Human Rights - Discrimination - Connection with - employment - Prescribed attribute of disability - Importance of establishing the comparator - Complaint about employer and managers - Complaint relies on inference rather than direct evidence - No evidence of detriment - Comparator not established - Unlawful discrimination not proven

Human Rights - Discrimination - Anti-Discrimination Act 1998 (Tas) - Claim not limited by pleadings - Claim may be limited by case management considerations - Consideration of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

Practice and Procedure - Summary dismissal and strike out - More appropriate forum - Timing of application - Section 87 of the Tasmanian Civil and Administrative Tribunal Act 2020 requires an evaluative exercise and confers a discretion

Acts Interpretation Act 1931, s 10A;

Anti-Discrimination Act 1998, ss 13, 14, 15, 16, 17, 18, 21, 22, 63, 84, 85, 89, 104;

Nurses and Midwives (Tasmanian State Service) Award, Pt VI, cl 3;

State Service Act 2000, s 7;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 10, 81, 83, 84, 87;

Work Health and Safety Act 2012, s 19;

W_ork Health and Safety Regulations 2022,_ reg 55D;

Workers Rehabilitation and Compensation Act 1988, s 142

Anti-Discrimination Commissioner v White (2023) 35 Tas R 209; [2023] TASSC 26;

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27;

Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34;

Cain v The Australian Red Cross Society [2009] TASADT 3;

CCL Secure Pty Ltd v Berry [2019] FCAFC 81;

Costello v Tasmania Police [2012] TASADT 9;

Drummond v Telstra Corporation Limited (Anti-Discrimination) [2008] VCAT 2630;

Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48;

Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103;

Flanagan v Humana Pty Ltd (2017) 28 Tas R 436; [2017] TASSC 50;

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22;

Jago v Anti-Discrimination Tribunal [2021] TASSC 10;

Manole v Department of Education [2016] TASADT 8;

O'Byrne v The Trustee for Brian Finch Family Trust T/as LIFT (Launceston) Institute of Fitness and Training [2025] TASCAT 169;

Peter Hodges v Beauty Point Tourist Park [2025] TASCAT 18;

Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62;

Seidenspinner v Startup (No 3) [2025] TASCAT 8;

State of New South Wales v Amery (2006) 230 CLR 174; [2006] HCA 14;

Trevanion v Wyangala Country Club Ltd (No 2) [2013] NSWADT 27;

von Stalheim v Anti-Discrimination Tribunal [2007] TASSC 9

During the hearing, several directions were made under the Tasmanian Civil and Administrative Tribunal Act 2020, s 81 prohibiting or restricting the publication of certain evidence. Such evidence has been omitted from these reasons for determination.

Why victimisation did not fall within the ambit of the inquiry [31]

1. The complainant, Mrs James, is a registered nurse. She was employed by the State of Tasmania and worked within the first respondent, the Department, as a clinical nurse consultant. The second respondent, Mrs Downie, was one of Mrs James' managers, albeit with two other managers between them. Mrs James' employment relationship was a short but unhappy one. Lasting less than six months, it culminated in an internal grievance complaint against Mrs Downie and another person, a workers compensation claim which the Department disputed, four proceedings in the Tasmanian Industrial Commission (TIC), and a complaint to the Anti-Discrimination Commissioner (the Commissioner).
2. It is the complaint to the Commissioner that is before the Tribunal. By that complaint, Mrs James says that the Department and Mrs Downie directly discriminated against her, indirectly discriminated against her, and engaged in prohibited conduct, all of which is contrary to the Anti-Discrimination Act 1998 (ADA). Mrs James also contends that the Department breached its obligations under s 104 of the ADA. Her discrimination claim is based on the prescribed attribute of disability: specifically, her diagnoses of autism, attention deficit hyperactivity disorder (ADHD), anxiety and, later, an adjustment disorder.
3. I conducted an inquiry into the complaint, during which the Department and Mrs Downie contended that they did not discriminate against Mrs James or otherwise breach the ADA. I have found that Mrs James has not proven any breaches of that Act. The complaint will be dismissed.

1. I begin by setting out the key participants. This should be read with the annexed glossary.

1. The Department is the Tasmanian state government agency responsible for planning, managing, and delivering health care services in Tasmania. It is an agency under the State Service Act 2000 and part of the Crown. The Department does not employ people. Rather, the State of Tasmania represented by the Minister administering the State Service Act employs people, some of whom are assigned to work within the Department. For convenience, however, I will refer to the Department as the employer.
2. It is unnecessary to canvass the distinction between the Department and the Tasmanian Health Service (THS), the latter being or having previously been a separate agency. To the extent that there was a material difference, I have nonetheless imputed the THS' actions and inactions to the Department.
3. The Department is an organisation for the purpose of the ADA and therefore may be the subject of a complaint. It is the first respondent to this complaint.

1. Mrs James trained as a registered nurse. She commenced employment as a clinical nurse consultant (CNC) at the Department's Rosebery Community Health Centre (RCHC) on or about 16 January 2023. Broadly speaking, her duties were to coordinate community health nursing, emergency first response, and ancillary services to clients[1] on the west coast of Tasmania. Mrs James was based at RCHC but sometimes worked at the West Coast District Hospital (WCDH) at Queenstown, around a 50-minute drive away from RCHC.
2. Mrs James gave evidence. She did not call any witnesses.

1. Mrs James' line manager was a Nurse Unit Manager (NUM) within the Department. For most of the relevant time, the NUM was Ms Keroline Boyd. At other times, the NUM position was vacant or Ms Samantha Elrick acted in the position. Neither Ms Boyd nor Ms Elrick gave evidence.

1. Mrs Amanda Coulson is the Director of Nursing West Coast (DON) and has been in the role since September 2022, initially in an acting capacity. Ms Boyd reported to Mrs Coulson. When there was no NUM, Mrs James reported directly to Mrs Coulson. Although Mrs James' complaint relates in part to Mrs Coulson's conduct, Mrs Coulson is not a party to the proceeding but did gave evidence for the respondent.

1. Mrs Downie also works within the Department. She is the Nursing Director Primary Health Services North West (Nursing Director) and has been in the role since September 2019. She is responsible for leading strategic planning, service delivery, and policy development relating to primary health services in the north-west of Tasmania. Mrs Coulson reports to Mrs Downie.
2. Mrs Downie is the second respondent; Mrs James asserts that Mrs Downie herself breached the ADA. Mrs Downie gave evidence in her and the Department's defence.

1. Ms Michelle Bar was, and is, a Senior Consultant, Workers Compensation & Liability, within the Department's injury management unit (IMU). She has ten years' experience managing workers compensation claims and enquiries. Her tasks include conducting factual investigations and assessing and determining liability regarding those claims.
2. Her evidence clarified the participants' roles and responsibilities within the Department's labyrinthine structure.

1. Ms Lydia Hay was a Senior Human Resources Consultant within the Department's human resources unit. She was based in Burnie. Because of the Department's regional model for human resources services, she was the person responsible for matters relating to Mrs James.
2. Giving evidence for the respondent, she said that her involvement in Mrs James' workers compensation claim was "somewhat sporadic". In that capacity, she took over from two other human resources consultants: Ms Kath Jedyn and Ms Rachel Beach and, later, she herself took leave for reasons which are immaterial.

1. The Department is a large organisation and employs many people; around 15,000 at the relevant time. Its chief executive was its Secretary, Ms Katharine Morgan-Wicks PSM.
2. Mrs James commenced working for the Department on or around 16 January 2023, having moved to the west coast of Tasmania from interstate. Her family moved with her.
3. As a CNC, Mrs James would ordinarily report to a NUM. However, there were times when the position was either vacant or Ms Elrick was acting in the position on a temporary basis. When there was no NUM, Mrs James would report directly to Mrs Coulson.
4. RCHC is a health centre but not a hospital. Some patients were treated at RCHC. Other patients were treated by nurses like Mrs James who travelled to where patients lived. There were several CNCs across the west coast of Tasmania but Mrs James was the only one based at RCHC. Mrs Coulson split her time between Rosebery, where Mrs James was based, and Queenstown. Mrs Coulson reported to Mrs Downie; the latter being based in Burnie. For most but not all of the relevant time, Mrs Downie reported to the Chief Executive, Hospitals North West (Chief Executive). For most of the relevant time, that was Mr Eric Daniels.
5. Mrs James, Mrs Coulson, and Mrs Downie each trained in nursing. Ordinarily, there were two managers between Mrs Coulson and Mrs Downie, and Mrs Downie had several managers between herself and the Secretary at the apex of the Department. But that is not the end of the matter. There was some separate reporting aside from the regional model which I have described. Relevantly, there was a Chief Nurse. The Chief Nurse's duties were focused on issues such as clinical quality rather than service delivery. Service delivery was the Chief Executive's domain and that of his subordinates such as Mrs Downie and Mrs Coulson.
6. Mrs Downie and her subordinates worked with other areas of the Department. Most notable was what was called 'Health HR'. This was a people and culture unit (P&C), responsible for all human resources matters such as injury management, recruitment, payroll, staff support and complaints, work health and safety, and industrial relations. Health HR comprised several business units, each with different functions. This structure will later assume some importance.
7. I have already foreshadowed and will discuss in more detail that Mrs James' employment relationship with the Department was unhappy. Several things either occurred, or were perceived by one or more parties to have occurred, which damaged their relationship. Much of the unhappiness was between Mrs James on one side and Mrs Coulson and Mrs Downie on the other. The unhappiness related to several issues such as communication and management style, Mrs James' entitlement to various allowances and payment, the scope of Mrs James' role, and allegations of insubordination.
8. Although not occurring in this sequence, the result of the unhappiness was that Mrs James commenced four proceedings against the Department in the TIC, made a claim for workers compensation, and made this ADA complaint. The employment relationship broke down, and Mrs James was certificated as incapacitated from work from 9 June to 22 September 2023. She resigned from the Department on or about 5 December 2023 and lodged this complaint with the Commissioner on or about 30 January 2024.

1. The lengthy evidence belies that this was an inquiry under the ADA. The evidence frequently veered into an exposition of the parties' employment relationship and the relative merits of and reasons for the conduct of Mrs James on one hand and Mrs Coulson and Mrs Downie on the other. As I noted repeatedly during the hearing, this is not a broad inquiry into their relationship and conduct. Rather, it is an inquiry into whether either or both respondents breached the ADA.
2. Mrs James alleged the following breaches of the ADA:
   • direct discrimination, contrary to s 14;
   • indirect discrimination, contrary to s 15;
   • prohibited conduct, contrary to s 17;
   • victimisation, contrary to s 18; and
   • failure to comply with the obligation of organisations, contrary to s 104.
3. For convenience, and putting victimisation to one side, I will refer to these collectively as allegations of unlawful discrimination.
4. Mrs James contended that the Department and Mrs Downie unlawfully discriminated against her. The Department and Mrs Downie contended that they did not. To substantiate that they did not, the respondents led evidence of the circumstances of their conduct towards Mrs James. To do that, the respondents also led evidence of Mrs James' conduct as it justified and provided an explanation for the respondents' own conduct. It has therefore been necessary for me to consider the parties' conduct even where not directly relevant to unlawful discrimination.
5. Much of that related to delays in paying or refusals to pay allowances and salary to which Mrs James says she was entitled, feedback given to her, her participation in various meetings, Mrs James' duties as a CNC, and Mrs Coulson and Mrs Downie's actions when their relationship with Mrs James deteriorated. Relevant also were the Department's policies and procedures, the management of Mrs James' workers compensation claim, and Mrs James' alternative duties when she returned to work with the Department after that claim.

Why victimisation did not fall within the ambit of the inquiry

1. In the lead up to the hearing, the respondents questioned whether the complaint extended to victimisation, contending that it did not. The parties filed submissions, with Mrs James contending that her complaint did extend to victimisation.
2. I ruled that victimisation contrary to the ADA did not fall within the ambit of the inquiry and said that I would publish reasons later. My reasons follow.

1. Section 18 of the ADA prohibits victimisation. It states:

(1) A person must not victimise another person because that other person - > > (a) made, or intends to make, a complaint under this Act; or > > (b) gave, or intends to give, evidence or information in connection with any proceedings under this Act; or > > (c) alleged, or intends to allege, that any person has committed an act which would amount to a contravention of this Act; or > > (d) refused or intends to refuse to do anything that would amount to a contravention of this Act; or > > (e) has done anything in relation to any person under or by reference to this Act. > > (2) Victimisation takes place if a person subjects, or threatens to subject, another person or an associate of that other person to any detriment.

2. Two points must be made. First, in many cases, the conduct constituting detriment referred to in s 18(2) would occur after any initial discrimination. That is because, as the Tribunal explained in Peter Hodges v Beauty Point Tourist Park [2025] TASCAT 18 at [40], a complainant:

[M]ust show that any actual or threatened detriment experienced by them, or an associate of theirs, was because of one or more of the matters referred to in s 18(1) of the [ADA].

3. Second, if the conduct is the result or because of some other matter, then that conduct is not prohibited by s 18: von Stalheim v Anti-Discrimination Tribunal [2007] TASSC 9 at [15] (Evans J).
4. This means that the factual circumstances giving rise to victimisation will often be quite separate, at least temporally, from direct discrimination (s 14), indirect discrimination (s 15), or breach of an organisation's obligations (s 104).

1. Mrs James lodged her complaint on or about 30 January 2024. It was discursive and ran to some 29 pages. Mrs James' description of the respondents' conduct, which occupied the majority of the 29 pages, did not raise facts relevant to the ADA, s 18. Although Mrs James' complaint used the word victimisation nine or so times, none of the surrounding assertions address or go to any of the matters proscribed by s 18(1). Instead, the complaint filed by her refers to victimisation in a looser, colloquial sense. I make the same observation with respect to Mrs James' affidavit and statement of facts, issues and contentions (SOFIC). I accept the respondents' submission that neither contains factual matters "that could possibly amount to any allegation of victimisation". Understandably, therefore, the evidence and SOFIC filed by the respondents do not address victimisation.
2. I repeat that Mrs James' complaint to the Commissioner used the word victimisation. But the Commissioner accepted the complaint only in respect of possible direct and indirect discrimination based on disability in the area of employment, and prohibited conduct on the basis of disability in the area of employment. The Commissioner's referral report stated that there was:

[N]ot information before [the Commissioner] to show the Respondents subjected Mrs James to detriment because she did any of the things referred to in section 18(1)(a)-(e) of the [ADA]... > > These allegations were not the focus of the investigation into the complaint and were not pursued by the parties.

3. The Commissioner then investigated the parts of the complaint that she had accepted. Her investigation did not extend to victimisation. In the Tribunal, the issue of victimisation was first raised in a directions conference on 16 October 2025, being some five weeks before the first day of the hearing.

1. An ADA inquiry is not confined to pleadings. There are several Supreme Court decisions addressing this and the approach to be taken by the Tribunal. In Flanagan v Humana Pty Ltd (2017) 28 Tas R 436; [2017] TASSC 50 (Flanagan) at [42]-[45], Wood J said, after referring to a contention that the complainant did not expressly rely on indirect discrimination:

The argument suggests that a particular case must be characterised in some way by a complainant as a case potentially amounting to indirect discrimination in order to attract such a finding by the Tribunal. However, there is no such obligation for a complainant to identify potential findings, or to particularise a contravention of the Act. > > In Nestle Australia Limited v Equal Opportunity Board [1990] VicRp 71; [1990] VR 805, Vincent J considered the terms of the Equal Opportunity Act 1984 (Vic), noting (at 812 and 813) that the provisions indicated that Parliament intended that the process would not be either unduly complicated or require adherence to strict forms of procedure, and that "it is clear that the written complaint is not to be treated as a formal document of pleading" but must, on its face, raise a question of possible discrimination of a kind which will bring the matter within the jurisdiction of the inquiring body. > > At 813, Vincent J stated: > > "Although the lack of particularisation in the complaints under consideration or the fact that they do not refer to relevant sections in the Act or attempt to relate the alleged acts of discrimination to grounds which are specified in the Act do not constitute a bar to the invocation of the board's jurisdiction, it is nevertheless necessary for the acts which have been identified in the complaints to be such that a preliminary recognition of jurisdiction can be made." > > Those comments are equally applicable to the Tasmanian Act: Commissioner of Police v Reid [2000] TASSC 181, 9 Tas R 418 at [9]; W v D [2006] TASADT 5 at [31]. > > It is for the Tribunal at inquiry to make findings about the evidence advanced by the parties and determine, with reference to those findings, whether there has been a breach of the Act in any respect. Often the Tribunal will be presented with evidence of a narrative of events, and it is then for the Tribunal to determine the facts and consider whether the legal requirements for any breach of the Act have been established. In the complaint document, a pro forma document, the complainant is to set out a narrative of what took place. The form makes provision for a complainant to identify the sections of the Act that he or she asserts have been breached. That is not a legislative requirement. It is the narrative that carries significance. A complainant might erroneously ascribe a section of the Act, such as inciting hatred under s 19, as having application, and miss altogether a section which would have application. A mistake of that kind is not fatal to a finding that the Act has been breached. The lack of reference to indirect discrimination in the complaint, and even during the inquiry, is not determinative of the issues to be decided by the Tribunal. The issues to be decided will be dictated by the evidence. That is not to say that the Tribunal would not pay regard to submissions made at the inquiry. The extent to which the submissions may be treated by the Tribunal as confining its consideration will depend on the circumstances of the case such as the findings made, and whether the complainant is legally represented. I reject the respondents' argument that the issue of indirect discrimination was precluded by the terms of the complaint and the failure to characterise the alleged conduct in such terms.

2. See also Anti-Discrimination Commissioner v White (2023) 35 Tas R 209; [2023] TASSC 26 at [8] (Marshall AJ) and Jago v Anti-Discrimination Tribunal [2021] TASSC 10 at [93] (Wood J).

1. Relevant also are case management considerations. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon Risk Services) at [30], French CJ said:

It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account.

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

4. While the High Court was referring to a late application to amend pleadings under the Australian Capital Territory's civil procedure rules, the Court's observations are nonetheless relevant to Mrs James' claim. Indeed, the importance of case management considerations is elevated in this case by Tribunal's statutory obligations. The Tribunal is to ensure that inquiries are resolved as quickly as possible while achieving a just outcome and to keep costs involved to the parties to a minimum as far as is just and appropriate: Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), s 10(1)(c) and (d).

1. With respect to case management in an ADA inquiry, Chairperson Carey's reasons in Manole v Department of Education [2016] TASADT 8 at [7]- [8] are also instructive. In that case, the then-Anti-Discrimination Tribunal considered an application to amend a complaint under the ADA, s 84 to include victimisation.[2] In refusing the application, the Tribunal placed weight on several matters:
   • the amendment involved "factual matters not considered to date in respect of the initial complaint";
   • based on the complainant's outline, the possible connection between the alleged detriment and the complaint was "no more than supposition on her part";
   • there were different considerations as to whether discrimination or victimisation occurred;
   • allowing the amendment would subvert "the normal statutory scheme obliging investigation by the [Commissioner]"; and
   • the matter was "nearly ready for finalisation and any additional delay [was] not in the interests of justice".
2. While each case must turn on its own facts, Manole v Department of Education is illustrative of the importance of case management considerations.

1. To the extent that the respondents make the submission that the Tribunal cannot consider victimisation, that submission must be rejected. As Wood J said in Flanagan v Humana Pty Ltd at [45], "[t]he issues to be decided will be dictated by the evidence". That the Commissioner's referral of the complaint to the Tribunal for inquiry did not address victimisation is not determinative.
2. The question I must answer is a slightly different one: should the Tribunal allow Mrs James to lead evidence of victimisation in circumstances where it has not been raised previously? Or, as I stated the question when the respondents first raised the issue, does victimisation fall within the ambit of the inquiry? The answer must be no.
3. To the extent that there is any doubt about the source of the Tribunal's power to rule that a particular issue or allegation not fall within the scope of a proceeding, the Tribunal may "decide the matters on which it will hear oral evidence or argument" and "may give directions at any time ... and do whatever is necessary for the expeditious and fair conduct of proceedings": TASCAT Act, ss 83(3)(b) and 84(1).
4. The parties' respective SOFIC and evidence filed did not address victimisation. Allowing Mrs James to lead evidence on victimisation would have necessitated an adjournment, probably a lengthy one, to allow each party to file further evidence and submissions. The hearing dates had already been vacated once. Although the respondents made that application for an adjournment, it was the consequence of Mrs James' late filing of evidence. I have heard and determined several interlocutory applications filed by Mrs James. It is apparent that she has understood the issues in dispute and, at least at a high level of abstraction, the inquiry process.
5. Mrs James submits that preventing her from raising victimisation would leave her statute-barred from making a new complaint alleging victimisation. That is a relevant factor, although the Commissioner may accept a complaint outside of the 12-month limitation period "if satisfied that it is reasonable to do so": ADA, s 63.
6. This is where the High Court's observations in Aon Risk Services and the Tribunal's statutory principles and objects assume particular relevance. Allowing Mrs James to raise victimisation at this late stage would have caught the respondents by surprise, delayed the hearing, and increased costs. While one respondent is a corporate defendant, the other is not. In any event, the Department has real people standing behind it. As the plurality said in Aon Risk Services at [102]-[102]:

[I]t should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. > > ... > > The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill‑effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates.

7. In these circumstances, I accept the respondents' submission that:

Any responsibility for agitating the issue of whether victimisation contrary to the [ADA] fell within the ambit of the inquiry sat squarely with the Complainant when the Commissioner made her decision on 12 March 2024. The Complainant did nothing about that.

8. Mrs James' submission that any statute-bar is "due to Respondent-caused [sic] delay" is without foundation. To the extent that her submissions amount to an application to amend her complaint under the TASCAT Act, s 84 (see fn 2, above), that application fails for the same reasons relating to case-management. Amending the complaint at this late stage would not be just in the circumstances.
9. For these reasons, I ruled that the ambit of the inquiry did not extend to victimisation.

1. I return to the substantive matter: the inquiry under the ADA. The legal principles are uncontroversial.

1. The Tribunal is not bound by the rules of evidence, although they are a useful guide including as to questions of weight. Mrs James bears the onus of proving discrimination on the balance of probabilities. But the standard of proof is not purely mathematical. To be satisfied of a particular fact, I must feel an "actual persuasion" of its occurrence or existence: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 (Dixon J). More convincing evidence is required to prove an allegation of a particularly serious, grave, or unlikely nature: Dixon J at 362. I accept Mrs James' submission that the Tribunal may determine liability by drawing reasonable inferences from circumstantial evidence, weighing the evidence as a whole in its context. Such a submission is consistent with Dixon J's observations.
2. Self-evidently, a finding of discrimination is serious. There are particularly serious consequences in respect of Mrs Downie. Had I found the complaint against her to be substantiated, I would have had the power to order termination of her employment under the State Service Act: ADA, s 89(2).
3. Aside from these general principles, it is also necessary to identify the elements of the alleged breaches of the ADA. I will consider later other principles relevant to my analyses of the claims.

Direct discrimination (s 14)

1. In Seidenspinner v Startup (No 3) [2025] TASCAT 8 at [18]- [20], I explained the elements of a claim of direct discrimination:

Section 14(2) of the ADA provides: > > Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic. > > I follow the approach taken by the Anti-Discrimination Tribunal in Cain v The Australian Red Cross Society [2009] TASDT 3. At [405], the Tribunal held there to be four issues to be determined in considering a claim of direct discrimination. In substance, they are:

• whether the reason for the respondent's treatment of the complainant is on the basis of the complainant's prescribed attribute or a characteristic imputed to that attribute;
• whether the treatment was less favourable;
• identifying the comparator - that is, how a (hypothetical) person without that attribute or characteristic would have been treated in the circumstances; and
• whether the complainant suffered a detriment.

It is not necessary that the prescribed attribute be the sole or dominant reason for the less favourable treatment: ADA, s 13(3)(a). The attribute may be one reason or factor amongst others, but it cannot be a trivial or insignificant reason: Kelly v Pensalfini [2019] TASSC 2 at [35]. The attribute must have "truly played a causative part": IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 63. The respondent's motive or intention may be relevant but is not dispositive: Kelly v Pensalfini at [35].

Indirect discrimination (s 15)

1. Section 15 states:

(1) Indirect discrimination takes place if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who - > > (a) share, or are believed to share, a prescribed attribute; or > > (b) share, or are believed to share, any of the characteristics imputed to that attribute - > > more than a person who is not a member of that group. > > (2) For indirect discrimination to take place, it is not necessary that the person who discriminates is aware that the condition, requirement or practice disadvantages the group of people.

2. In Cain v The Australian Red Cross Society [2009] TASADT 3 at [57], the Anti-Discrimination Tribunal explained the four elements as:
   • the imposition of a condition, requirement, or practice;
   • the condition, requirement, or practice is unreasonable in the circumstances;
   • the effect of disadvantaging a complainant; and
   • the complainant is disadvantaged as a member of a group of people who share or are believed to share a prescribed attribute more than a person who is not a member of that group.
3. Condition, requirement, or practice should be given a broad rather than technical meaning: State of New South Wales v Amery (2006) 230 CLR 174; [2006] HCA 14 at [63] (Gummow, Hayne, and Crennan JJ).

Prohibited conduct (s 17)

1. Section 17(1) of the ADA prohibits conduct that:

offends, humiliates, insults or ridicules another person on the basis of an attribute... in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

2. Brett J considered the provision in Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48 at [63]- [64]. The following principles may be distilled from his Honour's analysis.
3. First, although the dictionary meanings of offend, insult, humiliate, and intimidate suggest a broad interpretation, the conduct must have "profound and serious effects and not to be likened to mere slights", citing Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 at [268] (Bromberg J).
4. Second, it is not necessary that a respondent intend or even subjectively foresee that the conduct may have the prescribed effect. The qualification requires objective foreseeability or anticipation.
5. Third, s 17 captures conduct "on the basis of an attribute" as defined in the ADA, s 16. This requires that the conduct be "done by reference to the attribute" rather than the stronger and more direct causal relationship required by words such as 'because' or 'by reason of'.

1. Unlike the three provisions which I have set out, organisations' obligations under s 104 are factually and legally distinct. The provision states:

(1) An organisation is to ensure that - > > (a) its members, officers, employees and agents are made aware of the discrimination and prohibited conduct to which this Act relates; and > > (b) the terms of an order made under section 89 relating to that organisation are brought to the notice of those of its members, officers, employees and agents whose duties are such that they may engage in conduct of the kind to which the order relates; and > > (c) no member, officer, employee or agent of the organisation engages in, repeats or continues such conduct. > > (2) An organisation is to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct. > > (3) An organisation that does not comply with this section is liable for any contravention of this Act committed by any of its members, officers, employees and agents.

2. In O'Byrne v The Trustee for Brian Finch Family Trust T/as LIFT (Launceston) Institute of Fitness and Training [2025] TASCAT 169 at [56], the Tribunal said:

Section 104 of the ADA only becomes relevant in the event of a finding that the respondent has engaged in discrimination or prohibited conduct. If such a finding is made, the onus shifts to the respondent to prove that it has discharged its obligations to take reasonable steps and to ensure that its employees do not repeat the discrimination or prohibited conduct - see Maree Summers v Department of Education [2019] TASADT 8; Makkar v Australian Dispatch Company Pty Ltd [2020] TASADT 9.

3. That means that the Department is only liable for its employees' contraventions of the ADA if the Department failed to comply with sub-(s) (1) and/or (2). As I will explain later, I am not satisfied that any of the Department's employees contravened the ADA. Accordingly, it is strictly unnecessary to consider whether the Department complied with its obligations under s 104(1) and (2).

The attribute (s 16) and the area of activity (s 22)

1. The ADA does not prohibit all discrimination. To be unlawful under the ADA, discrimination and prohibited conduct must relate to a prescribed attribute. This is addressed in s 16, which provides that "a person must not discriminate against another person on the ground of any of the [listed] attributes". Disability is one such attribute: s 16(k).
2. Another requirement for unlawful discrimination is that the conduct be taken by or against a person in connection with an area of activity prescribed by s 22. Employment is one such activity: s 21(1)(a). Mrs James was working as an employee of the respondents.

1. Some facts in the hearing were agreed, with the dispute being about what inferences or conclusions should be drawn from those facts. Other facts were not agreed, and I heard differing accounts from the witnesses. In those circumstances, I have needed to decide whose evidence I prefer. To do that, I commence with my observations about the credit of the central witnesses.
2. The central witnesses were Mrs James, Mrs Coulson, and Mrs Downie. Mrs James and Mrs Downie was each a party to the proceedings. Mrs Coulson was not, but was the subject of several allegations and her evidence is central to the liability of the Department and, to a lesser extent, Mrs Downie.
3. I have already noted that Ms Barr and Ms Hay each gave evidence in support of the respondents. Their evidence was largely uncontroversial. The controversial aspects related to inferences drawn and opinions proffered. In any event, I was impressed by their evidence. Each made appropriate concessions, did not attempt to extrapolate or hypothesise, and provided direct answers.

1. Mrs James was an unsatisfactory witness. Her evidence, in both affidavit form and cross-examination, was problematic in several ways. I refer to four of these in descending order of significance.

The first problem - broad statements later resiled from

1. First, her evidence frequently involved broad statements which, when examined closely, did not stand up to scrutiny. There were many examples but it suffices to refer to three. One was her repeated references to having made several requests of her managers for reasonable adjustments to her work or workplace. Several times Mrs James asserted that she made a request in writing on a particular day. But when taken to that email or other record, being objective documentary evidence, and after cross-examination that might be fairly described at times as laborious, she conceded that she made no such request. Another is Mrs James' repeated assertions that the Department's conduct was contrary to a particular policy, Act, or other requirement. When taken to the particular document and after considering it forensically, Mrs James would later concede that there was no such breach. The third is references to a non-existent ED5 investigation[3] into misconduct by Mrs Downie and Mrs Coulson. To my mind, these suggest not dishonesty but recklessness towards the truth.

The second problem - inaccuracies and inconsistencies

1. Second, Mrs James' affidavit evidence was replete with errors. While some were inconsequential and, in fairness, the respondents' witnesses' affidavits also contained errors, Mrs James were such in number and significance that I formed the view that she was an unreliable historian. Moreover, unlike Mrs James, the Department's witnesses identified and explained their errors. Mrs James' affidavit was not prepared with the thoughtfulness and objectivity that I would have expected given the seriousness of her allegations and the centrality of her evidence to her claim.
2. One example of an inconsistency is Mrs James' evidence in her affidavit that when Mrs Coulson asked if she could hug her, Mrs James "stunned by her request... did not answer".[4] In contrast, Mrs James' grievance complaint asserted that she said, "not really".[5] In cross-examination, Mrs James conceded that these were different allegations of fact.
3. One example of an error is Mrs James' concession in cross-examination that her affidavit wrongly asserted that a particular meeting was held on 17 March 2023.[6] While that may seem inconsequential, the dates and times of meetings were important to Mrs James' claim that she was excluded from them.

The third problem - reluctance to make concessions

1. Third, Mrs James maintained positions in cross-examination that I found difficult to believe. For example, she insisted that she retained clinical care of a patient who was admitted to a different hospital in a different part of the state. She also maintained that she retained clinical care of a patient who had died. This suggested that Mrs James believes so strongly in her case, and the righteousness of her case, that she was reluctant to make concessions.

1. Fourth, and overlapping with the third problem, Mrs James was a difficult witness. With great respect, she was argumentative and discursive, and often (perhaps even more often than not) answered not the question but what she perceived to be the insinuation behind the question. I do not make these observations lightly. I am conscious that Mrs James' disability contributed to her difficulty giving direct answers. She was self-represented, which must be a daunting and onerous task. She was tired, anxious, and upset. But I make the observations nonetheless. I lost count how many times I intervened to ask Mrs James to answer counsel's or my questions directly.

Conclusions as to the reliability of Mrs James' evidence

1. I do not doubt that Mrs James believes genuinely in the truth of her claim. Nor do I doubt that she was trying to answer each question truthfully. I must be careful not to place too much weight on my imperfect ability to draw inferences from Mrs James' demeanour. See generally Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] (Gleeson CJ, Gummow and Kirby JJ). I accept Mrs James' submission that while giving evidence "she had trouble regulating her emotional responses and masking aspects of her neurodivergent presentation". That does not undermine the reliability of her evidence. I also recognise that rejecting one part of a witness' account does not require me to reject all that witness' evidence: CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94].[7]
2. Weighing up all these matters, I am left with the inescapable conclusion that Mrs James' evidence is unreliable and should be accepted only where corroborated, adverse to her interests, uncontroversial, or inherently probable.

1. Mrs Coulson was a careful witness. While her answers were at times somewhat indirect, I attributed that to nervousness and unfamiliarity with the environment. She did not jump to answers, instead taking her time and making appropriate concessions. She was unshaken in cross-examination. I accept her evidence.

1. Mrs Downie was also a careful witness. Like Mrs Coulson, she struggled at times to give a direct answer. I also consider that Mrs Downie, as a respondent, had the benefit of observing others' evidence before giving her own. Mrs Downie was unshaken in cross-examination. In response to both Mrs James' questions and my own, I formed the view that Mrs Coulson was doing her best to provide truthful and complete evidence albeit in respect of events which occurred more than two years ago. I accept her evidence.

1. Many of the Department's records, such as emails, meeting agendas and minutes, policies, and forms were in evidence. Except for the accuracy of some meeting agendas and minutes, the veracity of these records was not in dispute. Having regard to the frailties of human memory and the matters that I have set out above, I have preferred these objective records over witnesses' recollections.

1. What follows are my findings of fact. I have endeavoured to make clear where there is an issue of controversy, but only if that issue is material to my ultimate findings. Put differently, it has been unnecessary to consider every factual dispute between the parties.
2. Four points should be borne in mind. First, these findings must be read considering my observations as to the central witnesses, particularly my preferring of the Department's evidence over that of Mrs James. Second, while I have attempted to set out my findings in chronological order, some findings are grouped according to subject. I have done this where a subject is relevant to a particular allegation made by Mrs James. Third, the Tribunal's task is not limited to determining whether Mrs James has proven the ADA breaches as particularised by her: Flanagan at [42]-[45]. Fourth, I have used 'CB' to denote page numbers in Mrs James' court/hearing book.

Mrs James before working for the Department, and her disability

1. Mrs James was diagnosed with ADHD around 2020-2021 and autism around 2022. She described the features of those disabilities as being dysgraphia, dyscalculia, executive dysfunction, and impaired ability to create voluntary mental images. She also described ADHD as her "superpower", allowing her to remain calm even when under pressure, "normally in emergency situations". She accepted that there was an element of levity and puffery in this description.
2. For convenience, I will refer to Mrs James' disabilities in the singular (i.e. her disability) unless it is necessary to distinguish between any of them. The respondents do not dispute, and I accept, that Mrs James has the prescribed attribute of disability for the purposes of the ADA, s 16(k).
3. Before working for the Department, Mrs James worked as a CNC at the Ryde Family Medical Centre in New South Wales, where she had a mix of clinical and non-clinical duties. These included leadership meetings, policy development, staff training, work health and safety reviews, liability risk assessments, critical incident reviews, clinical audits, educational program design, targeted primary health prevention programs, data cleansing, and clinical recruitment support. The position required Mrs James to work with many stakeholders.

1. Mrs James and her family moved to Queenstown from interstate in mid-2022. Later that year, Mrs James applied for the position of CNC at the Department's RCHC. She was subsequently offered the position as a permanent employee under the Nurses and Midwives (Tasmanian State Service) Award (the Award) and commenced on or around 16 January 2023. As a new permanent employee, Mrs James' employment was subject to a probation period.
2. The Department had an 'onboarding' process for new employees. As part of that process, Mrs James filled out several pieces of paperwork. These included the Department's Workplace Health Employee Health Assessment Form.[8] Mrs James provided the following answers to two of the form's questions:

Do you have any mental health conditions such as anxiety and depression? Yes. Anxiety - well managed. > > Do you take any medications? Yes. Dexamphetamine (ADHD/autism) Intuniv (ADHD/autism).

3. Mrs James agreed that the form was to be seen by the Department's "workplace health staff", which I infer to mean that the information was for Health HR rather than Mrs James' managers such as her NUM, Mrs Coulson, or Mrs Downie. This is consistent with the evidence of Mrs Coulson and Mrs Downie that they did not receive these forms.
4. Another form was the Department's Health HR Employee Details Form.[9] In answer to the question 'Do you have a disability', Mrs James wrote "ADHD/autism". The Department's witnesses' uncontradicted evidence is that these forms were to be seen by the Department's workplace health staff within Health HR. Mrs James accepted that to be true. I infer, and find, that Mrs Coulson, Mrs Downie, or Mrs James' NUM did not see them. But they were seen by the Department and, therefore, it had knowledge of Mrs James' disability.
5. Mrs James commenced her duties and all appeared to be going well. She usually had access to an office to her own at RCHC (nominally but rarely shared with her NUM), although her duties involved some travelling. Mrs James' duties related to community patients, not inpatients; RCHC was not a hospital, whereas WCDH was. This distinction later assumes some relevance.

Mrs Coulson's and Mrs Downie's awareness of Mrs James' disability

1. On 5 April, Mrs James, Mrs Coulson, and Ms Boyd, met at WCDH. Mrs James explained why she preferred to close her office door, telling Ms Boyd that she had ADHD and difficulty concentrating.
2. On 18 April, Mrs James said to Mrs Coulson that she could not handle inconsistency in communication because of her ADHD and autism.
3. Mrs James gave evidence that she told Mrs Coulson on 18 April that she did not like to be touched. According to Mrs James, Mrs Coulson asked if she liked hugs, with Mrs James responding that she did not like to be hugged by strangers, and Mrs Coulson replying that her cousin felt the same way. Mrs James conceded that this was not in her affidavit and, later, conceded that it may not have occurred on 18 April and that it was not a request for a reasonable adjustment (a topic to which I will return). Mrs Coulson denied discussing hugs. Having regard to Mrs James' concessions and the credit findings I have made above, I prefer Mrs Coulson's account and find that there was no such discussion.
4. Mrs Downie first became aware of Mrs James' disability on 23 May when she received an email from Mrs James which said, amongst other things:

I have Autism and perhaps my literal sentence structure you may find unusual?

5. Of course, awareness of a particular diagnosis is not dispositive. I will return to the relevant of Mrs James' diagnosis and the respondents' conduct.

1. Mrs James contended that she was not provided with adjustments to her workplace and her duties to mitigate the effects of her disability. This occupied a significant portion of the hearing. I will call these 'workplace adjustments' or 'reasonable adjustments'. Mrs James agreed that they were governed by the Department's Workplace Adjustment Policy,[10] the process in respect of which was guided by the Workplace Adjustment Fact Sheet.[11] The policy governed, amongst other things, the adjustments made by the Department to alleviate the effects of an employee's disability on that person's capacity to perform duties. The policy and fact sheet made clear that the process required negotiation between the employee and manager.
2. Mrs James was aware of each document's existence during her employment with the Department, albeit she did not familiarise herself with the contents until after she resigned. She did not make any requests under or consistent with the policy, save for one matter: a change to her working hours to reduce travel time. This was unconnected to her disability and may be put to one side.
3. While Mrs James may have perceived that she had requested reasonable adjustments, that is not borne out by the evidence. I will address some specific examples.
4. One relates to a request made by Mrs James' workplace rehabilitation provider (WRP), who was appointed after Mrs James made her workers compensation claim. The WRP requested that Mrs James' grievance complaint be investigated expeditiously. I reject Mrs James' evidence that this was "one or the more obvious requests for reasonable adjustments". On the contrary, it was not a request made with respect to her duties, instead being a unilateral demand relating to an administrative investigation.
5. Similarly, Mrs James' certificate of capacity in her workers compensation claim, which I address later, did not constitute a request for reasonable adjustments. Instead, a certificate of capacity is a unilateral statement of restrictions to, or what is needed for, capacity to perform duties for the purposes of the Workers Rehabilitation and Compensation Act 1988 (WRCA). Mrs James conceded this in cross-examination.
6. While Mrs James did raise concerns that were connected to her disability, such as being interrupted while in her office, she did not make a request for an adjustment based on her disability. In so finding, I do not overlook that the Department's policy and fact sheet are not determinative. The issue is whether Mrs James was subject to unlawful discrimination, whether direct or indirect, on the basis of her disability.

1. As might be expected of a large organisation like the Department, it had a formal process for inducting and training its employees. Ms Hay, Mrs Coulson, and Mrs Downie each gave evidence to broadly to this effect.[12] While there was some uncertainty regarding the frequency with which the Department required retraining and the dates of documents and policies, nothing turns on it.
2. New employees, including Mrs James, received training upon their induction into the Department. This included a brief overview of the prevention of bullying, harassment, and discrimination within the workplace. The onboarding process included several online training modules as part of what the Department called 'HR Essentials'.[13] These included:
   • the State Service Act, State Service Act principles, and the Code of Conduct;
   • discrimination, bullying, and harassment in the workplace; and
   • integrity and ethical conduct at work.
3. Although Mrs James could not specifically recall having completed them, I find that she did in fact complete each.
4. The Department had an online, self-guided learning platform called THEO (Tasmanian Health Education Online), which was accessible by employees through the Department's intranet. The module had several packages, one of which was called 'Human Resources Essentials'. That package comprised three modules:
   • State Service Act, State Service Principles, and the State Service Code of Conduct;
   • Discrimination, Bullying, and Harassment in the Workplace; and
   • Integrity and Ethical Conduct at work.
5. The Department's 'Mandatory Education, Training and Assessment Policy' required all employees to complete the Human Resources Essentials Package. Relevant policies are accessible by employees on the Department's intranet. Mrs Downie completed the package on 24 May 2021.
6. Although unclear whether it was mandated, the Department provided a training session entitled 'Workplace Diversity and the Code of Conduct'.[14] It covered:
   • workplace diversity;
   • discrimination, harassment, bullying, and victimisation;
   • the State Service Code of Conduct; and
   • applicable legislation, policies, and protocols.

Issues relating to Mrs James' salary, allowances, leave and other entitlements

1. The Award provided several entitlements relevant to Mrs James' position as CNC, in respect of which the Department had various policies. Mrs James alleges that she was inappropriately refused some allowances or that approval and payment were inappropriately delayed. It is unnecessary for me to decide whether Mrs James was entitled to the allowances. Instead, they are relevant only as far as the respondents may have breached the ADA by refusing or delaying payment.
2. One was the Remote Professional Development Allowance (sometimes called the Rural and Remote Professional Development Allowance, or RRPDA), which Mrs James applied for by completing a form. Mrs Downie refused the allowance for reasons explained in an email to Mrs James on 15 May. Mrs James was understandably frustrated about the Department's delay in relation to the RRPDA. But the tone of her emails to Mrs Downie and Health HR became increasingly abrupt and discourteous. I accept Mrs Downie's evidence that the delay was caused by her need to seek advice from Health HR regarding the Award's interpretation and Mrs James' eligibility for the RRPDA. Mrs Downie's decision was a result of that interpretation. That, following one of the proceedings in the TIC, the allowance was later paid does not suggest that Mrs James' disability was connected in any way to Mrs Downie's decision. I accept Mrs Downie's express denial of that suggestion.
3. There was also a dispute about Mrs James' entitlement to a relocation allowance. Mrs Coulson considered Mrs James' application in conjunction with the Chief Executive. The Department formed the view that at least part of Mrs James' claim was ineligible for the allowance. This took more than three months. Much like the RRPDA, there is no evidence that any delay or refusal was connected in any way to Mrs James' disability.
4. Another allowance related to Mrs James' professional development. There is no evidence that any delay in or refusal to pay the allowance was connected to her disability. I accept Mrs Downie's evidence that the Department's actions in considering the application for the allowance, particularly, the uncertainty and the dispute, arose because Mrs James was still subject to a probation period and because she was a CNC, not a nurse practitioner, and the two positions had different duties.
5. Mrs James said that there was a delay in approving sick (i.e. personal) leave, with the consequence that she was without payment. The evidence on this point was not particularly clear. In any event, there is no evidence that any delay was connected to her disability.

1. Mrs James' duties as CNC were set out in her statement of duties (SoD).[15] The SoD's prescription of the duties was not exhaustive. Like many SoDs within the Department, one of the duties listed was a general catch-all:

The incumbent can expect to be allocated duties, not specifically mentioned in this document, that are within the capacity, qualifications and experience normally expected from persons occupying positions at this classification level.

2. At times, Mrs James was asked to perform duties that were not listed within her SoD. These included involvement in recruiting nurses (particularly, involvement in preparing a selection report) and treating or assisting with the treatment of emergency patients at RCHC. RCHC was not a hospital and did not have an 'emergency department', but it did treat some patients who experienced medical emergencies.
3. Mrs James considered these duties to be beyond her role's scope and was unhappy about being tasked with them. In part, she was tasked due to the absence of a NUM. However, I do not consider it to have been unreasonable. Mrs James occupied a relatively senior nursing role as a CNC, was appropriately qualified,[16] and RCHC was a small facility with a need for the duties to be performed.

1. Although neither was Mrs James' direct manager, it was reasonable for Mrs Coulson and Mrs Downie to give feedback to Mrs James. They remained Mrs James' managers. On several occasions, Mrs Coulson gave informal feedback to Mrs James: usually by email or in person. Mrs James accepted that it was reasonable for Mrs Coulson to give her own feedback, but not for Mrs Coulson to pass on others' concerns. Nor did she accept that it was reasonable for Mrs Downie to give feedback. Nor even did Mrs James accept that it was appropriate for Mrs Coulson to give her informal feedback, as distinct from a formal meeting about performance. I reject Mrs James' denials. It is inconsistent with ordinary human behaviour and with modern, reasonable management practice.
2. On 5 April, Mrs James attended a scheduled managers meeting with several colleagues, including Mrs Coulson. Mrs James asked the other attendees:

do any of you feel safe to do your job right now with [Mrs Coulson] working so many clinical shifts and not being available to respond to our issues? I sure don't.

3. Mrs James' colleagues did not share her concern, with one saying "[a]bsolutely I do, we have work plans and I know what I am meant to be doing".
4. Understandably, Mrs Coulson was concerned about Mrs James' view and the way it was expressed. Mrs Coulson and Ms Boyd met with Mrs James sometime after that meeting. Their meeting did not go terribly well. Mrs Coulson told Mrs James that she should raise concerns of that nature with Ms Boyd as her line manager. Mrs James questioned why she had been asked to conduct referee checks in respect of an application for a job in which she (Mrs James) had sat on the selection panel. Mrs Coulson explained why Mrs James was expected to perform that task. Mrs James later defied Mrs Coulson's request and refused to perform the referee checks.
5. Later that day, Mrs Coulson raised with Mrs James that she had received feedback about Mrs James' communication style and behaviour at RCHC. Mrs James agreed to receive the feedback so Mrs Coulson duly provided it. The feedback included that some nursing colleagues found her unapproachable and unavailable as she was often in her office with the door shut, with the consequence that nurses had difficulty accessing up-to-date rosters.
6. Mrs James become upset and teary, saying that she was trying to do her best. She said that she closed her door because of her ADHD as the hallway noise prevented her from concentrating. Mrs Coulson offered Mrs James some tissues and said:

We understand it is difficult to receive that feedback when you are busting your guts to learn this new role and give it your all. You are doing a good job.

7. Mrs Coulson reached to Mrs James' hand and Mrs James did not pull hers away. Mrs Coulson suggested that Mrs James share her ADHD diagnosis with her colleagues and offered strategies to improve communication such as placing a sign on the office door and scheduling handover times. Mrs Coulson asked if Mrs James wanted a hug, to which there was no response. She proceeded to embrace Mrs James but ended the hug when she could feel that Mrs James was stiff and not reciprocating.
8. Mrs James alleges that Mrs Coulson hugged her knowing that she did not consent and that her disability made her more reluctant to be hugged. I prefer Mrs Coulson's evidence that Mrs James remained upset during the conversation and that the embrace was an attempt, perhaps clumsy but well-intentioned, to reassure her.
9. Mrs James' interim probation review meeting was scheduled for 18 April but rescheduled for reasons which are immaterial to the complaint. Mrs Coulson nonetheless worked at RCHC for part of the day. She asked whether she could sit in the office with Mrs James. Upon arrival, she asked Mrs James whether the two could sit in the office together to work. Mrs James responded that she was not prepared for a meeting, which was not what Mrs Coulson had intended. Mrs Coulson then provided Mrs James with some positive feedback about the changes that Mrs James had implemented following their 5 April discussion but also provided some negative feedback. Mrs James became teary and said:

If you can't get your shit together and do your job, Amanda, how do you expect me to do mine.

10. Mrs James explained that her family were walking past the office window and were expecting a tour of the workplace. Mrs Coulson asked Mrs James to remain, with the consequence that her family were kept waiting. Mrs James complained about procedures not being documented and walked out.

1. On 15 May, Mrs James attended the West Coast Manager's Meeting (WCMM) along with Mrs Coulson, Ms Boyd and others. The meeting was cordial. Mrs James raised various concerns, including about fees for Home Care Packages (HCP). Mrs Coulson asked Mrs James to leave the issues with her as she would address them. Later that day, Mrs Coulson became aware that, despite her request, Mrs James had agitated the issues with another area of the Department.
2. There were other instances of Mrs Coulson's justifiable frustration with Mrs James' behaviour. I provide two examples. First, on one occasion Mrs James was scheduled to attend a meeting at 9:00am by Microsoft Teams. When she was late, Mrs Coulson sent her a text message asking if she was attending. Mrs James responded with "can't always show up to meetings on time Amanda". Second, Mrs Coulson formed the view, reasonably in my opinion, that Mrs James was avoiding her interim probation review meeting which had been rescheduled several times.
3. On 24 May, Mrs James sent Mrs Coulson a text message saying that she would be "off unwell today". Mrs Coulson responded with:

Thank you for letting me know. Do you have any respiratory symptoms? What is the list like for today? Do we need to cover anything for you? Get well soon.

4. Mrs Coulson's response was reasonable and consistent with the Award's requirement to "state the nature of the injury or illness; and the estimated duration of the illness".[17]
5. On 31 May, Mrs James and Mrs Coulson spoke on the telephone. The topic of HCPs came up and Mrs Coulson suggested that Mrs James raise it at a meeting which had been scheduled for 5 June. Mrs James said that she would not be attending. When asked why, Mrs James said that she would be on annual (i.e. recreation) leave that day. Mrs Coulson then told Mrs James that no leave had been approved. Mrs James explained that she needed seven days' leave for a holiday and for an interstate medical appointment for her child. There was a discussion, which became acrimonious, about the need for Mrs James to apply for and be approved leave. Mrs Coulson suggested that Mrs James used personal (specifically, carer's) leave for the medical appointment.
6. Mrs James contends that she was told that she could not use recreation leave and had to use personal leave. I prefer Mrs Coulson's explanation, which is consistent with the flow of the conversation. In contrast, Mrs James' appears to have drawn an erroneous and negative inference from what Mrs Coulson said. Mrs James was entitled to use personal (carer's) leave, subject to approval by her manager. Mrs Coulson responded as a supportive manager. Mrs Coulson's suggestion would have avoided Mrs James' 'wasting' her recreation leave entitlements when she was entitled to take personal leave instead.
7. In a telephone call with Mrs Coulson that same day, Mrs James asked to attend the West Coast Morbidity & Mortality (M&M) meeting scheduled for 1 June at WCDH. This was a meeting to discuss patient deaths and involved a mixture of doctors and senior nursing and other staff members, including the Chief Executive, Mrs Downie, Mrs Coulson, and Ms Boyd. Mrs James was not required to attend the meeting because community patients' care, which was Mrs James' remit, was not to be discussed.
8. Mrs James then emailed Mrs Coulson and Mrs Downie to make the same request. Because Mrs James had made three verbal requests and then sent the email, Mrs Downie sought advice from Ms Jedyn about how to respond. Acting on Ms Jedyn's advice, Mrs Downie's response explained that Mrs James need not attend as the M&M governance arrangements had changed and said:

I do not appreciate the demanding tone of your email. I had given you valid reasons why your attendance at that meeting is not required when you first questioned your attendance.

1. I received much evidence about the various meetings that Mrs James attended or did not attend. It is unnecessary to discuss or make detailed factual findings in respect of these. Mrs James alleged that she was excluded from some meetings and, in the case of others, prevented from raising or discussing particular matters.
2. One such meeting was of the Primary Health Service Leadership and Management Committee for Hospitals North West (PHSLMC), which Mrs James, Mrs Coulson, and Mrs Downie ordinarily attended. There was a dispute about when this meeting occurred, which was not assisted by the opaque minutes and the witnesses' differing references to minutes, agendas, and pre-meeting agendas. Mrs James said that the meeting was held on Wednesday, 26 April and that she was excluded from it. Mrs Coulson says that it was held on Monday, 24 April. I prefer the respondents' evidence that the meeting was held on Monday, 24 April, despite Mrs James' adamant denials.
3. In any event, it is unnecessary, indeed difficult, for me to find when the meeting actually occurred. That is immaterial. My conclusion that Mrs James is an unreliable historian leaves me unable to accept that she was excluded from the meeting,
4. Another meeting was of the Community Health Service Bi-Monthly Management Meeting (CHSBMM). Mrs James attended this meeting on 17 May 2023, during which she raised several concerns about paperwork. Two other attendees later complained to Mrs Downie about Mrs James' behaviour and manner in the meeting: that Mrs James' was hostile, domineering, and made others feel uncomfortable and unable to discuss other matters.
5. A separate meeting was held on 18 May 2023: the Community Health Services Quality and Safety Review Meeting (CHSQSRM). The CHSQSRM usually occurred the day after the CHSBMM as it dealt with issues at a higher level. However, around one third of the CHSQSRM attendees also attended the CHSBMM. Mrs James and Mrs Downie attended the 18 May CHSQSRM, during which Mrs James started repeating issues that she had raised the day before in the CHSBMM. Mrs Downie then asked Mrs James not to go back over the same issues again. Mrs Downie's request was reasonable and unrelated to Mrs James' disability. Mrs Downie was not aware of Mrs James' disability when she made the request. Even if Mrs Downie was aware, there is no evidence of any connection between her request and Mrs James' disability.
6. Later on 18 May, Mrs James emailed the PHSLMC members about some work that she had completed relating to forms used by the Department. Mrs Downie replied to Mrs James email, copying in some but not all the PHSLMC members. Mrs Downie's email questioned the purpose and value of that work. Mrs James was offended by that. I accept that offence to have been genuinely felt, but it was not borne out by an objective reading of Mrs Downie's response. Moreover, there is no evidence that Mrs Downie's response was related in any way to Mrs James' disability.

1. Mrs Coulson and Mrs Downie remained concerned about Mrs James' communication style. They had received feedback from others that Mrs James' colleagues regarded her as unapproachable, and that Mrs James' oral and written communication was abrupt and discourteous. They had perceived the abruptness, directness, and discourtesy themselves.
2. Mrs Coulson and Mrs Downie each gave feedback to that effect to Mrs James, which the latter did not take well. On 23 May, Mrs James asked whether the recipient did not like her "direct sentence structure". On another occasion, Mrs James attributed her direct written communication style to her ADHD and autism. Mrs Coulson and Mrs Downie's feedback to Mrs James was measured and appropriate. Their emails to Mrs James included feedback such as:
   • "I feel that a little compassion towards each other and improved communication might be valuable here";
   • "the tone of what is written should be neutral"; and
   • "I do not appreciate the demanding tone of your email".
3. Mrs James claim included that the respondents' communication was discriminatory. I disagree. While some of Mrs Coulson and Mrs Downie's communication was direct, it was not inappropriately so. Moreover, it was in response to Mrs James' own directness. Indeed, Mrs James conceded as much when acknowledging that she had applied a 'tone' to an email sent to her by Mrs Downie. While Mrs James maintained that the email was rude and discriminatory, that is not borne out by an objective reading of the email.
4. At times, Mrs Coulson and Mrs Downie variously expressed a desire not to work with Mrs James. There was nothing discriminatory about this. Instead, it was the natural result of frustration about Mrs James' behaviour and performance. I readily accept that their increasing and justified concerns about that behaviour and performance caused significant stress and anguish for both Mrs Coulson and Mrs Downie. There were other examples of behaviour that frustrated Mrs James' managers. These included:
   • her tendency to unnecessarily copy many people into her emails; and
   • the difficulty in having a conversation without, in Mrs Coulson's words, "it deteriorating";
   • encouraging Mrs James' friend, an unapproved volunteer, to perform certain duties at RCHC without following the applicable procedure;
   • performing tasks that she had been asked not to do; and
   • not performing tasks that she had been asked to do.
5. Mrs James alleges that the respondents framed her as having performance and behavioural issues notwithstanding her disability. Mrs James did have performance and behaviour issues, which I have endeavoured to highlight. It has been unnecessary for me to identify them all. I accept that the respondents' adverse conclusion about Mrs James' behaviour and performance was justified. Understandably, Mrs Coulson and Mrs Downie's conclusions influenced Mrs their actions towards and in respect of Mrs James.

1. By this time, Mrs James was spending some nights at the Department's nurses' quarters which were near RCHC. This was to reduce her travel. Nothing turns on it.
2. During the evening of 1 June, Mrs James lodged some 20 reports or events using the Department's online platform portal for lodging safety incidents or issues. This is called the Safety Reporting and Learning System (SRLS). The vast majority of the 20 or so reports were safety issues identified by her. Many were perceived psychosocial hazards or risks to herself connected to some of the complaints to which I have already adverted. But one of the events was different. This became known as the 'SAC1' report. Save for a presently immaterial exception, each SRLS event is assigned a numeric Severity Assessment Code (SAC), with SAC1 being the most critical and SAC4 being the least. The SAC rating is determined by a computer algorithm based on the information inputted by the user.
3. Mrs Coulson was off-duty and at home. She saw at least one of the SRLS reports and sent Mrs James a text message enquiring whether she was working. This was a reasonable and friendly way to check in on Mrs James and to ensure her welfare. Mrs James responded with 'no' and sent a 'selfie' photograph of herself at the nurses' quarters.
4. Mrs James lodged the SAC1 report in respect of a patient who had died on or around 1 April 2023. The patient was originally a patient at RCHC before later being transferred as an inpatient to NWRH, and later on to WCDH, again as an inpatient. No later than when he became an inpatient, he ceased being in Mrs James' care and ceased being her patient, contrary to Mrs James' assertions. The patient was not at RCHC when he died. On at least one occasion, being 18 May, Mrs James looked up his digital medical record (DMR). She was concerned that his death had not been reported to the coroner. Some two months after he died, Mrs James lodged the SAC1 report because she had concerns about "governance" and was conducting an audit which fell within her SoD.
5. Even after extensive cross-examination, Mrs James maintained that she continued to have clinical responsibility and care for a deceased patient who had died at a different facility some 55km away. I do not accept this. It is contrary to common sense. The patient was an inpatient when he died. Mrs James was responsible for community patients, not inpatients. A patient cannot be both a community patient and an inpatient. As Mrs Coulson put it, it was appropriate for Mrs James to refer the patient's death to Ms Boyd or Mrs Coulson, but not to go beyond that. Moreover, it was unnecessary for Mrs James to access the patient's inpatient DMR data to raise the issue with Ms Boyd or Mrs Coulson.
6. In any event, Mrs James lodged the SAC1 report because Mrs Coulson had not raised it at the M&M meeting.[18] Contrary to Mrs James' "strong disagree[ment]", accessing the patient's DMR for this purpose was improper. Despite Mrs James' denials, I find that she was angry and frustrated. Lodging 20 SRLS reports relating to disparate events and circumstances one evening was an extraordinary thing to do. Mrs Coulson "couldn't believe" that this was Mrs James' response given their recent conversations, "doubt[ed] the sincerity and motivation of the reports", and was concerned for Mrs James' wellbeing. Mrs Coulson, understandably, perceived this to be Mrs James reacting to not getting her way with attending the M&M meeting.
7. The SAC1 rating meant that an online alert was automatically generated and sent to several persons within the Department, including Ms Morgan-Wicks. Ms Morgan-Wicks received the report and convened a meeting early the next morning. Mrs Downie was at that meeting. One of the outcomes was that instead of Mrs Downie intending to raise performance and behavioural concerns with Mrs James, and Mrs Coulson likely discussing what reasonable adjustments Mrs James needed in light of her disability, the priority shifted to ensuring Mrs James' welfare.
8. I have no hesitation in accepting that shift to be due to Ms Morgan-Wicks', Mrs Downie's, and others' shock and surprise at Mrs James lodging the SAC1, together with some 19 other SRLS events, overnight. It was not an appropriate case for a SAC1 event to be lodged and suggested that Mrs James' mental health may have been deteriorating. It justified Mrs Coulson's and Mrs Downie's conduct the following day.

1. Mrs James was not at work the next day but, due to a miscommunication within the Department, Mrs Coulson and Mrs Downie did not know this. They had been intending to meet with Mrs James to discuss performance and behavioural concerns but decided to shift their approach in light of the SAC1 report and the meeting with Ms Morgan-Wicks. They were concerned about Mrs James' risk of self-harm.
2. Mrs Coulson and Mrs Downie arrived at RCHC and asked whether Mrs James had been seen at work. They were surprised when told that she had not. That surprise was understandable: Mrs James had continued to send emails to them. They attempted to telephone Mrs James to no avail, then sought advice from P&C, deciding to check on Mrs James' welfare.
3. They walked the short distance to the nurses' quarters where Mrs James was staying and knocked on the door. Mrs James came to the door, said rhetorically "dead set", and slammed the door shut. Mrs Downie fell over and was lightly injured.
4. Mrs Coulson and Mrs Downie, shocked by Mrs James' behaviour, returned to RCHC and sought further advice from Ms Kath Jedyn in P&C. Mrs Downie then sent the following text message to Mrs James:

Hi Elisha > > I came across to do a welfare check as you have not attended work, you have not advised anyone that you were not working and you did not answer the work telephone or personal phone... I conducted a welfare check on your room as I was quite concerned. Ill [sic] remain at Rosebery until 2pm if you would like to come and speak with me. One of the issues I was planning to explore was your leave request as per your email as per my response. I confirm I am approving your leave for next week and you may commence this today. I require a return of the work mobile phone and laptop. Please have a restful break and I look forward to catching up when you return from leave.

My incharge [sic] was aware. Your presence here was unwarranted. Is it standard practice that you expect the return of assets from all staff going on personal leave.

What time and when did [sic] was the NUM notified that you were not working today? Yes it is standard practice that department hardware is left at the worksite whilst on personal leave.

7. Mrs James replied, "[p]erhaps its [sic] best you speak with your NUM".

1. Mrs Coulson and Mrs Downie remained at RCHC. Later in the day, Mrs James arrived and went to the room where Mrs Coulson and Mrs Downie were. Neither Mrs Coulson nor Mrs Downie expected to see Mrs James. A tense conversation later ensued between Mrs Coulson, Ms Boyd, and Mrs James. Mrs Coulson was anxious to get sufficient information for a handover given Mrs James' leave and asked to meet before Mrs James left. Mrs James responded:

With you two? Absolutely not. I have been advised not to speak to management without my advocate present.

2. Mrs Coulson responded with words to the effect of, "can you get one then?". While perhaps said somewhat flippantly, it was nonetheless a genuine offer for Mrs James to get an advocate if she wanted one. I reject Mrs James' evidence to the contrary. As Mrs Coulson said in evidence, Mrs James could have arrange for an advocate to attend by telephone.
3. I consider Mrs Coulson and Mrs Downie's actions in conducting the welfare check to be justified, prudent, and caring. Mrs James' response at her door was entirely unjustified. I reject Mrs James' contention that the welfare check was not motivated by a genuine concern for her safety. I reject that it was connected in any way to Mrs James' disability.

1. Mrs James commenced recreation leave on 5 June. On 13 June, Mrs Coulson was forwarded an email from Mrs James in which she said that she was "on a month of stress related work leave due to the bullying of the senior management team". Later that day, Ms Boyd emailed Mrs James to ask for a medical certificate.
2. Mrs James made a workers compensation claim under the WRCA and provided a certificate which stated that she was unable to work with those named as part of her grievance: Mrs Coulson and Mrs Downie.

Mrs James' grievance against Mrs Coulson and Mrs Downie

1. Mrs James made complaints against Mrs Coulson and Mrs Downie. These were in the form of internal grievances lodged by Mrs James alleging bullying, harassment, and micromanagement. Consistent with the Department's usual process, the Human Resources unit within P&C[19] was responsible for administering the grievance process. As part of that investigation, the Chief Nurse was appointed to investigate and determine the grievance. This appointment was at an appropriate level of seniority to and independence from Mrs Coulson, Mrs Downie, and Mrs James. I repeat that Mrs Downie, as the most senior of the three, reported to the Chief Executive rather than to the Chief Nurse.
2. HR assisted the Chief Nurse in investigating the grievances. The process included establishing the investigation's scope. HR made an error in that one of Mrs James' allegations was omitted from the scope. It is unnecessary to consider this in greater detail.
3. There is no evidence that the error was deliberate, less still that the error was the result of or related to Mrs James' disability. It is more likely that, like in many large and complex organisations, a genuine mistake was made. That the investigation's scope was revised to include the omitted allegation once the Department became aware of the mistake suggests that it was just that: a genuine mistake. While the omission was frustrating for Mrs James and it delayed the investigation process, unlawful discrimination does not arise.

1. Mrs Downie did not communicate with Mrs James regarding her workers compensation claim. Nor was Mrs Downie involved in Mrs James' return to work process. That was because Mrs Downie, like Mrs Coulson, was the subject of a grievance complaint made by Mrs James.
2. While not necessarily reflecting lines of reporting, Health HR was structured as follows. Separate business units were involved in dealing with complaints made or issues raised by Mrs James, all being staffed by employees of the Department. They were:
   • Injury Management Unit (IMU). Members of this unit contacted Mrs James regarding her workers compensation claim. The unit includes liability consultants, injury management coordinators (IMCs), and others. As the titles suggest, an injury management coordinator is responsible for coordinating the employer's management of a compensable injury. A liability consultant is responsible for investigating and assessing the Department's liability under the WRCA. A client services officer (CSO) processes the pay in respect of workers compensation claim. To ensure a worker's confidentiality and expertise in the WRCA, this task is not performed by the HR unit's payroll staff. In addition, the IMU engages workplace rehabilitation providers (WRP). Unlike liability consultants and injury management coordinators, a WRP is not an employee of the Department. Rather, it is a person licensed under the WRCA to rehabilitate an injured worker and assist their return to work. The Department engages a workplace rehabilitation provider for each accepted claim under the WRCA.
   • Human Resources Unit (HR). Members of this unit contacted Mrs James about internal grievances submitted by her on 26 May and 2 June 2023 and assisted the Chief Nurse to investigate them. As I have already discussed, HR also provided Mrs Coulson and Mrs Downie with advice about dealing with Mrs James and her requests.
   • Work Health and Safety Unit (WHS). Members of the WHS unit contacted Mrs James in response to concerns lodged by her on the Department's online Safety Reporting and Learning System (SRLS).
   • Industrial Relations Unit (IR). Members of the IR team contacted Mrs James regarding proceedings commenced by her in the TIC.
3. The IMU was staffed by around 20 people, of whom around four were responsible for assessing the Department's liability for around 620 workers compensation claims in the 2024 financial year.
4. Ms Barr and Ms Hay each gave evidence about the large number of departmental employees involved when a worker makes a workers compensation claim. That is because there is a need for subject-matter expertise within the Department and a need to cover for planned and unplanned absences. As a result, it is usual for several different persons to interact with a worker regarding their claim. IMU staff members' leave, conflicts of interest, varying task complexity,[20] and varying workloads made it impossible to have a single person managing the claim. That the Department is so large, now employing some 18,000 people, is another contributing factor. This division of responsibilities is reflected in the Department's injury management program.[21] As Ms Barr said, it would not be possible to have a 'one-stop-shop'.
5. I accept that Mrs James likely had a greater number of persons interacting with her about her claim than the 'typical' workers compensation claimant within the Department. There were at least three reasons for that. First, because Mrs James' claim was in respect of a psychological injury, the Department formed the view that an IMC with particular experience in psychological injuries was justified. Ms Barr also explained that this reflected (the Department's understanding of) Mrs James' preference and the extended leave taken by the previous IMC. This resulted in the claim being transferred between IMCs.
6. Second, Mrs James made several complaints (in a broad sense) to the Department. These were in the form of internal workplace grievances against Mrs Downie and Mrs Coulson, enquiries regarding her salary and allowances, four proceedings in the TIC, and the SRLS alerts generated by her. Ms Hay described it to be "unusual" to have a single person make so many complaints, which she characterised as a "flurry of activity" with Mrs James sending many emails to different people.
7. Third, Mrs James requested that P&C staff outside of the Department's North West chain of command be involved.[22]
8. I accept that it was difficult for Mrs James to understand who was responsible for which aspects, but, as she conceded, this would have been difficult for anyone. I also accept that dealing with multiple persons was difficult for Mrs James because of her disabilities. I accept that it was frustrating for Mrs James to provide the same explanation or information to several people. But, as I will later explain, I consider the Department's practice to have been reasonable in the circumstances.
9. Mrs James complained that she was locked out of Departmental computer systems when she made a workers compensation claim. I do not consider this to be untoward. Mrs James was certified as incapacitated: that is, unable to perform duties. It followed that she had no need to access the systems. While any inability to access HR systems (such as checking her payslips and leave entitlements) may have been unfortunate, there is no evidence that this was connected to her disability.
10. Payroll for an employee who has made a workers compensation claim is relatively complicated. For some claimants, the Department turns off 'autopay' such that, instead of each fortnightly salary payment being processed automatically, a CSO manually calculates the pay that is to be paid each fortnight. That reflects the complicated payments required under the WRCA. The Department made an error in that, at one stage, Mrs James was not taken off autopay. This resulted in her being overpaid. The fault was the Department's, not Mrs James. But there is no evidence that it was connected in any way to Mrs James' disability. I accept Ms Barr's evidence that this was a genuine mistake.

1. Mrs James was diagnosed with an adjustment disorder. The respondents do not dispute that this is a disability for the purposes of the ADA, s 16(k). Mrs James said that the Department discriminated against her because of it. There are two aspects. First, the excessive contacts regarding Mrs James return to work. Second, Mrs James was not returned to work because of her adjustment disorder.
2. Mrs James' initial certificates of capacity certified her as totally incapacitated. In the view of Mrs James' doctor, Dr Bibi, Mrs James was unable to perform any duties. This later changed and Mrs James was certified fit to perform some duties. Consistent with its obligations under the WRCA, the Department attempted to facilitate Mrs James' return to work in light of her certified partial incapacity. The IMC discussed the matter with Mrs James' WRP. Consistent with the usual practice, the WRP considered alternative duties that Mrs James could perform in other areas of the Department (i.e. not working under Mrs Coulson). This was made more complex because Mrs James' certificate of capacity made clear that she could not work at RCHC, nor could she work with Mrs Coulson or Mrs Downie.
3. I accept Ms Barr's denial that Mrs James' adjustment disorder influenced the Department's actions with respect to her return to work except insofar as they related to the restrictions identified by Dr Bibi. Put differently, the Department took into account the restrictions associated with her adjustment disorder, as it was obliged to do under the WRCA, but did not discriminate against Mrs James.
4. Mrs James refused to accept that it was reasonable for the Department not to return her to work in a location in which she might encounter Mrs Coulson and Mrs Downie, being the respondents to her grievance complaint and whose conduct was the subject of much of Mrs James' workers compensation claim. Mrs James wanted to be placed at the Mersey Community Hospital at Latrobe.[23]
5. Mrs Coulson and Mrs Downie's respective roles required them to travel to several of the Department's facilities on the northwest and west coast of Tasmania. This limited the Department's ability to find alternative duties for Mrs James as that would require a work location which neither Mrs Coulson nor Mrs Downie would visit. The Department owed duties to Mrs James under the Work Health and Safety Act 2012 (WHS Act), including with respect to Mrs James' psychosocial safety. In particular, the Department was required to provide, so far as was reasonably practicable, a work environment without risks to health and safety: s 19.
6. Mrs James refused to accept how the Department would have regard to her safety in those circumstances. Mrs James maintained that it was not possible that she would become significantly distressed were she to encounter Mrs Coulson or Mrs Downie at work in September 2023. She denied that encountering them in the corridor would be an interaction and that it was reasonable for the Department to take this risk into account. I do not accept Mrs James' assertion that she would have been able to safely work at a location where Mrs Coulson or Mrs Downie would sometimes be. It does not sit comfortably with Mrs James' other evidence about the severe impact that Mrs Coulson and Mrs Downie had on her, such as her:
   • suicidal ideation and psychological vulnerability throughout October and November 2023;
   • assertion in an email on 2 June 2023 that she was too afraid to return to work;
   • assertion that she felt unsafe in the workplace and so "constructively resigned";[24] and
   • own demeanour while giving evidence: she was palpably upset when recalling interactions with Mrs Coulson and Mrs Downie.
7. I hasten to add that the Department owed the same obligation under the WHS Act, s 19(3)(a) and the Work Health and Safety Regulations 2022, reg 55D(2)(h) to Mrs Coulson and Mrs Downie as it owed to Mrs James. Any risks to their psychosocial safety arising from Mrs James' presence and conduct was likewise a relevant consideration for the Department.
8. My task is not to determine where or whether Mrs James should have been returned to work. Rather, I must determine whether the Department's actions with respect to Mrs James' return to work breached the ADA. My point is that the Department's WHS obligations to the three provided compelling reasons why Mrs James could not immediately be placed in another primary healthcare facility on the North West.
9. Mrs James was returned to work in a role which avoided interaction with Mrs Coulson or Mrs Downie, but she regarded the duties as menial and complained that she was not provided with proper facilities or equipment. There may be some merit in this complaint, but there is no evidence that it related in any way to unlawful discrimination. Finding suitable RTW duties is an important but difficult task. I prefer the Department's explanation that it was difficult to find suitable alternative duties. While the Department perhaps could have done more, any failure was unconnected to Mrs James' disability.

1. It is unnecessary to describe the TIC proceedings. I repeat that this is an ADA inquiry, nor a merits review of the TIC proceedings or of the employment relationship. Mrs James claimed that Mrs Coulson and Mrs Downie improperly accessed or attended, and attempted to represent the employer, at a preliminary hearing in the TIC in August 2023. There was nothing improper about this. Mrs Coulson and Mrs Downie attended on P&C's advice. Although not parties, they were representatives of the respondent employer. Mrs James' allegations in the proceedings related to them. It was entirely appropriate for them to attend notwithstanding the grievance investigation. Neither was purporting to represent (i.e. as counsel) the Department.

1. My findings of fact do not fit neatly into each of ADA provisions which Mrs James alleges were breached. Many of Mrs James' allegations and my associated findings relate to several provisions of the ADA. Whilst I have attempted to separate each provision, the following analysis should be read conjunctively.

Direct discrimination (s 14)

1. With respect to direct discrimination, I accept the respondents' submission that Mrs James has not identified in any way how it was that she says she was treated in a certain way by the respondents because of her disability. To prove direct discrimination, Mrs James must establish the casual link between her treatment and her disability.
2. The Victorian Civil and Administrative Tribunal's (VCAT) observations in Drummond v Telstra Corporation Limited (Anti-Discrimination) [2008] VCAT 2630 at [57]- [58] are instructive:

Most people in one form or another possess most of the attributes. It is a frequent experience in this List that people who feel they have been unjustly dealt with whether in employment or other contexts identify what they see as unfair treatment and their possession of one or more attributes leaping to the allegation then that they have been the victims of direct discrimination. > > If this mode of argument were acceptable every instance of unfair dismissal for instance would also be an instance of direct discrimination because every unjustly or allegedly unjustly dismissed employee possesses certain attributes. Logically no complaint of direct discrimination can be proven or be other than frivolous and lacking in substance, unless, to use the words of Section 8(2)(b) of the [Equal Opportunity Act 1995 (Vic)], the attribute is a 'substantial reason' for the detrimental treatment.

3. A complainant may rely on inferences drawn from primary facts to establish the causal link. However, discrimination cannot be inferred when there is a more probable and innocent explanation available on the evidence: Trevanion v Wyangala Country Club Ltd (No 2) [2013] NSWADT 27. In Costello v Tasmania Police [2012] TASADT 9 at [37], the Anti-Discrimination Tribunal observed that:

The complainant asserts that he possesses certain attributes. In this case those relate to his sexual orientation and disabilities. He is, essentially, dissatisfied with his treatment at the hands of the respondent. He has formed the view that the basis of the respondent's conduct and decision making in his regard is based upon those attributes. At base he asks that an inference should be drawn that the Act has been transgressed because of the existence of an attribute and his dissatisfaction with the respondent's action and decisions. There is no evidence to support that conclusion that there is any link between the two. The purpose of an inquiry is not to give the complainant an opportunity to "fish" for evidence that might provide the required nexus.

4. A comparison is required between the treatment received by Mrs James and the treatment that would be received by another person without her disability: Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 at [9] (Gleeson CJ) and [214] (Gummow, Hayne, and Heydon JJ, Callinan J agreeing). Importantly, the comparison is with another person without the disability, not another person who does not engage in the same behaviour (notwithstanding that the behaviour may be the result of the disability): at [11] (Gleeson CJ) and [222]-[229] (Gummow, Hayne, and Heydon JJ, Callinan J agreeing). But that alone is not sufficient. If the comparison reveals less favourable treatment, the next question is whether that was because of the person's disability: at [213] (Gummow, Hayne, and Heydon JJ, Callinan J agreeing).
5. Mrs Downie and Mrs Coulson were clear that they did not decide or take action because of Mrs James' disability. This was not seriously challenged in cross-examination, and Mrs James did not give or adduce any evidence to the contrary. Instead, much like in Costello v Tasmania Police, Mrs James' case relies on inference. That inference is not open on the evidence. As I have endeavoured to explain, Mrs Downie and Mrs Coulson each gave evidence as to the reasons why they made the disputed decisions or took the disputed actions. Indeed, Mrs James' closing submissions appear to concede that her case relies on inference and that she has no direct evidence of the causal link.
6. I repeat that Mrs Coulson and Mrs Downie each gave evidence that they did not treat Mrs James differently because of her disability, or that she was treated less favourably. Mrs James alleges that the Department's failure to return her to work constituted direct discrimination. I disagree. The Department explained its conduct with respect to Mrs James' return to work and the volume of contacts.
7. The flaw in Mrs James' case goes beyond the lack of causation. It is also the lack of detriment. Mrs James has not proven that she was treated less favourably than another person without her disability. It suffices to provide one example. Mrs James claimed that she was refused a reasonable adjustment. I have found there to be no evidence that Mrs James requested and was refused an adjustment. For the same reason, Mrs James' complaint about Mrs Downie's "chronological behaviours", which I take to be a complaint about Mrs Downie's interactions with and decisions taken in relation to Mrs James, fails.
8. Even if I am wrong about my conclusion that Mrs James was not unreasonably excluded from attending or speaking in meetings or otherwise suffered some other detriment, there is no evidence that any exclusion or other detriment was connected to her disability.
9. Accordingly, Mrs James' claim fails.

1. Mrs James' put her case on the basis that the condition, requirement, or practice imposed by the Department related to the management of her workers compensation claim. Mrs James' alleged the number of persons contacting her about her claim to be excessive, as was the number of contacts. This allegation is made against the Department only.
2. The respondents contend that this situation was not a condition, requirement, or practice, even under the broad meaning compelled by State of New South Wales v Amery. I disagree. I think that it may constitute a practice, although my conclusions mean that it is unnecessary to decide the point. The Macquarie Dictionary relevantly defines practice as a "habitual or customary performance: a normal business practice" [emphasis in original]. That definition fits the respondents' own evidence that the Department's normal business practice was to have several different contact points relating to Mrs James' workers compensation claim and allied complaints. That is what happened in this case. Indeed, it is explained in the 'Roles and Responsibilities' section of the Department's injury management program (IMP).[25] Although the Department was not obliged by law to comply with its IMP, I should place weight on the program's legislative function and the guidelines issued by WorkCover Tasmania under the WRCA, s 142. To that extent, the IMP is persuasive and, to my mind, justified the Department's practice.
3. I am not persuaded that the Department's practice was "unreasonable in the circumstances". On the contrary, I am persuaded that it was prudent and appropriate in the circumstances described by Ms Barr for several persons to contact Mrs James. There were benefits to a worker, including to Mrs James. I have already noted the reasons advanced by Ms Barr for this practice. Nor am I persuaded that the practice disadvantaged Mrs James as a member of a group of people who share or are believed to share the attribute of disability more than a person who does not have a disability. While I have accepted that the number of contacts may have been distressing and difficult for Mrs James, she has not discharged her evidential onus.
4. I have also considered whether the respondents' conduct in meetings, preventing Mrs James from raising issues or not inviting her to some meetings, constituted indirect discrimination. I am not satisfied that it was. I am not satisfied that this was a condition, requirement, or practice on the part of the Department. Conduct in or regarding a particular meeting is ad hoc rather than a normal business practice. If I am wrong about that, I nonetheless do not find that the practice was unreasonable in the circumstances. On the contrary, I am persuaded that the respondents' conduct was reasonable. This is based on my earlier findings as to the circumstances of the respondents' conduct and the reasons for it.
5. To the extent that Mrs James intended to assert other instances of indirect discrimination, she did not lead evidence proving the elements of s 15, which I set out above.
6. The claim of indirect discrimination fails.

1. Mrs James' evidence was that she was humiliated, intimidated, insulted, and ridiculed by the respondents' conduct, in breach of s 17(1). In the case of the Department, I have considered its employees' conduct and imputed it to the Department. I do not doubt that, at various times, Mrs James felt humiliated, intimidated, insulted, or ridiculed. However, that is insufficient to establish prohibited conduct.
2. The respondents' submissions are twofold. First, Mrs James did not lead evidence of the respondents' conduct. Second, while Mrs James may have perceived actions and comments made by Mrs Downie, Mrs Coulson, and others in a certain way,

the application of the objective test to all of the interactions disclosed in the evidence leads to inevitable conclusion that there has been no prohibited conduct contrary to s 17 of the [ADA].

3. The latter submission must be accepted. While Mrs James perceived interactions with her to be direct and robust, I am far from satisfied that the objective test required by s 17 is met. I have already considered Brett J's analysis in Durston v Anti-Discrimination Tribunal (No 2) at [63]-[64] of the provision's threshold.
4. Indeed, in many instances Mrs James' interactions with her colleagues was more direct and robust, if not rude and discourteous. Mrs James' own conduct provides important context to the objective assessment of the respondents' conduct.
5. As to the respondents' first submission, I have given a broad and beneficial (to Mrs James) interpretation of the respondents' conduct. That is, I am satisfied that Mrs James identified conduct on the part of the respondents. Examples of that conduct were emails sent by Mrs Coulson or Mrs Downie, together with each's conduct at meetings. However, I am not satisfied that the conduct was based on Mrs James' disability. While Mrs James need not prove that the conduct was 'because of' or 'by reason of' disability, the conduct must still be referable to an attribute: Durston v Anti-Discrimination Tribunal (No 2) at [14(d)]. Mrs James has not done that. Instead, I accept Mrs Downie and Mrs Coulson's respective explanations for their conduct.
6. The claim of prohibited conduct fails.

1. I have already explained why it is not strictly necessary to consider s 104 of the ADA. However, in deference to the evidence and the parties' arguments, I will explain briefly why I am satisfied that the Department nonetheless met its obligations under s 104 (2).
2. I have already explained the instruction and training given to new and existing employees regarding discrimination. The instruction and training were in the form of written procedures and online learning modules, each of which was accessible on the Department's intranet. While there was some unclarity regarding which versions of the procedures and modules were in effect or available at particular times, I reject the assertion that the Department failed to take reasonable steps. The written procedures and modules were comprehensive and mandatory.
3. Mrs James' bears the onus of proving her claim. Here, the Department's evidence was not seriously challenged. I am satisfied on the Department's evidence that it took reasonable steps in accordance with s 104(2).
4. This claim fails.

1. Mrs James has not established any breaches of the ADA.
2. While there were aspects of Mrs James' employment that could have been better managed by the Department, her claims under the ADA are not proven. Indeed, the former observation would be true of many large organisations, particularly those performing critical work during a pandemic. While that cannot excuse any breaches of the ADA (noting that I have found there to be none), it may provide context to delays and disorganisation within the Department.
3. It is the conduct of Mrs Coulson and Mrs Downie that was the subject of the most criticism by Mrs James and scrutiny in the hearing. As I have endeavoured to explain, neither Mrs Coulson nor Mrs Downie discriminated against Mrs James. Contrary to Mrs James' submission, there is no evidence that Mrs Coulson held prejudiced attitudes to people with disabilities such as autism. Nor is there any evidence that Mrs Downie's conduct was because of Mrs James' disability.[26] These submissions are mere supposition and are inconsistent with the evidence. They are scurrilous and should not have been made. I have repeated them only to provide Mrs Coulson and Mrs Downie with the vindication to which each is entitled.
4. I find that Mrs Coulson and Mrs Downie each practised reasonable management action in what must have been difficult and trying circumstances. With the greatest respect to Mrs James, it is apparent that she was not an easy employee to manage. I do not suggest that Mrs James was deliberately difficult or intransigent. On the contrary, she cared and cares deeply for her patients and colleagues, even the colleagues against whom she made allegations. Her application for a suppression order, to which I will return, is an example of that.
5. Mrs Coulson and Mrs Downie carried themselves out professionally, fairly, empathetically, and without discrimination. It is appropriate considering the broad nature of the complaint and Mrs James' allegations - if not axiomatic given my earlier findings - to record that there is no evidence that either of them breached the State Service Code of Conduct at any time. On the contrary, I am affirmatively satisfied that Mrs Coulson and Mrs Downie conformed with the State Service Principles prescribed by the State Service Act, s 7.

1. Section 89 of the ADA allows one or more remedies to be ordered in respect of a breach of the ADA. Because Mrs James' has not proven any breaches, remedies do not arise.

1. It is necessary to address two unrelated, ancillary matters.

1. The respondents contend that Mrs James' allegations:[27]

arguably raise other issues which [Mrs James] could have pursued by referring her concerns to "another tribunal, court or any other person"...

2. This is a reference to s 87 of the TASCAT Act, which states:

87. More appropriate forum > > The Tribunal may, at any time, make an order striking out all, or any part, of any proceedings if it considers that the matter involved in the proceedings, or any aspect of it, would be more appropriately dealt with by another tribunal, a court or any other person.

3. The respondents contend that I should therefore strike out those issues. There are two reasons why I have not done that. First, given the intermingled nature of Mrs James' allegations, attempting to separate those issues would have been inordinately complex. Instead, the respondents have received the same outcome, being dismissal of the claim, but in the form of vindication on the merits.
4. The second reason is more nuanced. I acknowledge that s 87 allows strike out "at any time" and that the respondents raised it in their SOFIC prior to the hearing. However, in the circumstances of this case, it would have been preferable for a formal interlocutory application under s 87 to be made at an earlier stage in the proceedings. I have set out at length some of the relevant case management considerations referred to in Aon Risk Services. Here, Mrs James' claim was prolix and the facts intermingled between her various allegations. The proceeding had already undergone conciliation and many directions conferences and interlocutory applications, and the hearing dates had already been once adjourned. Case management considerations militated against strike out. Instead, a determination on the merits was justified.
5. I will, however, comment briefly on the construction of the provision. I do not consider s 87 to create a jurisdictional threshold for a determination on the merits.[28] Rather, the provision confers a discretion on the Tribunal to strike out a matter which would be more appropriately dealt with in another forum. 'More appropriately' entails an evaluative exercise, not a discretionary judgment. But the use of the word 'may' suggests that if the Tribunal considers there to be a more appropriate forum (that being a jurisdictional fact determined by evaluation), the Tribunal then has a discretion whether or not to strike out the proceeding or part of it: Acts Interpretation Act 1931, s 10A(1)(c). I make the point that it does not follow that the Tribunal must make a strike out order. Nor must the Tribunal apply s 87 before determining a proceeding on its merits.

1. In her closing submissions, Mrs James sought orders suppressing Mrs Coulson's name. I summarised the relevant principles in Seidenspinner v Cartwright (No 3) [2025] TASCAT 8 at [62]- [74] and adopt that summary without repeating it here.
2. There are several reasons why the orders should not be made. First, suppression is not justified on an application of those principles. Second, counsel for the respondents did not seek or consent to such an order which is relevant given that he called Mrs Coulson and she is employed by the Department. The inference is that Mrs Coulson does not seek such an order. Third, my conclusions vindicate Mrs Coulson and she is entitled to that vindication by publication of my findings. Fourth, as a comparatively minor factor, Mrs James' application has been made very late in the proceedings.

1. Mrs James not proven any breaches of the ADA. It follows that the complaint must be dismissed.
2. The respondents earlier made two applications for costs thrown away, each of which I adjourned sine die. The first was in respect of Mrs James' failure to appear at the fourth day of the hearing on 27 November 2025. The second was in respect of Mrs James' application to adjourn the hearing whilst it was underway, which I heard and dismissed on 22 December 2025. I will hear the parties as to costs.
3. I order:
   • The complaint be dismissed.
   • Any evidence and supporting submissions addressing orders sought as to costs, the latter not to be more than four pages in length, be filed and served within 21 days.
   • Any reply submissions addressing costs, not to be more than four pages in length, be filed and served within 35 days.

Anti-Discrimination Act 1998

Nurses and Midwives (Tasmanian State Service) Award

The court/hearing book filed by the complainant in these proceedings

Community Health Services Quality and Safety Review Meeting

Community Health Service Bi-Monthly Management Meeting

Client Service Officer; an IMU staff member responsible for processing payroll for employees who have made workers compensation claims

Digital Medical Record; an online record used by the Department to store patients' clinical data

Employment Direction 5, issued by the Minister Administering the State Service Act 2000 under that Act

Home Care Package, a healthcare package funded by the Commonwealth government allowing an older patient to be treated at home

Human resources unit within the Department's P&C organisation

Injury Management Unit within the Department's P&C organisation

Industrial relations unit within the Department's P&C organisation

Nursing Director, Primary Health Services North-West

People and culture within the Department, branded as 'Health HR'

Primary Health Service Leadership and Management Committee for Hospitals North West

(Rural and) Remote Professional Development Allowance

Severity Assessment Code assigned to SRLS events, with SAC1 being the most critical and SAC4 being the least

Safety Reporting and Learning System, an online reporting platform used by the Department

Tasmanian Civil and Administrative Tribunal Act 2020

Tasmanian Health Education Online, an online learning platform

Work health and safety unit within the Department's P&C organisation

Work Health and Safety Act 2012

Workers Rehabilitation and Compensation Act 1988

[1] The parties use the word 'clients' but for all intents and purposes they are patients. For consistency with the other evidence, I have used the word 'patient'.

[2] The ADA, s 84(1) allows the Tribunal to amend a complaint "if it considers it just to do so in the circumstances".

[3] Employment Direction 5 is an employment direction issued by the Minister administering the State Service Act 2000 prescribing the procedure for investigating whether an officer or employee under that Act has breached the Code of Conduct, also under that Act.

[4] CB 66: Complainant's affidavit at [28].

[6] CB 65: Complainant's affidavit at [23]. In cross-examination, Mrs James conceded that the meeting was held on 16 March 2023.

[7] The Full Court's decision was reversed on appeal to the High Court, albeit on an unrelated point. See Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27.

[12] As to their affidavits, see CB 130, 143-144, and 160-161. Each also gave oral evidence.

[13] Ms Hay said that it was mandatory for each employee to complete this training upon commencement, with refresher training required whenever a module was updated.

[16] Noting, for example, the duties that Mrs James said she performed at her last CNC role interstate.

[17] Nurses and Midwives (Tasmanian State Service) Award, Pt VI, cl 3(e)(ii).

[18] Mrs James was not a regular attendee at this meeting.

[19] I discuss the structure in more detail later.

[20] Which is relevant to the duties that may be assigned to each member of the IMU consistent with the Award governing their employment and, specifically, the classification of each's position.

[23] Mersey Community Hospital fell within the purview of the Chief Executive.

[24] This must be a reference to constructive dismissal.

[26] One example is Mrs James evidence, under cross-examination, that Mrs Downie did not approve payment of a particular allowance because of Mrs James' disability.

[28] Which was the respondents' contention.