Elder v Department of Education and Training [2004] NSWADT 153

CITATION: Elder v Department of Education and Training [2004] NSWADT 153 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Margaret Elder RESPONDENT Department of Education and Training FILE NUMBER: 031097 HEARING DATES: 2/02/2004-3/02/2004 SUBMISSIONS CLOSED: 03/11/2004 DATE OF DECISION: 07/28/2004

BEFORE: Behrendt L - Judicial Member; Antonios Z - Non Judicial Member; Schembri A - Non Judicial Member APPLICATION: Victimisation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Aleksovski v AAA Pty Ltd (2002) EOC ¶93-219. Commissioner of Police, NSW Police Service v Orr (EOD) [2001] NSWADTAP 16. CASES CITED: Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 Herring v Benevolent Society of NSW (1992) EOC ¶92-408 Hill v University of New England (1990) EOC ¶92-291 Riley v Western College of Adult Education (2003) EOC ¶93-253 APPLICANT REPRESENTATION: J Elder, agent RESPONDENT C Ronalds, barrister ORDERS: 1. That the applicant's claim of victimisation be dismissed

REASONS FOR DECISION 1 The Applicant, Ms Margaret Elder, had been a casual teacher for NSW TAFE, the respondent, for twelve years (1990-2002). She had been teaching at Baulkham Hills TAFE in the Aged Care, Disabilities and Introductory Vocational Courses 1997 until 2002. 2 In December 2001, Ms Margaret Elder became a support person for a student with disabilities, Ms Carol Murry, who wanted to make a complaint about the level of support that she had been receiving from one of her teachers at Baulkham Hills TAFE. 3 On 30 January 2002, Ms Elder attended a meeting with Ms Murry, as her support person, a meeting with the then Deputy Director of Baulkham Hills TAFE to discuss the complaint. 4 On 22 February 2002 she attended a meeting as Ms Murry's support person chaired by an officer of the Access & Equity Unit of the Western Sydney Institute of TAFE. 5 Ms Elder gave evidence that she had a meeting in February, early in the first semester 2003, away from the campus, with Ms Vella, the Head Teacher of the Community Services section at Baulkham Hills TAFE. Ms Elder gave evidence that, during this meeting, Ms Vella had told her that Ms Elder's continual support of Ms Murry might affect Ms Elder's relationship with the Department. Ms Vella gave evidence that it was Ms Elder, not herself, who had made the comment that advocacy for Ms Murry may affect Ms Elder's ability to continue teaching in the Community Services section. Ms Vella claims that she told Ms Elder at that meeting that she considered her a valued member of the teaching staff and that she would continue to be offered work. 6 Ms Elder was employed to teach the "Get Skilled" course in the second half of the first semester of 2002. The course ran from 9 May to 27 June 2002. 7 On 17 June 2002, Ms Murry informed the respondent that she would be making formal complaints in relation to her grievance. 8 In the second semester of 2002, which began in July, Ms Elder was not allocated any teaching at Baulkham Hills TAFE. 9 On 19 August 2002, Ms Murry lodged a formal complaint with the TAFE Institute of Western Sydney under the TAFE NSW Customer Policy. On 21 August 2002, Ms Murry lodged a complaint with the Anti-Discrimination Board alleging discrimination as a result of the actions of certain staff members of Baulkham Hills TAFE. 10 Ms Elder rang Ms Vella on 5 September 2002 and in that conversation inquired about teaching. She claims that Ms Vella told her that there was now a "core of teachers" to draw upon. Ms Elder gave evidence that she believed that she was part of that core since she had continuously worked at TAFE. During that conversation, Ms Vella mentioned that she was hoping to run a "Get Skilled" course in the second part of that semester. Ms Elder gave evidence that she had believed that, in this conversation, Ms Vella was offering her the teaching of that subject if it were run. Ms Vella gave evidence that she was only raising the teaching opportunity as a possibility, not making a firm offer of employment. 11 On 18 September 2002, Mr Laurie McGowan, the College Director of Baulkham Hills TAFE, convened a meeting. Ms Vella, Ms Elder and Ms Murry were in attendence. During the meeting Ms Vella became upset and left. Ms Elder gave evidence that she did not know why Ms Vella became so upset and claimed to have said to Ms Murry: "I won't work at Baulkham Hills TAFE again." 12 Ms Elder gave evidence to the Tribunal that she meant by her comment that she believed that she would not be allocated teaching again. Ms Murry gave evidence to support Ms. Elder's claim. She said that she had understood that Ms Elder had meant that, because of Ms Vella's attitude, Ms Elder's teaching allocation at Baulkham Hills TAFE would be affected. 13 Mr. McGowan gave evidence to the Tribunal that, during the meeting of 18 September 2002, he had heard Ms Elder say: "I will never work at Baulkham Hills TAFE again." 14 He said that he concluded from her statement that Ms. Elder did not want to work at the TAFE again. He passed this observation on to Ms Vella and Ms Julie Fugaccia, another teacher at the Baulkham Hills TAFE. 15 Ms Vella gave evidence that she had not approached Ms Elder to teach the "Get Skilled" course in the second part of the second semester because Mr McGowan had informed her that Ms Elder had stated in the meeting of 18 September 2002 that she had not wanted to teach at the TAFE again. Instead, Ms Vella appointed another casual teacher. 16 Ms Elder told the Tribunal that she had heard nothing more about teaching from Ms Vella and had concluded that the "Get Skilled" course must not have gone ahead. However, on 4 November 2002, Ms Elder gave evidence that she became aware that the course had been run and had been taught by a former student of hers. 17 Ms Elder was not allocated any teaching in 2003. 18 On 14 March 2003, the applicant made a complaint to the Anti-Discrimination Board alleging victimisation. The respondent received notice of this complaint on 23 March 2003. The matter was referred to this Tribunal on 13 August 2003. 19 Section 88(3) of the Anti-Discrimination Act 1977 requires a complaint to be lodged within six months after the date of the contravention. The President of the Anti-Discrimination Board has discretion to extend that timeframe. There is no evidence in this case that the President of the Anti-Discrimination Board exercised that discretion and it is not open to this Tribunal to extend the complaint. Commissioner of Police, NSW Police Service v Orr (EOD) [2001] NSWADTAP 16. This means that Ms Elder's complaint could only cover the actions of the respondent from the six months before 14 March 2003, namely 14 September 2002. The Complaint of Victimisation 20 The Applicant claims that, as a result of her support of Ms Murry's complaint against Baulkham Hills TAFE, she was no longer offered any teaching at that institution. 21 She alleges that she was victimised in a manner that is prohibited by s.50(1)(c) of the Anti-Discrimination Act 1977.Section 50 states: (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. 22 Ms. Elder claims that there was a breach of s.50(1)(b), (c) and (d). In the complaint from the Anti-Discrimination Board, the applicant only claimed a breach of s.50(1)(c). However, the jurisdiction of the Tribunal is defined by the content of the complaint and it is the referral of the complaint that is the source of the Tribunal's power. Commissioner of Police v Orr (EOD) [2001] NSWADTAP 16. The complaint made by Ms Elder to the Anti-Discrimination Board in her application filed 14 March 2003 articulated facts that were consistent with allegations of breaches of s.50(1)(b) and s.50(1)(d). The Tribunal therefore has jurisdiction to consider breaches of those sections by the respondent in this complaint. 23 Specifically, Ms Elder claims that she was not allocated any teaching in the second semester of 2002 and in 2003 as a result of her advocacy on behalf of Ms Murry. She asserts that, because of her active support of the student in complaints against Baulkham Hills TAFE staff, she was no longer allocated any teaching by Ms Vella. 24 Ms Elder denied unequivocally that she withdrew her teaching services from Baulkham Hills TAFE during the meeting of 18 September 2002. 25 She impressed the Tribunal as a committed teacher, concerned with the welfare of her students, particularly Ms Murry's, and passionate about teaching. The Respondent's Submissions 26 The respondent argued that, since Ms Murry did not lodge a complaint of discrimination complaint with the Anti-Discrimination Board until 20 August 2002. The second semester, in which Ms Elder was not offered teaching, had started in July 2002, that is, after the complaint was filed. The respondent cites this as evidence that there was no victimisation of Ms Elder on the basis that she was supporting Ms Murry's complaint. 27 The respondent claims that the only reason why Ms Elder was not offered work in the second semester of 2002 was that there were no casual positions available since all available positions in the Community Services Section were filled by full-time or temporary/part-time staff who had taught classes in the first semester and continued teaching those classes in the second semester. In Ms Elder's case, she had been teaching in the Diploma of Aged Care in the first semester but was not allocated this in the second semester as a permanent teacher had returned to staff. 28 The respondent claimed that the failure to engage Ms Elder to teach the "Get Skilled" program in the second half of the second semester of 2002 was due to Mr McGowan's observation during the meeting of 18 September where he had understood that Ms Elder was withdrawing her teaching services from the TAFE. He passed this message on to Ms Vella and Ms Fugaccia. They contended that Ms Vella acted upon this information by appointing another casual teacher to teach the course. 29 The respondent further asserts that since they at no time knew that Ms Murry intended to make a complaint they could not have victimised her in the manner prohibited by s.50. 30 The respondent further asserted that Ms Elder remained on the list of eligible part-time casual teachers. It claimed that it was the "normal practice" for part-time casual teachers to contact the relevant Head Teacher in the part of the College that they wished to teach in. Ms Vella gave evidence that this practice was very informal and she usually had conversations with staff when she saw them about their teaching availability and she contacted teachers to see if they were available. 31 The TAFE further argues that there were other reasons that meant that Ms Elder was not allocated any further teaching, namely, that permanent teaching staff had returned, there was a belief that Ms Elder had stated that she no longer wished to teach at Baulkham Hills TAFE, that Ms Elder had not asked for further teaching and that Ms Vella had assumed that Ms Elder had other commitments that would prevent her from teaching. Findings 32 Victimisation does not have to be the only factor in justifying conduct that may constitute a breach of s.50 of the Anti-Discrimination Act 1977 (NSW), but it must be a 'substantial and operative' factor. Riley v Western College of Adult Education (2003) EOC ¶93-253; Aleksovski v AAA Pty Ltd (2002) EOC ¶93-219. 33 As to whether or not victimisation has occurred, the subjective views of the applicant in the absence of any facts to sustain that view will not support a claim. Herring v Benevolent Society of NSW (1992) EOC ¶92-408 at 78,896-7 and Hill v University of New England (1990) EOC EOC ¶92-291 at 77,951. The applicant carried the onus of proof is set out in s140 of the Evidence Act 1995 (NSW). This standard was restated in Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 as being, in all civil cases, a requirement that the standard of proof to be met by the applicant is on the balance of probabilities. 34 The respondent has given several reasons as to why Ms Elder was not offered further teaching in second semester of 2002 and in 2003. One of the key factors was the miscommunication between Ms Elder and Mr McGowan that the latter acted upon. Both versions of events are consistent with a finding that, while Ms Elder had not intended to withdraw her teaching services to the TAFE, she was understood to have done so. 35 In the present case, the applicant has failed to discharge that burden in relation to establishing that her support of Ms Murry's complaint was connected to the reasons that she was not offered further teaching. Accepting Ms Elder's version of the events of the 18 September 2002 meeting, it is not enough to refute the assertions of Mr McGowan and Ms Vella that they were under the impression that Ms Elder had stated that she no longer wanted to teach and that they had acted on that assumption. 36 Ms Vella gave several additional reasons as to why she did not offer Ms Elder teaching. These included the return of permanent teaching staff. Ms Vella admitted that these reasons were based on assumptions she had made, not on conversations with Ms. Elder. This would have contributed to Ms Elder's sense of being victimised. Indeed, Ms Vella's contradictory reasons and her failure to discuss the matter with Ms Elder could have easily given the impression that she had developed a predisposition to not offer Ms Elder work. However, and fatally to Ms Elder's argument, the nexus between that disposition and Ms Elder's support of Ms Murry's complaint have not been made out to meet the standard required by s.50. 37 The respondent claims that they could not have victimised Ms Elder so as to breach s.50(1) as they were not aware of a formal complaint by Ms Murry at the time the Ms Elder claimed she was not allocated teaching. Although the formal complaints with Baulkham Hills TAFE and with the Anti-Discrimination Board were not lodged until August 2002 – well into second semester – Ms Elder had been involved with meetings as a support person to Ms Murry in which complaints against the teaching staff were considered. Section 50(1) extends to situations where the discriminator knows or suspects that the person victimised intends to give evidence in a complaint. It was reasonable to suspect from the protracted and unresolved nature of Ms Murry's complaints against Baulkham Hills TAFE staff that the respondent should have suspected that a formal complaint would follow. Confirmation that Ms Murry was going to take that path was communicated to the respondent on 17 May 2002. 38 It is understandable that Ms Elder would have perceived a connection between her support of Ms Murry and the termination of her teaching as she was unaware of the miscommunication and the motivating factor in her failure to procure more work. That her statement about not teaching again at Baulkham Hills TAFE had been misinterpreted and acted upon did not come to her attention until 3 June 2003 when she received the respondent's letter of reply to her complaint to the Anti-Discrimination Board. 39 Margaret Elder's perception of being victimised was exacerbated by the lack of consistent and transparent processes at the Baulkham Hill's TAFE for appointing teaching staff. Although there was an approved list of casual teachers, there was no regular and transparent process employed in appointing casual teaching staff. Ms Vella gave evidence of a loose application of the TAFE policy due to the time and budget pressures she was under. Ms Elder, in her 12 years experience, was not aware of this policy. In fact, she had a different understanding of how casual teaching staff was employed. These ad hoc and inconsistent practices only added to Ms Elder's sense of exclusion and victimisation. However, as mentioned above, the subjective views of the applicant in the absence of any facts to sustain that view will not support a claim of victimisation. 40 After 12 years of casual teaching at TAFE, it was not surprising that Ms Elder was hurt by the discovery that a class that she thought had been offered to her was instead being taught by one of her former students. 41 Nor was it surprising that Ms Elder felt that her treatment was victimisation as a result of her support of Ms Murry's complaint. She had taught for Baulkham Hills TAFE for six years and she had every reason to expect that if her comments in a meeting had been misinterpreted the way that they were, the TAFE would have checked with her to clarify her position. To not do so showed indifference to her and disrespect to her teaching contribution. 42 However, and unfortunately for Ms Elder, the behaviour that has aggrieved her does not constitute a breach of s.50(1) of the Anti-Discrimination Act 1977. 43 The applicant also claimed that the victimisation extended to her exclusion from the TAFE teaching list. However, evidence from the TAFE shows that there was a new initiative to place names on the register of casual teachers at the end of 2003. Letters were sent to Ms Elder on 9 and 17 December 2003. The first letter did not contain the application form. By this time, Ms. Elder had already lodged her complaint with the Anti-Discrimination Board. This incident falls outside of the complaint contained in the President's report. 44 Even if the complaint were accepted, there was evidence of the TAFE initiative to update its teaching list. The material was sent to Ms. Elder. Ms. Elder decided not to take the necessary steps to put her name forward and as a result is no longer on the TAFE list. Therefore, there is no evidence of victimisation in relation to this matter.