//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2000] NSWIRComm 202
Industrial Relations Commission (NSW)
2000-07-24
Boland J, Ms J
Original judgment source is linked above.
Industrial Relations Commission of New South Wales in Court Session
CITATION : Graham v Department of Community Services [2000] NSWIRComm 202 APPLICANT: PARTIES : Karen Graham RESPONDENT: Department of Community Services FILE NUMBER: IRC 2731 of 1999 CORAM: Boland J CATCHWORDS : Unfair contract - Contract of employment- alleged sexual harassment, harassment, stalking - alleged failure to properly investigate applicant's grievance - alleged failure to maintain confidentiality relating to grievance - allegations that investigation by independent consultant into grievance was "tainted" by respondent - allegation that applicant's complaints not substantiated was not justified - allegation that transfers of applicant to other work locations were unfair - allegations of fraud and forgery against applicant - finding that contract not unfair - finding that applicant contributed significantly to her own detriment - application dismissed - applicant to pay respondent's costs. LEGISLATION CITED : Industrial Relations Act 1996 Public Service Management Act 1988 CASES CITED : Day v Lumley Life Ltd (1999) 90 IR 70, Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) [2000] NSWIRComm 143 HEARING DATES: 07/24/2000; 07/25/2000; 07/26/2000; 07/27/2000; 09/11/2000 DATE OF JUDGMENT: 10/23/2000
APPLICANT: Ms Keys of counsel LEGAL REPRESENTATIVES: RESPONDENT: Ms Brus of counsel
JUDGMENT:
DATE: 23 October, 2000 Matter No IRC 2731 of 1999
KAREN GRAHAM V DEPARTMENT OF COMMUNITY SERVICES Application under s 106 of the Industrial Relations Act 1996 JUDGMENT
Introduction 1 In this matter, Karen Graham ("the applicant") has sought relief pursuant to s 106 of the Industrial Relations Act 1996 ("the Act") in respect of what she alleged was an unfair contract between herself and the Department of Community Services ("the respondent"). 2 The essence of the applicant's complaint as set out in the Summons was that during the time she was employed by the respondent as a District Officer between 1996 and 1998 she suffered harassment and discrimination at the hands of the respondent and certain of its employees; that her grievances in relation to this harassment and discrimination were not satisfactorily investigated and otherwise properly dealt with; that as a consequence she suffered unnecessary detriment to the conditions of her employment as well as her health and reputation. As a consequence, the applicant alleged that her contract of employment with the respondent operated unfairly. 3 The applicant sought an order declaring that the contract between herself and the respondent was unfair in its operation as a result of the respondent's conduct. The applicant also sought a consequential order that the respondent pay to the applicant an amount of money as fairly and adequately compensated her for the damage and detriment suffered as a result of the unfair operation of the contract between the applicant and the respondent. 4 Ms J Keys of counsel appeared for the applicant. Ms E Brus of counsel appeared for the respondent. Initial Allegations of Harassment etc, by Applicant
5 The applicant commenced employment with the respondent as a District Officer on 26 August 1996 at the Bondi Junction Community Services Centre ("Bondi CSC"). Employed at the Bondi CSC were two assistant managers, 17 district officers and three administrative staff. The district officers were divided into two teams each headed by an assistant manager. The applicant was assigned to the team headed by Mr Charith De Silva. The other team was headed by Mr Paul Filipczyk. 6 The applicant's complaint was that since commencing employment at Bondi CSC she had been "continually sexually harassed, harassed, verbally abused, assaulted and in some instances stalked by Assistant Manager's (sic) Charith De Silva and Paul Filipczyk." The applicant claimed that she was not the only person to suffer this abuse and that at least six other district officers and one administrative assistant had made complaints about the behaviour of the assistant managers. 7 As I understand them, the specific allegations made by the applicant against Mr De Silva were as follows: a) Mr De Silva referred to all female staff in the Bondi office as "pussies" and continued to use this term despite objections by the applicant and other staff; b) Between August and November 1996 Mr De Silva had either stroked the applicant's arm, or grabbed and hugged her on about six occasions; c) Mr De Silva's style of supervision was bullying and overbearing; he frequently yelled; d) On or about 13 November 1996 there was a meeting between the applicant and Mr De Silva concerning the applicant's work performance. The applicant described Mr De Silva as being "abusively critical". She alleged that Mr De Silva called her "stupid". The applicant alleged that she found the meeting to be "very intimidating"; e) On or about 26 November an incident occurred where the applicant was scheduled to attend a case practice review. She alleged that she was too busy to attend. She further alleged that Mr De Silva "yelled" at her to participate in the review. She said that Mr De Silva grabbed her by the right upper arm and started to pull her towards his office; she pulled away and Mr De Silva continued to yell at her. The applicant said she felt humiliated and that she was concerned Mr De Silva would have hit or punched her if there had not been other people present. She attended the case practice review but she was so concerned about the incident that she spoke to a police officer at Waverley police station about the possibility of obtaining an Apprehended Violence Order against Mr De Silva; f) Mr De Silva refused to allow the applicant to attend District Officer training. 8 The allegations against Mr Filipczyk were that: a) He supported Mr De Silva in calling females in the office "pussies"; b) He refused to allow the applicant a lunch break on four separate occasions; he stood over the applicant in a threatening manner; c) On or about 22 November 1996 he said to the applicant "I wish I could sack the oldies in the office and get in some young sexy things"; d) On one occasion the applicant heard Mr Filipczyk say "In my opinion, feminist philosophy is different ways to have orgasms".
9 Mr De Silva gave evidence strongly denying each and every one of the applicant's allegations. He said that allegations relating to stalking, assault and physical injury were "pure fantasy" on the part of the applicant. Mr De Silva denied yelling at the applicant although he said he did speak to her on occasions in a firm tone. Mr De Silva said that there were occasions when it was necessary to speak with the applicant about her work performance and that he did have some concerns about her capacity to cope with the work and about the amount of time the applicant had taken off work, but he denied that in addressing the applicant he was intimidating or abusive. 10 Mr Filipczyk affirmed an affidavit in relation to these proceedings on 22 May 2000. He did not appear to be cross examined because he was out of Australia at the time. In his affidavit Mr Filipczyk denied the allegations of the applicant in relation to the taking of lunch breaks, standing over her in a threatening manner or saying words to the effect that "I wish I could sack all the oldies in the office and get in some sexy young things." Mr Filipczyk said that on a social occasion after work he said words to the effect "Feminism allows women greater sexual freedom." The comment was directed to a female assistant manager but Mr Filipczyk believed the applicant may have heard the comment. Mr Filipczyk denied having discriminated against the applicant in any way. 11 Arising out of these alleged incidents the applicant spoke to various colleagues about them. She was advised to take her complaints to Victoria Hill who was the Manager, Child and Family Services, Eastern Sydney and who had supervisory responsibility for the Bondi office. The applicant did not do so. One of the persons who the applicant spoke to about her concerns in mid November was Kate Alexander. Ms Alexander was a child care specialist employed by the respondent. Ms Alexander, properly in my view, then spoke to Ms Hill as the appropriate manager, telling her that there appeared to be some problems at the Bondi office involving Mr De Silva and the applicant. Investigation into Applicant's Allegations
12 Subsequently, Ms Hill contacted the applicant on 20 November by telephone and invited the applicant to discuss her concerns. The applicant's response was that she needed to think about her position but allegedly described Mr De Silva to Ms Hill as "belligerent," "aggressive" and "sleazy". Ms Hill asked the applicant, once she had thought about her position, to get back to her and the applicant indicated she would do so. She did not do so. 13 On 25 November 1996 Ms Hill again spoke to the applicant who indicated she was not prepared to meet in Mr De Silva's presence without a solicitor. At the same time the applicant indicated she would like a transfer out of the Bondi office. The applicant did not, at this stage, elucidate her concerns relating to her alleged treatment by either Mr De Silva or Mr Filipczyk to Ms Hill. 14 Ms Hill made several attempts to arrange a further meeting with the applicant but the next meeting did not take place until 28 November. Part of the reason for the delay was the applicant's reluctance to meet with Ms Hill. This reluctance seems to have stemmed from a view formed by the applicant, following a staff meeting on 25 November addressed by Ms Hill, that Ms Hill had taken the side of the assistant managers. The applicant had also advised Ms Hill that she did not wish to meet with Ms Hill without a support person being present. The applicant advised Ms Hill that she had spoken to Jacquie Gardiner, the respondent's Acting EEO Coordinator, who the applicant said was looking for a support person to attend the meeting with the applicant. Ms Hill subsequently spoke to Ms Gardiner who said that while she had spoken to the respondent she was not making any arrangements to provide a support person and had not been asked to. Ms Gardiner advised Ms Hill that until a person lodged a grievance in accordance with the respondent's relevant policies and procedures and while the issue remained a private matter between manager and employee, there was no need for a support person. 15 In the result, a meeting was arranged for 28 November 1996. Ms Hill asked Ms Louise Barlow, who was the respondent's Area Human Resources Manager for the South East Sydney region, to attend the meeting with the applicant. Upon the applicant's arrival at the meeting venue and upon learning of the presence of Ms Barlow at the meeting, the applicant again expressed a reluctance to proceed. Nevertheless, the meeting went ahead. The evidence of Ms Hill and Ms Barlow was that the applicant was reluctant to provide any information with Ms Barlow present. Ms Barlow explained the respondent's grievance policy to the applicant and provided to the applicant various options available to her in resolving her concerns. Given the applicant's reluctance to divulge information, Ms Barlow asked her to write down some "dot points" about her concerns by Monday 2 December 1996. Ms Barlow expressed the view in her evidence that the applicant "was clearly very agitated throughout the meeting." The applicant's version of the meeting was quite vague. She said she was, indeed, reluctant to speak with Ms Barlow present having been told it was to be a meeting involving only herself and Ms Hill; that she put to Ms Hill her impression that Ms Hill was supporting her assistant managers and that staff had to tolerate the behaviour of the managers; that she referred to an incident involving another female District Officer and Mr De Silva which, I understand, the applicant regarded as not having been properly resolved thereby adding to her concern that she might not get a fair hearing. It seems that the applicant was not confident either about the process for resolving her concerns or the role of Ms Hill in that process. The meeting ended somewhat uncertainly. Ms Barlow had the impression that the applicant was to consider her options, Ms Hill had the expectation that the applicant would provide her "dot points" by 2 December. As I said, the applicant's recollection of the meeting was vague. She did not remember Ms Barlow taking her through the grievance procedure and she did not remember being asked to write down dot points about her concerns. In any event, the meeting concluded without Ms Hill being much more informed about the nature of the applicant's concerns and her complaints about Mr De Silva and Mr Filipczyk than she was when she first learned that there might be a problem at the Bondi office of the respondent. 16 Ms Hill's evidence was that on 2 December 1996 she rang the Bondi office and was advised that the applicant was off sick with food poisoning and would be absent as well on 3 December. The applicant's evidence was that her absence was due in part to food poisoning but that she was stressed about the conduct of Mr De Silva and about the way Ms Hill was handling the applicant's concerns. She was issued with a certificate from her doctor to the effect that she would be unfit for work for a period of one month from 2 December 1996. Written Complaint Lodged by Applicant with Respondent and Anti Discrimination Board
17 On 9 December the applicant wrote to Mr Rod Gilmour, Director Corporate Services of the respondent. In her letter the applicant: · alleged that since she started her employment with the respondent she had been "continually sexually harassed, harassed, verbally abused, assaulted and in some instances stalked by Assistant Manager's (sic) Charith De Silva and Paul Filipczyk"; · had lodged a formal grievance but did not have any confidence in the process; · expressed disappointment to have to work in such an horrific environment; · formally requested a transfer to another office; · alleged that Mr De Silva had refused to allow her to start District Officer care and protection training; · indicated she had medical certificates supporting her claim and these had been forwarded to the Personnel Section at Blacktown; · had lodged a formal grievance through her solicitor with the Director - General. 18 Between the time the applicant commenced sick leave on 2 December and 9 December when she wrote to Mr Gilmour, she did not, and did not attempt to, contact Ms Hill. Further, contrary to her letter, she had not lodged a grievance with the respondent. 19 On 9 December, as she was quite entitled to do, the applicant also wrote to the President of the Anti Discrimination Board setting out certain allegations against Mr De Silva and Mr Filipczyk and the respondent. In the letter the applicant requested "that the Anti Discrimination Board urgently look into my concerns …." The applicant had not revealed in her letter to Mr Gilmour that she had written, or intended to write, to the Anti Discrimination Board. I am uncertain what action, if any, the Anti Discrimination Board took at this stage but on 26 February 1997 the applicant filed a further complaint with the Board and that complaint proceeded to conciliation. Investigation of Applicant's Complaint
20 On 11 December, despite the medical certificate which indicated the need for one month off work, the applicant returned to work "because of the 'Barnardo's case'" involving the adoption of a child and in which the applicant had been involved. Barnardos - an adoption agency - had made a complaint about the applicant's handling of the matter. Also, the applicant explained, she was without income and needed to return to work. 21 The complaint by Barnardos was the subject of a meeting between Ms Hill, Mr De Silva and the applicant on 13 December. The evidence about what occurred at the meeting on 13 December is in conflict. The import of the applicant's evidence was that she was intimidated by Ms Hill and the presence of Mr De Silva, ended up in tears and insisted she wanted to see her doctor. Ms Hill denies there was any intimidation but she acknowledges that the applicant was very tense and agitated. Upon the applicant saying she wanted to see a doctor, Ms Hill offered to have someone drive the applicant to the doctor. The applicant clearly did not want to be driven for some reason she did not satisfactorily explain but eventually relented. Some exchange seems to have taken place between the applicant and Ms Hill regarding Mr De Silva. Ms Hill said that the applicant said to her "Charith is dangerous". The applicant said that she said to Ms Hill "You should listen to your staff. This is serious and I have had legal advice. Charith hurt me the last time he grabbed me." 22 At the meeting on 13 December Ms Hill does not appear to have attempted in any planned way to follow up the earlier discussions with the applicant about the latter's concerns. This is understandable given her pre-occupation with the Barnardos issue and the obviously distressed state of the applicant. The applicant also does not appear to have been in an appropriate state of mind to take up her concerns with Ms Hill. Ms Hill, however, did learn from other employees of the respondent that the applicant had been to the police in relation to an alleged assault by Mr De Silva and that the applicant had lodged a worker's compensation claim. 23 On 17 December, Ms Hill was advised of the applicant's letter of complaint to Mr Gilmour. With the assistance of Ms Barlow, Ms Hill drafted a letter to the applicant and this was sent to the applicant on 19 December. That letter contained the following main points: · the applicant's letter of 9 December 1996 was to be regarded by the respondent as a formal grievance; · the respondent regarded the statements made by the applicant in relation to Mr De Silva and Mr Filipczyk as "extremely serious"; · arrangements had been made for an independent consultant, Ms Helen Colby, to commence an investigation into the applicant's grievance; · the applicant was requested to meet with Ms Colby at 2.00pm on Monday 23 December 1996 in Glebe; · the applicant was invited to have another person present at the meeting with Ms Colby if she wished; · the respondent had arranged a transfer to Sutherland CSC, initially on a temporary basis effective from the date the applicant was cleared as medically fit to take up duties; · given that the applicant had expended all paid leave entitlements, if the applicant was not considered fit to take up duties the respondent would consider granting up to two weeks special leave to ensure that the applicant received payment over the Christmas period. This was to be done pending any worker's compensation claim being processed and/or whilst the investigation into the applicant's grievance was being conducted. Offer to Applicant of Transfer to Mt Druitt Office
24 The applicant deposed that on 20 December 1996 she spoke to Stephen Spencer of the Public Service Association (PSA) about the letter from Ms Hill of 19 December 1996. Mr Spencer apparently advised the applicant not to transfer to the Sutherland office of the respondent and to opt for Marrickville, Newtown or St Leonards. Mr Spencer apparently contacted the respondent on behalf of the applicant and subsequently advised the applicant that she would be transferred to Mt Druitt in Western Sydney and that she was to start on Christmas eve. 25 On 20 December Ms Barlow wrote to the applicant offering her a temporary transfer to Mt Druitt CSC and that "You may commence this temporary transfer from Tuesday 24th December 1996 onwards." Ms Barlow also advised the applicant in the letter that it would be necessary to attend a medical examination as soon as possible upon her return to work. The medical examination was a prerequisite to permanent appointment and in respect of which the applicant was advised and had agreed to as part of the conditions of her appointment on 14 August 1996. The applicant expressed concern at the request to undertake a medical examination at a time she was absent on worker's compensation leave. Cancellation of Christmas Leave
26 In her affidavit of 26 May 1999, the applicant complained that because of the timing of the meeting with Ms Colby she was forced to cancel plans to travel to Broken Hill to spend Christmas with her family. However, I note in the letter to the applicant from Ms Hill on 19 December the applicant was offered up to two weeks special leave over Christmas and that, indeed, the applicant had applied for and had been granted leave from 20 December. She did not mention this to either Ms Hill or Ms Barlow. The applicant said she felt obliged to attend the meeting with Ms Colby on 23 December and had therefore cancelled her travel plans. Given that neither Ms Barlow nor Ms Hill were aware of the fact that the applicant had applied for and had been granted leave and, that the respondent had offered special leave over Christmas, I do not think there can be any criticism of the respondent or any of its employees because the applicant cancelled her travel plans. The respondent, it seems to me, was acting with due haste to address the applicant's concerns, which by this time had led to a situation that seemed to be spiralling out of control. A complaint had been made by the applicant to the Anti Discrimination Board; serious allegations had been made by the applicant in a letter to the Director Corporate Services regarding the conduct of two employees of the respondent; the applicant had indicated that a formal grievance would be lodged with the Director-General of the respondent; a worker's compensation claim relating to stress had been lodged; contact had been made by the applicant with the police and the applicant's family had been informed that she could not be with them for Christmas because of problems at work. In relation to this last point, apparently on or about 20 December the applicant's father had made a complaint to the Minister for Community Services that the applicant "had been bashed at least three times by her DCS supervisor" and the Minister required an urgent report on the matter. There is no evidence whatsoever that the applicant had been "bashed" and as far as I understand it the applicant made no such allegations in these proceedings. 27 It would have been open to the applicant to inform Ms Hill or Ms Barlow that leave had been arranged over Christmas so that she could spend time with her family and to seek postponement of the meeting with Ms Colby. It would have been a reasonable request and I can see nothing in the evidence that would suggest the request would have been refused. Indeed, quite the contrary when one has regard to the offer of special leave over Christmas in the letter of Ms Hill to the applicant on 19 December. Meeting between Applicant and Ms Colby
28 The meeting between the applicant and Ms Colby proceeded to take place on 23 December. The evidence relating to that meeting was sparse to say the least. The applicant had only the barest recollection of it; at the applicant's request it was not taped, although notes were made of the meeting and these were provided to the applicant (but they were not produced into evidence); the other persons present at the meeting, namely, Ms Colby, the consultant investigating the grievance and Ms Jane Timbrell of the PSA, who attended the meeting to support the applicant, were not called to give evidence. Interview with Applicant Following Report into Grievances
29 The applicant commenced work at Mt Druitt CSC on 2 January 1997. On 22 January the applicant was advised by Ms Barlow to attend an interview the following day in relation to a report that had been completed by Ms Colby into the applicant's grievances. The applicant was advised that the interview would be conducted by Ms Annie Fraser, Acting Manager of Bondi CSC, and that Ms Barlow would be in attendance. The applicant was advised that she could bring an observer to the meeting. The applicant was unable to organise an observer in time and the interview was postponed. On 24 January Ms Barlow wrote to the applicant directing her to contact Ms Fraser or herself within seven days in order that the interview might be re-scheduled. The letter advised the applicant that the purpose of the interview was to provide her with the grievance investigation report; that the applicant would be given ample time to read the report and that the applicant would be given every opportunity to discuss and comment on each allegation and finding in the report. The letter also indicated that the conclusions and recommendations of the report would be discussed with the applicant and appropriate action identified.
30 On 30 January 1997 the applicant wrote to Mr Frank Horton, Acting Director Corporate Services for the respondent. In that letter the applicant: · complained that Ms Barlow had informed her she was to attend the interview with Ms Fraser on her own and that she was under no circumstances to bring anyone else. Further, that Ms Barlow informed the applicant she would only be given a small portion of the grievance report; · complained that Mr De Silva and Mr Filipczyk already knew the outcome of the grievance investigation and that Ms Barlow had said to her that she would "never get to hear what happened to Paul or Charith"; · formally made a grievance against Ms Barlow and Ms Fraser for breach of the respondent's "Harassment Free Workplace Policy" in that they had not shared relevant information with the applicant. 31 The applicant requested in the letter to Mr Horton that her grievance be handled by "Central Office" because she lacked confidence in grievance handling by "Area South East." 32 The letter by the applicant to Mr Horton was written in the knowledge that Ms Barlow and Ms Fraser had put into place a process for arranging a meeting with the applicant to discuss the outcome of her grievances and without the applicant knowing the outcome of the grievance process. I note this was similar to what occurred in December 1996 when the applicant lodged a formal grievance with the Director of Corporate Services for the respondent, Mr Gilmour, before Ms Hill had the opportunity to fully ascertain and investigate the applicant's concerns. 33 The applicant's reason for writing to Mr Horton was that she had no confidence in the process (not yet knowing what outcome the process had produced, it must be said). Further, she believed Ms Colby had made up her mind even before she had interviewed anyone concerned and that Ms Colby's opinions did not favour the applicant. The applicant gleaned this from the tone of Ms Colby's voice in a message on the applicant's telephone answering machine on 27 December; from a question that Ms Colby asked the applicant about whether she knew anyone in Parliament (perhaps a reference to the complaint allegedly made by the applicant's father); and the allegation by the applicant that Ms Colby had told the applicant to withdraw her complaint to the Anti Discrimination Board because Ms Colby did not want it interfering with her investigation into the applicant's grievance. It is to be noted that the applicant did not voice any concern about her perception of Ms Colby's bias in her letter to Mr Horton. 34 A meeting eventually took place on 11 February 1997 to discuss the outcome of the applicant's grievance. Present at the meeting were the applicant, Ms Timbrell from the PSA, Ms Fraser and Ms Barlow. The applicant was given a copy of the Executive Summary of Ms Colby's report. Again, the applicant's recollection of the meeting was vague. She recalled only that the Executive Summary was read out but she was not sure by whom. The applicant did recall that there were minutes taken at the meeting and that she was later provided with a copy of those minutes. The applicant later stated that she was not happy with the outcome of the investigation but she did not express this view at the meeting on 11 February. The applicant complained that she had not been given a full copy of Ms Colby's report and to this day has not seen a full copy. The applicant claimed that the whole investigative process and those involved in it continued to intimidate her. The applicant did not lodge an appeal and while she stated she was not aware that she could appeal she did not make any specific inquiries as to that possibility. The applicant did, however, say she spoke to Ms Timbrell of the PSA about the outcome of the grievance investigation but that Ms Timbrell's alleged advice was "This is very typical of the Department, best just drop it because they just will continue the way they treat you." 35 Ms Barlow, who was also present at the meeting on 11 February, gave evidence that Ms Fraser read through each of the applicant's allegations from the Executive Summary as well as each of the findings and also reviewed those recommendations in the report relating to the applicant. The investigation by Ms Colby would appear to have been quite comprehensive and thorough, although it is to be noted that Ms Colby was not called to give evidence in the proceedings and was not subjected to any cross examination. Some 15 persons were interviewed by Ms Colby, including persons who the applicant believed either witnessed or could corroborate various incidents or other matters raised in the applicant's allegations against Mr De Silva and Mr Filipczyk or who had experienced similar behaviour themselves. 36 In her report Ms Colby found that none of the applicant's allegations against Mr De Silva and Mr Filipczyk were substantiated. 37 Ms Barlow stated in her evidence that at the end of the meeting on 11 February, agreement was reached with the applicant as to the following matters: · that the applicant would state her intentions regarding a permanent transfer outside the South Eastern Sydney Area; · that Ms Barlow would investigate the current availability of substantive District Officer vacancies and the location of those vacancies in the metropolitan area and also within Mt Druitt CSC; · in the event that the applicant did transfer, her probationary period would re-commence effective from the date of her transfer to her new work location; · thereafter, that the applicant be referred and attend for her Government Medical Examination as soon as possible; · that the possibility of arranging a District Officer mentor for the applicant be investigated; · that the applicant attend a performance counselling session in accordance with the recommendations in the Executive Summary. 38 A further meeting was arranged for 4 March to follow up the matters agreed at the meeting on 11 February. That meeting was cancelled by the applicant. According to Ms Barlow, none of the matters agreed on 11 February were appropriately followed through. This is probably because, on 26 February, the applicant made a further complaint to the Anti Discrimination Board and the respondent took the view that the matter was now out of its hands. The reason the applicant did so was because she did not accept the outcome of the grievance process and had no confidence in the processes of the respondent in resolving her concerns. Transfer of Applicant to Strathfield Office
39 Following a conciliation conference conducted by the Anti Discrimination Board in August 1997 it was determined that the applicant would be transferred to Strathfield CSC, there being no other location where a permanent posting was available. This was not a location of her choice. The applicant said that prior to taking up the appointment at Strathfield she said she was under the impression that Strathfield had low morale and management problems. She had no direct knowledge of this but it was something the PSA had told her. 40 The applicant took up the Strathfield appointment on 7 October 1997. She found the work situation "intolerable". She found the workload "excessive", she felt "very distressed" because she had been sent to an office which was not her choice, management was "poor" and morale was "low". Applicant Applies for Employment with Bankstown Community Health Centre
41 In December 1997 the applicant had applied for employment with the Bankstown Community Health Centre. 42 In January 1998 the applicant applied for approximately six months leave without pay. Her application was rejected by the respondent. On 8 January 1998 the applicant attended an interview for the position with the Bankstown Community Health Centre. 43 In February 1998 the applicant was advised that she had been successful in obtaining employment with the Bankstown Community Health Centre as a social worker. For the better part of February the applicant did not attend for work with the respondent due to illness in respect of which the applicant was claiming worker's compensation. In fact, the applicant did not return to work with the respondent prior to her resignation. Applicant's Resignation from Respondent
44 The applicant deposed that "By 2 March 1998 I felt unable as a result of the continuing tensions between myself and the Department of Community Services to continue working for the Department and I tendered my resignation with effect from 20 March 1998." The applicant's resignation was set out in a letter dated 2 March 1998 and addressed to "The Manager, Strathfield, Department of Community Services, 58-60 The Boulevarde, Strathfield, NSW, 2135". The respondent denied ever having received this letter of resignation from the applicant and no record could be found of the letter. Evidence was given by Margot Meredith Beach who had been the Manager of the respondent's Strathfield office since 7 October 1997. It was her evidence that at no time had she received a notice of resignation in any form from the applicant. Evidence was also given by Cristen Ann Sharp who is the Senior Customer Service Officer at the respondent's Strathfield office and had been in that position since 19 January 1998. Ms Sharp gave evidence about receipt of mail at the Strathfield office and the handling of resignation notices and her role in that process. Ms Sharp stated that at no time did she sight or process a resignation from the applicant. She said in her evidence that she attended for work each day in the weeks commencing 2 March 1998 and 9 March 1998, except for the day of 10 March. 45 The issue of whether the applicant did resign from her employment with the respondent becomes important, because in October 1998 she was charged with breaches of the Public Sector Management Act 1988 in that she failed to notify her Department Head and give reasonable cause of her intention to continue her absence from duty since 25 June 1998 and that she engaged in other employment while still employed by the respondent. She was also charged with a breach of discipline of the Public Sector Management Act to the effect she provided herself or did allow the provision of a forged certificate of service relating to her period of employment with the respondent. 46 On 23 January, 26 February and 5 March 1998 the applicant saw a psychiatrist, Dr Canaris. Notwithstanding that the applicant said she had resigned from her employment with the respondent on 2 March, no mention of this is made in the Doctor's report. 47 Notwithstanding that she had resigned from the respondent's employ the applicant continued to submit medical certificates to the respondent relating to her worker's compensation claim. 48 The applicant commenced employment with the Bankstown Community Health Centre on 23 March 1998. 49 On 24 March 1998 the applicant swore a statement of evidence relating to proceedings in the Equal Opportunity Tribunal. The applicant made no mention in the statement that she had resigned from the respondent's employ. The statement says "Since 9 March I have been on sick leave/workers compensation continuously. Prior to this current period of sick leave/workers compensation I have been absent on such leave for short periods on and off." 50 After the applicant commenced employment with the Bankstown Community Health Centre, two deposits were made by the respondent into the applicant's bank account. These payments were $621.07 on 15 April 1998 and $475.98 on 29 April 1998 and were identified in the applicant's account as pay/salary from the Department of Community Services, Southern Division. The applicant said that she made no inquiries as to what these payments were and that the monies received by her were spent. Statement of Service
51 The applicant claimed that she was provided with a Statement of Service by the respondent in a letter dated 3 April 1998. The letter certifies the applicant as having been employed with the respondent from 26 August 1996 to 20 March 1998 The letter was purportedly signed by Margaret Michell. Ms Michell was not employed by the respondent in April 1998. Ms Michell had left the employ of the respondent in January 1997. She had been employed by Lottie Stewart Hospital from 14 July 1997 and remained in employment with that Hospital until 1 August 2000. 52 In relation to the Statement of Service, Coleen Fowler, a Senior Human Resources Officer employed by the respondent gave evidence that in February 1998 she became aware that the applicant had lodged a worker's compensation claim against the respondent. Ms Fowler said she had received a report that the applicant had commenced working at the Bankstown-Lidcombe Hospital. Ms Fowler contacted the Hospital and was advised that the applicant had commenced employment on 23 March 1998. Ms Fowler requested a copy of the applicant's Statement of Service that had been provided to the Hospital by the applicant. Features of the Statement of Service led Ms Fowler to believe the Statement was a forgery. No copy of the Statement of Service was held in any files of the respondent. Ms Fowler could find no record of cessation of employment action having been undertaken by the relevant offices of the respondent in respect of the applicant, including calculation of final monies or completion of superannuation documentation. Ms Fowler said that the applicant continued submitting medical certificates to the Inner West Area office of the respondent in relation to her worker's compensation claim and the last certificate was received on 15 April 1998. This last certificate was dated 21 March 1998 for the period 21 March to 21 June 1998 inclusive. Allegations of Further Harassment
53 The applicant resigned from the Bankstown Community Health Centre on 8 September 1998 because she found the cost of living in Sydney to be too expensive and she subsequently obtained employment in Mildura, Port Augusta in South Australia and Horsham in Victoria. In her affidavit she made a number of allegations that the respondent in effect, continued to victimise her by, for example, causing the Bankstown Community Health Centre to issue a termination notice some three months after she had resigned from the Centre and that the respondent had caused damage to her reputation. This allegation was not substantiated in any way. 54 In response to the charges brought against her by the respondent in relation to alleged breaches of the Public Sector Management Act the applicant made a further complaint to the Anti Discrimination Board in January 1999. The applicant alleged in her complaint that the charges were, in effect, victimisation of her because she had made complaints to the Board. This complaint was not pursued by the applicant. Consideration
55 The origins of this quite unfortunate affair lie in the applicant's belief that during the period she was employed on probation as a District Officer at the respondent's Bondi office during August to November 1996, she was subjected to harassment, verbal abuse and assault at the hands of two assistant managers, namely Charith De Silva and Paul Filipczyk. The nature of this alleged mistreatment is described earlier in this judgment. 56 It is perhaps not necessary for me to make any specific findings about this alleged mistreatment because I am not asked to. Ms Keys at p 283 of the transcript said: "The applicant is complaining about the manner in which her grievance was investigated. There is no application, per se, before this court that is asking for a finding that incidents of harassment did occur. That is, in a sense, part of the background to the complaint before this Commission. The complaint before this Commission involves the manner and the conduct of the respondent in investigating her complaint." 57 Consequently, as I understand what Ms Keys put, it was not part of her case that the contract of employment operated unfairly because of the alleged mistreatment of the applicant at the hands of the two assistant managers. Rather it was that the contract operated unfairly because of the subsequent conduct of the respondent in investigating the applicant's grievances concerning the alleged mistreatment and its failure to comply with its own internal policies and procedures relevant to the investigation. 58 In any event, even if I were asked to make findings in favour of the applicant about the nature and seriousness of the alleged mistreatment I would have found some difficulty in doing so. On the one hand, the applicant insists the mistreatment occurred but the strength of that insistence is undermined, I think, by the vagueness of her recollections about the incidents. Indeed, such was the applicant's vagueness or lack of recall about so much of her evidence that where it was in conflict with other evidence I was left with little option but to accept the other evidence. 59 The vagueness and lack of recall on the applicant's part was difficult to understand. One would have thought that harassment, abuse and assault that is alleged to have caused such detriment to the applicant's conditions of employment, health and reputation would have remained in the mind with startling clarity. 60 On the other hand, the two assistant managers strongly denied any mistreatment of the applicant. Furthermore, following what appeared to be a reasonably comprehensive investigation, the person who investigated the applicant's grievances, Ms Colby, found that the allegations of mistreatment could not be substantiated - although it must be said that Ms Colby was not called to give evidence and was not subject to cross examination about her investigation and the basis of her findings. Finally, no witnesses were called by the applicant corroborating her claims of mistreatment, despite the fact that the applicant said that other employees of the respondent witnessed certain alleged incidents of verbal abuse, assault and harassment. 61 Nevertheless, from the applicant's perspective something occurred at the Bondi office that she, at least, found most objectionable - something which caused her to describe the environment at the Bondi office as "horrific". Whether her reaction to what may have occurred was rational or reasonable is perhaps not to the point because, as counsel for the applicant has stated, the complaint is about what occurred after the alleged incidents of abuse, assault and harassment at Bondi. In particular, the alleged intimidatory conduct of the respondent towards the applicant and the manner in which the applicant's grievance was investigated by the respondent, including an alleged failure on the part of the respondent to comply with its own policies and procedures relating to harassment and grievance resolution. 62 The applicant's first complaint related to the initial attempt by Ms Hill and Ms Barlow to ascertain whether the applicant did have a grievance and what the nature of that grievance might be. Ms Keys referred to the respondent's "Harassment Free Workplace Policy" and its "Grievance Policy". Ms Keys submitted that, contrary to the objectives of the Grievance Policy, during the interview with the applicant by Ms Hill and Ms Barlow on 28 November 1996 they failed to "correctly identify the issues that were of concern to Ms Graham" and that there was no attempt at any stage to clarify the grievance in accordance with Part 2 of the respondent's Grievance Resolution Procedure. Whatsmore, Ms Keys argued that the respondent failed to ensure confidentiality, which again was contrary to the objectives of the Grievance Policy. 63 The evidence does not support these submissions. There was a very clear attempt by Ms Hill to ascertain the nature of Ms Graham's grievance. Ms Hill had been trying to extract information about the applicant's concerns since initial contact between the two on 20 November but the applicant demonstrated a continued, marked reluctance to state her position with any degree of specificity. Having failed to get the applicant to divulge her specific concerns, at the meeting on 28 November Ms Barlow suggested she write down some " dot points" in order to prompt her and that she do this by 2 December. It was not, as Ms Keys suggests, a situation where the applicant was simply requested to put her complaint in writing. 64 The reasons given for the applicant's reluctance to express her concerns and to participate in the grievance resolution process appear to be firstly, that she had heard that an earlier complaint by a female District Officer had not been properly resolved and therefore she might not get a fair hearing, secondly that she felt that Ms Hill was biased in favour of the two assistant managers who had allegedly mistreated the applicant and thirdly, she felt intimidated by the presence of Ms Barlow at the meeting on 28 November and had not been forewarned that Ms Barlow would be present. 65 Assuming all these to be legitimate reservations on the part of the applicant, it does not change the fact that Ms Hill made a genuine effort to ascertain the nature of Ms Graham's complaints. Moreover, Ms Barlow took the applicant through the grievance procedure, proposed that she jot down her concerns and that a further meeting take place once that had been done. I simply cannot see any basis for criticising this approach. The only criticism could be that Ms Graham was not accompanied by another person in whom she had confidence and that she had not been forewarned of the presence of Ms Barlow. Given the preliminary nature of the meeting, however, I do not consider this to be a fatal flaw in the approach adopted by Ms Hill. 66 Turning to the reservations of the applicant that prevented her from stating her complaints at the meeting on 28 November, the first related to the grievance of another female officer involving Mr De Silva which Ms Graham had heard had not been properly resolved. On this basis the applicant believed she would not get a fair hearing. I question whether this was a legitimate reservation on the part of the applicant. If she would not divulge her concerns how could she expect to get a hearing, fair or otherwise? I note that there was no evidence about what the applicant had heard about the other officer's grievance that caused her to think she would not get a fair hearing. 67 The second reservation related to Ms Hill's alleged bias in favour of the assistant managers. It is quite understandable that if the applicant had formed the impression - rightly or wrongly - that Ms Hill was likely to support her managers in relation to any complaints against them that the applicant may have been reluctant to spell out her concerns. But given that Ms Barlow had explained the various options open to Ms Graham in pursuing her grievance and had taken the applicant through the grievance procedure, which includes a list of some 17 persons to whom a staff member may take a grievance, the applicant would have become aware of other persons with whom she could discuss her complaints if she lacked confidence in Ms Hill. In fact, without telling Ms Hill of her intention to do so and without any further contact with Ms Hill or Ms Barlow, in early December the applicant did take her concerns to a senior officer of the respondent, Mr Gilmour, and to the Anti Discrimination Board. Following the letter to Mr Gilmour, which contained the elements of the applicant's grievance, the respondent immediately set in train its procedure for resolving grievances. 68 I do not consider that either Ms Hill or Ms Barlow acted wrongly or unfairly towards the applicant or that they failed to comply with the grievance policy and procedure. 69 The applicant's third reservation involved the unexpected presence of Ms Barlow at the meeting. Confronted with two managers it is understandable that Ms Graham may have felt intimidated and reluctant to talk about her concerns. It would have been more appropriate in the circumstances if arrangements had been made for the applicant to be accompanied by another person in whom she had confidence. Nevertheless, there was no evidence of intimidation by Ms Hill or Ms Barlow. Ms Barlow seems to have taken a somewhat neutral position in the meeting and, according to her evidence, that is how she saw her role. Despite the imbalance in the meeting I do not accept that Ms Graham was unduly prejudiced and I do not accept that by Ms Hill's actions the respondent failed to comply with the grievance policy and procedure by not ensuring Ms Graham was accompanied by another person. In this respect, Ms Hill had received advice from the respondent's acting Equal Employment Opportunity (EEO) Coordinator to the effect that as no grievance had been lodged by the applicant it was unnecessary for her to be accompanied at the initial meeting which was merely for the purpose of ascertaining the nature of the grievance. 70 The second complaint about the treatment of the applicant by the respondent was that the respondent did not maintain confidentiality in accordance with the respondent's grievance policy and procedure. That policy and procedure does emphasise the need for strict confidentiality when dealing with a grievance by an employee. Ms Keys submitted that the respondent breached its obligation to the applicant to maintain confidentiality in two ways, namely, by virtue of the large number of people who came to know about the matter, as evidenced by the 15 people interviewed by Ms Colby in the course of her investigation of Ms Graham's grievance, and secondly, by the allegedly erroneous statements still being made by Mr De Silva some 18 months after the allegations by the applicant were initially made. 71 As to the number of people who knew about the matter, I really do not know who should, and who should not, have known about it in the context of the obligation on the respondent to maintain confidentiality. At least nine of those persons interviewed by Ms Colby in the course of her investigation were either directly involved in the matter, such as Ms Hill, Ms Barlow and the two assistant managers, or had been confided in by Ms Graham herself. These persons included Ellen Scully and Jacqueline Gardiner. Of the other six persons, I do not know whether they were directly involved or were entitled to know about the matter because of their position with the respondent. Ms Keys did not specifically identify any person who should not have known about the matter. Accordingly, there is no evidence on which I could find there was a breach of confidentiality on the part of the respondent. 72 The second part of Ms Keys' submission concerning breach of confidentiality referred to a statement by Mr De Silva made on 21 and 23 April 1998 which she said was some 18 months after the allegations were initially made by the applicant. Ms Keys' complaint, which is at p284 of the transcript was that: "It is a sad reflection of this investigation that Mr De Silva can be making these statements well and truly after the whole matter was supposedly resolved. I think it is a sad reflection of the lack of confidentiality that has occurred; that Mr De Silva, in a statement 18 months after the incident, be referring to matters that were allegedly referred to the police and the results of those police investigations. I say it is not the applicant who has breached any confidentiality in this process but the Department has done so. That has resulted, in my submission, in an unfair outcome for some of the other people that have been involved in this matter." 73 The statement made by Mr De Silva, as I understand it, was prepared for the purpose of proceedings brought by the applicant in the Equal Opportunity Tribunal. I cannot see how it can be said that the statement by Mr De Silva, prepared as part of a defence of the respondent's position in proceedings before the Equal Opportunity Tribunal, breaches confidentiality in the context of the respondent's grievance procedure. 74 The applicant's third complaint was that the investigation into her grievances by Ms Colby were "tainted" by the instructions given to Ms Colby by Ms Hill on 23 December 1996 and therefore the investigation by Ms Colby was not "impartial" as required by the respondent's grievance resolution procedures. At p291 of the transcript Ms Keys submitted: "…that Ms Colby's investigation was unnecessarily influenced, by Ms Hill and Ms Barlow. Ms Colby was appointed as an independent investigator. She was not a member of the Department at this point in time, but she was engaged under contract, as I understand it from the evidence, by Ms Hill and/or Ms Barlow and that appointment to conduct the investigation was confirmed in a letter dated 23 November 1996. That is Exhibit 16." 75 Ms Keys did not elaborate on how it was that Ms Hill's instructions were tainted and so I am left to consider the terms of the letter from Ms Hill to Ms Colby in Exhibit 16. I can see nothing in the letter that would lead me to the view that Ms Hill had "unnecessarily influenced" Ms Colby. It is a perfectly reasonable letter that gives Ms Colby some relevant information about the background to the grievance. There is nothing that I can see that would have been likely to improperly influence Ms Colby in conducting her investigation into the applicant's grievance. There is no other evidence that would suggest that Ms Hill or Ms Barlow sought to improperly influence Ms Colby. 76 The applicant's fourth complaint was that the outcome of Ms Colby's investigation - that the applicant's grievances against Mr De Silva and Mr Filipczyk were not substantiated, was not justified by the findings in Ms Colby's report. Further, that the recommendations in the report relating to action to be taken in respect of Ms Graham were also not justified. 77 Again, there was not a great deal of elaboration by Ms Keys as to why the outcome of the investigation was not justified. I am not able to say, unequivocally, that the investigation was properly conducted and the findings were justified because there is not sufficient evidence that would allow me to arrive at that conclusion. However, on the face of Ms Colby's report into the applicant's grievances, which was put into evidence, there is nothing to suggest improper or biased conduct on the part of Ms Colby or that she was not entitled to draw conclusions that each of the allegations against Mr De Silva and Mr Filipczyk were unsubstantiated. Ms Colby interviewed some 15 persons in the course of her investigation. A number of these persons, according to the applicant, had witnessed conduct by Mr De Silva of which the applicant had complained. Ms Colby found that the witnesses did not corroborate the applicant's allegations or did not corroborate the applicant's version of what had occurred. There were three persons who Ms Colby had proposed to interview but one was overseas, one was in hospital and the other declined to participate in the investigation. It was open to the applicant to call any of the persons interviewed by Ms Colby in order to show that Ms Colby's conclusions were not properly drawn. The applicant did not do so. 78 I note that Ms Colby made a number of recommendations regarding Mr Filipczyk and Mr De Silva including that they both be counselled about their responsibilities as managers in terms of professional and personal behaviour as outlined in the respondent's code of conduct and harassment policies. Additionally, it was recommended that Mr De Silva be counselled about his management style and: "That the Assistant Manager position held by Mr De Silva be advertised immediately and filled on a substantive basis. If this is not possible because of the relocation exercise, it is considered that it would be in the best interests of all concerned if the opportunity to act as Assistant Manager was again rotated and Mr De Silva returned to his substantive position or an alternative suitable position. In the event this occurs a more experienced Assistant Manager would be needed to stabilise the situation and start to rebuild the team." 79 On the evidence before me, I consider that these recommendations were entirely appropriate in the circumstances. I say this because I have formed the impression that Ms Graham did not simply make up the incidents she complained of. However, I have also formed the impression from the evidence that Ms Graham's reaction was out of proportion to what may have occurred. 80 The applicant's fifth complaint was that the transfers to Mt Druitt and Strathfield were unfair and that she was disadvantaged as a consequence of the transfers. This was based on a provision in the respondent's Procedures for Resolving a Grievance which states that: "the transfer of a person who has been harassed, victimised or who has complained about interpersonal conflict will not normally be regarded as a fair outcome." 81 It is to be noted that it was the applicant who sought a transfer out of the Bondi office of the respondent although it must be said that her preferred choice was somewhere close to her place of residence such as Marrickville, rather than Mt Druitt where she was placed on temporary transfer. The applicant's complaint about the Mt Druitt transfer was not so much the transfer itself but that it was done in an uncaring and unsympathetic way and it was to a location that was a considerable distance from the applicant's place of residence. The applicant also complained that at Mt Druitt she was not provided with a mentor. 82 It may be that the respondent should have had greater regard to the applicant's emotional or psychological state in effecting a transfer to Mt Druitt and closer contact should have been maintained in order to monitor her status. But I need to bear in mind the following: · the applicant sought a transfer; · the distance and time to Mt Druitt from the applicant's place of residence was not unreasonable or excessive; · there were no positions available in the offices of the applicant's choice and she had declined a transfer to Sutherland; · there was no evidence of vindictiveness by the respondent to the applicant in arranging the transfer to Mt Druitt; · there was no evidence that it was reasonably open to the respondent to arrange a transfer to an office of the applicant's choice through additional funding; · the applicant agreed in her evidence that she was "happy" at Mt Druitt. 83 I cannot agree, in the circumstances, that there was anything unfair in the transfer of the applicant to Mt Druitt. 84 The transfer to Strathfield came about following conciliation proceedings before the Anti Discrimination Board. Originally, the applicant was offered a transfer to a location of her choice, namely, Marrickville, but the vacancy at Marrickville was only part time. Consequently, the Strathfield vacancy was proposed to the applicant and she accepted it mainly because it was closer to home. 85 The applicant found the work situation at Strathfield "intolerable" and she felt very distressed because she had been sent to an office which was not her choice, management in her view was "poor" and morale was "low". Ms Keys submitted that in respect of the Strathfield transfer: "With a bit more funding or by allocating the position to be a whole position (at one of Ms Graham's preferred locations) rather than point 6 or point 7 or point 8 of a position, would not have been in my submission, a big burden for this respondent to bear and in my view of the circumstances of Ms Graham wanting a transfer, that that could have and should have been accommodated." 86 In response to this submission Ms Brus argued: "The subsequent transfer to Strathfield was put to Miss Graham on the basis of "You can stay at Mt Druitt. We have no problem. There is a vacancy there. You can stay or because you have expressed the view you wish to come back to an area closer to your home, then we have for you a vacancy at Strathfield", and Miss Graham elected to take a transfer to Strathfield. She agreed in her evidence she was quite happy at Mount Druitt. She was not unhappy there, liked the people and the Mount Druitt office, but she decided to come back to Strathfield. She thought Strathfield was unreasonable because she did not have a desk on the first day and did not get an induction, but she stated in her evidence, it would have been her preference to have a couple of days to settle in and that did not occur. She was not required to do anything she had not already done at Mount Druitt or had not done at Bondi Junction. It is just she preferred to have a couple of days to settle in.
She may not have liked being at Strathfield but apart from the fact it was not a line (sic) that suited her too well, she could point to nothing that would in any way infer that there was any victimisation or any inherent unfairness as it related to her being located at Strathfield." 87 I have to agree with Ms Brus, that there is no evidence of victimisation or unfairness against the applicant in her transfer to Strathfield. 88 As to the allegation that the applicant was disadvantaged by her transfers to Mt Druitt and Strathfield, undoubtedly she incurred extra travel costs and more of her time was consumed in travel from home to her places of work. At Strathfield the applicant alleged that the work situation was intolerable and that, consequently, she was disadvantaged, although no evidence was brought to corroborate this claim. 89 I consider that Ms Graham did suffer some disadvantage as a consequence of her transfers, which may have been ameliorated if there had been a closer monitoring by the respondent. But this has to be weighed up against the fact that the applicant sought the transfer (in her mind for good reason); that the locations of her choice were not available; that there was no evidence that it was reasonably open to the respondent to accommodate Ms Graham at a location of her choice; that there was no evidence of any vindictiveness on the part of the respondent in placing Ms Graham at Mt Druitt and Strathfield. While there may have been some disadvantage to Ms Graham arising from the transfers, I do not consider it amounted to unfairness within the meaning of s106 of the Act. 90 The sixth complaint by the applicant was that the outcome of the grievance should not have been regarded as satisfactorily resolved because "The outcome for the Applicant (of transfer, extension of probationary period and counselling about proper grievance making procedure) was not fair having regard to the damage and suffering sustained by the Applicant (evidenced by stress leave); there were no arrangements proposed to 'repair of (sic) rectify the damage and distress suffered by the grievant', nor were there any arrangements proposed to 'repair and rectify…..any threat to her future career or working capacity'". 91 The "outcome for the Applicant", referred to above, refers to the recommendations of Ms Colby arising out of her investigation into the applicant's grievances. The recommendations were as follows:
102 The question for me, in this case, however, is whether the detriment experienced by Ms Graham was caused by the respondent and whether the actions of the respondent caused the contract or arrangement with the applicant to operate unfairly within the meaning of ss105 and 106 of the Act.
103 Section 106 provides : 106 Power of the Commission to declare contracts void or varied: (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. 104 A "contract" is defined in s.105 for the purposes of Pt.9 of Ch.2 of the Industrial Relations Act as meaning "any contract or arrangement, or any related condition or collateral arrangement" and an "unfair contract" as meaning inter alia "a contract: (a) that is unfair, harsh or unconscionable". It will be apparent that the purpose to which s.106 is directed is relief against any contract whereby a person performs work in any industry if the contract is found to be unfair.
105 In Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) [2000] NSWIRComm 143 the majority (Wright J, President, Walton J, Vice President, Hungerford J) said at par 28: "What a contract of employment does is set the terms and conditions to govern the employment relationship; the contractual relationship is another term which may be readily used to describe it. If a party in the course of operation of the employment relationship were to act in contravention of the contract of employment, particularly by committing a fundamental breach thereof, then that may only mean that the contract otherwise was unfair in so allowing or not preventing such unfair conduct or, indeed, in failing to make appropriate provision in the event occurring. In any of those situations, we think it clear that s 106 could be called in aid by the aggrieved party to obtain relief." 106 In relation to the applicant, I have formed the opinion from the whole of the evidence that she was emotionally vulnerable to the slightest confrontation during her period at Bondi CSC and regarded any criticism of herself as harsh or unfair. I suspect this reaction on her part was an attempt, in part at least, to mask the difficulty or insecurity she was experiencing in handling the role of District Officer.
107 It may be that the respondent should have been more alert to the applicant's anxious and stressed state of mind, which was manifested on a number of occasions be her physical appearance and behaviour. It may therefore, have been open to the respondent to take measures more specifically tailored to the applicant's emotional or psychological state. But in weighing up the conduct of the respondent, I need to consider also the conduct of the applicant.
108 In Day v Lumley Life Ltd (1999) 90 IR 70 Hungerford J said: "The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way which permits one party, here the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee." 109 Hungerford J went on to say, however at 71 that: "Employees have a corresponding duty to act with fidelity and good faith." 110 In considering the applicant's conduct, I note that the applicant was not deprived of external advice and assistance. From at least December 1996 onwards, she had access to her union, the PSA, and she was according to her evidence, receiving legal advice.
111 I consider that the applicant, by her conduct, contributed significantly to the stressful and, I imagine, hurtful situation in which she found herself during her period of employment with the respondent. This conduct included her own unreasonably based mistrust of the grievance process and her initial reluctance to participate in the process. Her reluctance to participate at the outset, her lack of reasonable cooperation and her sometimes erratic behaviour as the matter progressed was, I think, irrational and not justified by the circumstances in which she found herself.
112 While there may have been an occasional lapse in the respondent's conduct in handling Ms Graham's grievance, on the evidence that was before me, I was unable to find that the contract or arrangement between the applicant and the respondent was unfair within the meaning of s106 of the Act.
114 The applicant shall pay the respondent's costs of the proceedings in an amount as agreed or, failing agreement, as assessed.
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.
Graham
Department of Community Services
(1999) 90 IR 70