Penhall-Jones v State of New South Wales [2006] FMCA 927 | Case summary

Penhall-Jones v State of New South Wales [2006] FMCA 927 | Case summary | Zoe

[3]

• agreed that the flexible working arrangements referred to in paragraph 21 of her affidavit of 20 March 2006 required agreement;

• accepted that it was not agreed between the parties that she suffers from a disability for the purposes of the DDA but maintained that there is no doubt and no dispute that she suffers from a work caused injury and is receiving workers compensation benefits for it;

• agreed that for some months in 2004 she participated in a graduated return to work programme but disagreed that the programme was successful;

• accepted that she was asked to return to work by her employer and said that she declined to do so on the basis of medical advice;

• said that she suffered a relapse of her condition as evidenced by medical opinion in October 2004;

• agreed that she had not returned to the workplace since then;

• said that she had been asking to return to work since January 2005 but required safe conditions of work where she would not be "abused";

• said that she had been "consistently" abused in the workplace since late 2001 and indeed before that;

• accepted that she was not abused by everyone at the Department of Transport;

• stated that she was abused both before and after her complaint to HREOC but said that no written threats were made until after her complaint to HREOC;

• insisted that a manager in the Department of Transport, Catherine Reilly, shouted at her in a discussion on 27 September 2004 arising out of Ms Penhall-Jones' failure to attend a meeting on that day;

• insisted that she had earlier revealed to Ms Reilly that she had made a complaint to HREOC and referred to it during the discussion during which she was allegedly verbally abused;

• denied or could not recall the terms of words said to have been used by Ms Reilly by the respondent;

• said that Ms Reilly had appeared angry or upset before she spoke to her on the morning of 27 September 2004 but Ms Penhall-Jones did not know why. She described Ms Reilly as having "an angry mood" and aggressive tone;

• agreed that Ms Reilly suffered from an anxiety disorder and had time off on workers compensation and stated that, to her knowledge, Ms Reilly took medication for her condition;

• agreed that Ms Reilly was angry and shouting before Ms Penhall-Jones had referred to the HREOC conciliation conference the following day;

• agreed that exhibit A1 indicated that it would have been consistent with her job description to attend the meeting on 27 September 2004 that she did not attend and agreed that it had been suggested that she attend it;

• could not say that she had indicated before the meeting that she would not attend it although she thought she may have;

• denied that she was herself angry or aggressive in her conversation with Ms Reilly but described her tone as "flinty";

• agreed that Ms Reilly had asked her to attend a meeting that afternoon with Mr Bill Grant and that she had declined to attend;

• stated that the meeting she had failed to attend which had apparently upset Ms Reilly was scheduled to run from 9.00am until 12.00pm, during which time she had arranged a conference with her solicitors about the HREOC conciliation the following day and that, in any event, she would not have been able to attend until 10.00am when she normally commenced work under her restricted duties;

• stated that she had earlier difficulties with Ms Reilly in 2002 over union matters and in 2003 over a work issue;

• stated that Ms Reilly had undertaken work which was "seriously flawed"[2];

• stated that she had become involved in some of the work undertaken by Ms Reilly in mid 2003;

• stated that she was over time "marginalised" and not given useful work to do, apart from a period in 2004 when a supervisor, Joanna Quilty, had ensured that she received productive work to do;

• confirmed that she regarded as bullying the incident described in paragraph 83 of her affidavit and the resultant incidents described in paragraph 85 of her affidavit;

• confirmed that she regarded Mr Bill Grant as supporting the bullying;

• explained that in her opinion Mr Grant had tried to be fair but that his attitude deteriorated after the incident on 27 September 2004 and that he sided with Ms Reilly;

• confirmed that after the incident on that day she took sick leave explained as "stress leave";

• confirmed that she attended a meeting with Mr Grant on 6 October 2004 to discuss the incident;

• confirmed that she had a further discussion with Mr Grant and Ms Reilly at a later date which may have been 7 October 2004;

• confirmed that she may well have been on sick leave on 11 and 13 October 2004 and that she attended a return to work meeting on 14 October 2004;

• accepted that she may have had a discussion with Ms Reilly at work on 18 October 2004 and that she may have taken further sick leave on 20 October 2004;

• confirmed that her last working day was 21 October 2004 and that she had e-mailed sick leave advice to the Department on 25 October 2004;

• confirmed that the bullying allegations the subject of these proceedings cover the period between 27 September 2004 and 25 September 2005, with the involvement of Mr Grant from 6 October 2004;

• resisted suggestions that Mr Grant had done all that he could to address the issues raised by Ms Penhall-Jones;

• explained that the allegation of a false complaint against her at paragraph 88 of her affidavit was based upon a conversation with Mr Grant;

• confirmed that the issue was not pursued further;

• confirmed that the issue dealt with in paragraph 90 of her affidavit occurred before 27 September 2004;

• confirmed that the incident dealt with at paragraphs 91 to 96 of her affidavit she regarded as "obstructionism" by Ms Reilly and stated that this constituted improper behaviour by Ms Reilly whether or not it was "bullying" - which Ms Penhall-Jones believed it was;

• confirmed that she had complained to her grievance officer Mark Cridland about this and asserted that he had not acted properly on it;

• explained that she was not previously aware that Mr Cridland considered he could not deal personally with the complaint because of a concern that the complaint might have extended to him;

• confirmed that the conduct of the Department of Transport representatives at the HREOC conciliation conference on 28 September 2004 was aggressive and bullying[3];

• confirmed that she had offered to settle the proceeding by payment to her of $560,000, based upon what she regarded as the value of her job should she resign[4];

• explained that she did not wish to resign and had no intention of doing so and had simply made an offer that she was confident would not be accepted;

• stated that she was victimised by being asked to sign a deed of release as part of a proposed settlement which contained a "gagging clause" and which provided inadequate monetary compensation;

• added that she complained to the Minister for Transport about this incident, who referred the matter to the Independent Commission Against Corruption (ICAC);

• accepted that she had stated that she was happy to consider resignation but added that this was conditional upon the payment of appropriate compensation;

• stated that her particular concerns with the proposed deed were the recitals at D, in particular (d) concerning misconduct issues;

• confirmed that she was aware that she could not be required to resign but that she was being invited to consider it as part of the settlement negotiations;

• confirmed that she had demanded the identification and resignation or dismissal of those involved in the settlement proposal[5] on the basis of alleged misconduct;

• confirmed that the departmental response to this complaint is at annexure J at page 24 of the annexures to her principal affidavit;

• confirmed that she regarded this letter as a threat of "summary dismissal" and added that she regarded the letter as contravening "a number of laws";

• denied that she would have been free to raise allegations concerning criminal offences if she had signed the deed;

• denied that she would have able to raise issues of workplace bullying in the context of workers compensation proceedings if she had signed the deed;

• confirmed that she regarded the cancellation of her return to work programme on 2 or 4 November 2004 as further evidence of victimisation[6];

• accepted that she had discussed a proposed meeting to determine the future of the return to work programme with a Mr Zelma who was representing her interests[7];

• refused to withdraw the allegation in paragraph 112 of the principal affidavit that Ms Elaine Lamond had deliberately withheld from her the time of the meeting to discuss the return to work programme (having admitted that she had been aware of the proposed time from Mr Zelma);

• accepted that Mr Zelma agreed to the termination of the return to work programme but added that he "had no choice";

• asserted that at the time of the meeting she was confused and distressed and in no state to attend the meeting herself;

• stated that as she had suggested deferring the meeting, she thought that the meeting would not go ahead without her;

• confirmed that she had told Mr Zelma there was no point in attending the meeting on the basis that the outcome was a "fait accompli" but added that the outcome might have been different if both she and Mr Zelma had been able to attend;

• asserted that the refusal by the Department of Transport to implement a return to work programme after November 2004 was continuing victimisation[8] and asserted that the respondent's solicitors' correspondence declining to discuss these issues with her during the currency of the present proceedings was an inappropriate response; and

• confirmed that she had raised some of these issues with the Director-General of the Department of Transport.

[11]

• admitted that what he set out at paragraph 7 of his second affidavit was not all he had discussed with Ms Quilty about the return to work programme;

• admitted that he was not familiar with the policy background or legislative goals of return to work programmes;

• admitted that he could recall a meeting with Mr Duffy at which reporting arrangements for Ms Penhall-Jones were discussed;

• denied that he was aware of Ms Penhall-Jones' disability discrimination complaint on 27 September 2004;

• admitted receipt of the e-mail at attachment C to his second affidavit and said that the conciliation conference referred to in that e-mail he thought was something to do with Ms Penhall-Jones' workers compensation claim;

• stated that the two file notes forming attachment B to his second affidavit were sent to him by e-mail on 27 September 2004 by Ms Reilly but he did not know what file they were intended for (he noted that they were also directed to the employment relations area of the Department);

• stated that he sought to deal with the issues arising from the events on 27 September 2004 by having a meeting with Ms Penhall-Jones on 6 October 2004;

• admitted that he did not work through the return to work grievance officer in relation to that issue;

• admitted that he did not raise with Ms Reilly any issue of alleged bullying;

• stated that he was satisfied with the outcome of the meeting on 6 October 2004 as putting in place an appropriate process to deal with the allegations;

• stated that he concluded that the return to work programme was not achieving its objectives on the basis of his own observations and the meeting on 4 November 2004;

• admitted that Mr Zelma may not have attended that meeting in person but may have attended by telephone;

• admitted that he left employment relations issues for the employment relations section of the Department to deal with;

• accepted that he had a role in attending to staff welfare issues and accepted that medical certificates pointing to a workplace injury raised issues in which he had a role;

• denied knowledge of Ms Penhall-Jones' HREOC complaint prior to the present proceedings;

• denied personally benefiting from the cancellation of Ms Penhall-Jones' return to work programme;

• confirmed that those attending the meeting on 4 November 2004 were all of the view that the return to work programme was not meeting its objectives but admitted that after the meeting there was a concern that a report prepared by Mr Zelma did not reflect the meeting outcome;

• denied discussing Ms Penhall-Jones' "injury" with anyone other than her;

• confirmed that in October 2004 he was concerned about Ms Penhall-Jones' absences from the workplace which was a reason for the cancellation of the return to work programme; and

• admitted that he did not consider alternative mechanisms for returning Ms Penhall-Jones to the workplace, stating that this was an employment relations issue.

[13]

Ms Reilly is the principal policy officer, contract and funding in the bus reform branch in the Department of Transport. She was Ms Penhall-Jones' supervisor between July and November 2004. She deposes as to her relevant employment history and her qualifications. She deposes as to the "incident" on 27 September 2004 and the conversation she alleges she had with Ms Penhall-Jones when the latter arrived at the office on the morning of that day. She also responds to the affidavit of Ms Penhall-Jones made on 20 March 2006. Ms Reilly deposes that she found Ms Penhall-Jones to be a difficult person to interact with in the workplace but asserts that she always treated her in a professional manner. Ms Reilly denies the allegations that she victimised, or intended to victimise, or that she bullied, or intended to bully, Ms Penhall-Jones whether or because she had lodged a complaint with HREOC or because she had raised issues relating to discrimination, bullying, harassment or for any other reason, including the fact that Ms Penhall-Jones was attending a HREOC conciliation conference.

Ms Reilly deposes that "over the past two or three years" she has had a number of conversations with Ms Penhall-Jones where the latter had referred to an intention to complain to HREOC. Ms Reilly deposes that she was not aware that Ms Penhall-Jones had proceeded with any specific complaint or, if she had, what it was about. She deposes that she was not aware that Ms Penhall-Jones was attending a conciliation conference until told by Ms Penhall-Jones at their discussion on 27 September 2004, and even at that stage she did not know what the conference was about. Ms Reilly deposes that she first knew that Ms Penhall-Jones had made the complaint to HREOC the subject of these proceedings in approximately October 2005 when she was asked to make an affidavit in these proceedings.

A number of documents are annexed to Ms Reilly's affidavit. Annexure D is an e-mail from her to Mr Grant and Ms Elaine Lamond enclosing "file notes" of her conversations with Ms Penhall-Jones on 23 and 27 September 2004. Annexure E is a version of the file note of the conversation on 27 September 2004, signed and dated that day. Annexure F is what appears to be a later version of the same file note, also signed and dated 27 September 2004. Annexure G is a marked up composite version of the two versions of the file note, showing the differences between them.

I permitted Mr Kite to lead short additional oral evidence from Ms Reilly. She stated that she had recently discovered an e-mail referring to a HREOC complaint by Ms Penhall-Jones which became exhibit R8. She otherwise confirmed that the first time she became aware of the HREOC complaint in issue in these proceedings was in October 2005. Ms Reilly also stated that she suffered a workplace induced psychological injury as a result of bullying and had taken six months leave, but had now returned to normal duties. She continues to take medication[10].

Under cross-examination Ms Reilly was questioned extensively about the two versions of her file note of the conversation on 27 September 2004. She:

[36]

Section 42 of the DDA requires that the threats and acts alleged to be victimisation occur "on the grounds that" the person victimised has done one or more things mentioned in s.42(a)-(g) inclusive.

Case law has established that in order to prove victimisation "on the grounds" of the events identified in the DDA, or any Act requiring proof in these terms, it will not be enough to identify "co-incidental" events. It has been held that even an event which occurs "in relation to" the making of a compliant does not necessarily qualify as proof of victimisation "on the grounds" of the protected activity[11]. There must be a causal link.

While there has to be a causal connection, the causal connection does not have to be explicit. It has been held that victimisation "on the grounds" of the actions protected from victimisation requires the person alleging victimisation to show a "conscious or unconscious motivation" to cause harm or detriment because the person has done the thing protected from victimisation[12]. This standard of proof refers to the state of mind of the victimiser as well as the detriment or potential detriment suffered by the victim.

Nothing in the Act or the case law defines or delimits the "conscious or unconscious" motivating or intentional factors. Therefore, it is not necessary to show malice, fear, rationality, objectively meaningful motivation, or even an objectively identifiable benefit to the person doing the victimising. There is nothing in the DDA or case law to excuse victimisation which occurs for dysfunctional or irrational motives.

Nor is it necessary to show that the person victimising has been personally implicated in the complaint for which the victim is being victimised.

Nothing in the Act requires that victimisation must be the sole explanation for any act claimed to be victimisation, in order for a complaint of victimisation to be upheld. To the contrary, it has been held that the nature of discrimination and related issues (for example, victimisation) is such that alternative reasons, rationalisations and multiple motivating factors will commonly be proposed[13] in order to ensure a finding against the victim.

It has been held that persons with like-minded intentions or motives or a mutual understanding, or congruent intentions can be considered to victimise. In some cases, such a mutual understanding may comprise "conspiracy", depending on the lawfulness or otherwise of the actions and the damage done to the victim[14]. Where managers act together on a mutual understanding or "groupthink", which often happens in small, close-knit or secretive management groups, it is not necessary for each person involved to be mentioned or implicated in the original complaint which is the cause of the victimisation. In workplaces where bullying is a feature of the organisational culture (as in this case), bullies tend to work together against those who complain, and weaker characters may go along with the majority through fear or pressure. The Human Rights and Equal Opportunity Commission Act 1986 section 3(3) makes reference to "an unincorporated body of persons" and "a refusal or failure to do an act", which suggests an acknowledgement of the typical ways in which discrimination and victimisation are carried out within an organisation by informal groups aided by others who merely fail to stop it.

There is nothing in case law that suggests that the reasons the victimiser engages in victimising must be directly related to the complaint for there to be a causal connection. An indirect relationship is still possible and does not prevent the victimisation being "on the grounds of" the complaint, nor does it necessarily prevent a causal connection being established. For example, a busy manager who threatens or causes detriment to a complainant, not because s/he is implicated in the complaint, but because it is more "convenient" if the complaint and/or the complainant do not have to be dealt with, is nevertheless victimising.

The DDA is silent on the issue of the giving of advice. In a situation where (as in this case) the Department Head (the Director-General or Acting Director-General at the time) relies on advice from his senior managers, an internal corporate counsel or an external legal firm, he nevertheless must take responsibility for weighing up that advice and deciding to act on it. It is always open to him to seek further advice or reject the advice.

Some consideration needs to be given to the accuracy and appropriateness of the advice given. Whilst every person or entity brought before a court deserves a defence of right, where that defence is only available if that person or a person in the entity must act unethically or contrary to law in order to "reserve" that defence, there really is no legitimate defence available.

Similarly, lower level managers who rely on advice, or take the position that they can not dissent from a prevailing view, must take responsibility for that position. Dissent is always possible, and indeed is encouraged, by law and policy, in public servants who are expected to act in the public interest. Dissent would normally be documented at the time. Failure to dissent or actions complicit with unlawful acts may comprise victimisation.

[38]

a) the letter from Mr Mark Duffy (the Acting Director-General) to Ms Penhall-Jones dated 18 November 2004 threatened her employment and provides the "clearest proof" of victimisation. The letter links the threat to Ms Penhall-Jones' complaint to HREOC and his threat was ultra vires his powers. The respondent failed to call Mr Duffy to explain his action and the attempt by the respondent to mitigate the effect of the letter was unsuccessful;

b) a further letter from Mr Duffy dated 7 December 2004 threatened the employment of Ms Penhall-Jones and also provides the "clearest proof" of victimisation. The letter stands outside the process of negotiation in the HREOC conciliation although the letter refers to Ms Penhall-Jones' complaint to HREOC. The respondent attempted to portray the letter as the opposite to what it truly was;

c) the conciliation discussion at HREOC on 28 September 2004 concentrated on the issue of resignation raised by the Department of Transport although the possibility of a transfer was raised. A settlement deed forwarded by the Department to Ms Penhall-Jones' solicitors did not reflect those discussions and sought to terminate her employment. The deed contained a "gagging clause" which was intended to silence Ms Penhall-Jones. Ms Penhall-Jones acted reasonably in the negotiations whereas the Department of Transport showed "sadistic intention" to cause her "as much actual harm as possible";

d) Catherine Reilly attempted to fabricate a file note of her discussion with Ms Penhall-Jones on 27 September 2004. The conduct of Ms Reilly in relation to these proceedings was itself victimisation;

e) Ms Reilly's conduct cannot be excused on the basis of her medical condition and medication and neither should her claim of memory loss be accepted;

f) the action by the Department of Transport to refuse to reinstate Ms Penhall-Jones' return to work programme and to require her to deal with its solicitors following the institution of proceedings in this Court is further evidence of victimisation;

g) the events leading up to the cancellation of Ms Penhall-Jones' return to work programme establish a conspiracy to victimise. There was a "mutual understanding" or a "congruence of intentions" on the part of Elaine Lamond and Catherine Reilly. Bill Grant provided support. The necessary link between their actions and the HREOC complaint can be inferred from the timing of the actions and the purpose, as outlined in Mr Duffy's letters, was to force Ms Penhall-Jones' resignation. Ms Penhall-Jones refers, in particular, to the failure of Catherine Reilly to attend return to work meetings in July 2004 and 6 September 2004, the informal meeting between her and Ms Lamond and Mr Zelma at a coffee shop in September 2004, Ms Lamond's "file note" about the progress of the return to work programme, the discussion between Ms Penhall-Jones and Ms Reilly about bus policy issues on 23 September 2004 and Ms Reilly's "verbal abuse" on 27 September 2004 and the first created "file note" by Ms Reilly on 27 September 2004, coupled with the events of the next two to three weeks. The cancellation of the return to work programme was intended to remove a source of support and the grievance officer and to destroy the link between termination of employment and Ms Penhall-Jones' psychological injury. This would make it easier to put pressure on Ms Penhall-Jones to resign and to threaten her. There was a clear intention and motive on the part of Elaine Lamond and Catherine Reilly to do Ms Penhall-Jones harm and Bill Grant later supported these detrimental acts. On the balance of probabilities, the increased activity at the time surrounding the HREOC conciliation conference and leading up to the cancellation of the return to work programme, comprising detrimental actions, false allegations, the proliferation of self-serving "file notes", bullying and the cancellation of Ms Penhall-Jones' return to work program contrary to law comprise victimisation on the grounds of her having made a complaint to HREOC.

[39]

Ms Penhall-Jones then provides comments on the acts said to comprise victimisation. She asserts that Elaine Lamond and Catherine Reilly both had prior knowledge of her HREOC complaint before the asserted acts of victimisation. The file note of 20 September 2004 by Elaine Lamond had an ulterior purpose. Although Ms Reilly and Ms Penhall-Jones had a policy disagreement on 23 September 2004, Ms Penhall-Jones was not acrimonious, hostile or aggressive. Ms Reilly's file note about this meeting served an ulterior purpose. It may not have been written until after the incident on 27 September 2004. The meeting between Elaine Lamond, Catherine Reilly and Ed Zelma on 24 September 2004 was highly irregular. Neither Mr Grant nor Ms Penhall-Jones knew about it. This was part of a plot by Ms Lamond to remove the external source of scrutiny and support which Mr Zelma provided. Ms Reilly gave inaccurate and untruthful evidence about the incident on 27 September 2004. Ms Reilly's conduct was deliberate and part of a "programme" of blaming and bullying. In contrast to the allegations against Ms Penhall-Jones in relation to her performance, she was conscientious and hard working.

Ms Penhall-Jones then deals with what she describes as subsequent bullying behaviour by Catherine Reilly. She submits that the bullying was part of a pattern of behaviour. She submits that she was targeted in order to "break" her psychologically. The object was the removal of Ms Penhall-Jones from the workplace. False allegations were made about Ms Penhall-Jones' performance in the return to work programme. There were no genuine performance issues adverse to Ms Penhall-Jones. Her manager's "grasped desperately" at the missed SSTS working party meeting on 27 September 2004.

Ms Penhall-Jones then returns to the cancellation of her return to work programme. She submits that this was a part of the campaign to remove her from the workplace and that the causal nexus with her HREOC complaint may be inferred from the sequence of events. She submits that the cancellation should be seen as the culmination of a series of events of victimisation characterised by secrecy, collusion, bullying and other irregularities which are otherwise inexplicable. The cancellation of the return to work programme was also contrary to law. Further, it was contrary to medical advice. There was no factual basis for the assertion that the return to work programme was not working. The purported justification for the cancellation set out in Ms Lamond's letter of 23 November 2004 misses the point that Ms Penhall-Jones had suffered an aggravation of her workplace injury because of the conduct of her supervisor. The arguments that work was not being performed and that the Department could not provide work to do at home are not consistent with the facts. The timing of the meeting to cancel the return to work programme was deliberate in order to disadvantage Ms Penhall-Jones and prevent effective participation by Mr Zelma. The fact of the meeting was concealed from Ms Penhall-Jones by Ms Lamond. The conduct of those involved shows "reckless indifference" to the welfare of Ms Penhall-Jones.

Ms Penhall-Jones concludes by commenting on the evidence of Catherine Reilly, Elaine Lamond and Bill Grant in particular in relation to the credibility of their evidence.

The respondent's written submissions were filed on 30 May 2006. Mr Kite submits that the elements required to establish victimisation are as follows:

[46]

i)

the applicant was not satisfied with her reporting relationship (e.g. transcript 10 April 2006, page 44 (lines 44-47), (line 48));

ii)

the applicant was not satisfied with her position description (e.g. transcript 10 April 2006, pages 44 (lines 44-47 (line 48), 12 April 2006, page 86 lines 14-20, page 89 lines 11-29, pages 91 (lines 44-92) (line 2));

iii)

the applicant was not satisfied with her area of responsibilities (e.g. transcript 12 April 2006, page 86 lines 14-15) and refused to do work outside what she determined was her area of responsibility (transcript 12 April 2006, page 86, lines 12-15);

iv)

the applicant was not satisfied with the amount or quality of the work she was being provided with (e.g. transcript 10 April 2006, page 71 lines 42-47, page 72 lines 1-19; transcript 12 April 2006, page 84 line 37-47, page 85, lines 1-42);

v)

the applicant challenged the right of her senior managers to make decisions regarding work undertaken by the applicant (e.g. transcript 12 April 2006, page 90 lines 36-48 and page 91, lines 1-24);

vi)

the applicant contended her medical condition was such that she was not susceptible to direction and control in accordance with the contract of employment (see Exhibit MPJ3);

vii)

the applicant failed to attend the SSTS working party meeting on 27 September 2004, in circumstances where the applicant had known the meeting conflicted with an appointment the applicant had with her lawyers since (at least) the beginning of September 2004, that is at least four weeks before the scheduled meeting (transcript 10 April 2006, page 50, lines 40-44);

viii)

the applicant's non-attendance at work, and absences during the day, were performance issues (transcript 13 April 2006, page 208, line 22);

ix)

the applicant alleged being "bullied" as her senior managers "obstructed" and "blocked" her work (e.g. transcript 12 April 2006, page 89, line 3; page 90 lines 19-48; page 91, lines 1-24);

x)

with one exception, each person who was responsible for managing the applicant's performance has been named by the applicant in the victimisation complaint as allegedly engaging in victimisation of the applicant; and

xi)

additionally, the applicant also named the Acting Director-General and the Director General of the Ministry of Transport in the victimisation complaint as allegedly engaging in victimisation of the applicant.

[52]

i)

the applicant asserts that Mr Cridland "...refused to act on my complaints". This is palpably incorrect as Mr Cridland did act on the applicant's complaints (exhibit R3). Moreover, the Court is entitled to disregard this submission as the applicant did not contest Mr Cridland's evidence, or require him for cross examination;

ii)

the applicant asserts "...senior officers [of the respondent] were placing strong pressure on me to resign". The respondent in the context of conciliation and in other attempts to resolve a protracted disagreement made an offer to the applicant which included a payment on resignation. This allegation seems to be based on the offers of settlement which included a condition that the applicant resign. The applicant attributes to Mr Duffy (the signatory to the letter of 8 December 2004, Annexure "O", page 32 of the affidavit of the applicant sworn on 20 March 2006) and others who participated in the conciliation processes, the motive that they were determined to terminate her employment. This theory is advanced notwithstanding that the applicant had indicated in an email of 30 September (annexure "D", page 7 of the affidavit of the applicant sworn on 20 March 2006) that she was "happy to consider" options which included resignation. Notwithstanding that the applicant "...can't say what Mr Duffy would think" (transcript 12 April 2006, page 99, lines 25-26) she is prepared to ascribe such a motive to him in preference to the straightforward and rational explanation that the question of resignation is but one consideration in a possible settlement. It is fanciful to draw the distinction which the applicant draws in her submissions. In this context Mr Duffy has the power to ask, as does the applicant. Mr Duffy does not have the power to terminate employment (without at least pursuing the due process with which the applicant is so familiar - see Exhibit MPJ4, paragraphs 10 and 99-106);

iii)

in her submissions, the applicant states that it is not clear (to the applicant at least) why the Acting Director-General sent her the letter of 8 December 2004. The letter (annexure "O" to the applicant's affidavit sworn on 22 March 2006) clearly indicates it is written in response to the applicant's letter of 24 November 2004;

iv)

the applicant asserts that nobody at the SSTS working party meeting "...discussed or even noticed my absence". The respondent submits there is simply no evidence to support this assertion;

v)

the applicant asserts that "It is clear that by 27 September, 2004 both Elaine Lamond and Catherine Reilly sought to remove me physically from the workplace". The respondent submits there is simply no evidence to support this assertion; and

vi)

the applicant asserts her "...inability to remember is itself evidence of Ms Reilly's inappropriate aggression". By this submission the applicant, fancifully, claims her recollection of parts of this conversation should be preferred even though she cannot recall parts of the conversation. The applicant also reinforces her view that there must have been aggression because she cannot remember, and inability to remember is a product of aggression. The circularity of this argument is astounding. The respondent submits that the applicant's anxiety was more likely the result of feeling guilty as the applicant had not told her supervisors she would not be attending a meeting when the applicant knew that her supervisors thought she would be attending.

[62]

There was no change in the scope of the victimisation complaint prior to its termination. Accordingly, the respondent submits that all allegations of victimisation which occur after 25 July 2005, should not be considered in the victimisation application as they do not form part of the matters before the Court for determination.[19]

While s.46PO(3)(b) does allow an applicant to allege different facts from those which are alleged in the terminated complaint, the new facts cannot be different in substance from the facts formerly alleged.[20]

The respondent submits that the allegation in relation to Mr Lucarini's letter of 16 September 2005 is substantially different from the victimisation complaint lodged by the applicant in the HREOC.

In this regard the respondent submits that although reference is made to the letters from the respondent of 11 February 2005 and 12 May 2005 in another context (i.e. there is a direct complaint that the Director of Employee Relations misconstrued the applicant's request in December 2004, and the letter of 12 May 2005 is specifically referred to as a denial of human resources services), the applicant did not raise in the victimisation complaint to the HREOC, an allegation of victimisation arising from an alleged refusal to reinstate the return to work program generally.

In the alternative, the respondent submits that the Court is entitled to accept Mr Lucarini's evidence in relation to his letter of 16 September 2005, as his evidence was not challenged by the applicant, nor was Mr Lucarini required by the applicant for cross-examination.

The respondent submits that the Court has no jurisdiction to determine whether the allegation of reconstructed evidence above amounts to victimisation as it postdates the making of the victimisation complaint by the applicant to the HREOC on 25 July 2005. It appears that the amendments to the file note occurred in mid to late 2005 (transcript 13 April 2006, page 175, lines 1-2).

Additionally, the respondent submits that the Court has no jurisdiction to determine the applicant's claims of "...newly emerging issues" (which are not specifically articulated) which amounted to victimisation, to the degree that those alleged matters:

[69]

The applicant admitted under cross examination that she was aware that the meeting conflicted with an appointment the applicant had with her lawyers (transcript 10 April 2006, page 50, lines 42-44). As a result, the applicant's evidence, and assertions in the applicant's submissions of her having an "...unavoidable conflict" which prevented her from attending, should be doubted. But more importantly the applicant had it well within her control to advise her senior managers that she could not attend the SSTS working party meeting in part or at all. The meeting with the applicant's legal representative was at 11.00am (transcript 10 April 2006, page 58, lines 46-47). The SSTS working party meeting started at 9.00am and the applicant could have attended a substantial part of that meeting.

The applicant also admitted in cross examination that she determined, of her own volition, that her attendance at the SSTS working party meeting was not necessary (transcript 10 April 2006, page 51, lines 14-24), and justified her decision on the basis that Mr Grant had said to the applicant her attendance "...would be good" however "he didn't say it was essential." (transcript 10 April 2006, page 51, lines 27-28).

In the premises, it was appropriate for Ms Reilly to raise with the applicant her non-attendance at the meeting of the SSTS working party as a performance issue.

On 27 September 2004, Ms Reilly prepared a file note recording the details of her meeting with the applicant. Ms Reilly emailed that file note to Mr Grant and Ms Elaine Lamond (Ms Lamond). This was not contested by the Applicant. Indeed, the affidavit of Mr Perry Hammond (Mr Hammond), of the respondent's information technology department, filed on 7 April 2006, was admitted into evidence without contest by the applicant, who did not require Mr Hammond for cross-examination.

The respondent submits that the applicant's recollection of this event should not be accepted. The applicant's own evidence was that she has difficulty remembering parts of the meeting (transcript 10 April 2006, page 53, lines 10 and following). The applicant also admits this in her submissions. Additionally, the applicant's oral evidence differed from her affidavit evidence (transcript 10 April 2006, page 39, lines 26 - page 40, line 40). In the circumstances, Ms Reilly's version of the conversation is to be preferred supported as it is by a contemporaneous file note. Ms Reilly's version also conforms with expectations of a supervisor (see also the comments in paragraphs 81-88 below).

Nothing in the evidence credibly suggests there was verbal abuse or bullying by Ms Reilly.

Finally, the evidence of Ms Reilly (like Mr Grant) was that she did not become aware of the fact the applicant had made a complaint to the HREOC until about October 2005 (paragraph 39 of Ms Reilly's affidavit filed on 5 April 2006 and transcript 13 April 2006, page 168, lines 13-15; page 169, lines 1-14). Any action by Ms Reilly could not be for the reasons identified above.

The respondent submits that nothing in the meeting on 27 September 2004, could, or does, amount to victimisation on the grounds set out above. Ms Reilly was entitled to discuss the applicant's failure to attend this meeting, nor inform anybody of her intention not to attend, with the applicant as part of the performance management of the applicant as an employee.

[93]

It is appropriate in view of the substantial criticism of Ms Reilly over the reconstructed file note to consider specifically her credit as a witness in these proceedings. There is no doubt that the realisation that the file note (annexure "F" to the affidavit of Ms Reilly sworn on 5 April 2006) which had first been filed in the Court was incorrect was the source of serious embarrassment to Ms Reilly. She however readily conceded that the note was not that which she had made on 27 September 2004. That she made such a note is beyond doubt. Mr Grant and Ms Lamond received it that day. Mr Hammond gave unchallenged evidence to that effect in his affidavit.

A comparison of the documents (annexures "E" and "F", and for convenience the changes highlighted in annexure "G" to the affidavit of Ms Reilly sworn on 5 April 2006) show that there are no changes of substance in these documents. Further, Ms Reilly did not attempt to explain the existence of Annexure "F" by inventing plausible possibilities. Ms Reilly frankly concedes that she has no recollection of creating the reconstructed file note or any conception of why she would have done so but has no doubt that she did. Ms Reilly cannot explain why she dated the note 27 September 2004, when very clearly she did not write the reconstructed file note on that date. Again convenient explanations (such as it simply records the date of the event) are not offered (see transcript 13 April 2006, page 174 lines 1-18).

Ms Reilly can have nothing to gain from producing Annexure "F" instead of Annexure "E", the undoubtedly authentic contemporaneous note. Contrary to the applicant's submissions, Ms Reilly had good reason to make a note (transcript 13 April 2006, page 177 lines 44 to page 178 line 9). The applicant had been critical of Ms Reilly's performance as her supervisor and there had been recent heated discussion on the issue of the applicant's performance. It is clear that Ms Reilly wanted to seek assistance and guidance from her supervisor (Mr Grant) and employee relations (Ms Lamond).

There are other factors which the Court would weigh in favour of Ms Reilly's credit, not least her demeanour in the witness box. Ms Reilly clearly did her best to give her evidence as truthfully as possible. Ms Reilly did not hesitate or prevaricate about matters embarrassing to her and/or in favour of the applicant. Ms Reilly remained forthright and unshaken in her testimony where it contradicted the applicant notwithstanding extensive cross-examination on a number of points.

Ms Reilly was a former colleague of the applicant as union delegates. Ms Reilly was a "sometime confidante" (see for example the email Exhibit R8 and transcript 13 April 2006, page 167, lines 23-25 and page 168, lines 1-15). Ms Reilly did not know that the applicant had made a discrimination complaint until about October 2005 (paragraph 39 of Ms Reilly's affidavit filed on 5 April 2006 and transcript 13 April 2006, page 168, lines 13-15; page 169, lines 1-14), so allegations that her conduct in 2004 cannot be related to the making of that complaint.

Finally, Ms Reilly is likely to have been sympathetic to the applicant because Ms Reilly had suffered an injury for which she was on workers compensation for about six months. That injury was an anxiety and depression disorder (transcript 13 April 2006, page 168, lines 21-32).

The respondent submits notwithstanding the mistake about the file note, Ms Reilly should be accepted as a witness of truth and where her evidence contradicts the applicant it should be preferred.

[96]

i)

had no apparent difficulty in representing herself in the hearing which ran for three days; and

ii)

cross examined the respondent's witnesses with some skill, particularly for an unrepresented party with no formal legal training.

The respondent submits that the evidence reveals that the applicant reacts adversely to criticism of her conduct and performance as an employee. Every manager who sought to give the applicant a lawful and reasonable direction, in the ordinary course of the applicant's employment (with the exception of Ms Joanna Quilty who went on maternity leave) has been subjected to adverse criticism by the applicant. Moreover, a number of those persons have been specifically accused by the applicant of bullying, harassment or of victimising the applicant. It is submitted that the whole of the evidence both directly and implicitly reveals the applicant is unable to accept, what but for the applicant's own particularly subjective reaction, is reasonable direction and control intrinsic to the proper functioning of the employment relationship.

In submissions in reply comprising 59 pages filed on 13 June 2006, Ms Penhall-Jones takes issue in detail with the respondent's submissions. Ms Penhall-Jones begins by providing a further overview of her case. She submits that the victimisation she asserts centred around an intention and attempts to secure her resignation from the public service on detrimental terms prior to the termination of her HREOC complaint, which would thus avoid the possibility that she would lodge a case in this Court. Once proceedings in this Court were instituted Ms Penhall-Jones asserts that there was additional victimisation, including detrimental acts aimed at "reserving a defence" to the proceedings and placing impediments in the way of her proceeding, in particular refusing to reinstate a return to work programme. Ms Penhall-Jones asserts, in addition, that there was a series of events, many of which were kept from or misrepresented to the Court but which emerged during the proceedings which led to her physical removal from the workplace in November 2004. Ms Penhall-Jones asserts that attempts to secure her resignation extended to claims of chronic incompetence against her. This process is said to have been facilitated by falsely constructed file notes reflecting upon her performance.

Ms Penhall-Jones submits that the respondent is unable to deny her psychological injury in the face of her successful workers compensation claims. Further, she submits that the respondent is unable to paint her as incompetent, especially since she has been given no work to perform.

Ms Penhall-Jones provides general comments on the respondent's reply to her submissions. She submits that the respondent has "strayed beyond the boundaries of the victimisation case" and has "taken advantage of the immunity offered to witnesses to the Court in order to make a constant baseless and insulting allegations against myself, which in any other context would be defamatory". She denies that she is a difficult person to manage and denies any adverse performance issues. Ms Penhall-Jones acknowledges[22] that she did not want to be supervised by Catherine Reilly. She states that this was "because of my observations of her behaviour, including her destructive and undermining behaviour in relation to anyone who challenged her when she was a union delegate". Nevertheless, Ms Penhall-Jones submits that she undertook the work that was allocated to her, even though she considered she was not given sufficient work. Ms Penhall-Jones alleges that Bill Grant and Catherine Reilly "obdurately obstructed" her work, "failed to follow correct procedures and, through being over-critical and unnecessarily aggressive, engaged in bullying". Ms Penhall-Jones says that this was the "last straw" as after this she was unable to return to the workplace due to a recurrence of her stress symptoms and she regards the actions of Ms Reilly and Mr Grant as aiming at her removal from the workplace in order to facilitate her forced resignation.

Ms Penhall-Jones denies the allegation that she has a propensity to misinterpret commonplace events. She asserts malice on the part of Ms Reilly in creating false "file notes" and the presentation of false and fraudulent evidence to the Court. Ms Penhall-Jones contests that what Ms Reilly perceived as a defensive and hostile attitude on her part was a performance issue. She submits that even if there had been performance issues, they had to be addressed in accordance with the Public Employment Officer's Personnel Handbook and the New South Wales Public Sector Employment and Management Act 2002. Ms Penhall-Jones submits that she is "vilified" in Ms Reilly's file note of 27 September 2004 and that the explanation that the file note was created because of allegations made against her by Ms Penhall-Jones is no explanation.

Ms Penhall-Jones submits that the respondent's submissions concerning the two Duffy letters are factually incorrect, misleading and misrepresent the situation. She notes that the Duffy letters were in response to general issues that she had raised concerning mismanagement - including issues warranting the attention of ICAC - but a link allegedly exists with the complaint to HREOC, apparently due to the threat to the Department of Transport that the complaint posed.

Ms Penhall-Jones continues to assert that the settlement offer made to her at the HREOC conciliation conference was a bribe. She submits that the respondent should simply have agreed to comply with the law.

Ms Penhall-Jones denies any feeling of guilt about her non attendance at the SSTS meeting. She states that she felt anxiety as a result of Ms Reilly's verbal abuse and shouting. Ms Penhall-Jones asserts that "conspiracy" is a fair description of the actions taken by Ms Lamond, Ms Reilly and Mr Grant in order to terminate her return to work programme and attempt to secure her resignation. She submits that there was a mutual understanding and a mutual benefit in doing her harm and that this harm occurred on the grounds that she had made a complaint to HREOC. She submits that it is not necessary to prove conspiracy in order to prove victimisation.

Ms Penhall-Jones asserts that the Court has jurisdiction to consider all of the elements of her claim of victimisation. First, she submits that s.46PO of the HREOC Act only deals with complaints of discrimination, not complaints of victimisation. Secondly, she submits that her victimisation is a continuing event and that the Court should deal with the whole issue. She asserts that she has suffered a detriment in the form of threats.

Ms Penhall-Jones then deals with the respondent's submissions as to particular factual issues, commencing with the meeting on 27 September 2004. She joins issue with the respondent on the analysis of the evidence. She submits that nothing justifies Ms Reilly's verbal abuse, even if she (Ms Penhall-Jones) had been entirely in the wrong and accuses Ms Reilly of hypocrisy, given her own status as a victim of workplace bullying. Ms Penhall-Jones emphasises that Ms Reilly was "apparently furious when our conversation began". She submits that Ms Reilly found out about the pending HREOC conference when she "aggressively questioned" her about her reason for her absence from the meeting. Ms Penhall-Jones submits that the respondent's submissions concerning Ms Reilly's actions and file note are "false, misleading or misrepresent the situation".

In relation to the conciliation conference, Ms Penhall-Jones asserts that this was not a bona fide attempt to resolve an issue. She continues to assert that the respondent misused the conference to attempt to bring about a detriment, "her resignation".

In relation to the Duffy letter of 18 November 2004, Ms Penhall-Jones submits that this is a key piece of evidence which supports her allegations and that I should conclude that the failure of the respondent to call him as a witness was an attempt to avoid further embarrassment.

In relation to the cancellation of her return to work programme, Ms Penhall-Jones again submits that the programme had been successful and there was no reason to cancel it. She submits that Mr Zelma never agreed to the cancellation of the programme. Ms Penhall-Jones submits that Ms Lamond's letter of 2 December 2004 discloses that a benefit derived from the cancellation of the return to work programme was that medical restrictions could be denied or treated as a mere request.

Ms Penhall-Jones also takes further issue with the letter of 12 May 2005 from the respondent's solicitors. She submits that she should not have been required to communicate with the respondent through its solicitors. She submits that the letter "comprises obvious and clear victimisation and the proof of that is on the face of the letter, which expressly states that the reason for the victimisation is to reserve an (untenable) defence".

Ms Penhall-Jones clarifies her position in stating that it was not part of her points of claim of victimisation to assert that the offer of an undertaking not to victimise was itself victimisation.

Ms Penhall-Jones then deals at some length with the credibility of Catherine Reilly as a witness. She accuses Ms Reilly of breaching s.36 of the Crimes Act 1914 (Cth) by the giving or constructing of false evidence as a deliberate act of malice. She accuses Ms Reilly of "recalcitrance" in answering questions in the witness box and is dismissive of Ms Reilly's explanations of loss of memory in relation to her reconstruction of her file note. Ms Penhall-Jones accuses Ms Reilly of contempt of the Court.

Ms Penhall-Jones then comments upon the respondent's concluding submissions. She again asserts that her workers compensation claim proves her disability. She accuses the respondent of using "structures put in place to assist in the medical management of the psychological injury to victimise" her. She submits that "having failed to force a resignation, the respondent has achieved the next best outcome from its view - I remain employed but without income and in addition have the stigma of a psychiatric label". Ms Penhall-Jones continues that the Court process itself has been harmful to her:

[102]

All the Respondent's witnesses portray themselves as patient while reproducing conversations in which I appear to be an eccentric character who is unreasonable, truculent, stupid and unable to grasp the basic requirements for employment - despite my 20 years experience in policy and research roles, most of which involved providing advice to senior managers and ministers. Even Joanna Quilty and Jodie Brough misquote me to give this impression. Reno Lucarini and Joanna Quilty amongst others claim I "turned red" in certain conversations, as did Catherine Reilly from the witness box. This recent misrepresentation of my demeanour suggests I have some sort of anger or rage problem. I have never had this said of me before this case.

The reality is that the Respondent's witnesses have mostly acted contrary to law, secretively, or with malice or at the best have been incompetent and have to cover this up

Mr Burke bases his whole response to my final submissions on unfounded allegations that I am a "difficult" employee, that I can not take criticism, that I engage in fantasies which turn normal occurrences into conspiracies, that I lie and for the past 8 years have been play-acting or malingering in relation to a psychological injury. There is no evidence, apart from the constant stream of unfounded defamatory statements in the Respondent's Affidavit evidence, to support any of this.

Despite his status as a partner in a corporate law firm, Mr Burke does not confine his comments to legal terms but indulges in emotive language in order to establish his argument and discredit me, examples of which include: "Machiavellian theory" (para 15(a)); "the ridiculous nature of the conspiracy theories contended by the Applicant" (para 15(c)); "it is fanciful to draw the distinction the Applicant makes" (para 16(b)); "the Applicant, fancifully, claims..." and "(t)he circularity of this argument is astounding" (para 16(d)). These emotive descriptions set the tone for the reader to consider that my arguments are not to be taken seriously. The tone re-appears with inferences as follows: "a clinically significant debility resulting in an inability to work as directed (para 90); "the fact that the Applicant was represented...by three different firms of solicitors (para 90(a)) and the entirety of sub-paragraph 90(b) referring to the alleged contradiction between having a disability and restrictions on ability to work and being able to represent oneself.

It has been an additional abuse and an additional source of distress for me to read this litany of venomous, false and defamatory statements made by colleagues and managers in the Respondent under the advice of corporate lawyers, sure of the cover of the immunity offered to witnesses by the Court.

These false and defamatory statements have had their effect on my case. The HREOC clearly believed the managers, which in turn influenced the discrimination case. My own lawyers saw the volume of false statements and defamatory material as an obstacle to the case, on the grounds that the managers would be believed in preference to myself.

[117]

Ms Penhall-Jones' submission that s.46PO of the HREOC Act is limited in its operation to unlawful discrimination and does not extend to victimisation cannot be right. If s.46PO did not include complaints of victimisation the Court would have no jurisdiction to entertain her application. It is true that s.46PO(3) is expressed in terms of "unlawful discrimination". Unlawful discrimination is defined by s.3 of the HREOC Act as meaning relevantly, any acts, omissions or practices that are unlawful under Part 2 of the DDA and includes any conduct that is an offence under Division 4 of Part 2 of the DDA. That includes s.42 of the DDA. It follows, and I find, that the jurisdictional limitation contained in s.46PO(3) of the HREOC Act applies to a claim of victimisation arising out of a terminated complaint of victimisation.

In Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573, Katz J expressed the view that s.46PO(3) does not permit an applicant to rely on acts of discrimination which occur after a complaint has been lodged with HREOC[25]. However, that view was qualified in Travers v New South Wales [2000] FCA 1565 by Lehane J who stated[26] that the ambit of a complaint is to be ascertained, for the purpose of s.46PO(3) by considering the shape of the complaint as at its termination. That is the approach I took in Ho v Regulator Australia Pty Ltd [2004] FMCA 62 and in Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721. I have not changed my view.

The complaint of victimisation made by Ms Penhall-Jones to HREOC was a complaint of ongoing victimisation, illustrated by reference to a number of alleged events. In these proceedings, Ms Penhall-Jones is entitled to rely on events occurring up to the date of the termination of her complaint of victimisation, where those events formed part of her complaint or so clearly connected to it that they may be considered as part of it. Ms Penhall-Jones' complaint of victimisation was terminated by a delegate of the President of HREOC on 20 September 2005. She cannot, in these proceedings, claim relief in respect of alleged acts of victimisation after that date. The result is that I will not consider, as an asserted act of victimisation, the reconstruction by Ms Reilly of her earlier file note of her conversation with Ms Penhall-Jones on 27 September 2004. As best as Ms Reilly can recall, that reconstruction took place in mid to late 2005 and could well have occurred as late as October 2005, after the termination of the complaint by HREOC. In the reconstructed file note, Ms Reilly refers to Ms Penhall-Jones as "the applicant". I find, on the balance of probabilities, that the reconstructed file note was created after the termination of the complaint of victimisation and the institution of the present proceeding in this Court. The reconstruction of the file note by Ms Reilly remains relevant, however, in considering the credibility of her evidence about the events on 27 September 2004.

I will consider the other acts of victimisation alleged by Ms Penhall-Jones. In considering the allegations I require a high degree of satisfaction that victimisation is established. An allegation of victimisation is an extremely serious matter which may have grave consequences for a respondent. Such allegations must be proved to the Briginshaw standard.

In considering the claim of victimisation it is unnecessary for me to resolve the question whether Ms Penhall-Jones now suffers from, or ever suffered from, a "disability" for the purposes of the DDA. I note that that is a disputed issue but I will not expand upon the observations that I made about it in my earlier judgment dismissing the application asserting disability discrimination. For the purposes of this proceeding, it is sufficient that Ms Penhall-Jones had made a complaint of disability discrimination.

[118]

On the morning of 27 September 2004 Ms Penhall-Jones was to have attended a meeting of the SSTS working party. Ms Penhall-Jones chose not to attend. It was her own decision because of the arrangement she had made for a conference with her lawyers in preparation for their attendance at a conciliation conference arranged by HREOC for the following day. Ms Reilly expected Ms Penhall-Jones to attend the SSTS working party meeting and had not been given any prior notice by Ms Penhall-Jones that she would not attend. According to Ms Penhall-Jones' account, Ms Reilly appeared angry when she met Ms Penhall-Jones at her work station at around 10.30am on that day. Ms Penhall-Jones asserts that Ms Reilly spoke to her in an angry and abusive manner. On Ms Penhall-Jones' account, Ms Reilly was angry and abusive from the outset. She appears to have been incensed that Ms Penhall-Jones had failed to attend the meeting. She did not know, at the outset, that Ms Penhall-Jones had arranged a meeting with her lawyers or that she had a commitment at HREOC the following day. On Ms Penhall-Jones' account, Ms Reilly angrily demanded an explanation for Ms Penhall-Jones' non attendance at the SSTS meeting and Ms Penhall-Jones explained her appointment with her solicitors and the commitment at HREOC the following day.

I accept that verbal abuse in the workplace (particularly by a supervisor) can be a "detriment" for the purposes of s.42 of the DDA. However, it is plain, from Ms Penhall-Jones' own account of the discussion between her and Ms Reilly, that what incensed Ms Reilly was the non attendance of Ms Penhall-Jones at the SSTS working party meeting, not Ms Penhall-Jones' complaint to HREOC, nor her pending attendance at the HREOC conciliation conference. I am prepared to accept that Ms Reilly dealt with Ms Penhall-Jones in their conversation in a hectoring manner. I regard Ms Reilly's account of the discussion as unreliable. Her contemporaneous file note of the conversation was prepared in the knowledge that Ms Penhall-Jones had made a complaint against her and was prepared as a personal response to that complaint. It was understandable that Ms Reilly would seek to place an interpretation on the discussion most favourable to herself. But she went further. Ms Reilly acted most unwisely in amending her contemporaneous file note in around October 2005 for the purposes of it being used as evidence in these proceedings. Her action was especially foolish as the contemporaneous version of her file note was already annexed to another affidavit filed in the proceedings and so her amendment was bound to be discovered. It is obvious that Ms Reilly and Ms Penhall-Jones do not like one another. There is a high degree of personal acrimony between them. They had disagreed well before Ms Penhall-Jones' HREOC complaint over union matters and had had a strenuous disagreement on an issue of policy in a discussion on 23 September 2004. That animosity makes me cautious about accepting the evidence of either of them about the content of the conversation between them, but I prefer the evidence of Ms Penhall-Jones. There is no issue of perjury or contempt (the affidavit of Ms Reilly in which she sought to rely upon the reconstructed file note was not read) and Ms Reilly should not be further pursued by Ms Penhall-Jones about the matter.

Ms Reilly had been made aware, prior to 27 September 2004, that Ms Penhall-Jones had made a complaint to HREOC[27]. There is no evidence that Ms Reilly was aware of the details of that complaint or that she had any interest in it. Ms Reilly was at one time a confidant of Ms Penhall-Jones but the relationship had cooled significantly by July 2004. Ms Penhall-Jones objected to being supervised by Ms Reilly from July 2004. She had a low opinion of Ms Reilly's professional capacity. For her part, Ms Reilly, although herself an alleged victim of workplace bullying, had shown little interest in Ms Penhall-Jones' return to work programme put in place as a result of her allegations of workplace bullying. Ms Reilly had failed to attend two meetings to monitor progress in the return to work programme. I find that, as at 27 September 2004 Ms Reilly cared little for Ms Penhall-Jones, her allegations of bullying, her return to work programme, or her complaint to HREOC. Her confrontation with Ms Penhall-Jones on the morning of 27 September 2004 was not linked to the complaint to HREOC or the pending conciliation conference. Rather, it was an overreaction to Ms Penhall-Jones' failure to attend the SSTS meeting. I find that the conduct of Ms Reilly on 27 September 2004, while open to criticism, was not victimisation for the purposes of s.42 of the DDA.

Neither was the alleged "programme of bullying" engaged in by Ms Reilly after 27 September 2004 victimisation. It does appear that after 23 September 2004 Ms Reilly began to take a close interest in Ms Penhall-Jones' work and that she commenced taking an interest in Ms Penhall-Jones' return to work programme. It is highly likely that Ms Reilly formed a view, after her confrontations with Ms Penhall-Jones on 23 and 27 September 2004, that she could not work with her. This must be seen in the context also of the prior history of the dealings between the two women. Mr Grant knew that Ms Penhall-Jones did not want Ms Reilly as her supervisor as she had complained to him about it and both knew that Ms Penhall-Jones could be difficult to deal with. Ms Reilly had her own problems as a result of alleged workplace bullying and had had to undergo a return to work programme and remained on medication. The Department of Transport deals with difficult policy issues of public importance in New South Wales and I have no doubt that the work of its staff can be stressful. I think it likely that between July and 23 September 2004 Ms Reilly paid less attention to Ms Penhall-Jones and her work than she should have. After that date she took a close interest. She found fault with Ms Penhall-Jones and her work. A supervisor is entitled to scrutinise and criticise the work of those who are supervised. The attitude of Ms Reilly may well have been coloured by her growing dislike of Ms Penhall-Jones but no link has been established with the HREOC complaint made by Ms Penhall-Jones.

[121]

You have raised many issues and allegations against the Ministry and its officers and employees, including but not limited to: unlawful discrimination; victimisation; criminal misconduct (including corruption); breach of contract; and maladministration. All these matters have been denied by the Ministry for itself and its officers and employees.

The mere raising, by you, of allegations does not establish the fact that wrongdoing has occurred. Such matters once asserted by you must be proved by you. Indeed such is the case with your current Human Rights and Equal Opportunity Commission claim, which as you know is being defended.

Further, it must be said that if an employee raises and continues to raise such serious (and, in our opinion, unfounded) allegations, which are either false or vexatious that fact alone would be sufficient, on our advice, for the Ministry to terminate your contract of employment. That is conduct, by an employee, of that kind is completely contrary to the duties of fidelity, trust and good faith owed by an employee to an employer.

In settling your claims the Ministry seeks a complete release and the Deed of Release, on our advice, is appropriate. The Deed does not seek to, and cannot "contract out" of statutory obligations for example: workers compensation; disclosures under the Protected Disclosure Act 1994 (NSW); or the like. Accordingly the Ministry seeks to maintain confidentiality but it does not seek to restrict your statutory rights.

We are satisfied that the employees of the Ministry involved in the briefing of its external legal advisors have, at all times, acted in accordance with the Ministry's directions.

The Ministry's offer can either be accepted or rejected by you.

Please let us know if you accept or reject the offer. If you accept the offer, can you please notify us of any changes you, or your legal representative, propose to the Deed of Release.

A copy of this letter has been provided to the Ministry's legal representatives, Abbott Tout Lawyers, to forward to your legal representatives, Jones Staff & Co.

[122]

Both parties agree that this letter speaks for itself. It was unnecessary for Mr Duffy to give evidence in relation to it and I draw no adverse inference from the failure of the respondent to call Mr Duffy as a witness. Ms Penhall-Jones regards the letter as containing a threat to her employment. She is probably correct. Mr Duffy came close to asserting directly that Ms Penhall-Jones had already provided sufficient cause for her employment to be terminated. At the very least, Mr Duffy was warning Ms Penhall-Jones that a continuation of her conduct might lead to the termination of her employment. Although expressed in general terms, by reference to advice, the letter contains the implication that the duty of trust and confidence essential to the employment relationship had been breached or was at risk of being breached. In that Mr Duffy was doing no more than stating the obvious. That is not to say that all of the allegations made by Ms Penhall-Jones, which extended to events unrelated to her complaints to HREOC going back as far as 1999 were necessarily unfounded, false or vexatious. What is important is that Mr Duffy (and it appears the Department of Transport as an entity) regarded the allegations as unfounded, false and vexatious. Provided that that view was genuinely held and was not a mere pretext for dismissal, there was no victimisation. The question then is, was it a genuinely held view, or was it a pretext?

It is clear to me from Mr Duffy's letter that the Department of Transport wished to see the back of Ms Penhall-Jones. Her employment could not, in the view of the Department, continue once the duty of trust and confidence had been breached. The apparent breakdown of the employment relationship was the reason why the Department had proposed that Ms Penhall-Jones resign in its settlement offer.

Clearly, the involuntary termination of Ms Penhall-Jones would be a detriment. Likewise, a threat to cause such a detriment may constitute victimisation for the purposes of s.42 of the DDA. However, the threat must have been made on one of the enumerated grounds of s.42(2) for victimisation to be established. It cannot be said that Ms Penhall-Jones' complaint of unlawful discrimination formed no part of the consideration that led to the threat made by Mr Duffy. However, in my view, it was an incidental part. The direct and proximate stimulus for Mr Duffy's letter was Ms Penhall-Jones' intemperate letter of three days before, in which she made serious (and unfounded) allegations of misconduct on the part of those representing the Department at the conciliation conference. Ms Penhall-Jones' letter to Mr Duffy was intended to provoke a reaction, and she got one. It was apparent to Mr Duffy that Ms Penhall-Jones' conduct had reached the point where the trust and confidence essential as between employer and employee was at least in peril, rendering it unlikely that she could continue in employment with the Department. It is implicit in the letter that the Department was seeking to "manage her out" but that it was seeking to do so on a negotiated basis that Ms Penhall-Jones could accept or reject as she saw fit. The threat of dismissal was based on advice and a genuine concern. It was not based upon a pretext. Moreover, the threat of dismissal was neither imminent nor certain.

Subsequent events have borne this out. Ms Penhall-Jones rejected the offer and has continued to make serious allegations against officers of the Department of Transport. Her employment has not been involuntarily terminated. With the benefit of hindsight, Mr Duffy's threat appears to have been an idle one. It would have been better if it had not been made. It certainly did no good, in terms of modifying Ms Penhall-Jones' behaviour. If anything, it had the opposite effect. However, the threat, in my view, falls short of victimisation. That is because the threat was a consequence not of the fact of the complaint of unlawful discrimination made by Ms Penhall-Jones, or her participation in the conciliation conference on 28 September 2004. Rather, the threat was a consequence of the intemperate and continuing allegations by Ms Penhall-Jones which Mr Duffy, on advice, genuinely viewed as unfounded, false and vexatious, to the extent of probably constituting a breach of the duty of trust and confidence necessary for the continuation of the employment relationship.

Ms Penhall-Jones wrote to Mr Duffy again on 24 November 2004[30] in which she took issue with the threat contained in his letter. Ms Penhall-Jones notes that she has forwarded a copy of her previous letter to the Minister's office who forwarded it to ICAC for investigation. Ms Penhall-Jones noted that threats to a public sector employee's employment or any other harassment of a person providing information to ICAC would breach s.50 of the Independent Commission Against Corruption Act 1988 (NSW). In the event, ICAC declined to investigate the matter.

Mr Duffy responded on 8 December 2004[31] in which, among other things, he referred to the HREOC proceeding and the rejection of the settlement offer. Mr Duffy noted the reference to ICAC and stated that he would have no objection to his letter being forwarded to ICAC. Mr Duffy expressed the view that the conduct of Ms Penhall-Jones with regard to her "supervising managers and staff of the employee relations unit" continued to be unsatisfactory and "there are unresolved performance issues". In my view, this letter adds nothing material to Mr Duffy's letter of 18 November 2004. There is nothing in it that could be construed as victimisation by any fair minded observer.

[124]

I have already found that the Department of Transport wanted to be rid of Ms Penhall-Jones, as is obvious from the settlement offer and Mr Duffy's letter dated 18 November 2004. The Department had received advice which indicated that the employment relationship had broken down or was at least at risk of doing so. Those responsible for the cancellation of the return to work programme were Mr Grant, Ms Lamond and Ms Reilly, with the reluctant agreement of Mr Zelma. There are some troubling aspects to the cancellation of the return to work programme. Ms Lamond was less than frank with Ms Penhall-Jones in not telling her in advance of the critical meeting to be held on 4 November 2004. Ms Penhall-Jones nevertheless found out about the meeting from Mr Zelma. Ms Lamond, Mr Grant and Ms Reilly appear to have acted with undue haste in scheduling the meeting at a time when Mr Zelma could only attend by telephone. It is a matter of speculation whether there is any link between the cancellation of the return to work programme and the advice referred to in Mr Duffy's letter of 18 November 2004. While one may speculate, there is no proof. The meeting which resolved to cancel the return to work programme occurred on 4 November 2004, before Ms Penhall-Jones' letter of complaint to Mr Duffy and his reply. Mr Duffy's letter recognised the fact that the employment relationship had probably broken down. That breakdown had occurred over time between September and November 2004. The first HREOC complaint was contemporaneous but was not itself the cause of that breakdown. The cause was the stream of allegations made by Ms Penhall-Jones, which the Department rejected.

Ms Penhall-Jones asserts that the termination of her return to work programme was contrary to New South Wales law and public sector policy. That may or may not be the case and I make no finding. The process could certainly have been handled better but the stimulus for it was the cessation of work by Ms Penhall-Jones, not the HREOC complaint. Mr Zelma, an independent participant in the process, reluctantly accepted that the return to work programme was not meeting its objectives. I draw no adverse inference from the failure by Ms Penhall-Jones to call Mr Zelma as a witness. I do not think that he could have done anything other than confirm his opinion, which is already in evidence. Although not expressly recognised at the time by Mr Grant, Ms Lamond, Ms Reilly and Mr Zelma, it must have been clear to all of them that Ms Penhall-Jones probably could not and would not be returning to the workplace. The employment relationship had probably collapsed and it was unrealistic to attempt to revive it. The only person who did not see that, and who continues not to see it, is Ms Penhall-Jones.

For the same reasons, the refusal by the Department subsequently to reinstate the return to work programme does not constitute victimisation. The employment relationship having broken down and Ms Penhall-Jones having departed the workplace indefintitely, it was pointless to reinstate the programme. There was no serious question of Ms Penhall-Jones returning to work at the Department of Transport. The outstanding question was the terms upon which Ms Penhall-Jones would be compensated for the loss of her employment, which while not formalised, was then and is now an effective fact. That issue remains unresolved and needs to be resolved. It is beyond the scope of these proceedings but the underlying dispute between the parties cannot be resolved until that issue is dealt with.

The remaining allegations of victimisation relate to the conduct of the respondent, and its lawyers, in the proceedings in this Court following the termination of the first complaint by Ms Penhall-Jones to HREOC. The letter of 12 May 2005 to Ms Penhall-Jones from the respondent's solicitors was a straightforward request that she communicate through them, rather than to the Department of Transport, in connection with the legal proceedings. That is not only a normal request to make for the purposes of the conduct of litigation, it is a necessary step so that the solicitors acting for a party can keep track of correspondence relevant to the litigation. It is nonsense to characterise that request as an act of victimisation. Likewise, the offer by the respondent after 11 July 2005 to undertake not to victimise Ms Penhall-Jones cannot rationally be characterised as being an act of further victimisation. I note, in any event, that Ms Penhall-Jones in her submissions in reply appears not to press that assertion.

I conclude that Ms Penhall-Jones has failed to establish her claim of victimisation. I will order that the application be dismissed.

I will hear the parties as to costs.

Penhall-Jones v State of New South Wales

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Judgment (150 paragraphs)

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Legislation Cited (6)

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