Roxburgh v Secretary, Department of Education NSW

Legal principles

1. In McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310, Deputy President Hennessy LCM, as she then was, at [4] - [7] made the following observations concerning the legal principles relevant to this application, which I also adopt. Authors Rees, Rice and Allen identify the two overlapping purposes of s 105 (and similar provisions throughout Australia): ... first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint: N Rees, K Lindsay and S Rice, Australian Anti-Discrimination Law, Text, Cases and Materials (2nd ed 2014, The Federation Press) at 812. Section 105 is modelled on the power of courts to make interlocutory injunctions. Common law principles applicable to interlocutory injunctions provide useful guidance: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Kirby J at [110]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 per Gummow and Hayne at [89]. In Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46 the High Court explained that the court should address itself to two main inquiries: The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. I agree with authors Rees, Rice and Allen, that these principles should guide rather than control courts and tribunals when dealing with applications for interim orders in anti-discrimination cases: Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, Federation Press) at 816.
2. The following was referred to in McEwan at [8]: The High Court has emphasised that there is no inflexible rule as to the extent to which the legal merits of a case must be examined before determining whether to make an interim order: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. It depends on the nature of the dispute.
3. Ms Roxburgh alleges that the Respondent has discriminated against her on the ground of her sex (pregnancy) and her responsibilities as a carer.
4. Section 25 of the AD Act provides that: (2) It is unlawful for an employer to discriminate against an employee on the ground of sex - (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment.
5. The definition of discrimination on the ground of sex is set out in s 23. Sex discrimination includes discrimination relating to pregnancy. Discrimination may be direct, as defined in s 24(1)(a) of the AD Act, or indirect, as defined in s 24(1)(b). An employer has a defence to a complaint of dismissing an employee under s 31.
6. Section 49V(2) of the AD Act provides that: (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer: (a) in the terms or conditions of employment that the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment.
7. The meaning of "responsibilities as a carer" is set out in s 49S of the AD Act. The definition of discrimination on the ground of responsibilities as a carer is set out in s 49T. Discrimination may be direct, as defined in s 49T(1)(a) of the AD Act, or indirect, as defined in s 49T(1)(b). An employer has a defence to a complaint of dismissing an employee under s 49(2)(c) in the circumstances set out in s 49V(4).
8. The Respondent, as an employer, has a legal obligation not to discriminate against an employee in the terms or conditions of their employment or by dismissing an employee. To establish the Respondent's conduct amounts to discrimination, the onus is on Ms Roxburgh. The Respondent then is required to establish that their conduct comes within an exception, if available.
9. The following summary of the relevant matters is rehearsed from an affidavit filed by Mr Andrew Pesle, school principal of Swansea High School.
10. In 2020, Ms Roxburgh was employed in the position of Head Teacher, Special Education ("the Substantive Role") at Swansea High School. The Substantive Role was unique as it is a specialist teaching role supervising staff as well as teaching students who require additional supports for their learning. Ms Roxburgh has the relevant specialist knowledge, education and training for that role.
11. In May/July 2020, Ms Roxburgh applied for and was successful in obtaining a role as a Learning and Wellbeing Officer ("LWO") in Murwillumbah, NSW. She relocated to Norther NSW to undertake that role. The position was for three years. The fixed term contract for the LWO role ceased on 16 July 2023. Following the cessation of that role, Ms Roxburgh asked for, and was given, a period of leave at half pay from 17 July 2023 to 9 October 2023. A further request for leave was granted to Ms Roxburgh. Initially, she sought a longer period, being to 18 December 2023, which was refused. However the requested leave period was shortened to 27 October 2023. Ms Roxburgh is currently on unpaid leave from 9 October 2023 to 27 October 2023. It is this refusal of the longer period of leave which relates to the complaint before ADNSW.
12. The Respondent contends, that at the end of the LWO contract period, the following options were available to Ms Roxburgh: 1. Return to the Substantive Role on 17 July 2023; 2. Re-apply for another 3 year fixed contract LWO role at Murwillumbah, if successful, she would be required to relinquish her right of return to the Substantive Role; or 3. Relinquish her right of return to the Substantive role and apply for other roles with the Respondent, of her choosing.
13. The parties attempted conciliation. An offer has been made by Ms Roxburgh and was rejected by the Respondent.
14. Ms Roxburgh has not been directed by the President of the Anti-Discrimination NSW or the Tribunal to set out the legal basis for her complaint. If her complaints are referred to the Tribunal, it is likely that she will be directed to do so given the legal complexity of the relevant statutory provisions. The complaint may rely on both direct and/or indirect discrimination. Whether Ms Roxburgh relies on direct or indirect discrimination the Respondent will need to consider whether they rely on any exception or defence.
15. No jurisdictional issue has been raised that would prevent Ms Roxburgh from making her complaint. No dispute appears to be raised about Ms Roxburgh's pregnancy or her responsibilities as a carer as defined in s 49S. What is evident from the brief material before me is that Ms Roxburgh has been the subject of certain treatment in the workplace including a refusal of a further period of unpaid leave. Until Ms Roxburgh' identifies the legal basis for her complaint, it is not possible to make a further assessment of the merits of her complaints.
16. I do not have all the evidence on which Ms Roxburgh wishes to rely. I have a copy of Ms Roxburgh's discrimination complaint and the President's letter to the Respondent seeking a response. She also relied upon an email dated 16 October 2023 and a letter under the hand of Ms Curtis, the solicitor for the respondent. At the hearing, the Respondent relied upon an affidavit of Mr Pesle.
17. The evidence satisfies me that there is considerable disagreement between Ms Roxburgh and the Respondent about the way in which her requests for leave have been considered and dealt with by the Respondent. I should not attempt to resolve conflicts of evidence at this stage.
18. There is some room for argument as to the legal merits of Ms Roxburgh's complaint, but those matters should not operate as a barrier to the consideration of where the balance of convenience lies.

Balance of convenience

1. Ms Roxburgh has been on leave without pay from 9 October 2023 to 27 October 2023. Her request for leave without pay to 19 December 2023 was refused. Ms Roxburgh argues that the inconvenience or injury she would suffer if an interim order is not granted is that she is likely to be dismissed. This is because Ms Roxburgh argues that the Respondent's "abandonment of employment" policy could lead to her termination. That policy is: "If an employee is on unauthorised absence for five or more continuous working days or if an employee is absent without approval and has not made contact with an exemption, the department may start abandonment of employment proceedings". She asserts that if she loses her job, that will cause significant disruption and hardship to her and her family. Ms Roxburgh did not file any evidence about the family's income, expenses or assets or the prospects of her obtaining other employment. If Ms Roxburgh's employment was to be terminated, which importantly has not yet occurred, if an interim order is not granted, I am unable to determine the extent of that loss or whether it will result in financial hardship.
2. If the interim order is refused and Ms Roxburgh's complaints are determined in her favour, the Tribunal has power to order the Respondent to pay Ms Roxburgh damages by way of compensation for any loss or damage suffered by reason of any discriminatory conduct: AD Act, s 108(2)(a). That compensation potentially includes lost wages.
3. The Tribunal also has power to order that she be re-employed, that is of course if a decision was made to terminate her. However, it is unclear if that decision was made, whether it would form part of the claim for unlawful discrimination. I note that the Tribunal has a general power to "order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant".
4. From the Respondent' point of view, if an interim order is granted the department will have to keep 'backfilling' the Substantive Role with temporary teachers for an indefinite period. However, during the hearing Ms Roxburgh said that she would return to the Substantive Role in early February 2024. There is no evidence that she has formally committed to doing so. This is probably because of the ongoing dispute. The Respondent will also be burdened with further operational tasks in circumstances where it is unclear whether and when the Applicant will return to the Substantive role. Again, I note Ms Roxburgh's submission about when she would return. The Respondent also submits that no decision has been made to initiate the abandonment of employment procedure. I infer from this that the application for an interim order is premature.
5. The Respondent contends that the proposed interim order sought by Ms Roxburgh, is unclear in its terms, and, it goes beyond the status quo and seeks to invoke an arrangement which exempts Ms Roxburgh from the abandonment of employment policy. The order seeks to place Ms Roxburgh on a period of leave for an indefinite period, which she has no entitlement to. This is because unpaid leave is at the discretion of the Principal, at Swansea High School.
6. The Respondent also contends that the interim order does reflect the status quo, but rather Ms Roxburgh seeks to obtain a final position relevant to her complaint. Also, it is submitted that the interim order is not required to preserve the rights of Ms Roxburgh.
7. I accept the Respondent's written submissions at [26] that the status quo is as follows: (i) The Applicant is on a period of approved unpaid leave until 27 October 2023; (ii)The Applicant has been absent from the workplace on periods of approved both paid and unpaid leave) since 16 July 2023 when the Contract ended; (iii) The Applicant has been expected to return to her Substantive Role since at least 16 July 2023, if not since 20 July 2020; (iv) The Applicant can, if she elects to do so, relinquish her right to return to her Substantive Role and apply for other roles, in whatever region she so wishes; (v) If she chose to do so, she would not be on an "unauthorised absence" as noted in the Policy, as the 'trigger' for the exercise of discretion by the Respondent to commence a process surrounding an abandonment of employment.
8. The Respondent submits at [27], which I accept, the current 'status quo' as described above: (i) confers on the Applicant a choice which has been available to her since at least 16 July 2023, if not since 20 July 2020 or some time thereafter; (ii) Does not disadvantage the Applicant; (iii) Does not offend the principles set out in McEwan.
9. The Respondent has not and does not propose to alter the 'status quo' in a manner that would make it difficult for the Tribunal to grant an appropriate remedy if the Complaint is substantiated.
10. Conclusion
11. If an interim order is refused and Ms Roxburgh substantiates her complaint, it is likely that she will be compensated for lost wages (if applicable) and other damages. On the other hand, if an interim order is granted and Ms Roxburgh does not substantiate her complaint, the Respondent will not be able to recover the loss incurred by 'backfilling' the Substantive role with temporary staff and other operational resources necessary to keep that position open pending the resolution of the complaint before AD NSW. I am not satisfied that the Respondent is proposing to alter the status quo which would make it difficult for the Tribunal to grant a remedy if the complaint is established. I am not satisfied that Ms Roxburgh has established irreparable damage would flow if the interim order is not made. This is because the 'status quo' would remain (see paragraphs [30] - [31] above), and, there is no evidence that the Respondent has, or will, proceed to invoke the abandonment of employment policy. If the interim order is made, the Respondent would be compelled to not require Mr Roxburgh to return to the Substantive Role for an indefinite period, that being the date the investigation of the Complaint has been finalised by ADNSW. This in turn will require the Respondent to incur further expense, resources and time to 'backfill' the Substantive Role with temporary teachers. For those reasons, the balance of convenience lies with the Secretary, Department of Education NSW.
12. Orders 1. Ms Roxburgh's application for an interim order prohibiting the Secretary, Department of Education NSW terminating her employment under the abandonment of employment policy, prior to Anti-Discrimination NSW completing her complaint, is refused. 2. The application is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 23 October 2023