Jones v NSW Department of Education and Training [2007] NSWIRComm 99 | Case summary

Jones v NSW Department of Education and Training [2007] NSWIRComm 99 | Case summary | Zoe

1 Ms Jones has been employed by the NSW Department of Education and Training in excess of 18 years. She was appointed as a School Administrative Officer (SAO) at Chatham High School in Taree in July 1997. Ms Jones has worked in the library at Chatham High School from her commencement at that school. Ms Jones previously worked in various roles as a school administrative officer at other schools in the district prior to her appointment to Chatham High School ("the School"). 2 The application in this matter was filed on 1 December 2005 and first came before the Commission on 14 December 2005. The matter was subject to further proceedings on 30 January 2006 and 27 February 2006, resulting in directions for hearing over 3 days in April 2006. 3 The matter did not proceed in accordance with this schedule. The applicant sought to bring proceedings pursuant to s 106 of the Industrial Relations Act 1996 ("the Act"). 4 The s 106 application (matter no IRC 2300 of 2006) caused the parties to enter into conciliation proceedings pursuant to s 105 of the Act. The parties mutually sought deferral of these proceedings whilst they attempted to resolve all matters between them. 5 The parties were unable to reach a resolution and hearing subsequently commenced in this matter on 26 March 2007. 6 At hearing Dr J Berwick of Counsel, instructed by Mr L Hagan, solicitor of Baker Borthwick Solicitors, appeared on behalf of Ms Jones, the applicant. 7 Mr J Murphy of Counsel, instructed by Mr A Murphy, solicitor of the Crown Solicitor's Office, appeared on behalf of the NSW Department of Education and Training ("the Department"). 8 In an amended application (Ex 4) the applicant seeks an order for: 1 . Allowing the employee to remain away from the Chatham School workplace on full pay until the employer relocates and restores the employee to her accustomed position in a Library in a nearby school such restoration to include equal opportunity to progress and advance; 2. In the alternative, relocation of the employee to a similar support position in a nearby school; 3. In the alternative, relocation of the employee to a similar support position in a nearby administrative office of the employer; 4. Compensation of any shortfall in pay, additional costs of transport (travel compensation) and associated loss of amenity due to the relocation and for time lost awaiting relocation; 5. Compensation for any shortfall in earnings an employee in her circumstances would have been entitled to receive with normal progression but for the victimisation; 6. Appropriate restraints on the employer against future victimisation and against demands to supervise school children; 7. Interest and costs of this Application. …… and claims an order for payment of the sum of $8,426.80 plus interest being for:

9 The particulars of victimisation are set out in the following terms (Ex 4): 1. Victimised for raising industrial matters per Crown Employees (School Administrative and Support Staff) Award (s 210(1)(e)) 2. Victimised for raising Occupational Health and Safety issues about the workplace lack of proper supervision of school children, called upon to supervise when not trained teacher nor employed as such (s210(1)(j)) 3. Further particulars of victimisation - see attached Statement of Employee 10 The attached "Statement of Employee" referred to is a statement of 46 paragraphs and attachments signed by Ms Jones on 11 November 2005 and filed 1 December 2005 (Ex 1). This is supported by an affidavit of 32 paragraphs and attachments (Ex 2) signed by Ms Jones on 19 March 2007. 11 The application is further detailed in correspondence from Baker Borthwick Solicitors to the Department dated 25 January 2006 (Ex 8) which states: We reply to your request for further and better particulars as follows: 1. The employee relied on the following award conditions of employment beneficial to both employee and employer: a) Clause 4.12 Classification - The employee was employed and paid as a School Administrative Officer but was required to supervise students in the Library on her own, beyond that classification and without proper training and supervision as was the employer's past practice but increasingly so. b) Clause 5 Rate of Pay - The employee was not paid for those "duties" of direct student supervision. c) Clause 3.3 - When the employee complained of the above, she was victimised and harassed by her supervisors. She was transferred from her workplace against her wishes. d) Clause 11 - The employee was not afforded proper training for her student supervision or for her transfer to front office. e) Clause 12 - She was not paid any higher duties allowance for duties beyond her classification. f) Clause 13 - She was not afforded proper performance management as would justify a transfer. g) Clause 14.1.1 - (ii), (iii) and (iv) - The employer did not show flexibility in accommodating the requirement of staff for student supervision and ultimately transferred staff against their wishes. h) Clause 15 - The employer did not abide by the agreed resolution of dispute as to student supervision. The employer then did not permit the employee any dispute resolution arising from the transfer to front office against her wishes.

& 3. B (2): The employee complained to the OH&S Committee on 25 February 2003 and 2 April 2004 and was threatened with a transfer by the employer. See paragraph 23 of the employee's statement and the annexures. 12 Dr Berwick brought oral evidence from the applicant; Ms W Bevan and Ms H Engeler, SAO's at the School. Dr Berwick tendered evidence in the form of affidavits from Ms C Ladmore, casual teacher/librarian at the School; Ms J Curtis, SAO at the School; and Mr M Sinclair, Acting Regional Organiser for the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA). Ms Ladmore, Ms Curtis and Mr Sinclair were not required for cross examination. 13 Mr Murphy brought evidence from Mr P Fitzpatrick (Retired), Principal of the School during the relevant period; Ms S Ballard, Relieving Deputy Principal at the School; Ms R Sheather, School Administration Manager (SAM) at the School; Ms A Alliston, Relieving Deputy Principal at the School; and Ms S Colditz; School Counsellor at the School. 14 The application in this matter arose from the transfer of Ms Jones from the library to the front office on 26 July 2005. 15 Ms Jones took sick leave on advice of her transfer, returning to work in the front office for four days prior to taking further sick leave. Ms Jones complains that personal property left in the library was packed up by other staff. An application for worker's compensation has been declined by the relevant insurer, subject to other proceedings. 16 Ms Jones contends that the transfer was a retaliatory act of victimisation as a result of her refusal to supervise and/or be responsible for students using the library in the absence of teaching staff. 17 Ms Jones deposes that she found great satisfaction in her duties in the library and had undertaken a two year TAFE course, successfully completing Certificate lll in Education Support - School Assistant (Library) in August 2002. 18 The evidence is that Ms Jones first raised her concern that she was being left to supervise students shortly after appointment to the School. 19 In correspondence dated 30 January 1998 (Ex 1, attach. D) Ms Jones sought clarification of her position with regards to supervision of students in the following terms: My duty statement allows me to monitor students when in the direct supervision of a teacher and on the occasion when the Teacher/Librarian is periodically absent. I am happy with the duty statement with my interpretation. The word periodically is a short period of 10 to 15 minutes. 20 The issue was one of ongoing contention between Ms Jones and school administration from that time. The issue was subject to direct negotiation between the PSA, on behalf of Ms Jones, and the School Principal. 21 In February 2003 Ms Jones was absent from work due to acute anxiety which she puts was a result of the hostility towards her and the intransigence of the School's administrators over the issue. 22 Attachment G to exhibit 1 is a return to work plan for Ms Jones dated 16 April 2003 which included a condition that Ms Jones not monitor students for any longer than 15 minutes. 23 In April 2003 the PSA documented the outcome of discussions with the then Acting Principal of the School, Mr Linegar, in resolution of the issues in correspondence dated 4 April 2003 (Ex 1, attach. H.) which states: Further to our recent meeting of 1 April, 2003 concerning the return to work plan for Jenette Jones, I confirm that the following working arrangements in the library were agreed to. · Jenette will monitor students in the library for short periods of 10 to 15 minutes duration when the Librarian has to leave the library for personal or school-related matters. · The Principal or executive staff will provide relief for the Librarian on those occasions when she has to leave the library for long periods (i.e. lunch breaks, executive meetings etc) when student supervision is required. · In the event that the Librarian intends to conduct school business outside the library beyond 15 minutes, the Librarian will clear the library of students and close the library. · Jenette's line supervisor is the Senior School Assistant with a consultative working relationship with the Librarian.

Please confirm that this is a true record of our agreement for Jenette's role as a SASS worker within the library. 24 This arrangement was never confirmed by Mr Linegar, whom it is put subsequently refused to sign off on the document. 25 The evidence of Mr Fitzpatrick, Principal of the School during the relevant period, is that he had not seen this correspondence, though understood that the arrangements detailed therein were those which applied and on which he had acted. 26 Mr Fitzpatrick's evidence is that the PSA further suggested that if Ms Jones ever felt uncomfortable due to an extended absence by the teacher/librarian she could withdraw to her office, close the door, and use one of either of the two telephones in that space to contact the Principal, either of the Deputy Principals, or a head teacher for assistance. 27 The evidence of Mr Fitzpatrick is that he instructed the teacher/librarians that should they need to consult with class teachers to plan library classes, this should be undertaken in the library so far as practicable, and that they should otherwise minimise their absence from the library. 28 Ms Jones' evidence goes to particular detail of absence from the library of teacher/librarians Mr Mills, Ms Burgett and Ms Ballard, who held the position sequentially over the eight year period Ms Jones was assigned to library duties. 29 The evidence establishes that classes inclusive of a class teacher are timetabled into the library for the majority of time; and that the propensity for students to be in the library in the absence of a teacher is low. It is further established that in the absence of the teacher/librarian it is most unlikely that Ms Jones would be the only member of staff in the library as SAO's assigned to audio visual support functions are located in an office immediately adjacent to the area occupied by Ms Jones. 30 Ms Jones deposes that she was concerned and at times intimidated by student behaviour, asserting that fighting, improper behaviour and misuse of computers to access inappropriate material were regular and frequent occurrences, which she regarded beyond her responsibility; adding that she was neither trained nor paid to supervise students. 31 These assertions by Ms Jones are simply not made out on the evidence. It is not denied that at times students may be boisterous and that on the introduction of computers into the library in around 2003 inappropriate and distasteful material was left as screen savers. Ms Jones deposes that she brought this to the attention of Ms Alliston, now relieving Deputy Principal at the School, then Head Teacher Physical Development, Health and Physical Education. 32 Ms Alliston's evidence is that Ms Jones did in fact bring this issue to her attention, deposing that she and other staff teachers were somewhat shocked and surprised by the material available to students on the internet. Ms Alliston's evidence is that the matter was subsequently subject to consideration by the School executive, resulting in policy and protocols which removed the capacity for this form of computer misuse and the problem was resolved. 33 It is contended that the issue of Ms Jones being left as the only adult in the library was raised with the School's Occupational Health and Safety (OH&S) committee, however, all the evidence discloses is that Ms Jones raised some concern with the placement of a computer server in the proximity of her work area, expressing a view that her health could be adversely effected by the presence of the electrical equipment. 34 In her evidence Ms Jones deposes that she was sensitive to the issue of being left alone having been traumatised by an experience when working in a hospital in the 1970's; and had felt threatened and disturbed by the presence of particular students, one described as a large boy, and another suffering from Asperger's Syndrome. 35 The evidence is that there was no foundation for concern, the large boy having left the school in 2002 and on the evidence of Mr Fitzpatrick there was no valid basis for concern. The student suffering from Asperger's Syndrome was under the constant supervision of a teacher or teacher's aide. 36 The large boy referred to by Ms Jones was identified by Mr Fitzpatrick as one who had been involved in an unfortunate incident wherein a former pupil entered the school grounds and, in an exchange with the boy, the former student fell and died. The evidence of Mr Fitzpatrick is that the death was caused by an inherent medical condition and that no blame or culpability could or was attributed to the student concerned. 37 The evidence of Mr Fitzpatrick puts the assertion of culpability advanced by Ms Jones as a gross misrepresentation. 38 The evidence of Ms Jones is that she was threatened with removal from the library from the time she first raised her concerns over the distinction between monitoring and supervising. Her evidence is of a head teacher speaking angrily to her, saying words to the effect: "I haven't got time for this nonsense";

Your duties are, as they always have been, to help run the Library efficiently and to report any worries or doubts you my have to your Head of Department, to the Librarian, to the relevant executive or to the nearest accessible teacher. 42 Ms Jones asserts that Mr Fitzpatrick resolved to remove her from the library as a consequence of complaints made by Year 12 students to him and by their parents to the Parents and Citizens Committee that Ms Jones would not allow them to use the library for study purposes unless there was a teacher present. 43 The evidence of Mr Fitzpatrick is that he resolved this complaint and reiterated to Ms Jones that she was not responsible for student supervision. 44 Mr Fitzpatrick deposes that he put to Ms Jones that a distinction should be made between senior school and junior school and that Year 12 students should be afforded the opportunity to use the library unless and until they showed themselves unworthy of that trust. 45 It would appear this approach was not accepted by Ms Jones. 46 In her second affidavit (Ex 2) Ms Jones attests that she has suffered further detriment since her departure from the School. 47 The evidence of Ms Jones is that as her position at the School became impossible she applied for a compassionate transfer, nominating a list of eight schools. 48 Ms Jones was transferred to Coopernook Primary School ("Coopernook") in 2005 as a "supernumerary" pending permanent transfer. 49 Ms Jones' evidence is that she felt isolated and "discarded" by her employer, adding that there was no victimisation, bullying, or problems with other staff at Coopernook, representing an improvement over Chatham High School. 50 During her time at Coopernook Ms Jones pursued her compassionate transfer request, which she deposes led to only two attempts by the Department to offer her a placement. 51 Ms Jones' evidence is that the first of these was on or about 8 June 2006 to Old Bar Primary School. Ms Jones deposes that Old Bar is a separate town to Taree and was not on her list of eight nominated schools. Ms Jones deposes that she was given 24 hours to accept or reject this position, which did not afford her enough time to confer with her doctor or trade union, or meet with the Principal of Old Bar School to discuss the duties expected of her. 52 The evidence of Ms Jones is that she sought an extension of time and was informed that the Department would not disadvantage someone else by holding the position open for her. 53 Ms Jones deposes that she became aware of vacancies at schools on her list. Baker Borthwick Solicitors pursued enquiries on her behalf, resulting in a response from the Department on 27 July 2006 in the following terms: Without prejudice save as to costs

We look forward to your response within the next seven (7) days. 55 Baker Borthwick were advised by the Department that they had misunderstood the correspondence and that no offer had been made and acceptance on terms was repudiated. A position at Wingham High School was identified for which Ms Jones could be considered for appointment and her interest was sought. The response from Baker Borthwick was to insist upon appointment at Cundletown and payment at the relevant rate of pay until she took up duty. 56 Ms Jones gives further evidence of disappointment in not being consulted in respect to a position at Wingham Primary School and discussions during the course of conciliation which resulted in consensus that appointment to Wingham High School would be unsuitable. 57 Ms Jones deposes that she commenced monitoring the Department's web site to see if she was being deliberately ignored as she believed that, having regard to her length of service, her compassionate transfer was meant to have priority. 58 Ms Jones deposes that she noticed a vacancy at Wingham Primary School which she had twice indicated she would accept if offered, and a vacancy at Taree Public School, also one of the eight nominated by her. Ms Jones was not offered either vacancy. Her evidence is that her name appeared on the staff roster for Wingham High School, despite what she put was a clear understanding that this school, although on her list of acceptable schools, was not suitable. 59 On 17 January 2007 Ms Jones was advised that she had been appointed to Wingham High School by the Director General, from which there was no appeal, and she should commence from the start of the first term of 2007. 60 Ms Jones expressed further disappointment that she was not consulted. 61 Ms Jones deposes that she was advised to contact the principal of Wingham High School in respect to detail of duties. The principal was not available to speak with Ms Jones until the end of January 2007. Ms Jones deposes that she was advised that the position was in the library, four days per week, and that her duties would be as directed by the principal. Ms Jones made specific enquiry as to the existence of a separate study area for senior students and was informed that senior students would be in the library. 62 Ms Jones deposes that she consulted her doctor who issued a certificate that she was unfit for work from 30 January 2007 to 28 February 2007. 63 Ms Jones deposes that on 12 February 2007 she noticed an appointment to Wingham Primary School on the Department's web site by transfer from Wingham High School. Ms Jones postulated that this was not a compassionate transfer and that her application should have priority. 64 At the time of proceedings Ms Jones has not taken up the position at Wingham High School 65 The affidavit of Ms Wendy Bevan (Ex 10) describes her involvement in relevant events in the following terms: 12. When Louise Burgett left Chatham High, she was replaced by Susan Ballard.

…I deny that Mrs Bevan or Mrs Drury are replacing Mrs Jones and I say that the nature and the role occupied by Mrs Jones has been significantly changed to accommodate the skills of the administrative support staff and the library management plan. Mrs Jones has missed the significance of the fact that the position she had in the library no longer exists in the form she occupied it in. Mrs Bevan is no longer in the library and was moved to accommodate her documented work assessment. 71 Mr Fitzpatrick denies emphatically that the decision to remove Ms Jones from the library was made in any retaliatory sense. His evidence is that a reduction in student numbers led to a reduction in allocation of staff resources; the immediate effect of which was that one of the SAO's, Ms Sharon Smith, lost her position entirely, and a review of duties for remaining staff was undertaken. 72 The evidence of Mr Fitzpatrick is that the School had been experiencing a reduction in student numbers for some time and that review of duties and practices was a continuing requirement. 73 Ms Jones asserts that this review was undertaken without consultation. The evidence is to the contrary. All SAO's were provided with a questionnaire (Ex 1, attach. NN) asking them to indicate their preferences. All staff indicated a number of preferences except for Ms Jones who indicated a preference for the library only. Seven other staff also expressed an interest in working in the library. 74 These preferences were subject to discussion in one on one interviews, described by Ms Jones in her evidence as "chat sessions". The ultimate redistribution of duties was determined by Mr Fitzpatrick on recommendation from a committee comprising the Deputy Principal and Senior School Administrative Manager. 75 The evidence of Ms Helen Engeler (Ex 12) recounts her involvement at the School in staff re-organisation in June 2005. 76 Ms Engeler deposes that a meeting of all School Administrative Service Staff (SASS) was convened by Ms Eden, Deputy Principal, and Ms Ballard on 9 June 2005. Ms Engeler deposed that this meeting was necessary because of continuing conflict amongst all office staff, both in the front office and the library. 77 Ms Engeler describes a process of positive communication in which there were many constructive suggestions that would possibly help to define roles and responsibilities. Ms Engeler deposed: We were then asked by the convenors to fill out forms concerning areas where we had worked and would be prepared to work. I recall the term "multi-skilling" was used. 78 Ms Engeler's evidence confirms that follow-up interviews took place, and that she was asked to complete a questionnaire concerning her work conditions and future work positions. 79 Ms Engeler deposes that she was informed by a footnote to the questionnaire that a meeting would take place in week 9 regarding an action plan for the rest of the year; during week 10 a copy of roles/job allocation for the following semester would be distributed; and that information gathered during the previous fortnight, plus from consultation with head teachers etc, would be used by Mr Fitzpatrick to make decisions. 80 Ms Engeler deposes that at the meeting held in week 9 SAO's were told of transfers without consultation, resulting in anguish by some that they would be transferred to different roles, and disappointment by one that she had not been given the opportunity to be multi-skilled but was to remain in her existing position. 81 The evidence of Ms Engeler is supported by that of Ms Jenny Curtis (Ex 18). 82 Ms Curtis' evidence is that in her role as SAO she participated in the process described by Ms Engeler. Ms Curtis deposes that she was happy to move as she was keen to gather experience in different roles as she had been told that it would be good for her career. 83 Ms Curtis deposes that to her knowledge no-one was asked if they were agreeable to the changes and she was surprised that there had not been further consultation. 84 The evidence of Ms Curtis is that she was aware that Ms Jones was upset and had gone on leave and that whilst she was on leave her things were removed from her work area and packed up in anticipation of her move to the front office. 85 The evidence of Ms Ballard is that Ms Jones deliberately left items in the library as a means of resisting her move to the office. Ms Ballard deposes that it cannot be said that property of Ms Jones was removed from her work area as the library was no longer where Ms Jones worked. 86 Ms Curtis has since moved from the cashier's office to the AV room and then to the front office. 87 The evidence of Ms Sue Colditz is that she has been employed as a school counsellor at the School for two days per week since January 2002. In her statement of evidence (Ex 22) Ms Colditz put that during the time that SASS positions were being varied she attended a staff meeting conducted by Ms Eden and Ms Sheather as a passive support person for Ms Jones. 88 Ms Colditz deposes that staff were asked to complete a questionnaire which requested an indication whether staff were prepared to work in any other areas. Ms Jones responded that she was not willing to move from the library. 89 Ms Colditz put: At the said meeting, Ms Jones was given an opportunity to speak. Ms Jones also asked for clarification of what was likely to happen following the meeting and was in turn advised that all the relevant information would need to be gathered prior to a decision being made and that each member of staff would be contacted after a decision had been made. Ms Jones was also advised that the decision was ultimately that of the Principal, Mr Peter Fitzpatrick. Ms Jones was at no time given any guarantees that she would continue being employed in the library. 90 Mr Fitzpatrick's evidence is that he did not accept all recommendations immediately, moving some people and deferring movement of others. His evidence is that the reallocation of administrative officers was undertaken to meet the needs of the School, involving redesign of some jobs, and taking the opportunity to cross skill and multi-skill staff in order that immediate relief could be found for critical functions in the event of absence of any particular staff member. 91 Ms Jones was assigned to the front office where she worked for four days. She has not returned to the School since then. 92 Ms Jones' evidence is that she was not provided support or assistance to undertake front office duties, however, in contradiction to that proposition, asserts that it was a demotion as she had done the type of work at Taree High School some eight years before, and did not wish to return to it. 93 Mr Fitzpatrick further refutes the notion of retaliatory transfer, deposing that he relied heavily upon the support of front office staff and had more direct contact on a day to day basis with them than any other area of the School. Mr Fitzpatrick further deposed that experience in school finances obtained by working in the front office is a necessary attribute for promotion to School Administrative Manager, and this provides a career path opportunity for Ms Jones. 94 Ms Jones filed an affidavit in reply (Ex 5) to the evidence brought by the Department. In responding to Mr Fitzpatrick's evidence Ms Jones put (Ex 5, para 2(i)): The Principal may not have intended to victimize me but his actions and those of his officers have caused me distress of which he should not have been unaware due to prior workers compensation reports, industrial actions, other staff complaints about the same issue. He would have known from previous history that his final action in moving me would have caused me further distress. SUBMISSIONS

95 Dr Berwick submits that the evidence disclosed that Ms Jones continually and persistently complained that she was inappropriately required to supervise students throughout her employment at the school. 96 Dr Berwick submits that the issues of student behaviour, misuse of library computers, and concern over her duty of care liability raised with the OH&S committee had a safety component such as would attract the jurisdiction of the Commission pursuant to s 210 of the Act. 97 Dr Berwick puts that Mr Fitzpatrick viewed Ms Jones' refusal to allow unsupervised senior students in the library as a direct affront to his authority and drew complaint from the Parents and Citizens Association (P&C), which Dr Berwick submits brought issues to a head, resulting in the rearrangement of SASS duties shortly thereafter. 98 Dr Berwick submits that the detriment suffered by Ms Jones is the subsequent psychological trauma occasioned by her removal from the library; and the fact that Ms Jones was forced to abandon a job for which she had specialised qualifications and which was her chosen career path. 99 Dr Berwick does not dispute that there had been a reduction in student numbers and consequently reduction in SASS hours, however, contended that the purpose of multiskilling staff advanced by the Department must be looked at sceptically. 100 Dr Berwick puts that Ms Jones was already multi-skilled and perceived her move to the office as going backwards in her career to a job she previously held at Taree High School. 101 Dr Berwick relies upon the evidence that Ms Jones was the only SASS staff member who wished to remain where she was, and the fact that Ms Drury was upset to be directed to undertake part of those duties formerly undertaken by Ms Jones in the library, to attack the integrity of the staff re-organisation. Dr Berwick submits that the disquiet produced by the re-organisation supported the conclusion that it was really a retaliatory measure by Mr Fitzpatrick in response to Ms Jones' refusal to accept his authority and the complaints by the P&C concerning library access for senior students. 102 Dr Berwick submits that Ms Jones' employment record of 18 years loyal service should be taken into account in her favour when assessing this matter. 103 Dr Berwick refers to the definition of victimisation contained in Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 applied in Alley v Camnex Pty Ltd T/as Combined Nursery Sales [2005] NSWIRComm 357: A Full Bench of this Commission defined victimisation to mean to 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. 104 Dr Berwick further relies upon paras 393 and 394 of Alley: 393 There is clear evidence that Mr Alley was "demoted" from the management team and had his remuneration significantly reduced in retaliation to his raising of issues of compliance with the award.

105 Dr Berwick submits that the onus is upon the employer to show that the alleged matter was not a substantial and operative cause of the detrimental action, which he contends it failed to establish. 106 Dr Berwick asserts that the Department had not provided a single item of documentary evidence to support its assertions that the re-organisation of SASS duties was not a response to the complaints of Ms Jones. 107 Dr Berwick submits that Mr Fitzpatrick's evidence that he followed the recommendation of Ms Ballard and Ms Eden acting in committee conflicts with the evidence of Ms Ballard (noting that Ms Eden was not called to give evidence) that they merely made recommendation to the decision maker (Mr Fitzpatrick) prevents a clear finding of responsibility for the decision making process. Dr Berwick submits that in the absence of such clear finding it cannot be held that the employer has discharged its onus of proof that the substantial and operative reasons for the transfer were not those proscribed by s 210(1) of the Act. 108 Dr Berwick contends that in the absence of the employer adequately discharging its onus of proof, the presumption of victimisation in s 210(2) compels the orders sought. 109 Mr Murphy submits that the issue of monitoring versus supervising students raised by Ms Jones had been resolved in 2003. Mr Murphy relied upon the evidence of Mr Fitzpatrick that he had worked to the arrangements documented with the then acting principal, Mr Linegar, and that nothing turns on the fact that the document was not signed by a representative of school management. 110 In support of his submission Mr Murphy relies upon Ms Ballard's evidence that Ms Jones made no direct complaints to her, and more significantly, the lack of any evidence of a situation in which Ms Jones was actually supervising students. 111 Mr Murphy describes the submission that the validity of the desire to multi-skill staff falls down as Ms Jones was already unskilled as holding an air of unreality as Ms Jones had not worked outside the library for eight years and the work she would be required to undertake in the front office was quite different to that which she had undertaken in the "side office" at Taree High School. 112 Mr Murphy puts that it is plainly wrong to assert, as Ms Jones has, that the re-organisation of SASS staff followed complaints concerning access for senior students to the library. Mr Murphy submits that the process of re-organisation of staff in response to falling student numbers was commenced prior to the complaints. 113 Mr Murphy puts that the evidence is that Mr Fitzpatrick raised complaints by students and the P&C concerning access to the library with Ms Jones on 25 May 2005, whilst the evidence is clear that the issue of re-organisation was under discussion at SASS meetings from 18 March 2005. The minutes of that meeting (Ex 1, attach. AA) note that SASS hours had reduced to the point that Ms Smith had to leave the School. The minutes note that: "That means there will need to be a reallocation of her workload amongst the remaining SASS. How the workload is to be distributed (from the beginning of term 2) is still being decided." 114 Mr Murphy relies upon the evidence of staff meetings, survey, and individual discussions to refute the assertion that there was a lack of consultation. Mr Murphy submits that: (TR pp 13, 14 29/3/06) Consultation does not mean the right of veto in each individual employee, that everybody has to agree and sign off before something can be implemented; that is not what consultation requires. Even if those criticisms were valid, and we say they are not, that does not create victimisation. That does not support a finding of victimisation. It may well be that the reorganisation created some level of unhappiness amongst individuals, although the evidence of that is that it was a mixed reaction. Indeed, one of the applicant's witnesses, Ms Curtis, was entirely happy with the reorganisation. Of course, she recognises - and it is in her written statement - that that reorganisation allowed her to become multi-skilled, allowed her to develop the skills that she might want for promotion. And that is entirely consistent with what Mr Fitzpatrick said, entirely consistent with what Mrs Sheather and Mrs Ballard said. 115 Mr Murphy refutes the assertion that the transfer of Ms Jones from the library was unfair, putting that in any event the question of fairness is not a relevant consideration in these proceeding, which are directed at whether Ms Jones suffered victimisation or not. 116 Mr Murphy submits that the Department had met the evidentiary burden of establishing that the substantial and operative reasons for the transfer of Ms Jones from the Library were not those subscribed by s210 of the Act. Mr Murphy puts that the evidence is clear that Mr Fitzpatrick made decisions on the recommendation of staff and that the criticisms advanced by Dr Berwick are ill founded. 117 Mr Murphy submits that analysis of the particulars provided by Baker and Borthwick in exhibit 4 reveal that there is no benefit sought pursuant to the Award that would enliven s 210(1)(e) of the Act; nor is there a safety issue named which would enliven s 210(1)(j) of the Act. 118 Mr Murphy acknowledges that Ms Jones raised matters with the OH&S Committee in February 2003 and April 2004 but there is no evidence of any such issue raised in 2005. 119 Mr Murphy submits that there is no basis for a conclusion that OH&S matters raised by Ms Jones could constitute the basis of victimisation. 120 Mr Murphy submits that the evidence of reference of matters to the OH&S Committee by Ms Jones is limited to three occasions. 121 The first is in correspondence of 25 February 1999 (Ex 1, attach. O) in which supervision of students is referred as a safety issue. This matter is not taken up again. Further references to the OH&S Committee are on 24 February 2003 concerning placement of electrical equipment (Ex 1, attach. S) and on 2 April 2004 (Ex 1, attach. T) which concerns the loss of SASS hours in the library and restrictions upon Ms Bevan shelving books. 122 Mr Murphy submits that the issues raised in 2003 and 2004 are entirely unrelated to the issue of student supervision central to this matter; and that it is tenuous to suggest that transfer from the library was retribution for an issue raised six years earlier. 123 Mr Murphy submits that s 210(2) requires that an employee or prospective employee has suffered detriment as a result of actions of the employer in order to access remedy provided by s 213. 124 Mr Murphy also relies upon Twentieth Superpace Nominees (156 IR at 336, also relied upon by Dr Berwick above) as authority for the proposition that access to remedy pursuant to s 213 of the Act requires detriment. 125 Mr Murphy notes that in Twentieth Superpace Nominees the employer had refused to offer employment to a person who raised OH&S issues, occasioning the detriment of unemployment upon the person, thus enlivening s 213 of the Act. 126 Mr Murphy also relies upon the circumstances in Davis wherein the Full Bench considered the term "victim" in the following terms (81 IR at 380, 381): We observe in passing that the ambit of the 1940 Act was narrower than that of the 1991 Act. In our opinion, the failure to define "victimise" or "victimisation" in the 1996 Act does not have the result of narrowing the definition in the 1991 Act. Indeed, the omission probably has the effect of extending the former meaning so as to comprehend any act of victimisation within the meaning of that word as ordinarily understood. The words "victim" and "victimise" are defined in the Shorter Oxford English Dictionary (Vol 2) as:

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--

167 Section 210 of the Act states: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (1b) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000 , or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 168 The enforcement provisions are found in s 213 in the following terms: (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (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, (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, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. Out of Time

175 Twentieth Superpace Nominees is adequate authority that to enliven the provisions of s 213 of the Act it is necessary for the applicant to demonstrate detriment. 176 Dr Berwick puts that the detriment suffered by Ms Jones was twofold. Firstly that she was denied the position in the library; and secondly the psychological condition resulting therefrom. 177 The application seeks orders placing Ms Jones in her preferred employment in a school library; returning Ms Jones to her previous position; and restoring her leave entitlements taken as a consequence of the loss of the library position. 178 It is not open to hold that the position in the library was the personal province of Ms Jones and that loss of that position is a detriment to her within the meaning of the term used in s 210 of the Act. 179 Ms Jones was employed pursuant to the Crown Employees (School Administrative and Support Staff) Award (2005) 351 IG 374 ("the Award") in the classification of School Support Officer. In this position Ms Jones is required to work in any number of tasks and locations within the school to which she is appointed. 180 The instruction to Ms Jones to take up duty in the School's front office was a lawful and reasonable instruction by the Department which did not involve any loss of remuneration or loss of any other lawful entitlement or benefit to Ms Jones in her employment. 181 The fact that Ms Jones refused the instruction and suffered psychologically is not in the circumstances of this case a detriment for the purposes of s 210(2) of the Act. 182 The only medical evidence is a comprehensive report dated 19 August 2005 by a clinical psychologist, Dr Constantini (Ex 1, attach TT) who diagnosed Ms Jones as suffering adjustment disorder with acute anxiety. The report notes that Ms Jones appears fit for a graduated return to work without restriction, and a prognosis that Ms Jones' condition would progress further into remission in the next two to four weeks. The report attributes no culpability to the employer. 183 Addressing the orders sought I note that Ms Jones is directed to take up a position in the library at Wingham High School which it would appear is what is sought in part by Order 1, i.e.: …until the employer relocates and restores the employee to her accustomed position in a Library in a nearby school

193 I am satisfied on the evidence that the conduct of Ms Jones was not a substantial or operative reason for her reassignment. 194 The evidence of Mr Fitzpatrick and Ms Ballard is clear and unequivocal that the School was required to reassess support staff on a continuing basis due to falling enrolments. There was a process of consultation and discussion. There would appear to be a misunderstanding of the consultative process by Ms Jones. Consultation should seek consensus where possible, however, where this is not possible management retains the obligation to manage and, while assisted by the process of consultation, ultimately must make decisions in accordance with the needs of the school, not the preferences of employees. 195 Ms Jones held no lawful right to retention of the library assistant's position above all other considerations. 196 The issue of monitoring compared to supervising students was one of particular concern to Ms Jones. The arrangement with Mr Linegar, followed by Mr Fitzpatrick, is a sound and reasonable approach. Ms Jones was never required to supervise students and there is no evidence of any event where Ms Jones was required to instruct, direct, discipline or otherwise engage with students in a supervisory role. 197 There is similarly no evidence of Ms Jones ever reporting errant behaviour by students to the principal or any other teacher on occasions she was left in the library with students. It was within her responsibilities to monitor students and I find she was provided with adequate distinction between monitoring and supervising and a definite instruction to monitor student behaviour and to call for a teacher whenever she felt the circumstances required. This is clear from the evidence of Mr Fitzpatrick and Ms Ballard, the latter having given written advice to Ms Bevan and Ms Jones. 198 In the absence of evidence I am unable to conclude whether Ms Jones declined to adopt the course as instructed, or whether the circumstances of behaviour requiring report never arose. 199 I find that Ms Jones has not been victimised by her employer and refuse the application for relief. 200 The application for costs is also refused. oo0oo

Jones v NSW Department of Education and Training

At a glance

Court

Decision date

Before

Source

Judgment (66 paragraphs)

Parties

Cases Cited (8)