dismissed the Applicant's complaints, but did not interview or speak with the Applicant for the purpose of the investigation (2021 Dismissal of the Applicant's Complaint Conduct). 29. The 2021 Investigation into the Applicant Conduct and the 2021 Dismissal of the Applicant's Complaint Conduct were harmful to the Applicant because: a. by its failure to address or investigate an allegation of racism at work, and by instead commencing an investigation into the Applicant., the First or Second Respondent approved of or acquiesced to racist statements being made at work; b. the Applicant, being a person having the Applicant's Ethnicity, Country of Origin and Skin Colour, was a person particularly and adversely affected by the First or Second Respondent approving of or acquiescing to racist statements being made at work; and c. the Applicant was hurt, humiliated and offended. 30. The 2021 Investigation into the Applicant Conduct and the 2021 Dismissal of the Applicant's Complaint Conduct were discriminatory because it was for reasons that included the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour.
2. The Respondent denied the allegations described as the 2021 Investigation into the Applicant's Conduct, and 2021 Dismissal of the Applicant's Complaint Conduct, save for admitting the following facts: 1. On 14 January 2021 the Applicant sent a number of emails, including: 1. an email at 10:06 am to Ms Fozzard; 2. an email at 12:03 pm to Ms Fozzard; 3. an email at 3:11 pm to Ms Fozzard, copying Mr Sheargold and Prof Brakoulias in relation to the meeting conducted at around 9am. 1. Assessment, investigation and risk management strategies were undertaken subsequent to the meeting of 14 January 2021, and on 18 February 2021, an allegations letter was issued to the Applicant in relation to conduct that allegedly occurred on 14 January 2021; 2. By letter dated 3 March 2021, Professor Vlassios Brakoulias, Executive Director Mental Health Services wrote to the Applicant notifying her of the outcome of investigations into competing complaints between the Applicant and Ms X, and the Applicant's grievance concerning the meeting of 14 January 2021. The Applicant's complaints were determined: 1. to be not consistent with NSW Health CORE Values; and 2. were unreasonable and may be in breach of NSW Health Code of Conduct. 1. By letter dated 25 March 2021, Ms Jacqueline Dominish, District Director - Allied Health, wrote to the Applicant (in accordance with an agreed process reached in resolution of industrial dispute proceedings in the Industrial Relations Commission of NSW), and informed her that she was required to attend an interview in relation to her conduct during the 14 January 2021 meeting; 2. The Applicant did not attend such further interview; 3. On Monday 29 March 2021 the Applicant submitted a workers' compensation claim, and was unfit to attend work or any investigation interviews from 29 March 2021 until 3 September 2021 due to mental illness, and between 23 September 2021 and 13 April 2022 the Applicant had a further 16 absences from work.

The 25 March 2021 Conduct and 29 March 2021 Conduct;

1. The 25 March 2021 Conduct and the 29 March 2021 Conduct comprised the following allegations by the Applicant: 33. On 25 March 2021, the First or Second Respondent: a. continued the 2021 Investigation into the Applicant Conduct; b. directed the Applicant to attend an interview about new allegations; and c. proposed to perform the interview through a panel of persons who had participated in proceedings before the Industrial Relations Commission of NSW in favour of the First or Second Respondent against the Applicant, (25 March 2021 Conduct). 34. On or about 25 March 2021, the Applicant declined to attend the interview on the basis of the matters set out above. 35. On or about 29 March 2021, the First or Second Respondent, through its representative Ms Guzewicz, by inference accused the Applicant of being uncooperative (29 March 2021 Conduct). … 37. The 25 and 29 March 2021 Conduct was discriminatory because it was for reasons that included the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour.
2. The Respondent denied the allegations described as the 25 March 2021 Conduct and 29 March 2021 Conduct, save for admitting the following facts: 1. By letter dated 25 March 2021 from Jacqueline Dominish, District Direction - Allied Health, the Applicant was placed on notice: 1. of allegations of misconduct; 2. that the Applicant would be "required to attend an interview to respond to the allegations"; 3. that details of the interview were to be confirmed with the Applicant; 4. that a risk assessment would be conduct in relation to the alleged conduct to ensure the health and safety of NSW Health patients and staff; 5. not to approach or discuss matters with Mr O'Halloran or Ms Fozzard; 6. to limit communication with Mr O'Halloran for patient care purposes. 1. the Applicant was absent from work from Monday 29 March 2021 until 3 September 2021 because of claimed unfitness for work due to mental illness, but was able to attend workers' compensation and injury management meetings from 31 March 2021 in relation to her workers' compensation claim.

The 7 May 2021 Statement

1. The Applicant's allegations with respect to the 7 May 2021 Statement are: 38. On 7 May 2021, a senior representative of the First or Second Respondent, Ms Luci Caswell, alleged that the Applicant, and her family, had a connection to the Tamil Tigers and that the Applicant had a propensity to complain (7 May 2021 Statement). 39. The 7 May 2021 Statement was harmful to the Applicant because: a. it suggested that the Applicant, and her family, had a connection to a group that some people may regard as Sri Lankan terrorists; b. the statement was disseminated to other employees of the First or Second Respondent and repeated by at least one of those employees (namely Ms Y); c. it was made in response to the Applicant bringing complaints against WSLHD; d. it resulted in the Applicant's son receiving, on or about 25 June 2021, a text message from a close relative of another employee of the First or Second Respondent by which the Applicant's son was asked whether the Applicant was a member of the Tamil Tigers; and e. it was untrue. 40. The 7 May 2021 Statement was discriminatory because it was for reasons that included the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour.
2. The Respondent denied the allegations described as the 7 May 2021 Statement.

The 25 June 2021 Statement

1. The Applicant's allegations with respect to the 25 June 2021 Statement are: 41. On or about 25 June 2021, a text message from Ms Y's (an employee of the First or Second Respondent) husband was sent to the Applicant's son by which he was asked whether the Applicant was a member of the Tamil Tigers (25 June 2021 Statement). 42. The 25 June 2021 Statement was made at the direction of the First or Second Respondent, through its employee Ms Y or by Ms Y repeating statements made by other employees of the First or Second Respondent. … 44. The 25 June 2021 Statement was discriminatory because it was for reasons that included the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour.
2. The Respondent denied the allegations described as the 25 June 2021 Statement.

The First Continued Investigation and Disciplinary Conduct

1. The Applicant alleged, with respect to the First Continued Investigation and Disciplinary Conduct, that: 46. Between 14 July 2021 and 13 September 2021, the First or Second Respondent continued to take, or propose to take, investigatory and/or disciplinary action against the Applicant by failing to abandon the previously instituted investigations against the Applicant (First Continued Investigation and Disciplinary Conduct). … 48. The First Continued Investigation and Disciplinary Conduct was discriminatory because it was for reasons that included the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour. 49. Further or in the alternative to [48], the First Continued Investigation and Disciplinary Conduct was victimisation because it was for reasons that included: a. the Applicant's complaints to the First or Second Respondent about the 14 January 2021 Conduct; and/or b. the Discrimination Complaint. 50. On or about 16 September 2021, the Applicant returned to work.
2. The Respondent denied the allegations described as the First Continued Investigation and Disciplinary Conduct, save for repeating that "the Applicant was not present or fit to attend to work from 29 March 2021 to 3 September2021 inclusive" and admitting that "the Applicant returned to the workplace on 16 September 2021".

The Second Continued Investigation and Disciplinary Conduct

1. The Applicant alleged, with respect to the Second Continued Investigation and Disciplinary Conduct, the following: 51. From on or about 16 September 2021 to 26 April 2022 the First or Second Respondent took, or proposed to take, investigatory and/or disciplinary action against the Applicant, including by: a. on 20 September 2021, directing the Applicant to attend a meeting in relation to the disciplinary action; b. on 8 February 2022, through Hayley Cadman, attempting to have the Applicant attend a disciplinary proceedings meeting on 15 February 2022; c. on 22 February, through Ms Cadman, directing the Applicant attend a disciplinary proceedings meeting on 28 February 2022; and d. on 28 February 2022, interrogating the Applicant, (Second Continued Investigation and Disciplinary Conduct). … 53. The Second Continued Investigation and Disciplinary Conduct was discriminatory because it was for reasons that included the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour. Particulars i. The comparator is a person: A. not of the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour; B. who had been the subject of conduct not materially different to that which is particularised at [48]. 54. Further or in the alternative to [53], the Second Continued Investigation and Disciplinary Conduct was victimisation because it was for reasons that included: a. the Applicant's complaints to the Respondent about the 14 January 2021 Conduct; and/or b. the Discrimination Complaint.
2. The Respondent denied the allegations described as the Second Continued Investigation and Disciplinary Conduct, save for admitting the following: 1. by email dated 20 September 2021, Ms Stefanie Guzewicz, Industrial and Employee Relations Specialist, notified the Applicant that as she had returned to work, misconduct proceedings placed on hold in March 2021, and an interview scheduled for 12 April 2021 that the Applicant did not attend, would be rescheduled for Friday 24 September 2021; 2. by email in reply at 4:40 pm on 20 September 2021 the Applicant declined to attend the scheduled interview claiming, inter alia, that she did not have sufficient notice and that her specified union representative was not available until after school holidays; 3. by email dated 8 February 2022, Ms Heyley Cadman, Director Human Resources, notified the Applicant that she had been appointed to investigate misconduct allegations concerning the Applicant and was lawfully and reasonably directed the Applicant to attend an interview on 15 February 2022; 4. by email in reply at 3:18 pm on 8 February 2022 the Applicant refused to comply with the direction for reasons not accepted by the Respondent as justifying her refusal to comply; 5. by email dated 22 February 2022 the Applicant was requested to attend an interview with her union representative on 28 February 2022.

The Suspension and Medical Examination Direction

1. The Applicant alleged, with respect to the Suspension and Medical Examination Direction, the following: 57. On or about 27 April 2022, the First or Second Respondent suspended the Applicant and purported to direct the Applicant to attend a medical examination (Suspension and Medical Examination Direction). 58. The Suspension and Medical Examination Direction were victimisation because they were for reasons that included: a. the Applicant's complaints to the First or Second Respondent about the 14 January 2021 Conduct; b. the Discrimination Complaint; c. the Applicant's participation in the NCAT Proceedings; and/or d. the Applicant's participation in the Mediation. Particulars i. The detriment caused to the Applicant [by the] Suspension and/or Medical Examination Direction includes: A. hurt, humiliation and distress; B. subjecting the Applicant to the risk of disciplinary action and termination of employment, where such risk did not previously exist; and C. excluding the Applicant from the workplace, including subjecting the Applicant to social and physical exclusion.
2. The Respondent denied the allegations described as the Suspension and Medical Examination Direction, save for the following: 1. by letter dated 27 April 2022 from Alison Derrett, Acting Chief Executive of the Respondent, the Applicant was: 1. notified of risk management concerns regarding the Applicant's well-being and stress and concern being caused by the Applicant to other staff; 2. lawfully directed to remain out of the workplace on full pay until further notice to enable arrangements to be made for an Independent Medical Examination (IME) and the development of a Performance Improvement Plan (PIP); 3. lawfully and reasonably directed not to contact any potential witness involved in the investigations; 1. by letter dated 8 June 2022 the Applicant was directed to attend an IME at 8:00am on 24 June 2022; 2. the Applicant refused to comply with the lawful and reasonable direction; 3. on 23 June 2022 the Applicant made an application for interim orders under s 105 of the Act to prevent the Respondent directing her to attend an IME and to prevent any "disciplinary action against the Applicant'; 4. on 12 July 2022 the Applicant abandoned the s 105 interim order application on giving to the Respondent written undertakings.
3. In closing submissions, the Applicant summarised her case as: a. during a meeting on 14 January 2021 (14 January 2021 Meeting), Ms Bir was the subject of discriminatory conduct. Specifically, Ms Bir's eye witness statements about Ms X were dismissed by Mr O'Halloran because of Ms Bir's race, ethnicity, country of origin or skin colour; b. Ms Bir reacted to Mr O'Halloran's treatment of her. She complained about it. Rather than treating her complaint seriously, the Respondent has made Ms Bir the subject of ongoing allegations of misconduct stemming from her reaction to Mr O'Halloran's treatment of her. To date, Ms Bir continues to face an allegation that she misconducted herself on 14 January 2021. Mr O'Halloran's conduct, however, was not even investigated; c. the Respondent failed to have in place an adequate policy to deal with complaints of race discrimination, or to train its employees in how to deal with such complaints; d. the steps that the Respondent has taken in responding to Ms Bir's complaint and in response to Ms Bir commencing these proceedings have been oppressive, including suspending her and directing her to attend an appointment with a medical practitioner determined by the Respondent; e. the Respondent has also deployed the allegation of misconduct against Ms Bir to subject her to an underperformance process; and f. within the above context, the Respondent also permitted (through the conduct of its employees and its failure to act) a connection between Ms Bir and the "Tamil Tigers" to be promulgated within the workplace.

Race Discrimination

1. Section 7 of the Act provides: 7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator - (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
2. Section 4A of the Act states: If - (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
3. Section 4 of the Act provides: "race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.
4. Section 8 of the Act provides: 8 Discrimination Against Applicants and Employees (1) It is unlawful for an employer to discriminate against a person on the ground of race - (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of race - (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment for the purposes of a private household.
5. For the Applicant to succeed in her complaint of unlawful race discrimination in employment against the Respondent with respect to the conduct alleged, she must demonstrate first, that there was race discrimination; and second, that the race discrimination was unlawful.
6. It is only once a complaint is substantiated (in whole or part) that the Tribunal examines any harm caused by the conduct, for the purpose of determining whether relief under s 108(2) of the Act should be ordered.
7. Direct race discrimination pursuant to s 7(1)(a) of the Act has two elements: differential treatment and causation. To demonstrate differential treatment, the Applicant must identify a comparator - someone in similar circumstances who is not of her race (or characteristic of her race, including her ethnicity, country of origin and/or skin colour) - and then prove that the Respondent treated her less favourably than the comparator. To demonstrate causation, the Applicant must prove that the less favourable treatment was on the ground of her race, or characteristic of her race.
8. In Purvis v NSW [2003] HCA 62; 217 CLR 92 (Purvis) the majority per Gummow, Hayne and Heydon JJ found at [224] that the relevant circumstances for a comparator: …are all of the objective features which surround the actual or intended treatment of the … person by the person referred to in the provision as the 'discriminator'.
9. In addition to identifying the correct comparator, the aggrieved person's race must have had a causal effect on the decision to commit the discriminatory act, as indicated by the words "on the ground of" in s 8 of the Act. The difficulty in characterising the "ground" on which a discriminatory act occurs was referred to by Kirby J in Haines v Leves (1987) 8 NSWLR 442 at 471: …the words of connection 'on the grounds of' require judgment and the characterisation of conduct in terms of its causation. Most activities of life have multiple causes. The assignment of the 'grounds' of the less favourable treatment requires of the Tribunal the characterisation of the relevant causally operative factor resulting in the less favourable treatment. In some cases, where multiple possible causes for discrimination are presented, the task of characterising the 'grounds' is a difficult one which calls for judgment and discernment.
10. As identified in Choi v Deloitte Touche Tomatsu [2016] NSWCATAD 304 at [123], the Tribunal is required to ascertain the "real", "genuine" or "true" reasons for the differential treatment: …one of the reasons for the less favourable treatment the Applicant received was 'on the ground of, 'because of, and 'by reason of her disability, to use the language of the majority decision in Purvis v New South Wales ('Purvis') that she had tuberculosis. This was one of the 'real', 'genuine' or 'true' reasons for the differential treatment received by the Applicant. The Applicant was treated less favourably than a hypothetical comparator due, at least in part, to her tuberculosis.
11. When considering causation, the focus is on the "real reason" for the alleged discriminator's act: see Purvis at [166]. It is the grounds or the reasons for the Respondent's action, as opposed to his or her intentions or motives for so acting, which are relevant: see Commissioner of Corrective Service v Aldridge [2000] NSWADTAP 5 at [47]; Purvis at [160] and IW v City of Perth (1997) 71 ALJR 943 at 975 per Kirby J.
12. According to s 4A of the Act, if an act or conduct is done for two or more reasons, and one of the reasons consists of unlawful discrimination, then the act or conduct is taken to be done for that reason. That is the case whether or not the lawful reason is the dominant or a substantial reason for doing the act or engaging in the conduct.
13. Once race discrimination has been established, in order for the Tribunal to substantiate the Applicant's complaint that the race discrimination was unlawful pursuant to s 8(2) of the Act, the Applicant must prove in relation to the conduct in issue: 1. That the Respondent's conduct - the race discrimination - had the effect of: 1. denying or limiting her access to opportunities for promotion, transfer, training, or any other benefits associated with her employment; or 2. dismissing her from her employment, or 3. subjecting her to any other detriment; and 1. The denial or limitation of her access to a benefit of her employment, or her dismissal or subjection to any other detriment, was because of her race.
14. A finding under s 8 of the Act cannot be made unless the Tribunal first determines that discrimination within the meaning of s 7 occurred. What amounts to discrimination for the purposes of s 8 is to be derived in the first instance from the relevant definition provided by s 7: see Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters) at 392 per Dawson and Toohey JJ in the context of disability discrimination. That is because s 8 make unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of s 7: Waters at 392. In other words, a finding of discriminatory conduct under s 7 is not unlawful unless that conduct also contravenes s 8 of the Act.

Victimisation

1. Section 50 of the Act states: 50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
2. For the Applicant to succeed in her complaint of unlawful victimisation pursuant to s 50(1) of the Act, with respect to the conduct alleged, she must demonstrate that: 1. She did one or more of the things listed in s 50(1)(a)-(d): (the trigger); 2. The Respondent's conduct subjected her to a detriment; and 3. One of the "real, genuine or true reasons" for the Respondent's conduct was because the Applicant did one of the things listed in (a)-(d) (causation): Caroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24]; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [8], [37].
3. Whether something constitutes a detriment requires an objective not a subjective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 (Sivananthan) at [41]. The word "detriment" in the context of s 50(1) of the ADA means "loss, damage or injury" that is "real and not trivial": Sivananthan at [40]; and "all that is required... is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter": Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34].
4. The words "on the ground that" require a direct causal link between the relevant act of victimisation - namely subjecting a person to a detriment - and the reason for that act: Tropoulos v Journey Lawyers [2019] FCA 436; (2019) 287 IR 363 at 475 [323] in the context of the equivalent provision in the Disability Discrimination Act 1992 (Cth).

The pleaded case, onus, and standard of proof

1. The Applicant was legally represented throughout the proceedings in this Tribunal, and while her complaint was being investigated and considered by ADNSW. Counsel for the Applicant was instructed, at the latest, from 4 July 2022 when he provided submissions to the Tribunal on an application for interim orders pursuant to s 105 of the Act on behalf of the Applicant.
2. Despite Counsel's involvement, however, the CPOC relied upon by the Applicant did not identify whether it alleged the Respondent's conduct amounted to direct or indirect discrimination. The CPOC also did not identify or particularise how the Applicant alleged each of the individual or specific facts she relied on, supported the Tribunal finding each element of the contraventions alleged. For example, there was no specification about whether a particular fact or course of conduct constituted a denial of access or a limitation of the Applicant's access to a benefit, or what benefit was being denied to her or being limited. There was no identification of what detriment was being alleged and how the facts or course of conduct, if found, amounted to a detriment. There was no identification of how the causal connection between the conduct and the denial of access to a benefit (or limitation of access to a benefit, or subjection to a detriment) was made with the Applicant's race. Where a comparator was referred to, there was no identification of whether the comparator was an actual person (and no evidence of who that person was) or hypothetical comparator, and no explanation of how differential treatment by the Respondent was demonstrated with such a comparator in each circumstance.
3. Rather, a global approach was taken by the Applicant which described the conduct being complained about, then simply asserted such conduct was unlawful discrimination, or victimisation. A consequence of this broad-brush approach to the pleadings was that, during the hearing, it was difficult to ascertain exactly what evidence was or was not relevant, as the allegations in the CPOC lacked specificity and sufficient particularisation tying them to the elements of discrimination contraventions, which were not expressly referenced.
4. The case put by the Applicant in written submissions was considerably more detailed in particularising exactly how the conduct alleged contravened the Act. The submissions clarified that the Applicant alleged direct discrimination and victimisation, and that the direct discrimination was unlawful because it subjected the Applicant to various detriments. There were some limited references to comparators, albeit somewhat different to the comparators which had been pleaded in the CPOC.
5. Unfortunately, despite the Tribunal inviting the parties at the conclusion of the evidence at hearing to file and serve amended pleadings, and submissions cross-referencing the evidence and pleadings, there were no updated pleadings filed, and the Applicant's closing submissions contained only limited and broad references to the evidence. This made the Tribunal's task in determining what exactly was alleged, what evidence supported the allegation, and how exactly that alleged conduct contravened the Act, considerably more difficult than necessary.
6. In written opening submissions, the Applicant alleged: 8. The Applicant has been the subject of direct discrimination at the hands of the Respondent(s). s 8(2)(c) of the ADA has been contravened. 9. There are two factual questions that must be determined: Waterhouse v Bell (1991) 25 NSWLR 99, 105; Commissioner of Corrective Services v Aldidge [2000] NSWADTAP 5, [41]-[45]: (a) First, has the Applicant been treated less favourably than a person of a different "race" was or would have been treated in the same circumstances, or circumstances that are not materially different? (Discrimination Element 1) (b) Second, was the ground of differential treatment the Applicant's race? (Discrimination Element 2) 10. The Applicant does not need to establish an intention on the part of the Respondent to take the Applicant's race into account. 11. Further, as the Applicant's case proceeds on the comparison with a hypothetical comparator, it is not necessary to answer the two factual questions sequentially. It is permissible, and sometimes preferable, to inquire as to whether the treatment alleged to be differential was due to the Applicant's race, and then inquire as to whether a hypothetical comparator would have been treated differently: see, eg, Dutt v Central Coast Area Health Service [2002] NSWADT 133, [61] - [65]; Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 per Lord Nicolls of Birkenhead at [12]. 12. An ancillary factual question also arises on the Applicant's case, whether the less favourable / differential treatment amounted to the Respondent(s) subjecting the Applicant to a detriment (Discrimination Element 3). 13. The structure of these submissions, in respect of the Applicant's case, is to consider each allegation of discrimination by reference to these "elements".
7. The Applicant's submissions demonstrate a fundamental misconception about how discrimination is demonstrated to be unlawful under the Act. The "Discrimination Element 3" described by the Applicant is not an "ancillary factual question". Whether race discrimination is unlawful in these proceedings is entirely dependent on the consequences of that discrimination falling within s 8(2) of the Act. The race discrimination must have caused the Applicant to suffer a specific employment related consequence - either that she was afforded different terms or conditions of employment, or she was denied or given limited access to opportunities for promotion, transfer or training, or denied or given limited access to "any other benefits associated with her employment", or dismissed, or subjected to "any other detriment".
8. I note further that at [59] the CPOC refers to the described conduct being "unlawful pursuant to s 8(2)(b) and (c) of the Anti-Discrimination Act 1977", but fails to plead or particularise exactly which consequence is being alleged in relation to each allegation of conduct.
9. What exactly was being alleged by the Applicant should have been clearly stated in the CPOC, but was not. Instead, based on the various written and oral submissions made by the Applicant's counsel, I take that what is alleged in these proceedings with respect to race discrimination in employment, is direct race discrimination within the meaning of s 7(1)(a) of the Act, which was unlawful because it subjected the Applicant to a detriment within the meaning of s 8(2)(c) of the Act. This is because: 1. the Applicant's submissions focussed on allegations of direct discrimination; 2. there were no submissions made by the Applicant about conditions or requirements imposed by the Respondent on the Applicant, which would suggest reliance was being placed on indirect discrimination as well as direct discrimination; 3. the only reference in the CPOC to the consequences in s 8(2)(b) is in the particulars to [37], which describes a proposed comparator for the 25 March 2021 and 29 March 2021 Conduct; and 4. there were no references to the Applicant missing out or being excluded from any particular training, transfer or promotion opportunities (being the consequences of s 8(2)(b) of the Act) in the Applicant's evidence or submissions.
10. The Respondent submitted throughout these proceedings, at various times, that the Applicant had not sufficiently particularised her allegations. This is a fair criticism of the Applicant's case and made both the Respondent's task in defending the allegations, and the Tribunal's task in considering them, significantly more difficult than necessary.
11. The Respondent contended that the Applicant would not be able to prove the facts alleged by her, and that of the Respondent's conduct which was proven or admitted, would not substantiate the Applicant's complaints of unlawful race discrimination or victimisation.
12. The onus is on the Applicant in these proceedings to substantiate her complaint: Majoor v Macquarie University [2022] NSWCATAP 213 at [26]; Ferrus v Qantas Airways Ltd [2006] FCA 812 per Collier J at [48]; Phillip v New South Wales [2011] FMCA 308 at [62]-[64].
13. In Sharma v Legal Aid (Qld) [2002] FCAFC 196 (Sharma) at [40] the Full Court of the Federal Court identified the particular issues with evidence in race discrimination complaints (under the Racial Discrimination Act 1975 (Cth)): 40 It is for the Applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953 , 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425 , 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331.
14. The principles expressed in Sharma above are relevant to these proceedings. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. In Phillip v New South Wales [2011] FMCA 308 at [63] the Court expressed a "higher degree of persuasion of the mind", as identified in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, required of the existence of facts to prove allegations of race discrimination, noting: The principle reflects the conventional perception that people do not ordinarily engage in serious conduct and that a court should not make a finding that a person has been guilty of such conduct lightly: Meat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1993) 110 ALR 449 at 449-50.
15. The case submitted by the Applicant is heavily reliant on the Tribunal drawing inferences from the evidence. Such inferences may not be drawn because of the standard of proof required for the Tribunal to be satisfied of such serious allegations. It is not sufficient for a complainant to perceive conduct as race discrimination. There must be a connection between the impugned act and the prohibited ground, as opposed to a mere belief that there has been a discriminatory course of conduct: Paramasivam v University of New South Wales [2007] FCA 875 at [15], upheld on appeal in Paramasivam v University of New South Wales [2007] FCAFC 176.

The relevant comparator(s)

1. Central to the Applicant's submission about differential treatment of the Applicant is the contention that the Respondent treated the Applicant less favourably than other employees. Differential treatment in direct discrimination is demonstrated with the use of a comparator, either real or hypothetical.
2. The Applicant pleaded in the CPOC that the relevant comparator for the differential treatment alleged in relation to the 14 January 2021 Conduct was: The comparator is a person: A. not of the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour; B. who complained about work health and safety issues; C. was the subject of a retaliatory complaint for having raised work health and safety issues; D. who had received an assurance from her employer that the retaliatory complaint was unfounded; E. who had been the subject of verbal derision and mocking by the employee who had made the unfounded retaliatory complaint; and F. who had complained about such verbal derision and mocking
3. A different comparator was identified for the 2021 Investigation into the Applicant's Conduct, and 2021 Dismissal of the Applicant's Complaint Conduct: The comparator is a person: A. not of the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour; B. who had been the subject of conduct similar to the 14 January 2021 Conduct, namely the bringing of a complaint about verbal derision and mocking, receiving a belittling and dismissive response, and then being subject to an accusation premised on Ethnicity, Country of Origin or Skin Colour; and C. who complained about the above matters to two people.
4. Another comparator was identified for the 25 March 2021 Conduct and 29 March 2021 Conduct: The comparator is a person: A. not of the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour; B. who was the subject of the conduct not materially different to that which is pleaded above, namely and further: 1. being excluded from training courses or workplace education; 2. being excluded from expressions of interest for promotions; 3. being prevented from speaking with the Minister'; 4. being the subject of verbal derision, mocking, insult and/or abuse; 5. making complaints about the above, about work health and safety and about the manner in which her employer was dealing with her complaints; 6. being the subject of retaliatory allegations.
5. The comparator identified for the 7 May 2021 and 25 June 2021 Statements was identified as: Particulars i. The comparator is a person: A. not of the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour;
6. The comparator for the First Continued Investigation and Disciplinary Conduct was identified as: Particulars i. The comparator is a person: A. not of the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour; B. who had been the subject of conduct not materially different to that which is particularised at [37]; and C. who had been subject to further verbal mocking, belittling, insult and/or abuse.
7. Finally, the comparator for the Second Continued Investigation and Disciplinary Conduct was identified as: i. The comparator is a person: A. not of the Applicant's Ethnicity, the Applicant's Country of Origin and/or the Applicant's Skin Colour; B. who had been the subject of conduct not materially different to that which is particularised at [48].
8. In written submissions, the only reference to a comparator was made by the Applicant in relation to the 2021 Investigation into the Applicant Conduct and the 2021 Dismissal of the Applicant's Complaint Conduct. The relevant comparator for that conduct was said to initially be hypothetical, being "a person raising a grievance to the Respondent(s) but who was not of the Applicant's race". In reply submissions the Applicant stated: …for the purpose of analysing the Applicant's complaint about the assessment and dismissal of her complaint into what occurred on 14 January 2021, that the Applicant contends that Mr O'Halloran was an actual comparator, or that his treatment provides a sound evidentiary basis upon which to make findings about the treatment of a hypothetical comparator.
9. There is no further reference made in relation to comparators for the other conduct alleged by the Applicant to constitute race discrimination.
10. The relevant comparator to determine differential treatment for any conduct found to have occurred, must be a person not of the Applicant's race, who was in the same circumstances (or circumstances not materially different) as her. In constructing a hypothetical comparator, the particular facts of the case, including the "objective features that surround the actual or intended treatment" must be taken into account: Purvis at [222]-[225] per Gummow, Hayne and Heydon JJ.
11. Objective features are those which are based on verified facts. The objective features that surround the actual or intended treatment of the Applicant in relation to the conduct could only include those facts which are material to the complaint and which I have found on the evidence, and could not include factual circumstances alleged by the Applicant which I have not found on the evidence, or which are immaterial.

The Witnesses

1. As a result of the breadth and volume of the Applicant's allegations against the Respondent, including the number of individuals referred to and the number of incidents relied upon in the Applicant's evidence, the witness evidence at hearing was extensive.
2. The Applicant's witnesses were herself, her husband Sarab Bir, her son Sahir Bir, and Lissette Endacott and Mayuri Parmar, both of whom worked with and were managed by the Applicant at WSLHD.
3. The Respondent's witnesses were: 1. Carolyn Ann Fozzard, Executive Manager, Mental Health at WSLHD, to whom the Applicant directly reported since January 2020; 2. Professor Vlasios Brakoulias, the Executive Director, Mental Health at WSLHD, to whom Ms Fozzard directly reported; 3. Kristin Kim Adair, Director Human Resources at Westmead Hospital; 4. Geoffrey John Sheargold, Human Resources Director for Mental Health Services at WSLHD; 5. Luci Caswell, Director, People and Culture at WSLHD until January 2023; 6. Stefannie Patricia Claudia Guzewicz, Industrial and Employee Relations Specialist at WSLHD; 7. David Andrew Holmes, Employee/Industrial relations Manager at NBMLHD, and previously Senior Industrial Relations/Employee Relations Specialist at WSLHD; 8. Dominika Nambiar, Director Industrial/Employee Relations at WSLHD; 9. Jacqueline Anne Dominish, District Director Allied Health at WSLHD; 10. Gerard Michael Drinan, Senior Human Resources Business Partner in Mental Health Services at WSLHD reporting to Mr Sheargold; 11. Hayley Ellis Cadman, Acting Organisational Development and Learning Director at WSLHD reporting to the Director of People and Culture; 12. Clare Lynette Lorenzen, who was the Executive Manager of Mental Health and the Applicant's line manager from 2016 to January 2020.
4. A significant proportion of the evidence was ultimately not relevant to the Tribunal's determination of the proceedings. Where evidence was not relevant, it has not been referred to in these reasons for decision.

The Applicant's evidence

1. Other than the Applicant, and her son, whose involvement in the 7 May 2021 Statement is addressed below, none of the Applicant's witnesses were actually present or otherwise directly involved in any of the conduct complained about by the Applicant.
2. Despite the apparent direct involvement of the HSU in all of the conduct alleged by the Applicant, there was no witness evidence from an HSU representative. The Applicant was an HSU union delegate and reported continuously to the HSU in relation to any concerns she had in the workplace. This often resulted in formal complaints being agitated by the HSU against the Respondent. The Applicant's complaints about the 14 January 2021 meeting formed the basis for an industrial dispute notified by the HSU in the NSW Industrial Relations Commission (which I address further below). The HSU supplied union officials to be the Applicant's support person/s in meetings with the Respondent throughout her employment. The meetings of 18 February 2021 and 28 February 2022, which are central to the Applicant's allegations of the 2021 Investigation into the Applicant Conduct, the 2021 Dismissal of the Applicant's Complaint Conduct, and the Second Continued Investigation and Disciplinary Conduct, were attended by union officials - Brendan Roberts attended the 18 February 2021 meeting and Tom Stevanja attended the 28 February 2021 meeting. These union officials were not just present at these meetings, but advocated during the meetings and were significantly involved in the discussions and negotiations leading up to the meetings, including their timing and content agenda, and were included or copied into relevant correspondence. Despite their involvement, neither Brendan Roberts, nor Tom Stevanja, nor anyone else on behalf of the HSU provided affidavit evidence to the Tribunal to support the Applicant's allegations or to corroborate her version of events.
3. I agree with the Respondent's submissions that the affidavit evidence of Sarab Bir and Lissette Endacott is not relevant and does not assist the Tribunal. The evidence of Sahir Bir is relevant to the incident of 7 May 2021 only, and the evidence of Mayuri Parmar is only relevant where I have specifically referred to it in these reasons.

Past conduct

1. The Applicant's own affidavit evidence canvassed multiple incidents and conduct alleged by her to constitute discrimination or racism, dating back to 2013. Although the decision in Bir v Western Sydney Local Health District [2022] NSWCATAD 286 made clear that the period of the Applicant's complaint for determination was from July 2020 (and not earlier), the Applicant insisted in evidence and submissions that these earlier allegations were relevant to the subject complaint. The Applicant submitted that the material was relevant because it showed how the Respondent had previously responded to racial conduct and similar allegations, and could therefore be used as material upon which the Tribunal could draw inferences of fact in relation to her complaint.
2. Having reviewed the Applicant's evidence of events prior to September 2020, and the Respondent's witnesses' responses to that evidence, what is clear to me is that the Applicant had a history of making allegations and complaints in the workplace, which she characterised (either at the time or retrospectively) as about racism or bullying, the Respondent dealt with those complaints, and the Applicant was dissatisfied. Intertwined with those allegations and complaints were industrial issues raised by the HSU against the Respondent, on the basis of matters raised by the Applicant as a union delegate.
3. Save for the 7 May 2021 Statement, which refers to a specific alleged racial slur (being or associated with being a "Tamil Tiger"), for which the Applicant alleges there was previous reference in her workplace, I cannot see how any of the so-called "background material" relied on by the Applicant is relevant to the Tribunal's determination of these proceedings, beyond what I have already outlined.
4. The Applicant's written evidence was entirely self-serving. Despite agreeing under cross examination that she had included 919 pages filed as her affidavits and "didn't leave anything important out", it became clear that where information did not suit her narrative, it was not referred to by her in her written evidence. The "background information" she submitted was relevant to the Tribunal's consideration of her complaint did not include the multiple past investigations into her conduct by the Respondent, or complaints made against her by the Respondent's staff. She didn't include, for example, her secondary employment with MindWise Psychology, or when that secondary employment was approved for and later declined by the Respondent. She didn't include the fact that she had been the subject of serious misconduct allegations in 2019 alleging absences from her workplace without authority, engaging in secondary employment whilst rostered to perform duties for the Respondent, improperly claiming sick leave whilst attending an art festival in Moorambilla, failing to perform clinical and department head duties, and threatening staff who raised concerns about her non-attendance.
5. A significant amount of time and effort was spent by the Respondent in dealing with factual allegations made by the Applicant which were ultimately irrelevant to the Tribunal's determination. There was very little in the factual allegations made by the Applicant which was agreed to or admitted by the Respondent. In addition to the Respondent disputing the factual matters and circumstances alleged by the Applicant, there were multiple versions of events by the Applicant herself, which were inconsistent.
6. Whilst I refrain from making a global assessment of the Applicant's credit, because of the differences in her recount of events and the retrospective "colour" she gives those recounts, and the lack of corroborative evidence to support her version of events, I do not accept the Applicant's evidence except where it is objectively supported by the verified contemporaneous documentary evidence.
7. I specify "verified" because of the concerns raised by the Respondent, which I share, that the Applicant has annexed some documentary evidence in support of her affidavit which has been edited or extracted selectively by the Applicant. The screenshots of text messages annexed to her son's affidavit and the transcript of the Applicant's meeting with Ms Cadman are two such instances where I find this has occurred, which I will address further in these reasons. The edited form of the documents provided by the Applicant to the Tribunal were far more supportive of the Applicant's evidence than they would have been if annexed in their original, unedited form. I find that the selective inclusion of favourable evidence - and exclusion of unfavourable evidence - by the Applicant, including in relation to her son's affidavit, was not inadvertent.
8. In oral closing submissions the Applicant invited the Tribunal to infer from observations of the Applicant's conduct in the witness box whether or not she was likely to use an aggressive tone. My observation was that yes, the Applicant was very argumentative in the witness box and defensive, and certainly raised her voice in that context. I could infer from that conduct, as invited to do so, that she was likely to have raised her voice in the other contexts which were alleged by the Respondent's witnesses. I do not so infer from my own observations, however, because the evidence amply satisfies me of that fact without my own observations.

The Respondent's evidence

1. There was extensive cross examination of each of the Respondent's witnesses on why they had included certain matters in their affidavit and not others, how their affidavits had been drafted and edited, and the extent of the Respondent's solicitors' involvement in their creation. This took up a considerable amount of time at the hearing. However, each of the Respondent's witnesses was open about the assistance provided to them by the Respondent's solicitors in drafting their affidavit, and where the witness had failed to attach a document then located by the Applicant, or failed to include information about something, there was nothing material about that exclusion or missing information.
2. In contrast to the Applicant's evidence, where it was identified that a fact or matter had not been included in the Respondent's evidence, there was no evidence to suggest that this was a deliberate exclusion so as to create a more favourable impression of the Respondent, or a less favourable impression of the Applicant. There was also no selective editing of supporting documents annexed to the affidavits of the Respondent's witnesses.
3. The Respondent submitted that different teams of people were involved in risk assessing different complaints, and then independent decisions were made based on briefing reports prepared by those assessment teams. Actual reasons for decision were based on those briefing reports. Based on the evidence of the witnesses involved in assessing the complaints (Mr Sheargold, Mr Drinan) and the evidence of the decision makers (Professor Brakoulias, Ms Dominish), I accept that evidence.

Professor Brakoulias and Ms Dominish

1. The decision-makers were Professor Brakoulias and Ms Dominish. Both Professor Brakoulias and Ms Dominish are in higher level executive management roles at the WSLHD. Ms Dominish's role involves the oversight and management of over 1400 clinicians. Professor Brakoulias was the initial decision maker and Ms Dominish was appointed as the second decision maker after an industrial compromise was reached following Industrial Relations Commission dispute proceedings. Both Professor Brakoulias and Ms Dominish explained their mental thought processes and reasoning. Professor Brakoulias relied heavily on the documents and willingly admitted that his independent recollection was poor. He recalled the meeting of 18 February 2021 and the impression he had of the Applicant during that meeting, but was unable to recall details of the letter given to the Applicant at that meeting without referring to that letter. This is fair considering the passage of time and the volume of similar correspondence he would have dealt with in his senior role. Ms Dominish also relied heavily on the documentation, which is fair for the same reasons. Despite being subjected to sometimes facetious and repetitive questioning, Ms Dominish was a very straightforward, reasonable witness. She conceded when she relied on other people.
2. What both Professor Brakoulias and Ms Dominish do independently recall, however, is the tone of the Applicant in her communications (in the meeting for Professor Brakoulias, and via emails for Ms Dominish), and their impression that it was inappropriate for a head of department. Considering their experience and positions, I accept that evidence and prefer it to the Applicant's where they conflict.

Mr Drinan

1. Mr Drinan conducted the risk assessments at the request of Mr Sheargold, reported their outcomes by briefing Professor Brakoulias, and attended the 18 February 2021 meeting with Professor Brakoulias to inform the Applicant of his conclusions. As a witness he was willing to make concessions and gave the impression of being a 'straight shooter'. He accepted in cross examination that his assessment of the 14 January 2021 meeting was entirely based on the documents provided to him. Whilst the Applicant criticises Mr Drinan for being unable to explain in cross examination the basis for his view that the Applicant's conduct during the 14 January 2021 Meeting was a breach of the Code of Conduct, the assessment conducted two years prior to his cross examination speaks for itself. His reliance on those written risk assessments is entirely reasonable. In relation to Mr Drinan's conduct of the risk assessments I rely on the information contained in those documents (A17 and R29).
2. During cross examination Mr Drinan was referring to his own notes about various records, which were called for by the Applicant. The Respondent initially claimed privilege and then ultimately decided not to press that claim. Despite this, the Applicant did not tender those notes or otherwise refer to them in support of any submissions. I infer therefore that there was nothing in those notes which would assist the Applicant.
3. I accept Mr Drinan's evidence. Particularly, where Mr Drinan's evidence about the meeting of 18 February 2021 conflicts with the Applicant's recollection of that meeting, I prefer Mr Drinan's evidence.

Mr Holmes

1. Mr Holmes was an impressive witness who provided significant assistance to the Tribunal in understanding the relevant legislative framework in which the Respondent operated, and the application of its policies and procedures, including misconduct and work health and safety. In relation to the Applicant he was careful to limit his evidence to that which was within his own knowledge, and relied on information provided to him by his colleagues, which is entirely reasonable. He clearly stated or informed the Tribunal when a fact stated by him was not within his own knowledge, and explained where he had obtained the information. I accept his evidence.

Ms Lorenzen

1. Ms Lorenzen, who no longer worked in the WSLHD, was a softly spoken witness who spoke matter-of-factly about the matters she was questioned about. She made appropriate concessions and readily admitted to any shortcomings in the documents annexed to her affidavit in relation to events from 2016 and 2017, stating: I did my utmost best to do this over Christmas in addition to my usual duties, in circumstances of it being 6 years previous… I only had access to my emails, I had no access to the corporate records maintained by WSLHD
2. I accept Ms Lorenzen's evidence and prefer her account of events, especially including the 'Tamil Tiger' allegation, over the Applicant's.

Ms Fozzard

1. Ms Fozzard was a witness who was very candid in her responses to questions in cross examination. She admitted that it was her "preference" that the Respondent "win these proceedings". She admitted that it would be reasonable for the Applicant to be concerned about a disciplinary process in the context of the 14 January 2021 meeting, despite that meeting not being classified as a disciplinary meeting: McIntosh: It's reasonable they may be concerned regarding a disciplinary process Fozzard: It's a leap. But yes.
2. Ms Fozzard was firm in her evidence but willing to make concessions. She accepted that she was not trying, in the 14 January 2021, to "test" anyone and explained that her role was to manage the meeting and de-escalate it when the Applicant escalated: I did pause and gave the Applicant time to calm down and de-escalate. I tried to give her time. I paused and asked her if she was ok. I reclarified Mr O'Halloran's statement to try to resolve the feelings of distress which I observed the Applicant to have. I was paraphrasing. I'm not sure if she could hear properly because of the skype connection. I was trying to calm things down to resolve her upsetness.
3. Ms Fozzard agreed that it was appropriate for the Applicant to end the meeting, and it was appropriate for the Applicant to be honest about the meeting making her upset. Nevertheless she was firm in her evidence that the Applicant had been reasonably aggressive towards Mr O'Halloran, in terms of her tone, firmness and volume. She was also firm that the Applicant's email, which became the subject of a performance improvement plan (PIP), was inappropriate and objectively disrespectful. I accept Ms Fozzard's version of events where it conflicts with the Applicant's.

Ms Guzewicz

1. I agree with the Respondent's submission that Ms Guzewicz was unnecessarily subjected to extensive cross examination by the Applicant's counsel. Ms Guzewicz was not a decision maker. The only factual matter in dispute in relation to Ms Guzewicz' conduct of the investigation was whether, as Ms Guzewicz opined, the Applicant was being 'uncooperative'. Her undisputed evidence was that she was not able to progress the investigation into the Applicant's alleged misconduct. The objective evidence demonstrates that Ms Guzewicz's inability to progress the investigation was due to the Applicant's refusal to confirm her attendance at a set interview, and the complaint the Applicant then made about her process.
2. Under extensive and lengthy cross examination Ms Guzewicz was clear, reasonable, and made appropriate concessions. I accept her evidence.

Ms Adair

1. Ms Adair worked alongside the Applicant from 14 June 2016 to 16 September 2019 and the only relevance her evidence has is to the 'Tamil Tiger' allegation included in the 7 May 2021 statement. Her evidence was clear and straightforward and she denied emphatically that she had initiated the term 'Tamil Tiger' in relation to the Applicant in 2019, as alleged by the Applicant. She also gave evidence that she was not sure what a 'Tamil Tiger' was, or why it was insulting, but despite feeling threatened by the comment made by the Applicant towards her, and finding it strange, she did not make a complaint about it as she was "not required to". Although accepting threats can be a breach of the Code of Conduct, her view was: I'm not in the habit of taking every comment further. I deal with things myself unless I think the organisation needs involvement.
2. Ms Adair gave evidence that the allegations made by the Applicant about her were "so far from the truth" that she felt compelled to appear at the Tribunal to give that evidence. I accept Ms Adair's evidence and prefer it where it conflicts with the Applicant's evidence.

Mr Sheargold

1. Mr Sheargold was a reliable, credible, honest and candid witness. Mr Sheargold bore the brunt of the Applicant's emotional distress after the meeting of 14 January 2021 when she called him (as HR) to complain. He was clear in his evidence of his role in the Applicant's allegations and quick to acknowledge when he had not included something in his affidavit evidence, including the initial assessment he conducted. The evidence of that initial assessment was then provided. I accept his evidence and prefer it where it conflicts with the Applicant's evidence.

Ms Caswell

1. Ms Caswell's evidence at hearing was relatively short. She admitted that she may have said the words attributed to her by the workers compensation investigator in relation to the previous director telling her that the Applicant's "father was a Tamil Tiger". She was not asked by the Applicant why she had stated that, or why the reference had been removed from the signed version of the statement. She denied that she wished to "distance herself" from those words. Her evidence was straightforward. I accept her evidence.

Ms Nambiar

1. Ms Nambiar's affidavit evidence was limited, but at hearing she provided the Tribunal with significantly more information about her role in the Applicant's allegations, and in relation to the alleged dissemination of the draft workers compensation statement which included a reference to 'Tamil Tigers'. She spoke unreservedly and admitted freely that this information had not been included in her affidavit because "it wasn't relevant and I wasn't asked… I understood that Ms Bir had already explained how the statement was provided to her". I accept her evidence and prefer her explanations of what occurred over the Applicant's submissions based on conjecture. Based on her role and experience, I also accept her evidence of the reasonable concerns held by WSLHD in relation to the Applicant's behaviours and conduct, and its impact on others at work, the fact that the Applicant's behaviours contributed to at least two employees submitting workers compensation claims, and the Applicant's pattern of behaviour leading to stalling of legitimate management processes.

Ms Cadman

1. Ms Cadman was a reasonable and measured witness. She conceded possibilities regarding the Applicant's concerns when they were put to her in cross examination, but pointed out that it was the Applicant's seniority which contextualised her conduct in the interview of 28 February 2022. I accept Ms Cadman's evidence and prefer it over the Applicant's evidence.

Relevant Factual Findings

1. There is significant dispute between the parties on the facts, so it is necessary for the Tribunal to make findings about what exactly occurred or was said in relation to each of the incidents or conduct alleged, before it can be determined whether or not that conduct amounted to discrimination.

Interpersonal conflict between the Applicant and Ms X

1. The meeting of 14 January 2021 which is central to the Applicant's complaint of race discrimination and consequential victimisation was preceded by an interpersonal conflict between the Applicant and a graduate psychologist reporting to Mr O'Halloran, Ms X. The Applicant's evidence is that: 1. She made a complaint about Ms X disturbing staff in the OT Department to Mr O'Halloran. 2. Ms X then made a "retaliatory" complaint against her. 3. She was then unfairly required to attend a counselling meeting with her manager, Carolyn Fozzard, and Ms X's manager, Mr O'Halloran. 4. During the meeting on 14 January 2021 she claims to have been belittled, her complaints minimised, and was impliedly accused by Mr O'Halloran of giving preferential treatment to a staff member who was the same ethnicity as herself, by Mr O'Halloran stating "Does Rajinder [Kaur] come to your office?". 5. Following the meeting the Applicant complained that her treatment during that meeting of 14 January 2021, where she claims to have been belittled, accused of showing preferential treatment, and that her complaints about safety breaches were not taken seriously, was race discrimination. 6. Instead of properly dealing with her complaint of race discrimination, the Respondent then victimised the Applicant by conducting performance management and disciplinary processes, based on her conduct during that meeting.
2. The circumstances of the Ms X complaint are therefore relevant to understanding the Applicant's claims. At paragraph 28 of the Applicant's 12 November 2022 affidavit, the Applicant states: On 3 December 2020 I emailed Paul O'Halloran, Department Head of Psychology who is white, about Ms X, a worker from Mr O'Halloran's Department visiting my Department. Ms X had been visiting my Department for some weeks prior to that date for periods of half an hour to an hour at a time. While there I had observed her gossiping to members of staff about non-patient related matters. Among the members of staff that I observed Ms X gossiping in this way with were Sead Asiana and Brenda Ha. I emailed Mr O'Halloran because Ms X was distracting employees for whom I had managerial responsibilities by talking to them and telling them she had no work to do. Although I did not state so in my email, I was also concerned that Ms X was not conforming to COVID-19 policies while she was in my Department. A copy of the email I sent to Mr O'Halloran is annexed to this affidavit and marked "OB-8".
3. The email annexed as OB-8 dated 3 December 2020 states: Hi Paul I'm sorry to raise issues with Ms X again. Apparently she came to the OT office and stated that she had put aside time for patients move in Boronia which was delayed. She said to some of my team members that she had no work to do and asked them if they had things to do which she can do for them staying in the office area - distracting all other staff with loud conversation and social chit chat. I have nil issues with other staff coming over at lunch time but OT office is not a social club for her to come and utilise the space. I am sure she has an allocated desk space and I really don't appreciate her coming and telling my staff that she has no other work to do hence she wants to spend time with my team members. We have an open office space and other staff are doing their clinical work so we are mindful of our own communication and tone so we don't disturb other staff members. Can I please request that you deal with this matter as her manager. I have spoken with my team and they have clearly informed me that they did not invite her. It is also very unprofessional for her to come and say to them that she has no work or patients to see. She might not, but we do and staff in the office are trying to finish their work. It is inappropriate for her to come and get the other staff involved in irrelevant conversations during work hours. Thanks for addressing this Paul.
4. The earlier correspondence from the Applicant complaining about Ms X's conduct was not included in her affidavit or its annexed material. Following the Applicant's email of 3 December 2020, on 9 December 2020 Ms X made a complaint of workplace bullying against the Applicant, which was sent to Ms Fozzard, and attached to Dominika Nambiar's affidavit. Ms X's complaint provides a history of alleged bullying and intimidatory conduct by the Applicant towards Ms X from August 2020, starting with an email sent by the Applicant on 5 August 2020 to Ms X's manager Mr O'Halloran (Psychology Head of Department), Ms Fozzard, and Victor Syquia, (Social Work Head of Department) with the subject line "Inappropriate ways of working". The email sent by the Applicant stated: Hi all I'm sorry but for the past few days I have noticed Ms X sitting on the floor in the social work office with a milk crate as her desk and working from there. I think it is inappropriate and leaves us open to many work health and safety issues. I asked her if she has an office space and her response to me was "I'm here for the grand rounds". This is not true and accurate as I have witnessed her working this way for the past few days. It needs to be addressed and if there was inadequate office space then for her then you need to address it Paul. It is also not good to provide inaccurate information when I have witnessed this happen for the past few days. You can say it is not my business as the social work office is not my domain and Ms X is not my staff however as a senior manager - this is not acceptable work practise and if I see it I need to address this.
5. Mr O'Halloran responded to the Applicant's email thanking her "for raising this", confirming that Ms X had office space, and stating "I will have a talk with her to determine what the issue is". This was not sufficient for the Applicant, who then immediately responded: Thanks Paul - it is the most inappropriate way of working I have ever seen and even though it might be her choice to do this, it is not appropriate and even worse to say that this was the only occasion when I have seen her myself and wondered why this is happening. I raised this with her as it seems to be a regular thing - one off I would have been happy to ignore it. We fought hard for appropriate office space, ergonomic issues and work, health and safety and hold our organisation responsible for offering us decent work space and then staff go ahead and create something which is against all these principles. We cannot then go back to the organisation and say it is their doing. It is good to have collegiate support however all within safe boundaries remains professional.
6. The back and forth between the Applicant and Mr O'Halloran continued via email as the Applicant insisted Ms X's version of events was incorrect. The email chain was annexed to Mr Drinan's affidavit.
7. Ms X's complaint denied that the Applicant had sought to clarify her presence with her, contrary to the Work Health and Safety: Better Practice Procedure policy, NSW Health Code of Conduct standard 4.1.5, and NSW Health Core Value of "Openness", and said that the Applicant's complaint "made me feel intimidated and unreasonably criticised", being "unreasonably placed in a position where I had to defend and justify my actions before multiple senior staff members, without cause". The other incidents raised by Ms X included the Applicant standing over her while she conversed with Occupational Therapy department clinicians, cutting off the conversation; the Applicant copying in Ms X's team members to an email imposing her view of a patient's treatment on Ms X and suggesting she hadn't already engaged with the patient; and sending further email complaints to Mr O'Halloran about Ms X's presence in the Occupational Therapy department on 3 December 2020, alleging Ms X was "distracting clinicians with loud conversations and social chitchat", without actually speaking to Ms X directly.
8. The Applicant submitted that Ms X's complaint was "retaliatory". I accept that following the Applicant's complaint about Ms X to Mr O'Halloran, Ms X made a complaint about the Applicant. I don't accept that complaint was "retaliatory", in the sense that the complaint was made purely or substantially for the purposes of revenge against the Applicant. Ms X had a reasonable basis for making the complaint, irrespective of whether the Applicant had made a complaint about her.
9. Even without determining the veracity of Ms X's complaints about the Applicant, the evidence is clear that there was a significant power imbalance between her and the Applicant, in circumstances where Ms X was a junior psychology registrar new to Cumberland Hospital, and the Applicant was a Head of Department at Cumberland Hospital. The evidence objectively demonstrates that the Applicant chose to report her concerns or complaints about Ms X to Ms X's superiors across Departments, rather than engaging directly with Ms X herself to address any concerns, or allowing Ms X to rectify any perceived issues. Given the power imbalance, this would reasonably cause Ms X to feel intimidated by the Applicant and to feel like her workplace was not a collaborative or supportive environment.
10. While I accept that on 3 December 2020 the Applicant complained about Ms X's conduct to Mr O'Halloran, Ms X's manager, I don't accept that the conduct described by the Applicant occurred as she has since described it in her affidavit evidence and in the CPOC.
11. First, I do not accept the Applicant's evidence of the genesis or justification for her complaints about Ms X. Ms Fozzard's evidence about these circumstances, which is conveniently left out of the Applicant's "background" evidence, was that the Applicant had sent a number of emails regarding Ms X to Mr O'Halloran and Ms Fozzard between August and October 2020. Until 9 December 2020, the Applicant's complaints focus on Ms X "distracting all other staff with loud conversation and chit chat", coming to her Department to socialise with other staff members, and stating that she was "bored" or did not have enough work. The only complaint raised in the context of work health and safety was an allegation that Ms X had been "sitting on a milk crate" or "sitting on the floor" and this was inappropriate because of organisational issues regarding work space. I therefore accept Ms Fozzard's evidence in her affidavit that she considered the concerns raised by the Applicant in respect of Ms X were "a low-level risk, and as such they only required local intervention". I agree with that characterisation of the Applicant's concerns as they were raised.
12. Second, the Applicant's email of 3 December 2020 implies she was told by a team member what had occurred, rather than herself being witness to it: Apparently, she came to the OT office… She said to some of my team members…
13. Third, I do not accept that the Applicant raised any concerns about COVID-19 as the basis for her complaint about Ms X. There is simply no contemporaneous evidence that this was the case, in a context where such concerns were considered extremely serious at that point of time at NSW Health, and would have squarely been raised if they were in issue. There are no references made to COVID-19 in any of the emails sent by the Applicant in the lead up to or following the meeting of 14 January 2021. I find that the reference to COVID-19 concerns by the Applicant in her affidavit is a retrospective and self-serving explanation provided by the Applicant for the purpose of making a trivial interpersonal or managerial issue raised by her - her dislike of Ms X coming to her Department and talking to her staff members, and a complaint that Ms X was sitting on the floor instead of in her office - into a "safety issue" that could justify her reaction in the weeks following, justify the involvement of the HSU and the commencement of industrial proceedings, and was intended (if accepted) to add weight to her claim against the Respondent.
14. Fourth, I do not accept the Applicant's complaint that Ms X was mocking her, or that she was the subject of verbal derision, mocking, insults and/or abuse by Ms X in the period prior to December 2020. The Applicant does not even make the allegation until after the 14 January 2021 meeting. There is no corroborative evidence that this occurred from any of the Applicant's fellow or reporting staff members who may have witnessed such occurrences. There is also no reference to this part of the allegation in any of the Applicant's written submissions. There is simply no evidence to support this allegation other than the Applicant's assertion, which I do not accept.
15. It is only on 18 December 2020, once the Applicant is informed of Ms X's complaint against her, that the Applicant escalates her concerns about Ms X expressed in the email of 9 December 2020 to a 'grievance' (whether formal or informal). In her email of 18 December 2020 at 11.28am she complains to Ms Fozzard that she has not provided her with an opportunity to clarify or provide evidence of her allegations, accuses Ms Fozzard of using "strong words to mitigate me", breaching her privacy and confidentiality, humiliating her, contravening the grievance policy, and refers to getting the HSU involved. By 14 January 2021, following her meeting with Ms Fozzard and Mr O'Halloran about Ms X's complaint, the Applicant has exaggerated her characterisation of Ms X's conduct as "mocking of her" and "mockery", "waving and laughing at her", "immature and unprofessional behaviours", and states that Ms X is not welcome to come to the OT Department to collaborate with the OT team.
16. The Applicant refers in her email of 14 January 2021 to "the evidence from the OT staff" supporting her allegations regarding Ms X's conduct. Presumably this includes or is part of the evidence she complains Ms Fozzard did not allow her to provide on 18 December 2020. By the time she drafts her affidavit in November 2022 she refers to: …concerns that had been transmitted to me from my staff members, Sead Aslani and Brenda Ha, that Ms X was sitting on the floor in the Occupational Therapy office for extended periods for no obvious reason and that she had talked to staff there and said that she had no work and was bored"
17. The Applicant's complaint about the Respondent's differential treatment of her includes an allegation that they minimised or "mitigated" her concerns, and refused to accept or consider the evidence she had supporting her allegations. The Applicant insisted in her evidence that she was raising concerns with Ms X's conduct, with Ms X's manager (and others) because these concerns had been relayed to her by her staff, that her staff were being disturbed by Ms X's conduct. Were this true, it would provide some justification for the Applicant's conduct in raising issues with Ms X's managers and other Department Heads, rather than simply discussing any concerns she had directly with Ms X in a collaborative setting. If true, it could also add weight to the Applicant's complaint in these proceedings that she was treated less favourably than others not of her race, ethnicity or skin colour, in the manner by which the Respondent dealt with her complaints.
18. I find that it is not true. The Respondent's evidence does not support a finding that the Applicant's allegations about Ms X were founded. The only evidence about Ms X from the Applicant, other than her own assertions (which I do not accept), is the neutral reference made by Mayuri Parmar in her 9 November 2022 affidavit at [7]: However I am aware that Ms X visited the Applicant's Department in the last couple of years about once or twice a week. Sometimes she would talk to the staff at the Applicant's Department in relation to clinical matters but she also sometimes visited just to stay to say hello. I sometimes talked to her myself. When she was not discussing clinical matters Ms X would ask what was happening to people in their private lives and how they were going generally.
19. There was absolutely no evidence provided by the Applicant that supported the assertions made by her that she had evidence of or had otherwise received complaints from other staff members about Ms X and her behaviour. There was also no evidence from anyone other than herself that Ms X had mocked the Applicant, subjected her to derision or insults, or abused her. I therefore find this aspect of the Applicant's complaint completely unfounded.

The 1 September 2020 Conduct

1. There were no written or oral submissions made by the Applicant about the 1 September 2020 Conduct, other than to state that the letter the subject of the conduct was withdrawn by the Respondent.
2. The Applicant bears the onus and has failed to demonstrate that the 1 September 2020 Conduct was discriminatory within the meaning of the Act.

The 14 January 2021 Meeting

1. The 14 January 2021 meeting was attended by the Applicant, Ms Fozzard and Mr O'Halloran. The Applicant attended by videolink. All three attendees provided their account of what occurred at the 14 January 2021 meeting.
2. Ms Fozzard's filenote of the meeting of 14 January 2021, prepared and signed by her on 14 January 2021, provides a contemporaneous and detailed account of exactly how the meeting unfolded, who said what, and a timeline of what occurred until 12.24pm when she acknowledged the Applicant's emailed complaint. I accept that filenote and prefer the evidence it contains where it conflicts with the Applicant's.
3. Ms Fozzard's affidavit evidence was that she received complaints from the Applicant about Ms X and considered them a "low-level risk". Then, on 9 December 2021 she received Ms X's complaint about the Applicant. She stated: I considered that the appropriate course of action was to propose a meeting with myself, Mr O'Halloran and Ms Bir to discuss how to best deal with Ms X's complaint. My intention was for this meeting to be a collaborative discussion with Heads of Department about how to support a junior staff member and align on a good management plan moving forward to ensure a collegiate work environment to lead to best patient outcomes.
4. Ms Fozzard's evidence is clear that there was no intention to use the meeting to put specific allegations to the Applicant, and a copy of Ms X's complaint was therefore not provided to the Applicant.
5. Ms Fozzard opened the meeting at 9.05am. The Applicant spoke about her communication and contact with Ms X. Mr O'Halloran then provided a summary of his experience with Ms X. The Applicant is described by Ms Fozzard as interrupting Mr O'Halloran to disagree with him frequently, assertive in stating that "Ms X is not welcome in the Occupational Therapy space" and that Ms X was not welcome to "spend hours and hours" there. When Mr O'Halloran disagreed with the Applicant about being there "for hours", the Applicant raised her voice, became personal and confrontational, stating "how would you know, you weren't there".
6. According to Ms Fozzard: Mr O'Halloran asked Ms Bir words to the effect of whether "any of his other staff attended the Occupational Therapy department" to which Ms Bir said "No". Mr O'Halloran then asked Ms Bir whether Ms Rajinder Kaur visited the occupational therapy department, to which Ms Bir replied words to the effect of "Never, only to orientate [Ms X]".
7. Ms Fozzard's evidence is that the Applicant's behaviour deteriorated at this point, she began to raise her voice at Mr O'Halloran, was clearly upset and began to cry uncontrollably and said: You had only asked this because Ms Kaur is of the same race as me…. This is discrimination….This is so unprofessional….I will be raising a complaint!
8. Ms Fozzard's filenote stated: After a pause, OB suddenly raised her voice stating she was offended by POH's question and that this question was only asked because as Rajinder is of the same race as OB. POH attempted to reply however OB was now uncontrollably crying and yelling saying that this is discrimination against herself and that this is completely unprofessional. OB yelled she would file a formal complaint. CF reminded Omila that she is raising her voice, and OB said she was aware.
9. Ms Fozzard's affidavit stated: At this point I said words to the effect of "it had not been Paul's intention to offend you", to which Ms Bir replied in a raised voice to me in an abrupt manner "how would you know?" Mr O'Halloran then attempted to explain that he had asked about Ms Kaur as he only had two psychologists report to him who worked in clinical psychology recovery services, being Ms X and Ms Kaur, and he "wanted to understand whether Ms Kaur was also attending the occupational therapy department". Mr O'Halloran also said words to the effect that he "did not understand [Ms Bir's] response or how what he said was wrong". I'm not sure if Ms Bir was able to fully hear Mr O'Halloran's explanation as she was speaking loudly and crying, however I do recall her telling Mr O'Halloran words to the effect of "I work with many psychologists" to which Mr O'Halloran then responded to the effect that he was "trying to ask specifically about his staff who worked in the rehabilitation space". My observation of Mr O'Halloran is that he is a quietly spoken individual. During this meeting he was articulate and clear and remained very calm. I recall that when Ms Bir began to get upset he began to slow down his speech and attempted to defuse the situation which had become escalated. I recall that Mr O'Halloran did not say too much more once Ms Bir began to be very upset. Ms Bir terminated the Skype video call at around 9:40 AM…
10. The Applicant's affidavit evidence is that the meeting invitation had the subject "meeting regarding [Ms X] grievance", and that Mr O'Halloran began the meeting by stating that she had made him "waste time in these investigations". She "raised concerns that had been transmitted to me from my staff members" and Mr O'Halloran accused her of making a derogatory accusation. The Applicant stated: I expressed the view that, for these reasons, as well as the COVID restrictions, Ms X should not come to the occupational therapy department. I also expressed the view that for work matters she was welcome to collaborate with workers in my department using emails zoom and Skype as per the directives of the Department of Health. As the meeting was not leading to any resolution of the above issue, I then asked for the meeting to end. Mr O'Halloran then asked whether I had problems with any other members of his department. I answered that if I had any such problems I would have told him. Mr O'Halloran then stated words to the effect of Does Rajinder come to your office? … I replied using words to the following effect: Rajinder has not come to my office except when she brought Ms X with her to introduce her to me.
11. In an email sent the afternoon of the 14 January 2021 meeting, the Applicant's account of what occurred at that meeting was somewhat different to her affidavit account. There was no reference to COVID restrictions, the significance of which I have addressed above. The Applicant stated in her email: There was nil resolution happening in the meeting and I found Paul's attitude very mitigating and dismissive so I stated that I would like the meeting to end and stated that I have taken the matter to my clinical supervisor who is very experienced and I should not have to meet with Ms X about these issues as I do not manage her and that my interactions with her would only be in relation to MDT and common patients. I reassured that those interactions have always been respectful and will always be respectful I had also stated that if Ms X finds my presence intimidating that I can't do anything about this as I don't have multiple personalities and can only be who I am. In any case if she does not like me then she should avoid coming to the OT department where she is likely to find me, it should be common sense. Paul then went ahead and asked me if I had any issues with any other staff member from his department to which I stated if I had a problem I would have told him. Paul then went ahead and asked me specifically, Does Rajinder come to your office? I said to him that on no occasion has Ms Kaur ever come to my office. My office is available to my staff if they want to use it and that there is no visitor who comes and sits in my office for hours as Ms X does when she comes to gossip and disturb other staff. I told him that Ms Kaur has never come to my office except for the time when she brought Ms X to introduce her to me.
12. Whilst Mr O'Halloran's affidavit was not accepted by the Tribunal on the basis that he was not made available for cross examination, the annexures to his affidavit, comprising an email dated 18 January 2021 attaching his notes of the 14 January 2021 meeting, and an "Outcome of Review" letter dated 26 February 2021, were included in the evidence before the Tribunal. Mr O'Halloran's meeting notes were titled "Meeting to Attempt Resolution of Complaint by Ms X". I have extracted relevant disputed excerpts below: The meeting commenced by Carolyn outlining the purpose of the meeting namely to facilitate a resolution to the complaint from Omila within agreed parameters, regarding her perceptions of the behaviour of Ms X a Department of Psychology Staff in the Clinical Psychology Recovery Services. … On asking if she believed other staff from Clinical Psychology Recovery Services CPRS under my line management had also been visiting the OT department excessively or inappropriately, for example Rajinder Kaur the only other Clinical Psychologist in Clinical Psychology Recovery Services CPRS and team colleague of Ms X, Omila launched into a barrage of highly emotional, irrational, volatile, accusatory and belligerent personal attacks on myself delivered in an aggressive tone that were way outside of the agreed scope of the meeting as I saw it and very personal in nature. … My attempts to further comprehend her views about the nature and extent of any other possible "inappropriate" interactions between my psychology staff in the CPRS team (to which Ms X belongs), and the OT department did not warrant the reaction from Omila which I felt as an aggressive and accusatory response which I experienced as personally directed at me and was not in the spirit of objectively attempting to find some resolution of the problem and conciliation over the issues raised by Omila. There was absolutely no racial or discriminatory element intended in simply inquiring about the extent of the perceived problem in the interactions between the CPRS team and the OT Department.
13. I find that Ms Fozzard and Mr O'Halloran's documented accounts are largely consistent and accept those documents as evidence of what occurred. As referred to above, I prefer the evidence of Ms Fozzard where it conflicts with the Applicant's.

Comparator

1. In opening written submissions, the Applicant submitted that the essential allegation in relation to the 14 January 2021 Conduct is that the Applicant was belittled by the Respondent, that she was accused of showing preferential treatment, and that her complaints about safety breaches were not taken seriously. The Applicant submitted that the 14 January 2021 Conduct amounted to differential treatment, on the basis that the NSW Government Policy Directive titled "Resolving Workplace Grievances" (Document Number PD2016_046) (Resolving Workplace Grievances Policy) applied to the 14 January 2021 meeting, and an hypothetical comparator, "being a person raising a grievance to the Respondent(s) but who was not of the Applicant's race" would have been treated in accordance with the Respondent's policies, including the NSW Health Code of Conduct, where the Applicant was not.
2. With respect to the comparator proposed for the 14 January 2021 conduct in the CPOC (at [107] above), the evidence does not support the facts alleged to constitute the relevant circumstances. The evidence supports a finding that the Applicant complained about Ms X with a range of allegations including minor work health and safety concerns, her presence in her department, disturbing her staff members through "loud conversations and social chitchat", complaining that she was bored and had no work, and "mocking" her. The evidence also supports a finding that the Applicant was the subject of a complaint by Ms X. The evidence supports a finding that although not Ms X's manager, the Applicant was a manager of other staff in a senior position at the hospital, and the person she was complaining about - Ms X - was a junior staff employee in another department.
3. As discussed above, the evidence does not support a finding that the Applicant was the subject of a retaliatory complaint for having raised work health and safety issues, that any work health and safety issues were established, or that the Applicant was actually the subject of verbal derision and mocking by Ms X.
4. In my view the relevant circumstances of the 14 January 2021 Conduct are a meeting between an employee, their manager and the manager of the individual who they have complained about, and who has complained about them, to discuss and resolve the issues raised by the employee. The comparator would therefore be: 1. A person not of the Applicant's race; 2. who was a manager or senior level employee; 3. who made a complaint (or complaints) on a range of issues about a junior employee's conduct at work, who they were not supervising; 4. who was the subject of a complaint by that junior employee; and 5. who attended a meeting with her manager and the other person's manager to discuss and resolve the issues raised.
5. Before we even get to the comparator, however, the Tribunal has to determine whether the alleged conduct which is the subject of the complaint occurred.

The conduct alleged

1. I accept that, as pleaded in the CPOC, the Applicant complained at the meeting of 14 January 2021 that Ms X had mocked her. For the reasons expressed above, I do not accept that the Applicant's complaint was justified. This becomes relevant when considering the Applicant's reaction in the meeting.
2. Remaining in dispute is whether, in fact, Mr O'Halloran "belittled", "minimised", "mitigated" or "used a dismissive tone" in response to the Applicant's complaint, whether her "complaints about safety breaches were not taken seriously", and whether Mr O'Halloran accused the Applicant of engaging in preferential treatment towards Ms Kaur.
3. I am not satisfied that the Applicant was "belittled" by the Respondent, or that her concerns were "otherwise minimised". The evidence from Ms Fozzard, which I prefer to the Applicant's account of the conversation between the Applicant and Mr O'Halloran during the meeting, was that the Applicant constantly interrupted Mr O'Halloran to disagree with him. The evidence from Ms Fozzard, Mr O'Halloran and the Applicant is that the Applicant was given an opportunity to express the concerns she had with Ms X, and did so. The fact that the Applicant was provided with the opportunity at the 14 January 2021 meeting to discuss her concerns with both her manager and Ms X's manager demonstrates that the Respondent was not dismissive of the Applicant's concerns. The fact that Mr O'Halloran presented a differing view to the Applicant's does not support a finding that that the Applicant was thereby belittled or dismissed, or her concerns minimised.
4. On the basis of Ms Fozzard's evidence about Mr O'Halloran's demeanour during the meeting, I do not accept that Mr O'Halloran used a dismissive tone. I accept that the Applicant may have perceived Mr O'Halloran to be using a dismissive tone, or to have been dismissing of her concerns, but that perception cannot support a finding of that having occurred in reality, especially in circumstances where there is consensus that the Applicant became deeply distressed during the meeting.
5. In any event, even if I found Mr O'Halloran used a dismissive tone with the Applicant, there is no basis upon which I could find that tone constituted differential treatment on the basis of a hypothetical comparator and there is no evidence to support a finding that Mr O'Halloran's use of 'a dismissive tone' had any causal connection to the Applicant's race.
6. As discussed above at [167], the Applicant's characterisation of her complaints as "serious safety breaches" is retrospective and a self-serving exaggeration of the minor safety concerns she raised at the time, revolving around Ms X sitting on the floor and using a milk crate when there had been disputes about work space. I therefore don't accept that "the Applicant's complaints about safety breaches were not taken seriously", and I also don't accept the Applicant's concerns were "minimised" when, on my view of the evidence, they were reasonably considered by Ms Fozzard to constitute "low-level" complaints.

"Does Rajinder come to your office?"

1. On their face, the words "Does Rajinder come to your office?" are innocuous. There is nothing objectively racial or detrimental about them.
2. The Applicant submitted that by stating these words, Mr O'Halloran was implying that the Applicant gave or was giving preferential treatment to another staff member, Ms Rajinder Kaur. This implication, in turn, is based on an assumption that the only reason Mr O'Halloran would have mentioned Ms Kaur's name was because she and the Applicant were apparently racially similar - that his "conduct was motivated by the Applicant's race" because "Ms Kaur, like the Applicant, is of Indian descent and has brown skin".
3. I find that Mr O'Halloran did use the words "Does Rajinder come to your office" but I decline to draw the inferences from those words and the circumstances submitted by the Applicant, that Mr O'Halloran was thereby accusing the Applicant of preferential treatment on the grounds of race, or that Mr O'Halloran asked the question because of the Applicant's race. An inference cannot be made where more probable and innocent explanations are available on the evidence: see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]). An inference drawn to make a finding of fact must be one that is reasonably available on the evidence and capable of being expressed with clarity: Wotton v Queensland (No 5) [2016] FCA 1457 at [116].
4. The Respondent's evidence, which I accept, is that Ms Kaur was the only other psychologist, other than Ms X, in Clinical Psychology Recovery Services who reported to Mr O'Halloran. Both Mr O'Halloran and Ms Fozzard gave that evidence, as did Mr Sheargold. There were no allegations by the Respondent at any stage, in any of the materials before me, that the Applicant gave preferential treatment to another staff member, for any reason. In circumstances where there is simply no evidence anywhere (other than from the Applicant herself) that the Applicant is suspected of giving someone preferential treatment, and where part of the Applicant's complaint about Ms X is that she is visiting the Applicant's department excessively, the more probable and innocent explanation than the one submitted by the Applicant is that Mr O'Halloran asked that question because it was relevant to his understanding of what exactly the Applicant was complaining about to him.
5. I therefore find that the question was not asked by Mr O'Halloran because of the Applicant's race or ethnicity, or to imply or infer any accusations of preferential treatment by the Applicant.

The Applicant's conduct during the meeting

1. It is indisputable that the Applicant had a very strong reaction to Mr O'Halloran asking her "Does Rajinder come to your office?" in the meeting of 14 January 2021. On the Applicant's affidavit account she was "taken aback, offended and humiliated". She "became emotional", was visibly upset, trembling, crying, and "this caused me to be a bit hoarse and louder than normal". In her email of 14 January 2021 the Applicant describes being "taken aback by his racist attitude", said to Mr O'Halloran "how dare you accuse me of this", "found his allegations very distressing and racist", he made her feel "sick in my stomach", she was "trembling, emotional, crying" and claims although she "found it difficult to find my voice when I spoke it was a bit loud and hoarse". The Applicant states that when Ms Fozzard said to her "you are raising your voice" the Applicant responded by saying "what would you expect me to do?" The Applicant described: I was crying as I have never been racially attacked and mitigated like this before… his comments were unwarranted, racist and disgusting.
2. The Applicant's submissions on this reaction were to the effect that they were justified, and not as extreme as the Respondent's evidence suggested.
3. Ms Fozzard's evidence of the Applicant's conduct during the meeting is included at [181] to [184] above. In her affidavit she expressed her surprise at the Applicant's disproportionate reaction: I could not understand how Ms Bir's behaviour had resulted from the discussion. It seemed completely disproportionate to the matters of discussion… the question had sparked extreme behaviour and escalation from Ms Bir. I recall that Mr O'Halloran was visibly shaken following the meeting, which I understood was due to Ms Bir's behaviour and that Ms Bir had indicated that she would be putting in a complaint about him and how she had been racially harmed. I had believed that as a management team, we had agreed to work together to manage the issue with Ms X, however suddenly during the meeting, we were not. I recall feeling shocked to see such a visible emotional reaction from Ms Bir and unprofessional behaviour towards Mr O'Halloran. I could not understand how she had got to that level of distress in such a short amount of time.
4. Under cross examination she described the Applicant as "reasonably aggressive towards Mr O'Halloran in the way she spoke to him … aggression in terms of the tone, firmness of her voice, the heightened volume", but agreed that tone could be subjective.
5. Mr O'Halloran's filenote account of the Applicant's reaction, which formed the basis for his complaint about her conduct, was: As a senior manager/ Head of Department and very experienced professional peer, I personally experienced this unwarranted personal verbal attack as very intimidating, aggressive, misguided and highly inappropriate and unprofessional, especially since it was in a meeting at an Executive and Head of Department Level aimed at conciliation. From my perspective Omila displayed highly charged and dysregulated behaviour including a loud and aggressively raised voice that was inappropriate to the context, where both Carolyn and I found it difficult to speak or interact, including being told to "go away" or similar with Omila ending the meeting abruptly by hanging up on Skype in the midst of mine and Carolyn's attempts to de-escalate and resolve the situation initially raised by Omila in relation to Ms X and to try and bring the focus of the meeting back to a semblance of order and to attempt to understand the reason Omila's sudden and unexpected outbursts. It is highly inappropriate and unreasonable to be personally verbally attacked during a senior managerial meeting attempting to improve communications and find some resolution to her continuing criticisms of Ms X. I have personally found attempts to communicate and constructively resolve these issues objectively to be met with combativeness and personal attacks and vexatious claims about my personal motivations. As such I would like to personally make a formal complaint against Omila Bir for unprofessional behaviour behaving in an aggressive and unwarranted manner in a senior managerial meeting and making vexatious claims about my personal motivations.
6. I do not accept the Applicant's attempt in her affidavit evidence and submissions to minimise her reaction or justify it. In her email complaint of 14 January 2021 the Applicant does not deny raising her voice, but rather justifies it with "what would you expect me to do?" On the balance of probabilities, considering the Applicant's own evidence admitting that she felt humiliated and very distressed, I prefer the evidence of Ms Fozzard and Mr O'Halloran to the Applicant's account of her reaction. The evidence demonstrates that her reaction to Mr O'Halloran stating "Does Rajinder come to your office" was extreme, she became extremely emotional, was crying and raised her voice at Mr O'Halloran to the extent that she became hoarse, accused him of racist comments and conduct, and was unable to be de-escalated by Ms Fozzard or Mr O'Halloran. I also find that the Applicant did abruptly end the meeting by disconnecting her skype connection, on the basis of her own evidence that "I unilaterally ended the meeting", and that of Ms Fozzard and Mr O'Halloran.

Timeline following the 14 January 2021 meeting

1. A timeline of what occurred following the meeting is as follows: 1. At 9.43am, the Applicant sent an email to Ms Fozzard which stated: That was uncalled for Carolyn. That is so discriminatory. 1. Shortly after 9.43am, the Applicant telephoned Mr Sheargold to complain about the meeting which had just occurred, stating: How can you do this to people? You cannot keep doing this to people. You don't care about people. 1. Following his telephone conversation with the Applicant, Mr Sheargold went to the OT department to find the Applicant and "came to understand that she had locked herself into her office and wasn't allowing anyone in or out". 2. Between 9.50am and 11.17am Mr Sheargold telephoned Ms Fozzard and Mr O'Halloran and verbally obtained their accounts of the meeting with the Applicant. Ms Fozzard told Mr Sheargold that "the meeting had not gone well" and she was "concerned about Ms Bir's welfare". Mr O'Halloran told Mr Sheargold that he "considered that Ms Bir's behaviour had been disproportionate and abusive". 3. At 10.06am the Applicant sent a full page email to Ms Fozzard titled "Racist and Discriminatory Behaviour", containing formal complaints against Mr O'Halloran for his 'racist' comment of "Does Rajinder come to your office" and being disrespectful, and against Ms X repeating allegations previously made. 4. At 10.28 am, Ms Fozzard acknowledged receipt of the Applicant's complaint via email and informed her she would liaise with Human Resources. 5. At 11.13am the Applicant emailed Ms Fozzard stating: I would just like to add: Mr O'Halloran was happy to work with "hearsay from the staff" as opposed to accepting that I have witnesses to all incidents. He specifically commented "it was not a couple of hours" when he was not even here to witness it. Displaying a total disregard to what I was saying to him despite the evidence I have. Mr O'Halloran was alleging with his behaviour and words that I have no knowledge of interventions. OT's are trained in highly specific interventions for cognitive remediation - minimising my skills which is uncalled for. Minimising other clinician/manager's conduct is not professional behaviour. Mr O'Halloran alleged if I specifically had Ms Kaur come to the OT office and spend time here, it was specifically chosen by him as we are both from the same country and it was particularly racist. Mr O'Halloran's attitude was disrespectful towards me I got emotional as no one has ever accused me of forming a liaison with a colleague based on our race or country of origin which Mr O'Halloran alleged in the meeting. 1. At 11.17am, Ms Fozzard forwarded Ms Bir's emails to Mr Sheargold. 2. At 11.21am the Applicant sent an email to Mr Sheargold, stating: Thanks for talking to me this morning after a meeting where I felt mitigated, humiliated and targeted by racist comments made towards me. I am sorry I rang you out of the blue and was not able to provide adequate background to you. I was very disturbed and emotional as I have never been accused of forming liaisons with my colleagues based on my country of origin. I needed to speak with someone so I could compose myself and get on with my work today…. I don't think the right protocol and policies were followed in management of a grievance in this instance. 1. At 12.03pm the Applicant sent an email to Ms Fozzard, Mr Sheargold, Professor Brakoulias titled "Feeling Unwell": Hi Carolyn I have never had to put up with such blatant racism as I have been subject to today at the meeting. I am feeling sick and nauseous and have decided to go home. 1. At 12.24pm Ms Fozzard replied to the Applicant, Mr Sheargold and Professor Brakoulias stating: Noted Omila. Take care, Carolyn. 1. At 1.12pm Mr Sheargold emailed Ms Fozzard and stated: I met with Paul at 11am this morning who gave me his account of the meeting. I have asked him to provide a file note/ statement from the meeting which he is agreeable to doing. If you could also please do the same when you have a free moment that would be of benefit. 1. At 3.11pm the Applicant sent an email to Ms Fozzard, Mr Sheargold and Professor Brakoulias titled "Summary of today's meeting", constituting 3 full pages.
2. I infer from the last entry in Ms Fozzard's filenote of the meeting of 14 January 2021, that she prepared the filenote immediately following the request from Mr Sheargold to do so.
3. On 18 January 2021 Mr O'Halloran emailed Ms Fozzard and Mr Sheargold attaching his notes of the meeting of 14 January 2021. He stated: Please find attached my notes from the meeting with Omila Bir, Head of OT department, last week. After reflection and based on Omila's behaviour in this meeting I wish to make a formal complaint about what I feel to be very unprofessional behaviour between senior managers and fellow Departmental Heads.

The 2021 Investigation into the Applicant, and 2021 Dismissal of the Applicant's Complaint

1. The 2021 Investigation into the Applicant, and the 2021 Dismissal of the Applicant's Complaint (as described above at [58] and [59]) was addressed in evidence from Mr Sheargold, Mr Drinan, Professor Brakoulias, Ms Fozzard, Mr O'Halloran and the Applicant.
2. As a result of the meeting on 14 January 2021, two separate complaint processes were initiated by the Respondent. The first was initiated as a result of the Applicant's complaint about Mr O'Halloran's conduct at the meeting. This is referred to in the CPOC: On 14 January 2021, the First or Second Respondent commenced an investigation into the Applicant's complaints about the 14 January 2021 Conduct.
3. The second was initiated as a result of Mr O'Halloran's 18 January 2021 complaint about the Applicant's conduct at the meeting, and is referred to in the CPOC: On about 17 February 2021, the First or Second Respondent, through its representatives Mr O'Halloran, Dr Vlasios Brakoulias, and Mr Gerard Drinan made allegations against, and commenced an investigation and continued it against, the Applicant, concerning the events of 14 January 2021 (2021 Investigation into the Applicant Conduct).
4. The Applicant's pleadings alleged: … by its failure to address or investigate an allegation of racism at work, and by instead commencing an investigation into the Applicant., the First or Second Respondent approved of or acquiesced to racist statements being made at work.
5. The Respondent's evidence via Mr Sheargold and Mr Drinan, which I accept, is that Mr Sheargold instructed Mr Drinan to conduct an initial risk assessment in relation to each complaint, which was done on 19 January 2021. Mr Drinan reviewed the following information for the purpose of his assessment: 1. Complaint from Ms Omila Bir, 14/01/21 2. Emails x 2 from Ms Omila Bir, 14/01/21 3. File note from Ms Carolyn Fozzard, 14/01/21 4. File note from Mr Paul O'Halloran, 14/01/21 5. Complaint from Ms [ X ], 09/12/20 6. Risk assessments x 2 regarding Ms X's complaint, 14/12/20 7. Written responses from Ms Bir to Ms Fozzard, 24/12/20
6. Mr Drinan assessed the risk that Mr O'Halloran had breached the Code of Conduct as 'NIL', whilst the risk that the Applicant had breached the Code of Conduct was identified as 'Medium'. Mr Drinan stated in that risk assessment: It is proposed NIL risks exist from the reasonable actions of Mr O'Halloran. There does not appear to be any merit to Ms Bir's claim that Mr O'Halloran was racially discriminatory towards her. Ms Bir's behaviour towards Mr O'Halloran (and Ms Fozzard) was unwarranted, unprofessional and inappropriate and did not reflect NSW Health Core Values.
7. On 3 February 2021 the Applicant emailed Ms Fozzard, Mr Sheargold and Professor Brakoulias to complain about the processing of her complaints: I raised these concerns almost two weeks ago. - Poorly managed grievance process - Other issues as explained in my email I have not yet received any updates about my concerns. I am curious to find out if there are two sets of rules within our organisation. If there is just the one grievance management policy then I have the right to voice my concerns, get a response and a resolution. From my experience, if there is a complaint against me, the investigation goes ahead full steam - at times without even giving me the opportunity to provide an explanation - however if I raise concerns then they are ignored, not responded to or I am asked to take my complaint back. I would like to get an update about what is being done to address my concerns.
8. The complaint in that correspondence is essentially the complaint the Applicant has made in these proceedings in relation to the 2021 Investigation into the Applicant Conduct and the 2021 Investigation of the Applicant's Complaint Conduct - that the Respondent was treating her complaint less favourably to other complaints it received. What was not yet alleged (but would come) was a complaint that the less favourable treatment was occurring because of the Applicant's race. It is here that the Applicant's complaints began cascading.
9. On 5 February 2021 Mr Sheargold conducted a further risk assessment of the allegation made by the Applicant against Mr O'Halloran, and on 8 February 2021 Mr Drinan revised the risk assessment of the allegation made by Mr O'Halloran against the Applicant. In the 5 February 2021 risk assessment, the allegation is described as follows: The context of the complaint pertains to a question which Mr O'Halloran asked Ms Bir in relation to whether she had any problem with any other staff from the Department of Psychology attending the Occupational Therapy office spae. Mr O'Halloran specifically asked Ms Bir about the attendance of Ms Rajinder Kaur - also a clinical psychologist. Ms Bir stated that Mr O'Halloran was 'alluding that somehow, I was in allegiance with another clinician who is from the same culture, race as me. I found his comments very racist and was very uncomfortable.' Ms Fozzard and Mr O'Halloran have provided respective file notes from the meeting whereby neither considered the subject/question to have any racial connotations.
10. Mr Sheargold noted that on review of the current available information there did not appear to be any express breach of the NSW Health Code of Conduct. The documents considered by Mr Sheargold were the Applicant's complaint, forwarded by Ms Fozzard on 14 January 2021, Ms Fozzard's filenote of 14 January 2021, and Mr O'Halloran's file note dated 18 January 2021. Mr Sheargold noted: Ms Bir has accused Mr O'Halloran of making a racist remark; a serious allegation. While there is presently no evidence to support the legitimacy of Ms Bir's allegation, Ms Bir's complaint should be put to Mr O'Halloran for his response.
11. In the 8 February 2021 risk assessment, the allegation is described as follows: The complaint alleges disrespectful and unprofessional behaviour by Ms Bir, including aggressive, unwarranted communication, and vexatious claims of racism against Mr Paul O'Halloran… After 30 minutes of the meeting, Ms Bir became extremely angry and emotional. Ms Fozzard and Mr O'Halloran indicate that Ms Bir's subsequent, sudden and escalated verbal attack upon Mr O'Halloran was extreme, and a most inappropriate response to a reasonable question, and attempted measured discussion, to resolve a genuine staff and service concern issue.
12. Mr Drinan noted that on review of the filenotes of Ms Fozzard and Mr O'Halloran, and Ms Bir's own statements, Ms Bir's behaviour was 'totally disproportionate, rude and entirely disrespectful towards Mr O'Halloran and Ms Fozzard' and that there did appear to be express breaches of the NSW Health Code of Conduct, specifically clauses 4.1.2, 4.1.5, 4.3.13, 4.3.14. Mr Drinan noted that the Applicant had not yet had an opportunity to formally respond to Mr O'Halloran's complaint. Under cross examination Mr Drinan explained that by 'vexatious' he meant that the Applicant's complaint was: … a nuisance, potentially retaliatory, involved concerns brought forward without substance to counteract other complaints, and to disturb a process.
13. Professor Brakoulias reviewed the risk assessments and signed off on them on 10 and 11 February 2021. On the basis of the 8 February 2021 risk assessment and the recommendations therein contained, on 17 February 2021 Professor Brakoulias signed a letter advising the Applicant that allegations of misconduct had been made against her, and advising her of the process which would be followed to investigate the allegations. The letter advised further: In regards to your separate formal concerns raised about Mr Paul O'Halloran, from the subject meeting of 14 January 2021, I can advise that a corresponding process has been commenced. You will be advised about the outcome in due course.

The 18 February 2021 meeting

1. The 17 February 2021 letter was delivered by Professor Brakoulias to the Applicant in a meeting with her on 18 February 2021, also attended by Mr Drinan, who had conducted the risk assessment upon which the allegations were made. The Applicant brought a support person with her from the HSU, Mr Brendan Roberts.
2. The evidence of Professor Brakoulias in relation to that meeting was that after being handed the letter, the Applicant "acted in a surprising manner, particularly for a senior staff member". He describes the Applicant yelling at Mr Drinan to complain about the process, that she hadn't been provided with an agenda, and that she had not been asked to bring a support person despite the attendance of Mr Roberts from the HSU there for that purpose. He described: Ms Bir was yelling so loudly that following the meeting, a staff member approached me and said that they could hear shouting from outside the meeting room. Ms Bir was also crying during the meeting and I recall offering her some tissues. I considered Ms Bir's response to be disproportionate as Mr Drinan and I said very little during this meeting. … Ms Bir's behaviour was not in keeping with what would be expected of a senior manager at WSLHD, in that she would be expected to conduct herself in a way that is controlled and respectful of others.
3. Mr Drinan's evidence corroborates Professor Brakoulias' account and provides further detail: I recall that from the outset of the meeting I observed that Ms Bir's behaviour was what I consider to be totally disproportionate to the purposes of the meeting. During the meeting Ms Bir was at first loud and aggressive and delivered diatribes to both Professor Brakoulias and myself. I recall that Ms Bir frequently referred to matters that had occurred in the course of her employment with WSLHD dating back over five or more years. … I recall that Ms Bir quickly reached such a level of distress that Professor Brakoulias, as our most senior psychiatrist in our organisation, was required to provide Ms Bir with immediate psychological counselling. I observed that Ms Bir was sobbing, repetitive and not making much sense. I recall that Professor Brakoulias spent roughly 40 minutes trying to assist her and de-escalate the situation, due to a clear concern for her welfare. I recall that I was preoccupied with attempting to de-escalate the behaviour of Mr. Roberts who was a loud, aggressive, belligerent and a large intimidating man over 6 foot tall. After the meeting I was advised that employees who were working in other parts of the building came to Professor Brakoulias' office to see if any assistance was required due to the level of noise emanating from the room.
4. Under cross examination Mr Drinan described the meeting: The meeting was for 40 minutes but it broke down after 1 minute. We stayed in the room while Ms Bir and Mr Roberts talked over each other accusing us, delivering diatribes, talking about matters from 10 to 12 years ago. It was highly emotive, charged, and an harassing tense situation. … It was two people, highly emotive, ranting, incoherent, loud, aggressive and harassing towards Professor Brakoulias and I. About processes, things being unfair. I wasn't able to understand the words being said by the Applicant and Mr Roberts. It was loud, continuous, tone and volume disturbing to people outside of the meeting. People came to us after the meeting to check on our welfare. I tried to de-escalate Mr Roberts while Professor tried to counsel the Applicant.
5. The Applicant's evidence of what occurred in that meeting is that she was upset, and surprised at the letter of allegations, but that her behaviour was not disproportionate, loud or aggressive.
6. The Respondent submitted that the evidence of this meeting was significant because: The Applicant's meeting of 17 February 2021 is a key event in her case, as she believes that Professor Brakoulias' decision not to progress her complaints against Mr O'Hallaron and Ms X is less favourable treatment of her on racial grounds compared to handling of complaints made against her by Mr O'Halloran and Ms X.
7. I agree and would add further that the evidence of the Applicant's conduct during the meeting, as described by Professor Brakoulias and Mr Drinan, echoes the evidence of the Applicant's conduct alleged to have occurred in the 14 January 2021 meeting. In both meetings, the witnesses to the Applicant's conduct describe her behaviour as entirely disproportionate and inappropriate to the context, loud and aggressive, overly emotional, and involving unsupported accusations of racism and discrimination, and complaints about the process both during and after the meeting. In relation to both meetings, the Applicant denies that evidence and seeks to both minimise and justify her reactions.
8. The only other attendee at the meeting of 18 February 2021, Mr Roberts, did not provide evidence to the Tribunal and was not called by the Applicant. The Respondent submitted that the Tribunal should draw a Jones v Dunkel inference that the Applicant's unexplained failure to call her witness to the meeting of 17 February 2021 was because it would not have assisted her case.
9. While the rules of evidence do not apply in these proceedings (s 36 the Civil and Administrative Tribunal Act 2013 (NSW)) nonetheless regard may be had to the so-called rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298: see St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4 at [77]-[85]. That is, an inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected, that this evidence would not have assisted the party's case.
10. Mr Roberts' evidence would have been significant, whether or not he corroborated the Applicant's evidence of the meeting of 18 February 2021, because there are factual differences between the Applicant and Respondent's evidence of what occurred during that meeting, the factual findings will have a significant impact on the Tribunal's determination, and he is the only witness to the meeting (other than the Applicant) who was not employed by the Respondent. I therefore agree with the Respondent that it is appropriate for the Tribunal to draw an inference from the failure of the Applicant to provide evidence from Mr Roberts that his evidence would not have assisted the Applicant, and I am comfortable making that finding.
11. The Applicant submitted: Mr Drinan's allegation against Ms Bir concerning the 18 February 2021 amounts to no more than attempt to characterise Ms Bir as hysterical. Resorting to allegations premised solely on the volume of a person's voice - particularly a woman's voice - is a well-worn trope used as an attempt to diminish or discredit. Contrary to Mr Drinan's allegation, the evidence is that Ms Bir did not threaten any violence, did not brandish a weapon, and did not raise her fists. All that Ms Bir did was to speak forcefully.
12. There was no allegation that the Applicant threatened violence, brandished a weapon or raised her fists. "Speaking forcefully" diminishes the actual evidence given by Professor Brakoulias and Mr Drinan, which was that the Applicant yelled, was loud and aggressive, and her emotionally charged reaction was inappropriate and disproportionate in the circumstances.
13. I accept both Mr Drinan and Professor Brakoulias' evidence of the Applicant's conduct during the meeting of 18 February 2021 and entirely prefer their evidence to the Applicant's. Their evidence also adds additional weight to the Respondent's witnesses' evidence about the Applicant's conduct during the 14 January 2021 meeting, and provides additional support for the finding made by Mr Drinan and signed off by Professor Brakoulias in the 8 February 2021 risk assessment that the Applicant's conduct during the meeting of 14 January 2021 was extreme enough to warrant an investigation into whether such conduct breached the NSW Health Code of Conduct.
14. The Applicant's complaints against Ms X, Mr O'Halloran, and the conduct of the grievance process were dismissed by letter dated 3 March 2021.

Differential treatment?

1. Until closing written submissions, the Applicant's submissions in relation to the 2021 Investigation into the Applicant Conduct and the 2021 Dismissal of the Applicant's Complaint Conduct focussed on the contention that her complaint against Mr O'Halloran was not considered or investigated by the Respondent in the same manner as the complaint he made against her. At hearing the Respondent tendered the 8 February 2021 risk assessment report, which demonstrated that the exact same process was followed by the Respondent in relation to both complaints. The only difference was that the assessor had determined that the Applicant's complaint against Mr O'Halloran did not disclose a breach of the Code of Conduct, whereas Mr O'Halloran's complaint about the Applicant's conduct did. The latter was therefore progressed to misconduct allegation and investigation, whereas the former was not.
2. Once presented with the evidence that the same process was engaged by the Respondent for both complaints, the Applicant's submissions shifted to focussing on the outcome of the complaints demonstrating differential treatment. The Applicant submitted that the only reason for this differential treatment was that the Applicant had made a complaint of race discrimination. The Applicant ultimately submitted that the dismissal of the Applicant's complaint on 3 March 2021 was discriminatory because if it had "not involved an element of race discrimination, it would have been handled differently". In comparison, the manner in which the Respondent handled Mr O'Halloran's complaint against the Applicant, by "accept[ing] the generalised allegations… and progressed them to a formal misconduct process… is evidence of this fact": The conduct of dismissing Ms Bir's complaint, and progressing Mr O'Halloran's complaint should be found as unlawful discrimination, noting that a failure to properly investigate an allegation of racial discrimination can amount to a 'detriment' for the purpose of s8(2) of the ADA: Seuple-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2017] NSWCATAD 355 at [112].
3. The conduct complained about by the Applicant is how the Respondent handled her complaint of race discrimination. The Applicant complained that: a. no proper investigation or analysis was performed in respect of Ms Bir's complaint of race discrimination; b. none of the Respondent's witnesses were trained to deal with complaints of race discrimination; c. the Respondent's policy did not inform its employees as to how to properly assess such a complaint. The policy did not, for example, require that employees consider matters objectively. Rather, there was an erroneous focus on Mr O'Halloran's apparent intention; d. there was an assumption amongst those who were considering Ms Bir's complaints that a complaint of race discrimination was inherently unlikely to be correct; e. there was a uniform failure of the Respondent's employees to attempt, in any way, to place themselves in the position of Ms Bir, and to consider her complaint from the perspective of a person with brown skin, from the sub-continent; f. those persons who primarily dealt with Ms Bir's complaint were people with white skin and who could broadly be described as having an Anglo-Saxon or Caucasian heritage; g. Professor Brakoulias, who was apparently the decision maker in relation to the decision to dismiss the complaint, had little to no independent recollection of why he made the decision. It was apparent that he simply relied on others; and h. despite this, those beneath Professor Brakoulias did not take ownership of the decision.
4. The objective information before Mr Drinan and Professor Brakoulias in assessing the Applicant's complaint was that Mr O'Halloran had said to her "Does Rajinder come to your office", or words to that effect. An account of what occurred at the meeting from each of the attendees was considered by the person conducting the risk assessment. The conclusion reached by Mr Drinan and signed off by Professor Brakoulias was entirely reasonable, in circumstances where, despite the Applicant's perception (which was reflected in her submissions), there are no objective racial connotations or implications to be made from that statement. Contrary to the Applicant's submission, it was not Mr O'Halloran's "apparent intention" which was relied upon in the risk assessment, but objective facts regarding the statements he and Ms Fozzard made in the meeting to attempt to understand the Applicant's reaction and to clarify Mr O'Halloran's question for her, as expressed in their respective filenotes of the meeting.
5. It is not this Tribunal's role in these proceedings to examine the Respondent's complaint processes and determine whether they should distinguish a complaint of race discrimination from other complaints, or whether the Respondent's employees or witnesses were or should be trained to deal specifically with complaints of race discrimination, or what that training should involve. The Tribunal's role is to determine whether the Respondent's conduct towards the Applicant occurred as alleged by the Applicant, whether that conduct amounted to differential treatment with reference to an appropriately identified comparator, and if so, whether one of the reasons for the differential treatment was the Applicant's race or a characteristic of her race.
6. The parties both submitted than an appropriate comparator in relation to the 2021 Investigation into the Applicant Conduct and the 2021 Dismissal of the Applicant's Complaint Conduct was Mr O'Halloran. The Applicant submitted: 29. The Respondent is correct to note that the Applicant considers that, for the purpose of analysing the Applicant's complaint about the assessment and dismissal of her complaint into what occurred on 14 January 2021, that the Applicant contends that Mr O'Halloran was an actual comparator, or that his treatment provides a sound evidentiary basis upon which to make findings about the treatment of a hypothetical comparator.
7. Mr O'Halloran's circumstances are somewhat similar to the Applicant's in that he was a Head of Department who made a complaint about another Head of Department's conduct in a meeting. In my view, however, this is too simplistic a view of the relevant circumstances required for the assessment of differential treatment. The appropriate comparator would also include the conduct of the Applicant during that meeting - specifically the loud, aggressive, accusatory, inappropriate and disproportionate behaviour of the Applicant towards the other meeting attendees.
8. On the balance of probabilities, I find that the Respondent would have assessed anyone who had displayed the behaviours of the Applicant in a meeting with fellow employees to warrant investigation for potential breach of the Code of Conduct. There was therefore no differential treatment in considering that the Applicant's conduct warranted engagement of the disciplinary process and associated investigation.
9. Differential treatment could only be found in these circumstances if I didn't take into account the Applicant's conduct during the meeting of 14 January 2021 as relevant to the identification of the comparator. If the appropriate comparator was, in fact, Mr O'Halloran (or someone like him), without taking into consideration the objective evidence of the Applicant's conduct during the meeting, then I could find that there was differential treatment in the way the Respondent began an investigation into her conduct, and progressed his complaint against the Applicant beyond the initial risk assessment stage, where the Applicant's complaint against him (and Ms X, and in relation to the grievance process) was not progressed further.
10. However, even having found differential treatment, there is no evidence to support a finding that one of the reasons for that differential treatment was because of, or on the ground of, the Applicant's race. Although the subject of the Applicant's complaint was race, the decision to investigate allegations of misconduct against her, and not progress the Applicant's complaint further, was not because she was Punjabi, or Indian, or had brown skin, or had any other characteristic relevant to her race.

The 25 March 2021 Conduct and 29 March 2021 Conduct

1. The 25 March 2021 Conduct and the 29 March 2021 Conduct (as described above at [60] and [61]) was addressed in evidence from Ms Guzewicz, Ms Dominish and the Applicant.
2. It is not clear from the CPOC how exactly the Applicant alleges that the 25 March 2021 request for her to attend an interview to respond to the allegations of misconduct therein outlined, was discriminatory. There are no particulars provided as to how the conduct amounted to differential treatment or a detriment, or how such conduct was causally related to the Applicant's race.
3. It is also not clear from the CPOC how exactly the Applicant alleges that Ms Guzewicz "by inference accused the Applicant of being uncooperative", or how that is stated to be unlawful discrimination.
4. The crux of the Applicant's submissions on this issue seems to be that the Applicant should not have been subjected to investigation at all, that the letter was unsatisfactory in that it omitted facts claimed by the Applicant to be relevant, and that the letter only referred to the allegations against the Applicant, and not the allegations the Applicant had made.
5. The Applicant's written closing submissions somewhat clarify the conduct complained about: 48. By the 25 March 2021 letter, the Respondent, through Ms Dominish, commenced a misconduct process, the ultimate fruition of which may have been the termination of the Applicant's employment. 49. The approach adopted to requiring Ms Bir to respond to this process was heavy handed. Shortly after receiving the 25 March 2021 letter, Ms Bir requested that the interview that had been scheduled for 31 March 2021 be vacated due to her pre-approved leave. Then, on 26 March 2021 (when the process had been underway for only one day), Ms Dominish wrote to Ms Bir on the following terms: Please be advised that Western Sydney Local Health District (WSLHD) have selected investigators and a decision maker independent to the Mental Health Service to manage the matter. It is noted the Health Services Union have objected to those selected, however no calid concerns have been provided to WSLHD and consistent with clause '6.3 - When a staff member does not cooperate' of the Managing Misconduct Policy Directive (PD 2018_031) we have elected to give you a final date for interview, advised below. 50. That is, within one day of commencing the investigation process, Ms Dominish elected to refer Ms Bir to the Respondent's misconduct policy and thereby imply that she (Ms Bir) was, by requesting a vacation of an interview, at risk of contravening the misconduct policy. Ms Dominish elected not clarify with Ms Bir why she had sought the vacation of the interview, and read Ms Bir's email in the worst possible light. Ms Dominish left the task of clarification to Ms Guzewicz. Contrary to Ms Dominish's understanding of Ms Bir's email, Ms Bir was not refusing to attend an interview. Rather, she was asking for it to be delayed. Ms Dominish claimed that other employees had been subjected to similar, heavy handed, treatment - but was unable or unwilling to identify a single name for the Tribunal (despite their being non publications orders in place). The Tribunal would be satisfied that the heavy handed approach adopted by Ms Dominish in respect of Ms Bir (particularly, raising the spectre of misconduct allegations based on participation with a misconduct process within one day of that process starting) was unique to the Applicant, and amounted to a form of differential treatment to which others were not subject.
6. I am not satisfied that the approach taken by the Respondent was "heavy handed", especially considering the industrial process initiated by the Applicant which intervened, which I describe below.
7. As pleaded by the Respondent, the meeting of 14 January 2021 and the issues leading up to that meeting were also the subject of an industrial dispute raised by the HSU in the NSW Industrial Relations Commission.
8. On 23 February 2021 the HSU notified a dispute under s 130 of the Industrial Relations Act 1996 (NSW), the subject of which was the Respondent's treatment of the Applicant in relation to her complaint about Ms X, the meeting of 14 January 2021, the grievance process engaged by the Respondent, and the notification to the Applicant of the misconduct allegations to be investigated. In those proceedings, 51740/2021, Commissioner Webster conducted a hearing on 3 March 2021 where the HSU argued that the relevant broader context to the Applicant's concerns were SafeWork issues of bullying and harassment and improperly conducted disciplinary processes, and implied the reasons for the Respondent's conduct were grounded in racism.
9. The hearing concluded by conciliation in which Commissioner Webster made recommendations for the Respondent to continue the investigation into the Applicant's misconduct allegations, noting an undertaking by the Respondent to appoint an alternative investigator and decision maker; for the union to facilitate this by providing information about its concerns; and for the allegations by Ms Bir and the HSU of racial discrimination and victimisation to be withdrawn unless they were properly particularised.
10. Around the same time, the Applicant also lodged a request for service with SafeWork NSW regarding alleged bullying at WSLHD. The 17 February 2021 request for the Applicant to attend an interview was remade on 25 March 2021, following the recommendations of the Industrial Relations Commission.
11. The Applicant then requested that the interview be rescheduled. Ms Dominish's letter of 26 March 2021, which was stated in cross examination to have been drafted by Ms Guzewicz and signed by Ms Dominish, agrees to reschedule the interview. On my reading of that letter, the inclusion of a reference to the Managing Misconduct Policy Directive is not because the Applicant requested a different date but because: …the Health Services Union have objected to those selected, however no valid concerns have been provided to WSLHD
12. This was confirmed by Ms Guzewicz to the Applicant by email on 29 March 2021, namely that: The reference to non-cooperation… is in response to your refusal to commit to an interview on the basis that the HSU had not agreed to the panel.
13. The Applicant submitted that "legitimately raising industrial issues put forward as to the panel by the HSU, requesting a date when a union support person could be present and saying that attempts to have her attend a meeting without such a support person were causing her distress" was not uncooperative.
14. To the extent that it is necessary for me to make a finding on this issue, I accept the Respondent's submissions that the Applicant was uncooperative, based on the objective evidence of the Applicant's communications with the Respondent in relation to the investigation for misconduct allegations process. However I consider it immaterial to this Tribunal's determination as to whether or not the Applicant was uncooperative, or whether or not she was accused of being uncooperative by Ms Guzewicz. The question is whether there was any differential treatment of the Applicant by the Respondent, and if so, whether that is causally connected to the Applicant's race. That the CPOC did not outline how it was alleged this conduct - referring to the Applicant as 'uncooperative' - amounted to differential treatment, or how causation would be demonstrated on the evidence, is a failure by the Applicant to make out her case.
15. The comparator pleaded by the Applicant in the CPOC (see [109] above) in relation to the 25 March 2021 and 29 March 2021 Conduct makes reference to alleged factual circumstances which are either not found on the evidence before this Tribunal ("being the subject of verbal derision, mocking, insult and/or abuse", "being the subject of retaliatory allegations") or not further addressed in evidence or submissions ("being excluded from expressions of interest for promotions", "being prevented from speaking with the Minister"). These pleadings are embarrassing and obscure exactly what the Applicant is alleging amounted to the discriminatory conduct by the Respondent.
16. Taking the pleaded comparator at its absolute highest, which would be: 1. a person, not of the Applicant's race, 2. who was making complaints about work health and safety and the manner in which her employer was dealing with her complaints; I am not satisfied that the evidence demonstrates any differential treatment.
17. Nor am I satisfied that any of the Respondent's conduct in relation to the 25 March 2021 Conduct or the 29 March 2021 Conduct - ie, continuing the investigation into misconduct allegations against the Applicant and progressing them by requiring the Applicant to attend an interview - was done because of, or on the ground of, the Applicant's race. The evidence, particularly of Ms Guzewicz, clearly supports the Tribunal finding that the Respondent was progressing the misconduct investigation in the usual course, according to its policies, practice and procedure.

The 7 May 2021 Statement

1. The 7 May 2021 Statement, as described above at [62] by the Applicant, was the subject of evidence from Ms Caswell and the Applicant. Other Respondent employees provided evidence generally in relation to the allegation that the Applicant had been or was referred to as a 'Tamil Tiger' or associated with 'Tamil Tigers' in the workplace.
2. Similar to the issues identified above with respect to deficiencies in the Applicant's pleadings, the CPOC failed to outline exactly how the alleged conduct of the 7 May 2021 Statement amounted to differential treatment. Although not expressly stated, I read the "harm caused" allegations as pleading the detriment suffered by the Applicant as a result of the alleged conduct. The comparator was stated by the Applicant to be a person not of the Applicant's race, without any further specification of the relevant circumstances.
3. The Applicant's submissions appeared to be focussed on the racist and abusive nature of a comment alleging that the Applicant was a 'Tamil Tiger', rather than whether the making of that comment was differential treatment. In opening written submissions, the Applicant states: …the Tribunal can be satisfied that the description of the Applicant as a Tamil Tiger was detrimental to the Applicant's interests - which detriment would not have occurred had the Applicant had white skin. … By allowing a workplace environment in which the making, and dissemination, of the statement was permissible (which conduct included what occurred on 7 May 2021), the Applicant was marked as person within the Respondent(s)' workplace against whom it was permissible to use racially charged descriptors.
4. The actual allegation is not made until the Applicant's affidavit of 12 November 2022, where she stated at [68]: On 7 May 2021, Ms Luci Caswell, a senior representative of the First or Second Respondent, made an allegation in a draft statement (at paragraph 47) that was circulated to me by the Respondent's workers compensation insurer that myself and my family had been members, or had connections with, the Tamil Tigers - a Sri Lankan terrorist group. That statement was later revised and signed by Ms Caswell on 10 May 2021 and then circulated to me. At paragraph 64 Ms Caswell effectively repeats the statement about my family and I being members of the Tamil Tigers in different words without mentioning the Tamil Tigers by name.
5. Ms Caswell's draft workers compensation statement stated the following: The previous Director to Bill when I raised these issues said to me that the claimant's father was a Tamil tiger which is a group of resistance fighters in Sri Lanka. The claimant considered him to be a freedom fighter, and this was her world view of standing up for others and what is right.
6. Ms Caswell's signed workers compensation statement says: The previous Director, Beth Kotze said to me when I raised issues related to the claimant behaviour that the claimant admired her father very much and she considered him to be a freedom fighter, and this was her world view of standing up for others and what is right. I do not believe Dr Kotze was speaking inappropriately, she was trying to explain the way that the claimant views the world.
7. The Applicant attached the draft workers compensation statement, which mentions Tamil Tigers, and the signed workers compensation statement, which doesn't, to her affidavit. During cross examination, the Applicant informed the Tribunal that the documents had not been circulated by the Respondent's workers compensation insurer, but that her Personal Injury Commission lawyers had obtained and sent them to her.
8. The Applicant alleged that the Respondent describing her as a Tamil Tiger, or being associated with the Tamil Tigers, "did not occur in isolation". In her affidavit the Applicant referred to both Kristin Adair and Clare Lorenzen, of the Respondent's Human Resources team, stating words to the effect "Oh, but you are a Tamil Tiger anyway" to her in 2019, in the context of a resourcing complaint. The Applicant also referred to the 25 June 2021 Statement as the Respondent contextually perpetuating the allegation or accusation that she was associated with the Tamil Tigers.
9. The Applicant provided hundreds of pages of contextual evidence to support the proposition that referring to someone as a "Tamil Tiger" was insulting or otherwise detrimental. This was not disputed by the Respondent. Rather, what was disputed by the Respondent was that anyone had referred to Tamil Tigers in relation to the Applicant, without her first referring to herself or her family as such.
10. Evidence from Ms Parmar expressly confirmed that the only member of staff who ever spoke about 'Tamil Tigers' was the Applicant herself: Nobody except the Applicant (who told me briefly in passing) has told me about any allegation that the Applicant or her family were members of the Tamil Tigers.
11. Ms Caswell's evidence under cross examination was that she may have said those words or similar to the person interviewing her, Ms Pavlovic, but that she didn't draft the statement.
12. Evidence from Ms Adair, which I accept, is that the Applicant had visited her office on her first day at work and introduced herself to her, and in that conversation had said words to the effect of: I come from a family of Tamil Tigers My father was a Tamil Tiger I am used to fighting for what I want I will never give in on principle (in a fight)
13. Ms Adair recalled that the Applicant had mentioned being a 'Tamil Tiger' to her on other occasions, but she had never said that to the Applicant and had never heard anyone else saying that to the Applicant.
14. Mr Drinan specifically recalled the Applicant telling him during the meeting of 18 February 2021, "my father was in the air force and taught me to stand up for myself". Evidence from Ms Lorenzen, which I accept, is that she had never heard anyone refer to the Applicant as a Tamil Tiger, and had never heard the allegation that anyone else had referred to the Applicant as a Tamil Tiger, until she read the Applicant's affidavit. Ms Fozzard, Mr Sheargold, Ms Guzewicz, Ms Dominish, Mr Drinan, Ms Cadman each stated the same.
15. Both statements contain a statement that the Applicant's father was, or the Applicant said or believed her father to be, a "freedom fighter", and that this impacted her "world view of standing up for others and what is right". I don't accept the submission that the signed workers compensation statement perpetuates the 'Tamil Tiger' reference contained in the draft. On the basis of Ms Caswell's evidence under cross examination and her signed workers compensation statement, and the evidence of Ms Adair and the other employees of the Respondent who addressed this allegation in their affidavit evidence, I find that Ms Caswell likely told Ms Pavlovic, that Dr Kotze had told her (Ms Caswell) that the Applicant admired her father very much, and that the Applicant told Dr Kotze (who then told Ms Caswell), that her "father was a Tamil Tiger" and she considered him to be "a freedom fighter", and this was her "world view of standing up for others and what is right".
16. In her affidavit the Applicant alleged the 7 May 2021 Statement was "circulated to me by the Respondents' workers compensation insurer". This allegation was found to be inaccurate during cross examination, and the Applicant then claimed that her 'Personal Injury Commission' lawyers sent her the documents.
17. The question then is whether this statement, that the Applicant's father was a Tamil Tiger, or that the Applicant is somehow associated with or identified as a Tamil Tiger, which finds its way into a draft workers compensation statement (which, contrary to the Applicant's affidavit evidence, is not 'circulated' by the Respondent or its workers compensation insurer, and was obtained by the Applicant through her Personal Injury Commission lawyers) and is, at best, third-hand hearsay, is evidence of differential treatment.
18. There is no comparator pleaded or submitted by the Applicant by which differential treatment could be identified. Even if there were, there is also no evidence demonstrating that a comparator (real or hypothetical) would have treated another individual any differently in the same or similar circumstances, who was not of the Applicant's race.
19. I find that the evidence does not demonstrate any direct discrimination on the basis of race in relation to the 7 May 2021 Statement. I also find that there is no evidence to support a finding that, by Ms Caswell making this statement to the investigator of the Applicant's workers compensation claim, the Respondent subjected the Applicant to "any other detriment". The Applicant may have perceived detriment or harm, but there is no actual evidence that the making of this statement by Ms Caswell to an external investigator, or its inclusion in a draft workers compensation statement had any impact, or effect on anything in relation to the Applicant's employment. It was not, as alleged by the Applicant, 'disseminated', and the only other harm claimed to be caused by it is addressed below in consideration of the 25 June 2021 Statement.

The 25 June 2021 Statement

1. The 25 June 2021 Statement, as described above at [64], was the subject of evidence from the Applicant's son Sahir Bir, the Applicant, Ms Dominish and Ms Nambiar.
2. In her affidavit of 12 November 20222, the Applicant describes the 25 June 2021 Statement in more detail: On or about 25 June 2021 I was informed by my son, Sahir Bir, that he had received a series of messages and telephone calls via videochat on his telephone from Mr Y. I am aware that Mr Y is the husband of Ms Y, a worker at the Western Sydney Local Health District who is white. Mr Y has also been on friendly terms with my son. My son informed me that in those text messages and in the video chat calls Mr Y had asked on behalf of Ms Y whether I or my family were members of the Tamil Tigers terrorist group. My son informed me that he had responded that he was unaware as to who the Tamil Tigers were. He also showed me copies of the text messages. Copies of those text messages are next to this affidavit and marked OB-38. He later on that day asked me what the telephone call and text messages from Mr Y were about and I discussed Ms Caswell's statement with him. … I am of the view as to the above contact by Mr Y with my son, that the question from Mr Y to my son on behalf of Ms Y flowed either from someone disclosing the content of Ms Caswell's draft statement to Ms Y or because there were rumours about my involvement with the Tamil Tigers at the workplace that managers and supervisors had either participated in or not stopped. It seemed clear to me that the allegation made by Ms Caswell in her statements of 7 May 2021 and 10 May 2021 had been disclosed to at least one member of the Western Sydney Local Health District.
3. Neither Sahir Bir nor Mr Y are employed by the Respondent. The Applicant may be of the view that a conversation between her son and Mr Y is indicative of rumours in the Respondent's workplace, but the evidence does not support this view.
4. The Applicant's allegations in relation to this conversation were also the subject of industrial proceedings commenced by the HSU, resulting in an investigation conducted by the Respondent which found: The review could not establish a causal connection between the SMS exchange that was provided by the HSU in raising the concerns and the statement that was given by Ms Luci Caswell as part of the Workers' Compensation Factual Investigation. Furthermore, the initial review was unable to obtain any evidence that would suggest that the phrase/term 'Tamil Tiger' had been stated in the workplace or made in reference to you or your family.
5. Sahir Bir's affidavit evidence is that Mr Y telephoned him twice on 25 June 2021 and asked him "Are you a member of the Tamil Tigers" and "Is your mother a member of the Tamil Tigers?". Mr Y then messaged him on Facebook and the conversation continued, by message and by video chat.
6. Ms Dominish was tasked by Ms Nambiar to investigate the concerns raised by the HSU in relation to this conversation. Ms Dominish's evidence was that she met with Ms Y on 20 July 2021: I asked Ms Y if she had ever heard the phrase 'Tamil Tiger' used in the workplace. Ms Y did not know what a Tamil Tiger was and had never heard that phrase before. In fact Ms Y asked me to repeat the phrase to her several times to clarify. I then explained the context to Ms Y as to why I was asking. Ms Y had no knowledge of the conversation that had occurred between her husband and Mr Bir. Ms Y told me that she understood that her husband and Mr Bir had previously worked together and had a friendly relationship, including that they went fishing together. Following my conversation with Ms Y she then sent an email to me at 3:53 PM that day in which she reiterated that she had "never heard of the term 'Tamil Tigers' nor have I heard it being used in the workplace". In further email correspondence with me on 21 July 2021 Ms Y informed me that she had spoken to her husband who told her that "the term Tamil Tiger used" in the exchange had not been in reference to the question he had asked Mr Bir about his mother and when she would be returning to work and that he believed that "there are exchanges in between the conversations on the screenshot that have been deleted".
7. Ms Y's email included: My husband reported that the term 'tamil tiger' used in messenger was not even related to the question he asked. He actually thinks that we are being set up as there are exchanges in between the conversations on the screenshot that have been deleted. They were previously work colleagues who kept in touch via phone contact, messenger and video chat calls.
8. In reply evidence, Sahir Bir claimed: I have not deleted any exchanges in between screenshots that appear at Annexure SB1 to the affidavit I affirmed on 10 November 2022 in these proceedings, nor has anyone else done so. I know this because I recognise the text messages as being the same as those that were sent by Mr Y on 25 June 2021. It is my understanding that if I or anyone else had attempted to do so any deletion would have shown in the text of the text messages anyway.
9. However under cross examination Sahir Bir's phone was examined and it was demonstrated that certain messages in the discussion had been "unsent" by him. Sahir Bir then admitted in cross examination that at the time of the communication, he did send something else to Mr Y, which he then subsequently "unsent" (that is, deleted from the conversation record). On the basis of his inconsistent evidence, I do not accept his subsequent explanation that the unsent message was "just 1 line" and he deleted it because he considered it irrelevant.
10. According to Ms Nambiar's evidence, Ms Y was an occupational therapist in the mental health team who acted in the Applicant's position whilst the Applicant was on periods of extended leave. The Applicant was Ms Y's manager, and Ms Y was the subject of complaints by the Applicant, both internally and externally. Ms Y was the subject of an AHPRA complaint by the Applicant, and describes in her workers' compensation claim how she was subjected to intimidation and harassment when the Applicant returned to work in September 2021 to the point where it caused her "a great deal of anxiety, stress, insomnia and anxiety", resulting in her taking workers compensation leave.
11. I make no findings about the veracity of the Applicant's complaint/s against Ms Y, or Ms Y against the Applicant. It is safe to say, however, that the working relationship was not a positive one. That, plus the inconsistencies in Sahir Bir's evidence, the alterations to the documentary record of his conversation with Mr Y, and the extremely tenuous link between the conversation of 25 June 2021 and the Applicant's actual employment, are sufficient for me to entirely reject Mr Bir's evidence.
12. There is no evidence that the 25 June 2021 Statement was made at the direction of the Respondent, either through Ms Y, or by Ms Y repeating statements made by other employees. There is no evidence that Ms Y had anything to do with the conversation her husband had with Mr Bir - the only evidence is to the contrary. The Applicant bears the onus and has failed to discharge it. The 25 June 2021 Statement, to the extent that it could be found to be part of a complaint properly brought under s 8 of the Act, is not substantiated.
13. For completeness I also do not accept that the 7 June 2021 Statement or its subject conversation caused or contributed to any other detriment, within the meaning of s 8(2)(c) of the Act.

The First and Second Continued Investigation and Disciplinary Conduct

1. The First Continued Investigation and Disciplinary Conduct and the Second Continued Investigation and Disciplinary Conduct, and the Respondent's response to them, are outlined above at [66] to [69]. In closing submissions these two separate "conducts" were rolled into one, along with the Suspension and Medical Examination Direction as outlined above at [70] and the Respondent's response to it at [71].
2. The Applicant submitted: The reasons for continuing the investigation are directly linked to the reasons it was commenced.
3. Although unclear, what the Applicant is appearing to allege is that the Respondent's actions in continuing to pursue its investigation of the allegations of misconduct against the Applicant is discriminatory. This is premised on the handling, or alleged mishandling, of the Applicant's complaint of race discrimination against Mr O'Halloran - as discussed above at [243]. In addition and in the alternative, the Applicant alleges that the continuation of the investigation, disciplinary conduct, suspension and medical examination was victimisation of the Applicant for making a complaint under the Act. I will address the victimisation aspects of the complaint separately.
4. The Applicant was absent from work from 29 March 2021 to 3 September 2021 on workers compensation due to mental illness, recorded as "an adjustment disorder with depressed mood". She returned to work on 16 September 2021. Between 23 September 2021 and 13 April 2022, on her own evidence, the Applicant was absent from work on at least 16 occasions. According to the Respondent's leave records, which I accept, the Applicant took periods of sick leave on 18 occasions between 16 September 2021 and mid April 2022.
5. As discussed above, the Applicant lodged her complaint of discrimination with ADNSW on 14 July 2021. It was referred to this Tribunal on 31 January 2022 and her complaint was amended on 24 August 2022 to essentially incorporate this additional conduct. In Bir v Western Sydney Local Health District [2022] NSWCATAD 286 the Tribunal noted: The Respondent submitted that the proposed amendments to the Complaint should not be made because they rely on inferences and there is no evidence of discrimination or victimisation. However evidence has yet to be filed in this matter. The purpose of a document such as an APOC is to put the other party on notice of the matters alleged and not to prove to the Tribunal on the balance of probabilities that the unlawful conduct occurred. We do not accept the Respondent's submissions that these allegations are misconceived or lacking in substance. The allegations if proven could disclose a contravention of the Act. Based on the submissions of the parties, the contest seems to be predominantly about whether the Respondent acted because of Ms Bir's conduct and or behaviour as it alleges or because of her race and or making complaints as the Applicant alleges.
6. The evidence of the Respondent's conduct in relation to the Applicant between 14 July 2021 and 13 April 2022 was provided by Ms Guzewicz, Ms Cadman, Mr Holmes, Mr Sheargold, Ms Fozzard, Ms Nambiar, and Ms Dominish.
7. Following the recommendations made by Commissioner Webster at the NSW Industrial Relations Commission on 3 March 2021, Mr Holmes conferred with the HSU. Mr Sheargold tasked Ms Guzewicz to conduct the investigation into the Applicant's alleged misconduct, and Ms Dominish to be the decision-maker.
8. Ms Guzewicz commenced her investigation, which became the subject of the Applicant's complaint regarding the 25 March 2021 Conduct and 29 March 2021 Conduct. The Applicant was then absent from work until 3 September 2021. Ms Guzewicz's evidence is that the investigation was paused until the Applicant returned to work. There is no evidence to the contrary. I accept Ms Guzewicz's evidence and find therefore that the First Continued Investigation and Disciplinary Conduct allegation contained in the CPOC is not made out on the facts.
9. Following the Applicant's return in September 2021, Ms Guzewicz attempted to continue her investigation. She emailed the Applicant on 20 September 2021, stating: I understand you have returned to work. Accordingly, we will need to resume the misconduct process that was placed on hold in March this year. I understand you have been provided clearance for your participation in this. We had scheduled an interview for 12 April 2021 to obtain your response in relation to the attached allegations of misconduct, however this did not go ahead due to your absence from the workplace. Please find below the rescheduled interview details: Date: Friday 24 September 2021 … Can you please confirm your attendance by close of business tomorrow, Tuesday 21 September 2021 by responding to this email.
10. The Applicant responded on 20 September 2021 that "one day was not enough notice" and her chosen support person at the HSU, Tom Stevanja, was away until the end of the school holidays. Ms Guzewicz responded to the Applicant on 21 September 2021 that her request was unreasonable, she had been provided with 4 days' notice (not one), and that was sufficient time to arrange a support person.
11. Communication between the Applicant and Ms Guzewicz continued and the HSU intervened, at which point Ms Guzewicz agreed to postpone the interview to 5 October 2021, after Tom Stevanja had returned from leave. The Applicant expressed dissatisfaction with this, and then raised complaints about Ms Guzewicz's handling of the investigation. This had the effect of preventing the interview from taking place while a review was conducted in line with section 6.9 of the Managing Misconduct Policy Directive PD2018_31.
12. The Applicant has not substantiated her allegation that Ms Guzewicz's actions in continuing the investigation by attempting to have the Applicant attend an interview constituted differential treatment, or that those actions were taken because of the Applicant's race. There is no reasonable evidence upon which such an inference could be made by the Tribunal. The obvious reason for Ms Guzewicz's actions was that she was tasked with conducting the investigation into the Applicant's misconduct and requiring her to attend an interview to respond to those allegations was the first step in that process.
13. On 28 January 2021, Ms Nambiar tasked Ms Cadman with continuing the investigation into the allegations of misconduct against the Applicant. Ms Cadman emailed the Applicant on 8 February 2022 proposing a meeting on 15 February 2022 for the Applicant to respond to the allegations.
14. The Applicant responded to Ms Cadman in a similar way to how she had responded to Ms Guzewicz's attempts to arrange and conduct an interview - she raised issues regarding the conduct of the investigation process, and gave various excuses or reasons why she believed the interview could or should not go ahead until those issues had been resolved to her satisfaction. Again, the HSU intervened and the interview was ultimately scheduled for 28 February 2022.
15. The Applicant stated: The procedure you are inviting me to is the subject of the complaint and proceeding. Since the matter is set for a date on 2 March 2022 I think it is unfair that I'm being subject to a process which has been flawed right from its inception. Hence the President of ADB NSW accepted my complaints and has referred the matter to NCAT. Whilst the matter is listed for a hearing which might follow WSLHD needs to follow the protocols. The response negating my complaints was dismissed by the president of ADNSW. If you can kindly get all the information from Stefannie, come back to me about what the organisation has done to address all of my concerns and await the outcome from NCAT, it would be much appreciated.
16. Needless to say, the ADB did not accept the Applicant's complaints. They were accepted for investigation. Although the ADB did refer the complaints to this Tribunal, this is done in the usual course where the ADB has been unable to resolve the complaint. It is not indicative of any factual findings or substantiation of contraventions. The impression the Applicant's statement gives, that the ADB accepted the Applicant's complaints as substantiated, is misleading. There was also no 'dismissal' of a 'response negating my complaints', and no unspecified 'protocols' required of the Respondent while the matter was listed for hearing before this Tribunal, at that stage.
17. For the same reasons as those discussed in the context of the 25 March 2021 Conduct, 29 March 2021 Conduct, First Continued Investigation and Disciplinary Process Conduct, the Applicant has not substantiated her allegation that Ms Cadman's actions in continuing the investigation by attempting to have the Applicant attend an interview constituted differential treatment, or that those actions were taken because of the Applicant's race. There is no reasonable evidence upon which such an inference could be made by the Tribunal.

The 28 February 2022 Interview

1. The rescheduled interview to discuss the misconduct allegations with the Applicant ultimately took place on 28 February 2022 at 2pm. In attendance were Ms Cadman, the Applicant, Ms Bikau (Ms Cadman's co-investigator) and Tom Stevanja, an HSU official, as the Applicant's support person.
2. It is difficult to ascertain exactly what the Applicant is alleging was discriminatory about the 28 February 2022 interview. It is not particularised in the CPOC. In opening written submissions the Applicant stated: 123. Despite this, on 22 February 2022 the Respondent(s) set a disciplinary meeting for 28 February 2022. The meeting went ahead, during which she was interrogated with questions such as: Bir Affidavit [91] (a) Were you crying during the 14 January meeting? (b) Why didn't you have a support person? Discrimination Elements 1, 2 and 3 124. The Applicant repeats what is said at [96] to [115]. 125. The Applicant further says that the manner in which the 28 February 2022 interview was conducted supports the Applicant's case that an inference should be drawn against the Respondent(s).
3. At [96] to [115] of those submissions the Applicant has set out the alleged facts and submissions in relation to the First Continued Investigation and Disciplinary Conduct.
4. In closing written submissions the Applicant stated: Ms Cadman was asked questions in cross examination about her investigative process. Ms Cadman indicated that she understood than the assessment of whether something might amount to racial discrimination was an objective assessment, and that this assessment required the identification of comparators. Despite this, and despite being aware that a key explanation that Ms Bir was offering to contextualise her conducting during the 14 January 2021 meeting was an allegation that she had been the subject of race discrimination during the meeting, Ms Cadman took no steps to consider whether Mr O'Halloran's conduct, objectively amounted to discrimination. No comparator assessment was performed. The evidence clearly shows that the misconduct and disciplinary processes adopted by the Respondent were not fit for purpose. They did not involve a proper consideration of whether race discrimination had occurred. In so doing, Ms Bir was subjected to a detriment (her complaint was not properly considered, and her mitigating explanation for her conduct on 14 January 2021 was not properly considered). Given the Respondent's policies, the Tribunal would infer that if Ms Bir's complaint and/or plea of mitigation did not involve an allegation of race discrimination, the Respondent would have been more receptive to Ms Bir's position and/or would have conducted an actual, rather than preliminary, investigation into the complaints. This is the differential treatment.
5. What the Applicant seems to be alleging is that the Respondent failed, at the 28 February 2022 meeting, to have regard to the fact that the Applicant's conduct in the 14 January 2021 was because Mr O'Halloran's conduct towards her "objectively amounted to discrimination". Mr O'Halloran's conduct did not, however, objectively amount to discrimination. There is no evidence by which the Tribunal would infer that the Respondent "would have been more receptive to Ms Bir's position" or "would have conducted an actual, rather than preliminary investigation into the complaints" if the Applicant's complaint had not involved an allegation of race discrimination. The investigation of the Applicant's complaint was not the subject of the 28 February 2022 meeting, despite the Applicant's attempts to make it so, both during the meeting, in evidence in these proceedings, during cross examination of the Respondent's witnesses, and in submissions. As stated by Ms Cadman: Regarding complaints that Ms Bir had relating to discrimination, I do recall that there were other factors that Ms Bir wanted us to consider in the investigation process, such as alleged bias or discrimination, including that resulted in a workers compensation claim. However the consistent instruction and messaging to us as investigators was that the remit of the investigation was to only be regarding Ms Bir's alleged conduct at the meeting of 14 January 2021. I recall that I said the words to the effect of "that is not part of our remit" or "that is not part of the investigation" multiple times during the meeting of 28 February 2022 when Ms Bir raised additional irrelevant matters she wished us to consider.
6. Ms Cadman's evidence was that Ms Bir's behaviour during the interview of 28 February 2022 made it "very challenging" to conduct a standard investigation process or interview. She said: Ms Bir was belligerent and antagonistic right from the beginning of the meeting, and frequently attempted to attack me or the process. I had planned to simply ask Ms Bir two or three questions in relation to the meeting on 14 January 2021. However I recall that much of the conversation became about me and what I had or had not read in preparation for the interview any mistakes she perceived I had made or times I may have inadvertently contradicted myself.
7. The Applicant disputed Ms Cadman's characterisation of her conduct and tendered a transcript of the meeting, annexed to her Affidavit of 20 February 2023. The Applicant stated in her affidavit: I refer to paragraph 30 of Ms Cadman's affidavit. I do not agree that Ms Cadman or Ms Bikou showed "a lot of deliberate care and support" of me in the interview on 28 February 2022. Both the content of the questions put to me in that meeting and the tone in which they were put to me in that meeting were lacking in support and empathy. I was only asked two questions in this meeting. They were stated in words to the effect of "Were you emotional in the meeting of 14 January 2021" and "did you ask for a support person for that meeting". Those questions were put to me in a tone that was blunt and accusatory. That is why I referred to that meeting as an "interrogation". I refer to paragraph 31 of Ms Cadman's affidavit. I deny that I was belligerent or antagonistic at any time in the interview mentioned. I did question in the interview the procedural fairness of the meeting process, but I did so in a professional manner. Annexed to this affidavit and marked OB-85 is a transcript of this interview evidencing what I said in it.
8. In cross examination, Ms Cadman was tested on her recollection of the Applicant's attitude and conduct in the 28 February 2022 interview and taken to the transcript annexed to the Applicant's 20 February 2023 affidavit, which Ms Cadman had not previously seen. The following exchange then occurred: Hayley Cadman: It feels like there's a chunk missing. Mr McIntosh: There's a chunk missing? Hayley Cadman: Correct. Mr McIntosh: So where is the chunk? Hayley Cadman: All of the questions. The meeting went on - so if I start from the beginning, so the very first page is my standard opening, how I would traditionally commence. I do feel that there was more from [Tom Stevenia] *0:12:09 that is not in here. Just my recollection, now it's coming back, sorry, that I'm going through this, with regards to requests for Omila to turn her camera on. I can't see this in here. And then [Mr Stevenia] did assist me with that. It just feels like there is some missing, yes. Where are all my questions?
9. The Respondent obtained a copy of the transcript for themselves and it was tendered as Exhibit R24. On close examination of the Applicant's version of the transcript in comparison with the Respondent's version of the transcript, it is clear that roughly 14 minutes of a 29 minute meeting (from 2.12pm to 2.26pm in the Applicant's version which is timestamped, or from 10.12 minutes to 24.16 minutes in the Respondent's timed version) were removed from the Applicant's version, which was tendered by her as evidence of her conduct in that meeting. The version of the transcript annexed by the Applicant supports her affidavit statement that she was only asked two questions, whereas the Respondent's full version demonstrates that the Applicant was asked many questions in relation to two separate allegations, being her conduct in the meeting of 14 January 2021 and then her conduct in a telephone call to Mr Sheargold after the meeting. It also demonstrates that the interview was not an "interrogation" and the Applicant was, in fact, argumentative towards Ms Cadman during the meeting: Omila Bir "Yeah. So, but I want to add the Hayley because if you read my while statement and I can give you the pages, I'm I asked for the meeting. I sit on two different occasions. We don't seem to be getting anywhere. I I don't think this needs to keep going because we just kept going around in circle and at no point in time any specific information was ever produced to me." … Omila Bir "You. You're not being accurate." … Omila Bir "That complaint, and I responded to all the points to Carolyn and once again, if you can't find it in my 1000 pieces, pick papers." … Omila Bir "Oh, I thought you said you didn't have it in front of you." … Omila Bir "Ok, I don't know. Tom, did you not hear when Hayley said that she didn't have that doc?" …
10. Based on my reading of the Respondent's version of the transcript of the 28 February 2022 meeting, I accept Ms Cadman's evidence.
11. I also agree with the Respondent's submission that this transcript highlights the caution with which the Tribunal must treat the Applicant's evidence. The Applicant's capacity to file altered documentary evidence to misrepresent the truth raises serious questions about her credibility and her entire evidence. This transcript and the edited messages annexed to her son's affidavit also cause the Tribunal to treat the documents attached to the Applicant's evidence, and that of her witnesses, with caution. For those reasons and for those expressed above at [124] to [130], where there is evidence contradicting the Applicant's, I prefer that evidence to the Applicant's. Where the Applicant has not provided verifiable documentary support for her statements, I do not accept those statements.
12. Ms Cadman (and Ms Bikou) drafted an investigation report in April 2022 into the allegations of misconduct, which was provided to the Respondent's Industrial and Employee Relations team on 23 May 2022 and was attached to Ms Cadman's affidavit. All three allegations against the Applicant were substantiated on their investigation. In my view the summation of their findings is very fair and the recommendations they make are reasonable and conservative: - It is recommended that Ms Bir revisit all training and practices that support managing emotions and communicating effectively in the workplace. Examples on My Health Learning may include: - Emotion Intelligence in Practice - Communicating During Challenging Situations - Positively Resolving Workplace Conflict - The investigators recommend that Ms Bir is supported by a performance improvement plan where she will have regular catch ups with her manager and both parties may table concerns they have in the workplace.
13. There is no evidence substantiating the Applicant's allegation of differential treatment in relation to the interview of 28 February 2023.

Causation

1. The Applicant's submissions suggest that the Applicant's race (or characteristics thereof) should have been taken into consideration by the Respondent's employees in the process of conducting the misconduct investigation and making the investigation findings, to the effect that the Applicant's conduct was excusable or reasonable, and therefore not misconduct.
2. The Applicant was at pains in her evidence and submissions to point out when a witness was "white", in contrast to herself, and suggested the Tribunal should draw inferences that any conduct adverse to herself in that context was because of her skin colour, as a characteristic of her race. The Applicant went to some length in submissions to demonstrate that the Respondent's witnesses were suffering from an 'unconscious bias' against the Applicant and her complaint of race discrimination against Mr O'Halloran, and stated: A finding of unconscious bias is sufficient to amount to a contravention of the Act. It is not necessary that the Tribunal determine that any one, or more, decision maker or person involved in the impugned conduct was motivated by actual bias: see, for example, Anters v DG Thompson Pty Ltd [2023] NSWCATAD 109 at [75].
3. The issue of unconscious bias (or conscious bias) is only relevant to the determination of causation under the Act. As submitted by the Respondent, if less favourable (or differential) treatment is proven, the question then becomes why the Applicant was subjected to the less favourable treatment. In proving a causal nexus, there must be a rational explanation based on proper proof as to why the conduct took place because of the aggrieved person's race, ethnicity, country of origin, skin colour: Penhall-Jones v State of New South Wales [2007] FCA 925 at [68]-[86]. In determining the causation question, the key issue is enquiring into the mental processes and actual reasons of relevant decision-makers: Purvis per Gleeson CJ at [13], per McHugh and Kirby JJ at [141]-[143] [155]-[158], [160]; per Gummow, Hayne and Heydon JJ at [236].
4. In Sharma v Legal Aid Queensland [2001] FCA 1699 at [63], Kiefel J (as her Honour then was) considered at first instance, and rejected, the mere possibility of systemic racism by inference issuing the following cautionary words: The existence of racism in the community is acknowledged by the legislation in question. A possibility, in a given case, that it may explain a choice made in the appointment of a person, may arise. Whether that possibility can then be converted to a more substantial finding, one which allows an inference that racism in fact operated on the decision-making so as to satisfy the requisite standard, is a question of fact in each case. Counsel for the applicant submitted that an inference could be drawn because of the known existence of racism combined with [a fact of the case]. It would seem to me that the two factors identified, considered individually or collectively, raise no more than a possibility that race might operate as a factor in the decision-making.
5. I have already found that the Applicant's race was not a reason why Mr O'Halloran made a complaint of misconduct against the Applicant following the meeting of 14 January 2021. I accept Ms Cadman's evidence that the Applicant's race, including ethnicity, country of origin and skin colour, were not considered or referenced by her or Ms Bikau in the conduct of the investigation or in the context of making their investigation findings. Even putting aside the findings I have made that the Applicant has not substantiated any differential treatment, I further find that there is no evidence to indicate that the Applicant's race was a factor in the Respondent's conduct of investigating or continuing to investigate the misconduct allegations against the Applicant, or in any of the processes thereby engaged by the Respondent to facilitate that investigation and the subsequent findings made.

Victimisation

1. The additional or alternative case put by the Applicant in relation to the continuation of the investigation into the allegations of misconduct against the Applicant (described by the Applicant as the First Continued Investigation and Disciplinary Conduct and the Second Continued Investigation and Disciplinary Conduct) was that this conduct amounted to victimisation pursuant to s 50 of the Act.
2. The Applicant submitted: Each of the persons involved until this point were aware that Ms Bir had made complaints of race discrimination. No witness was able to identify a good or compelling reason why the complaints by Mr O'Halloran were treated differently to Ms Bir's. No witness was able to identify a good or compelling reason why her complaints against Mr O'Halloran were not relevant to explain why she had behaved as she did no 14 January 2021. On the other hand, the Respondent was self evidently not properly equipped to deal with race discrimination complaints. The Tribunal can infer that the Respondent's reasons for it progressing the misconduct allegation against Ms Bir included that Ms Bir had made a complaint of race discrimination.
3. As discussed above at [88], to make out a complaint of victimisation the Applicant must demonstrate that there was a 'trigger', that the Respondent's conduct subjected her to a detriment, and that one of the "real, genuine or true reasons" for the conduct was because of the trigger (causation).
4. I accept that the Applicant's complaint of race discrimination on 14 January 2021 and her complaint to ADNSW on 14 July 2021 constitute "triggers" for the purpose of s 50 of the Act.
5. Whilst I have found that there was no continuing investigation in the period 29 March 2021 to 3 September 2021, I accept that the Respondent's continuation of the investigation after 3 September 2021 subjected the Applicant to a detriment. I agree with the Applicant's submission that an investigation process for misconduct allegations which is considering disciplinary action can be a detriment within the meaning of s 50 of the Act.
6. I do not find, however, that one of the real, genuine or true reasons for the Applicant being subjected to that detriment was because of the trigger, ie because she had made a complaint of discrimination under the Act.
7. The Applicant submitted that, by the letter of 17 February 2021 notifying the Applicant of the misconduct allegations, the Respondent: …committed themselves to a position that connects the Applicant's complaints about the conduct to which she was subject, with the action taken by the Respondent
8. There was undoubtedly a temporal connection between the Applicant's complaint of discrimination and the initiation of misconduct allegations against the Applicant, by way of Mr O'Halloran's complaint. I decline, however, to infer that the temporal connection demonstrates that the Applicant's complaint was one of the "real, genuine, or true reasons" for the Respondent's conduct. The obvious and simple explanation for the temporal connection is that both the Applicant's complaint and Mr O'Halloran's complaint had conduct at the 14 January 2021 meeting as their subject matter.
9. The Applicant also submitted: The Tribunal can also infer that the Respondent(s) were displeased with the Applicant having made a complaint to Anti-Discrimination NSW. Prior to that point, little had been done to advance the investigation during the Applicant's period of leave. After the claim was lodged, the Respondent(s) progressed the investigation with greater urgency.
10. The Applicant's complaint to ADNSW was made in July 2021. There is no evidence of any progression of the investigation until the Applicant's return to work in September 2021. The investigation was progressed once the Applicant returned to work after a significant period of workers compensation leave. I therefore decline to make the inference submitted by the Applicant.

The Suspension and Medical Examination Direction

1. The Suspension and Medical Examination Direction allegation of victimisation is outlined above at [70]. Evidence in relation to this allegation was provided by the Applicant and Mr Holmes.
2. As discussed above at [303], the Applicant was absent from work for an extended period of time. On her return to work, although certified as fit to return to pre-injury duties, the Applicant had an unusual number of absences on sick leave - at least 16 instances in a period of approximately 6 months. The Respondent contended that many of those absences were unsupported by medical evidence and were not properly notified by the Applicant to her manager. The Applicant denied this. I am not satisfied by the explanation provided by the Applicant that all or many of those instances of sick leave were for short dental appointments she was "catching up" following the COVID restrictions. Even if there was a documented basis for each of the many instances of sick leave, and the Applicant had sufficient accrued sick leave to take, that many instances in a relatively short period of time, after an extended period of leave on workers compensation, would reasonably cause her employer considerable concern.
3. Mr Holmes' evidence was to the effect that he held serious concerns in relation to the Applicant's capacity after she returned to work, for a few reasons. These included a complaint from a psychiatrist about her uninvited attendance at a Mental Health Review Tribunal hearing for a patient; her considerable number of sick leave instances after being certified fit to work; further complaints made by the Applicant about perceived aggression from a colleague which appeared to follow the same pattern of vexatious complaints made by her; and the Applicant disclosing insomnia, anxiety and feelings of worthlessness in a draft statement for her Personal Injury Commission proceedings. Mr Holmes reasonably concluded that the Applicant could be suffering from a medical impairment, and that it was in line with the Respondent's duties of care to the Applicant, patients and other staff for the Applicant to be medically assessed by an independent medical examiner. I accept Mr Holmes' evidence and find that it was a reasonable conclusion to reach.
4. By letter dated 27 April 2022, the Applicant was directed to remain out of the workplace, on pay, until she attended an independent medical examination (IME). The IME was booked to assess work health and safety concerns, including to ensure, so far as is reasonable practicable, that the Applicant was medically competent as a clinician and not exposing herself or others at work to risk, including during PIP discussions. The Applicant was given notice of the IME appointment but did not attend. A further appointment was made which the Applicant did not attend. I accept that evidence.
5. The Applicant submitted that the 'suspension' and direction for the Applicant to attend an IME was victimisation for her discrimination complaint. Mr Holmes' view under cross examination was that the Applicant was not suspended, and that the direction for her not to attend work and to attend an IME was purely for the health and safety concerns previously expressed. He said: It's not the fact that there's absences but the fact that those absences have occurred in a context where there's a medical clearance and the number of absences for our purposes is consistent with chronic health condition. And the standard approach that the health service takes in that circumstance is to seek medical advice … … it's not a position it's my evidence. But you're not appreciating someone that's been absent from the workplace, produces a medical clearance saying they're fully fit, and then they have a pattern of absences that is consistent with a chronic health condition in itself. But also in context of everything else. We run a health service which is high risk, and we have an obligation to provide care and assistance to people that are sick and vulnerable. It's high risk for a clinician to have incapacity, both in respect of themselves, and in respect of patients, and it's a higher risk where someone's a department head and they're responsible for the well being of other staff.
6. Mr Holmes' evidence was that on many, many occasions - at least 100 - he had directed an employee not to attend at the workplace because they have not disclosed why they are continuing to seek mental health treatment.
7. The Applicant submitted that the timing of Mr Holmes' concerns demonstrated the victimisation, and that: 77. Further, Mr Holmes (who was held out by the Respondent as the only witness who had an involvement in the decision to suspend) correctly conceded that he could not tell the Tribunal with certainty that the direction to remain out of the workplace was not related in any way to the proceedings or to Ms Bir's complaints. (Holmes XXM PDF36)
8. I can't find that concession in Mr Holmes' evidence and considering the transcript of his evidence went for more than 90 pages, the reference provided by the Applicant is entirely unhelpful. The evidence I have reviewed of Mr Holmes' entire cross examination is that he was firm in stating that the recommendation he made to direct the Applicant not to attend the workplace until she had been assessed and certified fit by an IME was not a misconduct suspension, and had nothing to do with these proceedings or any complaint she had made under the Act, and everything to do with the concerns he expressed about her capacity and the Respondent's duties of care to her, her staff, and patients. I accept that evidence.
9. The Applicant's complaint of victimisation in relation to the 'Suspension and Medical Examination Direction relies on the Tribunal drawing an inference that the Respondent engaged in this conduct towards the Applicant because of the 'trigger' - that she had made a complaint of race discrimination under the Act. An inference cannot be made where more probable and innocent explanations are available on the evidence. The more probably and innocent explanation available on the evidence is that the Applicant was directed to attend an IME and was required not to attend the workplace until that was completed, because of reasonable and valid concerns held by the Respondent about her capacity in the context of their duty of care to the Applicant, her reporting staff and clinical patients.
10. I therefore find that whilst the trigger for a victimisation complaint occurred, and directing the Applicant not to attend the workplace (even while on pay) and to attend a medical examination may be considered detriments, there is no causation linking the detriment to the fact that the Applicant made a complaint under the Act. There is therefore no unlawful victimisation within the meaning of s 50 of the Act.

Conclusion

1. I have found that the Applicant has not substantiated any part of her complaint against the Respondent as unlawful discrimination or unlawful victimisation.
2. Pursuant to s 108(1)(a) of the Act, the Applicant's complaint is dismissed.

Orders 1. The name of the Respondent is amended to Secretary, Ministry of Health. 2. The Applicant's complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW). 3. The interim orders made on 22 March 2023 are vacated. 4. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of individuals referred to in these reasons for decision as 'Ms X', 'Ms Y' and 'Mr Y' is restricted to the parties to these proceedings. 5. Pursuant to s 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013 the publication and reporting of the names of the individuals referred to in these reasons for decision as 'Ms X', 'Ms Y' and 'Mr Y' is prohibited.

Endnotes

1. It is noted that the Tribunal has given two separate affidavits the same Exhibit number.
2. It is noted that the Tribunal has given two separate documents the same Exhibit number.
3. It is noted that the Tribunal has given two separate documents the same Exhibit number. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 12 July 2024 - De-identified the four residential addresses. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2024