In our opinion, It is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise'' in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment".
127 Mr Murphy relied upon the circumstances in Mullin v Catholic Education Office [2003] NSWIRComm 4; CFMEU v Ace Scaffolding [2004] NSWIRComm 13; Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202; and Alley v Camnex where he puts the detriment suffered by the applicants was real.
128 Mr Murphy submits that the present matter is distinguished by the absence of detriment to Ms Jones. Mr Murphy submits:
Now in this case, the alleged detriment was the requirement that the applicant perform work in the front office as opposed to the library. There was no alteration to her hours, no reduction in pay or classification; the applicant herself acknowledged that the SAS staff including herself, can be required to work anywhere in the school and the applicant also accepted that the work that she would have been required to do had she ultimately accepted that move, was within her duty statement.
129 Mr Murphy submits that the employer issued a lawful direction to Ms Jones to relocate to another work area, a direction it was entitled to issue in accordance with the duty statement of the employee and in accordance with the Award.
130 Mr Murphy submits that a detriment contemplated by s 210(2) of the Act could not arise simply because Ms Jones did not wish to comply with the lawful direction of the employer. Mr Murphy contends that to find otherwise would be an unprecedented intrusion upon management's obligation to manage.
131 Mr Murphy addressed the available remedies to amplify his argument that Ms Jones had not suffered a detriment.
132 Section 213 empowers the Commission to:
(a) order the reinstatement or re-employment of an employee,
(b) order the employer to promote or otherwise advance an employee in his or her employment; which does not arise in this matter;
(c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone
133 Mr Murphy submits that analysis of the monetary claims in this matter against s 210(2)(c) further demonstrates that the matter falls outside the area of victimisation as there is no monetary loss to Ms Jones.
134 Ms Jones initially claimed payment for 40 days sick leave, amended to 50 days by exhibit 4. Mr Murphy submits that Ms Jones was paid her sick leave entitlements as claimed by her. Mr Murphy submits that there is no basis for a second payment to Ms Jones arising from victimisation proceedings.
135 The second claim made is that worker's compensation payments made by the insurer be refunded to it with interest.
136 A claim is also made for reimbursement of medical costs.
137 Mr Murphy submits that these amounts might be relevant to proceedings in the worker's compensation jurisdiction, but not in this matter.
138 Mr Murphy notes that Ms Jones is not happy about the way in which her worker's compensation claim has been dealt with, however, that is a matter for other proceedings, not here.
139 The other remedies provided by s 210(2) of the Act apply to prospective employees, threats, and conduct of registered industrial organisations, which he puts do not arise here.
140 Mr Murphy submits that Ms Jones' complaints concerning the supervision of students cannot be regarded as claiming the benefit of an industrial award for the purposes of s 210(1)(e); nor can they be regarded as a complaint about a workplace safety matter such as to bring them within s 210(1)(j).
141 Mr Murphy submits that this is amply demonstrated by the documentary material presented by Ms Jones (Ex 1, attach. D) which recognises her duty to monitor students in the absence of a teacher.
142 Mr Murphy submits that this is supported by correspondence from the PSA to Ms Jones (Ex 1, attach. N) which states:
In regard to the part of the statement of duties that deals with monitoring role of school assistants when a teacher is periodically absent from the library, it should be noted that monitoring means that school assistants are not required to discipline and take action other than report to a teacher or librarian.
143 Mr Murphy submits that in all of the dialogue and correspondence between Ms Jones and the School management there is no articulation by Ms Jones of a safety issue.
144 Mr Murphy refers to correspondence dated 25 February 1999 (Ex 1, attach. O) in which Ms Jones asserts that she was instructed that the library was not to be closed in the absence of a teacher and that she would be responsible. Ms Jones put:
The department does not cover, pay or train SAS to supervise students nor do I have time.
145 Mr Murphy notes that this correspondence does not raise a safety issue, putting further that Ms Jones remained in the library long after 1999 when this exchange occurred.
146 Mr Murphy further relies upon notes of a meeting of the School's executive on 28 February 2003 (Ex 1, attach. Q), which states:
Library Classes go with their teacher to the library. Year 12 will have access to the library in free periods unsupervised every period of the week. Teachers check with Louise if they wish to send small groups.
… …
…net reduction is 1.5, .5 Chris Ladmore, Anthony Martin nominated transfer from mathematics. Reductions is expected to continue over several years due to small year 7, 10, relocation of Support Unit in future. Can't reduce additional support positions eg library, careers, STLD.
147 Mr Murphy submits that this documentation of 2003 confirms that the issues of library management and re-organisation were active and progressive over an extended period of time; and that the relocation of Ms Jones from the library arose from the changing needs of the School, not as a retaliatory reaction toward her.
148 Mr Murphy relies further on documents attached to Ms Jones' statement. These are attachments O, H, G, and attachment B to exhibit 5, which reveal that the issue of monitoring versus supervision of students was resolved in 2003 and not raised again by Ms Jones in any form.
149 Mr Murphy refers to attachments U, V, W, B, X, Y, AA, and C which are records of meetings and discussions between SASS from 2003 onwards to 2004 dealing with reactions to loss of staff resources and consultation on workplace issues.
150 Mr Murphy submits that despite ample opportunity to do so, neither Ms Jones nor anyone else raises the issue of supervision of students in any way.
151 Mr Murphy further relies upon the evidence of Ms Jones, in particular attachments F and GG to exhibit 1, which he put supports the evidence of Mr Fitzpatrick, Ms Ballard and Ms Sheather, that extensive consultation took place during the reorganisation,
152 Mr Murphy puts that the circumstances do not arise above that of an employee unhappy that she can not have her own way, who nevertheless must, by her contract of employment, follow the lawful direction of the employer in a re-organisation driven by student numbers which determine the School's needs.
153 Mr Murphy submits that it is entirely commonplace that teachers and other staff be flexible in the duties they undertake.
154 Mr Murphy submits that the evidence supports a finding for the purpose of s 210(2) that the substantial and operative course of the decision complained about were the operational requirements of the School, not the complaints of conduct by Ms Jones.
155 Mr Murphy submits that to find otherwise would require a conclusion that Ms Jones has been the victim of an elaborate conspiracy and that the Department's witnesses had further conspired to perjure themselves in these proceedings.
156 Mr Murphy puts that the evidence does not support such a finding even on the comfortable satisfaction test enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336.
157 Dr Berwick submits that the Department had not met the statutory onus imposed by s 210(2) to rebut the presumption of victimisation.
158 Dr Berwick relies upon Twentieth Superpace Nominees which he puts provides substance and guidance in addressing the onus of proof. Dr Berwick submits that Twentieth Superpace Nominees makes clear that the onus is upon the employer (156 IR at 337 where the Bench said):
47 Further, we consider that North J in Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 at 181 correctly stated the purpose of the reverse onus provisions as follows:
In advancing the objects of freedom of association, Parliament has taken a view about the proper balance between the parties in relation to the discharge of the obligation of proof. Conduct is treated differently from the reasons for it. A reverse onus on the issue of the reason for conduct makes good sense because the reason for the conduct is a matter peculiarly within the knowledge of the respondent.
159 Dr Berwick takes offence at the suggestion by Mr Murphy that there was an assertion of conspiracy or perjury made against the Department's witnesses. Dr Berwick puts forcefully that no such allegations are made and are not necessary in this matter for Ms Jones to be successful.
160 Dr Berwick takes issue with the submission that just because an employee raises a safety matter it does not become a safety issue, putting that for the purposes of s 210(1)(j) this is an incorrect formulation.
161 Dr Berwick puts that the proper consideration of s 210(1)(j) is that if an employee raises any matter as a "safety" matter, s 210(1)(j) is enlivened.
162 Dr Berwick contends that Ms Jones continued to have safety concerns over the supervision of students which were known to the School's executive.
163 Dr Berwick relies upon the evidence of Ms Ballard in cross examination to support this submission. Dr Berwick did not have the benefit of transcript when making the submission. The evidence of Ms Ballard appears in transcript in the following terms (TR pp 6 and 7, 28/3/07):
Q. Now Ms Ballard, you tell us in your affidavit that in paragraph 6(b) that you were painstakingly aware of Ms Jones' concerns. You see that there?
A. Yes. Yes, I've got it. Yep.
Q. Now the painstaking efforts that you made to meet her concerns related to her concerns about her view that she was required to supervise students, didn't they?
A. The concern of - as - monitoring as opposed to supervision, yes.
Q. Well she had concerns about supervision, but you present it as monitoring, don't you?
A. Yes.
Q. And those concerns that she had over which you took such care, you say, extended over the period that you were the librarian, didn't they?
A. Yeah. Yes.
Q. So she had, on that basis, discussions with you from time to time over those three years expressing her disquiet at what she saw as her having to supervise students, didn't she?
A. I don't think the period was three years, because I wasn't in the library for three years.
Q. I think counsel Mr Murphy counted them off as three years--
A. Yeah. Yeah.
Q. --but--
A. I just--