Pending Appeal : CITATION: Salt & anor v NSW Department of Education and Training [2006] NSWADT 326 DIVISION: Equal Opportunity Division APPLICANTS Alison Salt PARTIES: Ezekial Shaw RESPONDENT NSW Department of Education and Training FILE NUMBER: 031159; 031160 HEARING DATES: 14/06/05 - 17/06/05 SUBMISSIONS CLOSED: 09/19/2005 DATE OF DECISION: 11/16/2006 BEFORE: Behrendt L - Judicial Member; Antonios Z - Non Judicial Member; Groth D - Non Judicial Member CATCHWORDS: Race Discrimination - In work - Sexual Harassment - In workplace - Victimisation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Allders International Pty Ltd v Anstee & Ors [1986] EOC 92-157 Battenberg v The Union Club (No 3) [2005] NSWADT 126 Briginshaw v Briginshaw (1938) 60 CLR 336 Dutt v Central Coast Area Health Service [2002] NSWADT 133 CASES CITED: Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 Haines v Bendall (1991) 172 CLR 60 Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 King and Anor v Meilman East Pty Ltd and Anor [2004] NSWADT 46 Martin v McKensey No. 2 [2003] NSWADT 126 Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281; [2005] NSWADT 281 APPLICANTS J. Berrick, Barrister REPRESENTATION: RESPONDENT P. Griffin, Barrister ORDERS: 1. That the complaint of racial discrimination by Mr Shaw be dismissed; 2. That the complaint of racial discrimination by Ms Salt be dismissed; 3. That the complaint of sexual harassment by Ms Salt be dismissed; 4. That the complaint of victimisation by Mr Shaw be dismissed; 5. That the complaint of victimisation by Ms Salt be dismissed.6. That the Applicant's legal representatives pay the costs of the Respondent for the case conference of 18 February 2005 and 4 March 2005 in a sum to be agreed within sixty days of the date of publication of this decision or, failing agreement, to be assessed pursuant to the Legal Profession Act 2004. REASONS FOR DECISION 1 The applicants, Ms Alison Salt and Mr Ezekial Shaw, were both employed by the respondent, the NSW Department of Education and Training between 3 February 1997 and 20 March 2000. Ms Salt was employed as a classroom teacher (level 5) and Mr Shaw was employed as a classroom teacher (level 4) at Bourke Public School. Ms Salt was also given the responsibility of being an Aboriginal Educational Resource Teacher (AERT). Both were on probation during the time covered by the complaint. 2 The applicants are both Aboriginal. At the time of the complaints they were in a domestic relationship and had four children. Ms Salt's and Mr Shaw's Complaints The Staff meeting before commencement of employment 3 Mr Shaw believed that Mr Paul Loxley, the Principal of Bourke Public School, was biased against him before he even began working at the school. He claims that in or about December 1998 at a staff meeting Mr Loxley referred to him as a "trouble maker". A then staff member of Bourke Public School, Ms Jennifer Corven, gave evidence that she attended that meeting and heard Mr Loxley say "Zeke Shaw had caused a lot of trouble in Brewarrina. He's nothing but a trouble maker". Mr Shaw had previously worked as a casual teacher at Brewarrina Central School. He had also worked as a Regional Aboriginal Community Liaison Officer and various school administrative and support positions. These were non-teaching roles. 4 Mr Loxley denied that he had characterised Mr Shaw as a "trouble maker". Other staff members of the Bourke Public School who were present at the meeting where these remarks were alleged to have been made, namely Ms. Jenine Milgate, Ms. Janyce Sherrand and Mr. Nigel Sherrand, all gave evidence that they did not recall Mr Loxley calling Mr Shaw a "trouble maker". 5 Further, Mr Loxley gave evidence that on 2 February 1999, he made the decision to offer Mr Shaw a position at the school. He claimed that he took this step on his own initiative because of his regard for Mr Shaw's abilities and because he knew that it would assist both Mr Shaw and Ms Salt professionally and financially. Ms Salt's disputes with other staff and complaints under the Anti-Racism Procedures 6 After Ms Salt and Mr Shaw joined the staff of Bourke Public School, they had several disputes with other staff members. 7 On 28 May 1999, Ms Salt was involved in a dispute with another teacher, Ms Plowman about Ms Salt's use of stencils while Ms Salt was minding Ms Plowman's class. During this exchange, Ms Salt alleged Ms Plowman had spoken to her in a patronising manner whilst in the classroom. Ms Plowman wrote down her version of the events which included that Ms Salt had told her that she did not know how to talk to a black person and that Ms Salt raised her voice and threw her books and tape recorder on one of the children's tables. This matter was taken up in a meeting mediated by Mr Nigel Sherrand, the then Acting Principal. 8 On 6 September 1999 Ms Shaw had a heated verbal disagreement with a fellow teacher, Mr Michael Collins, in which Ms Salt took offence at Mr Collins' use of the term "black fella". Ms Salt lodged a complaint about the incident under the Anti-Racism Grievance procedure on15 September 1999. Mr Collins denied the comment and countered that Ms Salt had referred to him as a "white fella". At the time, Mr Shaw was the Anti-Racism Contact Officer and there was concern over his behaviour in the role in relation to the complaint made by his wife so Mr Loxley dealt with the complaint. He dismissed the grievance because he did not find any racial comments within the documentation he received. He had conferred with Mr Shaw in relation to his findings and alleged that Mr Shaw had agreed that the complaint should be dismissed because there was insufficient evidence to support it. The School Excursion 9 On 1 September 1999 Mr Shaw and Ms Salt had an argument with fellow teacher, Ms Brooke Unsworth. Their son was due to go on an excursion but was prevented from attending because the fee had not been paid. Mr Shaw said that he believed that arrangements had been made to pay for the excursion and that the funds were available from the Aboriginal Student Support and Parent Awareness (ASSPA) Committee for Aboriginal children to attend such functions. In an effort to resolve the matter, Mr Loxley sought to obtain written statements from all involved but claimed that Ms Salt and Mr Shaw refused to comply with his instructions. Ms Unsworth alleged that Mr Shaw and Ms Salt had become verbally abusive towards her. Mr Shaw and Ms Salt alleged that the failure to allow their son to attend the school excursion was motivated by racism. 10 After the argument, Mr Shaw lodged a complaint under the respondent's Anti-Racism Grievance Procedures about the incident. The Handling of the Complaint's under the Anti-Racism Procedures 11 Mr Loxley met with two members of the ASSPA Committee to discuss the complaint made by Mr Shaw about his son not being allowed to attend a school excursion and Mr Shaw's insistence that the money was to come from the ASSPA money. At a subsequent meeting of the full ASSPA Committee, Mr Loxley informed them of Mr Shaw's complaint. Mr Shaw saw these discussions as a breach of confidentiality but Mr Loxley raised the matter with them because Mr Shaw's complaint involved the issue of what the ASSPA money could be used for. Mr Loxley explained that he spoke to members of the ASSPA Committee and the Committee itself and these conversations were merely steps in his investigation of Mr Shaw's complaint. Mr Shaw's Further Complaint under the Anti-Racism Grievance Procedures 12 On 16 September 1999 Mr Shaw lodged a complaint under the Anti-Racism grievance procedure against Mr Loxley. The District Superintendent, Ms Robyn McKerihan investigated the complaint. 13 It was claimed that during a subsequent meeting, Mr Shaw refused to answer any of Ms Kerihan's questions. In her investigation into Mr Shaw's complaint she did not find any evidence of racism or breach of the confidentiality provisions of the complaint procedures. Ms Salt's and Ms Shaw's performance 14 On 14 September 1999, Ms Salt and Mr Shaw received letters from Mr Loxley stating that their probationary status was at risk. 15 There were several reasons given for the letters warning that the probationary status for both Ms Salt and Mr Shaw was at risk that included both performance issues and professional relationships with other staff. 16 In addition, there was concern raised about the number of absences Mr Shaw had taken from the school and allegations about his misuse of school property. In relation to Mr Shaw, Ms McKerihan noted that there were concerns about Mr Shaw's efficiency as a teacher particularly around his programming and completion of administrative tasks. She also noted that he was not able to develop a working relationship with his colleagues, resorting to "domineering and coercive behaviour". She also noted that, "he sees himself as different and makes unreasonable demands on his colleagues." 17 Mr Loxley said that Ms Salt was given the AERT position in recognition of her cultural heritage. In telling Ms Salt to make up her own role in relation to the AERT position, Mr Loxley stressed that in saying this he was encouraging Ms Salt to put her own stamp on the role. 18 Ms Janyce Sherrand was Ms Salt's supervisor and she stated that her major concern was her programming skills. When she went on maternity leave in July 1999, Mr Nigel Sherrand assumed the role for the remainder of the year. Mr Sherrard claimed that he used the criteria in the Teachers' Handbook that applies to the supervision of all probationary teachers in their first year of teaching. He gave evidence that in the second term of 1999, he became concerned that Ms Salt was not up to date with her paperwork and that her work was not completed on time or was not satisfactorily completed. He said that he took positive steps to assist Ms Salt and that in some areas her performance was satisfactory. He formed the view that her probation should be extended to allow her to work on the areas of concern. One of the areas of concern was her "failure to maintain professional relationships". Mr Loxley, in his report dated 25 November 1999, noted that Ms Salt's programming skills have been thoughtful and creative, that she had been involved with organising many activities for the Aboriginal children at the school, and that she also demonstrated that, on occasion, she could work as part of a team. He did also note that she had some problems completing her programming, had on occasion been doing her AERT activities when she should have been in the classroom and had to enhance her "interpersonal skills". 19 Ms Salt claims that she was not as experienced a teacher as Mr Shaw and that she was not given adequate supervision, had no assistance with structured involvement in the classroom and no access to adequate resources for her role. She felt that her role as an AERT was not well defined and that the other staff within the school, particularly Mr Loxley, did not understand her position as an Aboriginal teacher. When she asked Mr Loxley in May 1999 for guidance and direction in relation to her role as an AERT, he told her to make up her own role. Ms Salt claimed that, in particular, her supervisor and assigned mentor, Mr Sherrard, had not provided her with support. 20 Ms Salt further felt that with her role as the AERT and her implementation of the Aboriginal English Language Development Program that she should have been invited to executive meetings but Mr Loxley did not respond to her requests. She was unclear as to what this role meant and claims that she was given no support. She did, however, while she was in this role, implement a range of programs including the Native Bush Tucker Garden Program, the Bourke Public School Aboriginal Dance Group, the Croc Eisteddfod Dance Group excursions and special literacy classes. The respondent argued that Ms Salt's ability to introduce these programs shows that she was adequately supported in her role as an AERT. 21 Ms Salt provided evidence of the thought and care she took in preparing her classes. Ms Salt felt that her position as an Aboriginal person in a teaching position was not well understood by Mr Loxley. To support this, she gave evidence that at a meeting on 19 November 1999 she told Mr Loxley that she was an Aboriginal teacher. He replied that she was a "teacher of Aboriginal Education". Ms Salt felt this was a direct denial of her cultural identity and her right to express that identity in her teaching. 22 Evidence was given by Mr Loxley of Mr Shaw's absences from school and that many of these absences were not felt by him to be legitimate. He gave evidence that he had investigated some of the circumstances that Mr Shaw had used as an excuse for his absence from the school and that these had not been able to be substantiated. In a letter to District Superintendent Ms McKerihan dated 12 November 1999 he detailed his concerns. These included the number of sick days taken by Mr Shaw in which no leave form had been submitted, the use of the school bus for improper purposes, the failure to repay a cash advance and his unwillingness to participate in the Anti-Racism Grievance processes for example not attending meetings to discuss or to give written accounts. 23 Mr Shaw maintained that his reasons for being absent from the school were legitimate and reasonable. He also denied that he had used the school bus improperly. Mr Shaw also provided evidence to support his claim that he was an excellent teacher who was well organised. He produced his Day Book to support his claim. Ms Jennifer Corven gave evidence that Mr Shaw's professional skills were well developed and he was particularly good with students who had disabilities. She also gave evidence that he was friendly towards his colleagues. 24 Mr Shaw and Ms Salt felt that the letters advising that their probationary period was at risk were issued as a response to their use of the Anti-Racism Grievance Procedures. Ms Salt and Mr Shaw claimed that during their time at the school other staff members were uncomfortable with assertions of their Aboriginality. This would, they claim, manifest in a range of behaviours that included an instance where a snide remark was made about his lateness to a meeting and criticism of his choice of what he considered "Aboriginal culturally appropriate material" for inclusion within his teaching materials. 25 Mr Loxley claimed that he received a number of documents and complaints relating to the conduct and performance of Ms Salt and Mr Shaw during their time at the Bourke Public School. This included a letter from the President of the Bourke Public School P & C dated 10 September 1999 about Mr Shaw and Ms Salt's behaviour towards Ms Unsworth in relation to the school excursion incident. Procedural fairness required him to provide copies of these to Ms Salt to give her an opportunity to respond. He claimed that he did not have to give this material to her immediately. The Petition 26 The staff signed a petition expressing their concern over "perceived harassment and intimidation". The petition, dated 21 November 1999, contained the names of members of Bourke Public School and it complained that they felt intimidated by the actions of Mr Shaw and Ms Salt. The specific complaints included the following alleged breaches of the code of conduct: "(1) Members should be loyal to colleagues at all times and refrain from adversely criticising them in the hearing of the public or of students. (2) No members should be in the hearing of other members or students, criticise the work of other members. (3) Members shall not engage in harassment, victimisation or intimidation of other members or students. (4) Members shall not engage in any form of racist behaviour, comments or dissemination of racist material." The petition was signed by several members of staff including Ms Unsworth and Mr Collins who had been involved with incidents with Mr Shaw and Ms Salt that had been the subject of Anti-Racism Grievance procedure investigations. It also included Mr Sherrand who was Ms Salt's supervisor and assigned mentor. The petition also asked for appropriate dispute resolution processes to be followed, the Code of Conduct to be reiterated to all staff and that if this was not successful that an independent chair or nominee come in and mediate the situation. 27 On 26 November 1999, Mr Shaw and Ms Salt were given a copy of the petition by Mr Paul Loxley. They became very distressed, angry and humiliated by the petition. Ms Salt and Mr Shaw felt that Mr Loxley had been accumulating written complaints against them over the course of their employment at the school. A former teacher at the school, Ms Jennifer Craven, claimed that Mr Loxley had encouraged other staff to spy on each other. Mr Loxley denied this and said that he gave the information to Ms Salt and Mr Shaw as a matter of due process so that they could see the allegations that had been made against them. The decision to walk out of the school 28 As a reaction to receiving the petition, Mr Shaw and Ms Salt called all members of the school staff together. They allegedly told the members of staff that they were walking out of the school and threatened to contact the television show A Current Affair to expose the treatment they had received. Mr Shaw alleged that the hostile attitudes of the staff towards Ms Salt and himself were because they were Aboriginal. They both left the school after the meeting. 29 As a result of the concerns raised in Mr Loxley's letter of 12 November 1999, District Superintendent Ms McKerihan wrote to Mr Shaw on 23 November 1999 directing him to attend an interview with her at Bourke Pubic School. 30 Ms McKerihan interviewed Mr Shaw on 10 December 1999. She described him as uncooperative and noted that he indicated that he was not prepared to comply with any request from his supervisors. 31 Ms McKerihan interviewed Ms Salt on 10 December 1999 about her decision to walk out of the school. She claimed that during that interview, Ms Salt could not offer a cogent explanation as to why she had left and stated, "I wasn't hoping to achieve anything. I was hoping to get people to look at what was happening." During that interview, Ms Salt was also interviewed about the twenty-four occasions when she was either absent from the school or not signed on. She was directed to check her records and to submit appropriate leave forms. She said that she often forgot to sign on and indicated that she had felt that the staff had been antagonistic to her, that she had felt intimidated by Mr Loxley and that she thought the school and the Department were biased against black people and not good at dealing with Aboriginal people and their issues. The Decision to Terminate Ms Salt and Mr Shaw's Probation 32 Ms McKerihan gave Ms Salt a direction to return to work on 14 December 1999. Ms Salt did not return and a further letter was sent on 15 December 1999 asking for an explanation for her failure to return to work and clarification of her intention concerning her employment as a teacher by 13 January 2000. When no reply was received, Ms McKerihan recommended to the General Manager of Personnel on 6 January 2000 that Ms Salt's probation period be annulled. 33 On 6 January 2000 Ms McKerihan also recommended to the General Manager of Personnel that Mr Shaw's probation period be annulled. She wrote to Mr Shaw on 7 January 2000 to advise of her recommendation that his probationary period be annulled. 34 Ms Salt's and Mr Shaw's probationary periods were annulled on and from 20 March 2000. 35 As a result of the termination, on 28 August 2000, Ms Salt and Mr Shaw were placed on a list by the Department of Education and Training's confidential list of persons not to be employed in a NSW government school or TAFE NSW without the approval of the Director of Staffing Services. 36 Ms Salt and Mr Shaw claim that the behaviour of the respondent's employees towards them amounts to breaches of the Anti-Discrimination Act 1977, specifically, discrimination on the basis of race in employment and victimisation. In her original application Ms Salt also claimed that certain behaviour of Mr Loxley amounted to sexual harassment but this was not pressed in her final submissions. The Claims of Racial Discrimination by Ms Salt and Mr Shaw 37 The Anti-Discrimination Act 1977 prohibits discrimination on the basis of race. Section 7 defines what constitutes discrimination on the ground of race and includes: (1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race… 38 Section 8 prohibits racial discrimination against employees: (1) It is unlawful for an employer to discriminate against a person on the ground of race: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. 39 The question to be answered is whether Mr Shaw and Ms Salt were treated less favourably than a person who was not an Aboriginal person in the same or similar circumstances. Martin v McKensey No. 2 [2003] NSWADT 126; King and Anor v Meilman East Pty Ltd and Anor [2004] NSWADT 46; Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 . 40 The Respondent is vicariously liable for the acts of its employees and agents. Section 53(1) of the Anti-Discrimination Act 1977 states: An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. 41 In proving any breach of the Act, Mr Shaw and Ms Salt carry the burden of proof to the standard of the balance of probabilities, as per. s140 of the Evidence Act 1995 . 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. 42 The Briginshaw standard, as set out in Briginshaw v Briginshaw (1938) 60 CLR 336, is considered appropriate when a serious allegation is being made in civil proceedings, which might lead to a finding on what could amount to criminal conduct. But "'due regard must be had to the nature of the issue involved' because not every case involves issues of importance and gravity in the Briginshaw sense", as per Dutt v Central Coast Area Health Service [2002] NSWADT 133. The Findings on the claims of Racial Discrimination by Mr Shaw and Ms Salt 43 Mr Shaw believed that Mr Loxley had decided that he was a "trouble maker" before he even started work at the Bourke Public School. This is based on information that Mr Shaw received about comments Mr Loxley allegedly made at a meeting that Mr Shaw did not attend. The assertion that Mr Loxley was predisposed against Mr Shaw does not fit with the evidence that Mr Loxley had actively sought to recruit Mr Shaw to the school because he had a high regard for him and thought the opportunity would assist Mr Shaw and Ms Salt both professionally and personally. Further, one witness recalled hearing Mr Loxley refer to Mr Shaw in this way and three other witnesses who were present at the meeting gave evidence that they did not recall it being said. 44 In relation to the handling of the disputes raised by Ms Salt against other staff members, there is evidence to support the finding that Mr Loxley did take the matters seriously and did investigate them. Resolution of these matters was complicated by the fact that Mr Shaw was the Anti-Racism Contact Officer and Ms Salt was the only other Aboriginal person at the school so a conflict of interest arose. 45 The employees at the Bourke Public School seemed well aware that the Department of Education and Training had Anti-Racism Grievance procedures but the complications that arose in the context of a school where the two Aboriginal teachers also have a domestic relationship caused some complications for the smooth implementation of those procedures. The interconnectedness of Aboriginal families across New South Wales would raise the likelihood that conflict of interest might arise between a complainant and the Anti-Racism Officer and the policy should provide clear guidance on how to deal with such situations. In fact, the interconnectedness of people in rural communities would create a particular challenge for the objective application of the Anti-Racism Grievance procedures in those circumstances. 46 In relation to the Mr Loxley's handling of Mr Shaw's complaint about his son being prevented from attending the school excursion, it is understandable that Mr Loxley would need to approach the ASSPA Committee and its members to clarify whether the funds were available as Mr Shaw claimed. The Anti-Racism Grievance Procedures clearly state that the process is intended to be confidential but the interviews with the ASSPA Committee were necessary in evaluating in the investigation whether Ms Unsworth had acted improperly or not. What seems to have caused conflict with Mr Loxley and Mr Shaw in relation to the resolution of the dispute is a disagreement or misunderstanding about the process to be undertaken as part of the investigation. This tension could have been alleviated if the process Mr Loxley was following had been better communicated to Mr Shaw. 47 Ms McKerihan investigated Mr Shaw's subsequent complaint about Mr Loxley's investigation and his allegation of the breach of confidentiality to the best of her ability given Mr Shaw's reluctance to be interviewed about the matter. 48 The investigations into the various complaints were adequate even though they were complicated by the domestic relationship between Mr Shaw and Ms Salt when the former was the designated Anti-Racism Contact Officer. 49 While the investigations were adequate and none of them established any improper behaviour on the part of the staff members or Mr Shaw and Ms Salt, the frequent use of these procedures was evidence of the breakdown and deterioration of the relationships between Mr Shaw and Ms Salt and the rest of the staff at Bourke Public School. There was clear evidence of a climate and culture within the school that was antagonistic to both Mr Shaw and Ms Salt and that staff members saw them as "trouble-makers" and were uncomfortable with the way in which they expressed their Aboriginality. The response to their assertion of their Aboriginality by the school was to put the onus on them to tone their behaviour down rather than to also address the issues as to why the staff felt such discomfort about this assertion. The staff friction that developed over time was often seen as the fault of Ms Salt and Mr Shaw rather than of other staff members. 50 The failure to adequately deal with the culture of hostility and distrust that developed between Mr Shaw and Ms Salt and the rest of the staff at Bourke Public School is evident in the way in which a petition was circulated by the staff. While Mr Loxley did not have a preconceived idea that Mr Shaw was a "trouble maker" before he began at the school, it became apparent that members of the Bourke Public School began to perceive him as such. In the evidence given to the Tribunal, newspaper clippings of Mr Salt's activism within the local community were submitted to paint the picture that he was a "trouble maker". 51 It was not the teaching performance of either Mr Shaw or Ms Salt that was the motivating factor in issuing the letters to warn that their probationary period was at risk. Both presented enough evidence to show that they were performing their teaching duties within the classroom to an extent that did not justify their probation being at risk as a result of it. While there were some issues raised about Ms Salt's performance in keeping up to date, this was a relatively minor matter and the recommendation was to extend her probationary period because she had clearly shown a capacity to be able to do her job. She was given mixed messages about her position as an AERT and did not feel that her role as an Aboriginal teacher was properly understood. Both of these factors contributed to her feelings that she was not getting adequate supervision. 52 Given Ms Salt's lack of experience with teaching, more could have been done to assist her in understanding these roles and in relation to issues that were identified with her performance, such as her lack of time management skills. There was no effort made to provide her with training. In fact, Ms Salt's position as a teacher on probation was complicated by her additional responsibilities in the AERT role. She was clearly having difficulty in juggling her passion and commitment to this role with her other duties and this problem with time management was identified but not addressed. 53 There is not enough evidence to support the respondent's assertion that the notice given to Mr Shaw and Ms Salt that said that their probation was at risk was due solely to their inadequacies as teachers. Although some concerns had been raised, these could have been addressed with further training and closer supervision and were, of themselves, not enough to justify their termination. 54 In relation to Mr Shaw, several other matters were raised about his behaviour, particularly in relation to his repeated absences from work. Evidence of this frustration can be seen in the correspondence from Mr Loxley to District Superintendent Ms McKerihan in November 1999 that clearly highlighted the deterioration in the relationship between Mr Shaw and Mr Loxley. There was a well-documented history of Mr Shaw's absence from work and other issues raised in relation to his failure to comply with directions given by Mr Loxley in relation to processes at work. 55 Despite the fact that there was a culture within the school that was antagonistic towards Mr Shaw and his assertions of his Aboriginality, Mr Loxley's frustrations with Mr Shaw related to his continual absences from the school and the failure to comply with the directions he was being given. Mr Loxley's attitude towards Mr Shaw was further hardened when Mr Salt walked out of the school and did not comply with all of the requests made of him in relation to settling the matters that he had raised. 56 Mr Shaw was not able to satisfy the Tribunal to the standard of proof required that one of the grounds for the termination of his employment was race. He fails to make out his case to meet the legal test required to prove that he has been the victim of racial discrimination for the purposes of the anti-discrimination laws. While it was clear that Mr Shaw's dismissal was not based on his teaching performance, there is evidence that it can be explained by other factors, none of which relate to his Aboriginality. 57 In relation to Ms Salt, the Tribunal finds that the evidence that her probation was at risk because of her teaching performance was not consistent with the reports that she received from both her supervisor, Mr Sherrand and Mr Loxley. While some problems were identified, these were not insurmountable and steps could have been taken to address them and, indeed, the overall tone of the reports were positive. 58 Ms Salt's dismissal from the school was not solely due to her teaching performance. There was a problem identified with Ms Salt's interpersonal skills and her professional relationship with other staff. There is a history of conflict between Ms Salt and other staff members that was well documented and the tensions culminated with the petition. There were issues raised about Ms Salt's behaviour towards other staff and investigations at her instigation but no evidence of instances where she was counselled about the code of conduct and her behaviour towards other staff. The mention of her relationships with other staff as an issue for improvement in her performance review was not met with any structured attempts to give her that guidance. 59 Ms Salt's performance was also criticised because she was absent from class on numerous occasions. Whereas Mr Shaw's absences related to his being away from the school, Ms Salt's absences were identified as being related to her work as the AERT and the activities she undertook with that hat on. This was identified by Mr Loxley as a matter that reflected her lack of time management skills and was a situation that was not surprising given that she was only new to teaching and was given very little direction in relation to her AERT role. 60 Ms Salt was given the position as AERT because she was Aboriginal. She was in a position that a teacher in their probationary period who was not Aboriginal was not going to be in. The giving of the AERT position to Ms Salt, whilst given with the stated intention of recognising her Aboriginality, was an additional burden and she was not given the corresponding support necessary for a person who was in that position. In fact, the approach taken towards her role as AERT was to be "hands-off" to allow her to shape the role as she saw fit. This meant that she was not given the guidance she needed to be able to manage both roles and the AERT role meant that she had additional duties that goes some way to explaining why she fell behind with her class preparation. Ms Salt's additional duties saw her inadvertently set to fail. 61 There was no evidence put before the Tribunal of an actual comparator, nor was there any basis from which the Tribunal could draw an inference that a hypothetical non-Aboriginal person in a similar position would have been treated differently. Overloading Ms Salt with additional duties, failing to provide her with additional guidance and support and using her subsequent failure to balance the two roles did seem to set her up to fail. But the Tribunal is not satisfied that in similar circumstances the respondent would have treated a hypothetical non-Aboriginal person any differently. 62 The Tribunal finds that the allegation of racial discrimination by Ms Salt cannot be substantiated. While the Tribunal does not accept that Ms Salt's teaching performance was the reason for her dismissal, there were other factors that contributed to the decision to terminate her employment, none of which related to her Aboriginality. 63 The Tribunal notes that Ms Salt made it difficult for the respondent to address the issues that she was facing because she walked out of the school and, despite a discussion with Ms McKerihan, she did not return to the school or reply to the correspondence of the respondent asking about her intentions to return. Ms Salt's decision to walk out of the school and then to not return mitigates the extent to which the respondent could properly fulfil its responsibilities to Ms Salt. 64 However, the Tribunal does note that Ms Salt was given additional duties as an AERT but was denied adequate additional support. This was a situation that reflects poorly on the respondent. However, due to the evidentiary issues raised above about the lack of comparative situations, the Tribunal cannot make the additional conclusion that the poor treatment of Ms Salt amounted to racial discrimination as it is defined under the relevant legislation. The Allegation of a Denial of a Transfer 65 In their original complaints to the Anti-Discrimination Board, both Ms Salt and Mr Shaw stated that a key part of their complaint was that they had been dismissed by the respondent and by being placed on the Department's list of people not to be employed. 66 In the evidence that was produced to the Tribunal subsequent to the transferral of the matter from the Anti-Discrimination Board both Ms Salt and Mr Shaw made allegations that they had applied for a transfer to Brewarrina Public School and that this was not processed and claimed that this constituted racial discrimination. 67 The allegation that they had applied for transfers and that this has not been actioned constitutes an additional claim of a breach of s.8 (2)(b) of the Act: (2) It is unlawful for an employer to discriminate against an employee on the ground of race: … (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment… 68 The Tribunal takes the view that, as a separate allegation of a breach of the Act, it should have been raised in the initial complaint and since it was not it did not fall within the jurisdiction of the Tribunal to hear it. 69 Ms Salt's and Mr Shaw's complaints were heard by the Tribunal in June 2005. On 2 May 2005 the Tribunal's powers in relation to complaints were altered by changes to the Anti-Discrimination Act 1977. Section 103(1) now allows the Tribunal to amend a complaint either on the application of a complainant or on its own motion. Section 103(2) allows a complaint to be "amended to include additional complaints and anything else that was not included in the complaint as investigated by the President." 70 No motion was made by the applicant's prior to or during the hearing to have the original complaints amended under this power and the Tribunal did not exercise it's own power to do so. 71 The Tribunal further notes that, had it considered this to be a matter that was within its jurisdiction, it would have had trouble in finding that the refusal of the transfer to Brewarrina Public School was a breach of the Act due to the limited evidence that was produced to support the assertion that, in these circumstances, Ms Salt and Mr Shaw were treated in a manner that was different to the way in which a non-Aboriginal person would have been treated if in a comparable position. The Claims and Findings of Sexual Harassment by Ms Salt 72 Ms Salt alleged that, generally, Mr Loxley would stand very close to her. On one occasion, at an unspecified date, Mr Loxley unbuttoned his trouser button in front of her and took his shirt out before stuffing it back in. She also said that on another occasion, also with date unspecified, Mr Loxley had entered the room when the students were changing out of their dance gear. Ms Salt said that she had to ask Mr Loxley to leave until the girls had dressed. She gave evidence that Mr Loxley would raise his voice when speaking to her. She said he found him intimidating and unresponsive to her needs and complaints. 73 Mr Loxley denied that he ever unbuttoned his trousers whilst speaking with Ms Salt. He also denied the allegations that he had entered the rooms where female students were changing out of their dancing gear. He gave evidence that he took great care to avoid placing himself in such positions. 74 Section 22A of the Anti-Discrimination Act 1977 states that it is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. Section 22B(6) of the Anti-Discrimination Act 1977 makes it unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons. 75 The allegation in Ms Salt's complaint of sexual harassment comprises of the alleged incident in which Mr Loxley unbuttoned his pants in front of her. The further allegation of his entering the room where female students were changing can not form a basis of a complaint against which Ms Salt has standing but can be used, if proven, as evidence of a culture within the Bourke Public School or a pattern of Mr Loxley's behaviour. 76 However, the onus of proof rests on Ms Salt and in a situation where Mr Loxley is believed to be just as credible as she is, it must be found that she failed to prove her case on the balance of probabilities. In addition, the standard in Briginshaw v Briginshaw (1938) 60 CLR 336 would further direct that, given the seriousness of the allegations of sexual harassment against a person in Mr Loxley's position, that the standard to be met must reflect the seriousness of that allegation. 77 In relation to the claims of sexual harassment, Ms Salt has failed to meet the standard of proof she is required to meet to make her claim. The Claim of Victimisation 78 Mr Shaw's and Ms Salt's original complaints to the Anti-Discrimination Board each included allegations of victimisation on the basis that no action was taken in relation to their complaints under the Anti-Racism Grievance Procedures. They also claimed that their termination of employment and placement of a list of people not to be employed by the respondent was as a result of Mr Shaw's and Ms Salt's pursuit of the Anti-Racism Grievance Procedures. 79 Section 50 of the Anti-Discrimination Act 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. 80 It is not clear from Mr Shaw's and Ms Salt's original complaints, points of claim or written submission which part of the circumstances described in section 50 they rely upon. 81 There were references throughout the complaints to the failure of the staff of the Bourke Public School to take action in relation to the complaints that Mr Shaw and Ms Salt had variously made under the Anti-Racism Grievance Procedures. The evidence before the Tribunal about the handling of the complaints was not enough to meet the standard of proof that the applicant is required to meet to make out a claim of victimisation. There is evidence that Mr Loxley had sought to investigate the complaints and both Ms Salt and Mr Shaw had received notification that their complaints had been investigated and found to be unsubstantiated. In fact, Mr Loxley's active attempt to investigate a complaint by Mr Shaw ended up with the latter lodging a further complaint. It is clear that Ms Salt and Mr Shaw were not happy with the process or the outcomes of these investigations but this is not of itself enough to sustain a claim of victimisation under the Act and the facts in this case do not support such a conclusion. 82 In relation to the claim of victimisation as evidenced by being placed on the list of people not to be employed by the respondent, Mr Shaw and Ms Salt bear the burden of proving this matter to the standard required under the Act. Both applicants failed to meet that test with the evidence presented before the Tribunal. There were other, plausible reasons that explained the course of events that led to both Mr Shaw and Ms Salt being placed on that list. This included Ms Salt's refusal to answer correspondence with the Department as to whether or not she would be returning to teaching and the decision of Mr Shaw and Ms Salt to walk out of the Bourke Public School. 83 In relation to the complaints of victimisation, it was not made clear in the applicant's points of claim or submissions which facts and which sections of s.50 that they were relying on. It is the role of the Tribunal, within its jurisdiction, to view the facts and determine whether the facts prove, to the appropriate standard, a breach of the Act and so it is not fatal to an applicants case that they do not specify which part of a section they are specifically relying on if the evidence they have presented supports a finding by the Tribunal that the Act has been breach. 84 The Tribunal has not been able to make such a conclusion on the basis of the evidence presented to it in either Mr Shaw's or Ms Salt's case and the Tribunal must dismiss the claim of victimisation. A Further Note on the Evidence 85 The Tribunal notes that, if Ms Salt had have been successful in making out her claim of racial discrimination, her claim for damages would have been severely impeded by the quality of the evidence presented on her behalf. There was no expert evidence that the depression that Ms Salt suffered from was directly linked to or a result of her experiences within the Bourke Public School. Similarly, if there was to be an award of economic loss, those matters would have to have been placed before the Tribunal to provide the evidence upon which a determination about such loss can be made. A claim of lost income or opportunity needs to be quantified with some reference to facts that can guide the assessments. These were matters for Ms Salt to prove and she failed to do so in her evidence before the Tribunal. Allders International Pty Ltd v Anstee & Ors [1986] EOC ¶92-157; Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503; Haines v Bendall (1991) 172 CLR 60. 86 While this would not have precluded an award of damages that takes into account Ms Salt's experience of racial discrimination it would have precluded an award of damages for psychological damages or emotional harm and this will severely limit the amount that the Tribunal could have awarded to Ms Salt. Costs 87 The power to award costs can be found in section 110 of the Ant-Discrimination Act 1977: (1) Each party to an inquiry is to pay his or her own costs, except as provided by this section. (2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit. 88 The general rule that each party pay his or her own costs means that careful consideration has to be given before awarding costs. The Act empowers the Tribunal to make awards of costs in the manner that it thinks fit and against either party. 89 A case conference was held on 4 February 2004 and the case was scheduled for hearing for the week beginning 31 May 2004. On 21 April, the Respondent sought better and further particulars for both Mr Shaw and Ms Salt's applications. On 7 May 2004 the hearing date was vacated because of the failure to provide particulars. A further case conference was held on 13 May 2004 and the Respondent noted at that time that their request for better and further particulars had still not been answered. The Tribunal made an order at that time that all documents to be relied on were to be filed with the Tribunal by 1 June 2004 and a new hearing date was set down for four days beginning 11 August 2004. 90 On 26 July 2004, the Tribunal was advised that a conflict of interest had arisen and the Applicants had been referred to new solicitors. On 4 August, the Applicants again applied to vacate the hearing date. A case conference was held on 11 August 2004 and the Tribunal ordered that the Applicants file all documents by 11 October 2004. A further case conference was scheduled for 17 December 2004. The Applicant's failed to comply with the order and no materials had been filed at the time of the December case conference. On that date, a further date was set for filing of the Applicants' documents, 18 February 2005. Again, the Applicants failed to file any documents at that time. A further case conference was held on 4 March 2005 and the hearing date was set down for the four days starting14 June 2005. On 8 June 2005 the Tribunal refused the Applicant's application for leave to file and serve amended Points of Claim and three summonses for production. 91 Some of the delay in the Applicants preparation of their case and failure to comply with the Tribunal's directions is understandable in relation to the conflict of interest issue that arose before the hearing in August 2004. However, the Applicants failed to comply with the direction to have documents filed by 11 October 2004 and then further failed to comply with the direction to file by 17 December 2004. This meant that a further case conference was required on 18 February 2005 and then again on 4 March 2005 when the Applicants still did not comply with the Tribunal's directions. The Tribunal noted this at the time of the case conference on 18 February 2005 and 4 March 2005 and indicated that it would consider the matter of the Respondent's costs for those days at the conclusion of the hearing. 92 The Applicants' legal representatives' behaviour in the conduct of the case gave the impression of not taking the Tribunals' directions seriously. It also caused inconvenience and cost to the Respondent who briefed legal counsel for each of the case conferences. Even taking into account difficulties that occur in collecting evidence, including statements from witnesses and documents under subpoena, the Applicants' representatives' delays and failures to comply with the directions of the Tribunal were excessive. 93 No reasonable excuse was proffered by the Applicant and no attempt was made to communicate with the Tribunal when deadlines were passed to explain why documents had not been filed. 94 The Tribunal has discretion to award costs in the amount and against the party that it thinks is appropriate. Section 110(2) of the Anti-Discrimination Act does not prescribe the "circumstances" that might give rise to such an award but it has been determined that to justify awarding costs there must be "something over and beyond a normal course of circumstances". Battenberg v The Union Club (No 3) [2005] NSWADT 126. 95 While it is highly unusual for costs to be awarded against an applicant in this jurisdiction, the Tribunal can make such an order by exercising its discretion when it feels that the circumstances warrant it, in the form that it feels is most appropriate and against the party whom it thinks it is most warranted. Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation [2005] NSWADT 281; [2005] NSWADT 281. 96 For these reasons, the Tribunal orders that the Applicants legal representatives' pay the Respondents' costs for attendance at the case conferences on 18 February 2005 and 4 March 2005. Orders 1. That the complaint of racial discrimination by Mr Shaw be dismissed. 2. That the complaint of racial discrimination by Ms Salt be dismissed. 3. That the complaint of sexual harassment by Ms Salt be dismissed. 4. That the complaint of victimisation by Mr Shaw be dismissed. 5. That the complaint of victimisation by Ms Salt be dismissed. 6. That the Applicant's legal representatives pay the costs of the Respondent for the case conference of 18 February 2005 and 4 March 2005 in a sum to be agreed within sixty days of the date of publication of this decision or, failing agreement, to be assessed pursuant to the Legal Profession Act 2004. 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.