James v Department of Justice, Corrective Services NSW

NCAT Administrative and Equal Opportunity|2017-03-28

The Applicant's case

The Applicant relied upon the following documents:

The complaint made to the President of the ADB on 27 May 2016;
The Complainant's response to the Respondent's response to the President of the ADB;
The Applicant's points of claim filed in the Tribunal on 4 January 2017;
The Applicant's statement filed in the Tribunal on 4 January 2017;
The Applicant's statement in reply to Assistant Commissioner Martin's affidavit of 21 February 2017;
The Applicant's points in reply to the Respondent's points of defence; and
The Applicant's response to the supplementary affidavit of Assistant Commissioner Martin dated 23 March 2017.

The Tribunal summarises the Applicant's case as follows.
The Applicant alleged that she had been victimised after sending a formal grievance to Assistant Commissioner Martin of CSNSW on 1 December 2015 concerning her manager Mr Calder. This grievance complained of bullying and harassment in the workplace. It also included a complaint that Mr Calder had indecently assaulted her at a work function on 16 August 2015 at the Bavarian Beer Café in Parramatta. Ms James provided WorkCover certificates certifying her unfit to work. Ms James attempted to return to work on 5 January 2016. However, her desk had been trashed and she returned home.

The Applicant's submissions on compensation

Ms James' points of claim sought resolutions as follows.

Return to her usual substantive position with IDATP or higher;
Compensation for extra travelling costs and reasonable wear and tear on her vehicle;
Compensation or added flexitime regarding the extra 2 to 4 hours per day travelling required; and
Whatever remedy is usually valid in these circumstances the Tribunal sees fit to award.

At the hearing, Ms James made oral submissions concerning financial compensation for the extra time, wear and tear and fuel spent travelling from her home to Silverwater, and later Emu Plains, and back. Both Silverwater and Emu Plains were further from her home in Blaxland Ridge and later Freeman's Reach, than her previous Windsor workplace. Ms James calculated this at $17,332. After the hearing, Ms James provided written calculations which were based on extra time spent travelling at $56.27 per hour pay rate and extra kilometres on an Associates Allowance rate of 66c per kilometre. This totalled $18,147.27.

The Respondent's case

The Respondent's case consisted of the response to the President of the ADB, Assistant Commissioner Martin's affidavits and oral submissions made by the Respondent. After the hearing, the Respondent provided written submissions in relation to financial compensation requested.

Evidence of Assistant Commissioner Martin

Assistant Commissioner Dr Anne-Marie Martin is in charge of Offender Management and Programs, Corrective Services, NSW.
The evidence set out by Assistant Commissioner Martin in two affidavits dated 21 February 2017 and 22 March 2017, is summarised as follows.
The first affidavit of 21 February 2017 states that Ms James had lodged two grievances. The second grievance lodged on 1 December 2015 was the subject of these proceedings. In or about late November 2015, Ms James had stopped attending work. She went on sick leave on the basis that she was suffering from anxiety and depression. In or about mid December 2015, Ms James made a workers compensation claim for psychological damage arising from ongoing bullying and harassment by Mr Calder. Assistant Commissioner Martin was assigned to be the grievance manager for this grievance and it was investigated by Ms Nicole Anderson, Director, Community Corrections as an alternative grievance manager. The complaint involving sexual harassment was referred to the New South Wales Police Force and the allegations of bullying and complaints regarding workplace practices were investigated as a grievance in accordance with the guidelines.
Ms James provided a WorkCover certificate of capacity on 31 December 2015, indicating she was fit for pre-injury duties. This certificate stated that Ms James should report directly only to the line manager (not Mr Calder). Ms James returned to work on 4 January 2016 at the John Morony complex in Dillwynia unit. Ms James was unable to continue to return to work and was then absent on sick leave.
Assistant Commissioner Martin attended a meeting with Ms James and the HR advisor industrial relations on 15 January 2016. Ms James was still on sick leave. At this time, a plan was put in place setting out future steps. Ms James was to report directly to her immediate line manager if she were to return to work while the matter was being resolved.
Ms Anderson's grievance assessment report of 4 March 2016 stated that Ms James' relationship with Mr Calder was irreconcilable. The fast pace and intensive IDATP environment was not considered the best place for Ms James to work while she appeared so affected by past issues. The report recommended that Ms James be transferred at the same grade from the Windsor complex, to ensure the safety of both staff members. Assistant Commissioner Martin approved the report with two variations. She did so, noting that the relationship between Ms James and Mr Calder was irreconcilable and that both Ms James and Mr Calder felt unsafe working with each other. There were several grade 7/8 roles that Ms James could be linked to.
Ms James' workers compensation claim was denied in early March 2016.
The Respondent continued to look for potential roles for Ms James. Assistant Commissioner Martin stated that she thought it more appropriate for Ms James to work at Silverwater for the reasons that Ms James had made allegations against Mr Calder that a criminal offence had taken place. These allegations were being investigated by the police. Having Mr Calder and Ms James work from different locations would protect both individuals from further potential negative interactions with one another, as well as to protect the investigation that was occurring.
Assistant Commissioner Martin chose to move Ms James to the Silverwater complex and to keep Mr Calder in his role, keeping in mind role vacancies and the impact on business units. Mr Calder's relative seniority and importance to the performance of work by IDATP meant that he should remain at IDATP and that Ms James should be transferred to an alternative location.
There was a further meeting on 14 April 2016. Again, because of the recommendation of the grievance investigation and the fact that the police investigation was ongoing, Assistant Commissioner Martin decided that Ms James should work at the Silverwater complex. She was to be paid at grade 7/8 and Ms James agreed to this. At that meeting, Corrective Services agreed that it would investigate whether there were any vacancies at Emu Plains correctional centre for Ms James. However, there were no vacancies at Emu Plains at that time.
Ms James commenced work at Silverwater in accordance with the return to work plan on 27 April 2016. She was paid at grade 7/8 level in a 5/6 position. Ms James returned to full working hours at Silverwater on 9 May 2016. She provided, on 23 May 2016, a WorkCover certificate indicating that she was fit for pre-injury duties, but that the workplace should be outside of the IDATP. On the same day Ms James produced another WorkCover certificate of capacity which stated that she was fit for pre-injury duties with no restrictions on the workplace location. Assistant Commissioner Martin concluded that Ms James should not return to the John Morony complex, despite this second certificate as the criminal investigation had not concluded and Ms James' return to IDATP could jeopardise the investigation. Ms James had made comments to another staff member about this investigation and this was being circulated. Assistant Commissioner Martin was also concerned about the safety of Ms James and Mr Calder, if they were required to work together. In June 2016, the New South Wales police completed its investigation of the indecent assault and decided there was no reasonable prospect of conviction of Mr Calder. The Professional Standards Branch (PSB) of Corrective Services then commenced an internal investigation in relation to the allegations of indecent assault in July 2016. This concluded on 7 September 2016, finding that the allegations of indecent assault were unsubstantiated. Assistant Commissioner Martin received the PSB's report on 29 September 2016 and agreed with its contents. Ms James was advised of this by letter dated 29 September 2016 on 6 October 2016. In October 2016 Mr Calder became Governor at the Windsor correctional centre and ceased to be the Director of IDATP.
On 12 January 2017 Assistant Commissioner Martin conducted a meeting at which she advised Ms James that the structure, roles and responsibilities of staff within the IDATP were being reviewed. The role that she had previously undertaken within IDATP would not necessarily be the same in the future. Due to the nature of the roles being reviewed, Assistant Commissioner Martin said she would not return Ms James to her previously assigned role as there was a risk that her role being dedicated to reintegration or projects, may not exist at IDATP in the future. It was determined that Ms James would move to a temporary position as a grade 7/8 at Emu Plains for a period of six months.
Assistant Commissioner Martin's supplementary affidavit dated 22 March 2017 referred to additional reasons for deciding in May 2016 that Ms James should not return to work at the John Morony Complex at Windsor. Ms James had sought review unsuccessfully of the second grievance assessment report. Assistant Commissioner Martin noted that the structure, roles and responsibilities of staff within the IDATP were being reviewed. The responsibilities associated with the Applicant's previous role at IDATP had changed and would likely change in the future. Accordingly, she would not be returning to role with the same responsibilities.
Ms James had continued to display emotional behaviour while working at Silverwater. Assistant Commissioner Martin noted that on 31 October 2016 when Ms James was informed that she could remain and have some stability for a period at Silverwater, that she became very distressed and remained so for many days afterwards. Ms James was asked to leave the workplace on 7 November 2016, because of her distress. Assistant Commissioner Martin stated that early last year, the group director of offender services and programs had received an email from a staff member who expressed concerns about the Applicant and her behaviour towards Mr Calder.
Ms James had been subject to a period of performance management in 2014. Ongoing concerns about Ms James' performance had been raised around professional boundaries and Ms James going too far in advocating for the needs of individual inmates. There was also a reluctance to undertake responsibilities outside of reintegration services, particularly reluctance to co-ordinate the work of services and programs officers, which was a general requirement of Clarke grade 7/8 role.
Under cross-examination, Assistant Commissioner Martin agreed that she had not seen Commissioner Severin's response to the ADB of 20 July 2016 prior to it being sent. She now adopted the reasons set out in that response.
Assistant Commissioner Martin said during her evidence that Mr Calder spoke highly of Ms James' skills. She had not seen any performance management plan for Ms James. She denied having any bias towards Mr Calder. She agreed that Ms James had not been the author of an email sent by a staff member concerned about Mr Calder's actions.

The Respondent's submissions

The Respondent did not contest the factual allegations made by Ms James. The issue was one of causation.
The Respondent submitted that the scope of the complaint as set out in the points of claim and the evidence given by the Applicant went beyond the scope of the complaint made to the President of the ADB on 26 May 2016 and as referred to the Tribunal by the President. A complaint is as defined under section 89 of the ADA. The complaint could be amended under section 91C. The complaint had not been formally amended.
As at the date of lodgement of her complaint with the ADB, 26 May 2016, Ms James' complaint against Mr Calder was still being investigated. The Tribunal could not consider events beyond this date in dealing with the unamended complaint.
The Respondent later noted that the complaint had been referred by the President of the ADB to the Tribunal on 26 of August 2016. The Respondent's points of defence had been filed on 22 February 2017.
The Respondent submitted that the Tribunal could not take account of any detriment beyond the scope of the unamended complaint.
The Tribunal also understood the Respondent to be submitting that the scope of the complaint should be anchored to the failure to return Ms James to her role at IDATP as at 26 May 2016, although she had been given a clearance by her treating doctor so to do. Thereafter, Ms James had been transferred to Silverwater with her consent.
The Respondent contended that the points of claim and the evidence had been much broader than the original complaint and the Tribunal should not entertain this.
The Respondent conceded that the first three elements of victimisation complaints as set out in the matter of Nicholls could be made out. However, Ms James' case did not establish the causation element. See Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [8].
The elements were that Ms James had made a grievance capable of giving rise to a contravention of the ADA as set out in section 50(1)(c) of the ADA.
The Applicant had experienced something. That was a transfer from John Morony CC at Windsor to Silverwater complex. The Respondent accepted that the transfer may constitute a detriment in certain circumstances and thus the third element was made out. The sole issue was whether the alleged detriment was on the ground that Ms James had made an allegation of sexual harassment.
Ms James had not suffered a detriment on the ground of her complaint of sexual harassment against Mr Calder. There were other reasons for any detriment Ms James may have suffered.
The Respondent's points of defence filed on the 22 February 2017 denied that it had victimised Ms James. It stated that Ms James' grievance had been found unsubstantiated. On 4 March 2016, Ms James had not returned to her position of Through-care and Placement Officer, Workplace, John Morony correctional centre facility, IDATP since November 2015. It stated that the Respondent's reasons for Ms James not returning to her position were that the relationship between the Applicant and Mr Calder was considered irreconcilable. Both the Applicant and Mr Calder felt unsafe working with the other. Due to the poor relationship, they could not both work together at IDATP. Mr Calder's relative seniority and importance to the work at IDATP meant that relocating him would cause greater disruption to the work of IDATP than relocating Ms James would.
When Mr Calder ceased to be the director of IDATP in October 2016, the Applicant was not returned to her position at IDATP. The structure, roles and responsibilities of staff within the IDATP were being reviewed, and the role that the Applicant had previously performed within IDATP, being a role dedicated to reintegration or projects, may not exist in the future.
The Respondent relied upon the affidavit dated 21 February 2017 and the supplementary affidavit dated 22 March 2017 of Assistant Commissioner Martin.
The Respondent submitted that Assistant Commissioner Martin did not transfer Ms James to Silverwater on the ground of her complaint about Mr Calder. There must be a substantial operative cause identifiable. There was still an investigation on foot when the Respondent received Ms James' workers compensation clearance certificates 26 May 2016.
The Respondent referred to the matter of Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another No 1 [2012] HCA 32. This was a matter on appeal from the Federal Court to the High Court of Australia dealing with section 346 of the Fair Work Act 2009 (Cth). This section prohibits a person from taking adverse action against another person for a prohibited reason, analogously with section 50 of the ADA 1977.
The Respondent submitted that the findings in that matter supported the reading of section 50 ADA victimisation provisions to mean that direct testimony from the decision maker, which is accepted as reliable, could discharge any burden upon the employer to demonstrate that its adverse action had not been for a prohibited reason. The Respondent submitted that the Tribunal must focus on the direct testimony of the decision maker Assistant Commissioner Martin. If the Tribunal accepted Assistant Commissioner Martin as being truthful, that discharged any onus of proof upon the Respondent.
The Respondent referred to the High Court's findings in the matter of CFMEU v BHP Coal Pty Ltd [2014] HCA 41, which also considered section 346 of the Fair Work Act 2009 (Cth), which prohibited a person from taking adverse action against another person for a prohibited reason. As for section 50 of the ADA, the enquiry under section 346 was a search for the reasoning actually employed by the decision maker in taking the adverse action. By analogy, in this matter, the Tribunal should accept that Assistant Commissioner Martin had set out the real reasons for the Respondent's action.
Assistant Commissioner Martin's evidence was that she was concerned about returning Ms James to the IDATP workplace because of Ms James' level of distress. In a matter of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 the Federal Court found that difficult behaviour was a manifestation of the Applicant's distress at the Respondent's treatment of him. By analogy, Assistant Commissioner Martin's evidence should satisfy the Tribunal that Ms James had not been victimised. Even if there was a close connection between Ms James' behaviour and the Respondent's decision, it did not mean that the decision maker was actuated by a desire to victimise her.

Respondent's submissions in relation to remedy.

The Respondent submitted that even if Ms James were to be successful in her complaint, the Tribunal had no power under section 108 of the ADA to require the Respondent to return Ms James to her role. Even if the Tribunal did possess such a power, it was clearly a toxic workplace and she should not return there. Mr Calder is still the Governor at JMCC Windsor and Ms James has demonstrated that she has not moved on from the matter.
The Respondent made written submissions replying to Ms James' written submissions calculating her loss. In summary, the Respondent denied that Ms James should be compensated for extra time taken to travel to work. It was not work time - Ms James was not required to work in her car. Associate Allowance rates per kilometre apply only where an employee has been approved to use a private vehicle and this had not occurred. The Respondent contended that the calculation of extra travelling time was not sufficiently precise. The Respondent proposed a methodology for compensating the applicant for travel time from home to work and vice versa. The Respondent submitted that if the Tribunal were to determine compensation should be ordered, that the Tribunal should direct the parties to agree on an appropriate sum of compensation based on the Tribunal's findings on the appropriate method of calculating loss.
The Respondent submitted that the Tribunal should be satisfied that the reason Ms James had not been returned to her role at IDATP at Windsor within the scope of the complaint was for the reasons set out by Assistant Commissioner Martin in her affidavits and her evidence.

The Tribunal's consideration

The Respondent did not contest Ms James' factual allegations about events, with some exceptions. Investigations did not substantiate Ms James' allegations of bullying or harassment or of sexual harassment against Mr Calder.
Even if the allegations of sexual harassment are not substantiated a complaint of victimisation based on detrimental treatment allegations may still proceed.

Standard of proof

Where the Tribunal needs to be satisfied of the existence of a fact - for example that an action has occurred - the Tribunal does so as set out in section 140 of the Evidence Act 1995 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
The onus of establishing the elements of the victimisation complaint is on the Applicant, Ms James. In this matter, the onus of establishing that one of the real, genuine or true reasons for being subjected to a detriment, after making her complaint of sexual harassment against Mr Calder, falls on the Applicant Ms James.
Ms James maintained that one of the real, genuine or true reasons that she was not returned to her job at John Morony complex at Windsor was because she had made a complaint of sexual harassment against Mr Calder.
The Tribunal accepts the factual allegations made by Ms James about what occurred after she made that complaint in December 2015.
The Tribunal finds that the "detriment" set out in section 50(1) of the ADA, caused to Ms James by the actions of the Respondent, was the failure to return her to either IDATP or the Windsor complex at all, after she was certified fit to return there on or about 26 May 2016. Ms James alleges that the victimisation commenced after this time.

Scope of Complaint

The Respondent argued that the scope of the complaint as set out in the points of claim and the evidence given by the Applicant, went beyond the scope of the complaint made to the President of the ADB on 26 May 2016 and as referred to the Tribunal by the President. The complaint had never been formally amended.
The Tribunal noted that the Respondent had provided points of defence dated 22 February 2017. This issue was not raised in the points of defence.
At 8(b)(ii) of the points of defence, the Respondent set out: "…. the responsibilities of staff within the IDATP are being reviewed, and the role that the applicant had previously assigned against within IDATP, being a role dedicated to reintegration or projects, may not exist in the future."
The Respondent's points of defence contemplate extension of the issues beyond the date of lodgement of Ms James' complaint at the ADB. Assistant Commissioner Martin's evidence also referred to a meeting occurring in January 2017 as an aspect of the Respondent's defence.
Further, the Tribunal notes that there has been no material change in Ms James' contentions. Ms James has maintained at all times that the cause of her detrimental treatment was that she had made a complaint against Mr Calder.
The Tribunal considers that it has lawfully taken account of events occurring since May 2016 when the complaint was lodged with the President of the ADB. The Respondent referred to the need to wait for the outcome of both the Police and Corrective Services New South Wales Professional Standards Branch investigations, before returning Ms James to her workplace, in its response to the initial complaint. As such, the outcome of these contingent events is relevant to the Tribunal's consideration of the submissions made by both Ms James and the Respondent about the evidence. The Tribunal considers that the Respondent has not been prejudiced by any implicit extension of the complaint beyond the date of lodgement in May 2016 with the ADB.

Findings on detriment

The Tribunal accepts Ms James' evidence of the detriment as set out in her points of claim and evidence. The loss, damage or injury suffered by Ms James is, in the Tribunal's view, "something which a reasonable person would consider to be a detriment." See Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41]. The Respondent conceded that Ms James had suffered a detriment.

Causation

The Respondent first set out reasons for this in the Respondent's letter of 20 July 2016 to the ADB, as follows.
Initially, the Respondent did not return Ms James to working at the John Morony complex at Windsor because her treating doctor had certified that she was fit to return to work and that if she returned to work at the complex, she was not to have any contact with the director. The Respondent could not guarantee that Ms James would not have contact with Mr Calder, were she to return to the John Morony complex at Windsor where Mr Calder was working. The letter states: "Assistant Commissioner (AC) Dr Anne-Marie Martin further determined that the complainant could not be returned to the Complex due to the ongoing investigation into an alleged assault by the Director against the complainant."
The Tribunal is satisfied by this statement that the Respondent decided not to return Ms James to the IDATP workplace because she had made the complaint against Mr Calder.
The letter then states: "Therefore, in accordance with the Respondent's WH and S obligations, relocation is also necessary to protect the integrity of the investigation process."
The meaning of this statement is unclear. The Respondent does not nominate which aspect of WH&S obligations it was referring to. It was not made clear how relocation of Ms James would protect the integrity of the investigation process. There was no suggestion in the evidence that either Ms James or Mr Calder had interfered with the investigation.
The Respondent stated that Ms James was willing to go to the Silverwater correctional complex. The Tribunal understands however that Ms James was not offered relocation to any other site at this time, despite having requested to go to either Windsor or Emu Plains. The Tribunal does not consider that Ms James was making a real choice of worksite.
The letter refers to a duty of care and statutory obligations which prevented the Respondent placing Ms James at John Morony correctional centre at Windsor where Mr Calder remained employed. The Respondent does not set out what the content of this duty of care or statutory obligations was.
The Respondent then relied upon a defence of "reasonableness" of its actions. This is not a lawful defence to a complaint of victimisation under section 50 of the ADA. The defence is not raised under any statutory exemption. In dealing with a complaint of victimisation under the similarly worded Queensland Anti- Discrimination Act 1991, the Queensland Tribunal specifically rejected any implication of a defence of reasonableness. See Cockin v P&N Beverages Aust Pty Ltd [2006] QADT 42 at [105] and [111]
The Respondent's letter referred to section 54 of the ADA and meeting its statutory obligations under the WH&S as a defence. The Tribunal sets out the relevant aspects of section 54. 54 Acts done under statutory authority (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, …...
Section 104 of the ADA makes it clear that the Respondent has the onus of proving that its conduct falls within the terms of the exception provided by s54.
In the matter of Fittler, the Tribunal set out the meaning of "necessary" in section 54 for a Respondent to establish a defence. See Fittler v NSW Electoral Commission and anor [2007] NSWADT 136 at [17] and [18]. 17 As to the meaning of 'necessary', both parties relied on the following statement in Lavery v Commissioner of Fire Brigades [2003] ADT 93 at [80] as correctly stating the law: for conduct to be exempt conduct under s 54, a party must "establish that the requirements of the other Act [or Regulation] are mandatory and specific, and permitted no means of compliance except acting in a manner that would otherwise constitute unlawful discrimination". In saying this the Tribunal in Lavery relied on what had been said by Justices McHugh, Dawson and Toohey in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. 18 …The test proposed by Justices Dawson and Toohey (at pp 389-390)… ask(ed) "if there were a discretion as to the manner in which the specific directions might be carried out which offered a choice between discrimination and no discrimination".
The Respondent did not address this test of necessity in its evidence or submissions. The Tribunal is not satisfied that the Respondent was permitted to treat Ms James detrimentally by refusing to return her either to her role in IDATP or to the Windsor complex by compliance with WH&S under section 54 of the ADA.
The Respondent's reply to the ADB was provided on 20 July 2016. Assistant Commissioner Martin's evidence was that in June 2016, the police had finished their investigation of the indecent assault allegation against Mr Calder and that the matter was then referred to Corrective Services New South Wales Investigations/ Professional Standards Branch for consideration.
However, during this period, Ms James was interviewed for a position and Mr Calder was on the interview panel. It is not clear from the evidence when exactly this occurred. However, the Tribunal concludes that it was on or prior to 8 September 2016. On 8 September 2016, Ms James sent a request for a review of the recruitment process, because of Mr Calder's involvement.
The Respondent claimed that it had not returned Ms James to the Windsor complex, for WH&S concerns, lest she have contact with Mr Calder and to protect the integrity of the investigation process. This claim is undermined however by the Respondent's placement of Ms James and Mr Calder in the same room at an interview process, while the complaint was still being investigated.
Ms James was advised by letter dated 24 October 2016 that her complaint had been found unsubstantiated by the CSNSW Professional Standards Branch and that her grievance concerning Mr Calder's involvement in the recruitment process had been dismissed.
Assistant Commissioner Martin also stated that Mr Calder's relative seniority and importance to the performance of work by IDATP meant that he should remain at IDATP and that Ms James should be transferred to an alternative location. The Tribunal notes that in October 2016 Mr Calder moved to another role and that he was no longer working in IDATP. Although Ms James had been certified on 26 May 2016 as fit to return to her previous position, this did not happen, even after Mr Calder moved from IDATP in October 2016 and the investigation of the complaint was finalised.
Assistant Commissioner Martin referred to Ms James' distress at being told she would remain at Silverwater on 31 October 2016 as a further reason not to return her to IDATP.
The Tribunal considers that it is understandable that Ms James became and remained distressed when told she would remain at Silverwater on 31 October 2016. All stated barriers to her return to her role in IDATP and to the Windsor complex had now been removed. The Respondent had previously told Ms James that she could not be returned to her previous role or site, because of the restrictions in her Workers Compensation certificates. These were no longer an issue. The Respondent had told Ms James that she could not return to working at IDATP because Mr Calder was there. By the end of October 2016, he was no longer in this role. The Respondent had told Ms James that she could not be returned to her position or to work on the same complex as Mr Calder while the investigation by the police and then the professional standards branch was on foot. By 31 October 2016 Mr Calder was no longer in charge of IDATP and the investigation had finished.
The Tribunal is satisfied that Ms James' distress in October 2016 was the result of the continued detrimental treatment of Ms James by the Respondent after she lodged her complaint against Mr Calder. Deciding not to return Ms James to IDATP or Windsor complex because of this distress, continued the detriment because Ms James had made her complaint against Mr Calder.
Assistant Commissioner Martin also referred to the discussion in a meeting in January 2017 of the risk and possibility that the roles at IDATP were to be restructured. This was a further 2 months after the investigation into Ms James' complaint had been completed and still she had not been returned either to IDATP or the Windsor complex. At the hearing, no evidence was provided that this restructuring had actually occurred. Ms James told the Tribunal that there was still someone acting in her role at IDATP at the date of hearing.
Assistant Commissioner Martin also stated in her second affidavit that Ms James had been subject to performance management. However, no evidence of this was produced at the hearing. Ms James' account was that she had set out performance objectives on assuming a new role in 2014 and that she had later been confirmed in the role. Ms James' account was not contradicted. Assistant Commissioner Martin also said in her evidence that Mr Calder had spoken well of Ms James' capacities. The Tribunal is not satisfied that there were either structural necessities or performance matters that prevented Ms James from being returned to her IDATP role.
Assistant Commissioner Martin also referred to Ms James' distress and the fast-paced environment of IDATP. It was suggested that Ms James could not cope temperamentally with this. There was no evidence before the Tribunal that the Respondent offered Ms James any psychological assistance. Such an offer might have been consistent with the Respondent's stated concerns with WH&S and its duty of care.
As at the date of hearing, Ms James had not been returned to her pre-complaint role at IDATP or to the Windsor complex. The Tribunal understood that Ms James was working in a role at the Emu Plains site, closer to her home than Silverwater.

The role of intention to cause detriment

There is no requirement to establish an intention to cause detriment as an element of proving a complaint of victimisation. The need for such an intention was specifically rejected by the NSW Equal Opportunity Tribunal in the matter of Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 at 78,986. The Tribunal also refers to the views of Rees, N; Rice, S and Allen, D: Australian Anti-Discrimination Law; 2nd Edition, Federation Press at [11.3.20] on this issue.
Accordingly, the Tribunal does not need to find that the Respondent's actions towards Ms James were done with the intention of causing her detriment.

Causation - 'On the ground that'

The Tribunal adopts the Appeal Panel's analysis in Nicholls as to the meaning of "on the ground that" in section 50 of the ADA in victimisation complaints and the operation of section 4A of the ADA. "37 Conclusion. ……The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant." See Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]
This Tribunal must be satisfied that the fact that Ms James had made a complaint against Mr Calder which alleged sexual harassment was at least one of the real genuine or true reasons for being subjected to a detriment.
The Tribunal refers to the Respondent's initial response to the complaint to the President of the ADB dated 20 July 2016. The response includes the following: "Assistant Commissioner (AC) Dr Anne Marie Martin further determined that the complainant could not be returned to the Complex due to the ongoing investigation into an alleged assault by the Director against the complainant."
The Tribunal is satisfied from the Respondent's initial response to the President of the ADB on 20 July 2016, that the fact of Ms James' complaint of sexual harassment was one of the real, genuine or true reasons for the detriments to which Ms James was subject.
The Tribunal specifically rejects the Respondent's defences of reasonableness and the necessity of complying with WH&S legislation as a defence under section 54 of the ADA to the complaint.

Inferences

If the Tribunal is incorrect in its reading of the Respondent's letter to the ADB of 20 July 2016 to mean that it had taken the actions complained of because Ms James had made her complaint of sexual harassment, the Tribunal is satisfied that inferences can be drawn that this is so. The Tribunal draws these inferences from events both prior to and after the making of the complaint, that Ms James' complaint of sexual harassment was one of the real, genuine or true reasons for being subject to a detriment by the Respondent.
As is frequently the case in discrimination complaints, Ms James did not provide direct evidence to the Tribunal, such as statements by employees of the Respondent, which demonstrated that she had not been returned to IDATP or the Windsor complex because she had made the complaint against Mr Calder.
Such a situation was dealt with by the Tribunal in the matter of Edwards v Bourke Bowling Club Limited [2000] NSWADT 31. In that matter, Mrs Edwards brought a complaint against the Respondent that she had been discriminated against on the grounds of sex and race in its suspension of and refusal to re-admit her. 121 The Tribunal must now assess whether this less favourable treatment, namely the 27 February suspension and the December 1996 refusal to re-admit her to membership, was on the grounds of the Applicant's sex or race or both. 122 There is no direct evidence before the Tribunal that these decisions of the Club were based on the Applicant's race or sex or both. The Applicant's case is based on circumstantial evidence. 123 This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone v State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial." 124 The Tribunal recognises the difficulty faced by an Applicant in discharging the onus of proof in the absence of direct and positive evidence that the treatment suffered by the Applicant was on the ground of the Applicant's race or gender. 125 In cases where there is no direct evidence of the discrimination, the Applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence (1981) I.C.R. 126 The decision of the High Court in Chamberlain v The Queen [1984] HCA 7; (1984) 153 CLR 521 establishes that a Tribunal of fact, such as this Tribunal, should decide to accept a particular fact not by considering the evidence directly relating to that fact in isolation but in the light of the whole of the evidence. It can draw an inference from a combination of facts, none of which viewed alone would support that inference. A fact relied on as the basis of an inference adverse to a party need not be proved to the requisite standard of proof: Dawson J in Shepherd v The Queen [1990] HCA 56; 97 ALR 161. 127 It is open to the Tribunal, having taken into account all the circumstances surrounding the Respondent's treatment of the Applicant, to make a finding of unlawful discrimination. However, such a finding cannot be inferred where more probable and innocent explanations are available on the evidence: Department of Health v Arumugam [1988] VicRp 42; (1987) EOC 92-195; (1988) VR 319; Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT. 128 In this Inquiry, we have to undertake the same exercise, asking the question whether the evidence taken as a whole supports the inference that the Applicant's race or gender or both were operative factors in the actions of the Club that adversely affected her. The Applicant need not establish that her sex and or race were the only reasons for her alleged discriminatory treatment. Section 4A of the Act provides that if an act is done for two or more reasons and one of the reasons consists of unlawful discrimination, the act is to be taken to have been for the unlawful discriminatory reason.
The Tribunal adopts the approach taken in the matter of Edwards, in dealing with Ms James' allegations and the reasons provided by the Respondent for its detrimental treatment of Ms James. The Tribunal's analysis of the evidence and submissions of the Respondent in all the circumstances, elicits internal inconsistencies which undermine the reasons provided by Assistant Commissioner Martin. These include having Ms James and Mr Calder in the same room in an interview for a position at a time when the Respondent said it had WH&S concerns about the safety of both parties, were they brought together.
As the Tribunal stated in Edwards, this Tribunal can draw inferences from the primary facts, none of which viewed alone would support that inference. Each of the stated barriers were removed for not returning Ms James to IDATP or Windsor. The Respondent did not provide evidence of having considered its obligation not to victimise Ms James for making the complaint. The Respondent did not offer any evidence of having attempted to mollify the impact of the restrictions it placed upon Ms James-despite noting her distress. The Respondent then drew the conclusion that the distress rendered Ms James unsuitable for her role.
Upon receiving Ms James' grievance and complaint in December 2015, the Respondent followed a process for investigating the complaint. In addition to investigating the complaint, the Respondent imposed restrictions on Ms James. The Respondent is, on any view, a large employer with numerous worksites in the Sydney Metropolitan area. The Tribunal is satisfied that the Respondent could have investigated Ms James' complaint about Mr Calder, without subjecting Ms James to a substantial detriment.
The Respondent could have chosen to change its actions towards Ms James after Ms James' complaint of victimisation was brought to its attention by the President of the ADB. There was a further opportunity to do so when the complaint was referred by the President of the ADB to the Tribunal in late August 2016. In January 2017, there was further opportunity to change the way in which the Respondent treated Ms James when it was again determined at a meeting not return her to the Windsor complex.
There is no other justification clearly made out for changing Ms James' workplace. Ms James has not been subject to the usual processes by which a person might be removed from their position, such as performance management proceedings, promotion or dismissal. As at the date of hearing, there had been no re-structuring of Ms James' role. Even so, Ms James has still not been returned to IDATP or the Windsor complex.
There was no evidence before the Tribunal that Mr Calder was subject to any restrictions. The evidence before the Tribunal was that all the restrictions were placed upon Ms James, the complainant. Mr Calder was permitted to sit on an interview panel to consider a job application from Ms James while the investigation of the complaint was still on foot.
From all of the above matters, the Tribunal draws the inference that one of the real reasons that Ms James was not returned to IDATP or the Windsor complex was because of the Respondent's disapproval of her bringing a complaint against a senior person.

Findings

The Tribunal must be satisfied on the civil standard of proof - that is on the balance of probabilities. For the reasons set out above, the Tribunal is satisfied that Ms James' making of a complaint of sexual harassment against Mr Calder was a real, genuine or true reason for the Respondent's detrimental acts towards Ms James. The complaint of victimisation is made out.

Remedies

Section 108 of the ADA relevantly sets out the actions the Tribunal may take when finding a complaint substantiated.

Section 108 (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95(2), order the Respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the Respondent's conduct. … (d) Order the Respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

An appeal panel in Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22 considered past judicial statements in relation to damages and concluded as follows: 27...The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) of that Act (previous remedies section) vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an Applicant in a discrimination case was suffered by reason of the Respondent's conduct, but they are not controlling.
The question for this Tribunal, having regard to the principles set out above is whether the victimisation by Corrective Services NSW, materially contributed to any loss or damage Ms James has suffered.
As Wilcox J stated in Hall v Sheiban (1985) ALR 503 at 543: "the task of determining the appropriate level of damages in a case of unlawful discrimination is not without difficulty: Damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant's relationship with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage."
The Tribunal is mindful that awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Anti-Discrimination Act gives effect (see Alexander v Home Office (1988) 2 All ER 119 at 122).
The Tribunal considered the following factors in considering "the appropriate level of "damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the Respondent's conduct," (section 108)

Ms James has never returned to her workplace since making her complaint in December 2015;
the victimisation complained of commenced in late May 2016;
Ms James was previously working as a level 7/8 and is now a 5/6 which diminishes her workplace status;
Ms James has experienced loss of career enjoyment;
Ms James has lost the chance for promotion beyond level 7/8;
Ms James has been caused up to 2 hours extra of travelling time to work each day.

The Tribunal notes that as at the date of the Respondent's filing of points of defence, Ms James had not been returned to her role or worksite.
The Tribunal is satisfied that refusing to return Ms James to the Windsor complex and her transfer to Silverwater because she had made a complaint against Mr Calder, brought a loss of quality of life for Ms James in a number of ways. Her travel time to work increased substantially and she was diminished in her status in the organisation.
After her transfer to Silverwater, Ms James made efforts to be interviewed for other positions. At one of these, Mr Calder was present at the interview - again, to Ms James' distress.
Ms James did not provide any evidence from a treating practitioner as to the psychological impact upon her of the Respondent's actions.
The Tribunal was able to observe Ms James' distress during the course of the hearing. Ms James ascribed her emotional responses, crying and frequent inability to continue in the hearing, to the way she had been treated after lodging her complaint against Mr Calder.
The Respondent attested to Ms James' expressions of distress at work following the lodgement of her grievance and complaint. Assistant Commissioner Martin gave evidence of Ms James' inability to work after confirmation that she would remain at Silverwater even after the investigation of the complaint was finished and Mr Calder had moved from IDATP in October 2016. Assistant Commissioner Martin considered that the intensity of Ms James' distress was such that she thought that Ms James could no longer work in the fast-paced environment of IDATP.
Ms James provided calculations including economic loss caused to her by travelling a further distance to work in her own car. Ms James calculated her extra travelling time as lengthening her work day - compensable by flexi-time and salary payments. The Respondent rejected the concept of extra travelling time as compensable by salary payments.
The Tribunal noted that Ms James had continued to be paid at grade 7/8 level, although she was working as a level 5/6. The Tribunal was not satisfied in these circumstances that Ms James had been forced to forego any salary because of the Respondent's treatment of her.
The Tribunal could not be satisfied that increased travel costs could be calculated with any precision based on the information before it.
The Tribunal was satisfied however that Ms James should be awarded damages for hurt and distress. Ms James has also experienced a loss of quality of life in having to travel up to 2 extra hours per day to work.
There were limited examples of substantiated complaints of victimisation for the Tribunal to consider. The Tribunal was mindful of the upper limit of damages of $100,000. The Tribunal considered such cases as Alexander v Cappello & Anor [2013] FCCA 860, a finding of victimisation in which the Federal Circuit Court awarded the amount of $ 75,000 to Ms Alexander. She had been dismissed for making a sexual harassment complaint. Ms James has not been dismissed and has not experienced the same economic loss of wages as Ms Alexander.

Orders

(1) The complaint of victimisation is substantiated.
(2) The Respondent is to pay to the Applicant the sum of $20,000 as compensation for the harm caused to her within 21 days of the publication of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2017

Victimisation - Legal Considerations

The Tribunal adopts the Appeal Tribunal's analysis of the elements of victimisation in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at paragraph [8]. 8. Four elements must be satisfied before a complaint of victimisation can be substantiated. Firstly, the complainant must have done one of the things listed in s 50(1)(a) to (d). Secondly, the Respondent must have caused the complainant to experience something. Thirdly, the complainant must have suffered some consequential 'detriment'. Fourthly, that detriment must have occurred 'on the ground that' the complainant did one of the things listed in s 50(1)(a) to (d): Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 at 78,986.

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