Paula Lee v Ausgrid

The Mediation 14Mr Trew submitted that a mediation process arranged by the Respondent seemed to have gone "off the rails" as there was an apparent misunderstanding amongst the persons involved of how it should be conducted. The information provided to Ms Lee about the mediation indicated that the Applicant and Mr Newbery would have an individual session with the mediator, Ms Wendy Buchanan of PPC Worldwide, prior to being brought together to hold joint discussions regarding their concerns and improvement in their working relationship. The individual session would be used to assess their primary concerns, their readiness to participate, and setting the agenda and working out how best to phrase the concerns so as to achieve the best possible outcomes. 15The Commission was advised that the mediation did not progress past the point where Ms Lee was asked to indicate what she wanted to achieve out of the mediation. A written document was developed setting out the outcome of each of those sessions. 16On 7 July, 2009, Ms Lee sent an email to Ms Barbara Graham, Manager-Human Resources, to follow up on the mediation process as she had not heard anything further about the mediation a number of weeks after her session with Ms Buchanan. 17On 21 July 2009 Ms Lee received a phone call from Ms Graham who advised that she had not replied to the email because she had been off sick. Ms Graham advised her that she needed to discuss the matter with Mr Ross Callas, (Corporate HR) Industrial Relations Advisor. 18Ms Lee met later on the same day with Ms Graham and Mr Callas. Mr Callas stated that Ms Buchanan had informed them that Ms Lee was not willing to participate in mediation. Ms Lee said she was extremely shocked at that statement as she was the one agitating for the mediation process to proceed expeditiously so that she can return to her duties in a safe environment. In addition, it was not the impression she got from Ms Buchanan and she could not understand why Ms Buchanan would make such a comment. She advised Mr Callas that she would contact Ms Buchanan to clarify her position. 19Ms Lee telephoned Ms Buchanan who confirmed to her that she did not say that the former was unwilling to participate in mediation. Rather, she had advised the Ms Graham and Mr Callas that it was Mr Newbery who indicated that he did not see any value in mediation. 20Mr Trew pointed out that Ms Buchanan gave evidence in the proceedings and confirmed Ms Lee's willingness, readiness and anxiety to mediate. Mr Newbery also stated in his affidavit that Ms Lee subsequently stated she was prepared to work with Mr Newbery. 21Mr Trew pointed out that it was at the mediator's invitation to set out what she wanted to achieve out of the mediation that Ms Lee responded that she wanted an apology from Mr Newbery. Mr Trew argued that what she wanted to achieve was the ambit and it was then up to the mediator to work out the possibilities. The mediation never got to that stage. 22Based on both the written and oral evidence before the Commission, I accept that Ms Lee was willing and eager to participate in the mediation. I also accept that Mr Newbery did not favour going down the mediation path. I accept that Ms Lee, and no doubt Mr Newbery if he had agreed to participate, would have had certain expectations in relation to the outcome but that is not a sufficient reason to abandon the mediation. It is up to the mediator to steer the course of the mediation towards a settlement of their differences and diffuse any unachievable expectations.

Redeployment 23On 12 August 2009, Ms Lee attended a meeting with Colin Locking (Manager of the Section in which Ms Lee, Mr Newbery and Mr Kelly worked), Helen Buscombe (Manager-Culture and Performance) and Ross Callas. 24Later that day, Ms Lee was handed a letter signed by Ms Buscombe confirming the advice she had received at that meeting that she had been officially classified as a redeployed employee "due to the completion of your assigned role with IAMS field computing section within the ETAT division... Helen Buscombe has been assigned as your case manager and will facilitate your progress through the redeployment program. Your entitlements while on the redeployment program are outlined in an attached procedure document...". 25Mr Trew pointed out that there had been no previous indication given of any redeployment and that the contents of that letter are important in that the stated reason for the redeployment was no longer a reason maintained by the Respondent. 26On 27 August, 2009 Ms Lee was advised in writing by the Respondent that she was being transferred to the Standards and Communication section. 27Ms Lee complained of victimisation as she was the only employee in the IAMS computing section to have been reclassified as redeployed despite the fact that the projects were continuing.. Mr Trew contended that the reclassification and the transfer were subsequent to, and as a consequence of, Ms Lee making the complaints about the workplace being unsafe. 28It was pointed out that, as a consequence of that redeployment, she can, pursuant to the Respondent's Policies, be made redundant; her salary can be reduced after 12 months; and her career disadvantaged by the loss of skills/knowledge/experience over time as a result of her redeployment to an unrelated position. 29The 12 month salary maintenance period has since expired although the Respondent has maintained the salary maintenance to date. 30Mr Trew submitted that the effect of the redeployment on Ms Lee is that she lives in apprehension that she can be terminated due to redundancy at any time or have her salary reduced following a transfer to another position. In addition, the Applicant lives in apprehension that, in the present political climate, her employment could be terminated.

Issues for Determination 31The parties were in agreement that there are essentially two matters which the Commission must determine in this remitted hearing: (a)has the Respondent rebutted the presumption which applies by virtue of s 210 (2) of the Industrial Relations Act 1996? (b)If the Commission determines that the Respondent has not rebutted the presumption, should the Commission make any of the orders which are sought by the Applicant. 32Mr Trew submitted that the Applicant is seeking an order for reinstatement under s 213. Further, or alternatively, an order enforcing the provisions of section 210, Freedom from victimisation, and, in particular, that the Respondent provide the applicant with suitable work and cease her redeployment and such further or other orders. 33It was not disputed that a s 210(1)(j) complaint had been made by Ms Lee. Mr Darams pointed out, however, that one then needs to consider the effect and the operation of s 210(2). The presumption under section 210(2) is rebutted if the employer... satisfies the Commission that the complaint that was made by Ms Lee was not a substantial and operative cause of the detrimental action. Ms Lee considers that the detrimental action is her redeployment. 34It was also not in dispute that the redeployment could be found to be some act that might make out the victimisation claim. There was no dispute that a complaint was made; the issue is the causal connection if some detrimental action had occurred. The focus will be on whether or not the complaint which was made in April 2008 was a substantial and operative cause of the redeployment in August 2009. 35Mr Darams pointed out that the additional later evidence provided by Ms Lee was irrelevant because the redeployment process and what has happened since her redeployment was not on trial. Mr Darams pointed out that the Commission is required to decide the above two issues at this remitted hearing, first and foremost being the fundamental issue as to whether or not Ms Lee was chosen for redeployment in August 2009 because she made a complaint about a workplace matter that she considered was not safe. 36It was pointed out that the first Full Bench decision effectively accepted that there was only sufficient work for two members of the team. The issue that had to be determined by Bishop C was why Ms Lee was chosen for redeployment in August 2009 and not one of the other members. 37Mr Darams submitted that the timing of the various events are all relevant to the initial and the fundamental point as to whether or not the reason for Ms Lee's redeployment in 2009 was because she made the complaint. If the evidence of Mr Locking persuades the Commission that Ms Lee's complaint was not a substantial and operative cause for her redeployment, then the Respondent would have rebutted the presumption, the Commission will be satisfied that Ms Lee was not victimised and in that circumstance it will not need to consider the issues of the appropriate remedy or what remedy should be ordered. If the Commission is not persuaded by Mr Locking's evidence on that aspect then it has exercise its discretion as to whether or not some remedy is appropriate in the circumstances of the case. 38The Respondent acknowledged that there were some deficiencies in the case it initially led through its personal staff. 39The Respondent therefore sought to adduce further evidence, in particular and more specifically, to address the matter which the Full Bench said Commissioner Bishop failed to consider.

The Evidence 40Mr Ross Callus Mr Ross Callus has been employed by the Respondent as an Industrial Relations Adviser, Human Resource Division since June 2009. In July 2009 he was requested to assist in a grievance lodged against Mr Newbery by Ms Lee and he was provided with background information held by Ms Graham. The information mentioned the involvement of a mediator. On 16 July Mr Callus telephoned Ms Buchanan to establish what stage the mediation reached. She explained that the meeting with Ms Lee had not been a mediation meeting but was a pre-mediation meeting to determine common ground, Ms Lee's desired outcomes and to assess whether a mediation meeting would assist the parties to reach a satisfactory resolution. Ms Buchanan's evidence belied this statement. On 21 July 2009 the parties were still talking about mediation as evidenced in his affidavit of 11 February 2010 wherein he reported on a meeting held on that day with Ms Graham and Ms Lee. He stated in his affidavit, "...I reiterated M/s Buchanan's views that her meeting with M/s Lee had been a pre-mediation meeting only, a mediation meeting would involve both parties and there was no point in convening a mediation meeting until M/s Lee accepted the findings of the investigation and that an apology from Mr Newbery was not warranted." It was pointed out that there was no mention at all by Mr Callus in his affidavit, and this had to be extracted from him in cross-examination, that Ms Lee protested at that meeting that it had not been said at all hadn't been said at all in that meeting with Ms Buchanan. On 31 July, unbeknown to Ms Lee, Mr Callus attended a meeting with Mr Newbery and Ms Helen Buscombe, former Manager, Culture and Performance Human Resources Division to determine Ms Lee's employment status as she had not been working in the IAMS field computing section in Roden Cutler House since approximately March/April 2008. Ms Lee, unlike the other two members of her team, is a graduate Engineer although all three members of the team were undertaking exactly the same work. Mr Trew argued that, as there was no requirement for any particular qualification, the excuse/formula used to get rid of Ms Lee - namely, that there was no further work for a project engineer, was unacceptable. 41Mr Sydney Newbery In his affidavit, Mr Sydney Newbery advised that he had been employed as the Manager of Project, Business Improvement Group of Energy Australia when he swore his second affidavit. He was made redundant in August 2011. Mr Sydney Newbery said that he was informed by Mr Jamieson that Ms Lee, as project engineer, would be reporting to him as a resource to work on initiating and delivering designated field computing projects for emergency service officers and district operators. There was also the emerging field computing requirement highlighting the upcoming IAMS projects that were said to be completed round about 2009. Mr Newbery stated that Ms Lee had not returned to work for him. She lodged a complaint on 17 April 2008 and continued to work elsewhere while the complaint was being investigated. He continued to work with IT & T with Mr Newcombe and Mr Kelly and were still working there on 31 July 2008. Mr Newbery denied that he made a statement that he was not going to participate in the mediation nor did he explain that the work was run down, was finished. During further cross-examination, Mr Sydney Newbery said he informed his supervisor, Mr Locking, in about mid 2009 that there was not enough work to occupy himself and Mr Kelly. Mr Sydney Newbery gave evidence that after Ms Lee was redeployed, he and Mr Kelly kept working, having been reassigned other work. He had requested that Mr Kelly be transferred, under similar circumstances to himself, from the defunct division, to work with him. From about June/July 2009 he was transitioning into business analysis. Mr Kelly assisted him in those functions which gradually increased. It involved sitting down with the clients and talking through their business processes, what they were trying to achieve, what outcomes they were trying to achieve, documenting all of that and then going away and working with them on improving those processes, applying those processes to systems, systematising them - all in an effort to improve productivity. He eventually became completely engaged on that work. He confirmed that he had been doing that work without being appointed to the position until he was appointed to another position in 2010. Mr Sydney Newbery confirmed that in about June/July 2010 he had begun to pick up other work beyond the projects that were coming to an end and, as Mr Kelly's supervisor, had allocated work to him probably around August or September 2010. He confirmed that Mr Kelly was doing business analysis but did not prepare business cases during the period of Mr Sydney Newbery's management of him. He also confirmed that Ms Lee prepared two business cases while he was managing her. He agreed that Ms Lee also participated in some of that work while she was working under his supervision but only in relation to the field computing projects. He agreed that it involved similar techniques and called for similar skills. She was also identifying business opportunities when she was working with him but only up to the point that they were writing business cases. In fact the three of them were involved in whatever work was available at the particular time when she was working for him. During re-examination, Mr Sydney Newbery clarified that the two business cases Ms Lee had worked on where in respect of field computing for district operators and the field computing for emergency services. She started them prior to him taking over as her Manager in December 2005 and they had worked together on finishing them and submitting them to the Respondent's IT group for approval and funding. Mr Sydney Newbery identified three Project Status Reports he had generated - two dated 8 July 2009 and a third dated 1 March 2010. The first was an end of financial year status report on the Field Computing for District Operators Project; the second was a monthly status report on the Field Computing for Emergency Service Officers Project; and the third was a monthly status report on the Field Computing for Emergency Service Officers project. All three reports were prepared for distribution to all of the project stakeholders and deposited electronically in the Central Team Room. The third report informed all stakeholders that the project was 100% complete and was distributed in a similar manner including to the project sponsor, Mr Locking and the project clients. He was not redeployed rather, he was transitioned into another position. He agreed it was a seamless transition into the other work until it ran out and he kept his title as Manager Field Computing until well into 2010. Mr Kelly was the project manager when he was working with him in field computing and kept that title up until the time that Mr Newbery was appointed to a new position. He was not redeployed either and was also seamlessly transitioned a little bit later than himself into the same area. He confirmed that Mr Kelly helped him in all the work he did throughout the time from the middle of 2009 until both were both appointed to new positions sometime in 2010. They continued to work together in the new area to which both were appointed and Mr Kelly continued to work in that same position after Mr Newbery was made redundant. Mr Sydney Newbery was cross-examined at length in relation to the redeployment of Ms Lee. He stated that he attended a meeting with Mrs Helen Buscombe and Mr Callas on 31 July 2009, the date on which a decision was made by them to redeploy Ms Lee. He agreed that he informed both of them that he did not have any work for an engineer grade 2. He confirmed that Ms Lee was the only engineer grade 2 working in his section albeit they were all essentially doing the same work. At that stage, he argued, he was only responsible for one person as Ms Lee had not reported to him for a year because she had been working somewhere else. He acknowledged that the only engineer who had ever worked in his section was Ms Lee. He denied emphatically that he was intending to infer that he had no work for Ms Lee as the only impression he was attempting to convey at that time was that he had no work for an engineer despite the fact that Ms Lee was the only Engineer working in his section. He pointed out that there was more than one engineer in Energy Australia. TREW: I am suggesting to you that you did not want to work again with Mrs Lee in July 2009? A. No, I wouldn't say that. Q. I'm suggesting to you that you didn't want to work with her because she had made a complaint against you that you'd bullied her and you regarded that complaint as unreasonable? A. Yes, I - I agree with that. Q. Because she had made that complaint that you were regarded as unreasonable you didn't want to have to work with her again? A. No, I don't. I don't agree with that. Q. It was your view in July 2009 that the relationship between you and Mrs Lee had completely broken down? A. Yeah, I agree with that. Q. It had completely broken down in your view because of the complaint Ms Lee had made against you? A. No. It was because a mediation had never taken place and there was no resolution to the situation that we had. Q. The situation that hadn't been resolved was the unreasonable complaint in your view that Ms Lee had made against you? A. Yes. Q. And it was because that had not been resolved that you regarded the relationship as having completely broken down? A. Yeah. I think that it, yeah, be true. Q. True? A. Yeah. In his most recent affidavit, Mr Sydney Newbery included a statement that he advised Mr Locking that there was not sufficient work in the Field Computing section to keep himself and Mr Kelly fully employed. He agreed that he had not made such a statement in his earlier affidavit. He grudgingly admitted, during cross-examination, that it was an important omission that he had made from his first statement. 42Ms Barbara Graham Ms Barbara Graham, Manager-Human Resources for Engineering Transmission and Technology Division in Sydney since 2005, attached In her affidavit a copy of the report from Holding Redlich, the Solicitors who carried out the investigation. Mr Trew pointed out that Ms Lee had been asking for that report for a long time and had been refused access to it. The report suggested that workforce counselling may be of assistance resulting in Ms Lee being advised in writing, on 3 October, 2008, that mediation had been arranged. On 27 May 2009 Ms Lee confirmed via email that she was willing to participate in the mediation process. It is noted that the delay in commencing the mediation process was occasioned by the fact that the Applicant had accepted a recommendation from the Public Service Association (PSA) (as confirmed by the PSA in writing to the Respondent on 16 October 2008) that she decline mediation for the present. Ms Graham reported in her affidavit that, on 11 June 2009, Ms Lee attended a pre-mediation meeting with Ms Wendy Buchanan. On 7 July 2009, she sought information on the progress of her mediation from Ms Graham by email. Mr Trew pointed out that her inquiry was significant in that, far from not being willing to participate in it, Ms Lee was wanting to know what was happening. Ms Graham said she forwarded a request to EA's Industrial Relations Branch, Mr Ross Callas, who was assigned to the matter. She met with Mr Callus to provide him with background information. 43Mr Colin Locking Mr Colin Locking was employed by Energy Australia from December 1970 until 13 August 2010. He held the position of Executive Manager Network Finance & Commercial Operations from August 2005. In January 2007, as a result of a restructure in the predecessor of the engineering group, he was given the added responsibility for the Network Business Systems, a section of which was the field computing projects. Mr Trew pointed out that the evidence of Mr Locking was important because he was the person who decided on Ms Lee's redeployment. There were three field computing projects. Mr Sid Newbery was managing the first two projects which aimed to provide the emergency service operators and district operators with computing technology in their vans (screens and computers) to enable them real time access to Energy Australia systems and records while in the field. 44During cross-examination, Mr Locking confirmed that after Ms Lee was redeployed, Messrs Newbery and Kelly stayed on in the computing projects group. Mr Newbery continued in the role of Manager and Mr Kelly continued reporting to him. Both continued to report to him and continued, in the main, to bring the field computing projects to a conclusion. as well as doing whatever work they could find. He stated that he had asked Mr Newbery to look around the division to find other work that he and his team could do and there was nothing. He agreed that entry systems, processes and procedures leading into automating time entry systems across his division was another area being considered just prior to his departure from Energy Australia. Mr Newbery was engaged on looking, at a very preliminary stage, at the possibility of improving productivity across timesheeting when Ms Lee was redeployed but it did not proceed much beyond that. As far as he was aware Mr Kelly was engaged purely on the field computing projects during that time. 45Mr Locking confirmed that neither Mr Newbery nor Mr Kelly were redeployed under his management. He denied that they were found other work to do after Ms Lee was redeployed insisting that "They continued to work on the projects they were already working on primarily" as their main activity. He stated that he continued to look into what other improvements they could make in the division and the end result was that there was none. 46Mr Locking also confirmed that he became aware, about a month or so after she lodged the complaint, that Ms Lee had complained in April 2008 that she had been bullied by Mr Newbery. He was kept informed, by other officers of the Respondent, as to the progress of that complaint. He acknowledged that it was his responsibility to know what was going on. He was also aware that there had been an investigation into her complaint which had determined that the complaint was not substantiated. He was also aware that in September 2008 Ms Lee had been required by Ms Graham, Manager-Human Resources, to participate in mediation to improve the working relationship between her and Mr Newbery. He was further aware that the mediator had interviewed both Mr Newbery and Ms Lee and understood that Ms Lee, as at July 2009, wanted to participate in that mediation. He said he was usually made aware of the progress after the event. 47He agreed that Mr Callus was responsible for the industrial relations aspect of things and Mrs Helen Buscombe was responsible for Ms Lee's redeployment. He could not recall whether Mr Callus briefed him about his dealings with Ms Lee. He recalled that Mr Callus reported to Ms Graham, Manager-HR. He recalled that Ms Graham informed him that Ms Lee had told Mr Callus that she would follow Mr Newbery's instructions if she was returned to work with him. 48Mr Locking could not recall discussing Ms Lee's complaint with Mr Newbery. In her briefing to him, Ms Graham told him that Mr Newbery believed that the bullying complaint against him was unjustified. Mr Locking was also aware that Mr Newbery's view was that the working relationship between him and Ms Lee had completely broken down and one of the major factors that caused it was the former's bullying complaint against the latter. He denied, however, that he decided that the best way to resolve the problem was to redeploy Ms Lee. 49Mr Locking recalled the memo to him from Helen Buscombe dated 24 July 2009 about the redeployment of the Applicant. Attached to that memo was a plan of action to implement the redeployment. Mr Locking recalled that he rang Ms Buscombe on 24 July during which they had a discussion about the redeployment of Ms Lee and agreed that Ms Buscombe would prepare a procedure for redeploying Ms Lee. He agreed that the decision to redeploy Ms Lee had been taken as at 24 July 2009 and all that then remained was its implementation. 50It was suggested to Mr Locking that the decision to redeploy Ms Lee was taken on 24 July 2009 before there was any discussion with Mr Newbery on 31 July about no work being available for Ms Lee in his section and a determination being made that her current position was redundant. Mr Locking gave evidence that prior to that sequence of events, about a week or two earlier, he had requested Ms Buscombe to look within the organisation, and in particular within the IT department, for any other field computing roles or work that could be undertaken by Ms Lee in particular and the team in general because the whole team was running out of work. The response he received was that there was none. He agreed that the discussion with Ms Buscombe had not been referred to in the memorandum of 24 July 2009 nor was it referred to in either of his affidavits. He insisted that the conversation had taken place, he acknowledged that it was an important decision yet it was not recorded. He insisted that such conversations take place all of the time in organisations. 51Mr Locking did not recall the email he received from Mr Russ Callus dated 12 August 2009, to which was attached a Redeployment Tracking Sheet Paula Lee document. 52Mr Locking identified the Energy Australia Deployment and Redundancy Policy that applied in 2009. He agreed that paragraphs 1.1, 2.1 and 3.1.1 made reference to the roles of managers such as himself. He explained that he had not undertaken those roles in relation to Ms Lee because he had involved Mrs Buscombe, Corporate HR, to implement this policy. Nevertheless, in accordance with paragraph 3.1.1, he had regularly reviewed the work that was going on in his group, focusing on Ms Lee in particular and field computing in general. In particular, he identified that there was a deteriorating level of work. He asked Mrs Buscombe to find out if there was any more field computing work for Ms Lee. In relation to paragraph 3.1.2 which requires that the manager outline the organisation structure required to perform the work and document appropriate staffing levels and skills, Mr Locking argued that the structure had already been defined and was not changing. Staffing levels were set at three but he was aware that there was not sufficient work for three and he also knew that there was not sufficient work for the remaining two as time went on. He agreed that he had not documented the above, as required by the Policy, pointing out that it was the role of the HR Manager and Corporate Manager to implement the policy and not his direct role. Mr Locking conceded that he had not personally complied with the provisions of paragraph 3.3.3 of the policy which requires that relevant unions be contacted if there was to be a redeployment. 53Ms Lee was still discussing, after 21 July, with Mr Callus and Ms Graham proceeding with the mediation to allow her to return to work with Mr Newbery when, on 24 July, Mr Locking decided to redeploy Ms Lee. He confirmed that he did not consult with Messrs Newbery or Kelly about whether they should be redeployed nor did he call for volunteers from that team because he was not intending to redeploy them: LOCKING:. Because the facts of the matter are that Ms Lee had ceased to work in the team and would not work with her own supervisor therefore she was not participating in the work of the team. TREW: Now let's take just the part in the middle - she wouldn't work with her supervisor. You knew that she had told Mr Callas that she was prepared to work with him? A. Then she changed her position. Mr Locking pointed out that her preparedness to work with Mr Newbery had been made conditional on receipt of an apology, or admission, from him. 54Mr Locking stated that the key factors he had taken into consideration were - the limited amount of field computing work; the low likelihood of more field computing work becoming available; continuity of involvement in existing projects and contributions; the likelihood that existing field computing work would cease altogether in the near future; and that the field computing section would shortly be disbanded. It was suggested to Mr Locking by Mr Trew that those considerations were a recent invention, fabricated after the Full Bench decision as they were not included in his evidence in the initial proceedings before Bishop C. He denied that the bullying complaint against Mr Newbery was a factor that influenced him to redeploy Ms Lee. 55Mr Peter Farrell Mr Peter Farrell, Executive Manager, Workforce Relations for Ausgrid, explained that Annexure A to his affidavit was not the Respondent's Redundancy and Redeployment Policy but rather was a practice note or procedure for managers to guide in implementing redundancy and redeployment. 56Mr Farrell could not recall when it was that he discovered that the wrong document was attached to his affidavit although his affidavit was available to be read before Bishop C in March 2012. He denied that he was aware that it was the wrong document at the time the proceedings were on foot before Bishop C. It is noted that the actual policy is attached to the Ausgrid agreement 2010 and has not altered since 2003. Mr Farrell forwarded a group email in August 2010 (the day before the proceedings came on before the Full Bench) addressed to Mr Murray Taylor, Employee and Administration Manager of the Distributions Operations and Reliability Division of Ausgrid who was responsible for all IT vacancies within that division; Mr Phillip, the HR Manager in the Transmission Systems and Operations Division; Anthony Stuart, from the Shared Services Division; Paul Beger, the HR manager for the Systems Planning and Regulatory Division (for vacancies in the engineering disciplines). Also copied into that email were the one up managers - Mr Brown is Mr Taylor's Manager and as well as being responsible for the HR in the Distributions and Operations and Reliability Division. He was also responsible for the finance and accounting part of that division. Mr Farrell sent another email on 13 September in a further attempt to find work for Ms Lee. It was addressed to Mr Edwin Shaw who runs a large proportion of the IT department in terms of computing systems and his immediate Manager, Craig James, the Executive General Manager of the Finance and Corporate Division. 57Mr Phillip Hall Mr Phillip Hall, Resources Manager-Transmission and Systems Operations, gave evidence that he held a meeting with Ms Lee on Thursday 25 August 2010 at which he handed her a letter instructing her to go and work with Mr Jamal Cheema. He stated that he would have drafted it in conjunction with Ausgrid's legal representatives. Mr Hall stated that he had advised Ms Lee that he had found her meaningful work and the letter provided her with directions in terms of her redeployment. Mr Hall insisted that Ms Lee said she rejected the letter, pointing out that that's what the whole court case was about; that the organisation did not have a right to treat her as a redeployed employee; that the court case and the requirement for him to find her work were not separate issues and Ausgrid should not be treating them as such; and that she would be referring the letter to her lawyer. She suggested that any determination about her future should wait until after the Court case has been decided. Mr Hall confirmed that he told Ms Lee that if the directive in the letter was not complied with then disciplinary action would be taken, or potentially could be taken, against her. Mr Hall also confirmed that he asked Ms Lee what she was doing on a day to day basis. He said that, initially, she had not responded and he had to ask the question a number of times before she responded that she had told him that on a number of occasions already via emails and through Mrs Rochow that she had been segregated since the end of April the previous year. Mr Hall did not recall her saying anything to the effect that the people she had been working with had recently moved away to another part of the building and just left her there without telling her anything about what was going on. 58Mr John Newbery Mr John Newbury, Manager/Customer Assistance Services with Ausgrid, confirmed that Mr Filacourdis commenced in late September 2008 as a contractor whose contract has been renewed on an annual or six-monthly contract since his initial appointment. Mr Newbery stated during cross-examination that he did not know exactly what Ms Lee was doing when she was in Mr Sydney Newbery's group and therefore could not comment on whether or not Ms Lee used to do the work that Mr Filacourdis now does. 59 Ms Paula Lee Ms Lee gave evidence in relation to her qualifications and also the training in software development for SAP - the first in a series of courses that will bring me to certification level. Mr Trew referred to the affidavit in reply of Ms Lee during which she explained that she was appointed to the position of project engineer field computing in December 2004, a computer oriented position, to prepare and coordinate the implementation of the Energy Australia project to deploy IT screen based technologies to people working in the field. Ms Lee confirmed that she was the only employee in the field computing division working on the business cases for the two particular projects when she joined it. She insisted that they were two projects under the broad umbrella of field computing. They formed the bulk of her work although she was involved in other tasks as well - a government radio network that was used by emergency departments like the Fire Brigades, Police and so on. Those business cases had not been finalised when she was subsequently joined by Messrs. Newbery and Mr Kelly some 12 months later. The three had worked as a team finalising those business cases for submission for approval. Messrs Kelly and Newbery moved on to perform similar work in relation to other things in a seamless way since that work apparently stopped and were not redeployed but Ms Lee was. Ms Lee argued that her position description did not limit her to only these two projects. She argued that the purpose of her role was to have a staged implementation with the DOPs and EMSOs being a relatively small number (approx. 180 users as confirmed by Mr Locking at the first hearing) in contrast with 6000 employees in Energy Australia. It was anticipated that once those two groups were completed then other field staff will be introduced to the system. Ms Lee confirmed that since her redeployment in August 2009 Mr Hall has attempted to assist her on three occasions to obtain alternative roles within Energy Australia by introducing her to a number of employees within the organisation to talk about possible/available roles. She stated that she did not take up the opportunities offered to her because she did not believe that the roles were suitable because they were not looking for staff to do IT work for them. They were looking for staff with skill sets that she did not possess and it was important to her that she find a permanent role that matches her particular skill set and develops her career. Ms Lee also confirmed that she has been independently looking for roles that match her particular skill set. She further confirmed that she was not inclined to accept a role that was short term. Ms Lee also applied for positions advised. Mr Darams took Ms Lee to those positions. She admitted that she had applied for those positions on the basis that the job titles made the roles sound suitable. She had not spoken to the Supervisors of those positions to obtain any information on those roles. Ms Lee accepted that the two projects she had been working on had a very limited project life. She argued that even though they were short term projects, from her experience, people are not routinely redeployed once one project is shut down. She provided as an example the position of project manager for those two projects whose contract was not terminated upon completion of the project but was provided with more projects. It has not been her experience that people are routinely redeployed every time a project is completed. Nevertheless, she accepted that a risk of redeployment would exist in any event.

SUBMISSIONS 60Ms Lee sought to tender three statements in the proceedings. Mr Darams argued that it was clear on its fact that the most recent statement (that of 21 October 2011) was merely an update and directed only to the redeployment process and what has happened in that respect. The Respondent relied on Toll v Alphapharm in support of its submission that the evidence should not be received as there is an obligation on practitioners to ensure that only relevant evidence comes before the Commission. Mr Trew pointed out, firstly, that the evidence is required to put before the Commission because, if the statutory onus is not discharged by the Respondent, then it is implicit that the Commission will have to decide whether any order is made and, if so, what order. The update will assist the Commission in that second leg of its decision. Secondly, Mr Trew argued that the contents of the statements are germaine to both parts of the case in that the Applicant contends that the discrimination she suffered was not just one single event but the consequences of the event. The position to which Ms Lee was previously appointed no longer exists for the reason that the project team was dissolved at some stage during the course of these proceedings. Therefore reinstatement to that position is not going to be a possibility. Nevertheless s 213 requires the Commission to make orders that correct the discrimination and it's then going to be necessary for the parties to address the Commission on how best to mould the relief to deal with the discrimination that has occurred. 61Mr Darams argued that the application was made specifically under s 210 (1)(j) of the Act - that was settled before Bishop C at the first hearing and that is the case that the Respondent is addressing. The reclassification of the applicant's status to that of redeployment and the transfer of her employment to a position in a particular division were events subsequent to and as a consequence of the applicant making the complaint about an unsafe workplace. The Full Bench said the question that had to be determined on the rebuttal presumption is why was Miss Lee chosen as opposed to Mr Kelly and Mr Newbery for the redeployment. There was a limitation placed by the Full Bench as to the extent of the reference. That is the case as the Respondent has always understood it. It has never understood or never been told that this is a case where there is continuing victimisation on a daily basis or a continual basis and that the Respondent would have to rebut the presumption on each single act where for instance there was a rejection of a job in the redeployment process. The Respondent has addressed itself to the decision to redeploy in 2009 as the victimising event. 62In relation to remedy, Mr Darams pointed to the fact that the primary remedy sought by the Applicant is reinstatement. It was pointed out that the role no longer exists and therefore reinstatement is a futile order in the circumstances. If the Applicant is seeking reinstatement to "suitable" work, then the argument arises as to enforceability of such an order given that consideration needs to be given to the concept of "suitable" - Who is it suitable to? Is it suitable to the respondent? Is it suitable to the applicant? Is it suitable for the first six months, next 12 months? Is it suitable for long term? - all matters ultimately to the submissions. 63Mr Trew confirmed that the contents of the statements are relevant for the purposes of the relief as well as other purposes. It was not being alleged that they are separate acts of discrimination noting that there is a limitation period in which proceedings can be brought in relation to any alleged discrimination and they would all be out of time even if it was relied on for that purpose. It was contended that when consideration is being given to formulating an appropriate remedy, regard must be had to the consequences of the complained discrimination, that is "that Miss Lee has been banished effectively to Coventry since August 2009" - a very serious consequence of one single act of discrimination. 64The additional evidence of Ms Lee was accepted as relevant only to any orders that might subsequently be made as to relief. 65Mr Trew submitted that Section 210 (2) requires the Commission to be satisfied that the statutory onus has been discharged by the Respondent. The Applicant has the presumption that the conduct was for the prohibited reason. The evidence that has been led is to enable the employer to have a second opportunity of rebutting the presumption. 66Mr Trew pointed out that the detriment is, in a nutshell, she lost her position, she was put on redeployment for a 12 month period which has since passed, her continuance in employment is continually at risk and she's got no work suitable for her qualifications and experience or no work at all. At the moment she has a desk and she sits at it. So she's in the uncertain position of not knowing what is going to happen. 67Mr Trew turned to the issue of reverse onus and the Briginshaw test as discussed by the full court of the Federal Court in Communications, Electrical, electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Australian Competition and Consumer Commission (2007) 162 FCR 643. In this instance, a fact is presumed and the onus is put on the employer to provide evidence to rebut the presumed facts. 68Mr Trew referred to the two standards of proof pointing out that the Commission as currently constituted is only concerned with the civil standard. The Commission has to be actually persuaded, within that standard, that the facts exist. In that regard, Justice Dixon stated in ACCC: ....Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegations made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...." 69Mr Trew submitted that the onus is not discharged if gaps or uncertainties exist in the rebuttal evidence. It was submitted that the Commission cannot be satisfied, after hearing the evidence, particularly of Mr Locking and to a lesser extent, Mr Newbery, that the employer has discharged the onus. Overall, Mr Locking's evidence was just not persuasive as it did not have the ring of credibility. It was pointed out that Mr Locking was unable to explain why evidence was not given about the matters in the previous hearing, as reinforced by the objective evidence. There's a pretty clear inference from the evidence that the people advising Mr Locking, and ultimately Mr Locking himself, were mainly concerned about the redeployment of Ms Lee. No consideration was given to anybody else. 70Mr Trew' pointed out that his function was to persuade the Commission negatively that the Respondent had not made out its case while the Respondent has to persuade the Commission that there was no causal connection. It is sufficient for the Commission to determine that it cannot be satisfied that what the Respondent says is the reason for which it happened. 71Mr Trew went on to rely on, and emphasise, relevant parts of Justice Mason's decision in the High Court decision in General Motors Holden Pty Ltd v Bowling (1976) 17 ALR 605 with whom Gibbs, Stephen and Jacobs JJ also agreed. Mr Trew distinguished that case from the current proceedings on the basis that the former was decided on a completely different basis, as highlighted by Mr Locking's evidence. 72Mr Trew pointed out that the Bowling Case is of even more significance to these proceedings because the Respondent is having another attempt at trying to patch up the mistake it made in the previous proceedings. 73Mr Trew submitted that the formula that is now used had its origin in Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 was cited with approval by Mason J in Bowling: ... an employer is actuated by a particular reason or circumstance, if that reason or circumstance was "a substantial and operative factor" influencing him to take that action...To succeed the appellant has to show on the evidence that he was not actuated by the consideration set out in ....he will not achieve this objective unless the evidence established the real reason for the dismissal, notwithstanding that the appellant failed to put it forward at first instance, and that it lies outside the ambit of section... Section 5 (4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged... The Respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant... I would, for my part, accept the finding that the appellant considered the respondent to be a troublemaker, to have deliberately disrupted production and thereby to be setting a bad example to others. Even so, this finding does not varry the appellant the whole distance. Mr Trew pointed out that the circumstances described in the above passage are not dissimilar to those in the current proceedings and are of particular significance. In order to rebut the submission it must be established that no part of the reason for the redeployment was the fact that Ms Lee had made the complaint she had. The Commission was reminded that Mr Newbery had conceded, during cross-examination, that he did not want Ms Lee back working for him nor have any dealings with her because their relationship had broken down because of her complaint. 74It was pointed out that Mr Locking was not the decision maker. It was described as an "extraordinary coincidence" that there was talk about a mediation process one week and then within the course of a week without any warning to her there was a decision made to get rid of her by redeploying her because she was prepared to concede everything they wanted - she was prepared to go back, carry out her instructions and participate in a mediation. It was conceded that she did want to achieve something out of the mediation but it was pointed out that everyone has to start somewhere with a mediation. 75Mr Trew then took the Commission through some elements of the case that needed to be taken into account. The first pertained to Ms Buscombe who was not called to give evidence despite the fact that Mr Locking, in his evidence, stated on several occasions that he left her to do everything for him. No reason was put forward for that omission prompting the Applicant to submit that the Commission can readily and comfortably conclude that her evidence could not have assisted the Respondent's case (Jones v Dunkel [1959] HCA 8) 76Mr Trew then turned to the next element, that is, that Mr Locking's evidence left too many uncertainties just on its own for the Commission to be satisfied that he had taken into account only the need for the removal of one person because of lack of work and that Ms Lee was not primarily concerned. It was submitted that Mr Locking was not able to explain why a decision had been made on the basis that not that there was not sufficient work and that somebody should be redeployed but rather that Ms Lee should be redeployed. Having made the decision that Ms Lee should be deployed, Mr Locking rang the HR Division to manage the process. Yet there was no documentation before the Commission to support the contention that Ms Buscombe had indeed carried out all the requirements of the redeployment policy. 77The Commission was reminded that the applicant does not have to prove the facts. The respondent has got to prove facts to displace the statutory onus. All the Commission has to find is that the evidence of Mr Locking raises a doubt in the Commission's mind that prevent it from being satisfied. 78It was submitted that it was quite plain that the initiative came from Mr Locking to get rid of Miss Lee. It was submitted that there is an elaborate charade in the most recent affidavit to say there was a survey first of all to see what work was available, explaining how he went through a balancing act, none of which was adverted to in his earlier evidence and which indeed is inconsistent with it. 79Mr Darams argued that the applicant needed to establish an entitlement and establish whether or not any order should subsequently be made. 80Mr Darams contended that a document attached to an email from Mr Sydney Newbery to Mr Locking, which should have been dated 14 June 2009, provided objective evidence, outside of the witnesses, of facts that were in existence as at July 2009 when the decision was made to redeploy Ms Lee. Mr Locking's evidence, consistently in his affidavits and cross-examination was that he was told at the relevant time that there was insufficient work for three members of the team and that was one of the things he took into account. It was submitted that the objective evidence demonstrated at that time the status of the particular projects - a matter which fixated the Full Bench on the first appeal. Mr Trew argued that even if it was accepted that the date was wrong, the period covered at least three months prior to the period that was subject to the relevant decision and, in addition, related to a yearly period. 81Mr Darams pointed out that the project she was working on with Messrs Newbery and Kelly, by its very nature, had a finite life and would ultimately end when the installation of hardware, and associated software computer screens and the like, into vehicles of the emergency service operators (EMSOs) and district operators (DOPs) was complete. 82It was submitted by Mr Darams that it was relevant to keep in mind the finite life of the project when considering the primary order of reinstatement being sought by the Applicant. Even if the Commission were to conclude that there had been some victimisation, then it must be borne in mind that the position no longer exists and there cannot be any order for reinstatement. 83Mr Darams also submitted that the timing of the events is also relevant to the background matters. Ms Lee lodged a complaint against Mr Newbery in April 2008 at which time, or as a consequence of that complaint, Ms Lee ceased to perform any work on the projects and the projects continued without her involvement. Therefore, when the events occurred in July and August 2009, some 15 or so months had passed since Ms Lee had performed any work on the project. 84In conclusion, Mr Darams emphasised that the issue before the Commission is not about the redeployment process. It was pointed out that the redeployment process is a policy which exists within the organisation for obviously beneficial purposes - it caters for the eventuality that from time to time roles and positions become redundant and the organisation may need to redeploy staff as an alternative to retrenchment. 85Mr Darams reminded the Commission that during the entire period of time Ms Lee has been redeployed, she has maintained her status and remuneration.

CONSIDERATION 86Section 210, Freedom from Victimisation relevantly provides: 210 (1) [Reasons for victimisation] An employer...must not victimise an employee ... because the person: (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health.... 87Section 210 (2) relates to the reverse onus as follows: 210 (2) [Rebuttal presumption] In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee ....who suffers any detriment as a result of action by the employer ... 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 ... satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 88Therefore, the employer bears the onus of satisfying the Commission that her complaint was not "a substantial and operative cause" of the detrimental action. 89The Commission has taken into account all the written and oral evidence before it as well as the oral and written submissions made by the parties. 90I do not accept that there is anything sinister or devious in the fact that the issue was not covered by Mr Locking in his previous evidence. I note that was also the view of the Full Bench in its 2 September 2011 judgment when, in paragraph 176 (5) it was considered that the failure to address the issue was a misjudgement as opposed to a tactical move. 91The Applicant made a complaint about Mr Newbery in July 2008. The Applicant presumed that she was redeployed in August 2009 as a result of the complaint made 13 months earlier. Having made such a presumption, it falls to the Respondent to satisfy the Commission that the complaint she made was not a substantial and operative cause of her redeployment. 92As indicated above, the Applicant had not worked in the team with Messrs Newbery and Kelly for several months prior to her redeployment on the basis that it would be injurious to her health if she remained working under Mr Newbery's supervision and in his team. 93The Applicant, upon advice from her Union, did not agree to participate in a mediation process for approximately the same period of time. 94For his part, Mr Newbery was not willing to participate in the mediation process. It is obvious that he was not going to accede to the Applicant's expectations of the outcome of the mediation by offering an apology or making any concessions. 95There is no doubt from the evidence before the Commission that no thought was given to which of the three members of the team would be redeployed. It is obvious from the evidence that Ms Lee was considered to be the most obvious choice because she was no longer working within the team and, in the absence of a successful mediation, there was no likelihood of Mr Newbery and Ms Lee working together amicably. Indeed, Mr Newbery made that concession in cross-examination. Unfortunately, by the time Ms Lee agreed to participate in mediation, work with Mr Newbery and comply with instructions from Mr Newbery, the decision to deploy her had been made. 96Whilst it was never disputed that the team had to be reduced, Mr Newbery made it clear to management that he had no position for a Project Engineer which singled out Ms Lee as the obvious candidate for redeployment. 97The Respondent did not have to make a choice between a team member and a Supervisor who is required to remain and finish off the projects. The evidence indicates that Ms Lee commenced and was managing the projects at least a year before she was joined by Messrs Newbery and Kelly and therefore any member of the team could have been redeployed as none were indispensable as it were. 98No finding can be made that Mr Locking or Mr Newbery were not truthful in their evidence - in fact, they were quite blunt in providing answers during cross-examination and did not resile from their respective positions. 99It is obvious from the evidence that Mr Locking made a decision based on the fact that a member of the team had to be redeployed; Ms Lee's classification was specifically identified to Mr Locking; the team member who had not worked in the team for several months was Ms Lee; Mr Newbery was the Manager or Supervisor of the team and it did not occur to anyone that he could be replaced by Ms Lee given the background to the commencement of the projects and her skill; the redeployment policy was not effected properly as Mr Locking left it to Ms Buscombe to implement; Ms Buscombe was provided with a fait accomplit in relation to who was to be redeployed and therefore, it appears, merely put it into effect rather than apply the policy from scratch in which case it may have been applied properly. 100In addition to all of the above, Ms Lee had made a complaint against Mr Newbery; Ms Lee had declined mediation for several months; Mr Newbery had declined mediation also because of the "ambit" claim made by Ms Lee in relation to her anticipated outcome of the mediation. 101It is obvious on the evidence that an objective assessment was not carried out to determine which of the three members of the team should be redeployed. 102It is not disputed by the Applicant that the projects she was working on have now concluded.

DECISION 103There is no doubt that the complaint made by Ms Lee against Mr Newbery played a part in the decision to redeploy Ms Lee. Nevertheless, on balance, the Commission is not satisfied the complaint was a "substantial and operative cause" of the redeployment. 104The Commission finds that the Respondent has rebutted the presumption which operates in favour of the applicant pursuant to s 210 (2) of the Act. 105Matter No. IRC 1371 of 2009 is hereby concluded by dismissal of the claim.

COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2012