Shell Company Australia Limited and Others v Transport Workers' Union of Australia Print G6298, C No. 3303 of 1986

LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Re Dispute Between Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Proprietary Company Limited (1950) 49 AR 371 CASES CITED: Re John Lysaght (Australia) Limited Port Kembla - Slit Recoil Line IRC 2374 of 1974 (unreported) Shell Company Australia Limited and Others v Transport Workers' Union of Australia Print G6298, C No. 3303 of 1986 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218

APPLICANT Ms Paula Lee LEGAL REPRESENTATIVES: RESPONDENT Mr P Farrell EnergyAustralia

DECISION: - 42 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Bishop C 31 March 2010

Application by Paula Lee for relief from victimisation under section 213 of the Industrial Relations Act 1996

1 This matter concerns an application made by Paula Lee on the 2 September 2009 against EnergyAustralia ("EA") pursuant to s. 213 of the Industrial Relations Act 1996. 2 The matter was listed for mention and directions before Commissioner Cambridge on the 11 September 2009. Conciliation took place on the 30 September with further conciliation set down for the 9 November 2009. As no settlement could be reached through conciliation, consent directions were issued as to the filing and exchange of witness statements. Consequent upon the applicant exercising her rights pursuant to s.173 of the Act, the file was re-allocated to Commissioner McKenna and listed for hearing on the 15 and 16 March 2010. However, due to Commissioner McKenna's subsequent appointment to Fair Work Australia, the file was re-allocated to the Commission as currently constituted with the hearing days as set being retained. 3 Ms Lee sought the following Orders: 1. The Respondent is to reinstate the Applicant to her previous position of Project Engineer within the Respondent's iAMS Field Computing Section, Business Services Branch, within the ET&T Division; 2. The Respondent is to remove the "redeployment" classification that it recently applied to the applicant; and 3. Any other orders that the Commission considers appropriate. 4 The particulars of the victimisation alleged by Ms Lee were set out in the Application for Relief as follows: 1. The Applicant is employed by the Respondent as a Project Engineer and has been an employee of the Respondent since January 1996. 2. Since December 2004 the Applicant has been working in the iAMS Field Computing Section, Business Services, ET&T Division of the Respondent's organisation. 3. In about April 2008 the Applicant lodged a complaint with the Respondent in relation to the bullying and intimidatory behaviour of her manager, Mr Syd Newbery, which she regarded as a risk to her health and well-being at work. 4. The Respondent undertook an investigation of the Applicant's complaint, which concluded that the Applicant's complaint was unsubstantiated. Even though the Respondent's investigation did not uphold the Applicant's complaint, the Respondent did require that the Applicant and Mr Newberry undertake mediation sessions in order to improve the working relationship between the Applicant and Mr Newbery. 5. The mediation process described in material provided to the Applicant involved a process whereby the Applicant and Mr Newbery would each have individual sessions with the mediator and then be brought together to hold joint discussions to address concerns and improve the working relationship involved. 6. The Applicant commenced the mediation and attended her session with the mediator, however the respondent discontinued the mediation process prior to the joint session taking place. 7. The Applicant complained to the Respondent that she still felt threatened and intimidated by Mr Newbery and that until the mediation addressing this was completed and the relationship dealt with she believed that the Respondent was breaching its obligation to provide her with a workplace which is not a risk to her health, safety and well-being. A copy of email to the Respondent is attached and marked "A". 8. In a letter from the respondent dated, 12 August 2009, the Applicant was advised that she had officially been classified as "redeployed" status as her role within the iAMS Field Computing Section, Business Services, ET&T Division had been completed. 9. The Applicant is the only employee of the respondent in the iAMS Field Computing Section, Business Services, ET&T Division who has had their status reclassified to "redeployment". 10. The effect of being reclassified as "redeployment" status by the Respondent is that an employee's employment can be terminated due to redundancy or have salary reduced after 12 months following a transfer to another position. 11. In a letter from the Respondent dated, 27 August 2009, the Applicant was advised that with effect from 31 August 2009 that under her "redeployment" status her employment was being transferred to the Standards & Communications Section in the Engineering Transmission & Technology Division of the Respondent. 12. The reclassification of the Applicant's status to that of "redeployment" and the transfer of her employment to a position in the Standards & Communications Section in the Engineering Transmission & Technology Division of the Respondent, were events subsequent to and as a consequence of the Applicant making the complaint about an unsafe workplace (see paragraphs 3 and 7 above) and were acts by the respondent that constitute victimisation in breach of section 210(1)(j) of the Industrial Relations Act 1996. 5 On the 4 March 2009, the applicant filed a Notice of Motion seeking leave to issue a Summons to Produce and Give Evidence upon Ms Wendy Buchanan of PPC Worldwide. The Notice of Motion was heard by the Commission as currently constituted on 9 March 2009 and granted (as was Short Service) in terms as set out in the Order issued that day. 6 However a subsequent Notice of Motion filed by the applicant on the 9 March 2010 for leave to serve a Summons for Production upon the respondent in relation to certain documentation was refused on 10 March 2010. 7 At the hearing Ms Lee appeared on her own behalf and gave oral evidence in addition to the affidavits she had filed (Exhibits 1 and 2). 8 Mr Farrell appeared on behalf of EA and called the following witnesses who had all filed affidavits: Ross Callas Industrial Relations Advisor EA (Exhibit 3) Barbara Graham Manager Human Resources, Engineering Transmission & Technology Division EA (Exhibit 4) Colin Locking Executive Manager, Business Services (Acting), Engineering & Technology Division EA (Exhibit 5) Sydney Newbery Manager Field Computing, Engineering Transmission & Technology Division EA (Exhibit 6) 9 Ms Wendy Buchanan also appeared and gave evidence in accordance with the Summons to Produce and Give Evidence referred to above. Relevant Background and Chronology - based on the evidence as filed.

10 Ms Lee was appointed to the position of Project Engineer - Field Computing in December 2004 with a stated purpose of " To prepare and co-ordinate the implementation of the EnergyAustralia project to deploy IT, screen based technologies to people working in the field" (Exhibit 2 - A). 11 Ms Lee deposed that the Field Computing and its related projects were: · Field Computing Architecture/Infrastructure Project, · iAMS (integrated Asset Management System) Field computing, · Field Computing for District Operators (DOPs), · Field Computing for Emergency Service Officers (EmSOs), and · Field Computing for Field Services. 12 Mr Newbery has been an employee of EA since 1977. In November 2005 he was appointed to the position of Manager Field Computing. This appointment followed a major corporate restructure of EA which effectively disbanded the division in which Mr Newbery was formerly engaged, with the responsibilities he had carried out now segregated across 2 new divisions within EA. He retained his existing conditions of employment and remuneration. 13 Ms Lee was to report to Mr Newbery in his new position with Mr Newbery deposing as to the specific projects within his area of responsibility being the following (Exhibit 6): · Field Computing for District Operators (DOPs), · Field Computing for Emergency Service Officers (EMSOs), and · an emerging Field Computing requirement highlighted for the upcoming iAMS project. 14 Mr Newbery deposed that due to workload issues he requested that Mr Paul Kelly be transferred to his area under similar circumstances from the same disbanded division. The appointment was to the position of Project Manager - Field Computing and took place in December 2005. Mr Kelly also retained his existing entitlements. 15 The appointments of Mr Newbery and Mr Kelly (both Senior Contract Officers of EA) were made by Mr Jamieson, Executive Manager, Network Customer Operations, in accordance with EA's Merit Appointment Policy (MAP) and in particular clause 2.0, which provides as follows (Exhibit 4 - B): This policy applies to all Division and Business Subsidiaries in EnergyAustralia. It covers all appointments/promotions of full-time, fixed-term, or part-time positions up to but excluding Executive General Manager level but excludes: · Casual appointments for periods less than 12 months · Third-party contractors or labour hires · The redeployment of surplus staff within their existing Division (unless there is more than one appropriately qualified redeployed applicant for the position) · Career development transfers involving Senior Contract Officers · The appointment to permanent positions of apprentices, trainees and graduates on completion of their training. 16 The issue of the procedures followed in relation to the appointments of Mr Newbery and Mr Kelly to those positions back in 2005, was raised by Ms Lee with Mr Cole, of the Public Service Association and Professional Officers' Association, Amalgamated Union of New South Wales ("the PSA") who wrote to Ms Judith Butler, Industrial Relations Manager, EA, on the 18 September 2007. The concern expressed was that "these positions were filled approximately 22 months ago without there having been a merit selection process." Information on the process used was then requested (Exhibit 4 - A). 17 For various reasons, one of which was a change in the relevant personnel dealing with this enquiry, a written response was not provided to the PSA until the 14 January 2008 by Mr Tim Thorncraft, Human Resource Advisor - Network (Exhibit 4 - B). The letter indicated that the appointments were made according to the Merit Appointment Policy and specifically detailed the provisions of clause 2.0 as referred to above. The letter went on to say: The appointments in question had two notable features. Firstly both of the individual's previous positions were deemed to be surplus to the staffing requirements in their existing work areas and were consequently nominated for redeployment. Further, the individuals concerned were primarily selected for their respective roles as each role was assessed as a means to further develop their careers. As Senior Contract Officers who were redeployed and selected for the role on a career development basis it is our view that the appointments fall outside the scope of the Merit Appointment Policy. 18 The first half of 2006 was spent on the EMSOs and DOPs projects producing and getting approval for the business cases and various other matters as detailed in Mr Newbery's affidavit. Ms Lee was involved in all aspects of the work together with Mr Kelly and Mr Newbery. 19 Approval of the DOPs business case occurred at the end of June 2006 and for the EMSOs business case, the end of September 2006 and work on the projects commenced. Mr Newbery deposed that Ms Lee was involved in all aspects of both projects with the work including the following (Exhibit 6): · Assessing computing devices, and making a final selection. · Working with the business to clarify the programs and data required. · Building and testing device prototypes using this information. · Assessing vehicle mounts in different vehicles and obtaining user feedback. 20 On the 5 March 2007, Mr Locking met with Ms Lee, at her request, about her concerns that the two projects were running late, were at risk of not delivering the required outcomes and expressing concerns at the management of the projects. She provided details via a PowerPoint presentation and requested that the matter be kept confidential. 21 Mr Locking was subsequently advised by Ms Graham that Ms Lee had lodged a complaint about the appointments of Mr Newbery and Mr Kelly. 22 Following relevant testing a solution was ultimately agreed by the EMSOs group in August 2007 and procurement and build of devices for the DOPs group was commenced and completed by February 2008. 23 However towards the end of 2007 and into the beginning of 2008 there was industrial disputation by the relevant Union in the EMSOs group. By March of 2008 this had the effect of blocking the rollout of the solution pending resolution of the industrial dispute. Also at this time the DOPs group management did not wish to move forward with a rollout at that time of the year due to workload from the storm season. This meant that both projects were stalled and no further work was available for the Field Computing group until those projects restarted. 24 As a consequence, Mr Newbery approached his supervisor Mr Locking about the situation. Mr Locking advised him that he was unable to supply additional work and suggested he contact other IT managers and offer to assist them on project work that Ms Lee and Mr Kelly were capable of performing. This resulted in Mr Newbery ascertaining the availability of investigation work in the IT project space but work that was not related to Field Computing. 25 Mr Kelly was on leave at this time and Mr Newbery approached Ms Lee on 17 April 2008 about the fill-in work. Ms Lee refused to undertake the work on the basis that it was outside her job description and she was employed only to do Field Computing work. A comment was then made by Mr Newbery, the precise wording of which is not totally agreed between Mr Newbery and Ms Lee, but the general content of which concerned "not sitting around and doing nothing". 26 Ms Lee subsequently went off work, provided a medical certificate on 20 May 2008 for a 30 day period and in July 2008 lodged a complaint alleging that bullying and victimisation had occurred in relation to this incident on 17 April 2008. 27 Confirmation of receipt of the complaint was provided to Ms Lee by Ms Graham in a letter dated 25 July 2008 (Exhibit 4 - D). The letter referred to the following specific incidents that had been raised in support of Ms Lee's complaint: a) that Mr Newbery has tried to redeploy you to other projects; b) that on 17 April 2008, Mr Newbery has made comments to you that "we can't have people sitting around here doing nothing"; c) problems with the project have led to Mr Newbery looking for a means to "get rid of" you; and d) that you feel that Mr Newbery is looking for a means to "get rid of" you. 28 The letter also referred to the issues of concern that Ms Lee had raised in relation to appointment of Mr Newbery and Mr Kelly and the application of the Merit Appointment Policy (MAP) and that the error in appointing the two men was evidenced by project results. In addition Ms Lee alleged the incorrect appointment had prevented her from having the opportunity to apply for those positions. 29 The letter went on to advise that EA had decided to arrange that an investigation be conducted into her complaint by external legal advisers, Holding Redlich. To expedite completion of the investigation it was proposed that its scope be limited to the allegations and incidents as referred to by Ms Graham. 30 Ms Meg Crawford, Senior Associate, of Holding Redlich conducted the investigation and interviewed Ms Lee (with Mr Cole of the PSA present) on the 30 July 2008, Mr Newberry on the 8 August 2008, Mr Kelly on the 8 August 2008 and Mr Jamieson on the 20 and 28 August 2008. The final Report was provided to Ms Graham on 29 August 2008 (Exhibit 4 -E). 31 The Report found that the appointments of Mr Newbery and Mr Kelly had been made in accordance with MAP, the allegation of bullying was not substantiated and that there was no evidence that Ms Lee had been victimised. It was suggested that as Ms Lee was "deeply dissatisfied with her work arrangement with Mr Newbery and Mr Kelly" that "workforce counselling" might be of assistance. The Report also indicated that "failing this if a suitable alternative position exists, Ms Lee may wish to consider applying for it or being invited to do so." 32 Neither Ms Lee, the PSA nor Mr Newbery received copies of the Report (there was no evidence available concerning Mr Kelly) but were informed of the outcomes by Ms Graham on 29 August 2008. 33 Mr Cole of the PSA wrote to Ms Graham on to September 2008 concerning the briefing attended by the PSA (but by Mr Greg Shaw rather than Mr Cole) with Ms Lee on the 29 August (Exhibit 4-F) and made the following comments on behalf of Ms Lee: 1. That Energy Australia (sic) provide Ms Lee with formal advice as to the outcomes of the investigation conducted by Holding Redlich into her grievance. 2. That Ms Lee has stated a preference to continue working on the mobile computing project. 3. The PSA considers that this only occur following successful mediation between the parties. In the interim period Ms Lee's current work arrangements to remain on foot. 4. That in view of a recent announcement by Energy Australia (sic) of a restructure including the Network function that consideration be given to alternative work opportunities for Ms Lee. 5. That a further conference be convened once items 1 - 3 have been finalised to enable the parties to progress this matter further.

34 Ms Graham did subsequently advise Ms Lee in writing of the outcome of the Report (29 September 2008) and that now the investigation was complete Ms Lee would be required to return to the normal duties in the Field Computing group but that, "in order to better the working relationship between you and Mr Newbery and Mr Kelly, you will all be required to participate in mediation." Information on the mediation process to be followed was provided. 35 The mediation was arranged for the 9 and 14 October 2008 with Ms Wendy Buchanan, an Organisational Development Consultant, of the OSA Group (as it then was). The mediation was to take place over two sessions with an initial one-on-one session between each participant and the mediator followed by the actual mediation with both Ms Lee and Mr Newberry together. 36 Ms Lee was unable to attend her pre-mediation meeting due to illness. Mr Kelly and Mr Newbery both attended the pre-mediation meetings with Ms Buchanan. 37 The PSA subsequently advised EA in writing (16 October 2008) that it had recommended to Ms Lee that she decline mediation for the present. The letter also indicated that the PSA considered that EA's actions and responses to Ms Lee's issues were inadequate and requested a transparent review of procedures and outcomes as well as a detailed report of that review (Exhibit 4 - H). The basis of the review that was sought was as follows: 1. Ms Lee has not been provided with sufficient information justifying the procedures used to fill the positions of Manager and Project Manager, Field Computing. There has been no clear explanation on how the supposedly deleted position of Manager -- Network Systems can continue to exist. 2. EnergyAustralia has not provided an explanation on how threatening an individual's employment is not bullying. Mr Newbery apparently admitted making the offending comment but because he did not raise his voice it is not considered bullying. In this case the volume used in making the comment is irrelevant. 3. The actions and behaviour of Mr Newbery and Mr Kelly have made the working relationship with Ms Lee untenable yet Ms Lee is expected to return to work in that section, the inference being that Ms Lee is responsible for the breakdown working relationships. 38 Mr Farrell held a meeting with the PSA (Mr Cole) and Ms Lee on 14 January 2009 on the issues as raised and subsequently provided a written response to the PSA's letter on 16 January 2009 (Exhibit 4 - I). The findings of the investigative report were reiterated and in relation to items 2 and 3 of the PSA's letter Mr Farrell responded as follows: The independent investigation did not find or infer that any particular party was responsible for a breakdown in the working relationship. It did find that Ms Lee is deeply dissatisfied with her work arrangement with Mr Newbery and Mr Kelly and recommended work place counselling for all three as a means of repairing that relationship. In our meeting on Wednesday Ms Lee expressed a preference to continue working on the project and EnergyAustralia considers this is in accord with her earlier statements and believes this can occur and therefore we invite Ms Lee to participate in mediation with Mr Newbery and Mr Kelly through our employee assistance program. ...................................... The report finds that both Mr Newbery and Ms Lee agree that on 17 April 2008 Mr Newbery made a remark to the effect that "we cannot have people sitting around doing nothing" in response to Ms Lee's statement that she would not accept the other project work. It was reported by Ms Lee that she took this remark as a threat to her employment. The report finds that this was an unreasonable response to that remark. 39 Mr Farrell then went on to write: From our meeting last Wednesday it is clear that Ms Lee does not believe that Mr Newbery or Mr Kelly are competent to complete the project and while she is entitled to this opinion it is EnergyAustralia's prerogative to decide if Mr Newbery and Mr Kelly are competent to complete the project provided they are properly appointed and behave in accordance with policy and legislation. Mr Newbery and Mr Kelly were properly appointed under the Merit Appointment Policy and Ms Lee's allegations of bullying were not substantiated.

It should be noted that like all projects this one has a finite life and therefore at a point in the future the project will be finished and the team broken up and re-deployed, however, in the meantime we repeat our offer of mediation in an effort to establish or re-establish professional working relationships on the project. 40 Meetings were held with Ms Lee (variously involving Mr Thorncraft, Ms Graham and Mr Brad Hooper) on 12 February, 26 March and 6 April to discuss opportunities to work in other areas of EA with Ms Lee indicating she would consider the options that were available. However she indicated a reluctance to work in the design area preferring to continue with the mobile computing project or in information technology related areas. Ms Graham deposed that she indicated to Ms Lee that if she would not participate in mediation and did not wish to work with Mr Newbery, it would be difficult to return her to the role. At this point Ms Lee indicated that she was willing to participate in mediation. This was confirmed by written exchanges between the parties in late April and late May 2009 (Ms Lee being on annual leave for much of May). 41 On 12 June 2009, Ms Lee had her pre-mediation session with the mediator Ms Buchanan of PPC Worldwide (formerly the OSA Group). She was provided with a written document "Summary of the Mediation Process" which outlined what was involved in both the pre-mediation and mediation process and which attached a Consent Form for signature (Exhibit 1 - A). The Consent Form advised about matters of Collection of Information, Access and Correction, (information could be corrected if demonstrated to be incorrect or a personal statement of correction could be attached), Mediation and Notes (notes were to be destroyed on completion of mediation) and Confidentiality. 42 Mr Newbery attended another meeting with Ms Buchanan on 19 June 2009 at which it was suggested that a facilitated meeting of both parties might be beneficial. Ms Buchanan also told Mr Newbery that Ms Lee did not seem to accept the findings of the investigation. He did not hear further about the mediation process. 43 Ms Lee also did not hear further from Ms Buchanan and forwarded an e-mail inquiry to Ms Graham on 7 July 2009 seeking information about the mediation and was contacted by phone by Ms Graham on 21 July 2009 and advised that she needed to discuss the matter with Mr Callas who was assigned to the matter thereafter. Ms Lee met with Mr Callas and Ms Graham later that same day at which time they advised her that Ms Buchanan had indicated to them that Ms Lee wasn't willing to participate in mediation. 44 On 30 July 2009 Ms Lee telephoned Ms Buchanan deposing that she "ascertained that she did not say that I was unwilling to participate in mediation. In fact it was Mr Newbery who indicated that he did not see any value in mediation" 45 Mr Locking had been kept advised about Ms Lee's grievance, the investigation Report and the mediation process. 46 Mr Locking deposed that by the middle of July 2009 the two projects were nearing practical completion with the majority of devices now installed in the vehicles and as a consequence he requested Ms Buscombe from Head Office Human Resources to verify if there was still a position in field computing for Ms Lee. She confirmed that there was not a role and so the redeployment process was implemented. 47 On 31 July Mr Newbery was interviewed by Mr Callas and Ms Buscombe about the workload in Field Computing. He advised that the DOPs project was complete and it was expected the EMSOs project would be completed by September 2009. He indicated he did not have any work in the section for an Engineer as the current work was a security upgrade requiring specific information technology skills which were being provided by IT staff. 48 On 12 August 2009 Mr Callas and Ms Buscombe met with Ms Lee in Sydney (with Mr Locking participating by telephone) Ms Lee was advised that the previous role in Field Computing no longer existed as the project had been completed and as a result she was deemed to be excess to requirements and was therefore to be placed on a redeployment list. She was provided with a letter to that effect (Exhibit 1 - B). 49 Ms Lee's 12 month period of salary maintenance (at Engineer Band 2, Level 3) commenced on the 12 August 2009. 50 EA's Redeployment and Redundancy Policy is set out in Exhibit 2 - P. The Evidence 51 It was essentially Ms Buchanan's evidence that Ms Lee really wanted to go ahead with the mediation. However she also indicated that Ms Lee had not accepted the outcome of the investigation "at all" and was still "upset about the situation". She had a list of bullet points of what she sought from the mediation including an apology from Mr Newbery. Ms Buchanan said she was aware that Mr Newbery wouldn't accept that. 52 Mr Newbery wasn't prepared to participate in the mediation if that was the basis of the mediation. He indicated to Ms Buchanan that he felt he could not work with Ms Lee as she did not respect him as a manager. It was Ms Buchanan's opinion that he felt it was of no benefit to him, it wouldn't look good and he'd been too upset by the investigation in the first place. 53 Ms Lee's witness statement in reply (Exhibit 2) dealt extensively with technical information and detail about the work she carried out in Field Computing, the various projects and tasks she carried out as well as the two particular projects which were under the responsibility of Mr Newbery I do not consider that it is necessary to traverse that material. It has not been suggested by the respondent in any way that Ms Lee did not carry out the work/tasks she detailed or that there was any dissatisfaction or issue with her work performance. Any differences essentially arise from the views as to which area in EA held the ultimate management responsibility for the work in question. 54 Essentially Ms Lee maintained that she had a broader role in Field Computing than merely the DOPs and EMSOs projects. She also went into particular detail about various technical work/tasks that she could still have had a role in performing and maintained that because of her complaint about an "unsafe workplace" she had been specifically excluded from such work and redeployed whereas Mr Newberry and Mr Kelly could continue in that area and had not also been redeployed.

55 The Commission sought clarification from Ms Lee as to what she meant by "unsafe workplace" and suggested to her that "insecure" might be more inappropriate word. However she maintained it was "probably more unsafe, I think". Following examples being proffered by the Commission about a workplace being unsafe, either physically or psychologically, she indicated that she thought it "fell into the psychologically unsafe category because I don't know why he would make that comment because I had work to do so I was a bit frightened as to what actions he was going take". She thought he would dismiss her. She said she knew it sounded like "a crazy idea" but "sometimes you just didn't know if someone is under pressure". 56 She acknowledged that he had never lost his temper with her and that she had never seen him physically violent in the workplace but she still felt "scared". He had said that to her and she didn't know why he would say that to her. 57 Ms Lee maintained that she was mainly working in the Field Computing Architecture Infrastructure project. She also referred to an iAMS hot desk survey that she had been working on. She had asked to do it and then she passed it on to other people. 58 There was detailed cross examination of Ms Lee concerning technical issues about the various projects, the particular devices, the tasks Ms Lee was engaged upon and what she maintained was available for her to do etc. Again I do not consider it necessary to traverse that material in detail. 59 In cross-examination she acknowledged that the only responsibility Mr Newbery had was for the DOPs and EMSOs projects. He was not in charge of the management and completion of the Field Computing Architecture Infrastructure project nor was either he or his section responsible for the integrated Assessment Management System (iAMS) in the Field Computing project. She agreed that iAMS was a project encompassing the entire company. However she maintained the projects were related and she had ongoing work to carry out. 60 Mr Locking deposed that the integrated Assessment Management System (iAMS) field computing stream of work was a sub-project under the iAMS project management structure which was a company wide upgrade of software to integrate a number of systems to create an integrated asset management system based on the SAP suite of software products. The iAMS project team was able to obtain input from Mr Newbery and his team as required. 61 He went on to say that at that point in time EA was in its infancy with field computing so these three projects were pilots, exploration type work to put computing in to the field for their field services staff. The first two projects were very discreet. There were approximately 80 Emergency Services Officers and 120 District Operators. 62 The iAMS project was a major project. EA basically contracted out a lot to IT specialists and they had SAP Australia and Fujitsu as their implementation partners. The contractors were delivering 99.99% of that development, they were the key people. 63 Ms Lee had maintained that the investigation by Holding Redlich was not independent because it was paid for by EA and the Report was only given to EA, she did not receive a copy of the notes of her interview and had no opportunity to correct them. However as a result of the exchange between Ms Lee and Mr Farrell and myself concerning this issue she accepted that it was an independent investigation but still seemed to be of the view that lawyers act for their client's interests. 64 Ms Graham subsequently confirmed that EA did not use a panel of law firms. Mr John Casey, the then Human Resources Manager, had recommended Holding Redlich which did not handle industrial matters and had not been used by EA before. It was normal practice to use an externally appointed investigative person/firm. In relation to a disciplinary process there would be a meeting with the employee/s, they would be told the outcome of the investigation but they would never be provided with a copy of the report. She was following standard procedure. 65 Ms Lee maintained that the only reason she had raised the issue about the appointments of Mr Newberry and Mr Kelly with the PSA was that she understood EA had an EEO policy and that the positions should have been advertised across EA. She would also have been able to apply for the positions. 66 Ms Lee maintained that as a result of her status being classified as "redeployed" she would suffer the following disadvantages: · That under EnergyAustralia's policies my employment can be can be terminated due to redundancy. · In addition to the risk of termination, my salary can be reduced after 12 months. · Discontinuity of knowledge and experience. Knowledge and experience are built over time. Being redeployed to unrelated positions will disadvantage my career development. 67 Ms Lee indicated that this was on the basis of her understanding of the policy. She was then was taken to the relevant provisions of EA's policy (Exhibit 2 - P) and in particular to those provisions detailing that compulsory redundancy was not practised at EA and how voluntary redundancy operated. She indicated she didn't fully understand the policy. She also indicated that in relation to salary maintenance she did not have a position description and was performing clerical work, there was nothing to say that these were her duties, what was the title of the job and what was the grade attached to the position. She understood she didn't actually have a position. 68 Ms Graham confirmed that Ms Lee was not occupying an actual identifiable position that could be pointed to in the structure but said that generally people didn't have their rate dropped after 12 months. There were other Engineer positions within EA that Ms Lee was entitled to apply for. 69 In relation to the meeting between Mr Locking at Ms Lee in March 2007, Mr Locking's evidence was that Ms Lee "complained" to him that the projects were running late and at risk of not delivering the outcomes because the other members of the team (Mr Newberry and Mr Kelly) were not capable of managing projects and that she was better equipped in terms of project management and technical knowledge to deliver the projects. She subsequently rang him a few weeks later (he was not sure when) asking what he was going to do about the issues she had raised and he advised her that he had reviewed the projects, the reasons for the delays, was satisfied with the responses and was not prepared to change the project management or team structure. 70 Following the meeting he did go off and make his own investigations and satisfied himself that some of what she had put to him was correct, that the project was running behind and that there were some issues with that. But he looked at the cause of those issues and was satisfied that there were reasonable causes for the projects to be running late in his experience. He was satisfied things were not out of control and there was no need to change project management. 71 Ms Lee denied that she had suggested that she would do a better job of managing the projects or that she mentioned Mr Newberry and Mr Kelly. She had concerns about the lateness of the projects and made recommendations about options (Telstra and Agility). She also denied that she had subsequently telephoned him. 72 In cross examination Mr Locking said he could not recall any mention of those outside organisations and indicated that whilst he couldn't recall the exact conversation that was the distinct impression Ms Lee left with him. 73 Ms Lee also referred to minutes of 3 meetings of the Field Computing Steering Committee (Exhibit 2 - G) for the period August to December 2009. Mr Newberry chaired the meetings and one of the agenda items was "Project Status Updates" with a 5 minute report by him on EMSOs Field Computing. She maintained that this demonstrated that there was ongoing work in that area. 74 Mr Locking indicated that the only reason Mr Newberry chaired the meetings was essentially because he was the only one prepared to do it. The organisation was using that forum to discuss other things around field computing. By that stage the main business of the meetings was to hear about the broader Infrastructure Project across the whole of EA. He put a stop to the meetings at the beginning of this year as there was no purpose to them. 75 Mr Newberry indicated that his reports in those meetings would have only been of 30 to 40 seconds duration and had been about the fact that they still had five vehicles in Wallsend to fit out. The December meeting was never held because they didn't have enough attendees. 76 Mr Newberry indicated that there were only 5 vehicles yet to have devices installed because the old vehicles had been sold and they had waited until the purchase of new vehicles before proceeding with the installation. Mr Newberry also confirmed that Mr Kelly did not attend the meetings. 77 Mr Locking indicated that since the completion of the DOPs and EMSOs projects there was no iAMS field computing work, it had finished. Mr Newbery and Mr Kelly essentially did not have full-time work left in their area. They carried out the odd inquiries and he had asked them to canvass the business that their division was in to see what other areas of business improvement they could do. At the moment they were looking at time sheeting. This was a very manual operation and not everyone used the same system. Something might come out of time sheeting as a project in the future. 78 Mr Locking said they had been reassigned work but had not been redeployed yet. That might happen in the future. They'd been "tidying up" the two projects which were nearing practical completion in July 2009 and "tying up loose ends" which was not unusual in EA. They were now looking at other opportunities. 79 Mr Newberry confirmed the time entry systems work he was doing. 30% of their time had been involved with the operational groups in the business to make sure the operations were up-to-date and fine tuned in the field computing area. Other than that he'd been out trying to "drum up work" in their Division to keep them moving forward. There were no field computing projects that he was aware of that he would have to manage the outcome for. The major one at the moment was another Division but that would be done by Corporate IT as part of their operations. 80 Ms Lee had raised an issue about vehicle printers as part of the project and Mr Locking indicated that that project had been "de-scoped", it was never approved and was not going ahead. That was a business decision and not within his area of responsibility. 81 Mr Locking said that once projects were completed they were handed back to Corporate IT to manage. Corporate IT also made decisions about infrastructure. 82 Mr Locking also confirmed the delays to the roll-out of the two projects and in particular the industrial disputation which came before deputy President Harrison. DOPs management had also come on board after the industrial disputation had resolved. He indicated that it would have been better for the DOPs and EMSOs projects to have had the infrastructure in place before they were initiated or completed. EA has had to re-do the infrastructure project at least twice. 83 Mr Newberry indicated in cross examination that when he had his interview with Ms Crawford she showed him notes taken from Ms Lee's interview which he thought were typed up. 84 He confirmed that Ms Crawford made a comment about the "coffee shop exclusion" and his reaction was that she (Ms Lee) had been asked to go to coffee many, many times and come along sometimes and at other times hadn't. Basically in the end they'd said - you're not coming along so we didn't ask. There were other times when Mr Kelly and he went to have private conversations because he was helping Mr Kelly through a family breakup. 85 His reluctance to participate in mediation was the fact that Ms Buchanan said that Ms Lee's stance was that she didn't accept the findings in relation to the bullying and still didn't accept the result and was asking for everything she had asked for before, including an apology. He didn't feel he was due to give an apology because nothing happened. He still stood by that. He still didn't see any benefit in mediation. 86 Mr Newberry was also asked a number of specific questions relating to various aspects of the projects and field computing work which I do not intend to refer to in detail. The substance of his evidence was that there was no work in the section that required an engineering background or engineering requirement. The projects were finished. There was no capital work in the field computing space. 87 In response to questions from the Commission about the comment he had made to Ms Lee about not sitting at the desk not doing anything, Mr Newberry confirmed that it was not intended to be bullying in any way but a reflection of the fact that at that stage there wasn't any work available and he was seeking, on instruction from Mr Locking, to direct her to other useful work. 88 He agreed it was not his intention to give offence. He viewed it as his job as manager to make sure the people employed by EA were employed to produce something. 89 He confirmed that it was only a matter of two or three weeks later that the industrial dispute was over and the projects went ahead and if Ms Lee had been around she would have worked on those projects. When those projects finished he would still have been in the same position, in that there would no longer have been any work for her and he would been searching around for work for three people rather than two. Submissions for the Applicant

90 Ms Lee submitted that the respondent had failed to provide an explanation for why she was not informed about her position description changing as referred to her affidavit in reply, and why she was not afforded the benefit of union representation. 91 The respondent had failed to provide an explanation for why she had been specifically excluded from work she was previously involved in. She was the only employee to be redeployed, even though Mr Newbury and Mr Kelly were not providing the specific skills either. 92 Ms Lee believed there was work in field computing and submitted that she could not see why she could not be treated fairly and in the same way as the other team members in the iAMS Field Computing section. The respondent had failed to provide an explanation as to why, prior to her complaint about an unsafe workplace, she was involved in all aspects of field computing along with Mr Newbury and Mr Kelly but subsequent to her complaint, any remaining work could only be performed by Mr Newbury and Mr Kelly, thus singling her out to be redeployed. 93 It was submitted that the claim that there was no work had been devised to disguise victimisation. 94 The respondent had falsely accused her of not being willing to participate in mediation, plus wrongfully terminating the mediation process. 95 Ms Lee also submitted that there were inaccuracies in the respondent's affidavits which she was able to prove because she had access to certain documents. Otherwise, those inaccuracies would have been accepted as fact. 96 Ms Lee gave examples which included minor corrections sought to be made by both Mr Callas and Ms Graham to their affidavits at the commencement of their oral evidence (and accepted by the Commission). 97 Also Ms Lee said that Mr Callas had claimed that he had defined her leaving the section to be July 2009, but that she was still considered part of the team until July 2009 when she was redeployed. She was redeployed in August not July 2009. Mr Callas was aware of that as he was at the meeting. Therefore in July when he met with Mr Newbury and Ms Buscombe, it was to determine her employment status, that is, at that stage she was not classified as redeployed. Thus by Mr Callas' definition, she had not left the section, because she had not been redeployed. Therefore it made no sense that Mr Newbury would advise Mr Callas that work on the project had been nearing completion when she left the section in July 2009. Ms Lee contended that the original version of the paragraph was the intended one, that Mr Newbury advised Mr Callas that her work on the projects had been nearing completion in March/April 2008. Following from Mr Callas' logic, if she had her redeployment status removed, she would be considered to be part of the team again and could return to the section. 98 Ms Lee submitted that Mr Locking's evidence that he inquired about whether there were vacancies relating to mobile filed computing with none being were available was inconsistent with the Field Computing Steering Committee minutes showing that interviews were underway and new resources were brought on board around July/August 2009. 99 Ms Lee submitted that Mr Farrell had made assertions that she could not be forced to accept redundancy or have her salary reduced. At the meeting on 12 August 2009 she was told that she had been classified as having redeployed status. She was not informed beforehand that the meeting was about her redeployment nor was she informed that she could have a union representative present. This was contrary to procedure 3.1.1 of EA's Redeployment and Redundancy policy. Therefore, the employer seems to have discriminatory power when it comes to when policies may or may not apply. Therefore the respondent could not be certain that she could not be terminated or be made redundant. 100 Ms Graham's evidence suggested that people tended not to have their salary reduced as a result of redeployment. However Ms Lee submitted that her redeployment letter clearly stated that that could not be guaranteed. 101 It was submitted that the respondent has failed to provide an explanation as to why she was redeployed in August 2009 and Mr Newbury and Mr Kelly were not, when the DOPs and EMSOs projects were complete or nearing completion in July 2009. Mr Kelly and Mr Newbury were not redeployed. There has been enough work for both Mr Newbury and Mr Kelly for about nine months after the projects have been completed or nearing completion. It is only now that EA is looking at other work such as time sheeting and now that proceedings in the Industrial Relations Commission are underway. 102 Ms Lee submitted that she could not see any reason why she could not be treated the same way as Mr Newbury and Mr Kelly. They did not have their employment status classified as redeployed as she did. The fact was she have been treated differently and unfairly. 103 Mr Farrell had tried strenuously to prove that she had no work to perform in March/April 2008. The respondent could not have been able to predict at that time how long the industrial dispute was going to hold up the projects for. Similarly, the respondent cannot predict today whether a new field computing project for a new group of users might come up tomorrow. Under those circumstances, the decision in March/April 2008 was to offer her work elsewhere. 104 Subsequent to her complaint about an unsafe workplace, the decision was to redeploy her. The real reason for her redeployment was her complaint about an unsafe workplace. 105 Ms Lee submitted that Mr Locking concurred with her claim that the infrastructure project was a significant unit of work. The aim of the infrastructure project is to support EA's field computing requirements now and into the future. It was implausible that the infrastructure was being created to support around 350 devices. That was the figure provided by Mr Newbury in his oral evidence. 106 Therefore, Ms Lee contended that the field computing project was not complete. The roll out of the DOPs and EMSOs may be complete, the budget for these projects may have been spent. However, as stated in her position description, one of her functions was to document opportunities identified in the project and prepare business cases for the staged implementation of the project. This means she had to prepare business cases, obtain approval and funding for new user groups. Therefore, it was submitted that the field computing project was not complete. 107 It was submitted that prior to her complaint about an unsafe workplace, Mr Newbury was not in control or responsible for the field computing architecture project, nor the IAMS field computing project. However, Ms Lee was required to perform work related to these projects. Subsequent to her complaint, Mr Newbury's level of control of these projects had not changed, but the respondent claimed that she could not perform work related to these projects. 108 The respondent could not be certain that the detriments Ms Lee referred to would not occur. Therefore, those detriments cannot be trivialised. The detriment she suffered in terms of discontinuity of knowledge and experience as a result of her redeployment, was real and was not refuted by the respondent. The detriment suffered in terms of the embarrassment and humiliation currently suffered was real and had not been refuted by the respondent. 109 Ms Lee submitted that the respondent bore the onus of proving that removing her to another position did not arise from her complaints about an unsafe workplace. Her evidence undermined their evidence. After reviewing the evidence the Commission could not be satisfied that they have rebutted the presumption under section 210 (2) of the Act. 110 Ms Lee requested that the Commission order her reinstatement to her previous section, the iAMS Field Computing section, and remove the redeployment classification from her employment status, and make any other orders considered appropriate. Submissions for the Respondent

111 Mr Farrell outlined the history of the matter. Ms Lee had claimed she was victimised because she made a complaint about an unsafe workplace. Her complaint was as a result of a single remark made by her manager on 17 April 2008 when due to issues outside her control, work on the two field computing projects in her section were stalled and she refused to accept other duties offered. That remark was, "We can't have people sitting around doing nothing". 112 Following that remark, Ms Lee left the Field Computing section and did not return. Part of the reason for her not returning to the Field Computing section was the time taken to investigate and understand her complaint. An independent investigation and report undertaken by Holding Redlich found that there was no bullying in that remark and that her second grievance regarding the merit appointment process concerning Mr Newbury and Mr Kelly was also unsubstantiated. 113 Ms Lee continued to press her grievances, initially through the PSA but they dropped out of the process in February 2009. In the meantime, the industrial dispute and the storm season had ceased, so in early May 2008, the two projects in the field computing section that were under Mr Newbury's control, the EMSOs' field computing project and the DOPs' field computing project recommenced and work continued on those projects whilst Ms Lee continue to press her grievances. 114 In May 2009, after previously declining to participate in mediation on the PSA's advice, Ms Lee expressed a willingness to participate in mediation, so separate pre-mediation meetings were held with Ms Lee and Mr Newbury in June 2009. 115 It was submitted that those meetings resulted in the mediator gaining an understanding that whilst Ms Lee was willing to participate in mediation, one of her terms for mediation was that she was only going to accept a solution that involved an apology from Mr Newbury. That was an apology for that remark that the independent investigation found was not bullying. Because of Ms Lee's attitude to the mediation, Mr Newbury declined to participate, so the mediation didn't go ahead. 116 During this time, work on the projects was continuing and by July 2009, the DOPs' project was complete and the EMSOs' project was expected to be complete by September 2009. At the end of July, Mr Locking asked Ms Buscombe to investigate firstly, what work was still available in that section, (which resulted in the meeting that between Mr Callas and Mr Newbury) and secondly, whether there was any other field computing work available in the organisation. As a consequence of Ms Buscombe reporting that there was not any other field computing work available in the organisation Mr Locking asked her to institute efforts to redeploy Ms Lee to other positions. 117 It was submitted that the evidence of Mr Locking and Mr Newbury clearly showed that those two field computing projects were the only projects under their control. The infrastructure architecture project was being run by IT and the iAMS project, MAMS issue, was something that was complete and tested and there were no other field computing projects on the go at that time. The only work that was then undertaken by Mr Newbury and Mr Kelly was the final installation of the remaining devices in the Emergency Services Operators' vehicles throughout the remainder of 2009. They started looking for other project work to do within their division, whilst still providing operational support for the completed projects, which are then handed over to the divisions. It was Mr Newbury evidence that he became a conduit between the operators and the IT division in solving problems. 118 During this period of time from April 2008 when Ms Lee wasn't on leave, through to 31 July 2009, she was deployed on other work as it was found and made available. As that temporary work wasn't a permanent solution and as was established by Mr Locking's investigation that there was no further work in Mr Newbury's group or elsewhere in the organisation, the decision was taken to place Ms Lee in redeployment in accordance with EA's redeployment policy. 119 It was submitted that the evidence from Mr Locking and Mr Newbury was that there are no field computing projects currently being undertaken at EnergyAustralia, there may be in the future, but there aren't any at the moment and there weren't any at that particular point in time. 120 It was submitted that Mr Newbury's evidence was that he is canvassing within his division for new computing projects and they are not field computing projects, and if this is unsuccessful, that will ultimately result in both he and Mr Kelly being placed in redeployment. 121 It was submitted that in her redeployment, Ms Lee was placed in a position at her same classification level and as per EA's policy, unless she applied for and accepted a position at a lower classification level, she would not suffer any reduction in salary after 12 months. Ms Lee was perfectly able to apply for any engineering positions that suited her qualifications, experience and desire to do. 122 It was submitted that Ms Graham's evidence was that there are current engineering vacancies across EnergyAustralia. Ms Lee also claimed that she was under threat of retrenchment under EA's redeployment policy, and on any reading of that policy, at worst Ms Lee may be offered voluntary retrenchment at some time in the future if she is unable to find a suitable position. 123 It was submitted in summary that the work Ms Lee was performing in field computing was completed during the time she was away from that area and as a consequence, she was redeployed in accordance with the Energy Australia redeployment policy, not because she made a complaint about an unsafe workplace.

Submissions in Reply on behalf of the Applicant 124 Ms Lee submitted that she disagreed with the respondent's submission. She was still the only person to be redeployed and have her employment status classified redeployed. Whether Mr Newbury and Mr Kelly will at some time in the future be redeployed or not, it remained the fact that on 12 August she was the only person to be redeployed. No matter what different dates were chosen to say when the projects were considered finished, under normal circumstances in other projects, the whole team would be broken up and everybody would be redeployed or given other duties. She was the only person that had been redeployed. 125 Ms Lee submitted that it was not just a simple fact of there's no work, because she had proven in her affidavit that Mr Newbury and Mr Kelly had work related to the field computing projects after her redeployment on 12 August. 126 In terms of the claim that she had a position, Ms Lee submitted that she still maintained that she did not have a position or a position description that said her grade is a certain amount. The redeployment letter clearly stated that it cannot be guaranteed that after 12 months her salary will not be reduced or she would be offered voluntary redundancy. 127 She submitted that the detriments she had suffered were not trivial. Consideration 128 I have carefully considered the evidence and submissions of the parties. Whilst I have not referred in detail to the very specific technical information and material relied on by Ms Lee it has nevertheless been carefully considered and weighed up against the competing evidence of EA's witnesses. 129 Ms Lee has alleged that she was victimised by EA pursuant to s.210(1)(j) which reads as follows: (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000.

130 Ms Lee has rightly identified that the onus is on EA to rebut the presumption that she suffered the detriment she has alleged and was redeployed because of her complaint about "an unsafe workplace".

131 This arises as a consequence of the provisions of S.210 (2), Rebuttal Presumption as follows: In any proceedings is under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

132 Thus it falls to the Commission to determine whether or not the redeployment of Ms Lee was not just subsequent in time to the complaint she made, but the "substantive and operative cause" of that redeployment. 133 The Full Bench in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218, observed at para.35: .....that from a policy viewpoint, every reasonable avenue should be available to an employee to raise occupational health and safety concerns without fear of victimisation or retribution and, accordingly, it is appropriate that section 210(1)(j) should be construed broadly. 134 In that case, one of issues for the consideration by the Full Bench (and indeed one of the grounds of appeal) was that the language of the section was specific and therefore it was necessary for an employee to prove that a complaint about the matters set out in s.210 (1)(j) had been made and indeed, that it required that a formal accusation be made at the time at which the alleged victimisation occurred. 135 In this matter I do not consider that I need to dwell on whether or not a complaint was made in accordance with the provisions of the Act. There is no doubt, and it is not contested, that Ms Lee made a specific complaint of an "unsafe workplace" in relation to the particular comment made her by Mr Newbury on 17 April 2008. The complaint was in writing. It was quite specific and it was investigated with findings made. Therefore that issue does not need to be traversed further. 136 The Full Bench went to say in Twentieth Superpace Nominees v TWU at para 38: 38. In order for a remedy to be available under s213 for a breach of s210, causation must also be relevantly established.

137 The Full Bench was referred to AMIEU v Bellandra (2003) 126 IR 165 and relevantly said: 54. We agree. We consider that North J in AMIEU v Bellandra correctly states the position under the victimisation provisions in the WRA and by analogy, s210 of the Act, as being a process of characterisation of the particular facts with the question being whether the conduct was carried out "because" of the specified conduct. After examining the authorities to which we were referred, we would add that we do not consider it necessary or helpful to adopt the distinction made by Finkelstein J for the purposes of analysis in victimisation cases as that test, in our view, is contrary to the requirements of s210(2), as we have earlier discussed. Section 210(2) provides that an employer may rebut the presumption as to the alleged "matter" (the cause) by demonstrating that the substantial and operative cause of the detriment suffered by an employee was not an act of victimisation that the purposes of s.210(1).

138 Ms Lee has identified the detriment she believes she has suffered as a result of making her complaint. She has been redeployed but not to an identifiable position in EA's structure. She is on income maintenance for 12 months and at the end of that time "may" be offered voluntary redundancy or income maintenance could be discontinued and her remuneration be reduced. 139 EA's policy Redundancy and Redeployment Policy (Exhibit 2 - P) relevantly provides: 2.2.1. Positions rather than people are identified as excess to requirements. Redeployment is the first consideration for employees whose positions are declared excess. Personnel with needed skills are retained, and appropriate retraining is provided. ...... 3.3.1 The Industrial Commission has indicated that employees cannot be forcibly redeployed to an unlimited range of classifications without being offered the option of voluntary redundancy. Division/Branch managers ensure that redeployment options across Energy Australia are made known, and affected employees are selected for vacant positions according to the merit appointments procedure. ............. 3.6 Redundancy is voluntary, but not available indefinitely 3.6.1 Compulsory redundancy is not practised at Energy Australia. An incentive payment for employees taking voluntary redundancy is only available during a two-week period from the date of a firm offer. 140 Ms Graham's evidence was that generally people do not have their rate cut and "seem to carry on". 141 There are various specific provisions in the policy relating to the 12 months' salary maintenance and I note that 3.5.1 provides as follows: After 12 months salary maintenance, redeployed employees are paid the rate of pay for the position they now occupy. If the position has a range of increments, a salary adjustment issue usually made to the level closest to the employee's rate of pay in the previous position. 142 If, as appears to be the evidence, Ms Lee does not occupy a specified position in EA's structure then it would seem to me that, de facto, as she is being paid Engineer Band 2 Level 3, applying the provisions of 3.5.1, she would continue to be paid that rate unless she was redeployed to another position on a lesser rate. 143 However Ms Graham also gave evidence that there were other Engineer positions available across EA for which Ms Lee was entitled to apply. It is up to Ms Lee as to whether she will seek to apply for any other position that becomes available. I certainly consider that she should actively do so. 144 I do not believe that EnergyAustralia will make Ms Lee forcibly redundant. That would be contrary to their stated policy. Whether her income changes after 12 months is not certain and indeed it appears a distinct possibility that it will not change. I do not have a crystal ball. 145 The other disadvantage suffered as a consequence of redeployment as alleged by Ms Lee viz. "discontinuity of knowledge and experience", I readily acknowledge cannot be as easily addressed, but EA is a large organisation and Ms Lee has the opportunity of seeking a position elsewhere within the organisation (as indicated above) and indeed expand her knowledge and add to her experience. I am sure that Ms Lee is an employee with skills, knowledge and experience that EA would be loth to lose and would seek to retain. 146 One other matter that Ms Lee raised in relation to the Policy and that she contended had not been complied with by EA, was the matter of union representation at the meeting of 12 August 2008. 147 I do not consider that union representation was obligatory under the Policy. The provision relating to the involvement of a union concerns consultation only and is to be found in the following provisions: 3.1 Employees are fully informed about redeployment programs 3.1.1 Such a program is based on an organisational review, and employees are fully informed of the circumstances behind it. Before any redeployment program commences, there is consultation with employees and unions. Employees are fully informed of the options available to affected staff, and of the scope of assistance and entitlements provided.

148 It is clear to me that these provisions concern the implementation of a broad " redeployment program" and the requirement to "consult" a union. Nowhere can I find in the Policy a requirement that an employee be represented by the union in any meeting of an individual employee concerning proposed redeployment. The redeployment of Ms Lee was not part of a redeployment programme per se, but arose as a consequence of the projects on which she was engaged being completed and there no longer being sufficient work available in that area to justify her ongoing employment in that particular area. This will be commented on further. 149 I also note that it appears that the PSA had not continued to act on behalf of Ms Lee after February 2009. 150 That leads me to consideration of the crucial and fundamental issue of whether that redeployment was specifically made because Ms Lee had made her complaint about an "unsafe workplace". 151 There is no doubt, as indicated above, that Ms Lee made a formal complaint about the remark made by Mr Newbery on 17 April 2008. She considered this remark bullying and victimisation and that Mr Newbery was trying to "get rid of her" and that this created a psychologically "unsafe workplace". 152 She then immediately went off on sick leave and did not return to that area or work with Mr Newbery or Mr Kelly again. 153 Quite rightly, because of the nature of the complaint and the need to conduct an independent investigation, EA took appropriate action and moved or transferred her to an alternate "safe workplace". This was not a redeployment at this stage. Ms Lee did not object to this move. 154 An investigation of the complaint then took place by Holding Redlich. 155 I accept that that was an independent investigation. It may have been paid for by EA, however in my experience it is usually the employer who does pay. After all it is the employer's obligation to conduct an appropriate arm's length enquiry into those type of allegations. There are a range of outside private sector organisations/companies/firms that carry out such work. However they do not do it for free. Simply because an investigation is commissioned and paid for by an employer does not mean it is not independent. What is crucial are the terms of reference. Provided that such terms are clear, address the issues in question and that all relevant persons are interviewed (which I consider occurred in this matter), then I would have no issue with such an investigation. The provision of an actual copy of any final report is a practice that I have found varies. Obviously the findings should always be conveyed in sufficient detail to those concerned and as far as is practicable any recommendations made followed. 156 The Holding Redlich Report found that there was no bullying or victimisation in the incident as alleged and that her reaction was "unreasonable". The same investigation also upheld EA's application of the Merit Appointment Policy to the appointments of Mr Newbery and Mr Kelly. The Report further recommended workplace counselling to restore or re-establish the working relationship between the three employees. 157 That counselling, which was to take the form of the mediation by Ms Buchanan, commenced but did not proceed to completion in 2008 because firstly, Ms Lee was ill and unable to attend the pre-mediation session and secondly, because the PSA then advised Ms Lee not to participate in the mediation because of the outcome of the investigation. 158 Ms Lee did not accept the outcome of the investigation, that is clear from the letter from the PSA to EA and also what she subsequently told Ms Buchanan when the mediation finally resumed in 2009. She also subsequently indicated that she still felt threatened by Mr Newbery - how that could be I do not know since she was obviously not working with him and had not been since 18 April 2008. 159 If Ms Lee had accepted the outcome of the investigative Report then I have no doubt that her return to her previous position would have occurred and she would have continued to work on the two projects. However the issue would still have remained that those projects would have come to an end and redeployment would have still arisen as a consequence. 160 Mr Newbery and Mr Locking made it clear that it was only a matter of two or three weeks following the request made of her on 17 April 2008 that the industrial disputation was resolved, DOPs management came on board and the rollout of the two projects commenced. 161 I have to say, having read the investigative Report and having carefully considered the circumstances that led to the remark that Mr Newbery made, that I agree with the Report entirely. 162 Further I indicate quite clearly that Mr Newbery, after consulting with Mr Locking about the hold-up in the work and its consequences for the workload of Ms Lee (keeping in mind that Mr Kelly was on annual leave at this time), had every right to seek alternate work for her to ensure that she was gainfully and fully engaged during the working day. 163 It matters not that the work was outside her area, providing it was within her skill and capacity, was of short-term duration and as she was not suffering any reduction in the remuneration then there was no disadvantage to her. 164 I do not consider that it was in any way an attempt to "get rid of her". It was an appropriate and proper exercise of managerial prerogative. It should also be noted that in any event Mr Newbery did not have the power or authority to "get rid of her". 165 There have been numerous decisions of this Commission and other tribunals concerning the right of management to manage its business. Certainly many of those decisions concerned broader manning issues however, in my view, the basic principles to be upheld are no different when considering the work of an individual employee in a particular discrete area. 166 In Re Dispute Between Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Proprietary Company Limited (1950) 49 AR 371 Cantor J said: On the authorities, summarised the following is the legal position:- First an employer has the right to manage his own business in his own way; secondly, the Commission will not intervene with this right unless it is satisfied that intervention is justified because in the exercise of this right unjust or unreasonable demands or conditions are imposed, or because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like. 167 Similarly in Re John Lysaght (Australia) Limited Port Kembla - Slit Recoil Line (IRC 2374 of 1994 - unreported) Hungerford J summarised the principle in this way: A question of manning is, it seems to me, concerned necessarily with the management of an employer's business. The long settled approach to such matters by the Commission is for it not to intervene by assuming the role of the employer but rather to assess whether what the employer proposes would impose unfair or unreasonable demands on employees, including unsafe work practices. ....................................... 168 In Shell Company Australia Limited and Others v Transport Workers' Union of Australia Print G6298, C No. 3303 of 1986 per Sweeney C of the Australian Industrial Relations Commission, the principle was even more succinctly enunciated as follows: The overwhelming principle in this matter is the long established right of management to allocate and arrange work and for the employees to respond to reasonable management requirements.

169 I do not consider that what Mr Newbery was seeking from Ms Lee, that is to carry out alternate work from that which was strictly contained within her position description for the limited period when her normal work was not available due to circumstances beyond his control, was unfair, unreasonable, unsafe or oppressive nor was it victimisation, to use the language expressed in the decisions cited above. It was a reasonable request. It was unreasonable of Ms Lee to refuse to carry out the alternate duties proposed. 170 There is no doubt that perhaps Mr Newbery (and there was no evidence as to any other content of the conversation between the two) could have explained the situation more carefully and in more detail before making his request. 171 What occurred is perhaps symptomatic of the underlying problems in the relationship between Ms Lee, Mr Newbery and Mr Kelly. 172 Ms Lee did not feel part of "the team" and felt excluded from things such as going to coffee and Steering Committee meetings, although in relation to the latter it turns out that Mr Kelly also did not attend those meetings. 173 However the problem went beyond what might be viewed as those two minor matters (however significant they were to Ms Lee) and to Ms Lee's apparent lack of confidence and indeed doubts/concerns as to the management abilities of Mr Newbery and Mr Kelly. That is evidenced by her complaint about the selection process and her "confidential" subsequent meeting with Mr Locking. Mr Newbery was also of the belief that Ms Lee did not respect him as a manager and expressed such a view to Ms Buchanan. 174 I also note that this issue was referred to in the letter from Mr Farrell to the PSA in January 2009 where he indicated: From our meeting last Wednesday it is clear that Ms Lee does not believe that Mr Newbery or Mr Kelly are competent to complete the project and while she is entitled to this opinion it is EnergyAustralia's prerogative to decide if Mr Newbery and Mr Kelly are competent to complete the project provided they are properly appointed and behave in accordance with policy and legislation. Mr Newbery and Mr Kelly were properly appointed under the Merit Appointment Policy and Ms Lee's allegations of bullying were not substantiated. 175 The mediation process did not resume until after Ms Graham advised Ms Lee in April 2009 that her non-participation in the process and her unwillingness to work with Mr Newbery was preventing her return to her former role. 176 Ms Lee subsequently agreed to participate in the mediation process and Ms Buchanan conducted the pre-mediation session with Ms Lee. Following this session, not unsurprisingly, Ms Buchanan formed the view, in whatever terms it was conveyed to those at EA it was made clear in her evidence ti this Commission, that further mediation was essentially pointless. That is my terminology, but that is the essential result of the combination of Ms Lee still unprepared to accept the findings of the investigative Report, still seeking an apology from Mr Newbery and Mr Newbery still unwilling to give that apology because the report said there was no bullying and victimisation. He also could see no benefit to him. 177 By the time Ms Buchanan had formed her views about the impracticability of mediation because of the attitude of both parties, time had also moved on in relation to the projects that had formed the overwhelming basis of Ms Lee's former role. 178 It should also not be forgotten that back in January 2009 in the letter to the PSA Mr Farrell had concluded by saying: It should be noted that like all projects this one has a finite life and therefore at a point in the future the project will be finished and the team broken up and re-deployed, however, in the meantime we repeat our offer of mediation in an effort to establish or re-establish professional working relationships on the project. 179 I accept unequivocally the evidence of Mr Newbery and particularly that of Mr Locking (who is the Executive Manager Business Services (acting) concerning the completion of the EMSos and DOPs projects and that there is effectively no longer any field computing work that Ms Lee can be returned to. EA management has also exercised its prerogative as to what projects are de-scoped (e.g printers in the vehicles). It is clear from the evidence that the broader iAMS project across EA is under the responsibility and control of EA's Corporate IT and in any event is principally being contracted out. It is for Corporate IT to manage and make decisions about that project. 180 It is also clear from the evidence that whilst some ongoing work remains in the section, it is of limited scope and, as Mr Locking described it, of a "tidying up" nature and "tying up loose ends". Mr Newbery indicated that he was hunting around for work for that business section. There is certainly not full-time work for three people. The time sheeting work that is currently being carried out, at Mr Locking's request, is obviously of limited duration and may or may not lead to something more substantial in the future. 181 Ms Lee complains that she has been the only one of the three redeployed. However, all things considered, Mr Newbery and Mr Kelly clearly have a limited future in that section and will also quite probably, unless sufficient alternate business options arise, face redeployment. They were redeployed from their former positions into the positions they currently occupy in 2005, so redeployment is no stranger to Mr Newbery and Mr Kelly. 182 Even if the projects had carried on and were ongoing today, I doubt that Ms Lee could have returned to her former role given the clear difficulties in the relationship between Ms Lee and Mr Newbery. Unless and until Ms Lee accepts that the incident on 17 April 2008 was not bullying and victimisation, accepts EA's appointment of Mr Newbery and Mr Kelly, then she will not be able to move on from the issues she had with Mr Newbery and EA. 183 Ms Graham has indicated that there are other Engineer positions within EA and Ms Lee is entitled to apply for appointment to such position in accordance with the Merit Appointment Policy. Ms Lee should actively engage in looking at alternative positions within EA. 184 Having very carefully considered the evidence and submissions of the parties I find that the complaint Ms Lee made about an unsafe workplace was not the "substantial and operative cause" of her redeployment on the 12 August 2009. She was redeployed because the particular projects on which she had been engaged had concluded and there was no more field computing work to which she could be allocated (and insufficient other work within the section to support the three employees). Therefore I am satisfied that EnergyAustralia has rebutted the presumption that Ms Lee was victimised because of her complaint made under s.210 (1)(j). 185 The application for orders is therefore dismissed.

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