Civil and Administrative Tribunal New South Wales Medium Neutral Citation: James v NSW Department of Communities and Justice [2021] NSWCATAD 118 Hearing dates: 12, 13, 14, 15, 16 October 2020 Date of orders: 10 May 2021 Decision date: 10 May 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member F Given, General Member Decision: (1) The Complaint made by Ms James and referred by the President of the Anti-Discrimination Board to NCAT on 25 February 2019 is not substantiated. (2) The application for costs made by the Secretary, NSW Department of Communities and Justice, is refused. Catchwords: HUMAN RIGHTS — Anti-Discrimination Act 1977 (NSW) — victimisation — whether the discriminator subjected the applicant to a "detriment" — if so, whether it was "on the ground" that the applicant did one of the things listed in s 50(1) of the Anti-Discrimination Act 1977 (NSW) HUMAN RIGHTS — Anti-Discrimination Act — disability discrimination — whether "less favourable treatment" established — whether any less favourable treatment was on the ground of the applicant's disability, real or perceived COSTS — whether "special circumstances" established — whether discretion to award cost should be exercised Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Anti-Discrimination Act 1977 (NSW) Cases Cited: Bonella v Wollongong City Council [2001] NSWADT 194 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 James v State of NSW (Department of Justice (Corrective Services NSW)) [2020] NSWCATAD 117 Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 Penhall-Jones v New South Wales [2007] FCA 925 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Sivananthan v Commissioner of Police [2001] NSWADT 44 Tebb v State of NSW [2020] NSWCATAD 85 Texts Cited: Nil Category: Principal judgment Parties: Rita James (Applicant) NSW Department of Communities and Justice (Respondent) Representation: Counsel: D Mahendra, Counsel (Respondent) Solicitors: Applicant (Self-Represented) McCullough Robertson (Respondent) File Number(s): 2019/00063253 Publication restriction: N/A REASONS FOR DECISION 1. In February 2019, the President of the Anti-Discrimination Board (respectively, the President and the Board) referred to the NSW Civil and Administrative Tribunal (NCAT) a complaint made by Corrective Services employee, Ms Rita James. In that complaint, lodged with the Board in August 2018 (the Complaint), Ms James alleged that her employer, the Secretary of the NSW Department of Communities and Justice (the Secretary) victimised her and, in addition, discriminated against her on the ground of disability. 2. The genesis of the Complaint is the allegation made by Ms James that in late 2013 she was sexually assaulted by Corrective Services Director, Mr Ivan Calder. In a complaint lodged with the Board in May 2016 (the First Complaint), Ms James claimed that as a result of making that allegation, the Secretary transferred her from the John Morony Correctional Complex, Windsor, NSW (John Morony) to the Silverwater Correctional Complex. According to Ms James, the transfer from Windsor to Silverwater amounted to a "detriment" within the meaning of s 50 of the Anti-Discrimination Act 1977 (NSW) (the Act) because, among other things, it added an additional two hours of travelling time to her daily commute to and from work. 3. In a decision handed down in August 2017, a differently constituted Tribunal found the First Complaint substantiated and ordered Corrective Services to pay to Ms James $20,000 in compensation: James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 (James No 1). 4. In August 2018, Ms James lodged a further complaint (the Complaint) with the President alleging that she was victimised as a result of participating in the proceedings in James No 1 and discriminated against on the ground of disability by Corrective Services' managers. That Complaint is the subject of these reasons for decision. 5. For the reasons that follow, we find the Complaint is not substantiated. Amendment to the Complaint 1. Following an application made by Ms James seeking several amendments to the Complaint, in April 2020 Principal Member Britton exercised the discretion to amend the Complaint by adding two of seven allegations proposed by Ms James: James v State of NSW (Department of Justice (Corrective Services NSW)) [2020] NSWCATAD 117. Background to the Complaint 1. The periods during which the conduct the subject of the Complaint is said to have occurred, as determined by the President, are 23 January 2017 to 16 August 2018 (allegation of victimisation) and 17 May 2017 to 16 August 2018 (allegation of discrimination in employment on the ground of disability). Most of the conduct the subject of the Complaint is said to have occurred after the hearing into the First Complaint on 24 and 28 March 2017. 2. Ms James commenced employment with Corrective Services in July 2012 in the role of a Services and Programs Officer (SAPO) within the Intensive Drug and Alcohol Treatment Program (IDATP) at John Moroney. Offered to inmates, the IDAPT is designed to address drug and alcohol abuse and to reduce the risk of recidivism. 3. Two years later, Ms James was appointed as a Throughcare and Placement Officer (TAPO), Clerk 7/8, in the IDATP. 4. In October 2014, Ms James lodged a grievance with Corrective Services alleging she had been bullied by IDATP Director, Mr Ivan Calder, and IDATP Manager, Ms Katrina Czerkes. An internal investigation found the allegations not substantiated. The investigator found that the relationship between Ms James, Mr Calder and Ms Czerkes was strained and recommended mediation. The mediation did not occur. 5. In December 2015, Ms James lodged a further grievance, again alleging that she had been bullied by Mr Calder. In addition, she alleged that at an after-hours work function in August 2013, Mr Calder "put his hand on my backside and squeezed". 6. Corrective Services Manager, Ms Nicole Anderson, was appointed to investigate Ms James' grievance. In a report dated 4 March 2016, Ms Anderson recorded Ms James' claim that the Director had failed to address numerous concerns raised by her and that the "culture at IDAPT was 'toxic' and relentless because of Mr Calder's mismanagement of issues". 7. Ms Anderson interviewed Ms James, Mr Calder and 20 members of staff. She reported that: 1. all interviewed staff stated that IDAPT's commencement was "fraught with conflict between the custodial team at JMCC and the therapeutic ideas of the new program team". Staff reported that since the commencement of IDAPT in early 2013 until August 2015 when it moved to the Outer Metropolitan Multi-Purpose Correctional Centre (OMMPC), the workplace was "a difficult and stressful environment"; 2. staff felt the workplace was divided between those loyal to Mr Calder and those loyal to his predecessor, who had a "very different management style"; 3. three staff members reported that they had sought psychological treatment for work-related stress; 4. staff considered the restructure within the Department was a "further stressor in an already stressful environment"; 5. all staff interviewed reported that although the work at IDAPT is enjoyable, the "workload is high, intensive, difficult to juggle and stressful". 1. Ms Anderson noted that there appeared to have been an improvement in "workplace morale and relationships" over the past six months, since the IDAPT moved to the OMPCC. She noted that several measures had been introduced to address staff concerns, including regular staff meetings and a reduction in Mr Calder's "direct reports". 2. Ms Anderson wrote: 1. it cannot be ignored (due the number of people who reported it, gave examples and were visibly affected by these discussions) that historically the Director may have been involved in instances of indirect bullying of staff. This was probably exacerbated by the historical toxicity and division within the workplace; 2. a mix of cultural and environmental issues, division in the workplace, the restructure, large-scale change and role confusion have fatigued the IDAPT workplace, and may have had a negative impact on staff perceptions of management and of Mr Calder's leadership; 3. there have been improvements in the IDAPT work environment and workplace relations are healthier since around August 2015. The Director currently addresses staff issues and concerns raised to him appropriately; 4. Ms James has a history of conflict with some staff at IDAPT. Over half of the staff interviewed described her as being "sometimes aggressive, emotionally volatile and unfiltered when in the workplace". 1. Ms Anderson made several recommendations, including that: 1. Ms James be transferred "at grade" out of the Windsor complex so as to "ensure safety" of both Ms James and Mr Calder; 2. the Assistant Commissioner monitor the performance of Mr Calder and his interactions (direct and indirect) with staff; 3. all vacant positions within IDAPT be filled as a matter of priority. 1. Assistant Commissioner, Offender Management and Programs, Dr Anne Marie Martin, decided to implement the first two recommendations and several other recommendations made by Ms Anderson. 2. On 29 September 2016, Dr Martin wrote to Ms James advising that her complaint "regarding alleged inappropriate behaviour by Director Ivan Calder at a work-related function on 16 August 2013" had been investigated by Corrective Services NSW Investigations Branch and the Professional Standards Branch. Dr Martin wrote that she had reviewed the investigation and made no findings of misconduct and decided not to take any further action. Ms James is off work between 20 November 2015 and 27 April 2016 1. Apart from 4 January 2016, Ms James was off work between 20 November 2015 and 27 April 2016. 2. On 10 December 2015, ten days after lodging the grievance about Mr Calder, Ms James lodged a workers compensation claim, alleging "ongoing bullying and harassment by the Director". The claim was denied. 3. In a certificate dated 31 December 2015, Ms James' GP certified Ms James fit for "pre-injury duties", subject to the restriction that Ms James report only to her line manager. 4. When Ms James returned to work on 4 January 2016, while gathering up her things to move from John Moroney to the Silverwater Correction Centre, she became upset and went home. She claims that when she arrived at work she found her desk had been "trashed". Ms James returns to work 1. On her return to work on 27 April 2016, Ms James commenced at the Silverwater Correctional Centre. On 16 November 2016, Ms James asked Dr Martin if she could be transferred to the Emu Plains Correctional Centre to reduce her daily commute. At a meeting on 12 January 2017, Dr Martin agreed to that request and ten days later Ms James commenced at Emu Plains in the role of a Senior Services and Programs Officer (S/SAPO). 2. Ms James remained at Emu Plains in the role of a S/SAPO until 6 October 2017 when she left work. She did not return to work until October 2019. Corrective Services' insurer accepted Ms James' claim for workers compensation on account of a psychiatric injury. 3. On 16 August 2018, Ms James lodged the Complaint the subject of these proceedings with the Board. Complaint of Victimisation Statutory framework 1. Section 50 of the Act states: 50 Victimisation (1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 1. For the complaint of victimisation to be substantiated, Ms James must establish on the balance of probabilities that: 1. the Secretary, or his agent or employee, caused her to undergo or experience something; 2. she suffered some consequential detriment; and 3. she was subjected to that detriment "on the ground" that she did one of the things listed in s 50(1) of the Act: see, Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [70] quoting Buchanan J in Penhall-Jones v New South Wales [2007] FCA 925; Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 (Nicholls) at [28]. 1. The term "detriment" in s 50 is not defined by the Act. We adopt the meaning of that term consistently applied by NCAT and one of its predecessors, the NSW Administrative Decisions Tribunal (the ADT) - that is, something that objectively assessed amounts to loss, damage or injury that is real and not trivial. (See, for example, Sivananthan v Commissioner of Police [2001] NSWADT 44 at [41], [41]; Tebb v State of NSW [2020] NSWCATAD 85 at [22]; Bonella v Wollongong City Council [2001] NSWADT 194 at [50].) 2. In Nicholls, an Appeal Panel of the ADT considered the meaning of the phrase "on the ground" in s 50 of the Act, concluding at [37] that the question posed was whether at least one of the "real", "genuine" or "true" reasons the "discriminator" subjected "the person victimised" to a detriment, was because the person victimised had done or intended to do, or the discriminator suspected that the person victimised had done or intended to do, at least one of the things listed in s 50(1)(a) to (d) of the Act. Scope of the Complaint 1. At the commencement of the hearing of the Complaint, Ms James confirmed that the Complaint comprised the allegations listed in submissions filed by Corrective Services on 7 September 2020: 1. "The Respondent contravened ss 50(1)(a) and 53(1) of the AD Act by: 1. making a misleading statement during the James No 1 proceedings (Allegation l); 2. in March 2018, refusing the Applicant's request for a review of the findings in the independent investigation report (OCM report) which dealt with a grievance she lodged on 11 September 2017 (Allegation 2); 3. failing to allow the Applicant to act in higher duties as a MOSP on or around 17 May 2017 or otherwise provide promotional opportunities for the Applicant and placing the Applicant on a transitional plan (Allegations 3 and 9); 4. requiring the Applicant to put leave forms in manually either via email or handing them to her manager rather than electronically (Allegation 4); 5. failing to give full support to the Applicant after she reported a Work Health and Safety incident in or around March 2017 (Allegation 5); 6. attempting to "discipline" the Applicant after she left work early on 2 August 2017 following the decision in James No 1 being delivered (Allegation 6); 7. requesting that the Applicant attend a meeting with Dr Anne Marie Martin, Ms Cathryn Hellams and Ms June Wong in August 2017 to develop a return to role plan to facilitate and support the Applicant's return to her substantive role following the decision in James No 1 (Allegation 7); 8. requesting that the Applicant meet with Ms Cindy Moore in or around October 2017 to discuss complaints that had been made against the Applicant by other staff (Allegation 8). 1. the Respondent contravened ss 49B and 49D (disability discrimination) of the Act by: 1. failing to allow the Applicant to act in higher duties as a Manager Offender Services Programs (MOSP) on or around 17 May 2017 or otherwise provide promotional opportunities for the Applicant (Allegation 10); 2. failing to make reasonable adjustments and appoint the Applicant to a position at Dillwynia Correction Centre (Allegation 11)." 1. In final submissions Ms James advised that she had withdrawn Allegations 4 and 11. Allegation 1: Dr Martin makes a misleading statement in the first NCAT proceedings 1. Ms James alleges that in evidence given in the NCAT proceedings concerning the First Complaint (the First NCAT proceedings), Dr Martin made a misleading statement, namely that Ms James had been subjected to "performance management". Ms James contends that the reason Dr Martin made that statement was to cast doubt on the veracity of her claim that she had been sexually assaulted and bullied by Mr Calder. 2. In an affidavit tendered in the original proceedings, sworn on 22 March 2017 (the original Martin Affidavit), Dr Martin stated: The applicant was subject to a period of performance management in 2014 and there were ongoing concerns about the applicant's performance. For example I recall concerns being raised around professional boundaries, and the applicant in going too far in advocating for the needs of individual inmates. There was also a reluctance to undertake responsibilities outside of integration services, particularly a reluctance to coordinate the work of Services and Programs Officers. This is a general requirement of Clerk Grade 7/8 role. (Emphasis added.) 1. In these proceedings, Dr Martin stated that she and Mr Calder, who reported directly to her, had regular discussions about IDAPT staff. She claimed that the reference to "a period of performance management in 2014" in the original Martin Affidavit related to concerns raised by Mr Calder in those discussions about Ms James, which he had worked through with Ms James "as part of normal counselling and feedback". According to Dr Martin, Mr Calder reported that Ms James had problems with time management, was not a team player, at times failed to follow management direction and was too focused on working with individual inmates. 2. Dr Martin stated that it is well known within Corrective Services that "performance management does not require a formal or documented process". She stated that in her view "counselling and feedback amounts to performance management". 3. Dr Martin claimed that her discussions with Mr Calder about Ms James took place before Ms James lodged a grievance about Mr Calder and that she had no reason to question Mr Calder's motivation for raising concerns about Ms James. She pointed out that, at times, Mr Calder gave positive feedback about Ms James and spoke highly of her skills. 4. Ms James denies being performance managed by Mr Calder. She asserts that the comment about her being performance managed was a reference to a period where she was at risk of becoming a "displaced employee" and was under a "Performance Management and Development Plan". Ms James claims that she composed that plan, which was "entirely voluntary". Dr Martin said the reference in her statement to Ms James being performance managed was not a reference to that plan but rather discussions she had with Mr Calder about Ms James. Dr Martin claimed that she was not involved in preparing that plan and could not recall it being raised in discussions with Mr Calder. 5. In detailed submissions, Ms James took issue with Mr Calder's reported claim that she had been "reluctant to undertake responsibilities outside of integration services, particularly a reluctance to coordinate the work of Services and Programs Officers". She disputed Dr Martin's statement that it was a "general requirement of a Clerk 7/8 role" to supervise the work of SAPOs, pointing out that she had never been appointed as a S/SAPO and therefore it was not a requirement of her role to supervise staff. Consideration 1. Dr Martin's claim that Mr Calder raised with her concerns about Ms James' work performance, before Ms James lodged the first grievance, is un-contradicted. Whether, as Ms James contends, Mr Calder's stated concerns about her performance lacked a proper foundation, or whether Mr Calder made those claims to Dr Martin knowing them to be false, is not to the point. To succeed in this allegation, Ms James must establish either that Dr Martin manufactured the claim that Ms James had been performance managed or suspected that the report made by Mr Calder was false. Each proposition is vehemently denied by Dr Martin. There is no direct evidence to support either proposition, nor does the available evidence support those inferences being drawn. 2. The premise on which this allegation is based is not established. This allegation is not substantiated. Allegation 2: refusing Ms James' request for a review of the findings made by OCM 1. By Allegation 2, Ms James contends that the following decisions taken by Mr Michael Baldi, Executive Director, Strategic Human Resources, Department of Justice amounted to a detriment: 1. to refer her grievance lodged with Corrective Services on 11 September 2017 (the Grievance) to external consultants, O'Connor Marsden & Associates (OCM) for investigation; 2. to refuse to conduct an external review of the investigation conducted by OCM and the findings made by OCM and recorded in its report of its investigation (the OCM report). (See the orders made by the Tribunal on 14 July 2020 for the scope of this allegation.) 1. We understand Ms James to contend that by referring the Grievance to OCM she was subjected to a loss because OCM was neither independent nor fair. In addition, Ms James asserts that she had a right to have the OCM report externally reviewed, which was denied. She contends that by not acceding to her request for an external review, Corrective Services contravened its Grievance Policy and Code of Conduct and subjected her to loss and damage. 2. The Secretary rejects the contention that OCM was not independent of Corrective Services and not fair and impartial in its investigation of the Grievance. The Secretary submits that it cannot reasonably be argued that by giving Ms James the benefit of an external review at first instance, she was subjected to a detriment. 3. In addition, the Secretary disagrees with Ms James' claim that he refused to review the OCM report and asserts that it was reviewed by Mr Baldi. The Secretary disputes the contention that Ms James was entitled to a further external review of the Grievance, pointing out that she had been given the benefit of an external investigation at first instance. Background 1. On 11 September 2017, Ms James lodged a grievance with Commissioner Severin alleging bullying, harassment and discrimination by senior Corrective Services managers. In that grievance she wrote: Outline of issue: Continued victimisation and exclusion from development opportunities due to raising a victimisation matter with NCAT. This issue was won. No follow up regarding what action has been taken against those that were implicated in the matter. Further victimisation in regard to requests and queries being ignored via email and also accused of breaking policies which Is inaccurate and when further information requested, it is then not forthcoming. … I fear further victimisation as has already occurred and I believe will continue to occur. Also, possibly disciplinary action will be "fabricated" in order to discredit me. 1. Under the heading "specific examples" Ms James wrote: Being accused of breaking a policy that does not exist for my position. Not being offered opportunity for a support person to be present. Emails Ignored when confirmation of events or requests are made with transparency in mind. NCAT matter of victimisation has not progressed with relevant action being taken against those that victimised me as this ls an unlawful action. Refusal to provide feedback regarding reasons for not being eligible for a development opportunity, no action or investigation being undertaken with regards to senior management providing false and misleading information (regarding being performance managed), no support provided throughout the period of time that I was required to work in other positions due to so called WHS matters. Management being able to Interview me for a promotional opportunity when there is a clear conflict of interest and the CSNSW have justified this even though. It caused me further psychological trauma. There are multiple concerns I have regarding the inability of current senior management to identify and address& the current "institutional bullying culture" at CSNSW and even that they are actively participating in It. Senior management are not role modelling the Core Values of the NSW Public Service and therefore are in violation of the requirements of their senior office and the Code of Conduct. 1. In February 2018, after being informed of OCM's finding that her allegations were not substantiated, Ms James wrote to Mr Baldi requesting that the report be reviewed by an external consultant, asserting that it contained several discrepancies and factual inaccuracies. In addition, she asserted that OCM had failed to afford her procedural fairness in its investigation. 2. In April 2018, Mr Baldi informed Ms James that he had reviewed the OCM report and was satisfied that she had been provided with procedural fairness. He refused her request to commission an external consultant to review the report. Appointment of OCM 1. On 12 September 2017, Mr Baldi met with Human Resources Director, Ms Hellams, to determine how to manage the Grievance, which had been lodged the day before. Both claim that because of the wide-ranging allegations made by Ms James, and the likelihood that a significant number of senior Corrective Services managers may have been involved, they decided that an external consultant should be appointed to examine the Grievance rather than this being undertaken by an internal grievance manager, which is usually the practice. 2. Under Corrective Services' "Grievance Resolution Policy and Guidelines" (the Grievance Policy), where, as here, an employee lodges a grievance alleging bullying, harassment and/or discrimination, as a first step Corrective Services is required to appoint a "grievance manager" to "examine the grievance and formulate an intervention strategy". At [5.4] the Grievance Policy states: "In most instances the grievance manager is the Grievant's immediate line manager", however, if the grievance involves the Grievant's manager, the grievance must be dealt with by the manager next in the reporting line, or a senior manager of a similar level." 1. In an email sent on 12 September 2017, Ms Hellams notified Ms James of the decision to appoint an external provider to investigate the Grievance. 2. Ms James responded stating that the appointment of an external provider was "what I wanted from the beginning". She went on to request a say in the appointment so that she could undertake research to ensure that the investigator was "reputable and completely unbiased". 3. In response, Ms Hellams stated that the investigator would be appointed from a panel of external providers approved by the Department of Justice and Ms James would be advised of their name once the appointment was made. 4. In a lengthy email in response, Ms James advised Ms Hellams that she had lodged a complaint with the Public Service Commission about the decision to appoint an external provider. 5. At the same time as these discussions about the appointment of the investigator were taking place, Ms Hellams was attempting to arrange a meeting between Ms James and Dr Martin to discuss her request to return to "a senior SAPO role within IDAPT" following the decision in James No 1 being handed down. That proposed meeting is the subject of Allegation 7, which is discussed below. 6. To break the impasse between Ms James and Ms Hellams, Mr Baldi met with Ms James on 9 October 2017 to discuss her concerns. An official of the Public Service Association (PSA) attended in the role of Ms James' support person. 7. According to Mr Baldi, at that meeting he explained that OCM was on a panel of investigators approved by the NSW Government and had been used in the past by the Department of Justice who found OCM to be "professional, transparent, independent and able to deliver quality work". In addition, he stated that while not the usual process, the decision to commission an independent external review was made so that Ms James would have the benefit of "a robust process at an early stage". In these proceedings, Mr Baldi stated that Ms James and the PSA representative, Mr Robinson, appeared appreciative and supportive of that approach. Ms James agrees but stated that as the investigation proceeded, she came to realise that her trust in Mr Baldi had been misplaced. The OCM investigation 1. After reviewing the initiating grievance and interviewing Ms James, OCM investigator, Mr John Counter, identified: 1. 21 allegations that fell within the scope of the Grievance, and 2. nine people said by Ms James to be the perpetrators of the bullying etc. In an interview with Mr Counter on 11 October 2017, Ms James identified Dr Martin as the "primary victimiser" with Ms Moore and Mr Jackson playing lesser roles. 1. In addition to Ms James, Dr Martin, Ms Moore and Mr Jackson, Mr Counter interviewed 13 current and former colleagues and supervisors of Ms James. Three witnesses nominated by Ms James apparently were unwilling to be interviewed. 2. In a report provided to Mr Baldi in January 2018, OCM stated that it found none of the 21 allegations substantiated. However, OCM made several recommendations, including that the Secretary clarify the status of Ms James' workers compensation claim and discuss with her the Transitional Plan to assist her with career development. Mr Baldi agreed to review Corrective Services' processes and to address those issues. 3. OCM's report detailed each of the 21 allegations, referred to the material relied on by Ms James in support of those allegations, summarised the interviews with each witness, outlined the responses given by the alleged perpetrators to the allegations made by Ms James, and set out the reasons for the findings that each of the allegations was not substantiated. Refusal to conduct an external review of the OCM report 1. On 12 February 2018, Mr Baldi wrote to Ms James outlining OCM's findings that each of the 21 allegations was not substantiated. In addition, Mr Baldi: 1. advised that the Department of Justice had accepted OCM's findings and considered that the Grievance had been reviewed and finalised; 2. referred to observations made by OCM about Ms James' conduct, behaviour and workplace and interpersonal relationships; 3. confirmed his understanding that Ms James remained absent from the workplace on account of a workers compensation claim and outlined proposed next steps to facilitate Ms James' return to work. 1. On 13 February 2017, Ms James emailed Mr Baldi "requesting as per policy a review of the [OCM] report". In addition, she requested a copy of the full OCM report and the "evidence used by Mr Counter to validate his claims". Ms James was subsequently provided with a copy of the full report but not, as she later requested, the transcript of each interview conducted by Mr Counter, apart from the interview conducted with her. 2. On 22 March 2018, Ms James wrote to Mr Baldi requesting a review of the OCM report "due to what I believe to be a lack of procedural fairness''. In a detailed analysis, she asserted that in its investigation OCM had failed to afford her procedural fairness and further, that its report was inadequate. In support, she referred to several policies and guidelines which she asserted had been breached by OCM and requested that "the whole matter be turned over to the Public Service Commission, the Independent Commission Against Corruption, or similar". In addition, she requested that the OCM report be submitted as "further evidence of my claims of victimisation by senior members of staff from CSNSW". 3. In a letter dated 12 April 2018, Mr Baldi informed Ms James that he was satisfied that the process adopted by OCM in the conduct of the investigation afforded her procedural fairness and that OCM had assessed the information provided by her and other witnesses fairly and impartially. Referring to Ms James' request that the matter be referred to the Public Service Commission or the Independent Commission Against Corruption, Mr Baldi stated that as the investigation had not identified "issues of corruption, failure to follow standard public service policies or similar", it was a matter for Ms James to "make any referral you believe appropriate". Ms James' submissions 1. In support of Allegation 2, Ms James made several wide-ranging criticisms about OCM and Corrective Services' actions in commissioning and liaising with OCM throughout its investigation, including that: 1. OCM was not an independent consultant. In support, Ms James points to: Mr Hellam's participation in the decision to appoint OCM; Mr Baldi's refusal to accede to her request to participate in the selection of the investigator and to give her a copy of the contract with OCM to undertake the investigation; and the fact that OCM received a fee for conducting the investigation and preparing the report; 2. the report is "skewed against her", largely inaccurate and labelled her a troublemaker. Ms James asserts that the report misquoted witnesses and omitted comments favourable to her made by some witnesses; 3. Corrective Services sought to malign her by nominating witnesses that were not favourable to her, some of whom she had not spoken to for more than two years. 1. In addition, Ms James argues that the appointment of Ms Hellams as the person with the day-to-day responsibility for liaising with OCM gave rise to a conflict of interest. According to Ms James, that conflict arose as a result of Ms Hellams witnessing HR advisor, Ms Singer, allegedly being aggressive towards her at a conciliation conference conducted by the Board in relation to the First Complaint. Ms Singer's alleged conduct was one of the 21 allegations investigated by OCM. Ms James contends that Mr Counter's failure to interview Ms Hellams evidenced that he was biased against her. Ms James states that many of her dealings with Ms Hellams throughout the course of the investigation were unsatisfactory and left her feeling "anxious and unheard". Consideration Commissioning OCM to investigate the Grievance 1. The Grievance Policy does not require that a grievance lodged by an employee alleging bullying, harassment and/or discrimination be referred to an external consultant for investigation. At [5.4] the Policy refers to the grievance being "examined" and an "intervention strategy being formulated" by the Grievance Manager, who is the complainant's "immediate line manager", or, if they are the subject of the grievance, that person's manager. 2. We do not understand Ms James to contend that the appointment of an external organisation to investigate the Grievance amounted to a detriment but rather that the appointment of OCM amounted to a detriment because OCM was biased and as a consequence she was denied the benefit of a fair and impartial investigation. 3. That Ms James was not involved in the selection of OCM and that OCM was paid for its work are unremarkable matters and do not, as Ms James appears to contend, support the inference being drawn that OCM was biased and failed to conduct an impartial investigation. 4. Many of the criticisms made by Ms James about OCM are an expression of disagreement with facts found by OCM or allegations made by people interviewed by OCM and recorded in its report. The evidence reveals that the method of investigation was entirely orthodox. The transcript of the two-hour interview on 11 October 2017 with Ms James reveals that OCM gave Ms James a reasonable opportunity to particularise the Grievance and to identify the alleged perpetrators of her mistreatment. When she did not attend a second scheduled interview, OCM sought to clarify aspects of the Grievance with Ms James in a series of emails and telephone conversations. OCM invited Ms James to nominate people they should interview and to provide any additional material she wished to submit. OCM interviewed or attempted to interview the five people nominated by Ms James. OCM interviewed the alleged perpetrators and put to them the allegations made by Ms James. OCM reviewed the material gathered in the course of its investigation. The findings that the 21 allegations made by Ms James were not substantiated were open to OCM on the available evidence. 5. That the report recorded several unflattering comments made by interviewees about Ms James cannot be said to imply bias on OCM's part, as Ms James appears to contend. There is no evidence to suggest that OCM manufactured or misrepresented those comments. 6. With respect to Mr Counter's failure to interview Ms Hellams in relation to allegations made by Ms James about Ms Singer, the contention that this gave rise to conflict of interest is misconceived. In addition, we note that Ms Hellams' role in relation to the conduct of the investigation was limited to assisting Mr Counter to make arrangements to interview witnesses he identified may be able to assist in that investigation. 7. The premise on which this allegation rests ─ that OCM was biased and, as a consequence, Ms James was denied the benefit of a fair and impartial investigation ─ is not made out. Nor, in our view, can it be said that, in circumstances where the Grievance was directed at many senior managers within Corrective Services, the decision to commission an external organisation to investigate it subjected Ms James to a detriment. Refusal to commission an external review of the OCM report 1. While the Grievance Policy gives complainants a right to request a review of the "examination of the grievance", it does not, as Ms James appears to suggest, give a complainant aggrieved by the outcome of that examination the right to have it reviewed by an external body. Mr Baldi reviewed the OCM report and rejected Ms James' assertion that she had been denied procedural fairness. In circumstances where the Policy did not give Ms James a right of external review, Mr Baldi's refusal to accede to Ms James' request did not amount to a detriment. 2. Even if it is accepted that by not commissioning an external review of the OCM report, or at least an internal review conducted by a person who had no role in handling the grievance, Ms James was subject to a detriment, for the following reasons we are not satisfied that one of the real, genuine or true reasons that such review was not conducted was because of Ms James' participation in the James No 1 proceedings. 3. The explanation given by Mr Baldi for refusing to accede to Ms James' request for a "further review" was plausible. In his view, Ms James had been given the opportunity of having her grievance investigated by an external party, an opportunity not usually afforded to employees. He considered that opportunity to be adequate, if not generous. Having examined the OCM report, he rejected Ms James' assessment that she had been denied a reasonable opportunity to put her case. In circumstances where considerable resources had already been expended in investigating the Grievance, Mr Baldi's decision to refuse to accede to Ms James' request is hardly surprising. 4. Allegation 2 is not substantiated. Allegations 3 and 9: failing to grant Ms James' request to act up as a MOSP, provide her with promotional opportunities and placing her on a transitional plan 1. To put the submissions made by the parties in context, it is useful to set out the history to Ms James being placed on the transitional plan and her request to "act up" as a Manager Offender Support Programs (MOSP). Within the Corrective Service hierarchy, a SSAPO is immediately below and reports to a MOSP. 2. In April 2016, Dr Martin adopted the recommendation made by Ms Anderson and transferred Ms James from the Windsor complex, where Mr Calder was working, to the Silverwater Correctional Centre in the role of a SAPO. 3. On 16 November 2016, Ms James requested a transfer to the Emu Plains Correctional Centre to reduce her daily commute. At a meeting with Ms James on 12 January 2017, Dr Martin agreed to that request. In a file note of that meeting, Dr Martin recorded: "Rita to move to the Senior Services and Programs Officer role at Emu Plains for up to 6 months, tentatively from Monday 23 January 2017 to ensure involvement in service/program provision… ; A review to occur in 2-3 months with a focus on how Rita is going in the role, as well as an update on the IDATP program/roles; High level management oversight to occur through the MOSP, and peer support to be provided through Karen Meehan." 1. In an email to Ms James sent on 17 January 2017, Dr Martin attached a "transitional plan" (the Transitional Plan), stating that it had been drafted "in recognition of your request for support". 2. In reply, Ms James stated that she was reluctant to sign that plan because: 1. "I am already a Senior SAPO and find no reason as to why I need a Transitional Plan to transition into a role I have already been doing. (Is this usual practice for someone when moving to same position, different site?) 2. This is supposed to be a support document however, it is basically a role description for a Senior SAPO with extra items added to it. I am required to adhere to my role description anyway as an employee of CSNSW so see no reason why mine should be more detailed than others working in this grade. 3. Why does my Transition Plan need to be documented weekly? We clarified during the meeting I believe that there are no issues with my work performance and therefore feel this is more a way of CSNSW." 1. In an email to Ms James sent on 20 January 2017, Dr Martin stated that the plan had been developed because "staff often want more detailed descriptions of duties than what a role description contains". She asserted that the aim of developing the plan was to provide clarity, as the TAPO role Ms James had been performing is different to the SSAPO role at Emu Plains. Dr Martin concluded that "at this point" Ms James was not required to sign the Transitional Plan and asked her to discuss it further with her managers. 2. The three-page Transitional Plan lists six "capabilities" of a S/SAPO: personal attributes (act with integrity), relationships (commit to customer service), results (deliver results), results (thinks and solve problems) business enablers (technology), people management (optimise business management). Against each capability is listed "standard expected", "behavioural indicators", "examples" and "expected outcomes". The plan language is drafted in broad terms, for example, under the heading "personal attributes": "Examples Treat all with dignity and respect Adhere to the Code of Conduct & ethical framework Adhere to a set of core values that are represented in decisions/actions Expected outcomes Ensure all interactions with staff and inmates are in a professional manner. All issues to be discussed with MOSP prior to being escalated elsewhere." 1. The following note appears at the foot of the Plan: "Note: This document is for the purpose of supporting the employee to transition into the role of SSAPO & to fulfil the required capabilities. • This transition plan will be reviewed on weekly basis by your MOSP; • All meetings and conversations/advice/assistance in relation to the transitional plan will be documented." Ms James requests opportunity to act up as a MOSP 1. On commencing at Emu Plains, Ms James reported to the acting MOSP, Ms Annette Wood, who in turn reported to the Acting Regional Support Director Manager Metro, Ms Cindy Moore. Before commencing as Regional Manager in January 2017, Ms Moore had little contact with Ms James. Ms Moore was not involved in developing the Transitional Plan. In these proceedings she claimed that it was her understanding that the Plan had been prepared to assist Ms James transfer from a TAPO role in IDATO to a S/SAPO at Emu Plains. 2. On 9 February 2017, Ms James emailed Ms Moore expressing interest in a temporary MOSP position which had become available. Ms Moore responded that because she was on a "trial" placement working through a transitional program with a set review period, she was ineligible for acting-up opportunities. In these proceedings Ms Moore claims that her use of the word "trial" in that email was an error and she had meant "temporary". 3. Ms James responded, stating that she was neither on a trial placement nor a transitional plan and repeated her request to be considered for higher duties. Four days later Ms James sent a further email to Ms Woods, copied to Dr Martin, questioning Ms Woods' decision to appoint Ms Martina Kos to the acting MOSP position. In addition, in that email Ms James asked Ms Moore several questions about Ms Kos' appointment, including whether it had been approved by the Commissioner, whether Ms Kos would be paid when checking emails on her days off and whether the relevant paperwork for flexible working hours had been submitted. Ms James stated that she requested that information because she had a "current victimisation claim" with NCAT and believed that Corrective Services' actions in not giving her the opportunity to act in a MOSP role amounted to victimisation. 4. In an email in response, Ms Moore stated that were several reasons for her decision to appoint Ms Kos and she "was not required to justify [that decision] to you". 5. In these proceedings, Ms Moore stated that she had received advice from Human Resources that she was not required to call for expressions of interest before appointing Ms Kos because Ms Kos had been assessed as suitable to be placed in the talent pool for Grade 9/10 roles (a MOSP is a Grade 9/10 ). She stated that Ms Kos was a member of her team and, in her opinion, an accomplished S/SAPO. She pointed out that while Ms James was in the talent pool for Grade 7/8 roles, she had not been assessed as suitable to be placed in the talent pool for Grade 9/10 roles. She stated that while not being in the Grade 9/10 talent pool of itself did not render Ms James ineligible to be considered for MOSP roles, nonetheless in making temporary appointments, preference was generally given to employees in the relevant talent pool. Ms James makes her second request to act up as a MOSP 1. On 17 May 2017, following a staff meeting, Ms James approached Ms Moore and requested that she be appointed to the acting MOSP role, then held by Ms Kos. 2. Ms Moore claimed that she felt uncomfortable with the way Ms James raised the issue, especially because she did so in front of other staff. She claimed that Ms James' voice was loud and her tone "urgent and firm". Ms Moore gave this account of her conversation with Ms James: CM: I'm not in a position to put you in the MOSP role at this point, but I encourage you to include higher duties opportunities as a development goal within your "myPerformance Agreement" that will be developed with Ms Kos. RJ: I'll email you with my request to include doing the MOSP role. CM: No, you will need to talk to your MOSP about it. Your "myPerformance Agreement" is with your MOSP. RJ: Because you don't want to receive it I'll send it to Anne-Marie Martin. CM: No, you need to send it to your MOSP. You don't need to go outside the chain of command and bring in people who don't need to be involved. The development goal needs to be included in your myPerformance Agreement if that is the role you are aiming for. 1. Ms James broadly agrees with Ms Moore's account but denies speaking in a loud voice or "speaking at" Ms Moore. 2. Later that day, Ms James sent Dr Martin a lengthy email stating that she was writing to her directly because she had been instructed not to email Ms Moore who believed "I was not following the chain of command". She stated that Ms Moore informed her that Mr Jacob Jackson had been appointed to the vacant MOSP role because he is more experienced in "therapeutic environments". She went on to question that decision, pointing out that she had 15 years' experience working in therapeutic environments and "much more experience in a custodial setting" than Mr Jackson. Referring to their meeting on 12 January 2017, Ms James asked "Why am I being prevented from doing the very thing that you suggested I do?". She stated that since being appointed as a S/SAPO she had "done everything she was requested to do". She asserted that Ms Moore had refused her request for development opportunities, gave her "no follow up at all" and "left her in limbo". She asked Dr Martin to put in writing her plans for her and to "direct" Ms Moore for "refusing me an opportunity to act up in a higher duties role". 3. Dr Martin replied that Ms James should raise her concerns with her MOSP "before going higher". She stated that, as a hiring manager, Ms Moore was able to decide who to assign to a role. She encouraged Ms James to consider opportunities to develop skills while working at Emu Plains, such as "training at the academy, shadowing, seeking support/guidance". Two further MOSP roles 1. In closing submissions, Ms James referred to two other MOSP roles for which she had unsuccessfully applied. There is no reference to those roles in the Amended Points of Claim, which is in the form of a statement, nor in Ms James' detailed written response to the statement affirmed by Ms Moore. When questioned by Ms James in these proceedings, Ms Moore claimed to have no knowledge of those applications. Given the dearth of evidence about these two purported applications, it is not possible to assess whether the purported failure to appoint Ms James to those roles amounted to victimisation under s 50 of the Act. The Transitional Plan: a detriment? 1. Ms James contends that being placed on the Transitional Plan she was subjected to a detriment because, first, it was designed as a tool to performance manage her, and ultimately to drive her out of Corrective Services. Second, it rendered her ineligible to act up in a MOSP role. 2. The only practical impact of the Plan, apart from rendering Ms James ineligible to apply for a MOSP role, appears to be that throughout the period Ms Wood acted as Ms James' MOSP (23 January 2017 to 4 March 2017), she met with Ms James each week and kept records of those meetings. When Mr Jackson took over the MOSP role in June 2017 it would appear that the Plan was all but forgotten. Mr Jackson claims that he knew Ms James was on a Transitional Plan, which she had not signed and which he had not sighted but was not aware that it required him to meet with Ms James each week. 3. The evidence reveals that Ms Moore was of the view that while Ms James was on the Plan, she was ineligible to apply for acting MOSP roles. It will be recalled that in an email sent on 15 February 2017, in response to Ms James' first expression of interest to act in a MOSP role, Ms Moore stated: [B]ut given you are on a trial placement and working through a Transitional Plan with a set review period I am not in a position to consider you for an acting up opportunity. 1. Objectively assessed, being deemed ineligible to apply for acting MOSP roles amounts to a loss, specifically a loss of opportunity. We find that being placed on the Plan amounted to a detriment. 2. In addition, we find by not promoting Ms James to act in a MOSP role, Corrective Services subjected Ms James to a detriment. On the ground of: being placed on the Transitional Plan 1. Ms James questions the bona fides of Dr Martin's claim that the Transitional Plan was developed to "articulate the requirements of her new role and to support her move to her new role at Emu Plains". She contends that the real reason the plan was developed was to performance manage her, to prevent her from returning to the IDAPT, and, ultimately, to drive her out of Corrective Services. 2. In support she points to, among other things: 1. her view that the Plan contained little additional information to that already contained in the S/SAPO position description; 2. the requirement that the Plan "be reviewed on a weekly basis by your MOSP"; 3. the email to Dr Martin sent on 22 August 2017, in which, after referring to the plan, A/Director June Wong wrote: Given that it has now been 8 months and there has been nil or very minimal changes, is it sufficient to demonstrate that [Ms James] does not meet the capabilities of 7/8 classification? 1. Before Ms James' transfer to Emu Plains, concerns had been raised with Dr Martin about aspects of Ms James' performance. Ms Anderson had reported a history of conflict between Ms James and other IDAPT staff. In addition, as noted, Dr Martin had received reports of concern from Mr Calder. Ms Wong's reference to "nil or very minimal changes" is consistent with a finding that before 22 August 2017 Corrective Service managers held the view that Ms James' performance and/or conduct needed to change. It is plausible that the Plan was designed at least in part to address those concerns. 2. Dr Martin vehemently denied that that the reason she developed the plan was to set Ms James up to fail. She gave a plausible explanation for her decision to place Ms James on the Transitional Plan. It is unsurprising that Dr Martin would be keen to ensure that Ms James was given, and was seen to be given, guidance about her new role, especially because it was likely that the decision to transfer Ms James would come under scrutiny. 3. Ms James' claim that senior managers, including Dr Martin, took a dim view of her actions in prosecuting the First Complaint in NCAT, is plausible. Equally it is plausible that the Plan was developed at least in part to address real or perceived concerns about Ms James' performance. Nonetheless, the available material does not support the inference being drawn that one of the real, genuine or true reasons Dr Martin placed Ms James on the Transitional Plan was because of her participation in the NCAT proceedings. On the ground of: not appointing Ms James to the acting MOSP roles The decision to appoint Ms Kos to the acting MOSP role in February 2017 1. When Ms James commenced at Emu Plains, she and Ms Moore had had little to do with each other. We accept Ms Moore's claim that she was not aware that Ms James had lodged a grievance about the Director and/or commenced the James No 1 proceedings. While commenced in 2016, those proceedings were not heard until March 2017 and the Tribunal did not hand down its decision until August 2017. 2. In our view, it is entirely plausible that having worked with Ms Kos, Ms Moore formed the view that she was an accomplished S/SAPO. It is also plausible that because Ms Kos, and not Ms James, was assessed as suitable to be included in the 9/10 talent pool, Ms Moore considered Ms Kos the favoured candidate. As far as Ms Moore was concerned, Ms James was then something of an unknown. 3. However, when the decision to appoint Mr Jackson was made three months later, Ms James was no longer an unknown. In defending the decision to appoint Mr Jackson, Ms Moore claimed that he was the "standout candidate"; a psychologist with significant experience in managing mental health, self-harm and substance abuse programs in the wider community. Nonetheless, by that time Ms Moore had formed the view that Ms James was unsuitable to be appointed to an acting MOSP role. By then, among other things: 1. Ms James had challenged Ms Moore's decision to appoint Ms Kos and inferred that the arrangements made for her appointment contravened the terms and conditions of employment; 2. as Ms Moore perceived it, she had been talked down to by Ms James in a loud voice, in front of other staff, when Ms James expressed interest in the role eventually given to Mr Jackson; 3. Ms Woods had reported to Ms Moore that she was having difficulties managing Ms James. Ms Woods claimed that she did not feel "safe" being in the same room with Ms James and felt "everything I might say may be twisted and held against me"; 4. Ms Kos had reported to Ms Moore similar problems managing Ms James; 5. Ms James had sent several emails to Ms Moore, some copied to Dr Martin, which Ms Moore considered to be "accusatorial, inappropriate and on some occasions unprofessional and disrespectful". 1. The basis for Ms Moore's view that Ms James was ineligible to apply for acting MOSP roles while on the Transitional Plan, is unclear. The Plan itself does not state that Ms James is ineligible to apply for acting MOSP roles while on the Transitional Plan, nor do the notes made by Dr Martin of her meeting with Ms James on 12 January 2017. In addition, as pointed out by Ms James in "My performance Planner" signed on May 2015, "Obtaining a job opportunity as MOSP" was listed by Ms James as a "measure of success". 2. Nonetheless, even if it is accepted that Ms Moore was mistaken in her belief that being on the Transitional Plan rendered Ms James ineligible for acting MOSP roles, it does not follow, as Ms James argues, that that claim was a ruse to disguise her true reasons for not appointing Ms James to the MOSP role. 3. In fairness to Ms James, it ought to have been made abundantly clear to her from the outset that while she was on the Plan, she would be ineligible to apply for acting MOSP roles, how long that period of ineligibility was likely to last and any specific steps she needed to take to enhance her chance of being appointed to those roles. OCM made much the same point in its report. Nonetheless, it does not follow that one of the real, genuine or true reasons Ms Moore considered her ineligible to apply for MOSP roles and did not appoint her to the two roles for which she expressed interest, was Ms James' participation in James No 1. Allegation 6: attempting to "discipline" Ms James for leaving work early 1. At 11:30am on 2 August 2017, after learning that the original Tribunal had found her complaint of victimisation to be substantiated, Ms James sent an email to her then MOSP, Mr Jacob Jackson: I have decided to go home as I found out the result of my tribunal hearing today. I WON!!!!!!! I can't concentrate and therefore the relief I feel is immense. My emotional reaction to this is more than I expected so I will be back tomorrow after I calm down a bit and go and celebrate with my family. This is something I need to tell them in person. 1. Ms James sent an email in the same terms to her colleagues at Emu Plains. 2. The following day, Mr Jackson met with Ms James and rebuked her and said, "You can't abandon your post in the middle of the day without a reasonable excuse and without first seeking permission". He pointed out that this was the second occasion she had left work early without authorisation. Ms James defended her actions and said she had informed her colleagues that she was going home and the reasons for doing so. 3. Following that meeting, Ms James emailed Mr Jackson and requested that he put in writing the policies he asserted had been contravened, to "support the accusation that she had 'abandoned her post'". 4. Referring to the first occasion when she allegedly "abandoned her post", Ms James pointed out that she had advised Mr Jackson by email that she would be "going home and she did not wish to return to Emu Plains". She pointed out she sent that email at 3:28 pm and therefore "was entitled to leave as per the flex guidelines". (Ms James' core hours of work were 10 am to 3pm). Apparently, Ms James left work after becoming upset following a discussion with a colleague. 5. With respect to the second occasion, Ms James pointed out that she had informed staff that she would be leaving early. She went on to state that Mr Jackson had not responded to multiple emails sent by her and his failure to "get on top" of his emails made it difficult for her and other members of staff. Ms James asserted that Mr Jackson was aware that she was "emotionally affected" by the pressure of the NCAT proceedings. 6. Mr Jackson said that he was hesitant to reply to Ms James' email, claiming that in his experience Ms James spent a significant amount of time analysing emails and requiring multiple responses, increasing his already difficult workload. He drafted an email in response but after discussing it with Ms Moore, decided against sending it. 7. When questioned by Ms James in these proceedings, Mr Jackson claimed that he was not aware that, as asserted by Ms James, within Corrective Services, the expression "abandoning your post" meant leaving your colleagues in danger. He said in using that expression when he met with Ms James on 3 August 2017, he had not intended to imply that she had endangered her colleagues, but rather that her actions had ramifications for her colleagues. He pointed out that Emu Plains staff carried heavy workloads, worked in a high-pressure environment and were often uncontactable throughout much of the day because they were not permitted access to laptops or mobile phones when meeting with inmates. He stated that in those circumstances he was disappointed with Ms James' decision to leave work without notice, especially given that she was responsible for other staff. Consideration 1. In our view, it is not surprising that Mr Jackson counselled Ms James for leaving work early without notice, especially given that she was responsible for supervising staff. It was a relatively mild response to a breach of the requirement that staff be at work during core hours. It is noted that the PSA delegate, Ms Susan Pasmick, who was critical of aspects of Ms James' treatment by management, agreed with Mr Jackson's assessment that Ms James' action was inappropriate. 2. Indeed, while Ms James defended her action on the basis that it was an "emotional reaction" to the news of her victory in James No 1, in cross-examination Ms James conceded that her use of the term "celebrate" in her email to staff was inappropriate. 3. It appears that Ms James' primary complaint in relation to this allegation is Mr Jackson's use of the expression "abandoning your post". We accept Mr Jackson's claim that in early August 2017 he was not aware that it carried the meaning Ms James contends it carries in a Corrective Services environment. 4. Nevertheless, being counselled by Mr Jackson, arguably, amounts to a detriment. The real issue is whether one of the real, genuine, or true reasons Mr Jackson counselled Ms James was because she alleged that she had been sexually assaulted by Mr Calder and went on to participate in the NCAT proceedings. For the following reasons we are not satisfied that this is established. 5. First, the reason given by Mr Jackson for raising his concerns with Ms James is plausible. He was responsible for 40 staff working over two sites and Ms James' departure left SSOPs working at Emu Plains without a supervisor. Her early departure was not prompted by a medical emergency or other compelling factor. 6. Second, Mr Jackson's response to Ms James' early departure from work could not be described as heavy-handed or disproportionate, which might have tended to suggest that his actions were motivated by reasons other than those he gave. 7. Third, there is no evidence to suggest that Mr Jackson was ill-disposed towards Ms James when they met on 3 August 2017. Ms James agrees with Mr Jackson's assessment that up until that time, they enjoyed a good working relationship. 8. Fourth, Mr Jackson's claim that he was not especially interested in the original NCAT proceedings is plausible. When he counselled Ms James, he had only been working at Corrective Services for about eight months and supervising Ms James for about eight weeks. He was not working at Corrective Services when Ms James alleged Mr Calder harassed her. Nor did he have any involvement in the NCAT proceedings. We accept his claim that in taking on a significant new role in Corrective Services, Mr Jackson had little time for or interest in a historic dispute between Ms James and other managers. He impressed us as a new manager, attempting to manage a heavy workload in an area in which he had little experience. 9. This allegation is not established. Allegation 5: failing to provide Ms James with appropriate support after she reported a Work Health and Safety incident in March 2017 1. Ms James alleges that Corrective Services failed to provide her with "appropriate support" after she reported a Work Health and Safety incident. While the amended Points of Claim state that the incident occurred in March 2017, in these proceedings Ms James confirmed that it occurred on 24 April 2017. 2. The incident occurred during an EQUIPS Foundation course held at Penrith Community Correction Office, co-facilitated by Ms James and Ms Joanne Vigors of Stepping Stones Counselling Services. The EQUIPS course was designed to provide strategies to former inmates to assist them to modify behaviours which might contribute to reoffending. 3. On 26 April 2017, Ms James spoke to Mr Jackson about the incident. At that time he was working with, but not supervising, Ms James. Ms James agreed with Mr Jackson's assessment that at that time they had a good working relationship. With respect to the incident, she stated that he "was very good and provided her with support" and that she had did not ask him to do anything further. 4. Later that day, Ms James lodged an online "48H incident/injury report" (the Incident Report) : Offender during EQUIPS group constantly disrupted the group and then refused to leave when asked. Situation difficult to manage due to 2 females being present and no other staff. When assistance requested from only one available CommCorr staff member, writer was advised that usually, it would be required to call police however, no phone available to do this, other issues of concern relating to this including current "extreme caution" alert for this offender that was never conveyed to the writer prior to entering the Group 1. According to Mr Jackson, after informing Ms James' then MOSP, Ms Cos, about his discussion with Ms James, he took no further action. He claims, and we accept, that he was not aware that Ms James had lodged the Incident Report and had not seen that report until asked to prepare an affidavit for these proceedings. Consideration 1. As framed, this allegation concerns the Secretary's failure to provide Ms James with support following the incident on 24 April 2017. While conceding that she did not ask Mr Jackson for any further support after their discussion or request support in her written notice of the incident, Ms James contends that it ought to have been apparent that she needed support because of the objective seriousness of the incident. Ms James points out that the course was held in an isolated location, in the evening, with former inmates, some with a history of violent behaviour. 2. The Secretary contends that it cannot reasonably be argued that Ms James was subjected to loss, damage or injury, given that she received support from Mr Jackson and did not request any further support from him or state in the Incident Report that she required support. 3. For current purposes we assume, but do not decide, that the failure by Corrective Services to take further action amounts to a detriment. However, was one of the reasons for that lack of action because Ms James participated in the NCAT proceedings? 4. It cannot reasonably be argued that one of the reasons Mr Jackson failed to provide further support was because of the initiating complaint. He was not asked for and did not consider that further action was warranted. Further, we accept his claim that when Ms James told him about the incident, he was not aware of the NCAT proceedings. 5. It is not apparent from the available material whom within Corrective Services was responsible for dealing with incident reports of the type the subject of this allegation. Nor is there any evidence about how such reports are generally dealt with, whether the practice is to contact the reporting employee to ask if they require support and/or to investigate the reported incident. There are any number of possible explanations for the failure to respond to the Incident Report. Whoever was responsible for dealing with such reports may have formed the view that as Ms James did not expressly request support, none was needed. Alternatively, the failure to respond to the incident may have been an oversight. A further possibility is that suggested by Ms James, that the person(s) responsible for dealing with such reports, decided or was directed not to respond because they were ill-disposed towards Ms James on account of participating in the NCAT proceedings. The available material puts the latter hypothesis no higher than a possibility. 6. This allegation is not established. Allegation 7: requesting that Ms James attend a meeting with Dr Martin and others in August 2017 to develop a return to role plan 1. In Allegation 7, Ms James contends that by requesting that she attend a meeting with Dr Martin, Ms Hellams and Ms June Wong to discuss her return to work at IDAPT, she was subjected to a detriment. 2. On 2 August 2017, the Tribunal handed down its decision in James No 1. The Tribunal found Ms James' complaint substantiated and that the decision to move Ms James on a temporary basis from her substantive position as a TAPO in the IDATP at John Moroney, amounted to victimisation in contravention of s 50 of the Act. 3. Following a discussion with Ms Wong and Dr Martin on 22 August 2017, Ms Hellams emailed Ms James stating: We would like to organise a meeting with you to discuss the process to plan and support your return to work at the Windsor complex. Issues to be discussed will be confirming you have medical clearance (that working on the site will not adversely impact your health and wellbeing), available roles, work expectations and supervision arrangements. 1. Ms Hellams proposed that the meeting be held on 28 August 2017 and invited Ms James to bring a support person. 2. Ms James replied: [A]nother meeting I believe would be more detrimental to me than anything else ...I have no wish to be subjected to any further victimisation or bullying ... please advise in writing what the decision is ... For a suggestion, I would be happy to act in the available S/SAPO role at Dilwynnia as this seems to be a way of transitioning back to Windsor with minimal psychological impact on myself. 1. Ms Hellams responded: Throughout [the NCAT proceedings] you have advocated that your role is as a Senior SAPO with the IDATP program on the Windsor complex. Given the comments of the NCAT we are proposing to return you to [your substantive role ]. However, we wish to do that in a planned and supportive way. 1. On 23 August 2017 Ms James responded: I understand that however, throughout the process, I have also indicated a number of times that I am interested in development roles as well (ie. acting in 9/10 roles) and the tribunal notes also speak to that in that I have missed such opportunities as they arise. I have only just become aware the MOSP position at IDATP will be available again for an EOI opportunity as of the 1st of September. I wish to advise that I have acted in a Senior SAPO role now for over 3 years and as such, believe that I do not need a Return to Role plan as I am very much aware of what my responsibilities regarding this are. The role as MOSP for DIL and EMU Plains is also still vacant until Cindy Moore returns and I have a number of times expressed an interest in performing that role as well. My delay in returning to the Windsor Complex is not of my own doing and I believe that not enabling me to access these two positions when I am obviously qualified for them (even if i wasn't, development opportunities are for that very reason) would be continuing to cause me detriment. If for whatever reason I would not be suitable then I would appreciate advice as to the reason why please? I have been trying for months now to get a response as to why I would not be suitable for the DIL/EMU role however this has been refused on one occasion and ignored on two other occasions. l take it through the lack of response from Cindy Moore and Jacob Jackson that there is no valid reason why this should not happen. Additionally, this is in my development plan which was encouraged recently by the Secretary in order to identify career goals. I do not wish to delay my career any longer than has already been the case. The People Matter response by CSNSW also highlighted that there would be more career development opportunities however, this has yet to materialise when a MOSP is given two roles to occupy rather than one which also prohibits the opportunities for other to act up as well. As previously advised, I would prefer the correspondence via email as I believe this will be better for my wellbeing. 1. Over the following weeks, Ms Hellams continued to correspond about the request that Ms James meet to discuss the proposed return to John Moroney. Ms Hellams wrote "as part of the usual employment relationship, managers must be able to have conversations with staff ... we would like to speak to you as part of your return to a Senior SAPO role in IDATP". 2. In an email sent on 18 September 2017, Ms James responded that she would not be attending the meeting scheduled for later that day as her support person was unavailable. Later that day Ms James sent Ms Hellams a further email outlining the background to her request to return to her "substantive position" as a SSAPO in IDATP. She concluded by writing: 9. I cannot advise whether l have medical clearance to return to the role at IDATP that you are suggesting because I have never worked in the role of a generic S/SAPO in that program. I believe that even though the role name is the same, it is completely different to the role I was performing before going on Workers Compensation. Additionally, I have been advised by staff within the IDATP program that the culture there (bullying) is worse than ever. People are afraid to speak out about it as already advised to CSNSW on multiple occasions (with very little Is any action being taken) and there is a current grievance that has been lodged against a manager there. I am also advised that another grievance or complaints soon to be lodged however, whether this is a bullying claim, I have not been advised although I am told it is against another manager. I have a staff member who is willing to confirm this for you if required once she returns from leave. 10. I currently feel unsafe returning to the IDATP. It was stated at the time of lodging my grievance (and also during the first grievance) that a number of changes had been made and the culture now was better. I dispute this based on what I have been advised from the staff there. During my grievance process, there were also a number of recommendations that were made which I doubt have been implemented however, if they have been, I would like it to be confirmed (the recommendations and the relevant changes that have been made and followed up) In writing so that I can make the relevant enquiries prior to putting myself at risk. 11. If CSNSW insists upon me returning to a role as S/SAPO at the IDATP then I would like confirmation that I will be protected from targeting bullying/harassment behaviour and also that I will be given the same opportunities as everyone other staff member, that being opportunity to act up in a role that is for the purpose of development i.e. as acting Therapeutic Manager. MOSP etc. In summary Cathryn, I do not believe that CSNSW have made any lasting changes to the work environment at IDATP. In fact, they have promoted those staff that are the perpetrators of bullying and harassment into more powerful positions with a much higher power base. For this reason, I feel unsafe returning to IDATP before ·the above can be accommodated. I would indeed like a speedy resolution to this as I have previously advised the effect it has and continues to have on me psychologically. A detriment 1. Ms James has failed to articulate how she was subjected to a loss or damage because of the request by management to meet with her to discuss the proposed return to her substantive position. A review of the correspondence does not support Ms James' suggestion that Ms Hellams sought to intimidate or bully her. No action was taken when Ms James refused to meet. Six weeks after the request for the meeting was made, Ms James left work and remained off work for 24 months. 2. While it may be that Ms James believes that negotiations surrounding her return to work should have been conducted by email, the request to meet face to face was neither unusual nor unreasonable. Objectively assessed, we are not persuaded that requesting that Ms James meet with Dr Martin and other managers to discuss her return to work in her substantive position amounted to a detriment. But even if we are wrong, we are not persuaded that one of the real, genuine or true reasons Ms James was requested to meet in person was her participation in James No 1. Allegation 8: requesting a meeting with Ms James to discuss complaints made against her by other staff 1. On 3 October 2017, Ms Moore emailed Ms James requesting that they meet on 6 October 2017 at 10:00am to discuss a complaint of "unprofessional behaviour displayed towards other staff at EPCC [Emu Plains Correctional Centre] on 21 September 2017". Ms Moore invited Ms James to bring a support person. 2. The complaint referred to by Ms Moore had been made by Ms Kelly-Anne Stewart, Principal Advisor Women Offenders, Corrections Strategy and Policy. Ms Stewart alleged that on 21 September 2017 following a meeting at Emu Plains to discuss operational issues concerning the Women's Pathway program and the IDAPT, she was approached by Ms James who demanded to know why she had not been invited to that meeting. Ms Stewart described Ms James' conduct as being "confrontational, aggressive and disrespectful". In her view, Ms James was "extremely agitated and visibly angry". 3. In an email to Ms Moore sent on 26 September 2017 reporting that incident, Ms Stewart explained that Ms James had not been intentionally excluded from the meeting. The meeting had originally been scheduled for 4 September 2017, but Ms Stewart became unwell and the meeting was rescheduled to 21 September 2017. Ms Stewart claimed that when Ms James declined the email invitation to attend the original meeting, she mistakenly assumed after consulting a colleague that Ms James was no longer working at Emu Plains. 4. In a statement prepared for these proceedings, Ms Stewart, who was not required for cross-examination, gave this account of the incident which prompted her email to Ms Moore on 26 September 2017: Ms James came to the office when we were in mid-sentence, Ms Aicken got up to let her in and then without excusing herself or waiting for a pause in the conversation, Ms James proceeded to speak in an inappropriate and aggressive manner, her voice was shaking and loud and she appeared highly agitated. She said words to the effect of: RJ: I can't understand why I was left off this meeting. Corrective Services is out to get me. Did IDAPT have anything to do with this? Denise Clarke was intimidated by the meeting and I should have been there to support her. I said words to the effect of: Rita, this is an inappropriate communication method. You need to calm down. IDATP have nothing to do with the invite list. I cannot recall right now why you were not on the list but it was not deliberate. The meeting was very informal, there was no written agenda and the purpose was simply to talk about referral processes relating to the Mothers and Children's Program. All staff spoke freely in the meeting with no sense of anyone being intimidated. 1. While she denies speaking in a loud voice to Ms Stewart, Ms James does not otherwise challenge Ms Stewart's account of that conversation. She concedes that her response to not being invited to the meeting convened by Ms Stewart was disproportionate but contends that it was the result of being mistaken about the reason she was not invited. She states that by that stage she had assumed it was "another example of the continuing victimisation" to which she had been subjected. She states that by that time her treatment by management had so badly affected her mental health that it manifested in anger, which she contends was a "covering emotion for … fear and desperation". Ms James refuses to meet 1. In an email sent on 3 October 2017 and copied to Mr Baldi, Ms James asked Ms Moore to provide "a copy of the complaint and details relating to who lodged this complaint prior to our meeting on Friday". 2. After consulting HR adviser, Ms Glen Singer, in an email sent on 6 October 2017 at 7:30am, Ms Moore responded, stating that the matters she wished to discuss were "behaviours in the workplace that are inappropriate, unprofessional and are not cognisant with Justice values", specifically: "Confrontational in the workplace toward other staff members You used accusatorial terms in your discussion which contained or implied blame or strong criticism of other staff members Aggressive behaviour in the workplace toward other staff members Disrespectful when discussing points relating to other staff or your colleagues." 1. In an email sent on 6 October 2017 at 12:40pm referring to Ms Moore's statement that "The matters that I wish to discuss with you are about behaviours in the workplace that are inappropriate, unprofessional and are not cognisant with Justice values", Ms James stated that she was "appalled that I would be accused of such things without the benefit of procedural fairness". She wrote that "it appears that you have made a judgement already about the allegations that have been made". She stated that her concerns related directly to the language used by Ms Moore and gave as examples: " 'Confrontational in the workplace toward other staff members' - Confrontational behaviour is subjective and there is no detail about what behaviour is considered by the complainant to be "confrontational" 'You used accusatorial terms in your discussion which contained or implied blame or strong criticism of other staff members' - You have not advised me what these accusatorial terms are however, you appear to have already made a judgement that these are 'accusatorial'. How did I 'imply' blame and blame for what? 'Aggressive behaviour in the workplace toward other staff members'- What did I actually do that was perceived as aggressive? 'Disrespectful when discussing points relating to other staff or your colleagues" - How was I disrespectful and how did you come to this conclusion (or for that matter any conclusions as listed above) without discussing this situation with myself first?" 1. Ms James wrote that the language used by Ms Moore indicated bias and that she was not "the correct person to be handling such a matter". She stated that she believed this to be "a continuation of recent victimisation that has been apparent to me in recent months". She repeated her request to be provided with the name of the complainant and a copy of the complaint. 2. The requested meeting did not occur. Ms James left work on 6 October 2017 and did not return until October 2019. On the ground of 1. For current purposes we will assume, but not decide, that by asking Ms James to attend a meeting to discuss the complaint made by Ms Stewart, Ms Moore subjected Ms James to a detriment. 2. Ms Moore gave a plausible explanation for her decision to request Ms James to meet with her. She had received a report from a senior member of staff about a troubling incident involving Ms James. Ms James accepts that her response to not being invited to the meeting convened by Ms Stewart was inappropriate and disproportionate. Whether, as Ms James contends, the reason she responded in the way she did to Ms Stewart was because she felt targeted or under siege is not to the point. The issue is whether one of the real, genuine or true reasons Ms Moore responded as she did to Ms Stewart's report was because Ms James had participated in the NCAT proceedings. While Ms Moore was aware by that time of those proceedings, it is something of a stretch to suggest that was the motivating factor in her decision to request Ms James to meet with her to discuss the incident. 3. We are not satisfied that one of the real, genuine or true reasons Ms Moore requested Ms James to meet with her to discuss Ms Stewart's report was because she had made a complaint about Mr Calder and/or participated in proceedings in NCAT. 4. This allegation is not substantiated. Complaint of disability discrimination 1. In Allegation 10, Ms James contends that by not allowing her to act in higher duties as a MOSP on or around 17 May 2017 or otherwise provide promotional opportunities, the Secretary discriminated against her on the ground of disability in contravention of s 49D(2) of the Act. 2. To succeed as a claim of "direct discrimination" (s 49B(1)(a)), Ms James must establish: 1. that she has, had or is thought to have, or to have had, a disability: ss 4 and 49A of the Act; 2. that the conduct about which she complains falls within s 49D(2) of the Act; 3. that in respect of that conduct, the Secretary treated her less favourably than they treated, or would have treated, a person without her disability, real or presumed, in the same circumstances or circumstances that were not materially different (less favourable treatment); and 4. that one of the reasons for any less favourable treatment was Ms James' disability or presumed disability (causation). 1. For current purposes we will assume, but not decide, that Ms Moore, the key decision-maker involved in the disputed MOSP appointments, was aware that Ms James had been diagnosed by her GP as suffering from depression and anxiety. Less favourable treatment 1. In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 the High Court (Gummow, Hayne and Heydon JJ) explained that in undertaking the comparison required to determine whether less favourable treatment is established, it is necessary to identify the "circumstances attending the treatment given ... to the [complainant]" namely, "all of the objective features which surround the actual or intended treatment of the [complainant] by the ... 'discriminator'": at [223], [224]. 2. The objective features surrounding the two disputed appointments are detailed above. In short, Ms Moore considered that Ms James was ineligible to be appointed to a MOSP role because she was on the Transitional Plan. In addition, the people appointed to those roles, Ms Kos and Mr Jackson, were in the Grade 9/10 talent pool. Ms Moore had worked with Ms Kos who, in her opinion, had demonstrated that she was an "accomplished S/SAPO". By May 2017 when Mr Jackson was appointed, Ms Moore held concerns about the manner in which Ms James had interacted with her, Dr Martin and other staff. 3. We are not persuaded that Ms Moore's treatment of Ms James was less favourable than the treatment she probably would have afforded a hypothetical S/SAPO who did not have, or was not thought by Ms Moore to have, depression and anxiety, in circumstances not materially different to those of Ms James. Causation 1. Ms James made no submissions on this issue. There is no direct evidence that one of the reasons Ms Moore did not appoint Ms James to the MOSP role was because she had or was thought to have depression and anxiety. Nor does the available evidence support that inference being drawn. Consideration 1. The complaint of discrimination on the ground of disability is not established. COSTS 1. The Secretary seeks an application for the costs incurred in responding to Allegations 4 and 10, which Ms James abandoned in final submissions. 2. Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) creates the general rule that each party to proceedings is to pay their own costs: s 60(1). The Tribunal may only order costs "but only if it is satisfied that there are special circumstances warranting an award of costs": s 60(2). Section 60(3) sets out a non-exhaustive list of factors that may be taken into account in deciding whether there are special circumstances warranting an award of costs: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 1. The term "special circumstances" is not defined by the Civil and Administrative Tribunal Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. The discretion to award costs must be exercised judicially having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16].) 2. As a consequence of Ms James' actions in abandoning Allegations 4 and 10 at the eleventh hour, significant preparation and hearing time was thrown away. The Secretary was put to the unnecessary expense of defending those allegations. 3. In our view, special circumstances are established. Therefore, the discretion to award costs can be exercised. 4. Ms James perceives that she has been the subject of a series of injustices meted out by various managers within Corrective Services. Throughout these proceedings she focused on what she considered to be the shortcomings of, and mistakes made by, her managers and appeared unable to focus on the elements necessary to establish an allegation of victimisation or discrimination. 5. This is not a case where an applicant pursued a case they knew to be unmeritorious. We accept that Ms James held the genuine belief that the Complaint had merit. She attempted to comply with directions made by the Tribunal and to assist the Tribunal to use the allocated hearing time efficiently. While the Secretary's application is not unmeritorious, the balance of considerations does not favour the exercise the discretion to award costs in relation to Allegations 4 and 10. Orders 1. The Complaint made by Ms James and referred by the President of the Anti-Discrimination Board to NCAT on 25 February 2019 is not substantiated. 2. The application for costs made by the Secretary, NSW Department of Communities and Justice, is refused. ********** 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: 10 May 2021