Haswell v Department of School Education

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

HIDDEN J Monday 20th December 1999 No: 30053 of 1997 Elizabeth June Haswell v NSW Department of School Education Reasons for judgment

1 HIS HONOUR: This is an appeal, pursuant to s118 of the Anti-Discrimination Act 1977, against a decision of the Equal Opportunity Tribunal. The plaintiff, Elizabeth June Haswell, had been the complainant in proceedings before the Tribunal brought against the first defendant, the Department of Education and Training (then known as the Department of School Education). The Tribunal dismissed the plaintiff's complaints in a written decision of 26 May 1997. Section 118(1) permits an appeal to this Court on a question of law. The plaintiff contends that the Tribunal failed to give adequate reasons for its decision and seeks an order that the matter be remitted to it: s118(3)(a). The Tribunal has been joined as the second defendant and has entered a submitting appearance. 2 The plaintiff had been a teacher employed by the Department since 1970. In 1988 she was appointed head teacher of Languages other than English at the Moorefield Girls' High School. In February 1993 she filed a complaint with the Anti-Discrimination Board alleging discrimination by the principal of the school, Mr James Harkin, on the ground of her sex: ss24 & 25 of the Act. Conciliation conferences later in that year were unsuccessful, and in May 1994 the matter was referred to the Tribunal under s94(1). In August 1994 the plaintiff made a further complaint to the Board alleging victimisation: s50. In October 1995 the complaints of discrimination and victimisation were merged and particularised in Amended Points of Claim. 3 In those Points of Claim the complaint of discrimination was based on s25(1) & (2) of the Act, alleging discrimination on the ground of her sex in relation to the plaintiff's opportunities for promotion, conditions of employment and her treatment generally by Mr Harkin. The complaint of victimisation was based on s50(1), alleging that the plaintiff had been subjected to detrimental treatment of various kinds by Mr Harkin and other departmental staff after Mr Harkin became aware in late 1991 that she intended to contact the Anti-Discrimination Board about her treatment. A considerable number of incidents were particularised as the foundation for both claims. The plaintiff gave evidence, as did Mr Harkin and other witnesses. The Tribunal heard the matter over twelve days in the later part of 1996, and at the close of the evidence the parties supplied detailed written submissions. 4 The duty of the Tribunal to give reasons for its decision is expressed in s117 of the Act. Whether the reasons in the present case are inadequate, and that inadequacy is such as to amount to error of law, falls to be determined in the light of the authorities usefully summarised by Simpson J in Absolon v NSW TAFE Commission (1997) 75 IR 47 at 49-52, 60-63. It is not sufficient that this Court considers that more detailed reasons would have been desirable. The Court would intervene only if it were satisfied there was "some real basis for thinking that a more comprehensive statement of reasons might lead the Tribunal to a different conclusion…": Absolon at 64. Simpson J's decision was upheld by a majority of the Court of Appeal: Absolon v NSW TAFE [1999] NSWCA 311. As Powell JA put it (at par 68), an appeal on this ground should be dismissed "unless it can be said, first, that the reasons given by the Tribunal were inadequate, and, second, that that inadequacy warrants the inference that the Tribunal has not exercised its jurisdiction in accordance with law".

The evidence 5 I have had access to the transcript of evidence before the Tribunal, the exhibits and the written submissions. For the purpose of the argument in this Court, my attention was drawn to the written submissions and certain parts of the transcript and of the exhibits. It is unnecessary to recite this material in detail. 6 Put shortly, the plaintiff relied on evidence of a number of incidents between 1991 and 1994 to demonstrate a pattern of discrimination or victimisation. For the most part, this related to the behaviour of Mr Harkin but it also embraced the actions of some other officers of the Department. Much of this evidence was common ground, although Mr Harkin denied some of the conduct attributed to him. The Department's case was that whatever did occur was the result of the plaintiff's personality, in particular, her unwillingness to accept departmental directives and to work cooperatively with others. It was not discriminatory, as it had nothing to do with the fact that she was a woman, and it was not victimisation. 7 It is apparent from the written submissions supplied to the Tribunal what were the principal areas of contention. A number of matters were raised in support of the allegation of discrimination. The nature of the case will appear sufficiently through brief reference to a few of them. 8 In 1991 and 1992 timetable changes were made, reducing the number of hours devoted to languages other than English. The plaintiff's opposition to this was said to be in the interests of her students, although it also appears that her position as head teacher at that school would not have been maintained if the hours fell below a specified number. The Department's response was that the changes to the timetable were appropriate and in the interests of the school as a whole, and the plaintiff's inability to appreciate this was typical of her uncooperative attitude. 9 In 1991 the plaintiff applied for the position of deputy principal. A Mr Marshall, who had been acting in that position, was appointed. She was not given an interview. Again, the Department's response was that this process was unexceptionable. The plaintiff had been culled by a panel, of which Mr Harkin was a member. Her sex could not have influenced that decision, as at least one other woman was interviewed. There was no basis, it was said, for the plaintiff's suggestion that Mr Marshall gained a preference by his having acted in the position. His appointment was recommended by the panel, but the decision was made by a senior departmental officer. 10 In February and November 1992 Mr Harkin prepared work reports in relation to the plaintiff, following her application for promotion. It is sufficient to refer to the report of November 1992. It speaks most highly of the plaintiff's capacity and dedication as a teacher, but is critical of her lack of co-operation with colleagues and superiors. For example, it alleges that "Ms Haswell frequently does not support decisions by those delegated to manage curriculum choice, staffing and timetabling. She will misuse legitimate processes of appeal and grievance as well as allege discrimination if she feels she cannot have her way". It declines to support any application for promotion by her, "especially as she has not acted on advice previously given to improve her skills in consultation and school affairs". 11 The plaintiff complained that those adverse comments were false, and that the report was unsolicited and prepared without consultation with her. Put very shortly, the Department's response was that the preparation of the report was appropriate in the circumstances and the comments were entirely justified. 12 Consistently with its approach to the complaint of discrimination as a whole, the Department's case in relation to each of these matters was that it arose from Mr Harkin's dealings with the plaintiff as an individual and that her sex was irrelevant. 13 To understand the plaintiff's case of victimisation, it is again sufficient to refer to a few of the matters relied upon. Of course, there was some overlap between the evidence bearing upon discrimination and victimisation. For example, it appears that the work report of November 1992 was relied upon for both complaints. Again, the Department's case was that the matters raised (in so far as they were common ground) occurred in the course of appropriate dealings with the plaintiff by Mr Harkin and other officers of the department, and had no connection with any action she might have taken or contemplated under the Act. 14 The plaintiff applied for leave on 1 November 1991, specifying the reason on the leave form as "urgent legal matter attend to (EEO Tribunal)". Mr Harkin sought further information from her about this, which she refused to supply. He did not recommend the leave, noting on the form, "I feel more information should be supplied prior to a recommendation. Request was denied." The plaintiff alleged that this was an act of victimisation. This was denied by Mr Harkin, the effect of whose evidence was that he was following normal departmental procedure. 15 In 1993, Mr Harkin sought to have the plaintiff enter into what was described as an "improvement plan". She complained that this also was done without consultation with her and without a proper explanation to her of his concerns. She complained also that he deferred completion of a Teacher Assessment Review Schedule, which should have certified her as efficient. Mr Harkin's evidence was that she refused to participate in the plan, which was directed to addressing her perceived shortcomings in the work place. He said that the deferral of the teacher assessment review was the result of the same concerns, which he had tried to raise with her on a number of occasions. Generally, he said, he had sought to maintain a "low key" approach. 16 In July 1993 Mr Harkin received a letter from a senior officer of the Department, requiring him to review the plaintiff's position as head teacher of languages in the light of the number of periods required per week. He responded with a submission that the position should be reviewed further in the following year. It seems that the plaintiff relied upon this as evidence both of discrimination and victimisation, and it was a matter which occupied a considerable period of time at the hearing before the Tribunal. It is sufficient to say that the Department's case was that the review was in accordance with procedure in place at the time, and that there was no basis upon which it could be said that it was directed at the plaintiff specifically. Again, the plaintiff's reaction was said to demonstrate her inability to deal with departmental policy and bureaucratic processes. 17 At the end of the school year in 1993 the plaintiff was transferred to another school, also as Head Teacher of Languages other than English. She complained that this placed her at a professional disadvantage. The Department's response was that, in fact, there was no reduction of the terms and conditions of her employment, and no detriment within the meaning of s50 of the Act had been demonstrated. In any event, far from being victimisation of the plaintiff because of her approach to the Anti-Discrimination Board, the transfer was designed to ensure that she could pursue her rights under the Act away from the climate said to give rise to her complaints. 18 The plaintiff alleged that another person had told her that Mr Harkin had said that he was "suffering from a disease called Haswellitis". She saw this as her being ridiculed publicly. The person said to have conveyed that information to her was not called. It was not conceded that the comment had been made, but Mr Harkin acknowledged that he may have done in an informal context. The Department's submission was that, if Mr Harkin did say it, it was understandable in the circumstances and, certainly, could not be characterised as an act of victimisation. The plaintiff alleged other derogatory comments on the part of Mr Harkin, together with threats that he would impede her promotion if she pursued her grievances. These were denied by Mr Harkin. 19 As I have said, the matters I have referred to are by no means the only incidents relied upon by the plaintiff to establish her complaints. They are, however, sufficient to demonstrate the nature of the case which she made, both as to discrimination and victimisation, and the Department's response to it. The plaintiff gave evidence before the Tribunal but called no witnesses. The Department relied upon the evidence of Mr Harkin and several other members of its staff.

The decision 20 The Tribunal's decision is quite lengthy (58pp) and, it must be said, its format is unusual. It begins by recounting the process by which the complaints came before it. It summarises the complaints of discrimination and victimisation, referring briefly to the applicable law. Thereafter, most of the decision is devoted to recounting the submissions of the parties. The summary of the Department's submission is considerably longer than that of the plaintiff's. This would appear to be because the Department's submissions were more lucid and comprehensive. That, I think, reflects the nature of her case and I intend no adverse comment about her legal representation before the Tribunal. 21 Finally, the decision sets out the Tribunal's findings as follows: This was a sad case in the sense that all members of the Tribunal felt that the Complainant was completely genuine in her opinions and belief, but they could not be substantiated having regard to the evidence given by the Respondent and his witnesses, who established on the balance of probabilities that the Complainant was a strong-willed, self-assertive personality and was involved in many verbal clashes with the Respondent and other members of staff, and that she was unable on many occasions to accept a view expressed either by the Respondent or certain committees, which was contrary to her own.

It was quite evident when the Complainant was giving her testimony that she had deep-rooted grievances concerning certain members of the staff at Moorefield Girls' High School, and the Tribunal is of the opinion that those grievances arose from emotional rather than factual circumstances. She adopted an extremely assertive attitude in the witness box, mainly because of her unwavering determination and genuine belief in the facts relating to her case. It cannot be doubted that she was in many respects a conscientious teacher, but came into personal conflicts with opinions which were contrary to her own. It therefore cannot be said that the Complainant was an untruthful witness for the reason as previously stated, namely that she genuinely believed that the allegations she made were in her opinion true. The Tribunal considers that the evidence given by the Respondent and his witnesses, apart from some minor contradictions, truthful (sic) and that the Complainant did not establish sexual discrimination in the area of employment, or victimisation, pursuant to section 24(1) and 25(2) and section 50 of the Act. In relation to the unsolicited work report given by the principal to her, the Tribunal is of the opinion that the Complainant had admissively (sic) frustrated the principal for an extended period of time, but that the report itself did not constitute victimisation. The Tribunal finds that the Complainant has not substantiated her claims of sex discrimination in the area of employment, and victimisation, and on the balance of probabilities, her complaints must fail.

(Throughout the decision Mr Harkin, rather than the Department, is described as the Respondent.) 22 The substantial argument for the plaintiff in this Court was that the Tribunal's decision fails to identify and deal with the issues of fact which had to be determined, so that the parties cannot know how the decision was arrived at. Counsel for the Department submitted that the issues are specified in the Amended Points of Claim and in the written submissions, summarised in the decision, and that the passage from the decision quoted in par 21 of these reasons is an adequate and meaningful resolution of the matter. 23 I consider that the arguments of counsel for the Department are sound. It may well have been preferable for the decision to have dealt with the incidents where the facts were in dispute, and to have subjected the submissions for the parties to critical analysis rather than merely reciting them. Nevertheless, the Tribunal's findings, admittedly brief, are sufficient to dispose of the case. Once it was found that the plaintiff's complaints where the result of her own false perceptions and that the evidence of Mr Harkin and the other witnesses called by the Department was to be accepted in relevant respects, that was an end to the matter. 24 I can well understand that the plaintiff expected more detailed reasons for the decision. However, I am far from persuaded that fuller reasons might have led to a different conclusion. Certainly, the decision is not so inadequate as to give rise to the inference that the Tribunal did not exercise its jurisdiction according to law: Absolon (supra). 25 The appeal must be dismissed. I shall hear the parties on costs.

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