Secretary, NSW Department of Communities and Justice v James [2023] NSWCATAP 64 | Case summary

NCAT Appeal Panel|2022-12-16

Introduction

This is an appeal from a decision of the Tribunal on 22 August 2022 (the Decision).
Before the Tribunal was a claim of victimisation pursuant to s 50 of the Anti-Discrimination Act 1977 (NSW) (the ADA) brought by the Respondent, Ms James, in relation to conduct by employees of the Appellant between October 2019 and 18 January 2021 (Complaint Period).
The complaint was that the Appellant offered insufficient assistance to Ms James to return to work following a period of workers compensation leave and took steps to delay or prevent her returning to the role of Senior Services and Programs Officer (SAPO) at Emu Plains Correctional Centre (EPCC) Grade 7/8 (Substantive Position) because she had made complaints against employees of the Appellant, including a complaint of sexual harassment and bullying.
As summarised by the Tribunal at [3] of the Decision, Ms James claimed that she was successful in returning to work at the Appellant in October 2019, albeit to an administrative role below her level of competence. She alleged that she was only returned to work because of the intervention of SafeWork NSW (SafeWork) and that the Appellant continued to deny her returning to the Substantive Position, despite her being medically cleared to do so. Ms James, as further summarised by the Tribunal at [3] of the Decision, complained specifically about the conditions the Appellant determined she must satisfy, set out in its letter to her of 12 December 2019 (the Letter), prior to it considering whether she can return to the Substantial Position. The Appellant claimed that it did assist her return to work and that her return to work in October 2019 was not caused by the intervention of SafeWork. Secondly, that the matters set out in the Letter were based on the recommendations of a Government Medical Officer (GMO).
The Tribunal found Ms James had substantiated her complaint that the Appellant had breached s 50(1) of the ADA.
The orders of the Tribunal were as follows: 1. The respondent pay the applicant $35,000 by way of compensation for the non-economic loss or damage suffered by reason of the respondent's victimisation within 28 days of the order. 2. The respondent pay the applicant $819 gross by way of compensation for the economic loss or damage suffered by reason of the respondent's victimisation within 28 days of the order. 3. The respondent is enjoined from continuing or repeating any conduct rendered unlawful by this Act or the regulations against the applicant. 4. The respondent place the applicant into the Senior Services and Programs Officer role at Emu Plains within 28 days of receiving medical advice that she is fit to carry out the inherent requirements of the role.

Background Facts

The Tribunal below set out the background facts at [5]-[25] as follows: 5 On 23 July 2002 Ms James commenced employment with DCJ in the position of SAPO (drug and alcohol counsellor) within the Offender Management and Programs within the Intensive Drug and Alcohol Treatment Program (IDAPT) at the John Maroney Correctional Centre at the Windsor Complex. Ms James was promoted into the role of Program Facilitator in 2003. In 2014, Ms James was appointed as a Throughcare and Placement Officer. 6 On 26 May 2015, Ms James lodged a complaint with the Anti-Discrimination Board (now Anti-Discrimination NSW) alleging that she was prevented from returning to the Substantive Position and workplace at the Windsor complex because of her complaint of bullying and harassment against Mr Calver, Director of IDAPT, DCJ (First Complaint). 7 From November 2015 to April 2016, Ms James was absent from work on workers compensation leave. She returned to work at Silverwater Correctional Centre in a Grade 5/6 role, although paid at grade 7/8 and in May 2016 was certified fit for pre-injury duties outside IDAPT. Ms James continued to work at the Silverwater Correctional Centre until October 2016. On 23 January 2017, Ms James commenced her Substantive Position. 8 On 26 October 2017, Ms James made an internal complaint about Ms Moore (Regional Support Manager Metro), Dr Martin (Assistant Commissioner) and Mr Jackson (Ms James' supervisor). The allegation was that as a result of the First Complaint, she had been victimised. The particulars of the victimisation were listed as missed development opportunities, no feedback when requested, bullying behaviour and senior management failure to address issues of concern when advised. 9 Ms James made a second complaint to the Anti-Discrimination Board in August 2018 alleging discrimination on the ground of disability and victimisation about a complaint period of 23 January 2017 to 16 August 2018 (Second Complaint). The Second Complaint contained allegations similar to those she had made in her internal complaint to DCJ on 26 October 2017. 10 From August 2018 and up to 12 September 2019, Ms James was certified fit to work in the Department of Justice, but not in the DCJ Division. However, no suitable work was provided, and Ms James was off work on workers compensation leave. In this period, she was participating, together with her treating psychiatrist Dr Naaz, the insurer, DCJ (Mr Tregurtha, HR Advisor) and her return to work provider in return to work meetings. 11 On 12 September 2019, Ms James received medical clearance from Dr Kate Pham, her General Practitioner (GP) that she had capacity to return to the Substantive Position to perform pre-injury duties for 5 hours a day, 3 days a week on a trial basis. 12 On 20 September 2019 DCJ determined to refer Ms James for a fitness for duty assessment to a GMO, Dr Himalee Abeya (Dr Abeya). 13 On 10 October 2019, at Ms James' request, SafeWork contacted DCJ regarding her returning to work. On 11 October 2019, Ms James was notified by Mr Tregurtha that she would commence working at the Windsor Community Correctional Centre from 22 October 2019 pursuant to a Return to Work Plan 1. 14 Return to Work Plan 1 and later the Return to Work Plan 2 were developed in consultation with Ms James, Dr Naaz, the insurer and Mr Tregurtha. 15 Ms James commenced work at Parklea Correctional Centre and Windsor Community Corrections with the aim of returning to the Substantive Position by the end of 2019. 16 On 5 November 2019, DCJ was provided with a report from Dr Abeya, GMO. On 12 November 2019, Mr Tregurtha informed Ms James that he would be meeting with Ms Hellams and other senior management early next week regarding a return to work to the Substantive Position. 17 On 29 November 2019, Mr Tregurtha informed Ms James that the outcome of the meeting was the completion of a workplace assessment at Emu Plains so that she could return to the Substantive Position based on 'recommendations from your treating psychiatrist, the independent psychiatrist and SafeWork NSW.' 18 On 11 December 2019, Ms James' Substantial Position was advertised. 19 On 12 December 2019, DCJ sent Ms James the Letter setting out a new Return to Work Plan which included numerous new conditions not included in Return to Work Plan 1 or Return to Work Plan 2. At this time Ms James was working pursuant to the Return to Work Plan 2 dated 5 December 2019. 20 On 11 March 2020, Ms James was certified fit for the Substantive Position on a full time basis with a review on 11 May 2020. 21 Because of the disputed matters between DCJ and Ms James, substantially set out in the Letter, Ms James has not been returned to the Substantive Position. At the time this Tribunal hearing took place, Ms James was working from home performing administrative work. The administrative work was below her level of skill and expertise, however DCJ continued to pay her at the Grade 7/8 level of the Substantive Position. Past Complaints 22 In the First Complaint, Ms James claimed, and the Tribunal found, that one of the real reasons that Ms James was not returned to the Windsor complex was because of DCJ's disapproval of her bringing a complaint against Mr Calver. This conduct amounted to victimisation pursuant to s50(1)(c) of the Act and she was awarded the sum of $20 000 as compensation for the harm caused to her. James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 (2017 Decision). 23 In the 2017 Decision, at paragraph [3] DCJ explained that the reason why Ms James was prevented from returning to her Substantive Position was because she had a medical restriction to not have any contact with Mr Calver which could not be guaranteed. Therefore, DCJ found an alternative suitable position for Ms James at Silverwater. DCJ determined that Ms James would not return to the Windsor complex until such time as the matter had been finally determined 'for her own safety and to protect the integrity of the investigation process' [3]. 24 The substance of the Second Complaint was that regarding the complaint period of 23 January 2017 to 16 August 2018: (1) Dr Martin made a misleading statement in the first NCAT proceedings. (2) There was a refusal by DCJ of Ms James' request for review of the findings made by an external investigator regarding complaints she had made in September 2017. (3) DCJ failed to grant Ms James' request to Act up as a Manager Offender Support Programs (MOSP) and failed to provide her with promotional opportunities and place her on a transitional plan. (4) DCJ attempted to discipline Ms James for leaving work early. (5) DCJ failed to provide Ms James with appropriate support after she reported a work health and safety incident in March 2017. (6) DCJ requested that Ms James attend a meeting with Dr Martin and others in August 2017 to develop a return to work plan. (7) DCJ requested a meeting with Ms James to discuss complaints made against her by other staff. 25 In James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 the Tribunal found the complaint not substantiated. The decision was upheld on appeal in James v Department of Justice (Corrective Services NSW) [2022] NSWCATAP 49.

The complaint before the Tribunal

On 6 July 2020, Ms James lodged a disability discrimination and victimisation complaint against the Appellant. Ms James alleged that the Appellant victimised her by subjecting her to detrimental workplace conditions because she previously lodged complaints of disability discrimination and victimisation with the then Anti-Discrimination Board which were the subject of proceedings in the NSW Civil and Administrative Tribunal.
On 16 November 2021, the President of the Anti-Discrimination Board referred to the Tribunal the complaint by Ms James. The Complaint Period was initially from October 2019 until 6 July 2020. Subsequently, the Tribunal extended the Complaint Period to 18 January 2021.
Before the Tribunal, Ms James submitted that the complaint the Tribunal was to consider was set out in paragraph 12 of the Points of Claim dated 14 June 2021. Paragraph 12 of the Points of Claim, as summarised by the Tribunal below at [28], alleges that Ms James had been victimised in the following ways: (i) Precluded from returning to her substantial position despite medical clearance. (ii) Initially returned to a role substantially below her pay level. (iii) Assigned administrative work with reduced responsibilities. (iv) The above caused embarrassment and humiliation. (v) Ms James' career path was adversely affected damaged as she has been unable to 'stay current'. (vi) Ms James has effectively been denied any real opportunity to Act up in higher roles or apply for such roles. This occurred because she was prevented from returning to her substantial role. (vii) Ms James was compelled to undergo mediation when initially it had been denied to her. Mediation was only required once she was fit for pre-injury duties. (viii) Forced to jump through hoops to return to pre-injury duties. (ix) Other issues referred in her statement. Ms James also refers to some other issues in her statement.
The Tribunal at [32], considered the substance of Ms James' allegations that she had been victimised by the Appellant to be: 1. Allegation 1: Failure to assist Ms James to return to work in October 2019 following a period of workers compensation leave. 2. Allegation 2: Requirement for Ms James to comply with conditions determined by the Appellant in a letter on 12 December 2019 (the Letter).
These detriments were alleged to have occurred "on the ground that" Ms James had brought proceedings against the Appellant under the ADA.
The documents before the Tribunal upon which both Ms James and the Appellant placed reliance were as follows: (1) Opinion by Dr Naaz (treating psychiatrist) to DCJ, 9 October 2017; (2) Opinion by Dr Naaz, 18 October 2018; (3) Opinion by Dr Naaz to Dr Pham (Ms James' General Practitioner), 2 July 2019; (4) Opinion by Dr Abeya (GMO) to DCJ, 18 October 2019; (5) Opinion by Dr Naaz to DCJ, 2 March 2020; (6) Opinion by Dr Naaz to DCJ, 8 April 2020; (7) Supplementary Opinion Dr Abeya to DCJ, 23 June 2020; (8) WorkCover Certificates of Capacity; (9) SafeWork's Inspection report dated 10 October 2019, created by Inspector Kilpatrick; (10) Email from Mr Tregurtha to Ms James about commencing work at Parklea on 11 October 2019; (11) Return to Work Plans: Return to Work Plan 1 (22 October 2019) goal to return to Substantive Position by 30 December 2019, Return to Work Plan 2 (5 December 2019) goal to return to Substantive Position by 30 December 2019, Return to Work Plan 3 (20 January 2020) goal to return to Substantive Position by 27 January 2020; (12) Letter from Mr Langbein to Ms James, 12 December 2019; (13) Letter from Ms James to Mr Langbein, 19 January 2020; (14) Letter from Mr Langbein to Ms James, 21 January 2020; (15) Notes of case conference meetings attended by Mr Tregurtha (DCJ), Ms James, Dr Naaz, the insurer and rehabilitation provider on 2 April, 21 May and 18 June 2019; (16) Email from Mr Tregurtha to Ms James about returning to Emu Plains on 29 November 2019.

Allegation 1: Failure to assist Ms James to return to work in October 2019 following a period of workers compensation leave

On 10 October 2019, at Ms James' request, SafeWork contacted the Appellant regarding Ms James returning to the Substantive Position and met with Mr Tregurtha.
On 11 October 2019, Ms James was notified by Mr Tregurtha that she would commence working at the Windsor Community Correctional Centre from 22 October 2019 pursuant to Return to Work Plan 1. The aim of Return to Work Plan 1 was to return to her Substantive Position by the end of 2019.
On or around 22 October 2019, Ms James commenced a role at Windsor Community Correctional Centre paid at the same level as her Substantive Position. Ms James alleged that the Appellant did not deny that the duties Ms James was performing were well below her level of skill and experience.
A copy of SafeWork's Inspection Report dated 10 October 2019 stated: Mr Tregurtha and Ms Oliver advised suitable administrative duties may be available at a site in Parklea. Mr Tregurtha advised he would make contact with the Manager of this site to review the availability of suitable duties. I advised a Workplace Assessment/task analysis could be valuable to determine the nature of the work, this could then be provided to treating parties in the form of a Return To Work Plan for their review. I requested that Mr Tregurtha have a draft Return To Work Plan sent to me by 18 October 2019 following his discussion with the appropriate site manager and the approved Rehabilitation Provider.
Accordingly, the Inspection Report records that Mr Tregurtha considered that there may be suitable duties at Parklea and that he would make contact with the Manager to review the suitable duties.

Allegation 2: Requirement for Ms James to comply with conditions determined by the Appellant in a letter on 12 December 2019 (the Letter).

The Letter reads: Return to Work Plan We refer to the Government Medical Officer (GMO) fitness for duty assessment conducted on 18 October 2019 by Dr Abeya, Consultant Psychiatrist, and the GMO report provided to DCJ on 5 November 2019 (GMO Report). Purpose of this letter 1. The purpose of this letter is to outline proposed next steps in relation to implementation of the recommendations in the GMO report to facilitate your safe and substantive return to your substantial position with DCJ, and in a manner that does not cause a recurrence or exacerbation of your psychological injury. Your workers compensation claim 2. On 26 October 2017, you reported an injury and nominated the date of injury as 2 October 2017. The description of your injury is recorded on our 48 H incident/injury report form in the following terms i. Victimisation: previous complaint in NCAT in August this was approved. Since then further victimisation/missed development opportunities, no feedback when requested, targeting emails, bullying behaviour and senior management failure to address issues when advised. Those involved are Cindy Moore, Anne-Marie Martin and Jacob Jacobson and others as necessary. At the moment complaint is being externally investigated with Michael Baldi. 3. The external investigation was a reference to the investigation undertaken by John Counter, O'Connor Marsden and Associates Pty Ltd. The investigation was undertaken in response to your grievance lodged on 11 September 2017 addressed to commissioner Peter Severin in which you alleged bullying and harassment/discrimination against senior management of CSSW including: i. continuing victimisation an exclusion from development opportunities due to raising a victimisation with NCAT. This issue was one. No follow up regarding what Action has been taken against those that were implicated in the matter. Further victimisation in regards to requests and queries be ignored via email and also accused of breaking policies which is inaccurate and went further information is requested, it is then not forthcoming. 4. You lodged a workers compensation claim and were diagnosed with Chronic Adjustment Disorder and Depressed Mood and Anxiety by your treating psychiatrist, Dr Naaz. 5. During the period 24 October 2017 to 11 September 2019 you were certified no capacity for work or had restrictions which provided you were unfit to work at DCJ. 6. Effective 12 September 2019, you were certified fit to return to your pre injury duties for five hours, three days per week. 7. Giving your continued absence from your role as a Senior SAPO of more than two years, and prior advice from you're treating psychiatrists that "any reminder of Corrective Services is an Active trigger for Rita's anxiety and hence should be avoided", you were required to undertake a GMO to assess your fitness to return to your Substantive Position. Substantive Position 8. Your Substantive Position is Senior SAPO, clerk grade 7/8 at EPCC. 9. You were Acting in this role on the date of injury. This became your Substantive Position affective February 2018, following the IDATP restructure process. 10. Since the date of injury a. Jacob Jacobson has ceased to work at EPCC and now holds the role of regional support manager metro E. Upon your return to EPCC you will report directly to the Acting MOSP Sydney West 2 b. Cindy Moore has been permanently appointed to the role of Regional Support Manager - MetroWest - Offender Services Programs. This means that Ms Moore will continue to be your overarching line manager. c. Anne-Marie Martin continues to hold the role of Assistant Commissioner Offender Management and policy and has overall responsibility for the functions conducted by all offender services and programme staff. 11. In returning to your Substantive Position provision from, and all contact with Cindy and Anne-Marie will be unavoidable. GMO report 12. The GMO report certifies you fit to return to your Substantive Position at EPCC, subject to certain conditions/ recommendations. 13. The GMO report recommends a return to work planning meeting, and further that it would be helpful to incorporate your treating psychiatrists' views into your return to work plan. 14. Although not a medical condition, the GMO report also notes it may be worthwhile giving due consideration to Dr Naaz's request not to have miss more involved in return to work planning. 15. The GMO report also recommends a graduated return to work, allow some time for orientation with any new processes and procedures adopted at work whilst you have been away, and consider having a regular go to person in management you can liaise with if there are any issues upon your return. Developing a return to work plan 16. We set out below our proposal for your return to work plan. 17. In our view and consistent with the discussions at the return to work case conferences the following issues need to be implemented as part of the return to work plan: Mediation 18. You have made allegations of bullying and harassment and victimisation by senior management and have continued to express distrust, or at the very least apprehension, in connection with senior management. 19. We understand this to be a reference to Cindy Moore Anne-Marie Martin and Jacob Jacobson. However, please let us know if there are additional senior management to which you refer. 20. Your allegations have been investigated by the Independent Investigator and found not substantiated. We appreciate that you do not agree with the findings of the independent investigator, that you sought a review of the findings (which was declined), and that have alleged in your NCAT proceedings that the findings, and the failure to review the findings, amount to victimisation. 21. You are entitled to prosecute your NCAT proceedings. However so far as concerns to your return to work plan, DCJ considers that your grievances now concluded and that the allegations against the identified members of the senior management and not substantiated. 22. For the purposes of your return to work plan (noting in particular paragraph 11 above) restoring the relationship of trust and confidence on both sides is integral to ensuring your safe and sustainable return to the workplace. Effective working relationships require goodwill and commitment on both sides. 23. Consistent with the recommendation from Dr Naaz, and in the interests of restoring functional working relationships going forward, as a first step in your return to work plan, we propose a mediation be conducted. 24. We consider that mediation would be most effective if conducted along the following lines; a. the initial participants in the mediation would be you Cindy, Anne-Marie Anne the Acting MOSP b. you're welcome to bring a support person c. the mediation be conducted by an external provider d. the purpose of the mediation is to seek to repair relationships and trust on both sides, be forward focused and map out strategies for working effectively and respectfully together e. the purpose of the mediation is not to revisit the grievance or raise new grievances f. the mediator be required to provide an open report to all parties addressing i. an assessment of where the effective working relationships can be restored and a safe workplace provided for all participants ii. measures that can be put in place to achieve effective workplace relationships and a safe workplace for all participants 25. The mediation report can then be provided to Dr Naaz and Dr Abeya for medical opinion on the proposed measures and whether your return to work will be 'safe' including not a cause a reoccurrence, or exacerbation, of your psychological injury. Closing out unprofessional conduct allegation 26. As you know, on 3 October 2017 Cindy sends you an email inviting you to attend a meeting on 6th of October 2017 to discuss a complaint she had received in relation to alleged unprofessional behaviour displayed by you toward other staff after a meeting at EPCC on 21 September 2017. The email noted that Ms Moore would like the opportunity to discuss the matter with you. 27. On 6 October 2017 following some correspondence between you and Ms Moore, you send an email to Ms Moore in which you stated 'I believe the complaint to be vexatious and frivolous and another attempt to victimise me by senior management of DCJ' you also stated that you were not at work so could not attend the scheduling meeting. 28. You have not returned to your substantive role since that time. Accordingly, the allegation has never been addressed or closed out. This needs to occur as part of your return to work plan. 29. Cindy has previously requested the opportunity to discuss the allegations with you. Given you have expressed your unwillingness to engage in this process, the decision has been made to set out the concerns in a letter to you and provide you with the opportunity to respond in writing. 30. It is proposed that this process will take place after the mediation. Implementation of myPerformance plan 31. As you know a myPerformance plan is a requirement for all DCJ employees. A myPerformance plan will also be implemented for you on your return to the workplace and will be developed by the Acting MOSP Sydney West 2. 32. Consistent with a letter from Michael Baldi to you dated 12 of February 2018, you're myPerformance plan will include behavioural expectations based on observations made by the independent investigator in the course of the investigation regarding conduct, behaviour, workplace and interpersonal relationships. As noted in that letter I have asked the human resources team within corrective services NSW to work with the Offender Management programmes unit to facilitate return to work arrangements. Given the conduct and behaviour behavioural issues observed and identified during the course of the investigation, my performance plan will be developed to support your return to work. b. The plan will set out the work requirements and workplace behaviours expected of a senior sipo as set out in the role description, as well as how your progress against the plan is to be monitored. Strategic human resources would like to engage with your treating clinicians so that he/she has a clear understanding of the work environment and can advise on appropriate support and strategies to help you return to work and to meet brawl expectations. 33. We repeat our comments at paragraph 20 above. Also to be clear, CS NSW is not proposing to impose any disciplinary Action against you as a conference of the observations McQuaid by the independent investigator. 34. Even if you disagree with the observations, we are satisfied that the observations give rise to behavioural requirements expected of all staff. Given you can test the observations, compliance with the behaviour requirements should not present any difficulty for you, while simultaneously making sure that there is a clarity of expectations for both parties going forward. 35. Again, to avoid any apprehension of bias, your myPerformance plan will be monitored and reviewed by the Acting MOSP as per the myPerformance cycle. 36. It is proposed that this process will be undertaken prior to your return to the workplace. Graduated return to work 37. We recommend that Dr Naaz and or Dr Abeya be consulted about your graduated return to work following receipt of the mediation report. Period of time for reorientation 38. This can be built into the graduated return to work plan. Go to person in management 39. The Acting MOSP Sidney West 2 will be your go to person if you have any issues about your return to work Current status and next steps 41. Since 28 October 2019, you have been performing suitable duties at Windsor Community Correctional Centre and Parklea Correctional Centre, three days per week six hours per day. 42. As you know, Tahmina Rezawan from Acumen Health is monitoring your suitable duties. She has reported that you're enjoying the work and have received positive feedback from supervisor Bernadette Logo. 43. We appreciate that the delay in returning to your Substantive Position maybe feel frustrating. However, for the reasons set out above we are sure you will appreciate that to ensure your safe and sustainable return to work, and consistent with the GMO report, a return to work plan needs to be put in place to facilitate your return. 44. We now seek your feedback on the proposed return to work plan. We would be grateful to receive your response at your earliest convenience, but no later than 14 days from the date of this letter. 45. As noted above, in our view, mediation is the next step. Please confirm this a suitable so we can start making suitable arrangements as soon as possible.
As noted by the Tribunal at [78], the mediation process set out in paragraphs 24 and 25 of the Letter included the following steps: 1. A requirement for Ms James to attend mediation with Ms Moore and Dr Martin. 2. A report be prepared by the mediator assessing whether effective working relationships can be restored, and a safe workplace provided for all participants, including advising on appropriate measures. 3. A mediation report can be provided to Dr Naaz and Dr Abeya for a medical opinion 'on the proposed measures' and whether the return to work will be 'safe'.
The Tribunal summarised the position as being that it follows from the three steps above that the Appellant would, as a next step, receive and consider the medical opinions from Dr Naaz and Dr Abeya before determining any future steps.
Apart from the mediation process, the Appellant in the Letter also required Ms James to agree to meet with Ms Moore following mediation in regard to alleged unprofessional conduct that occurred in October 2017 and to the inclusion of adverse comments made by persons about Ms James in the performance review plan, called myPerformance Plan: see paragraphs 31 to 36 of the Letter.
The Tribunal noted at [82] that the Letter was not sent to the insurer, to Ms James' treating doctors or to the rehabilitation provider. Prior to the Letter, Mr Langbein, the author of the Letter had no direct dealings with Ms James.
On 13 December 2019, Ms James provided the Appellant with a detailed response to the Letter. This was summarised by the Tribunal at [84] as follows: (1) She did not consider that she would have any direct contact with Ms Moore and Dr Martin but even if she did so, she was not concerned; (2) Dr Naaz's opinion, supported by Dr Abeya's advice, that Ms Moore is not to be involved in her Return to Work Plan; (3) The RTW Policy states that the Return to Work Plan is developed in consultation with the employee, the treating doctor, manager and insurer. Ms Moore is not her manager. Her manager, the insurer, her treating doctor and herself were not consulted about the Return to Work Plan; (4) She was already working at DCJ on a different Return to Work Plan since 28 October 2019, which was developed in consultation with the relevant persons. She has made significant progress and would be back to full time hours in less than 4 weeks; (5) Including comments from the Investigation report set out in the letter from Mr Baldi would cause further victimisation, it was not an investigation into her behaviour or performance; (6) Mediation can occur at any time between Ms James and Ms Moore and Dr Martin and there is no requirement for it to be a prerequisite to returning to the Substantive Position; (7) Ms Moore's communications with Ms James about the alleged unprofessional conduct did not use the word 'alleged' and as such demonstrates a prejudgement of the allegation. The way Ms Moore characterised the conduct did not accord with the terms of the complaint. Ms Moore should not be involved in investigating the complaint; (8) Dr Abeya recommended that 'it would be useful for Ms James to have one person in management she can report to in the initial stages of her return to work with whom she can have open communication and feel able to discuss issues with.' Dr Naaz recommended a mentor/external mediator. (9) DCJ are ignoring the medical opinions provided by Dr Abeya, and by Dr Naaz, about Ms James returning to her Substantive Duties. The current Return to Work Plan did not raise DCJ's concerns for her safety set out in the Letter; (10) Mr Tregurtha as at 5 December 2019 had requested a workplace assessment at EPCC to ensure that Ms James can return to the Substantial Position based on the recommendations from her treating psychiatrist, the independent psychiatrist and SafeWork NSW.
The Tribunal summarised what happened next at [85]-[87]: On 21 January 2020, Mr Langbein sent a reply letter to Ms James, repeating and requiring her compliance with the matters in the Letter, apart from the requirement that 'closing out unprofessional conduct allegations' would now occur with her manager and not with Ms Moore. Regarding Ms James' view that she would not be reporting to or be managed by Ms Moore and/or Dr Martin, Mr Langbein noted: We understand this is not the case, and that continued contact with them, while intermittent, is unavoidable given that they are both in your chain of reporting. The opinion from Dr Naaz dated 9 October 2017, which is referred to in paragraph 7 of the Letter, reads as follows: I have been managing Rita since 2016 for a mental health condition. Rita reported increased anticipatory anxiety in the context of a meeting at her work headquarters with staff that were involved in her workplace bullying. She reported anxiety and fear at the thought of going back to work with the perpetrators of her bullying. It is my recommendation that Rita doesn't work with the workmates and environment involved in the harassment case. Instead it would be preferable if she were transferred close to home. I recommend reasonable adjustments at work due to her mental health condition.
A similar opinion was provided by Dr Naaz on 18 October 2018 and was provided during a period when Ms James had no capacity for work at the Appellant. The Tribunal went on at [90] to [91] as follows: The relevant parts from Dr Naaz's opinion and recommendations to Dr Pham on 2 July 2019 include: Rita has a diagnosis of Adjustments Disorder with Depressed Mood in the context of work related bullying and harassment. Rita's battle against Corrective Services has maintained his anxiety levels particularly when RTW is on hold. I have had case conferences on the 12 March 2019 and 2 April 2019 with Rita and her rehabilitation consultant. Unfortunately representation from Corrective Services was not present until later on. I've had two case conferences as part of the return to work program with Rita. The injury management officer Mr Tregurtha and her rehabilitation consultant on 21 May 2019 and 18 June 2019. The main issue raised at the conferences by Rita is her concern of providing her with a safe workplace upon return to work. Mark, the injury management coordinator was to get back after discussing with higher management about how that would be put in place. Mark came back with concerns raised by management. He reported allegations from earlier on about breaches of workplace conduct with interpersonal conflict with other staff members which Rita clearly refutes. According to Mark, Cindy the regional manager, was insisting on a performance improvement plan upon the return to work. There was discussion around issues of conflict of interest, marginalisation and alienation towards Rita after pursuing her formal complaint from 2012. My recommendations to move forward to reach his gradual and successful return to work would be: …any reminder of Corrective Services is an Active trigger for Rita's anxiety and hence should be avoided. So the last thing that should happen as part of return to work, is to look for a job with Corrective Services. 1. Strongly recommend an external mediating party/mentor who could assist Rita in her workplace as she gets (sic) returns back to work. 2. I strongly believe that the regional manager Cindy should remove herself from Rita's return to work plan due to conflict of interest as Rita perceived Cindy to be biased. Clearly Rita's primary complaint against Corrective Services involved higher management including Cindy. At this time having Cindy to be part of Rita's ongoing return to work is unprofessional and improper. 3. Going back to 2015, Rita put her hand up and came out with sexual harassment allegations at the workplace within the Corrective Services. This was soon followed by marginalisation and victimisation by most staff members including Cindy the Regional Manager. Therefore, it is inappropriate for Cindy to be part of Rita's return to work plan. The most relevant parts of Dr Abeya's report dated 18 October 2019 were quoted by the Tribunal at [91] as follows: From a diagnostic perspective her presentation is comparable with an adjustment disorder with mixed depressive and anxiety symptoms given the occurrence of these symptoms in the background of the significant stressor. To her credit she appears to have achieved remission with good support from her treating practitioners. It has to be noted that she remains vulnerable to future relapses if faced with significant difficult situations or an adverse work environment. It is therefore important that she feels comfortable in her work situation. Therefore from a work perspective I find Ms James now fit to commence her return to work. I note that much has been said about return to work planning and indeed this is likely to be complex given the sensitivities involved. I believe the factors that would need to be considered are; Ms James' well being and vulnerability to relapse as well as her work environment and the safety of all involved. It would be helpful to incorporate her treating psychiatrists' views into her return to work plan as this would assist Ms James and certainly provide her further confidence of ongoing support from her employers given that her trust may have been shaken with the recent issues. Whilst I do not consider this to be a medical necessity I do therefore feel it may be worthwhile giving due consideration to Dr Naaz's request to not have Ms Moore involved in return to work planning as a result of this. I make the following recommendations in relation to her return to work: 1. Commenced with a graduated return to work plan. (Suggestion to commence on five hours three days a week in her preinjury position for two weeks and consider increasing to full time hours depending on the progress) … I do not believe that she would require specific restrictions on duties given her current stable mental state. It would be helpful to have a good discussion around the plan and have her treating psychiatrist agree to this prior to commencing. I note there could be some uncertainty in how Ms James manages depending on the outcome of her current NCAT complaint. This may be a time when her matter needs to be viewed with even more sensitivity and support. It would be helpful for Ms James to have one person in management she can report to in the initial stages of her return to work with whom she can have open communication and feel able to discuss issues with. This would assist with resolving any problems at an early stage without further escalating.
Accordingly, Dr Abeya was of the opinion that Ms Moore should not be involved in Ms James' return to work planning. The recommendations made by Dr Abeya were: (1) To have a discussion with Dr Naaz about any return to work plan and get her agreement to the plan; (2) Provide Ms James with one person in management who she could have open communications with and feel able to discuss issues to assist in resolving any problems at an early stage without escalation.
The Tribunal at [93] summarised the evidence from Ms Hellams, Mr Langbein and Mr Tregurtha of the Appellant as being quite similar as they all formed the view that as at 12 December 2019, the medical advice from Dr Naaz and/or Dr Abeya indicated that Ms James before returning to work in her Substantial Position should first participate in mediation to restore effective working relationships with individuals to whom she will be required to report. As mediation had not yet occurred, their view was that Ms James was not yet able to return to her Substantive Position.
For example, Ms Hellams' evidence at [77] of her affidavit was that mediation between Ms James and Ms Moore and Dr Martin was 'medically recommended' before Ms James returned to the Substantive Role.
The Tribunal referred to Ms Hellams' cross examination where she was asked to identify the medical recommendation. The Tribunal summarised this cross-examination at [97] as follows: Mediation was part of the health recommendations from both, the Government Medical Officer, as well as at various stages, your treating clinicians to support your return to work. Tcpt.p125 … was a report from the government medical officer, which, I'm not sure which one of my attachments, but it certainly in there. Just give me a moment. Tcpt. p125
When asked during cross examination what particular report was relied upon, the Tribunal referred to Ms Hellams' answers as follows (at [98]): 'I'm referring to the assessment report from the Government Medical Officer [Dr Abeya] that recommended that mediation would assist in facilitating your return to work. And resolving the outstanding issues that were still existing between the parties, and that you had raised in previous matter. Tcpt.29.10.21 p126 Q. so the recommendation on that page [Dr Abeya's supplementary report pg 655 CB] dated 23 June 2020 talks about mediation at number one. Is that what you're talking about? A. that recommendation was supplementary one where Dr Abeya where we were seeking clarification because you're treating physicians, in earlier stages of the process had recommended mediation. Then you provided medical evidence that mediation would be detrimental to your health. And we sought clarification from your doctor, who didn't respond. And we also sought clarification from the GMO as to how we could support you through the mediation process to support your return to work. And that recommendation was in relation to Dr Naaz comments that mediation would be detrimental to your health. But I recall that in the earlier report from the GMO, there was reference that mediation would assist in trying to resolve outstanding issues between the parties. Tcpt.29.10.21 p126 Q. What is your belief that it was a medical recommendation for mediation. Where has that come from? A. As I said, my recollection was that in early stages of your workers compensation claim, your doctor had recommended mediation as a possible way of returning and facilitating your return to work. And the Government Medical Officer has also observed that sort of process may be useful to facilitate a safe and sustainable return to work. Tcpt.29.10.21 p127 … A. my evidence would be that we were trying to accommodate and work within the medical advice from your treating specialists, recognising at times that we were concerned that they were conflicting. Tcpt.29.10.21 p156
Ms Hellams was asked why the medical recommendations by Dr Naaz from July 2019 were not implemented by the Appellant. Her answer was that 'they've not been implemented because its impractical because Ms Moore is in your direct line of command': see Decision at [99].
Ms Hellams gave evidence that the reason why Dr Martin was required to be in the mediation was because Ms James made a complaint of bullying against her internally which needed to be resolved and she was in the 'line of command': see [100] of the Decision.
Mr Tregurtha gave evidence that for a significant period of time during the Complaint Period, Ms Moore was seconded to a different role and would not have been in Ms James' reporting line, but that mediation was required with Ms Moore because of 'historical issues' so that there could be a safe workplace for her and Ms Moore. The 'historical issues' were explained as follows (see [102] of the Decision): I suppose if someone breaks their leg and their duties involved standing all the time, they can't perform their role of standing all the time. But if the fracture heals and the doctor goes look, they can stand up for half an hour at a time. Then we would go back to the employer going. Can this person return if they can stand half an hour at a time, and then the manager would go? No, we need them stand two hours nonstop. It's not really going to work, but we can look at something else. So part of the manager is going well before we get Rita back into the workplace, we need to address some of these historical issues.
There were three Return to Work Plans (RTWP) as follows: 1. Return to Work Plan 1 (22 October 2019) goal to return to Substantive Position by 30 December 2019; 2. Return to Work Plan 2 (5 December 2019) goal to return to Substantive Position by 30 December 2019; 3. Return to Work Plan 3 (20 January 2020) goal to return to Substantive Position by 27 January 2020.
All three of the RTWPs stated that: 1. Ms James has capacity to return to pre-injury duties; and 2. Include reference to actions required by Ms James, the employer, the treating doctor and the rehabilitation provider.
The Tribunal summarised the notes of the various medical case conferences that took place in respect of Ms James' return to work at [107] - [113]: 107 The notes of the medical case conference on 2 April 2019 explain that the purpose of the conference was to confirm Ms James' expectations of returning to work, whether to her Substantive Position (pre-injury role) or in regard to other options. Ms James advised that she wished to return to her Substantive Position with an internal support person so that she would be 'treated fairly'. Mr Tregurtha advised that 'they would definitely be able to allocate a support worker' but that there was another issue of 'workplace performance'. Dr Naaz suggested that workplace performance issues after 2015 are 'null and void' as Ms James was a 'whistleblower'. Ms James advised that she would prefer an external support person who could mediate any issues that could arise, and she identified a psychologist as a suitable person. 108 A further case conference meeting took place on 21 May 2019. Mr Tregurtha advised that following discussion with management, prior to any return to work to EPCC, there would need to be clarification in regard to two issues. The first issue was that complaints made by Ms James against 'other staff' and management needed to be discussed/resolved. Secondly, a performance management improvement plan needed to be agreed to by management and Ms James before she could return to DCJ. 109 Dr Naaz advised that the workplace has a responsibility to make the workplace safe and that there is a risk of exacerbating Ms James' symptoms by returning her to the substantial position in the circumstances described by Mr Tregurtha. Dr Naaz advised that as Ms James has been absent from the workplace for 2 years, a Performance Development Plan (not a Performance Improvement Plan) be developed to assist Ms James, that she can comply with, given the assistance of a support person from the workplace. 110 Acumen Health suggested that an external mediator can assist Ms James and the employer to resolve alleged issues and clarify expectations before she returns to work. Dr Naaz supported that the employer can arrange mediation sessions by an external mediator to resolve issues that may arise. 111 A further case conference took place on 18 June 2019. Mr Tregurtha advised that there have been discussions with management, particularly Ms Moore who advised that: There are issues of concern which need to be resolved before taking any further decision on this matter: Firstly there is an understanding or fear that some staff members in Emu Plains, alleged that they won't feel safe with Ms James return to work and they may leave work and secondly there was an unresolved incident which occurred in 2017 when Ms James behaved unprofessionally. 112 The notes of the meeting case conference state that: Dr Naaz reported that it appears that the whole matter with Ms James return to work has become a conflict resolution matter, where worker/ workplace conflict is overlapping with personal conflict, where the management wants to dig into the history of Ms James' case which is overall not helpful and if the management wanted to bring their behavioural performance issue which occurred in 2015 in fairness they should reflect the sexual allegation matter back in 2015. 113 There was also discussion about an external mediator who could assist Ms James and the employer to resolve alleged issues and clarify expectations before she returns to work. The parties agreed that the next medical case conference would be conducted following the outcome of the pending mediation session with Ms James and the employer. Despite attempts and opportunities for mediation in July 2019, no mediation eventuated. Ms James refused to have the mediation session as part of the Tribunal's conciliation process and insisted that the workers compensation claim remain separate from the NCAT complaint.
The Tribunal first considered Allegation 1: Failure to assist Ms James to return to work in October 2019 following a period of workers compensation leave.
The Tribunal summarised the factual findings as follows (at [130]): 130 It is common ground that as at 10 October 2019: (1) The DCJ's Return to Work Policy requires the agency to assist employees to return to suitable duties in a timely manner; (2) Ms James attended three Return to Work meetings, held on 2 April, 21 May and 18 June 2019, with the clear intent of eventually returning to her Substantive Position; (3) From August 2018 and up to 11 September 2019 Ms James was fit to work in Department of Justice (not in DCJ) but no suitable work was found for her by DCJ; (4) From 12 September 2019, Ms James was fit to perform duties at DCJ pursuant to a Certificate of Capacity signed by Dr Pham; (5) DCJ had Dr Naaz's opinion dated 2 July 2019; (6) At Ms James' request, SafeWork contacted DCJ on 10 October 2019 with the aim of returning her to work at DCJ; (7) On 11 October 2019, DCJ had found suitable work for her at Windsor Community Corrections, DCJ; (8) SafeWork required a workplace assessment/task analysis and a return to work plan to be developed; (9) Return to Work Plan 1 dated 22 October 2019 was developed. The goal of this Plan was to return Ms James to her Substantive Position by 30 December 2019; (10) Ms James commenced at Windsor Community Corrections on 22 October 2019; (11) Ms James had received positive feedback from the manager at Windsor Community Corrections.
The contest between the parties before the Tribunal was whether or not the Appellant assisted Ms James to return to suitable duties prior to 10 October 2019. The Complaint Period commenced from 1 October 2019.
The Tribunal relied upon contemporaneous documentary evidence created as part of the Appellant's ordinary business to show that any specific attempt of Mr Tregurtha to find suitable duties for Ms James only commenced on 10 October 2019 when Mr Tregurtha first contacted the Manager of the Parklea site. Upon contacting the Manager at Parklea a suitable role was immediately found.
The SafeWork Inspection Report dated 10 October 2019 listed the persons within the Appellant whom SafeWork consulted as including Mr Tregurtha, Mr Langbein and Ms Oliver.
The Tribunal noted at [136] that the bold assertions made by Ms Hellams and Mr Tregurtha that they made attempts to find suitable duties for Ms James were unable to be tested or scrutinised.
The Tribunal summarised the position in respect of Ms Hellams' evidence at [137]-[144] as follows: 137 Ms Hellams' statement in paragraph [44] that the medical opinion from Dr Naaz was that Ms James should not work with Ms Moore or Mr Jackson is factually incorrect as the medical opinion from Dr Naaz as from 2 July 2019, stated that Ms James was able to return to the Substantial Position on a trial basis. She recommended that Ms James be provided with an external mediator/mentor and that Ms Moore not be involved in the Return to Work planning. 138 Ms Hellams' affidavit evidence is that she relied on the medical opinion from 2017 regarding seeking reasonable adjustments for Ms James but failed to refer to Dr Naaz's medical opinion and recommendations from 2 July 2019. This was a stark omission. At paragraph 44 of her Affidavit, Ms Hellams also referred to an opinion from Dr Naaz from 14 May 2020. However, given the date of this opinion it would have been impossible for Ms Hellams to take it into account in October 2019 in relation to Ms James proposed return to work. 139 The Tribunal has formed the view that Ms Hellams focused on evidence which she considered was favourable to DCJ's case and failed to refer to other relevant evidence, which it appeared she did not wish to highlight. Ms Hellams failed to make any reference in her affidavit to the most up to date medical advice from Dr Naaz (at the relevant time) which was the advice dated 2 July 2019 when considering Ms James returning to DCJ in October 2019. 140 Ms Hellams' consistent references to Dr Naaz's advice from 2017, without conceding that that advice was provided at a time when Ms James had no capacity to work at DCJ, along with a failure to refer to Dr Naaz's latest advice, led the Tribunal to find that Ms Hellams lacked credibility and reliability as a witness as her evidence was internally inconsistent, incomplete and confusing. 141 Ms Hellams was not a person to whom the SafeWork Inspector spoke to on 10 October 2019. She had no first-hand knowledge of what occurred during that inspection, but she would not contemplate that work was only found for Ms James on the next day as a result of SafeWork's intervention. 142 The undisputed evidence before the Tribunal is that Mr Tregurtha only contacted the manager at the Windsor complex because of the intervention of SafeWork. 143 A direct and rational explanation exists, based on both the Safe Work Report and the email from Mr Tregurtha to Ms James on 11 October 2019, that DCJ returned Ms James to work at DCJ on 28 October 2019 because of the Safe Work intervention. 144 The Tribunal rejects Ms Hellams' evidence that SafeWork's intervention on 10 October 2019 was not a catalyst for Ms James returning to work at DCJ. Ms Hellams' evidence that she decided to return Ms James to work is inconsistent with the documentary evidence.
The Tribunal also found that Ms Hellams decided that Ms James should not return to the Substantial Position based on an outdated opinion from Dr Naaz from 2017 which was no longer held by Dr Naaz and that Ms Hellams disregarded the Certificate of Capacity from Dr Pham dated 12 September 2019 that Ms James was fit to return to the Substantive Position on a trial basis: see at [147].
The Tribunal found at [150] that the failure to assist Ms James to return to work when she was fit to do so is a detriment within the meaning of s 50 of the Act.
Then as to whether or not this detriment was imposed by the Appellant as a result of Ms James' complaint under the ADA, the Tribunal held it was and its reasoning at [159]-[174] was as follows: 159 Ms James' closing submission is that DCJ did not want her to return to work as she was seen as a complainer and used 'delaying tactics' to wear her down. DCJ's closing submission do not deal with this allegation directly apart from submitting that the evidence given by its witnesses should be accepted. DCJ does not offer any innocent or probable explanation as to why it did not assist Ms James to return to work once she was fit to do so. 160 As well as the primary facts set out in paragraph 130, the Tribunal also finds that the following facts positively suggest or provides a reason for DCJ conduct in this case. The reason being, that it considered that Ms James' complaints against managers created a concern that she could not effectively work at DCJ, and they did not want her to return to work. 161 First, it is instructive to observe the way DCJ treated Ms James when she made an internal complaint. Ms James made a complaint in February 2020 to Commissioner Peter Severin regarding a media publication about bullying and sexual harassment in DCJ. 162 Commissioner Severin was interviewed regarding sexual harassment and bullying at DCJ. The article "Corrective Services NSW former staff left devasted by toxic boys' club', was published by the ABC. Commissioner Severin made statements in the article that DCJ was investing in programs to improve workplace culture and 'making sure that women who do come forward are protected'. 163 Ms James sent an email to Commissioner Severin in regard to the sexual harassment complaint she made, the victimisation she experienced and the ongoing complaints about returning to the Substantial Position. Ms James also made two posts on Facebook in relation to the ABC article. 164 DCJ determined to seek a further fitness for duty assessment pursuant to cl 15 of the Regulation specifically referring to Ms James' contact with Commissioner Severin and the Facebook posts. There was no evidence or suggestion that DCJ acted on advice of a nominated medical assessor in referring Ms James for a fitness for duty assessment as required pursuant to c15(2) of the Regulation. 165 One of the possible consequences of being referred for a fitness for duty assessment is a finding that the employee is unfit for duty and employment may be terminated on medical grounds. 166 In the referral letter to Dr Abeya dated 20 March 2020, under the heading Workplace relations it is stated: 15. Ms James has exhibited some recent behaviour which has created concerns in relation to her ability to return to her Substantive Position and effectively work with her colleagues (including management), particularly if mediation does not take place to at least attempt to resolve matters between Ms James and management. 19. On 14 February 2020, Ms James send an email directly to Commissioner Peter Severin, the highest position in Corrective Services NSW, which refers to the ABC article and also states, inter alia: despite medical opinion that I'm fit to return to my Substantive Position, David Langbein (Injury Management Manager) appears to be insisting that I undergo mediation under the guise that it was recommended by the practitioners. Despite multiple research articles and studies stating that mediation in cases of bullying are inappropriate, it seems that DCJ are holding me to ransom in that I will not be returning to my substantive until it occurs. Some staff DCJ appear to believe they do not have to abide by legislation in any form and make up the rules themselves as they go. 21. The email appears to display an open distrust of management which gives rise to a concern as to how Miss James is likely to respond to management if she would to return to her substantive role given her medical condition. 167 Dr Abeya's opinion was that when she assessed Ms James on 18 October 2019 she was in: … remission from the anxiety and depressive symptoms she had developed which had led her to leaving work in 2017 I made the comment that it is important she feels comfortable in her work situation as she remains vulnerable to future relapses especially if she perceives an adversarial environment. 168 Dr Abeya's opinion was that the requirement for mediation by DCJ is of an 'industrial nature rather than a medical one'. Dr Abeya recommended that DCJ should follow Dr Naaz's opinion, that mediation may be detrimental to Ms James' mental health, into consideration. Dr Abeya also recommended some safety measures be implemented as Ms James returns to work including 'a regular contact with one person in management during her return to work with frequent meetings for debriefing.' 169 The Tribunal forms the view that DCJ's decision to refer Ms James for a fitness for duty assessment because she responded to Commissioner Severin's public comments was a measure that attempted to stop Ms James returning to work at DCJ. It was a very serious step taken by DCJ which could have had a detrimental impact on her security of employment. It was also a step that was not in compliance with cl 15 of the Regulation. 170 Secondly, in a letter dated 18 May 2020 from Ms Hellams to Ms James, she states that in order to not expose another member of staff to allegations and in light of the fact that Ms James has made complaints to NCAT about Dr Martin, Ms Moore and herself and has threatened to make a further complaint, she had decided to write the letter herself instead of the letter being written by another member of staff. 171 The Tribunal finds that Ms Hellams held the view that Ms James would likely make a complaint against another DCJ manager, had that person wrote correspondence to her. 172 Thirdly, despite Dr Naaz's and Dr Abeya's opinions in 2019 that mediation between Ms James and Ms Moore would be detrimental to her mental health, Ms Hellams insisted that mediation occur. Ms Hellams' evidence during cross examination was that mediation between Ms James and Ms Moore and Dr Martin was necessary because of the 'outstanding issue existing between the parties'. Apart from the fact that Ms James made a complaint of bullying against Dr Martin and Ms Moore there is no other outstanding issue between these two senior managers and Ms James. 173 Fourthly, the Tribunal accepts Ms James submission that she was seen by Ms Hellams and others within DCJ as a complainer and a troublemaker because she made complaints pursuant to s50(1)(a) of the Act. The fact that Ms James has made internal complaints and a WorkCover NSW claim in regard to conduct of Ms Moore and Dr Martin does not diminish the fact that at least one of the 'real, genuine or true reasons' for subjecting Ms James to detriment was because of the complaints made pursuant to s50(1)(a) of the Act. 174 The Tribunal finds that DCJ, including Ms Hellams, held a bleak view of Ms James because she made complaints and considered that she could not effectively work with colleagues including management. This was one of the 'real, genuine or true reasons' why DCJ did not assist Ms James to return to work when she was fit to do so, consistent with its Return to Work Policy.

Allegation 2: Requirement for Ms James to comply with conditions determined by the Appellant in a letter on 12 December 2019 (the Letter).

The Tribunal noted at [177] that it was common ground that prior to the date of the Letter, dated 12 December 2019: (1) The DCJ's Return to Work Policy requires Human Resource Advisors (Ms Hellams' team, including Mr Langbein and Mr Tregurtha) to 'prepare a return to work plan in consultation with the employee, their nominating treating doctor, manager and insurer' and 'to coordinate the services of an accredited rehabilitation provider'; (2) Ms James commenced duties at Windsor Community Corrections on 22 October 2019 working pursuant to a Return to Work Plan. This plan was developed consistent with the Return to Work Policy and had the aim of returning Ms James to her Substantial Role on a full time basis by 30 December 2019; (3) Ms James was certified fit to return to the Substantive Position on a trial basis without any restrictions; (4) As of 29 November 2019, Mr Tregurtha was in the process of conducting a workplace assessment at the Substantive Position location (Emu Plains Correctional Centre); (5) DCJ had Dr Naaz's advice dated 2 July 2019 and Dr Abeya advice dated 18 October 2019.
The Tribunal examined the contents of the Letter and the substance of particular advice from Dr Abeya and Dr Naaz, concluded at [190] that: DCJ's requirements as set out in the Letter, in purported reliance on Dr Naaz's and Dr Abeya's recommendations, are not only factually incorrect, but they are diametrically opposite to the recommendations made by these specialist doctors.
The Tribunal noted that instead of providing Ms James with a support person, mentor, being a person in management with whom she could have open communications, the Appellant determined that Ms James' manager be the 'go to' person, and instead of following Dr Naaz's and Dr Abeya's recommendations that Ms Moore not be involved in Ms James' return to work process, the Appellant decided that Ms James must attend mediation with Ms Moore before they would take any further steps as to her returning to the Substantive Position.
The Tribunal rejected Ms Hellams' evidence that mediation was a recommendation from Dr Naaz or Dr Abeya, or that Dr Naaz's opinions were conflicting or confusing at [193]. The Tribunal pointed out that at no time on or after 12 December 2019 did Dr Naaz or Dr Abeya provide the Appellant with advice that Ms James should participate in mediation to restore working relationships with Ms Moore and Dr Martin prior to returning to her Substantive Position: at [193].
The Tribunal referred to the fact that no attempt was made to clarify Dr Naaz's advice dated 2 July 2019 with her before writing the Letter: at [194].
According to the Tribunal, the three witnesses called by the Appellant failed to have any regard for the word 'mentor' in Dr Naaz's advice: at [195].
The Tribunal found that the evidence of the three witnesses for the Appellant that they came to the same erroneous conclusion that mediation between Ms James, Ms Moore and Dr Martin was a 'medical recommendation' flowing from Dr Naaz's opinion was 'implausible', particularly considering Dr Naaz's opinion to the Appellant on 8 April 2020 confirming that she did not recommend a meditation between Ms Moore and Ms James and that her recommendation was that Ms James be provided with an external mediating partner/mentor, whom she described as a support person, so that she could be assisted if she had issues once she returned to work: at [195].
The Tribunal formed the view that the opinions held by the three witnesses that mediation between Ms James, Ms Moore and Dr Martin was a medical recommendation were 'not based on facts': at [196].
The Tribunal concluded that there was no explanation given as to how all three witnesses could have come to the same incorrect understanding of the medical recommendations made in 2019: at [196]. The Tribunal concluded, based on the uncontested documents before the Tribunal, including the terms of the opinions and recommendations made by Dr Abeya and Dr Naaz, the Return to Work Plans and the notes from the case conference meetings, that this aspect of the evidence of the three witnesses from the Appellant was 'highly implausible': at [196].
The Tribunal made the following statement at [197]-[202]: 197 Ms James' submission is that this is no innocent error and that DCJ deliberately misinterpreted Dr Naaz's and Dr Abeya's advice because DCJ did not want her to return from workers compensation leave. Regardless of whether the error was innocent or deliberate, the evidence is rejected as it is clearly erroneous. 198 It was DCJ, whether through Ms Hellams or Ms Moore, that determined that unless Ms James agreed to the conditions in the Letter, she was precluded from returning to her Substantive Position. Exactly who made the decision at DCJ is irrelevant as DCJ accepts the operation of s53 of the Act and is liable for the conduct of both Ms Moore and Ms Hellams. 199 The course adopted by DCJ on 12 December 2019 was a reversal of the path DCJ was on following SafeWork's intervention in October 2019 of returning Ms James to the Substantial Position. The requirements in the Letter were in significant ways contrary to the RTW Policy and Fitness for Duty Procedure as set out in paragraphs 74 to 76 and 121 above. DCJ led no evidence to explain why this occurred other than to deny that there was any conduct contrary to any policy. This information was in DCJ's control. 200 During cross examination, Ms Hellams was unwilling to indicate that she may have misunderstood Dr Naaz's and/or Dr Abeya's advice. Ms Hellams was given numerous opportunities to refer to the medical recommendation she was relying on to support the assertions in the Letter as to the mediation process, but she did not refer to any particular document. 201 There were discussions during case conferences on 21 May and 18 June 2019 about a mediation. While Dr Naaz opined that the employer could organise mediation, she did not propose, let alone recommend that mediation occur with Ms Moore as the representative of the employer. Dr Naaz's advice on 2 July 2019 was clear and cogent that Ms Moore should not be involved in Ms James' return to work process. This was consistent with Dr Naaz's views expressed during the three case conference meetings earlier in 2019. 202 DCJ's case that the mediation was necessary because it was based on medical recommendations and that Dr Martin and Ms Moore were in her line of management is inconsistent with the documentary evidence.
The Tribunal noted at [205] that the requirement for Dr Abeya and Dr Naaz to conduct further assessments of Ms James in the Letter is a position decided by the Appellant without any specific opinion or recommendation from either doctor.
The Tribunal also noted that this requirement was inconsistent with clause 15(2) of the Government Sector Employment Regulation 2014 (NSW) (the Regulation) which permits the Appellant to direct an employee to attend a Fitness for Duty assessment if the agency head had reason to believe that an employee is not fit for duty. The Tribunal came to that conclusion because the opinions of both Dr Abeya and Dr Naaz was that Ms James was fit to return to the Substantive Position in October 2019.
The Tribunal also concluded at [206] that the Appellant, contrary to the Fitness for Duty Policy in operation at the time, did not seek additional information or clarification from Dr Naaz or discuss the referral of Ms James for a Fitness for Duty assessment prior to determining to refer Ms James for a Fitness for Duty assessment on 20 March 2020.
The Tribunal concluded at [209] that the Appellant's decision to seek a further opinion from Dr Abeya sometime in the future could not have been based on a present belief that Ms James was not fit for duty. The findings of the Tribunal at [210] and [211] were as follows: 210 The Tribunal agrees with Dr Abeya's assessment in the supplementary report dated 23 June 2020 that DCJ's request for medical opinion about mediation was really in regard to a matter of an 'industrial nature' rather than a 'medical one'. 211 The Tribunal finds that DCJ's insistence in the Letter that Ms James be referred for a fitness assessment for a third time following a mediation was inconsistent with the Regulation and the Fitness for Duty Policy.
Nextly, the Tribunal found that the decision by the Appellant to appoint Ms James' manager to be the 'go to' person in the Letter was inconsistent with the recommendations provided by Dr Abeya and Dr Naaz (at [216]). Essentially, the views of Dr Abeya and Dr Naaz were that the 'go to' person should be someone that Ms James would be comfortable with and could report to with open communications and feel able to discuss the issues with. Neither Ms James nor the doctors were consulted about the Appellant's choice of Ms James' line manager in this regard.
The Tribunal referred to the fact that the Appellant linked Ms James' return to her Substantial Position with industrial matters that were separate and distinct from any health and safety issue it was required to consider in regard to Ms James' Workers Compensation claim (at [217]).
It was the Appellant's evidence that the reason a performance issue should be linked to Ms James' Return to Work Plan is set out in the case conference notes. This reveals it was Ms Moore who required this linkage.
At the case conference on 18 June 2019, Ms James was advised that Ms Moore was of the opinion that staff do not feel safe to work with Ms James and that they may leave the workplace if required to work with Ms James. Ms Moore also stated the unprofessional behaviour in 2017 was raised as though a finding had already been made and consequences were pending: see [218].
Paragraph 32 of the Letter set out extracts from an Investigation Report into Ms James' complaint against Ms Moore, Dr James and another manager. Some of the observations made in this regard were very serious as to Ms James' behaviour and conduct and one was characterised as a breach of the Code of Conduct.
The Tribunal noted that one of the most relevant negative observations about Ms James was made by Ms Moore in the context of investigating Ms James' allegations against Ms Moore.
At [222], the Tribunal noted that there was no evidence before the Tribunal that staff did not feel safe with Ms James. Further, no such evidence was provided by Dr Abeya or Dr Naaz as to whether Ms James or any other person would be 'safe' if she was to return to work. The Tribunal also referred to the evidence of Ms James' supervisor in her role at Parklea and Windsor who spoke positively about her and did not flag any similar concerns: at [222].
In respect of the Appellant's treatment of Ms James in the second allegation, the Tribunal summarised its factual findings at [223] as follows: 223 In summary, the Tribunal has made the following factual findings: (1) Dr Naaz and Dr Abeya recommended that: (a) Ms Moore is not involved in Ms James' return to work process (b) Ms James be provided with a person outside her line of reporting that was in the nature of a mentor/'go to' person/support person who could assist her as she returned to the Substantial Position and assisted her with improving communications; (2) On 12 September 2019 Ms James received medical clearance from Dr Pham that she had capacity to return to her Substantive Position to perform pre-injury duties for 5 hours a day, 3 days a week on a trial basis; (3) The RTW Policy requires DCJ to develop a Return to Work Plan in consultation with Ms James and her treating doctors; (4) Clause of 15 of the Regulation and the Fitness for Duty Policy required DCJ to discuss the proposed referral for a fitness for duty assessment with Ms James and Dr Naaz and to form a belief about Ms James' fitness for duty prior to determining whether to refer Ms James for a fitness for duty assessment; (5) The requirement to include behavioural expectations in the performance plan was an industrial issue raised by Ms Moore and not based on any medical recommendation.
The Tribunal accepted Ms James' submissions that the conduct by the Appellant, when considered on an objective basis was detrimental to her as she had not been permitted to return to the Substantial Position during the Complaint Period even though she was certified fit to do so from 12 September 2019: see at [240]. The Tribunal then went on to consider the question of causation, that is whether the detriment was "on the ground" that Ms James had "brought proceedings against" the Appellant under the ADA.
The Tribunal concluded first that the Appellant's insistence on mediation with Dr Martin was not grounded on any basis other than the fact that Ms James made a complaint against Dr Martin: see [247].
The Tribunal found that Ms Moore was the instructing manager who did not wish Ms James to return to the Substantive Position and gave instructions to managers of the Appellant to such effect: see [256].
This then led the Tribunal to make the ultimate conclusion at [257] that the overwhelming weight of the evidence considered separately as well as considered in combination logically connects the detriment to the fact that Ms James made complaints within the meaning of s 50(1)(a) of the ADA and as a result the Appellant did not want her back at work because they did not consider that she could work effectively with its managers.
The way the Tribunal put it was as follows at [258]-[262]: 258 Based on the evidence and submissions before the Tribunal, the only relevant link between Ms James, Ms Moore and Dr Martin is that Ms James made complaints pursuant to s50(1)(a) of the Act regarding Dr Martin's and Ms Moore's behaviour towards her. Dr Martin was a witness in the First Complaint and Ms Moore was a witness in the Second Complaint. 259 If we are wrong that the evidence referred to above demonstrates that DCJ lost trust and confidence in Ms James because she had made complaints against DCJ managers, the Tribunal would infer from the evidence that one of the 'real', 'genuine' or 'true' reasons for DCJ's detrimental treatment of Ms James was because she made complaints to NCAT. 260 The only logical and reasonable inference that can be drawn from the objective facts is that DCJ Acted by putting in place conditions in the Letter to which Ms James had to accede to because Ms James had made complaints against it, which included complaints about the conduct of Ms Moore and Dr Martin. 261 DCJ offered no innocent or more probable explanation for the detrimental conditions in the Letter other than submitting that the Tribunal should find that the conditions in the Letter were made because of a medical recommendation. 262 For the reasons set out above the Tribunal is satisfied on the balance of probabilities that Ms James' previous complaints to NCAT were a real, genuine or true reason for DCJ's detrimental Acts towards Ms James. The complaint of victimisation in this allegation is made out.

Material on appeal

In deciding the appeal, we have had regard to the following material: 1. Notice of Appeal filed 19 September 2022; 2. Reply to Appeal, dated 2 October 2022; 3. An Appeal Book of documents which contains the following documents ORDERS OF THE TRIBUNAL 1 Orders of the NSW Civil and Administrative Tribunal, 22 August 2022 REASONS FOR THE DECISION 2 James and Secretary, NSW Department of Communities and Justice [2022] NSWCATAD 280 TRANSCRIPTS 3 Transcript of hearing 28 October 2021, 29 November 2021 and 1 November SUBMISSIONS BEFORE THE TRIBUNAL 4 Respondent's Closing Submissions, 13 December 2021 5 Appellant's Closing Submissions, 20 December 2021 6 Appellant's Chronology, 20 December 2021 7 Respondent's Closing Submissions in Reply, 24 December 2021 8 Respondent's Timeline of Events, 24 December 2021 9 Respondent's submissions and evidence in respect of award of damages, 1 June 2022 10 Appellant's submissions in respect of form of order, 2 June 2022 11 Appellant's submissions and evidence in respect of award of damages, 9 June 2022 12 Respondent's submissions and evidence in respect of form of order, 9 June 2022 RELEVANT DOCUMENTS BEFORE THE TRIBUNAL 13 Court Book Rita James v Secretary, NSW Department of Communities and Justice 2020-00326951 14 Email from Respondent to Tribunal, 14 July 2022 15 Email from McCullough Robertson Lawyers to Tribunal, 14 July 2022 16 Order of the Tribunal, 15 July 2022 17 Email from Respondent to Tribunal attaching email correspondence between the Respondent and McKenzie House, 19 July 2022 18 Email from McCullough Robertson Lawyers to Tribunal, 20 July 2022 APPEAL DOCUMENTS 19 Notice of appeal, 19 September 2022 20 Reply to notice of appeal, 7 October 2022 1. The parties also provided an agreed three-page document with amended pages 487- 489 of the Appeal Book and page references for the Appeal Book. 2. The Appellant's outline of submissions dated 7 November 2022. 3. Ms James' reply to outline of submissions dated 23 November 2022. 4. Appellant's submissions in reply dated 30 November 2022.

Notice of Appeal

The Notice of Appeal contains 17 grounds. Ground 8 was subsequently withdrawn.
Except in very narrow circumstances, an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run a case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the Appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, 'leave') to appeal on any other ground should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
By the terms of the Notice of Appeal, the Appellant sought leave to appeal in respect of grounds 16 and 17 and also leave to appeal, if required, in respect of grounds 1, 5, 6 and 7. Accordingly, we will decide in respect of those six grounds of appeal whether or not leave to appeal, if required, should be granted.

Summary of grounds

Grounds 1, 5, 6 and 7 are as follows: 1. The Tribunal erred at law (or alternatively, with leave, in fact) by mischaracterising Ms Hellams' evidence, and making fundamental erroneous findings of fact at [137] and [138], which infected the Tribunal's whole approach to the matter before it, including making unjustified adverse credit findings against Ms Hellams at [139] and [140]. 5. The Tribunal erred at law by denying procedural fairness to the Appellant or by making findings that were contrary to Ms Hellams' evidence, based on matters that were never put to Ms Hellams during her cross-examination or raised during the hearing of the matter. 6. The Tribunal erred at law (or alternatively, with leave, in fact) as it was unreasonable to find that Ms Hellams' evidence was "inconsistent with the documentary evidence" in circumstances where, at its highest, the "documentary evidence" raised an inference that was rebutted by direct and credible testimony by Ms Hellams. Further, or in the alternative, the Tribunal misapplied legal principles concerning the drawing of inferences by rejecting Ms Hellams' evidence against the weight of evidence in the matter and in circumstances where a more innocent and reasonable explanation existed for her decision. 7. The Tribunal erred at law (or alternatively, with leave, in fact) by denying procedural fairness to the Appellant or by making findings that were contrary to the evidence based on matters that were never pleaded by the Respondent, never argued by the Respondent, and based on matters that were never put to the Appellant's witnesses during cross-examination.
The Appellant contended that appeal grounds 1, 5, 6 and 7 are somewhat interrelated and made submissions on them together.

Principles for granting leave to appeal

The principles applicable to the grant of leave to appeal have been considered by the Appeal Panel on many occasions, including in Collins v Urban [2014] NSWCATAP 17 (Collins) at [82]-[84]. At [84] the Appeal Panel held: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Ground 1

With respect to ground 1, paragraphs [137] and [138] of the Decision are as follows: 137 Ms Hellams' statement in paragraph [44] that the medical opinion from Dr Naaz was that Ms James should not work with Ms Moore or Mr Jackson is factually incorrect as the medical opinion from Dr Naaz as from 2 July 2019, stated that Ms James was able to return to the Substantial Position on a trial basis. She recommended that Ms James be provided with an external mediator/mentor and that Ms Moore not be involved in the Return to Work planning. 138 Ms Hellams' affidavit evidence is that she relied on the medical opinion from 2017 regarding seeking reasonable adjustments for Ms James but failed to refer to Dr Naaz's medical opinion and recommendations from 2 July 2019. This was a stark omission. At paragraph 44 of her Affidavit, Ms Hellams also referred to an opinion from Dr Naaz from 14 May 2020. However, given the date of this opinion it would have been impossible for Ms Hellams to take it into account in October 2019 in relation to Ms James proposed return to work.
The Appellant's submission was that in making the finding that it did, the Tribunal ignored paragraphs [41]-[43] of Ms Hellams' affidavit in which Ms Hellams clearly refers to and attaches a letter from Dr Naaz dated 2 July 2019, and completely mischaracterised her evidence. The Appellant also submitted that the assertion that paragraph [44] of Ms Hellams' affidavit was 'factually incorrect' is not brought out by any proper reading of her evidence.
Paragraphs [43]-[46] of Ms Hellams' affidavit were as follows: 43. On 18 October 2019, Dr Himalee Abeya, consultant psychiatrist, conducted a Government Medical Officer fitness for duty assessment in relation to the Applicant. A copy of this report, provided to CSNSW on 5 November 2019, is exhibited at CH-26. 44. It was difficult to find suitable duties for the Applicant that were in accordance with her medical capacity. The medical evidence CSNSW had received indicated that the Applicant should not work with "the workmates and environment involved in her harassment case" (extracted from CH-20) and "she reported anxiety and fear at the thought of going back to work with the perpetrators of her bullying" (extracted from CH-45). I understood the alleged perpetrators to include Cindy Moore who was responsible for the provision of offender services and programs within correctional centres throughout the Metro West region (including Emu Plains Correctional Centre and Dillwynia Correctional Centre) and Jacob Jackson who was, at that time, responsible for the Metro East region. 45. Given these limitations, suitable alternative duties were identified for the Applicant at Windsor Community Corrections Office and in the parole unit at Parklea Correctional Centre. As the Applicant had not completed the required 12 months' training to qualify as a Community Corrections Officer, the duties she was performing were more administrative in nature. However, the Applicant continued to be paid at grade 7/8 for this work. 46. On 28 October 2019, the Applicant commenced suitable duties at Windsor Community Corrections and Parklea Parole Unit (depending on workplace demand), following her absence from CSNSW while on workers' compensation. A copy of the Return to Work Plan No. 1 signed by the Applicant is exhibited at CH-27. . .
Turning to the Tribunal's treatment of paragraph [44] of Ms Hellams' affidavit, it appears to us that it was reasonable for the Tribunal to that paragraph as saying that Ms James could not return to her pre-injury work because the medical evidence was that this would cause her to have unacceptable contact with the alleged perpetrators, being Ms Moore and Mr Jackson.
This view of paragraph [44] of Ms Hellams' affidavit was reasonably open given the last sentence of paragraph [46] of Ms Hellams' affidavit as follows: In response to paragraph 30 of the Applicant's Statement, while this plan set a target of the Applicant returning to pre-injury employment on 30 December 2019, this did not occur as all other medical recommendations had not been addressed by that date and the Applicant had not been certified as fit for pre-injury employment.
For the reasons explained by the Tribunal in detail, the medical recommendations, including from Dr Naaz, were that Ms James could return to her pre-injury employment by 30 December 2019 even with Ms Moore and Mr Jackson being involved as senior managers.
Read in this way, we do not think the Tribunal mischaracterised the evidence nor was the Tribunal clearly mistaken to express the opinion that it was 'factually incorrect' to state that, based on the medical opinion from Dr Naaz, Ms James should not work with Ms Moore or Mr Jackson. Further and in any event, it was open for the Tribunal to conclude that it was factually incorrect for Ms Hellams to take the view that the medical evidence generally, including that of Dr Naaz, was that Ms James could not return to her pre-injury position given Ms Moore or Mr Jackson may have some higher level management role in respect of the pre-injury position.
The other aspect of this ground of appeal was that the Appellant disputed the Tribunal's statement at [138] that Ms Hellams failed to refer to Dr Naaz's medical opinion and recommendations from 2 July 2019 when considering what reasonable adjustments for Ms James should be made.
The question of finding 'suitable duties' for Ms James in accordance with her medical capacity is dealt with at paragraph [44] of Ms Hellams' affidavit. She refers to Dr Naaz's 2017 medical opinion and to Dr Naaz's medical opinion of 14 May 2020, but she does not refer to Dr Naaz's medical opinion and recommendations in the letter of 2 July 2019.
Accordingly, paragraphs [138] and [139] can be regarded as an accurate summary of paragraph [44] of Ms Hellams' affidavit evidence. Paragraph [138] follows on from [137] where paragraph [44] of Ms Hellams' affidavit is also referred to.
In our view, the Tribunal should not be taken to be stating that Ms Hellams was unaware of or had not read Dr Naaz's opinion of 2 July 2019. The better reading is that at [44] of her affidavit, is that she does not refer to and ignores the 2 July 2019 medical opinion. She only refers to opinions of other dates.
In our view, the Appellant's contentions do not raise any question of law and accordingly, leave is required to pursue this ground of appeal. There is no issue of principle or a question of public importance or matters of administration or policy which might have general application. Further, in our view there is no injustice which is reasonably clear or an error that is plain and readily apparent which is central to the Tribunal's Decision and not merely peripheral.
Finally, in our view it cannot be said that the alleged factual error was 'unreasonably arrived at and clearly mistaken' or that the Tribunal has gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Leave to appeal is refused.
The submission then put by the Appellant as part of Grounds 1 and 5 was that the attack on Ms Hellams' credibility at [139] and [140] in the Decision was unjustified. It was submitted to be unjustified because 'there was no cross-examination as to Ms Hellams' credit' or 'reliability'.
Paragraph [139] and [140] of the Decision are as follows: 139 The Tribunal has formed the view that Ms Hellams focused on evidence which she considered was favourable to DCJ's case and failed to refer to other relevant evidence, which it appeared she did not wish to highlight. Ms Hellams failed to make any reference in her affidavit to the most up to date medical advice from Dr Naaz (at the relevant time) which was the advice dated 2 July 2019 when considering Ms James returning to DCJ in October 2019. 140 Ms Hellams' consistent references to Dr Naaz's advice from 2017, without conceding that that advice was provided at a time when Ms James had no capacity to work at DCJ, along with a failure to refer to Dr Naaz's latest advice, leads the Tribunal to find that Ms Hellams lacked credibility and reliability as a witness as her evidence was internally inconsistent, incomplete and confusing.
The Appellant submits that the obligation to cross-examine arises from the obligation to afford the Appellant procedural fairness drawing on broad principles contemplated by the rule in Browne v Dunn (1893) 6 R 67. From this broad principle it was put that the authorities on procedural fairness such as Kioa v West (1985) 159 CLR 550 as well as the hearing rule embodied in s 38(5)(c) of the NCAT Act led to the conclusion that the Appellant was denied procedural fairness.
This aspect of the appeal does raise a question of law, that being whether or not the Appellant was afforded procedural fairness when the Tribunal made findings allegedly where there was no cross-examination of the relevant witness: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13].
The obligation to cross examine a witness in order to afford that witness and the party calling the witness procedural fairness in the context of the NCAT Act was discussed by the Appeal Panel in Bilanenko v Commissioner of Police [2022] NSWCATAP 279: [14] We accept the proposition, which seemed not to be disputed by the parties, that strictly the rule in Browne v Dunn does not apply to proceedings before the Tribunal: see Twentymen v Secretary, Department of Social Services [2018] FCA 1892 at [77] (Twentymen) and see s 38(2) of the NCAT Act. [15] We further note that it was stated by Wigney J in Twentymen that the 'preferable approach is to address any issue arising from the failure to cross-examine a witness by reference to the principles of procedural fairness, without reference to the rule in Browne v Dunn': at [78]. [16] The Appellant was put on notice of the dishonesty contention in the Complaint in writing and then directly responded by way of evidence in reply to that contention. [17] In our view, as the Appellant was given the adverse information and the opportunity to respond to it, it cannot be said there was some procedural unfairness or 'practical injustice' in not being cross-examined on a point that he had addressed in his reply evidence. [18] In this regard, with respect, we agree with the statements of the Full Federal Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Sullivan) where the Court found that first, administrative decision-makers bound by the common law rules of natural justice or procedural fairness are not required in all circumstances to permit cross-examination (see O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342) and, second, failure to cross-examine was no denial of procedural fairness because the applicant had notice of the statements of the witnesses and was afforded, prior to the hearing, with the inferences proposed to be drawn from the witnesses' statements. [19] Mr Higgins, of Counsel, who appeared for the Appellant, submitted that Sullivan should be distinguished on the basis that in the Commonwealth sphere the relevant issue was that of jurisdictional error as opposed to being an error of law that concerns the state jurisdiction. [20] We do not agree with this submission. Consideration of the reasoning in Sullivan and the authorities relied upon such as Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSW LR 1 at [50] (see Sullivan at [50] per Logan J) demonstrates that the Court was speaking generally in terms of a failure to afford procedural fairness flowing from the equivalent statutory provisions to section 38 of the NCAT Act. [21] We also note that in NSW's cases such as Scalise v Bezzina [2003] NSWCA 362 at [98]; West v Mead [2003] NSWSC 161 at [91]-[99] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [140], [143] and [144] it has been started that the rule in Browne v Dunn does not mandate the proposition that matters must be put to witnesses when pre-trial preparation means sufficient and adequate notice has been given with an opportunity to respond. [22] Given that the Appellant in his statements in reply dealt specifically with the allegation of dishonesty there can be no doubt that he was on notice fairly of the case which it was proposed to make against him such that there was no breach in procedural fairness in a failure to be cross-examined on the subject. . . . [25] Further, we note and apply what was said by the Appeal Panel in Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 at [31] and [32] where it was emphasised that: 'cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be admitted in administrative hearings…It is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness.'
In our view, the Appellant's submission is misconceived. The relevant finding complained of is 'that Ms Hellams lacked credibility and reliability as a witness'. It should have been obvious to the Appellant and Ms Hellams from the Complaint, the Points of Claim and her cross examination that Ms Hellams' 'credibility' and 'reliability' was in issue. There was no denial of procedural fairness in making a finding about the lack of reliability or credibility of Ms Hellams and no obligation on Ms James specifically to put to Ms Hellams that she is a witness who is 'unreliable' or 'lacks credit'.
In our view, no denial of procedural fairness has been demonstrated by the finding that the witness Ms Hellams lacked credibility and reliability.
The next submission was that the conclusion as expressed in [139] and [140] was not justified. This plainly is an extension of the appeal ground we have already dealt with and requires leave to appeal. For the reasons we have already given, we decline to grant leave to appeal to raise the Appellant's complaints as to [139]-[140] of the Decision.

Grounds 5, 6 and 7

As to the appeal grounds 5, 6 and 7, which were dealt with together by the Appellant, the Appellant's written submissions were as follows: At [141] to [143], the Tribunal below made findings concerning Ms Hellams (and the Appellant more broadly) based on an assertion by the Respondent that the Appellant had only found work for the Respondent because of SafeWork's intervention. The reasoning is difficult to follow. Firstly, the Tribunal found at [141] that Ms Hellams was not a person to whom the SafeWork Inspector spoke to on 10 October 2019. 3.9 Secondly, the Tribunal asserted at [142] that the "undisputed evidence" is that Mr Tregurtha only contacted the manager at the Windsor complex "because of" the intervention of SafeWork. That assertion is entirely incorrect. Mr Tregurtha gave evidence that he commenced looking for potential roles for the Respondent at CSNSW in accordance with her certificate of capacity dated 12 September 2019 and in cross examination the following exchange took place: RJ So why, at that time - if that was relevant and accurate - were you able to find me a role within a 24 - 48 hour period of SafeWork contacting you? MT Well, at that time in June, you didn't have a capacity to return to Corrective Services, so we couldn't go against the medical advice and get you working within a Corrective Services location. RJ We've already [audio glitch] 00:27:48 that was being discussed, and that I was cleared, medically, to participate in mediation. So what was preventing you from progressing the mediation, then? MT So following that case conference, I then spoke to QBE to organise a referral to mediation, and that was all - QBE organised that late August, and they referred it to Annele Schoeffel, and Annele then made contact with you, and then advised that mediation not to proceed, so then the mediation was put on hold. 3.10 Further, Ms Hellams gave evidence in cross-examination that the intervention of SafeWork was not the catalyst or principal catalyst for identifying alternate duties for the Respondent at Windsor Community Corrections Office. She was not meaningfully challenged on this evidence. In light of the above, the finding at [142] as to "undisputed evidence" is impossible to sustain. Further, it was never put to Mr Tregurtha in cross-examination and nor was Ms Hellams properly challenged on her evidence. 3.11 At [146], the Tribunal below then found that the reason Ms James was ultimately returned to work at the Appellant was "because of" the intervention by SafeWork. However, as above, this was never put to Mr Tregurtha (who found the role for her), and (as per [141] of the Decision), the Tribunal had found that Ms Hellams did not speak with the SafeWork inspector. 3.12 It appears that this finding relied on inferences to be drawn from the chronology of events concerning the involvement of SafeWork NSW. However, as set out in Allied Pastoral Holding (extracted above), those matters had to be put to Ms Hellams and Mr Tregurtha in cross-examination for any inference to be drawn. It clearly was not put to Mr Tregurtha and (as above) Ms Hellams was not properly challenged on her evidence. 3.13 At [171] to [175], the Tribunal below then made a series of findings against Ms Hellams concerning her reasons for acting. None of these matters were put to Ms Hellams in cross-examination. Further, the findings rely on the erroneous approach referred to above and below concerning the letter from Dr Naaz dated 2 July 2019. 3.14 In Collins, the Appeal Panel of the Tribunal stated at [77]: "As to the particular grounds in clause 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe the ground upon which a jury verdict can be set aside) when the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Ltd v Stein Heurte SA [2013] NSWSC 266 at [153]." [Emphasis added] 3.15 The Appellant contends that the findings identified above were so clearly against the weight of evidence in the matter that the conclusions reached were not ones that a reasonable Tribunal member could reach. In this regard, it is relevant that: (a) each of the witnesses for the Appellant were not challenged in any meaningful way on their evidence, (b) the letter from Dr Naaz (which seems to have been the linchpin on which the Tribunal has made the Decision) could very easily be interpreted consistently with the manner in which each of the Appellant's witnesses (including Ms Hellams) interpreted it; and (c) there was no proper basis to reject the Appellant's evidence as to their belief about the Respondent's condition and the restrictions that they understood had been recommended by the Respondent's treating practitioners.
Taking each of the Appellant's complaints as summarised above in turn, first, the focus of the complaint is on paragraphs [141]-[143] of the Decision and in particular the statement that it was the 'undisputed evidence' that Mr Tregurtha only contacted the manager at the Windsor complex because of the intervention of SafeWork at [142].
Before the Tribunal was the affidavit of Mr Tregurtha dated 13 July 2021. Paragraphs 22 and 23 of the affidavit are as follows: 22 On 10 October 2019, SafeWork NSW attended a meeting at CSNSW at the Applicant's request in relation to her return to work. A copy of the inspection report is exhibited at MT-9. 23 We managed to identify suitable duties for the Applicant and on 11 October 2019, I sent an email to the Applicant regarding her return to work and commencement of suitable duties at Windsor Community Correctional Centre within her then current medical capacity of 5 hours, 3 days per week. A copy of this email is exhibited at MT-10.
In our view, the summary in the Decision at [142] that Mr Tregurtha contacted the Manager of the Windsor complex because of the intervention of SafeWork is open to be found based upon Mr Tregurtha's affidavit.
The fact that Mr Tregurtha in his affidavit said that he was looking for potential roles for Ms James in accordance with her certificate of capacity dated 12 September 2019 in our view does not gainsay the proposition that it was only after the conference attended with SafeWork NSW on 10 October 2019 that Mr Tregurtha managed to identify suitable duties at Windsor.
Further, any alleged error in this regard is not an error of law and consistent with the principles we have already discussed, we decline to grant leave to raise this ground of appeal.
At 3.10 of the Appellant's written submissions, the statement at [142] as to 'undisputed evidence' is challenged on the basis that Ms Hellams did give evidence in cross-examination that the intervention of SafeWork was not the catalyst or principal catalyst for identifying duties for Ms James at Windsor.
This submission does not persuade us that leave to appeal should be granted. The focus of [142] is on the undisputed evidence from Mr Tregurtha, not Ms Hellams. In any event, we are not satisfied that this would make any difference to the result.
The next complaint in this regard by the Appellant is at 3.11 of the Appellant's written submissions which focused on [146] of the Decision, which is as follows: 146 The Tribunal finds that DCJ did not make attempts to assist Ms James to return to work at DCJ at the commencement of the Complaint Period (she was certified fit to return to DCJ on 12 September 2019). We find that the reason Ms James was ultimately returned to work at DCJ was because of the intervention by SafeWork.
In our view these findings were open on the evidence and in particular the evidence of Mr Tregurtha in his affidavit as well as the chronology of events and the natural inferences that flow from the chronology and Mr Tregurtha's email of 11 October 2019. We decline to grant leave to appeal to pursue this ground of appeal.
The complaint made at 3.12 of the Appellant's written submissions was that these matters needed to be put to Mr Tregurtha and Ms Hellams pursuant to the rule in Browne v Dunn in order to be given procedural fairness. Again, questions of procedural fairness may be regarded as a question of law.
However, as discussed above, the so-called rule in Browne v Dunn has limited direct application in the Tribunal which is not bound by the rules of evidence. In our view, having read the transcript of Mr Tregurtha's cross-examination, there was no need for any greater or more specific challenge to Mr Tregurtha's evidence which was already to the effect that it was after the intervention of SafeWork that Mr Tregurtha found the position for Ms James at Windsor.
Further, in our view, the witness and the Appellant were sufficiently on notice of the allegation by reason of the Complaint and Points of Claim.
The submission in respect of Ms Hellams was not that there was no cross-examination of Ms Hellams on the issue, but that Ms Hellams was not 'properly challenged on her evidence'.
The relevant cross-examination of Ms Hellams appears to be at p270 of the Appeal Book and relevantly is as follows RJ Okay, ma'am. I'll move on. I'm sorry. Okay, in paragraph 45, you explain in that paragraph - oh, you explain in that paragraph that suitable duties were identified, however you don't mention that it was a result of SafeWork invention. Is there a reason why you didn't mention SafeWork? CH Because in my mind, the identification of those was not directly as a result of SafeWork's intervention. RJ Okay, so can I refer you to page 246 - so do you see that the date there is the 25th of September? And there is another - I'm sorry, this is probably a submission, so forget that. There's another email, for the reference of the Tribunal, on 248 on the 4th of October as well. DM I apologise for interrupting, Tribunal Members, but I think in fairness to Ms James, if she wants to put the proposition that Ms Hellams' decisions about returning Ms James to work were only because of the intervention of SafeWork, that in fairness to Ms Hellams, she needs to put that proposition squarely and allow Ms Hellams to respond. LA Yes. The answer - RJ I'm not sure what Mr Mahendra - LA Well, I thought Ms Hellams had answered that but, Ms James if that's the submission you're going to make, that it is only because of WorkCover intervention, then you should put that proposition directly to Ms Hellams. RJ Okay. So Ms Hellams, I put it to you that the suitable duties were found for me at that particular time was because SafeWork became involved. Is that - what do you say to that? CH That there - as I said before, SafeWork's involvement was not the catalyst, the principal catalyst for identifying alternate duties for you at Windsor Community Corrections Office.
In our view, given the principles we have summarised above, Ms Hellams was sufficiently on notice of the claim that was being made against her about the catalyst for finding alternative suitable duties for Ms James and that the cross-examination was sufficient.
We are unable to find that there was any denial of procedural fairness to the Appellant. Accordingly, we reject this ground of appeal.
The next focus of complaint was on paragraphs [171]-[175] of the Decision at 3.13. Paragraphs [171]-[175] are as follows: 171 The Tribunal finds that Ms Hellams held the view that Ms James would likely make a complaint against another DCJ manager, had that person wrote correspondence to her. 172 Thirdly, despite Dr Naaz's and Dr Abeya's opinions in 2019 that mediation between Ms James and Ms Moore would be detrimental to her mental health, Ms Hellams insisted that mediation occur. Ms Hellams' evidence during cross examination was that mediation between Ms James and Ms Moore and Dr Martin was necessary because of the 'outstanding issue existing between the parties'. Apart from the fact that Ms James made a complaint of bullying against Dr Martin and Ms Moore there is no other outstanding issue between these two senior managers and Ms James. 173 Fourthly, the Tribunal accepts Ms James submission that she was seen by Ms Hellams and others within DCJ as a complainer and a troublemaker because she made complaints pursuant to s50(1)(a) of the Act. The fact that Ms James has made internal complaints and a WorkCover NSW claim in regard to conduct of Ms Moore and Dr Martin does not diminish the fact that at least one of the 'real, genuine or true reasons' for subjecting Ms James to detriment was because of the complaints made pursuant to s50(1)(a) of the Act. 174 The Tribunal finds that DCJ, including Ms Hellams, held a bleak view of Ms James because she made complaints and considered that she could not effectively work with colleagues including management. This was one of the 'real, genuine or true reasons' why DCJ did not assist Ms James to return to work when she was fit to do so, consistent with its Return to Work Policy. 175 For the reasons set out above the Tribunal is satisfied on the balance of probabilities that Ms James' previous complaints to NCAT were a real, genuine or true reason for DCJ's detrimental act towards Ms James of failing to assist her to return to work when she was fit to do so. The complaint of victimisation in this allegation is made out.
The thrust of the complaint again is that findings were made against Ms Hellams that were not put to her in cross-examination.
We reject this submission.
First, in respect of the core findings of the Tribunal that Ms Hellams' real, genuine or true reason for acting in a detrimental way towards Ms James was Ms James' previous complaints under the ADA, the Appellant and Ms Hellams were plainly on notice of that assertion. Ms Hellams had the opportunity to deal with the suggestion that this was her real reason for acting the way she did to Ms James. As a consequence, in our view, there is no denial of procedural fairness or obligation to put these matters to Ms Hellams in cross-examination. The issue was plainly and squarely raised and Ms Hellams would have had the opportunity to say whatever she wanted in her affidavit about the allegation.
In respect of the other findings made by the Tribunal in the paragraphs in question, such as Ms Hellams perceiving Ms James to be a 'complainer and a troublemaker because she made complaints pursuant to s 50(1)(a) of the Act' and that Ms Hellams 'held a bleak view of Ms James because she made complaints and considered that she could not effectively work with colleagues including management', again, we think these matters sufficiently raised from the Complaint and Ms Hellams would have been on notice that these matters were being pursued as findings against her.
In addition, we have reviewed the transcript of Ms James' cross-examination of Ms Hellams. We note that it went for many pages over an extensive period of time and while Ms James is not a lawyer and represented herself, the thrust of the matters put to Ms Hellams was plain. This included complaints put to Ms Hellams that she had not been forthcoming as to the real reasons why Ms James was not found a suitable position.
Accordingly, we are not satisfied that there was some denial of procedural fairness or natural justice afforded to the Appellant by there not being more detailed or specific cross-examination of some of the matters referred to by the Tribunal at [171]-[175].
Accordingly, we reject this ground of appeal and reject grounds 1, 5, 6 and 7.

Summary of grounds of appeal

Grounds of Appeal 2 - 4 are as follows:
Further or in the alternative, the Tribunal erred at law by misapplying legal principles or asking itself the wrong question in that, rather than determining whether Ms Hellams genuinely believed that the opinion of Dr Naaz was that the Respondent should not work with Ms Moore or Mr Jackson (in circumstances where the opinion expressed was ambiguous or unclear), the Tribunal: a. determined that Ms Hellams' understanding was "factually incorrect" and b. erroneously relied on this finding to reject Ms Hellams' evidence.
The Tribunal compounded the errors identified in ground 2 above in that, having expressly found that Ms Hellams decided that the Respondent should not return to the "Substantive Position" based on an "outdated opinion" from Dr Naaz (presumably because Ms Hellams' understanding was factually incorrect), the Tribunal inconsistently found: a. that the Appellant did not offer any innocent or probable explanation as to why it did not assist the Respondent to return to work once she was fit to do so; b. that the reason for Appellant's conduct was because of the Respondent's complaints against managers; and c. that the reason for the Appellant's conduct was because of the Respondent's previous complaints to NCAT.
The Tribunal erred at law by misapplying legal principles or asking itself the wrong question when it determined that because another explanation existed for the Respondent's return to work it necessarily meant that this other explanation was the reason for the Respondent's return to work rather than properly considering the decision-maker's state of mind as to the reason for the Respondent's return to work.

Appellant's submissions

The Appellant dealt with grounds 2 - 4 together and in the Appellant's submissions the following further contentions were made:
The Appellant submitted, citing Shizas v Commissioner of Police [2017] FCA 61 at [174] (Katzmann J); Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 at [91] (Perram J) and Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [60] (Mortimer J), that the issue is not whether Ms Hellams, as decision-maker, was correct in her understanding of matters or events or the opinions expressed by the doctors, what needs to be established was the subjective reasons, so far as Ms Hellams was concerned, for her actions in respect of Ms James.
Similarly, the Appellant cited Serpanos v Commonwealth of Australia [2022] FCA 1226 at [125] for the proposition that it is irrelevant that the reasons expressed by a decision maker might be 'impugned as unfair or illogical or otherwise liable to criticism'. The real inquiry, it was submitted, is whether the reasons did actually inspire the Appellant to engage in the relevant conduct as opposed to the prohibited reasons provided for under s 50 of the ADA.
The thrust of the Appellant's submissions in respect of these grounds was as follows: 1. The opinion of Dr Naaz was ambiguous and unclear; 2. Ms Hellams' understanding of Dr Naaz's opinion was therefore understandable; 3. Even if Ms Hellams' interpretation of the letter was incorrect, that does not mean that her evidence about her subjective reasons should be rejected. 4. What was required was a finding that Ms Hellams was not giving truthful evidence about the reason she acted, which could not be demonstrated on the totality of Ms Hellams' evidence.

Consideration

We note that these grounds of appeal allege errors of law in that the Tribunal essentially misapplied s 50 of the ADA by focusing on whether or not the witnesses of the Appellant correctly or accurately interpreted the doctors' opinions and in particular Dr Naaz's, rather than what their genuine or real reasons were for not permitting Ms James to return to her Substantive Position. In other words, the Tribunal erred in failing to appreciate that the test under s 50 is purely subjective.
The decisions cited by the Appellant are relevant but, in our view, they do not stand for proposition that the test for causation in s 50 is purely subjective. For example, in Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [60] Mortimer J made the following observation: The exercise in which a court must engage when there is a provision such as s 340(1) may be a different exercise from that required to determine whether a law operates in a discriminatory way. In the latter circumstance, the court examines, objectively, the outcome and operation of the law in a substantive and practical sense and is not concerned with the aims or intentions of the legislators: see Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; 169 CLR 436 at 478-479, Gaudron and McHugh JJ. Similarly, where statutory language requires a court to determine whether a person acted "on the ground of" a protected attribute, the exercise may be more objective. It may require the court to characterise, objectively, the alleged discriminatory "ground" or basis, for the way the discriminator treated another person. Subjective intention may be relevant but not decisive: see for example IW v The City of Perth [1997] HCA 30; 191 CLR 1 at 59, Kirby J. As his Honour pointed out, discrimination often occurs unconsciously or thoughtlessly, but that does not alter the fact that the way a person was treated was on the ground of a protected attribute. That is why many discrimination authorities, IW being one of them, repeatedly emphasise that a search by a court to identify a motive or intention to discriminate on the basis of a protected attribute is not the correct task.
These observations are consistent with the High Court's decision in Purvis v New South Wales [2003] HCA 62; 217 CLR 92. In that case the High Court was interpreting the words "because of" in the Disability Discrimination Act 1992 (Cth). The High Court held that the test for causation is to ask why the complainant was treated as they were. The focus must be on the 'true basis', the 'genuine basis' or the 'real reason' for the treatment: Gleeson CJ at [13], McHugh and Kirby JJ at [142].
Those observations are equally applicable to the "on the ground of" test in s 50(1) of the ADA: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37].
The Tribunal correctly summarised its task at [55] and [56] of the Decision: The next question is whether at least one of the 'real', 'genuine' or 'true' reasons for being subjected to detriment is 'on the ground' or 'because' of an act by a person meeting the description in s50(1)(a) to (d) of the Act. Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP at [36]; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) per Gleeson CJ at 102, McHugh and Kirby JJ at 144. In discrimination proceedings the applicant is not required to prove that the respondent had a motive or an intent to victimise the applicant. Australian Iron & Steele Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 176 (Banovic) [10]-[11]; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 and 382 (Waters). The words 'on the ground' require the Tribunal to make factual findings as to the 'real reason' for the alleged discriminators' Act. In Purvis, the majority of Gummow, Hayne and Heydon JJ (with whom Gleeson CJ and Callinan J agreed) stated at [236]: For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
We reject this ground of appeal. We are satisfied that the Tribunal did understand and correctly apply the test for causation in s 50. The Tribunal carefully pointed out that its task was to discern the real or 'genuine' reasons for the conduct of the Appellant: at [55].
In our view, it is plain on reading the Decision as a whole that the Tribunal understood that the mere fact that a witness may have incorrectly interpreted the opinion of Dr Naaz is not sufficient to prove causation. The Tribunal considered whether Ms Hellams answers were plausible or factually correct. We have already dealt with the question of whether or not it was open for the Tribunal to find that Ms Hellams' interpretation of the medical opinion of Dr Naaz at [44] of her affidavit was 'factually incorrect'. On the basis of that finding it was also open for the Tribunal to infer that the factually incorrect reason Ms Hellams gave for her decision was not one of the real or genuine reasons for that decision. It was not necessary for the Tribunal to go so far as to find that Ms Hellams was giving untruthful evidence in order to make the finding it did. In drawing that inference the Tribunal considered all the circumstances, including the plausibility of the explanations given by the witnesses for their conduct.
In our view, there was no misapplication of any legal principle by the Tribunal and we reject these grounds of appeal.

Appeal ground 8

We note the Appellant no longer presses appeal ground 8.

Appeal ground 9

Appeal ground 9 is as follows: 9 The Tribunal erred at law by misapplying section 108(2) of the Anti-Discrimination Act 1977 (NSW) and making orders beyond what it has found to be unlawful and about how the Appellant should conduct its business.

Appellant's submissions

The Appellant's written submissions in support of ground 9, which were substantially relied upon and repeated in oral addresses, were as follows: 6.1 The Appellant contends that the order requiring it to return the Respondent to her substantive position was beyond the power conferred by section 108(2) of the AD Act. 6.2 In Sutherland v Tallong Park Association Incorporated (No. 2) [2006] NSWADT 287 (3 October 2006), the Tribunal stated at [19]: "...In Moxon -v- Westbus Pty Limited (EOD) [2000] NSWADTAP 12 the Appeal Panel observed that it is not within the Tribunal's power to make orders about how a respondent should conduct its business in the future, except to say that it should not be conducted in a way that is unlawful under the Act. In that case, Mr Moxon sought relief in the form of an order that the respondent ensure certain bus services were accessible to the complainant within 6 months of the Tribunal's judgment. The Tribunal noted at [94 - 95]: Incidentally, the relief sought by the complainant is not within the Tribunal's power to order. In Waters v Public Transport Corporation [1991] HCA 49; 1991 EOC 92-390 Brennan J noted that the order of the Anti-Discrimination Board of Victoria to "refrain from implementing the driver-only tram proposal" was open to objection because it did not "restrain specific conduct which might have been found to amount to the refusal of a service or the imposition of a requirement or condition." Brennan J went on to say that: ...more significantly, it purports to order the Corporation to maintain a level of staffing for its trams as the means of maintaining the services needed by disabled people. I find no basis in the Act for an order compelling the performer of a service to retain or employ staff to maintain the level of service previously provided (at 78,604). These comments apply equally to the situation under the ADA. Westbus may decide to comply with an order preventing any further unlawful discrimination by not running buses on those particular routes until the impediments to the roadway are addressed or it might decide to develop new, accessible bus routes. In either case it would not be engaging in unlawful conduct." [Emphasis added] 6.3 Accordingly, even if a finding could have been made that the Appellant contravened s.50 of the AD Act (which is denied), the only order the Tribunal could have made was an order that that the Appellant consider any request or application by the Respondent to return to the Substantive Position without repeating or continuing the conduct that the Tribunal has found to be unlawful under the AD Act. It did not have power to make any order as to how the Appellant should conduct its business in the future in circumstances where the Appellant may have had other entirely lawful reasons for not returning the Respondent to the Substantive Position including, for example, if she was not fit to return to it or her return posed a risk to the health and safety of others.

Consideration

Section 108(2) of the ADA is as follows: (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following - (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, (g) decline to take any further action in the matter.
In respect of the orders complained of by the Appellant, the Tribunal made the following remarks at [368]-[371]: 368 The Tribunal has found that DCJ victimised Ms James during the Complaint Period and that the unlawful conduct continued throughout the whole Complaint Period. In part, the victimisation consisted of DCJ demanding that Ms James engage in mediation with Ms Moore and Dr Martin. The Tribunal found that this requirement on Ms James was victimisation within the meaning of s50 of the Act and was contrary to the medical evidence as at 12 December 2019. The medical evidence throughout the Complaint Period remained consistent that Ms Moore should not be involved in Ms James' return to work planning and that mediation between Ms Moore and Ms James would be harmful to Ms James' mental health. 369 Under subsection108(2)(b) and (c) of the Act, relief is available to prevent the continuation or recurrence of victimisation. An order to place Ms James in her Substantive Position (with medical clearance) mandates DCJ to perform an Act. In light of the material before the Tribunal, it is satisfied that it is reasonable for Ms James to be placed in her Substantive Role. We determine that this order is also necessary in order to redress the loss and damage suffered by Ms James. 370 The order that DCJ place Ms James into the Substantial Position is a reasonable [a]ct because it is consistent with the medical opinions during the Complaint Period and requires a current assessment by her GP. 371 The purpose of such an order is to re-establish normal workplace relations. DCJ's continued insistence in submissions without any evidence that Ms Moore has to manage Ms James and that mediation between Ms Moore and Ms James is a medical recommendation is concerning in light of the material before the Tribunal. Ultimately whether Ms James is able to return to the Substantive Position will depend on medical advice.
The Tribunal found at [150] that the failure to allow Ms James to return to work at all or to her Substantive Position was 'a loss as it precluded Ms James from returning to work'.
The Tribunal also found at [236] that Ms James has been 'severely restricted' in her ability to move forward with her career in DCJ and that she had applied for several roles within DCJ in recent years but had been unsuccessful. This was in part due to not putting Ms James back in her Substantive Position.
The Tribunal also found at [237] that Ms James had been performing menial tasks and that this was objectively a loss of an opportunity to perform meaningful work and to develop and learn at work.
The Tribunal also referred to the friendship and comradery that comes when a person is in a job that he/she is happy with, which included Ms James who gave evidence that she loved her work: at [237]-[238].
Further, at [351] the Tribunal found and accepted Ms James' evidence that the Appellant's conduct also affected her mental health. The Tribunal also found that Ms James felt 'isolated, targeted and alone': [352].
The Tribunal found that in not assisting Ms James to return to work when she was fit to do so, this materially contributed to the claimed loss: [352]. The Tribunal found that the alleged victimisation adversely impacted upon Ms James' psychological health and anxiety levels.
In our view, these findings of loss and damage suffered by Ms James come within the meaning of the term 'loss and damage' in s 108(2)(c) of the ADA. Further, we accept, as the Tribunal did (see [369]) that placing Ms James in her Substantive Position would be a 'reasonable course of conduct' to 'redress loss and damage' that she suffered as a result of the alleged discrimination.
For example, the Appeal Panel of the Administrative Decisions Tribunal in Lawson v State of New South Wales (Housing NSW) (EOD) [2013] NSWADTAP 5 found that the relevant 'loss and damage' in s 108(2)(c) would include the following: 1. pain and suffering; 2. stress and frustration caused by delay in performing work in respect of the tenancy agreement; and 3. humiliation experienced by the complainant by having to explain the nature of her disabilities to a number of different employees of Housing NSW: see at [91].
The Appeal Panel expressed some doubt about whether s 108(2)(c) could support an order requiring Housing NSW to comply with an agreement 'for a future period of uncertain duration': at [95].
This is not an issue here. The Tribunal's order is simply for the Appellant to return Ms James to the Substantive Position. It does not in fact require the Appellant to maintain Ms James in this position for any duration of time in the future.
The Appellant suggested that it may have had 'other entirely lawful reasons' for not returning Ms James to the Substantive Position including for example, 'if she was not fit to return to it or her return posed a risk to the health and safety of others'.
We find this submission somewhat disingenuous.
First, the order was subject to medical advice as to the fitness of Ms James to return to her Substantive Position. Further, in respect of other reasons such as whether or not she posed a risk to the health and safety of others - this was not raised at the hearing, or in submissions either below or before us.
It was accepted by the Appellant in oral addresses to the Appeal Panel that at the time of the hearing and also continuing through to the current time, there was no lawful basis in contemplation by the Appellant for not permitting Ms James to return to her Substantive Position.
Accordingly, it can be assumed that the Appellant had no lawful basis for declining to engage or return Ms James to the Substantive Position as at the date of the order.
We note the order does not prevent the Appellant from terminating Ms James' employment or moving her to another position provided such conduct does not amount to any contravention of the ADA.
Accordingly, the order in question here may be distinguished from those considered in Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12 and in Waters v Public Transport Corporation [1991] HCA 49.
We further note that Ms James has already been reinstated to her Substantive Position. The order for Ms James to be engaged in the Substantive Position was not stayed and has been complied with. In such circumstances, the order of the Tribunal can be regarded as having been fulfilled or spent. Accordingly, any appeal seeking to overturn this order appears to us to be futile. This is another reason for rejecting this ground of appeal.
Accordingly, we reject this ground of appeal.

Appeal ground 10

Appeal ground 10 is as follows: The Tribunal erred at law by denying procedural fairness to the Respondent when considering matters raised in the Respondent's closing submissions, including at [235] and [237] as evidence put forward by the Respondent, upon which the Appellant did not have an opportunity to cross-examine the Respondent.

Appellant's submissions

The Appellant's written submissions were brief and as follows: 7.1 The Appellant contends that the Tribunal denied the Appellant procedural fairness when considering matters raised in the Respondent's closing submissions, upon which the Appellant did not have an opportunity to cross-examine the Respondent. 7.2 At [235] to [237] of the Decision, the Tribunal accepted as facts the submissions from the Respondent as to the "detriment" she said she had suffered together with statements about the tasks she had been performing. These matters were not canvassed in the Respondent's evidence and the Appellant was not given an opportunity to challenge those matters in evidence or cross-examination. 7.3 This was clearly a denial of procedural fairness.

Consideration

The Appellant complains of a denial of procedural fairness. We accept that this gives rise to a question of law and leave to appeal is not required: see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13].
The Tribunal quoted from Ms James' closing submissions at [235] of its decision: Most importantly the really important detriment that has been inflicted upon me over this period of time. That being the significant impact on my mental health and the irreparable damage to my career and reputation and a period in my life when time has a significant impact on my chances of progression.
Those closing submissions were dated 13 December 2021. The submissions were placed before us.
The Respondent filed closing submissions in reply, dated 20 December 2021.
We note that the Tribunal is not bound by the rules of evidence and s 38 of the NCAT Act relevantly provides as follows: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. … (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
Accordingly, the Tribunal is entitled to have regard to statements made in closing submissions from Ms James, particularly when it comes from her own personal knowledge, provided that does not lead to any procedural unfairness on the part of the opposing party.
The Appellant had the opportunity to challenge the statements of alleged 'detriment' being made by Ms James in her closing submissions in their submissions in reply. They had the opportunity to submit that those parts of the closing submissions should not be relied upon when the Tribunal came to consider the detriment suffered by Ms James and/or that Ms James ought to give the evidence under oath and be cross-examined. The Appellant did not do so.
Similarly, we note that Ms James in the hearing below filed and served submissions on evidence in respect of damages dated 1 June 2022 and the Appellant responded in submissions dated 9 June 2022.
The Appellant had the opportunity to seek to have Ms James cross-examined or to submit that no weight should be given to closing submissions referred to by the Tribunal at [235] of its Decision.
In all of the circumstances, we are not satisfied that the Appellant was denied procedural fairness in the manner alleged in this ground of appeal.
Accordingly, we reject this ground of appeal.

Appeal grounds 11 - 13 and 17

These appeal grounds are as follows: 11. The Tribunal erred at law at [362]-[363] by misapplying legal principles regarding damages for non-economic loss, particularly in circumstances where references were made to cases in the Federal Court where damages are unlimited and there was no expert evidence of demonstrable psychological harm to the Respondent but mere assertions from the Respondent, such as referenced at [350]. The Tribunal indicated at [354] that it had relied upon contemporaneous medical reports and certificates included in the Respondent's evidence, in circumstances where Dr Naaz did not give evidence in the proceedings and was not available for cross-examination, which amounts to a denial of procedural fairness. 12. The Tribunal erred at law at [363] in failing to provide adequate reasons for electing to award damages in the sum of $35,000, failing to articulate the injuries or prevailing community standards. 13. The Tribunal erred at law at [354] by denying the Appellant procedural fairness and taking into account an irrelevant considerations that the Appellant had in earlier proceedings been ordered to pay compensation to the Respondent following a finding of victimisation, without this being put to the Appellant and without acknowledging that there had been intervening proceedings which found, at first instance and on appeal, that there had been no victimisation of the Respondent by the Appellant.17. The Tribunal erred at [356] when it failed to consider evidence put forward by the Appellant regarding loss or damage suffered by the Respondent.

Appellant's submissions

As set out in the Appellant's submissions, appeal grounds 11 - 13 and 17 concerned damages for non-economic loss.

Ground 11

The relevant paragraphs of the Decision of the Tribunal are [360]-[363], which are as follows: 360 We are satisfied that loss or damage has been suffered by Ms James as a direct result of the victimisation. Based on DCJ's submissions and evidence, the Tribunal is satisfied that DCJ has not placed Ms James in the Substantive Role because of its insistence on the adverse conditions set out in the Letter. 361 Ms James took proactive steps to mitigate the damage or loss caused by CSNSW's conduct by continuously engaging with them and asking them to assist her to return to work and ultimately by contacting SafeWork. 362 The task of assessing damages for non-economic loss is a difficult one: Kenny J in Richardson [94], however because the 'injury' is difficult to measure it should not be ignored: Wilcox J in Hall v Sheiban [543]. The notion that cases involving complaints of unlawful discrimination and victimisation are in the range of $12 000 to $20 000 was considered and rejected by Kenny J (Besanko and Perram JJ in agreement) in Richardson. The Full Federal Court considered the assessment and awarding of damages in a sexual harassment case, however the principles apply equally to other areas of discrimination law. Besanko and Perram JJ stated that an award of damages should not be determined by reference to 'some previously accepted range' but should be determined 'having regard to the nature and extent of the person's injuries and prevailing community standards…' [81], Kenny J [95]-[118]. 363 The Tribunal finds that taking into account the particular circumstances before the Tribunal in regard to the unlawful conduct during the Complaint Period including Ms James' injuries and prevailing community standards, the appropriate award for general damages is $35 000.
We note that the complaint of 'misapplying legal principles regarding damages for non-economic loss' alleged to have arisen by the Tribunal's reliance on cases in the Federal Court as set out in ground 11 was not elaborated upon in written submissions or oral addresses.
At [362] of the Decision the Tribunal did not refer to any range of non-economic loss as being applicable based on Federal Court decisions. The Tribunal merely referred to some principles that, in our view, are applicable also to the question of damages for non-economic loss in cases of discrimination in proceedings before NCAT. There was no misapplication of the law by the Tribunal in referring to the Federal Court cases.
Accordingly, we reject ground 11.

Ground 12

The Appellant's submission in support of this ground was that 'without any proper reasoning or analysis, the Tribunal below ordered the Respondent $35,000 in general damages without (in any way) articulating the nature of the Respondent's injuries, what aspects of those injuries (if any) could be attributed to the alleged unlawful conduct or having any regard to prevailing community standards.'
We accept that the failure to give proper reasons amounts to an error of law for which leave to appeal is not required: see Prendergast at [13].
We accept for present purposes, without needing to fully describe the existing nature of the obligation, that the Tribunal was obliged to provide proper or adequate reasons for its decision and in particular its award for general damages at $35,000.
It is notoriously difficult to assess damages for a non-economic loss. The injury may be intangible and difficult to measure, however, as Wilcox J stated in Hall v Sheiban (1985) ALR 503 at 543, merely because damages for injuries such as to feelings, distress, humiliation 'are not susceptible to a mathematical calculation', this is not a good basis to ignore these items.
Assessment of non-economic loss involves matters of, 'impression, speculation, and estimation, calling for the exercise of common sense and judgment': Dell v Dalton (1991) 23 NSWLR 528 at 533 (Handley JA).
In such circumstances, it can be expected that the exposed reasoning behind an award of non-economic loss may be difficult to express and may be reasonably succinct based upon the evidence.
Further, when considering whether proper reasons have been given for an award of non-economic damages, the decision as a whole should be considered.
In particular at [148] and following, the Tribunal considered the question of whether or not detriment was caused to Ms James on the ground that she made complaints to NCAT.
The Tribunal made a number of findings including: 1. That it was difficult for Ms James to apply for more senior roles as she had not been working at all or performing administrative work below her substantive level: at [151]; 2. That as a result of not being placed back into the Substantive Position, Ms James suffered emotionally, and this had adverse impacts on her psychological injury: at [234]. 3. The Tribunal referred to Ms James' submission that there was a 'significant impact on my mental health' and irreparable damage was caused to Ms James' career and reputation which had a significant impact on her chances of progression: see [235]; 4. The Tribunal accepted it to be the case that Ms James was 'severely restricted' in her ability to move forward in her career at the Appellant and the Tribunal accepted that she has applied for several roles in recent years but has been unsuccessful: see [236]; 5. The Tribunal also accepted Ms James' evidence that performing 'menial tasks' is objectively a loss of an 'opportunity to perform meaningful work at that level, and to develop and learn at work. There is also friendship and comradery a person develops with their workmates that is in the Tribunal's view objectively valuable depending on the circumstances of the particular case': at [237]; 6. The Tribunal referred to Ms James' evidence of missing out on opportunities to stay up to date and that she felt the stigma of being labelled a 'complainer': see [239]-[240].
Under the heading 'claim for damages' the Tribunal at [350]-[356] stated the following: 350 Ms James' evidence is clear that she has suffered reputational damage, hurt feelings, humiliation, distress and embarrassment as a result of DCJ's conduct of hampering her return to work following a period of workers compensation leave. In many of the communications between Ms James and DCJ, she expresses feelings of being distressed at the roadblocks DCJ put in her way. The Tribunal accepts Ms James' evidence of her state of mind as set out in the contemporaneous documents before the Tribunal and her submissions and evidence during the hearing as to her state of mind during the Complaint Period.351 The Tribunal accepts Ms James' evidence that DCJ's conduct during the Complaint Period affected her deeply. Ms James said that: The detriment is to my mental health, and I feel like I'm on a rollercoaster sometimes. Some days, it's fine and then something else will happen and I'll go into this black pit. Tcpt 28.10.21 p5.352 The Tribunal accepts Ms James' evidence and submission that she felt isolated, targeted and alone as the persons she has made complaints about in the past are also involved in her return to work process. The Tribunal finds that the DCJ's conduct of not assisting Ms James to return to work when she was fit to do so and putting in place barriers so that she cannot return to the Substantial Position materially contributed to the claimed loss. 353 Similar to the facts in James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238, DCJ at [110]:The respondent did not provide evidence of having considered its obligation not to victimise Miss James for making the complaint. The respondent did not offer any evidence of having attempted to mollify the impact of the restrictions it placed upon Miss James. Despite noting her distress. The respondent then drew the conclusion that her distress rendered Miss James unsuitable for her role.354 The evidence from Dr Naaz and Dr Abeya supports Ms James' evidence. The Tribunal accepts Dr Naaz's opinion on 8 April 2020 that the way DCJ has treated Ms James, which has been found to be victimisation, has adversely impacted on Ms James' psychological health. The Tribunal accepts that Ms James' anxiety levels were affected by DCJ's conduct in not assisting her to return to DCJ at all and to her Substantive Role in particular. 355 The Tribunal also notes Dr Abeya's opinion as of 18 October 2019 that DCJ should give due consideration to Dr Naaz's request to not have Ms Moore involved in the return to work planning to assist her and provide her with further confidence, given the likely shaken trust between Ms James and DCJ. 356 The Tribunal is satisfied that Ms James has demonstrated that the loss or damage she has suffered was caused by DCJ's unlawful conduct. There is no evidence before the Tribunal that may suggest that the loss or damage suffered was for any other reason. In our view, these reasons give further content to and explain the award of damages for non-economic loss of $35,000.
In all of the circumstances, we are satisfied that the reasons given by the Tribunal for the award of non-economic loss were adequate and we reject this ground of appeal.

Ground 13

Ground 13 is as follows: The Tribunal erred at law at [354] by denying the Appellant procedural fairness and taking into account an irrelevant consideration that the Appellant had in earlier proceedings been ordered to pay compensation to the Respondent following a finding of victimisation, without this being put to the Appellant and without acknowledging that there had been intervening proceedings which found, at first instance and on appeal, that there had been no victimisation of the Respondent by the Appellant.
The Appellant did not elaborate on this ground in oral submissions and its further written submissions in support was in the following paragraph 8.9: 8.9 Further still, at [357], the Tribunal appears to have relied on earlier proceedings (without any notice to the Appellant and accordingly denying the Appellant the opportunity to respond to such reliance) in its assessment of damages. Firstly, the earlier proceedings were irrelevant to any assessment of damages. Secondly, by failing to allow the Appellant the opportunity to respond to the Tribunal's intention to rely on the earlier proceedings, the Appellant was clearly denied procedural fairness.
Paragraph [357] of the Decision of the Tribunal is as follows: This matter has a long and unfortunate history. On 25 May 2015, Ms James lodged a victimisation complaint against DCJ on the basis that she was removed from her workplace because she made a complaint including an allegation of sexual harassment. DCJ refused to permit Ms James to return to her workplace at that time. Dr Martin determined that Ms James could not be returned to the workplace due to the ongoing allegations: 'In accordance with Respondent's WH and S obligations, relocation is also necessary to protect the integrity of the investigation process.' James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 [78].
The nub of the complaint made by the Appellant is that the Tribunal relied on earlier proceedings 'in its assessment of damages'. We are unable to agree with this submission.
The statements made at [357] strike us as simply recording some of the history of the relationship between the parties including the previous litigation. When it came to making an actual assessment of the damages at [363] the Tribunal stated that 'taking into account the particular circumstances before the Tribunal in regard to the unlawful conduct during the Complaint Period', it made its award.
Accordingly, it seems to us plain that the Tribunal did not take into account other historical matters such as the previous litigation and the previous conduct of the Appellant outside the relevant Complaint Period.
Accordingly, we dismiss this ground of appeal.

Ground 17

Ground 17 is as follows The Tribunal erred at [356] when it failed to consider evidence put forward by the Appellant regarding loss or damage suffered by the Respondent.
The passage referred to in ground 17, being at [356], is as follows: The Tribunal is satisfied that Ms James has demonstrated that the loss or damage she has suffered was caused by DCJ's unlawful conduct. There is no evidence before the Tribunal that may suggest that the loss or damage suffered was for any other reason.
The Appellant's submissions travelled somewhat more broadly than what might be suggested by the terms of the actual ground itself. The written submissions in favour of this ground were set out in paragraphs 8.2 - 8.7 as follows: 8.2 It should be noted that there was no reliable evidence before the Tribunal below concerning the Respondent's claim for non-economic loss. 8.3 In particular, there was no evidence that the alleged victimisation was the cause of the Respondent's alleged loss. Relevantly, the Respondent was unfit for employment in the CSNSW Division of the Department of Justice prior to the complaint period. Accordingly, her injury (at that point in time) was not caused by any relevant conduct of the Appellant. After that point in time, there was no reliable evidence that any of the alleged conduct by the Appellant exacerbated or contributed to any existing injury the Respondent had at the commencement of the complaint period. 8.4 In Robinson Helicopter Company Inc. v McDermott [2016] HCA 22, the High Court summarised the relevant principles at [66] as follows (omitting citations and footnotes): "Although proof of causation may sometimes entail the robust, pragmatic drawing of inferences, especially where there are a number of possible causes and there is difficulty in ascertaining which of them was the cause of the damage suffered, proof of causation still requires proof on the balance of probabilities that the alleged breach of duty was the cause of the damage suffered." [Emphasis added] 8.5 In the present matter, there was no evidence going to the issue of causation. As stated in Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 at [226], the burden of proof concerning loss "always remains with the applicant and a causal link must be able to be demonstrated between the loss or damage suffered and the respondents' conduct." 8.6 In the absence of any reliable evidence connecting the alleged injury suffered by the Respondent to the conduct of the Appellant, it was not open to the Tribunal to award any damages for non-economic loss. 8.7 Notwithstanding the above, the Tribunal below relied on reports by doctors (who were not called to give evidence and accordingly were not cross-examined) to find that the Respondent's alleged injuries were caused by the alleged breaches of the AD Act.
As can be seen by the written submissions referred to above, the thrust of the complaint of the Appellant was the finding in the first sentence at [356] that the Tribunal was satisfied that Ms James has demonstrated that the loss or damages she suffered was caused by the Appellant's unlawful conduct. In this regard, the Appellant submits that there was no 'reliable evidence' that the alleged loss was caused by the alleged victimisation.
It is plain that this does not raise any question of law and leave to appeal is required. For the reasons which follow we decline to grant leave to appeal in respect of this ground of appeal.
We have already set out the Tribunal's reasons for coming to the conclusion that Ms James had demonstrated that the loss or damages she suffered was caused by the Appellant's unlawful conduct at paragraphs [350]-[355].
First, there was direct evidence from Ms James that her hurt feelings, humiliation, distress, embarrassment and mental health all suffered as a result of the 'roadblocks' the department has put in the way of her return to her Substantive Position. It was reasonably open in all of the circumstances of the case for the Tribunal to accept this evidence and accept that there was a material contribution made by the unlawful conduct to the damages claimed to have been suffered.
We fail to see any error in the fact-finding process of the Tribunal in this regard.
Second, the Tribunal relied upon the evidence of Dr Naaz and Dr Abeya. It was open to the Tribunal to accept the opinions of the doctors and in particular Dr Naaz of April 2020 that the relevant conduct of the Appellant toward Ms James adversely impacted on Ms James' psychological health. In turn, it was open to the Tribunal in reliance on this evidence to be satisfied that loss and damage had been suffered by Ms James, which was caused by the Appellant's unlawful conduct.
We fail to see any error in the fact-finding process of the Tribunal in this regard.
Finally, we note complaint is made that the doctors whose reports were referred to by the Tribunal were not 'called'. In this regard we note that the doctors' reports were tendered in evidence before the Tribunal. For example, Dr Naaz's opinion of 8 April 2020 was exhibit CH-39 to the affidavit of Ms Hellams, a witness of the Respondent, and tendered by the Respondent.
There has been no submission made to us that there was any objection to the reports being received or used, nor were we referred to any submission made to the Tribunal below that the reports should only be used for some limited purpose and not all purposes.
In the absence of such a submission, there was no denial of procedural fairness in the Tribunal relying upon the doctors' reports that were tendered and in evidence before it.
Accordingly, we reject ground 17.

Appeal ground 14

Ground 14 is as follows: 14. The Tribunal erred at law by mischaracterising the Applicant's pleaded case and/ or, alternatively, by characterising the Applicant's case in a manner that had not been addressed by the Appellant and thereby denying procedural fairness to the Appellant.

Appellant's submissions

The Appellant's submissions in support of this ground were as follows: 9.1 The Appellant contends that the Tribunal erred at law by mischaracterising the Respondent's pleaded case and/or by characterising the Respondent's pleaded case in a manner that had not been addressed by the Appellant, thereby denying the Appellant procedural fairness. 9.2 Given the opaque nature of the Respondent's pleading, at paragraph 2.1 of the Respondent's submissions below, the Appellant quite properly articulated its understanding of the Respondent's case. This was never disputed. Nor did the Tribunal raise any concern that the Appellant's understanding of the Respondent's case was incorrect. 9.3 Notwithstanding this, at [34] of the Decision, the Tribunal summarised the Respondent's case in a manner that was different to the manner in which the Appellant had understood it and articulated it. The Appellant had only adduced evidence going to the issues raised based on its understanding of the case rather than the manner in which it is articulated at [34]. This had particular bearing on the evidence called. For example, the Appellant did not consider it necessary to obtain evidence from Ms Moore or Dr Martin in respect of their involvement in the broader case articulated at [34] of the Decision because their involvement did not arise based on the matters summarised at paragraph 2.1 of the Appellant's submissions below. 9.4 In this regard, the Appellant has been denied procedural fairness in its defence of the proceedings due to the broader characterisation of the Respondent's case compared to the pleadings and the arguments advanced below.

Consideration

The Appellant's submissions (as Respondent) below in respect of Ms James' pleaded case at paragraph 2.1 of its outline of submissions were as follows: 2.1 The Applicant's pleaded case is difficult to decipher based on the Points of Claim that she has filed. As noted in the Respondent's Reply to the Points of Claim, a number of the matters in the Points of Claim are beyond the scope of the Applicant's complaint lodged with the Anti-Discrimination Board on 6 July 2020, and amended by Order of the Tribunal on 11 March 2021 following the Applicant's Amendment Application filed on 18 January 2021 (Complaint). It appears, although it is entirely unclear, that the Applicant's arguments, on the basis of her Points of Claim and matters set out in the President's Report, are: (a) the Respondent contravened ss.50(1)(a) and 53(1) (victimisation) of the AD Act by: (i) not returning the Applicant to her substantive position even though she has been medically cleared to do so (Allegation 1); (ii) returning the Applicant to a role that was substantially below her pay level (Allegation 2); (iii) not providing the Applicant with acting up or promotional opportunities and being told that she had to apply for opportunities herself (Allegation 3); (iv) requiring the Applicant to undergo mediation (Allegation 4); (v) not providing assistance to the Applicant in order to return her to the workplace in temporary duties or not adhering to legislative requirements regarding the same (Allegation 5); (vi) not providing the Applicant with an 8 hour notification form for injury (Allegation 6).
The Appellant's submissions referred to above were dated 12 July 2021 and were filed before the commencement of the hearing which was on 28 October 2021.
The Points of Claim in question were dated 14 June 2021 and paragraph 12 of this document is as follows: 12 The way in which the Applicant has been/is being victimised is that; a. She is unable to return to her substantive position even though she has been medically cleared to do so. b. She was initially returned to a role within CSNSW that was substantially below her pay level (mainly doing just admin work which would have probably been at the very most a 5/6 grade) c. This also entailed reduced responsibilities. This causes embarrassment and humiliation in relation to her co-workers who appeared to feel sorry for her and would be put in a position of where they felt they needed to "support her''. d. My career path has been damaged due to not being able to "stay current'' with latest policies/procedures/training and also development opportunities such as acting up to higher roles has not been afforded to me. This has occurred on multiple occasions where, due to her lack of experience, she was not suitable for a role however, because she could not return to her substantive role, she could not gain the experience required. e. Because she was prevented from returning to her substantive role, she was therefore not able to apply for any roles that were in that geographical area. Many, many staff have gone up the ranks in that area because of development opportunities which have not been available to the Applicant. f. Promotional opportunities have been missed which I believe to be significant as I was the most experienced and qualified member of staff at my grade at that time. The staff members that are currently in the same grade as the Applicant have had multiple opportunities to gain experience in higher grades because she has not been there. That makes them automatically now more qualified than her even though they were placed in those positions well after her. g. Being forced to undergo mediation which was originally denied to her. It was only then required of her to participate after she had returned to being fit for pre-injury duties however, this was no longer relevant. It was CSNSW originally that had refused to participate in mediation but they then changed their minds after it was apparent that she had become fit for service. h. Since the time she has been fit to return to her pre-injury duties, CSNSW has made her jump through hoops regarding same yet, to date, she has still not returned despite multiple medical recommendations that she is able to. i. There are many more issues which will become apparent through reading the accompanying document Statement of Events however are too many to list here.
At [28] the Tribunal recorded that Ms James submitted that the complaints the Tribunal is to consider are set out in paragraph 12 of the Points of Claim dated 14 June 2021.
The Tribunal summarised paragraph 12, in a way which has not attracted any criticism by the Appellant as follows: 28 At the commencement of the proceedings, Ms James submitted that the complaints the Tribunal is to consider are set out in paragraph 12 of the Points of Claim dated 14 June 2021. Paragraph 12 of the Points of Claim as summarised below, alleges that Ms James has been victimised in the following ways: (i) Precluded from returning to her substantial position despite medical clearance. (ii) Initially returned to a role substantially below her pay level. (iii) Assigned administrative work with reduced responsibilities. (iv) The above caused embarrassment and humiliation. (v) Ms James' career path was adversely affected damaged as she has been unable to 'stay current'. (vi) Ms James has effectively been denied any real opportunity to Act up in higher roles or apply for such roles. This occurred because she was prevented from returning to her substantial role. (vii) Ms James was compelled to undergo mediation when initially it had been denied to her. Mediation was only required once she was fit for pre-injury duties. (viii) Forced to jump through hoops to return to pre-injury duties. (ix) Other issues referred in her statement. Ms James also refers to some other issues in her statement.
The Tribunal continued to summarise the Points of Claim at [29]-[33] as follows: 29 While the Points of Claim refers to nine points, some of the points deal with the consequences of the victimisation including feeling embarrassment and humiliation, and not being able to apply to roles at level or promotional opportunities as a result of having to perform work below her level of skill and experience. 30 Ms James' broad submission was that DCJ's conduct as to her return to work process was contrary to the organisation's policies and procedures, and contrary to the expert medical opinions of Dr Naaz, Dr Abaya and of her GP, Dr Pham. Ms James alleges that DCJ did not provide her with assistance to return to the workplace or duties that she could perform from home during the Covid pandemic in 2020. Ms James' view is that the only reason why DCJ provided her with duties in October 2019 was because of the intervention of SafeWork. 31 Ms James' complaint is that DCJ put up barriers, hindered, and did not comply with its policies and the relevant laws in returning her to work at DCJ and not returning her to the Substantive Role because she has previously made complaints about management of DCJ; relevantly to this case, she had made complaints about the conduct of Ms Moore and Dr Martin. Ms James alleges that because she made the complaints in NCAT, DCJ have formed the view that they do not want her back in the workplace as she will continue to make complaints against the management of DCJ and has been labelled as a 'complainer' (Ms James' closing submissions). 32 The Tribunal considers the substance of Ms James' allegations that she has been victimised by DCJ to be: (1) Allegation 1: Failure to assist Ms James to return to work in October 2019 following a period of workers compensation leave. (2) Allegation 2: Requirement for Ms James to comply with conditions determined by DCJ in a letter on 12 December 2019 (the Letter). 33 As to Allegation 1, Ms James alleges that DCJ failed to comply with the Return to Work Policy (RTW Policy) in that it did not assist her to find work consistent with her capabilities. Ms James submits that this allegation is substantiated by the fact that work was only found for her once SafeWork became involved on 10 October 2019. Ms James also relies on evidence of DCJ's lack of assistance prior to the Complaint Period to infer that DCJ did not want her to return to work. We note again that there has been no complaint made by the Appellant about this summary of the allegations being made by the Applicant below.
Accordingly, the position during the hearing was that after the Points of Claim were filed and submissions made as to the Points of Claim, the Appellant continued to assert that the claim was that as articulated in the Points of Claim.
In such circumstances, if the Appellant had a difficulty with the Points of Claim or believed it was embarrassed by them or that they were defective in some way, such as for ambiguity or confusion, it should have applied at the commencement of the hearing for the relevant parts of the claim be struck out or clarified and dealt with.
It is not for the Appellant to redefine what is or is not the 'substance' of a party's Points of Claim. This is a matter for the Tribunal to deal with by directions if a party does feel that without further clarification it cannot properly meet the Points of Claim or it cannot do so consistently with being given a fair hearing.
We note that it has not been submitted that the Respondent sought to take up with the Tribunal the alleged inadequacy of the Points of Claim.
In such circumstances, the Tribunal is entitled to proceed to deal with the Appellant's case at hearing based upon a fair view of the Points of Claim, also taking into account the manner in which the hearing is conducted, making sure that the Respondent is fairly on notice of the case being sought to be made against it. As indicated above, in the circumstances here, it must be taken to be the case that the Respondent was fairly on notice of the case against it as set out in the Points of Claim.
Turning to the nub of the complaint by the Appellant, it is alleged that the Tribunal at [34] took Ms James' case to be something beyond the Points of Claim or beyond the Appellant's articulated understanding of the claim.
Paragraph [34] is as follows: As to Allegation 2, Ms James alleges that neither Dr Naaz or Dr Abeya made recommendations that she undertake mediation with Ms Moore or Dr Martin prior to returning to the Substantial Role. Ms James submits that Dr Naaz and Dr Abeya made recommendations disregarded by DCJ including that Ms Moore should not be involved in Ms James' return to work process and that she should be provided with a mentor.
In our view, this summary of the allegations being made is fairly based upon subparagraph 12(g) of the Points of Claim. The case articulated by the Tribunal at [34] cannot be characterised as involving a 'broader case' than that fairly articulated by the Points of Claim.
Accordingly, the Appellant was reasonably apprised of this case, and we fail to see how the Appellant was denied any procedural fairness in its defence of these allegations.
In addition, and in any event, we note that the Appellant's summary of the Points of Claim includes the allegation of 'requiring the applicant to undergo mediation', citing paragraph 12(g) of the Points of Claim: see paragraph 2.1(a)(iv) of the Appellant's submissions below at the p897 of the Appeal Book.
In our view, the explication of what was called 'Allegation 2' at [34] by the Tribunal cannot be said unfairly to travel beyond the Appellant's very own summary of the Points of Claim and the paragraph of the Points of Claim itself referred to by the Appellant in its submissions.
Again, we fail to see any denial of procedural fairness.
Accordingly, we reject ground 14.

Appeal ground 15

Ground 15 is as follows: The Tribunal erred at law when it rejected the Appellant's defence based on its misconstruction of the Appellant's defence. The Appellant's defence was that in order to ensure the health and safety of the Respondent (so as to not exacerbate her medical condition) it was necessary for the Respondent to attend a mediation to resolve the issues based on the Respondent's perception that she had been bullied by Ms Moore and Dr Martin. At [282], the Tribunal interpreted the Appellant's argument (wrongly) to assert that the Appellant's defence was made on Ms Moore or Dr Martin feeling "unsafe". The misinterpretation constituted an error in that the Tribunal identified the wrong issue.

Appellant's submissions

The Appellant's submissions in support of this ground were as follows: 10.1 The Appellant contends that the Tribunal erred at law when it rejected the Appellant's defence based on its misconstruction of that defence. 10.2 In the proceedings below, the Appellant raised a defence based on s.54 of the AD Act that in order to ensure the health and safety of the Respondent (so as to not exacerbate her medical condition) it was necessary for the Respondent to attend a mediation to resolve the issues based on the Respondent's perception that she had been bullied by Ms Moore and Dr Martin. 10.3 However, at [279] of the Decision the Tribunal interpreted the Appellant's argument (wrongly) to assert that the Appellant's defence was made on Ms Moore or Dr Martin feeling "unsafe". The misinterpretation quite clearly constituted an error in that the Tribunal identified the wrong issue and rejected the Appellant's defence on that basis.

Consideration

We accept that the way in which ground 15 is formulated gives rise to a question of law as to whether or not the Tribunal identified the wrong issue and failed to deal with the necessary part of the Appellant's defence.
Even if we accept, without deciding the matter, that the Tribunal misinterpreted the Appellant's defence based on s 54 of the ADA at [279], we are not satisfied that this had any effect on the result. It is plain that the Tribunal found, based upon the medical opinion before it, that it was not necessary for Ms James to attend a mediation to resolve the issues based on Ms James' perception that she had been bullied by Ms Moore and Dr Martin.
The Tribunal found that the medical opinion, supported by Ms James' own evidence, was that requiring Ms James to attend a mediation with Ms Moore or Dr Martin would not be in Ms James' best interest in terms of her health and safety and could exacerbate her health condition: at [358].
Accordingly, based upon the clear findings of the Tribunal it is obvious that the Tribunal did not accept any alleged defence based on s 54 of the ADA that in order to ensure the health and safety of Ms James (so as not to exacerbate her medical condition) it was necessary for Ms James to attend a mediation involving Ms Moore and Dr Martin.
Accordingly, we reject this ground of appeal.

Appeal ground 16

Ground 16 is as follows: The Tribunal erred when it rejected the Appellant's submissions that the Respondent would be required to report to Ms Moore on her return to her substantive role.

Appellant's submissions

The Appellant's written submissions in support of this ground were as follows: 11.1 The Appellant contends that the Tribunal erred when it rejected the Appellant's submissions that the Respondent would be required to report to Ms Moore on her return to her substantive role. 11.2 At Appeal Book 109, the following exchange took place during the Respondent's cross-examination: DM I just want to put this into perspective. You had expressed a difficulty insofar as your working relationship was concerned, with senior management, including Ms Moore, correct? RJ Yes. DM And insofar as your ongoing employment with the department was concerned, Ms Moore was going to continue to be part of senior management, correct? RJ Yes. 11.3 Further at Appeal Book page 110, the following exchange took place during the Respondent's cross-examination: DM Well, you had expressed difficulties with senior management, correct? RJ Yes. DM Including Ms Moore, correct? RJ Yes. DM Ms Moore was going to continue being part of senior management when you returned to work, correct? RJ Yes. 11.4 Further still, at Appeal Book page 125, the following exchange took place during the Respondent's cross-examination: DM And what you're seeking is a return to a substantive position which will require you to have ongoing dealings with Ms Moore as well as Dr Martin, correct? RJ Which I believe is not - I don't believe that's beyond the realms of possibility. 11.5 Notwithstanding the above, at [358], the Tribunal below found that neither Ms Moore or Dr Martin is the manager or the second line manager of Ms James. This appears to be a basis on which the Tribunal below considered the Appellant's desire to hold a mediation between the Respondent and Ms Moore as being unreasonable (which is denied). The finding, in this regard, is clearly against the weight of evidence and accordingly erroneous.
At the oral hearing there was no further elaboration on these submissions.

Consideration

In our view, no question of law arises in respect of this ground. Leave to appeal is required. For the reasons which follow, we decline to grant leave to appeal on this ground.
The relevant parts of [358] in question are the findings that there will be some requirement for interaction between Ms James and Ms Moore and Dr Martin on Ms James' return to the Substantive Position. Thereafter the Tribunal stated the following 'neither Ms Moore nor Dr Martin is the manager or second line manager of Ms James. Ms Moore has responsibility over the group in which Ms James belongs. Dr Martin is more senior in turn'. In our view these findings were pen to the Tribunal to make and it has not been demonstrated that there was any clear error or error in the fact-finding process in coming to this conclusion.
We note, in particular, that the findings of the Tribunal did not deal with or specifically reject the Appellant's submission that Ms James would be required 'to report to Ms Moore on her return to her Substantive Role'. The findings of the Tribunal in this regard are not necessarily inconsistent with Ms James' having some requirements to report to Ms Moore on her return, albeit through other managers.
The evidence relied upon by the Appellant, being the answers of Ms James under cross-examination do not seem in any way to us to contradict the findings of the Tribunal as to neither Ms Moore or Dr Martin being the manager or second line manager of Ms James.
Ms James' answers are completely consistent with the findings of the Tribunal that Ms Moore has responsibility of the group in which Ms James belongs and that Dr Martin is more senior in turn.
Accordingly, we decline leave to appeal and reject this ground of appeal.

Disposition

The orders of the Appeal Panel are: 1. Leave to appeal is refused. 2. Appeal 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: 02 March 2023

Secretary, NSW Department of Communities and Justice v James

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