Messrs James Fitzpatrick and Michael Katz, both of counsel

1. The complainant is described variously by her former principal as gifted, consistent, thorough and competent. From 2006 onwards she was employed on a series of fixed term contracts at Warrnambool College. For the purposes of the Victorian Government Schools Agreement 2008 she was an "eligible teacher". Clause 20(g) of that agreement provides that an "employer should offer ongoing employment to any eligible teacher where a suitable ongoing position becomes available in the school".
2. Like many teachers in her position, the complainant actively sought an ongoing position and the benefits that such a position involved. "Ongoing" in this context means "permanent". From the time of her first contract on 22 December 2006, she had been engaged on six separate contracts with occasional extensions and variations. Those contracts were for periods ranging from 3 months to a year and were mostly part-time ranging through from .5 to .6 and .8 and one full time annual period. The complainant holds the degree of Bachelor of Business Education from Magill Campus Adelaide.
3. Ms Pendergast (the second respondent) is the principal of Warrnambool College and she commenced in that role on 15 January 2007. Her qualifications include a Masters in School Leadership (Melb) and a Bachelor of Education in Literature and Physical Education (Rusden).
4. In succinct albeit prosaic terms the thrust of this application is that Ms Pendergast is said consistently to have promised that she would make Ms Jennings ongoing, that the promise was not honoured, that the reason for the failure to deliver on the promise was the complainant's pregnancy and that constitutes direct discrimination under the Equal Opportunity Act 1995 ("the Act").
5. The particulars of the contravention of sections 6(a) and (h), 8, 9, 13,14 and 102 of the Act (the complainant having abandoned the claim of age discrimination and having refined and amended her claim along the way) state that-

By failing and/or refusing to appoint the Complainant to a permanent position in the School as promised due to her pregnancy the Principal directly discriminated against the complainant on the ground of her pregnancy and treated her less favourably than she would have someone without that attribute in the same of similar circumstances.

1. It is the complainant's evidence that the principal told her on numerous occasions that she would be made permanent. Examples of these promises are set out in the complainant's particulars of complaint and were the subject of a plethora of evidence before the Tribunal.
2. Aside from the background events, this case really turns on the conversation between the complainant and the second respondent that occurred on 24 August 2010.
3. Warrnambool College has over 900 enrolled students spread over two campuses. It was described as "a school in deficit" which means it was unable to meet its staff salaries within the student-based funding component of the Student Resource Package provided by the Department of Education.
4. During 2007 and 2008 the school received additional financial assistance and advice and a further request for assistance in 2009 was refused. Later, after a review, a one-off assistance payment was made. The College took a number of strategies to reduce its deficit including redeployment of staff, reduction of some electives and an increase in teachers' face-to-face weekly periods. It is against that financial background that workforce planning and staffing decisions were said to be made.
5. Both the complainant and the second respondent gave evidence and each was subjected to robust cross-examination. Each is mature and confident and each gave evidence in a careful and considered fashion. The tribunal heard viva voce evidence from a number of other witnesses and statements from two more were tendered by consent. Their identities were:

Mr Anthony Bugden, the Department's general manager of human resources;

Mr Peter Martina, teacher and librarian and holder from time to time of various offices in the Australian Education Union.;

Mr Duncan Robertson, a one-time relief teacher at the college;

Mr Clive Coomber, a recently retired teacher at the college;

Ms Rosemary Crowe, an organizer with the Australian Education Union;

Mr Brad Burns, recently retired but formerly the daily organizer responsible for staffing;

Ms Kaye Hollis, a teacher at the college and the manager of the technology learning area;

Ms Emma Miller, a teacher at the college and the person responsible for the construction of the college House system;

Ms Christine Dickson, the college business manager.

1. The evidence contained in the statement made by Ms Miller needs to be set out in some detail because it provides background to notable school changes and because the result of those changes is said to provide an explanation for the principal's inability to make the complainant ongoing. Ms Miller was not required for cross-examination and her statement was tendered in evidence; it dealt with the changes in the college structure and is to be viewed in the context of management decisions taken in 2008 and 2009.
2. Ms Pendergast set out the background to the structural decisions in her statement. She referred to an Attitudes to School Survey conducted in 2008 which elicited deficiencies in many areas of the college, all of which she took seriously. She engaged a consultant to analyse the data and to recommend strategies for improvement and implemented a project team. It in turn decided to develop the house system. For that purpose a position a leading teacher position was created to manage the development of the house system. That role was filled by Ms Miller.
3. Relevantly Ms Miller's evidence was as follows. In 2009 she called for volunteers from staff to join a focus group charged with the responsibility of making decisions about how the house system would work. Implementation of the house system was postponed from 2010 to 2011 but the focus group continued to set up the system during that time. The important decisions were that there should be six houses and each should be headed by a leading teacher due to the added leadership skills required and the additional responsibilities. The positions were approved by the College Consultative Committee on 22 June 2010. Ms Miller stated that staff were engaged in the process and that she had made power point presentations to staff in April 2009 and April 2010 and had distributed brochures to staff pigeon holes some time in 2010. When she had finalised the role description for the house leader positions, she emailed a copy to all staff. In addition a copy of the role description was displayed in the staffroom possibly around the last week of term 2 in 2010.
4. On 21 July 2010 there was a staff meeting and teachers were advised the positions would be advertised the following day. Advertisements were duly posted on the internet and in the Age newspaper. Ms Miller expressed interest in being on the selection panel and she joined Ms Pendergast and Ms Hollis in that task. Ms Miller for her part reviewed the applications on 7 and 8 August 2010 and she and Ms Pendergast exchanged their views by email. The next week the three interviewers finalised a short list and interviews occurred. They conferred on the eventual choices and decisions were made. The successful applicants (one of whom was Daniel Finn) were offered their positions on 23 August 2010. Despite suggestions to the contrary, the tribunal is not persuaded that there was anything untoward in relation to the appointment of Mr Finn. He was just one of the successful applicants and notwithstanding the complainant's focus on his appointment the evidence simply does not support any such conclusion. Rather the suggestion that there was something malign about him seeking assistance in relation to his application from Ms Stacey at the school, that Ms Stacey was a close friend of the principal is pure speculation and more likely the product of staffroom scuttlebutt. Furthermore it is completely at odds with the statements of Ms Miller and Ms Hollis concerning the appointment process.
5. The point of Ms Miller's evidence is that the proposed restructure was well known throughout the college and although it is clear that the complainant did not attend one of the meetings, it is unlikely she was unaware of the proposal. She did not apply for any of the leading teacher positions although her evidence was that she did not apply because she trusted Ms Pendergast to deliver on her promise to make her ongoing.
6. It transpired that Mr Finn was able to teach the particular subjects taught by the complainant and, according to Ms Pendergast's evidence, that meant there was no position available for her at all.
7. The complainant told the tribunal that in term four of 2008 she replaced Mr Ron Sinclair who was on sick leave and she understood that at the expiration of his leave he intended to retire and that she would be made ongoing. This "replacement" assertion was disputed by Ms Pendergast who set out with some particularity the tasks taught by the complainant during that period. She categorically denied that the complainant took Ron Sinclair's classes when he was on leave. She stated that Mr Sinclair's subjects were English, Science, Geography and Year 7 and 8 SOSE although he had not taught English since 2005.
8. In any event, what Ms Jennings expected following Mr Sinclair's retirement did not eventuate. Around May 2010 she became disturbed when she discovered that another teacher, Cassie Crevola, had been appointed to fill Mr Sinclair's position and was eventually made permanent. She made a series of allegations about the manner of Ms Crevola's appointment which she saw as contrived and to her detriment. It was her view that Ms Pendergast had deliberately added French to the position's subject list to ensure Ms Crevola's selection and to avoid the appointment of an outside "in excess" teacher. These suggestions, including the suggestion that the principal created the position especially for Ms Crevola were all denied by Ms Pendergast. The background to the decision to hire another teacher is set out in Ms Pendergast's second statement at paragraphs 46 to 50.
9. But even if the complainant's assertions were true (and I do not accept them in any event), the decision to hire Ms Crevola and not to offer the complainant an ongoing position at that time cannot have been because of the complainant's pregnancy. That was not notified to the principal until 1 July 2010. Ms Crevola was not called and although the complainant's counsel submitted that the respondent should have done so, his client has the burden and could have called her to substantiate (or deny) what is alleged against her. In the circumstances I intend to disregard Ms Jennings' evidence about the manner of the appointment of Ms Crevola. In like manner I put to one side the hearsay reported by Ms Emanuelle on the same subject. In any event, I infer that what was put in relation to Ms Crevola related to a claim of age discrimination which is no longer pursued although I understand it was said to be indicative of the principal's capacity to bend the rules.
10. Around this time, the complainant discovered she was pregnant. Formal notification to the principal was provided by email on 1 July 2010.
11. The complainant asserts that at the school Christmas party in 2009 Ms Pendergast told her that one of the other teachers, Clive Coomber, proposed to take long service leave and would retire in 2010. The complainant states that Ms Pendergast made it clear to her she would be taking Ms Coomber's position permanently upon his retirement.
12. In late April 2010 the complainant consulted Mr Martina (a union representative) expressing concern about her position. In an email to Mr Coomber on 27 April, she said that "with regard to Mary, I have been to see Peter Martina re my ongoing (or lack of) position. The union are going in to bat for me. They feel 4.5 years is reason enough to be made ongoing ....."
13. Ms Rosemary Crowe is an organizer with the Australian Education Union. She told the tribunal she had been contacted by Mr Martina and by the complainant some time in May 2010. Ms Crowe said that the complainant had some concerns about whether she would be made ongoing and what might be the impact of her pregnancy on that process. Ms Crowe wished to help the complainant and to that end, assisted the union sub-branch to file a motion requesting her permanency. This was sent to the school's consultative committee in May 2010 and at paragraph 6 of her first statement Ms Crowe had this to say -

I was advised by Georgina that the Principal spoke to her about the application, and had stated that she had a moral obligation to ensure Georgina's ongoing position at the school. The Principal reiterated this during a phone conversation I had with her in the week following the filing of the motion. I telephoned the Principal, as the sub-branch had not received any written communication regarding the motion. I was told by the Principal that she had a moral obligation to make Georgina permanent. From the perspective of the AEU, it was more than a moral obligation. There was a clear vacancy. There was also no mention by the Principal at all, regarding any restructuring that was going on, or was planned to occur. The Principal only stated that Clive Coomber had not formally advised her yet that he would resign at the end of his long service leave..........

It was the view of the AEU that Georgina could have been made ongoing at any time following confirmation that Clive Coomber was resigning. I actually telephoned Clive Coomber in about May 2010, who confirmed that he was going to resign in late 2010.

Georgina was an eligible teacher, which meant that she satisfied all the relevant criteria to be made ongoing without having to go through the formal process, as per the Department guidelines. So, there was a clear job vacancy within the school that Georgina could have filled (i.e. Clive Coomber's), she was eligible to fill the role, and the Principal had known that the job vacancy was going to exist.

1. Whilst all of that is likely a correct version of the conversations, the fact is that it was not until 27 August 2010 that Mr Coomber submitted his formal resignation effective as at 8 November 2010. He told the Tribunal that he had not submitted his resignation earlier because first, he wanted to keep his options open to use sick leave and second, there were unspecified personal and family reasons as well. Ms Pendergast told the Tribunal she had regard to the absence of a formal resignation, having had experience in the past of teachers changing their minds about leave and retirement requests.
2. On 24 August 2010 the principal advised the complainant there would be no position for her and she would not be made ongoing. It is the competing versions of this conversation that are at the heart of this matter. But before considering the competing versions, it is useful to consider the evidence of Mr Burns. His role in the school for the past four years (as well as teaching) was that of Daily Organizer and thus the person responsible for staffing.
3. To understand his role I set out below paragraphs 3, 4, 5. 9 10 and 11 of his statement, the details of which were not contested.

As part of my role, I had to plan staffing arrangements. Staffing arrangements depended on the classes that would run the following year. In term 3, students would select their electives. I liaised with the Sub-School managers about the programs they intended to run to best cover the student requests. There were often changes to students' preferences during this part of the process.

Once the students' preferences had been collated, Mary Pendergast, principal, Bryan Wills, Senior School Manager, Julie Owens, Year 9 Manager and I would review the numbers and work out which classes were viable. We had to be careful not to run classes with too few students because of the financial considerations. Warrnambool College was a school in deficit. I had been involved in the College's applications for Workforce Bridging financial support, and had received financial management advice from a Workforce Bridging Officer from the Department.

As the classes were becoming finalised, it was my job to do a mock-up of the staffing to cover the curriculum for the following year. I looked at how we could use existing staff and identified job vacancies. I would meet with the curriculum heads after doing a first complete mock up of staffing, and discuss their suggestions. Mary Pendergast had little involvement in the mock-ups. I was never directed by her, or anyone, to create an allotment for a staff member or not to create an allotment for someone.

1. Mr Burns told the Tribunal he would start work on staffing arrangements in mid-July, at the commencement of term three. He said he would know the compulsory subjects that would run from years 7 to 10 in the following year and very early on in term 3, the senior sub-school manager would be seeking students electives. He said he anticipated the senior sub-school manager would have started with the year 10 electives around 23 August. He described the staffing arrangements as an ongoing process with the "last piece of the jigsaw puzzle" being fitted as late as late November, or early December. When asked whether it would be difficult to predict with accuracy staffing arrangements for the school as at 24 August he stated "you could never be a hundred per cent certain, but, based on the other six years that I'd done the staffing I'd have a fairly good guesstimate after consultations with the sub-school managers as to what was going to run in the electives." He agreed that on 24 August he would not have known about the selection of the leading teachers and would not have factored those into the "mock-up" at that time. He told the tribunal that while he and the sub-school managers had discussions from time to time about areas of need, the principal alone made the decisions whether personnel "are ongoing, fixed contracts or whatever." Mr Burns told the tribunal he had made a number of "mock-ups" or "grids" before the one the principal received on 23 August and in terms of the ongoing process he told the Tribunal "if you consider ongoing discussions that the principal, the sub-school managers and I would have had as to what the loads are, what are our areas of need, so Mary would be familiar through discussions as to what potential areas we had."
2. The complainant's evidence about what occurred on 24 August is set out in her first statement following her evidence about informing the principal of her pregnancy on 1 July.

....I had no further contact from Mary regarding my position until August 24 when she saw me approaching Brad Burns' office. She enquired how my pregnancy was going and what my intentions were regarding maternity leave. She then began discussing my status at the school. She acknowledged that she had promised me permanency however she was no longer going to advertise my position as I was going to be on maternity leave the following year and could not fill the position. She pointed to my stomach and said, "this has changed everything now, you can no longer apply for the job as you are going to be on maternity leave next year so I am no longer going to advertise it as you cannot fill it". I asked why I couldn't be made permanent and someone else fill my role for a year until I came back and she said "no, I cannot do that as you cannot fill it, you will be on maternity leave. She then told me there was one, possibly two applicants from the 'School Captain-Leading teacher positions' who could take on my role. She never mentioned who these people were. She told me she had checked with Tony Bugden from the Department and that she as within her rights to do what she was doing."

1. Whatever may have been the content of the conversation with Mr Bugden, (who was subpoenaed by the complainant) it is clear from his evidence that he has no recollection of the content of the conversation other than it was "about a pregnant employee and employment."
2. In her second statement (in response to Ms Pendergast's) she reiterated her evidence in the following way:

Mary Pendergast glanced up from her computer as she was working and asked me when I was intending on taking my maternity leave. I told her I wanted to see my year 12's through first and then, probably some time in early November. She then commenced telling me about my status at the school whilst I stood at her doorway. She acknowledged that she had promised me ongoing work and pointed to my stomach and said "but this has changed everything." "I am no longer going to advertise the position I said I would as you will not be able to fill it as you will be on maternity leave". The reason I was not given a job was my pregnancy. Not once did she mention anything to do with the restructuring. It was made very clear to me that it was not the restructure or the allocation of leading teachers that meant I would no longer be ongoing but because I was pregnant and would be on maternity leave. She only mentioned the two leading teachers she had hired who could replace me when I asked why she could not make me permanent and get someone to fill my position until I came back.

I had no interest in the leading teacher positions as I had been promised ongoing employment. I had no reason to apply for any work.

1. Under robust cross-examination the complainant did not waver from this evidence. Certainly following that conversation she imparted a similar version of events to some friends and colleagues but I did not find their evidence particularly useful save to say I have no doubt that is what she told them.
2. Ms Pendergast told the Tribunal that when she reviewed Daniel Finn's application for the leading role she deduced it was unlikely there would be a vacancy in Clive Coomber's teaching methods when he eventually retired. (It should be recalled that Mr Coomber's range of subjects was Accounting, Commerce, Legal Studies and Information Technology.) She received the "grid" on 23 August and based on it realised it was likely there would only be one class in Year 11 Business Management and one class in year 12 Business Management. In her statement she explained what followed from her understanding of the grid. She stated -

Having decided on the six House Leader applicants that day, it was clear that there would no longer be a vacancy in Clive Coomber's subjects in 2011. For me, it was a hideous situation knowing I would have to tell Georgina Jennings that there was not going to be a suitable vacancy to offer her in 2011. I knew that she had worked at Warrnambool College for a long time on fixed term contracts in the hope of being offered an ongoing position and, up until that time, I had anticipated that a suitable ongoing position would arise when Clive Coomber retired.

1. Ms Pendergast was equally emphatic about what occurred on 24 August. Relevantly her statement was that she asked Georgina about her pregnancy and that Georgina asked what was happening with her for the following year. She stated that -

I thought I should talk to her before she heard some other way. I told her we had selected a House Leader with senior skills in Accounting and Business Management. I do not remember the explicit words I used, whether I mentioned Danny Finn by name, or the six House leaders, or just 'a' Leading Teacher. I presumed that Georgina Jennings was aware of the House leader recruitment, with all the information that had been given to staff.

I told Georgina Jennings that it was a pretty difficult situation. I said something like we had hoped she would be offered an ongoing position when Clive Coomber retired. I told her that there would no longer be a vacancy when he did. I explained to her that we would not be able to advertise for an ongoing position in the following year.

I did not say that I would not advertise 'her' position because she was going on maternity leave, or that I had hired 'one possibly' two teachers to 'take on the role'. That just was not the case.

I said that things had changed. I did not point to her stomach or say things had changed because she was pregnant. I said things had changed through the recruitment of the Leading Teachers. I was not pointing to her stomach.

Georgina Jennings said she thought it was because of her pregnancy. I told her it was nothing to do with her pregnancy. I said words to the effect "put the pregnancy over here, this has nothing to do with the pregnancy". I told Georgina Jennings that the House Leader positions were not tagged, it was an unfortunate set of circumstances and the system had beaten us

Georgina raised her pregnancy a number of times. I can no longer recall the specifics of what she said, but it was clear to me that she had not understood what I had explained. I repeated the things I had already said several times. I told her that she should contact me when she was ready to return to work after her maternity leave. She was a good staff member and I genuinely was sorry that there was no ongoing position to be able to offer her when her contract ran out.

1. In cross-examination the principal vehemently denied the suggestion that she had pointed to the complainant's stomach or said that "this (i.e. the state of the complainant's stomach) changes everything".
2. She conceded that she tends to gesticulate with her hands and explained that she had consistently told Georgina to "put your pregnancy aside" and may have gesticulated in a sideways fashion. She resolutely denies she pointed.
3. I do not propose to make findings about the accuracy or otherwise of the alleged promises set out in the further amended particulars of claim. Even if the complainant's version is entirely accurate ( and I do not accept it is), the promises themselves are not discriminatory, and they do not of themselves constitute some course of conduct that leads to a conclusion that later action must be seen as discriminatory. As I indicated, I have some doubt as to the accuracy of some (but not all) of this evidence. For instance the suggestion that the complainant was promised she would be made ongoing into John Maddock's role cannot be correct because his absence was only due to the necessity for his cardiac surgery. He eventually returned to his full time position and retired in 2011.
4. I gather from the way the complainant's case was put that the Tribunal should draw an inference that the failure to offer an ongoing position must be seen as discriminatory because the promises were made. That course is simply not open to me.
5. What is clear is that the principal encouraged the complainant to remain at the school, that she had a number discussions with her over time and conveyed that view to her. She certainly confirmed that she spoke to the complainant about Clive Coomber's impending retirement and the likelihood that this would create a suitable vacancy for her. She told Ms Crowe she had a moral obligation to make the complainant permanent. The complainant (and her husband) thought they had something they could rely on and acted accordingly. What changed, from the principal's point of view, was that Clive Coomber's eventual retirement did not create a suitable vacancy.
6. The complainant alleges breaches of various sections of the Act. Section 8 is the most important of these. It provides -

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

1. It is clear from section 6 that pregnancy is a prohibited attribute.
2. Section 13 deals with discrimination against job applicants and provides-

(1) An employer must not discriminate against a person -

(a) in determining who should be offered employment;

(b) in the terms on which employment is offered to the person;

(c) by refusing or deliberately omitting to offer employment to the person;

(d) by denying the person access to a guidance program, an apprenticeship training program or other occupational training or retraining program.

1. Section 14 is headed "Discrimination against employees" and provides

An employer must not discriminate against employee -

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;

(b) by dismissing the employee or otherwise terminating his or her employment;

(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program;

(d) by subjecting the employee to any other detriment.

1. Section 102 deals with vicarious liability of employers and principals.
2. Before turning to the central issue it is necessary to consider a particular amendment dated 3 October 2011 to the particulars of claim filed with the Tribunal. Paragraph 13 of the amended pleading reads as follows:

When the Principal decided that the Complainant was not going to be made permanent by way of offering her what had been the position previously occupied by Mr Coomber, the Principal aware that the Complainant was pregnant, failed to consider the Complainant (an 'eligible teacher') as she was required to do for any suitable vacancy that existed or could be reasonably offered - on a permanent basis. This included failing to consider the Complainant for:-

1. Any of the vacancies she may have been able to fill for 2011 such as those in the year 9 'Phoenix" area in SOSE or English;
2. Any position in year 7 for 2011 that was vacant;

1. The fact that the Complainant was pregnant ought not have prevented this as the position could have been filled in the Complainant's absence by a fixed term contract with another teacher;

1. Any other suitable vacancy in the school for 2011; and/or
2. One of the leading teacher positions.

1. This particular allegation was not before the Commission in the initial complaint and the result is that this Tribunal has no jurisdiction to deal with it. In Kay v Bracks & Ors ( a decision of Vice President Davey - A84/2000) his Honour considered the jurisdictional point at paragraph 18 as follows;

Section124 of the EO Act (this should read s.134) gives the Tribunal jurisdiction to hear a complaint which is referred to it by the Commission under s108, 113, 117 or 123. It has no jurisdiction to hear a complaint unless it has already been referred to the Commission save for a complaint referred to it by the Minister under s111.

1. In Youd-Homes v Milford Hall Pty Ltd & Anor (A357/02, 17 April 2003), Deputy President McKenzie refused an application to amend particulars of complaint. At paragraph 8 of her reasons, she stated-

The power to amend documents given to VCAT must be read in the light of the enabling enactment which confers jurisdiction on the Tribunal in the anti-discrimination area. That enactment is the Equal Opportunity Act. The implication of the scheme of that Act on that power or amendment of documents, is that a fresh series of allegations which are not in the original complaint, and cannot in some way be extrapolated from it, ought not to be brought in by amendment at the VCAT stage, but ought properly to be the subject of a fresh complaint.

There are some cases where the Tribunal has allowed a complaint to be amended and further particulars filed, where it is simply a question of re-characterising in some legal way, facts that are already in the original complaint, or where the original complaint contains an allegation of a continuing pattern of contravention of the Equal Opportunity Act and all that is done is to add that pattern.

1. Such a mere re-characterisation is not the case here.
2. But even if I were able to consider that part of the complaint (and I am not), I could not be satisfied it would be successful. In relation to the positions referred to in paragraph (a), Ms Jennings conceded in evidence these were fixed term positions, offered in November 2010, one for six months and another for twelve months. Dealing with paragraphs (b) to (d), the principal told the Tribunal there were only two ongoing vacancies between 24 August 2010 and the expiration of the complainant's contract in January 2011. One was for a full time teacher of VCAL-Literary Skills (years 7 to 12) and French (years 10-12); the other was for a full time graduate art teacher. The complainant conceded in evidence that neither role was a suitable vacancy for her; furthermore no other ongoing role was advertised in the relevant period. The assertion that she should have been offered a leading teacher role also lacks foundation. Certainly the complainant did not apply for any of those positions but of course her reason for this was that she did not think it would be necessary in any event. However it was clear from her cross-examination that she had given no thought to how she might satisfy the selection criteria. Both Ms Hollis and Ms Pendergast expressed firm views that her lack of leadership training and experience would have precluded her from selection. Ms Hollis stated that she was "not aware of Georgina Jennings doing any of the roles or activities that [she] would expect the applicant to have been involved in........Leading teachers are expected to be involved in the broader school environment as well as having strong classroom teaching practices".'. In concluding that none of the leading teacher positions was a "suitable ongoing position" for the complainant, Ms Pendergast told the Tribunal that the complainant had "never undertaken any of the activities that we had put up for leadership development, she hadn't enrolled in any training that was made available for leadership development, she hadn't taken on any positions of responsibility that the college had put up that were usually the first stepping stones of an interest or the beginning of training......"
3. Paragraphs 10 and 11 of the particulars of claim alleged that after receiving advice of the complainant's pregnancy (1 July 2010) but prior to 24 August 2010 "the School and the Principal recruited, and encouraged new teachers who had never taught at the School before to apply for the permanent position created by Mr Coomber's planned departure and that previously promised to the Complainant. As a result of this recruitment, one to two teachers were employed on a permanent basis at the school. One of these younger teachers, Mr Danny Finn, was employed to take over the Complainant's position on a permanent basis".
4. This is not quite what was put in the original complaint which stated that -

I feel I have also been discriminated against as I was denied the opportunity to apply for any of the positions advertised by the school [presumably referring to the leading teacher positions] as the news that I would no longer be made permanent was delivered to me by the principal, after the selection process had occurred. I have also been told that the principal, Ms Pendergast, knew and personally went out of her way to encourage and recruit the applicant who was given my job (under a different job title). Ms Pendergast had taught this applicant and his sibling and was very aware of what subjects he taught. There are other teachers in the school who are aware of the principal's involvement in recruiting the younger teacher to my role.

1. Leaving aside the differences in versions of the complaint, Ms Jennings plainly viewed Mr Finn's appointment as a ploy to deny her the position she felt she had been promised. The following exchange in cross-examination reveals the basis for this claim.

Q. But you're saying that even though the school advertised for these leading teacher positions with no subject methods attached, Danny Finn was employed to take over your position?

A. He was headhunted. I got that from his sister who was my osteopath.

1. The sister was not called and the proposition that he had been "headhunted" was not put to Mr Finn. He told the Tribunal he could not remember ever being taught by Ms Pendergast and Ms Pendergast had no recollection of having taught him although she knew he was a former student of the college. The complainant suggests that there was something untoward in the assistance given to Mr Finn by Ms Stacey, another teacher at the school. He told the tribunal he sought Ms Stacey's advice on his application at his mother's suggestion. He told the Tribunal he was not aware then or now of any friendship between Ms Stacey and the principal. As far as he is concerned they are merely colleagues. Similarly, the suggestion by the complainant that Mr Finn lacked the requisite qualifications was not made out and indeed was based on an ill-informed understanding of his qualifications.
2. Insofar as it might be thought that the complainant was putting a case that the principal should have just created a position for her, her counsel clarified during the running that this was not pursued.
3. At this point I should say something further about the plethora of hearsay contained in the statements made by the complainant's witnesses. This tribunal is not bound by the rules of evidence but in setting to one side the hearsay evidence presented in this case I am fortified by, and follow, the comments of Bowman J in Golem v TAC (No.1) [2002] 19VR 265. I do so notwithstanding the contemporaneous nature of the evidence given. At p 268 his Honour stated -

The Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record: see s 98(1)(b). However, the rules of evidence are not lightly to be discarded. It seems to me that this is particularly so in a situation such as the present case, where an adversarial approach is being adopted by experienced counsel.

1. Such is the case here. The allegations are extremely serious and potentially damaging and all parties were represented by extremely competent counsel. In the circumstances the tribunal, for reasons which will become clear in subsequent paragraphs) will confine itself to direct evidence and will exclude hearsay from its consideration notwithstanding the contemporaneous nature of some of it.
2. I have no doubt that those witnesses were told by the complainant about the conversation on 24 August but the difficulty is that she was reporting to them her recollection of the conversation which was disputed by the principal in circumstances where there were no other witnesses.
3. Counsel for the complainant made detailed submissions. The main points (excluding exhortations about the validity of various hearsay evidence) are:

Ms Pendergast has reconstructed her version of events to say there was now no vacancy;

The decision made by Ms Pendergast was made on 24 August 2010 without consultation "with any other known individual";

The "mock up" whereby the school can accurately predict what staff can cover what subjects was only undertaken by Brad Burns around September 2010; any mock-up prepared taking into account the leading teachers would not have occurred until September and that anything earlier would not have been a reliable indicator

There is no evidence to suggest that the complainant was not a witness of truth;

Her claim of what happened on 24 August was corroborated by Mr Matina and Ms Emmanuel;

The complainant had no motive to "contrive" the allegation she made;

The evidence of Mr Matina and Ms Emmanuel in relation to the complainant's demeanour post- the 24 August conversation was not disputed;

I should place great emphasis on the notes made by the complainant and the order in which she recorded elements of the conversation that took place on 24 August;

The 44 second phone call from the principal to Mr Tony Bugden, made on 23 August was significant;

Mr Burns, the officer responsible for the "mock up" was not consulted about the decision made by the principal;

The principal conceded that it was possible Mr Coomber could have returned in 2011 (after the appointment of Mr Finn) but this would have meant a deficit;

There was no suggestion in cross-examination that the complainant might have misunderstood what the principal said;

The appointment of Cassie Crevola was evidence that the principal was willing to bend the rules from time to time;

The posting of the principal's version on the Edusafe web site was not helpful to the respondent because of its lack of amplitude.

1. What is clear is that to accept the complainant's version of events I must conclude that Ms Pendergast, a woman of mature years, a mother herself, a well regarded principal well versed in juggling staffing logistics and the vicissitudes of teachers requiring maternity leave, was crass enough to point to the complainant's stomach and state that her pregnancy changed everything and then to dissemble before the tribunal.
2. To accept the submission of the respondents' counsel I must accept that the complainant was less than truthful and that her version was part of an elaborate plan. Frankly I cannot accept either version.
3. I am not assisted by the fact that Ms Jennings told others the same version shortly after the conversation for reasons already set out herein. Likewise I am not assisted by the evidence of Ms Jennings' distress after the conversation as being evidence of the discriminatory conduct. The fact is that, on either version, her world had now changed dramatically. Whether for reasons of discrimination or otherwise, she and her husband were now in a difficult position having made housing moves reliant on future permanency and were now to be reduced to a single income. In either event her distress would have been great.
4. Ms Pendergast has provided a cogent alternative explanation which, whilst manifestly unpalatable to the complainant, is a more probable explanation than the version proffered by the complainant. I accept that explanation. Ms Pendergast conceded that having to tell the complainant that there would be no position for her was a dreadful task and that she found it a difficult and harrowing experience. But by the evening of 23 August it was clear there was no longer any need for extra personnel to teach the particular subjects formerly taught by Mr Coomber and more recently taught by the complainant. Whilst the result was disastrous for the complainant, it was not in my view the product of any discriminatory conduct.
5. I am not persuaded that anything turns on the principal's failure to consult anyone about her decision. After all, it was her job, her responsibility and staffing decisions were, in the end, hers alone to make.
6. Certainly she and Brad Burns had no discussions on 23 August about the mock up and staffing requirements, but what is abundantly clear from the document itself is that there would be a reduction in 2011 staffing requirements in the subjects taught by Clive Coomber. The document indicated there would only be a requirement of one Year 11 accounting class and none in Year 12 due to the paucity of student numbers. Mr Burns' evidence about his experience in relation to staffing requirements is accepted. The fact that the leading teacher appointments were not factored in to the mock up has no effect on the number of students seeking to do particular subjects. Further, Ms Pendergast was not acting in a vacuum in relation to staffing requirements. Mr Burns' evidence (see para 27) confirms that.
7. The entries on the Edusafe website cannot be indicative of anything save that they were made as required. One would not expect chapter and verse.
8. The fact that Ms Pendergast had a conversation with the departmental officer (Mr Bugden) on the day is of no assistance to me. Mr Bugden's only recollection was it was about a pregnant employee. No inference can be drawn from that.
9. The planning for the house system was well underway when Ms Jennings announced her pregnancy. Ms Pendergast told the tribunal when she reviewed the applications for the leading teacher positions on 7 August, she realised that were Mr Finn to be selected, it was unlikely there would be a vacancy in Clive Coomber's teaching subjects when he retired. Mr Finn's curriculum vitae clearly set out his current experience in teaching Year 11 Accountancy, Years 11 and 12 Business Management as well as other subjects.
10. The fact that the union representative took the view that "there was a clear vacancy" in Mr Coomber's position is not supported by the evidence. Mr Coomber's position was not vacant at the time - he had not resigned for reasons he gave the tribunal and did not do so until later on. Similarly I draw nothing from the fact that the "restructuring" was not mentioned in the conversation between Ms Pendergast and Ms Crowe. That information was in the public arena.
11. Whilst one might have views about the manner in which information was conveyed and be critical about education staffing in general, that is not sufficient to sustain a finding of discrimination in circumstances where a more rational and probable explanation is available.
12. On balance I am not persuaded the complainant has made out her case and the complaint is thus dismissed.