Equal Opportunity Tribunal of New South Wales CITATION: Haswell -V- Nsw Department Of School Education, Metropolitan East Region [1997] NSWEOT COMPLAINANT: Elizabeth Haswell RESPONDENT: NSW Department of School Education, Metropolitan East Region NUMBER: 17 of 1994 & 81 of 1995 Mr Michael Biddulph ( Judicial Member ) TRIBUNAL: Ms L Farmer OAM Mr M Luger GROUNDS OF COMPLAINT: Discrimination on the ground of sex in the area of employment DATES OF HEARING: 08/21/1996; 08/22/1996; 08/28/1996; 09/25/1996; 09/26/1996; 09/27/1996; 11/08/1996; 11/13/1996; 11/14/1996; 11/21/1996; 11/22/1996; 12/12/1996 DATE OF JUDGMENT: 05/26/1997 Complainant: Tress Cocks & Maddox (Solicitors) Mr P Clay (Counsel) LEGAL REPRESENTATIVES: Respondent: Crown Solicitor's Office (Solicitors) Ms C Ronalds (Counsel) JUDGMENT IN FAVOUR OF: Details of complaints On 28 February 1993 the Anti-Discrimination Board of NSW("the Board") received a complaint from Ms Elizabeth Haswell alleging discrimination on the ground of sex in the area of employment, against the NSW Department of School Education, Metropolitan East Region. Conciliation conferences were held in the matter, but were not resolved. The President therefore referred the complaint to this Tribunal in accordance with section 94(1) of the Anti-Discrimination Act 1977 ("the Act"). Attached to the President's letter concerning the complaint was a report of his inquires into such complaint, and we set them out shortly as follows: The Complainant alleged that she was treated unfairly by the principal of her school and that decisions were made by the principal which she disagreed with, but her opinions were ignored because she is a woman. She also received an unfavourable work report from the principal. This report was later amended by the principal but not to Ms Haswell's satisfaction. On 23 June 1993 the Board wrote to the Department of School Education advising them of the Complainant's allegations. The Respondent replied on 24 June 1993 stating they had attempted to find solutions to her grievances. They also stated that Ms Haswell had difficulty in accepting directions from her supervisor if she did not agree with her supervisor's decisions. Conciliation conferences were held on 24 June 1993 and 26 August 1993 but were unsuccessful in resolving the matter. Later, on 1 March 1994 Ms Haswell's solicitor advised the Board that she wished her matter to be referred to the Equal Opportunity Tribunal, and it was so referred on 17 May 1994 under section 94(1) of the Act. On 11 August 1994 the Board received an out-of-time complaint by facsimile from Ms Haswell. She alleged victimisation in relation to her complaint of sex discrimination against the NSW Department of School Education. The Complainant stated that she was employed as a teacher by the Department and resigned in November 1994. She alleges that the victimisation consisted of a number of incidents of harassment which dated from 9 November 1991 when she indicated an intention to complain about sex discrimination which she allegedly suffered whilst she was employed at Moorefield Girls' High School. Included in these incidents were numerous comments about her by employees of the department, and the placing of a number of documents on her personal departmental file without her knowledge. These documents are dated from 11 May 1993 until 20 December 1993. Some examples of the comments which the Complainant alleges constituted victimisation were as follows: (a) On three occasions between December 1991 and July 1993 the principal of Moorefield Girls' High School, Mr Harkin, told her "I will not support any application for your promotion until you agree to withdraw your grievances". (b) On 9 November 1991 Mr Harkin told the Complainant that "A state of war exists and it would continue until (she) withdrew her grievance". (c) On 8 December 1992 Mr Harkin told her that the two work reports he had written about her "were deliberately written to ensure she would never get to an interview". These comments were repeated on 11 December 1992. (d) On 24 February 1993, in a discussion about new professional development and other teaching issues, Mr Harkin told the Complainant "You should be very comfortable in a slut school". (e) On 28 July 1993 Mr Harkin told her "Accept reality, accept that you will never win the appeal against David if you do not withdraw the grievance". (f) On 3 December 1993 in the presence of Ms Latimore, the head welfare teacher, Mr Harkin said "I am suffering from Haswellitis". Between October 1994 and May 1995 the Board received a number of letters from the Complainant's solicitor containing further information about the complaint. On 26 June 1995 the Board wrote to the Department informing it of Ms Haswell's allegations of victimisation. The Board also sought the Department's views on whether it would be disadvantaged if the complaint were accepted out of time. On 4 July 1995 the Board received the Department's response to this letter, permitting the victimisation complaint to be made. On 11 July 1995 the President of the Board exercised his discretion under section 88(4) of the Act and accepted the complaint. As it had not been possible to conciliate Ms Haswell's complaint of sex discrimination, the Board asked both parties if they wished to conciliate this complaint. As both parties considered that it was not possible to conciliate the matter, the President of the Board formed the view that the complaint of victimisation would not be able to be conciliated. On 18 July 1995 Ms Haswell's solicitor requested that the President of the Board refer her complaint to the Equal Opportunity Tribunal. The Tribunal received the Complainant's points of claim on 7 July 1995 in relation to the sex discrimination claim, and this was merged subsequently in amended points of claim filed by the Complainant with the Tribunal on 5 October 1995, which included the complaint relating to victimisation. On 21 September 1995 at a Directions hearing, Judicial Member Ireland made inter alia a direction that matter Nos. 17/94 and No 81/95, pursuant to Section 98(1) of the Act, be determined together. The first related to a complaint on the basis of discrimination on the ground of sex in employment, and the latter related to a complaint of victimisation. There was a morass of material filed in this matter running into 1,097 pages of transcript and a similar number or more pages incorporating the subject matter filed by the Complainant and Respondent. Therefore it is quite an impossible task to adequately summarise the facts. But the Members of the Tribunal have considered all the evidence, including the evidence of the witnesses in this matter and the lengthy submissions. Section 24(1) "24. (1) A person (" the perpetrator ") discriminates against another person (" the aggrieved person ") on the ground of sex if, on the ground of the aggrieved person's sex or the sex 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 the opposite sex or who does not have such a relative or associate of that sex; or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (1A) For the purposes of subsection (1)(a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex". Section 50 of the Act - Victimisation "50. (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". It is convenient for the Tribunal in this case to highlight the most relevant matters the subject of the complaints by reference to the submissions made by counsel and the precedents in law rather than attempting to fully set out in detail the evidence submitted by the Complainant and a number of witnesses for the Respondent. Counsel for the Complainant made the following submissions on his client's behalf and the Tribunal includes relevant passages of evidence given by the Complainant: 1. He stated that discrimination need not be intentional or be part of a conspiracy large or small, and that notwithstanding denials of discrimination by all concerned at the Department of School Education, this Tribunal could find discrimination without making a finding that the denials constituted lying. 2. He stated that to establish victimisation required that the person victimising intended to cause detrimental consequences to flow ( Bhattacharya v Department of Public Works (1984) EOC 92-117) that the ground or grounds in section 50 of the Act need not be the only factor that should be substantial and the operative factor for treating the Complainant unfavourably ( Bogie v University of Western Sydney (1990) EOC 92-313). The detriment is simply that the Complainant had been placed under a disadvantage as to a matter of substance as distinct from a trivial matter. 3. The relevant acts or omissions constituting discrimination and/or victimisation were essentially those of Mr Harkin and as such his acts were biased against the Respondent because: (a) he was the senior official whose conduct was identified as that of the Respondent; (b) he had the duty to carry out or usually carried out the relevant functions relating to Ms Haswell's work environment on behalf of the Respondent. 4. The Complainant stated that certain acts constituted either sexual discrimination in the area of employment, or victimisation, but the Department of School Education states that those acts were the proper in the carrying out of the department's policy or procedures, or otherwise responses to unsatisfactory performance by Ms Haswell of her duties. 5. Counsel further stated that ultimately the applicant bore the onus of proof - that is a self-evident proposition but that here the Respondent in one aspect of the case, bore an evidentiary onus - to establish the basis for the differential treatment of Ms Haswell. Summary of specific complaints of the Complainant It was submitted that by inferences drawn from the conduct of Mr Harkin, the breaches of policy and the weak "justification" for those actions, it was open to the Tribunal to conclude there was discrimination as alleged. It is alleged that from November 1991 Mr Harkin knew or suspected that the Complainant intended to make a complaint to the Anti-Discrimination Board alleging discrimination by Mr Harkin, or had done something under or by reference to the anti-discrimination legislation in relation to Mr Harkin. It is further submitted that every act by Mr Harkin which caused detriment to Ms Haswell was influenced consciously or unconsciously by the knowledge or suspicion of Mr Harkin that Ms Haswell had made a complaint to the Board or otherwise had done something under the Act, concerning her alleged complaints. The November 1992 work report Counsel submitted on behalf of the Complainant the following matters: (a) There was no consultation with Ms Haswell prior to its preparation (cross-examination of Mr Harkin): "Q. There was no consultation with Ms Haswell? A. Ms Haswell did not take any opportunity for consultation following the preparation of that report. Q. And you intended it to be the work report ... the final work report, didn't you? A. No, I indicated in a note to Ms Haswell that the work report in fact did require to be redone, that there were some errors in it. Q. A couple of typos? A. Yes, and I verbally, at the same time as I gave her that note, gave her an indication that the report was negotiable and could be redone. The substance would not be changed, but there could be some discussion of the final work report". (b) The fact of lack of consultation was contrary to school policy and departmental policy (this was indicated in Ms McRae's report of July 1993 and her evidence). (c) In Mr Harkin's evidence, he concedes that the effect of the work report was that Ms Haswell was not likely to be promoted (13 November 1996 page 103.1.1) and the result would undoubtedly have been known to Mr Harkin at No 10, page 28 of his cross-examination on 13 November 1996 when the following questions were asked: "Q. Isn't it stating the obvious that if the principal says 'I do not support promotion' that a selection committee is not going to choose that person for promotion? A. It would be - I would be surprised if they did, I'd accept that. As I pointed out before I have been surprised by decisions of selection committees before and since. Q. But you've never seen one where it's been that the principal has said 'I don't support any application for promotion'? A. I can't say that that hasn't happened. Q. Answer the question Mr Harkin, you haven't seen one? A. No I haven't seen it no". (d) It is submitted that the work report was used as an outlet by Mr Harkin (evidence of Ms McRae) where it could not possibly be said that there were no other outlets available to Mr Harkin to express such emotions as he wished to express. (e) It is submitted that the report of Ms McRae clearly demonstrates that, both in terms of policy and proper practice, Mr Harkin should not have prepared the work report in the manner and form he did. (f) That the work report was unsolicited. (g) That the manner in which it was presented to Ms Haswell is further demonstration of the victimisation, and that Mr Harkin offered no real opportunity for negotiations as to the contents of the work report - that it was a final document, not a draft. The February 1992 work report This was a solicited work report for the purposes of an application by Ms Haswell for promotion, but for whatever reason there was again no consultation with Ms Haswell. Counsel submitted that the McRae report referred to the preparation of this document as "imprudent". The teacher assessment review schedule delay (1993) Counsel submitted that this represented a significant act of discrimination and/or victimisation. In July 1993 Mr Harkin was required to do the teacher assessment review schedule for Moorefield. In the Complainant's case he declined to give her an "E" which indicated the highest proficiency rating, but instead deferred her TARS report. Counsel submitted that he did so prior to Ms Haswells' undergoing or being requested to undergo a formal improvement plan process. The elements relied upon are: (a) Mr Harkin said "In other words, the policy of the department, very rightly, basically says that when the TARS comes out that should not be the time that somebody finds out that their efficiency is under question" (8 November 1996, page 72.32). (b) That the headmaster agreed that you do not put someone's proficiency in question until you have gone through the improvement process and there is no sign of improvement (13 November 1996, page 64.37). (c) The cross-examination of the headmaster disclosed that he should have entered an "E" in Ms Haswell's TARS report; there was no advice from any senior officer as to what Mr Harkin should do; the policy does not provide for a delay in TARS; the explanation of the headmaster that he delayed TARS to give the Complainant the benefit of the doubt when he could not otherwise enter "C" or "Q" defies logic and belief; the headmaster could have given the Complainant the benefit of the doubt but failed to do so, and there is no logical reasonable or sensible explanation for his conduct in that regard. The improvement plan (1993) (a) It is submitted there was no consultation with Ms Haswell about the preparation of the improvement plan, notwithstanding the policy and practice requirement that there be such consultation. (b) It was that lack of consultation and the failure to properly elucidate concerns to Ms Haswell, the conversation surrounding it and the continued sending of memos regarding non-attendance would add to or constitute the basis for the argument of discrimination and/or victimisation. The appointment of Mr Marshall (1991) It is alleged that this can only be an act of discrimination rather than victimisation, as the commencement date for the knowledge or suspicion of Mr Harkin is November 1991. Counsel stated that the elements of the discrimination were: (a) That Mr Marshall was appointed to the acting deputy's position giving a perception of preference for his appointment to the permanent job. (b) That potential perception was one which concerned Mr Harkin when he understood there were to be only two in-school candidates, Ms Haswell and Ms McCosker. (c) The headmaster was the professional development person responsible for Mr Marshall. (d) Notwithstanding that Mr Marshall's personal circumstances changed early in the 1991 school year, the headmaster did not take the opportunity to remove the perception of advantage to Mr Marshall once Mr Marshall became a candidate. Thereby the headmaster, it can be inferred on the basis of the gender of Mr Marshall and therefore the gender of Ms Haswell, discriminated against Ms Haswell. Derogatory/demeaning comments or behaviour from Mr Harkin Counsel states there was frequently directly conflicting evidence between the Complainant and the Respondent, and he makes certain comments as to the resolution of that dispute. The references, except where it is to transcript, are to paragraphs of the Complainant's affidavit of 19 June 1996: Paragraph 7. "On 10 May 1991 I had a conversation with Harkin in the principal's office at Moorefield. The conversation included: 'HARKIN: Accept reality, accept that you will never win the appeal against David. If you do not withdraw the grievance a state of war will exist'". Counsel then referred to part of the cross-examination of the Respondent on 13 November 1996 at pages 8 and 10 of the transcript, "Q. ... I'm suggesting to you that you said 'I doubt your continued capacity to cope with setbacks'? A. No I did not say that I doubted her continued capacity to deal with setbacks. I said she needed to learn something from what had happened. Q. That was your view at the time though wasn't it? A. No I think she had made significant - she'd demonstrated significant shortcomings in leadership and it was my view that she needed to address those issues in the future for her own professional development and growth and I see that as offering advice and assistance to a teacher". On 7 June 1991 the Complainant alleged that the following conversation took place when she had a meeting with Jan Biber, Harkin and Mary McRae: "HARKIN: Mrs Haswell isn't ready for promotion, she has an 'us/them' mentality, she over-reacts to situations, she takes things personally, she insists on having things her own way. She is too aggressive. She overacts. She is excessively demanding and I will never feel comfortable with her in the deputy's chair. She is not loyal to the principal". The Complainant alleges that following the meeting Jan Biber spoke to her in the staff room and said words to the effect of: "BIBER: I fear what the consequences will be for you. He is obviously lying but I cannot prove it. Do not drop the grievance. Harkin will continue to discredit you and victimise you because you have challenged him". Again on 6 November 1991 the Complainant alleges she had a conversation with the headmaster at Moorefield when he said: "HARKIN: Don't go on challenging any decisions. I have read your memo. A state of war exists. It will continue until you withdraw your grievances. You will have no promotional opportunity". It is alleged that in the realm of victimisation the Respondent knowing or suspecting of the steps under the Act being taken by the Complainant or proposed to be taken by her, the following conversations are relevant: 26 November 1991 , conversation between the Complainant and the Respondent: "HASWELL: Here's the criteria for a promotion for deputy and leading teachers. If you have any doubts about my ability to perform any aspect of these criteria in any way whatsoever tell me now. HARKIN: You're only joking about going to the ADB. You are too aggressive: I told you not to challenge, you falsify lists, you have a negative influence on staff, you are emotionally immature, you have no capacity to cope with a setback. You must accept decisions. You must not get involved with staffing decisions. It's none of your business. You make unfair assumptions about the way we do staffing. You say things in unseemingly haste. You hold up deadlines on even relatively minor things. Your personality is too strong and too forceful and you do it quite loudly". 3 December 1991 , conversation alleged by the Complainant between herself and the Respondent: "HARKIN: You are upsetting staff. You falsify lists. You're only using the information about the French computer programme trial as a bribe to form the year 9 French class. Now that you've shown evidence that you are continuing the grievance, a state of war exists. I will not support any application for your promotion until you agree to withdraw your grievances". 13 March 1992 , further conversation between the Complainant and the Respondent: "HARKIN: This is another example of disputation. I will not support any application for your promotion until you agree to withdraw your grievances. HASWELL: You know I'm reporting this to senior officers". An executive meeting took place on 13 November 1992 at the school, attended by most of the executive staff of the school, and the Respondent. The Complainant alleges that the Respondent said: "HARKIN: Look at this" referring to documents 45 and 46 in the Complainant's chronology which refer to the Regional Principals' Council Meeting dated 13 November 1992 concerning staffing and class sizes and other matters. The Complainant alleges that on 16 November 1992 she had a conversation with the Respondent, when the Respondent indicated he would not support any application until she agreed to withdraw her grievance, and that she did not behave as a principal should, that she was unprofessional and that she did not follow process. She indicated that he stated he would never support any application by her. and that it was totally unacceptable and inappropriate behaviour for someone who considered herself a candidate for a principal to refuse to carry out procedures. The Complainant alleges that on 18 November 1992 she had a further conversation with Harkin, when she alleges he said: "HARKIN: You don't behave as a principal should: you are unprofessional - you do not follow process. I'll never support any application by you. I have to fight your application. You don't support decisions made by your colleagues. It is my perception as your principal that you have failed to learn from me. You have to do what you are told. You must obey process. ... The department is supporting me in this". The Complainant also alleges that the Respondent then threw a work report, being document at pages 46B and 46C of her chronology, at her, and she stated that it was wrong and libelous. On 5 February 1993 the Complainant alleges she had a conversation with the Respondent in which the Respondent stated she was emotionally immature and that he had serious reservations about her ability to be a principal, and left doubts about being a deputy or leading teacher, and that he now had doubts about her ability even as a head teacher. The Complainant stated that on 15 March 1993 there was an executive meeting at Moorefield. At that meeting the Respondent is alleged to have said: "During last assembly time on Friday morning I went skunk hunting". When asked what it meant, the Respondent said: "Staff and students who were late or not at assembly" and the Complainant alleges that he made his last comment when looking at her. The Complainant further alleged that on 11 May 1993 at about 9.30am the Respondent stopped her in the corridor and indicated that someone was leaking out details of violence in schools to the media, and that they were now moving from informal mode to formal mode, and that it would soon be all over in three weeks for the Complainant. He ended by saying: "You're finished. You'll learn that process and process alone must be followed. After formal mode you have no choice but to forget the ADB". On 12 July 1993 the Respondent had a conversation with the Complainant in which the Respondent said: "You are totally unprofessional for reporting an incident about quality assurance" and the Complainant stated she had permission in writing to report incidents. The Respondent replied: "You think that I have no control. You will see. I can have you stood down without pay, if you go ahead with these complaints". An alleged conversation took place on 28 July 1993 between the Complainant and the Respondent, when the Respondent is alleged to have said: "You are a liar. You did not know about TARS on your case. I have verbally mentioned these things before in relation to your efficiency". The Complainant replied: "You have no power to impose a delay. You only mentioned TARS officially last executive meeting". The Respondent replied: "Accept realit The report is document 198A in chronology. It is alleged that on 2 December 1993 Liri Latimore said to the Complainant: "I walked into Harkin's office and he had his hands around his head and his elbows on his desk and said 'I am suffering from Haswellitis'". When asked by counsel for the Complainant that on one occasion in November 1993 he walked into the room when Ms Haswell had a "D" class, he stated that it was very likely and that he did it all the time. He was also asked if he stopped in front of her desk, and he said he could not deny that. When it was suggested that he stopped in front of her desk and he was directly adjacent to the desk, the front of his trousers would have been touching her desk, he denied that allegation. He denied there was any form of harassment or victimisation of the Complainant. Now the Tribunal would like to refer to the answer given by the Respondent at No. 22 on page 22 of the transcript of evidence dated 21 November 1996 concerning the retention of notes and resumes concerning applicants who applied for certain positions. Q. So in so far as you retained this one, that was contrary to that position that you took, wasn't it? A. No, No, could I explain to the Tribunal that the notes, my notes were kept with the resumes, the applications of the 50 or so people who applied for the position. I am required to keep the resumes, the applications, all applications for a period of time which I think was six months, I am not positive of the time, and they were simply kept inside the resumes. I had absolutely no idea of the number of people not the sequence of people who may choose to take up the opportunity of feedback. I could have received a phone call from somebody to say, "Look, I applied for that position in February. I would now like to take up your offer of feedback". So in that case I kept those notes for the period of time that I was required to keep the applications, the resumes. I had absolutely no control over what time gap there would be before I would receive a call. In fact, some people contacted me some weeks after receiving the letter. At the beginning of the year they had been too busy to do so. They said, "Thank you, it is the first time anybody has ever offered me feedback on application when I have not been short listed for interview". They were extremely grateful and I kept those notes, including Ms Haswell's, for the period of time that I was required to keep the applications. Counsel further stated that Mr Harkin was critical in his letter of 1 March 1993 of the purpose of leave being sought by the Complainant, which was to pursue her ADB claim, and if this amounted to victimisation. It is alleged that the knowledge or suspicion of Mr Harkin as to Ms Haswell's complaint or proposed complaint or otherwise taking steps under the anti-discrimination legislation is established by: (a) the leave form (Complainant's document 9A) (b) the conversation between the Complainant and the Respondent (see paragraph 8, statement in reply of Ms Haswell) (c) the Respondent's oral evidence (see particularly 13.11 page 31.13, page 31.30, page 35.18 and onwards). The section 50 factor relating to victimisation It is alleged that: (a) knowledge or suspicion of Mr Harkin is clear; (b) the acts and the detriment are clear; (c) it is admitted there must be a link; (d) the Tribunal can find the acts were deliberate victimisation; (e) Mr Harkin found the effects of the complaints extremely stressful (further in 11 November, page 49.8, page 50.1 and onwards); (f) logically enough the stress was not removed whilst Ms Haswell remained at the school and the complaint remained extant; (g) there is considerable force in the argument that much of the conduct of Mr Harkin which may amount to discrimination and/or victimisation is an emotional response if the Tribunal is of the opinion that it is not a deliberate response; (h) counsel indicated that the Tribunal could find that the actions of the headmaster which offend the Act were deliberately designed as acts of victimisation and that should the Tribunal decline so to do, can still find victimisation in the sense that the headmaster committed the acts, taking into account the fact that contributed to the conduct, even if unconsciously, the knowledge or suspicion as to Ms Haswell's complaints under the Act. The detriment (a) The personal effects on the Complainant, namely the stress, frustration, loss of dignity, embarrassment, humiliation and extreme stress and anxiety. (b) The obvious loss of opportunity. (c) Financial loss. Counsel for the Complainant indicated that the Tribunal should have serious concerns about accepting the Respondent's evidence, and gives the following examples concerning evidence given by the Respondent on 13 November 1996. Firstly he refers to a change in the Respondent's evidence at pages 22 to 24, his evasion at pages 25 to 35, his reluctance to agree with self-evident proposition "conflict" at pages 99 to 100, contradiction in evidence (14 November page 3.41 cf p 4 onwards), put a "gloss" on language (14 November at page 6), made a ridiculous proposition (14 November, page 11 and 12), "a conversation implies a meeting", and on 14 November 1996 at page 19, he relates to inconsistencies, conflict/inconsistency (pages 23 to 25), gratuitous comment (page 47.1 and 47.31-49), reluctance to answer questions (page 52.24 onwards), inconsistent versions (page 99). OUTLINE OF RESPONDENT'S SUBMISSIONS Onus of proof It is clearly established that the Complainant in any proceedings before this Tribunal carries the onus of proof and is required to make out all essential elements of her complaint and the basis for any relief claimed. On 8 November 1996 the Tribunal rejected an application by the Respondent that the complaint be dismissed pursuant to section 111(1) of the Act as being misconceived and lacking in substance. Discrimination complaint Relevant legal and factual considerations The Complainant holds strong personal beliefs about the basis of other people's actions and her own capacities. She is convinced of her own correctness. It is submitted that her views are fundamentally flawed and that no action, decision or statement the Respondent made to or about the Complainant has been made on the basis of her sex or as an act of victimisation arising from her complaint. The Complainant has failed to meet her onus of proof because her allegations are baseless. She averts to a series of events which do not establish discrimination and/or victimisation. Rather they establish a person who was increasingly difficult to work co-operatively with, who conducted a complaint campaign against the principal of her school and senior school staff, and then other senior departmental staff, and who persistently and consistently refused to take part in any attempt to resolve the situation which was essentially of her own creation. The departmental documents all demonstrate that there was a consistent theme from all departmental officers dealing with a multitude of complaints, in patient and considered replies to her correspondence. The Complainant's submissions state that she is genuine in her opinions and beliefs, however this falls a long way short of establishing that the Complainant has met her onus and supports the observations made in this submission about the Complainant herself and her particular incapacities and inabilities. Legal factors - sex discrimination "Less favourable treatment" The reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment which results in detriment to the person affected ( Haines v Leves (1987) 8 NSWLR 442, EOC 92-192 per Kirby P at 76,842). It was indicated that the less favourable treatment must be based on the "circumstances" which must be "the same" or "not materially different". This means that there must be a sufficient degree of similarity or common features or factors to form the basis of an appropriate comparison. "On the ground of" This term has been interpreted to mean that there must be a causal effect between the sex of the person and the decision, action or statement in question, and the words of connection "on the ground of" require judgment and the characterisation of conduct in terms of its causation. To amount to discriminatory conduct prohibited by the Act, the characteristic which will provide the ground must have approximate bearing upon the act charged as discrimination. Moreover, the characteristic must have a causally operative effect upon the decision to commit, or the committing of the act of discrimination ( Director General of Education v Breen (1984) EOC 92-015 per Street CJ at 75,429). In Leonard v Youth Hostels Association of Australia (1995) EOC 92-763 it was established that it is an essential part of the application of the definition of "direct discrimination" that the causal link or connection be identified between the Complainant's sex and any less favourable treatment. "Because of sex" The definition of "direct discrimination" further requires a causal link when it requires that the Complainant be treated in a particular way because of the Complainant's sex. The test of direct discrimination is "about objective discrimination" ( X v McHugh, Auditor General of Tasmania (1994) EOC 92-623). Objective compared with subjective assessment It was submitted that this Tribunal must not accept Ms Haswell's assessment of the facts as an accurate one, and any such assessment must be on an objective basis, and on all the evidence presented by the Complainant and the Respondent. In Alone v State Housing Commission (1992) EOC 92-393 at 78,798-90 it was noted that the facts should decide whether to accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation but in light of the whole of the evidence and can draw an inference from a combination of facts, none of which viewed alone would support that inference. It also states that it is important to appreciate that discrimination cannot be inferred when more probable and innocent explanations are open on the evidence. Ground of decisions or actions A further essential factor to be taken into account when assessing whether a Complainant has met her onus, are the allegations or events which occurred "on the ground of sex". It was submitted that there was no nexus established in this matter which was essential, that there is no link or connection between the Complainant's sex (gender) and the allegation or events. For that to be accepted by this Tribunal there must be able to be drawn a connection between the gender of the Complainant and the allegations or events. Discrimination complaint - factual allegations It was submitted that the Complainant's objective views of the allegations and events alleged, and the complete failure to show any nexus between her gender and the allegations or events, meant that on any analysis of the evidence before the Tribunal the only conclusion open is that the complaint should be dismissed. The discrimination complaint makes several allegations which are addressed below. The complaint was initially made against Mr Harkin only, and the Board interpreted the complaint to be against the department, and corresponded directly with them and not Mr Harkin. Timetabling changes The first part of the complaint alleged certain matters against the Respondent and the Complainant's allegations about the purported adverse effect on LOTE (Language Other Than English) students. It was noted that it was agreed that there was a requirement that a specified number of LOTE hours were required to be taught before the position of head teacher be maintained. Therefore, it was further noted that whilst at all times the Complainant presented the position she had adopted as being in the interests of the students, her own personal interests were also at stake, as she would have been transferred from the school if the LOTE hours fell below the specified number. The timetable changes were made in 1991 and 1992 and the Complainant's allegations are rejected by the Respondent as being unfounded and rejected as there is simply no connection between the allegations made by the Complainant and her gender. On 4 November 1991 the Complainant had made a written complaint to the Respondent, and a further complaint on 21 November 1991, and on 26 November 1991 a meeting was held with the Complainant, Mr Harkin, Mr Barraclough and Mr Marshall, and a memo in relation to the discussion was sent to the Complainant on 29 November 1991. That document makes it clear that the issues being traversed related to the mechanisms for "staffing, allocations and timetabling". There was nothing to suggest that the events took their course because of the Complainant's gender. It is a clear demonstration of the senior school staff endeavouring to deal with a difficult member of staff in a productive manner and to dispel the basis for her allegations. It was contended that the Complainant failed to appreciate the process and her incapacity to engage in it properly, and her failure to appreciate that the manner in which she countered the timetable decisions caused Ms Barraclough to state that the Complainant was challenging her integrity was a correct analysis by Ms Barraclough, demonstrates this continuing inability. Another teacher, Ms Helen McCosker, complained to Mr Harkin about the manner in which she had been treated by the Complainant, and her inappropriate note about certain proposals being "educationally unsound". Students were questioned about their choices and the allegations made by the Complainant, and there was an investigation of her allegations and an attempt to resolve the issues raised by her, despite the difficult manner in which she approached her colleagues and belittled their contribution. Her whole approach to the issue is a demonstration of Mr Harkin's comments in relation to her inability or unwillingness to consider the needs of the total school, its students and staff. A letter from the Respondent dated 22 April 1993 demonstrates that far from subjecting the Complainant to discrimination and victimisation, the Respondent was still advancing suggestions to assist the Complainant and was making positive comments about her potential. These clear statements run counter to any later suggestions that there were various acts of discrimination and victimisation occurring. Mr Marshall's memo provides an explanation of the process and the difficulties created by the Complainant, and Ms Barraclough's detailed description of relevant events provides further explanation which demonstrates the Complainant's inability and incapacities and the forcefulness of her assertions involving the timetable process. It is submitted that the Tribunal will prefer these statements to the evidence of the Complainant in relation to process, timing and impact on others. There is ample evidence before the Tribunal that at the time that the Complainant chose to try and intervene in the process of timetabling was overdue and after all the open processes were complete. It is submitted that on any view of the 1991 and 1992 timetabling issues raised by the Complainant, there is no basis for any allegation of sex discrimination by the Respondent or any other departmental employee. Instead, there is ample evidence to demonstrate that the Complainant created difficulties and made false allegations against her colleagues, worked in an unco-operative manner and refused to accept decisions which were properly made within the open structures established to develop such decisions. It is submitted that there is no basis for this Tribunal to accept that she has been unlawfully discriminated against in either year because she is a woman. The number of other women involved in the conduct of the process and the decision-making structures indicates clearly that such a proposition does not withstand any close analysis. Work report, November 1992 The Complainant has complained that the contents of the work report and the fact that it was "unsolicited" were the acts of discrimination. Since merit selection was introduced, the Complainant had not been promoted despite making applications, and these applications and decisions were prior to November 1992, so it cannot be asserted that the work report itself created the only or the most substantial barrier to her promotion. Her own experience and qualifications were the issues most pertinent in any promotion decision-making process, and it is on that basis that she failed to gain the advance she considered she was due. The Complainant has an incapacity to present information in an accurate manner when giving evidence, and tried to distort material presented, to her advantage. She asserted that the Respondent had refused to provide her with "any specific details" about the statements made, and that he had "remained totally evasive". Yet even on her own documents that version is not correct, and she presents a detailed record of a meeting on 8 December 1992 which canvasses all relevant issues. She then agreed that the matters were discussed but that the Respondent "failed to provide any substance". It is submitted that her assertion must be rejected as unfounded and inaccurate. It is intimated that the Complainant had ample opportunity to prove to the Tribunal the inaccuracies or otherwise of the statements made by the Respondent in the work report, but apart from asserting their inaccuracies, she has failed to do. The Complainant also alleges that the work report was inaccurate and she "was not given the opportunity to challenge it before it went into final draft". She was given various opportunities to discuss the document with the Respondent and she failed to take up all offers. It is submitted that a view held by the Complainant that the contents of this document with which she disagrees is not sufficient to make the contents discriminatory. There is no evidence to support the assertion that the two paragraphs in question are discriminatory, namely the last two paragraphs of the work report. The Respondent had endeavoured to discuss the issues he raised in the work report with the Complainant on many occasions, and due to her approach to all such discussions, he had made no progress. Ms McRae agreed that the work report was prepared contrary to the departmental policy at the time. However it is essential when considering this issue to put the work report within the context in which it was developed and to look at the overall picture of the Complainant's actions and allegations and her behaviour within the school. As Ms McRae indicated, it was his "outlet", given their limited scope and use, to express the fact that the Complainant was causing great difficulties. The work report makes certain comments about the Complainant which she construed as adverse, and they are an expansion of some comments made in the February 1992 report which was not entirely positive in relation to the capacities and attributes of the Complainant. She never responded to them in content and never took up the initial opportunities to further discuss the matters with the Respondent. Neither did she make any apparent attempt to address the issues identified negatively. She rejected them and refused to accept their validity, and she continued to do so in these proceedings, despite an abundance of evidence which clearly demonstrated that each statement made by the Respondent was accurate. There is no evidence to support any allegation by the Complainant that the contents of the work report occurred because of her gender, but as a direct response to her actions and behaviour in the school and towards the senior school staff. It is submitted by counsel for the Respondent that there is no evidence to support any assertion that the Respondent acted in a discriminatory manner when he produced the work report or that he was harassing or victimising the Complainant with it. There is a further allegation made in the Complainant's statement that the Respondent "threw the work report". It is submitted that the Tribunal should reject this allegation as being baseless, and the Respondent categorically denied this allegation, and it is submitted that his evidence must be preferred on this matter. In fact, the Complainant's memo the day after clearly states "You presented me with an unsolicited work report". It is submitted that the contention that the report was thrown is an exaggeration and one that should be rejected. Signing of promotion applications During 1992 the Complainant was submitting applications for promotion without the Respondent's signature, which was required on such applications. It was departmental policy that the application be signed by the Respondent, and this was clear on the face of the document. The Complainant agreed that this policy applied throughout the Department to all teachers and was not a policy directed at her alone. It is submitted this is a further example of the Complainant's attempt to disregard any policy which she considers unsuitable or inappropriate. No act of discrimination is demonstrated, rather a bureaucracy endeavouring to deal with a difficult employee who flouts rules and practices for her own convenience. "Hidden agenda" The Complainant asserted that there was a "hidden agenda" created by the Respondent to prevent her from applying for the position of leading teacher at Moorefield Girls' High School, and this proposition was advanced without any supporting statements. It is not included in the amended points of claim and the Respondent has proceeded on the basis that the matter is no longer being pursued. If it is still to be pursued, there is no evidence apart from the Complainant's assertion that there was any such hidden agenda. Indeed, in oral evidence she agreed that there was no bar or attempted bar placed by the Respondent to prevent her from applying for the position. It was an operation of her choice alone, and it is submitted that no claim for discrimination can be sustained. Harkin campaign to create stressful and hostile working environment The Complainant alleges that the Respondent conducted a campaign to create a stressful and hostile working environment, with an intention to destroy her professional reputation, which was a serious allegation made against the Respondent with no evidence to support it. It is submitted that despite the Complainant's subjective views to the contrary, there is no evidence before this Tribunal that the Respondent conducted any such campaign against the Complainant. The Respondent's attempts to resolve the matter within the school environment continued, despite direct and regular provocation by the Complainant when she wrote regular letters of complaint to departmental "senior officers", in which she made serious allegations against the Respondent, which it is submitted are unfounded and often scurrilous, or which twisted the actual situation into a newly defined position. Unresolved internal appeal The Complainant alleged that she had an unresolved internal appeal but this is factually inaccurate, and by February 1993 there was no unresolved internal appeal. There had not been one since 6 May 1991. It is submitted that there is no basis for the comparison which the Complainant seeks to make with any male teacher being sustained, as there is no evidence to support it and there is no act of discrimination and no evidence adduced by the Complainant to establish such an allegation. Memos directed at Complainant A memo concerning the applicant's absence from the school assembly is addressed in the Respondent's evidence and arose because of her other recent absences. There was no other teacher at the school in a similar position regarding absences, at the same time, and hence no basis for comparison. The Respondent indicated that he sent a note or spoke to others about their absences when it was appropriate. It is submitted that there is no act of discrimination in such memos, and there is no evidence adduced by the Complainant to support such a claim. VICTIMISATION COMPLAINT Legal factors - victimisation Section 50(1) of the Act contains several factors to be found before an act of victimisation can be determined, and the first factor is the cause or rationale for the action, and these factors are listed in paragraphs (a) to (d) and include knowledge of an intention or the suspicion of an intention to take some future action. The next factor is that there must be a causal link between the act complained of and the rationale, that is it must be "on the ground of". The third factor is that there must be "any detriment". The fourth factor is that the detriment occurs "in any circumstances". The Complainant is required to demonstrate that there is a causal nexus between the act complained of and the ground of victimisation. If there is no evidence on the face of the act complained of, apart from the subjective view of the Complainant that one leads to the other, then there is no basis for a complaint of an act of victimisation to be sustained. In relation to the term "to subject" the Tribunal has held in Bhattacharya v Department of Public Works (1984) EOC 92-117 at 76,133 that the better view appears to be that the word "subjected" carries with it a requirement that the Respondent intended to cause detrimental consequences to flow to the Complainant. Also in the case of Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,146 the Tribunal has held in relation to "detriment" that: "All that is required to constitute 'detriment' in a victimisation complaint is that the Complainant has been placed under a disadvantage as to the matter of substance as distinct from a trivial matter ... In any event the real issue in such a case may relate to the question of causation ... the 'necessary causal connection'". Factual allegations There is no dispute that the Respondent endeavoured to have the Complainant enter into an "improvement plan" and that this was unsuccessful. The Complainant refused to participate, ripping up the document on three separate occasions and returning it to the principal or relieving principal. An examination of the content of the improvement plan shows that it was a specifically directed document which endeavoured to address some of the Complainant's shortcomings demonstrated in the workplace. The Complainant agreed that it was designed by the leadership team to meet the problems of her perceived by them. There was no question of putting the Complainant's efficiency under question, as the initial step was never completed, namely the improvement plan. In relation to the delay of the TARS report, it is submitted that there is no basis for accepting that the deferral of the TARS was an act of victimisation. The Respondent stated that he delayed it to give the Complainant the benefit of the doubt. This provides a logical reasonable and sensible explanation for his conduct. The evidence is clear, and there is no basis for the Tribunal to reject his statements about his intentions, as they are reflected in the content of the plan and the attempt to keep it a "low-key" approach. The deferral of the TARS report and the development and attempted implementation of the improvement plan was simultaneous and the TARS deferral was not prior to, in any significant way, the development of the implementation plan and the process undertaken prior to its presentation to the Complainant. It is further noted that the issue of the deferral of the TARS report cannot be an act of discrimination as it occurred in July 1993, which was after the date of lodgment of the discrimination complaint. The Complainant's position continues to be that when she considers a document unacceptable, she is only required to ignore it and then the process will cease. This is not negotiation. She was unable to discuss matters constructively when any criticism or adverse comment was made about her. She agreed that on occasions she left the room if she did not like the conversation. The Complainant denied that the Respondent had raised or endeavoured to raise all the issues included in the improvement plan with her on previous occasions, but that statement is not correct as the Respondent, on the Complainant's own evidence, had endeavoured on many different occasions prior to July 1993 to raise with her all the issues included in the improvement plan. They reflect the material in the November 1992 work report and the issues discussed on 8 December 1992. To state that no discussion on the subject matter in the improvement plan had ever taken place is not only inaccurate, it is a serious reflection on the credit of the Complainant, and it is so obviously inaccurate, even on her own evidence. The Complainant then elected to refuse to participate in any meeting proposed to negotiate the content, and behaved in a professionally inappropriate manner by tearing up the documents and returning them to the most senior school officer responsible for the management of the school at that time: "Obviously the schools system could not function if the degree of latitude acted on by the Complainant was a common mode of operation by all or a majority of teachers". A senior officer of the Department indicated that he did not consider that it was appropriate that the improvement plan be suspended on the basis that there was a complaint to the Board. Further, he encouraged her to undertake the plan. The senior officer, namely Mr Green, was the responsible senior officer in the regional office at that time, and he knew of the improvement plan and the Complainant wrote to him to set out her concerns, whereupon he examined the issues and he indicated that, while he was unaware of any act of victimisation, the process would have clarified the situation. It is submitted that the documents tendered by the Complainant clearly demonstrate an open negotiation process offered by the principal or relieving principal. A refusal by the Complainant to participate in offered negotiations cannot found a later complaint of victimisation. Further, her own professionally inappropriate actions and her unauthorised refusal to participate in a properly constituted process must be taken into account when assessing the assertions made by the Complainant. It is noted that the Complainant had no authority to refuse to participate in the meetings set down, and as she agrees, she participated in none of them. The process was later abandoned because of the Complainant's persistent unauthorised refusal to participate, and it is submitted that there was no act of victimisation, including no detriment suffered by the Complainant, in relation to the improvement plan. Different working conditions The Complainant makes a general allegation about "singular and special attention", but there was no evidence that there was any "establishment of working conditions", any "monitoring", any "supervision" or any "evaluation" which were outside departmental policies. Just because there was a sequence of events which occur in a certain chronological order, there is no connection between these events unless the Complainant can establish that there is one. Again a simple assertion that "X" leads to "Y" is insufficient to demonstrate victimisation. Further, the Complainant must establish that there has been a "detriment" to herself. While others were willing to participate and endeavoured to assist her, she refused and actively set about destroying those attempts, and her attempts at justification of the breakdown of that process further demonstrates her incapacity to accept any responsibility for her own actions. Unwanted item The Complainant has agreed that the "unwanted item" referred to in the victimisation complaint is a school spoon (exhibit B) sent by the Respondent after she had left the school. It was sent to her at her new school and arrived in her pigeon-hole. The Complainant did not return to the school in 1994 as she had been transferred to another school at 3.20pm on the last day of term. The Respondent sent her the spoon with a note saying "Liz, here is your spoon, best wishes, Jim Harkin" (exhibit 8). It is submitted that there was no act of victimisation when the Respondent sent the Complainant the teaspoon, and on her own evidence it was a special memento for working at the school for a reasonably long period of time. The Respondent stated: "If people are transferred in the holidays, it is common practice for me to send them a spoon with a short note ... My intention was to wish Elizabeth, as I have indicated in the note, all the best in her future career and to ensure that she received the same gift as every other person who had taught permanently on the staff of the school. I was most concerned that it be sent to her" (Tx: 8.11:36:18) Cause and effect of transfer It is noted that pursuant to section 71 of the Teaching Service Act 1980 a transfer may be directed, and the failure to comply with such a direction may result in dismissal (section 74). Far from victimising the Complainant because of her complaint, the transfer was designed to enable her to continue with the processes she sought to pursue. Further, on the face of the victimisation complaint itself, there is no detriment in terms of her own response, as she presents the transfer in a positive manner. She complains of a "professional disadvantage" which is an unsupported allegation which cannot be sustained on an examination of the facts. She was transferred to a head teacher LOTE position in another school. Her terms and conditions of employment were not altered and were certainly not reduced. Further, it is submitted that there is no basis for any victimisation claim to be made. Graffiti The evidence of Ms Taylor in this matter shows that the accurate sequence of events meant that the graffiti was obviously a campaign targeted at Ms X, another head teacher, and it went on for about nine months. Ms Taylor did not inform the Respondent about the graffiti or the reasons nominated (Tx: 22.11:45.52-46.13). However, the Complainant stated that she did not believe that the Respondent did not know of its existence. This is an assertion made by her on the basis of no information, and is clearly contradicted by the person who was directly involved in the process. This is another example of the Complainant drawing conclusions on the basis of no facts and making assertions about the Respondent that are completely at odds with the real situation. Ms Taylor was not cross-examined about the graffiti and so her evidence must be accepted by the Tribunal. Comments by Harkin The Complainant alleges that another person told her that the Respondent had said "he was suffering from a disease called Haswellitis". Ms Latimore was not called by the Complainant to verify this statement alleged to have been made and heard by her. Taken at its highest it is a trivial remark made in passing in December 1993. An examination of the sequence of events initiated by the Complainant against the Respondent from 1990 to that date makes the comment explicable within the usual parameters of a reasonable human response. The Respondent indicated it was a phrase he may have used on one occasion in an informal context, and he did not consider it unprofessional. He indicated it was a comment (if used) relating to his capacity to concentrate, and indicated that he was having a difficulty and a problem. It is submitted that the Complainant has not established that the comment was used at all by the Respondent, and even if it was used, the comment did not constitute an act of victimisation, as the Complainant has shown no detriment to herself in this regard. The Respondent received a letter from Mr Fox of the Department of Education dated 12 July 1993 requesting that in his role as principal he undertake certain tasks in relation to the head teacher position. As the letter states: "A copy of the procedures to be followed and the guidelines are attached". The Respondent followed the guidelines. He did not set them, he followed them. The head teacher position was able to be supported where the number of 40-minute periods required in any subject or group of allied subjects exceeds 81 per week. The formula for the total period allocation to be used is set out and includes non-elective languages year 7, three periods; year 8, three periods. That was the formula used by the Respondent, and the Complainant claims that by using the formula he was subjecting her to an act of victimisation. It is alleged that this assertion does not withstand any scrutiny. Rather than disadvantaging her, the Respondent gave the Complainant a benefit, as he could have recommended abolition of her position. Instead he amended the form to put in an option not provided, which was that there be a review in 1994. The number of students studying languages at Moorefield Girls' High School was the key factor to be taken into account, and it is submitted that there was no act of victimisation in the way the Respondent followed policy and implemented it. The Complainant indicated that Mr Fox wrote the letter to deliberately discriminate against her because she is a woman and to victimise her because she is a woman. It is alleged that such a claim cannot be sustained. Whatever her own views of her abilities may be, the Complainant was the head teacher in a school and she did not have any senior management role, either within a school or in the administrative arm of the department. She was a teacher in the same way as many thousands of other departmental employees, and her role in the managing and direction of the department was no more than that. Her responsibilities were primarily to the students and to the proper conduct of the school. It is submitted that her actions in writing to Mr Fox about this issue demonstrates her incapacity to accept decisions made within the school when she does not agree with them. An employee must follow proper and appropriate processes and to fail to do so cannot later form the basis of a complaint of victimisation. In relation to the counting of general studies, the Complainant agreed that this subject was counted in different faculties at different schools, and although she taught the subject in some years, it was not usually counted in the LOTE subject periods. It is submitted that there is no act of victimisation by the exclusion of general studies from the LOTE periods. Continuing disadvantage There are a few nominated issues raised by the Complainant including the fact that the Complainant could not present herself for promotion until the complaint had been resolved. There has been no evidence presented to the Tribunal to support this assertion, and it is submitted that there is no basis for any allegation of victimisation, as there is no evidentiary basis for the assertion. Other issues The commencement of the alleged victimisation is asserted to have occurred from 1 November 1991 when the Complainant applied for leave for "urgent legal matter, attend to (EEO tribunal)". The Respondent did not recommend her leave as he wrote on the form "I feel more information should be supplied prior to a recommendation. Request was denied". He further states that his request for further information from the Complainant was denied. The policy in relation to long service leave was not followed, as there was no advance notice, and the leave in any event was ultimately granted. It is submitted that there is no basis for any assertion that the submission of the leave form by the Complainant, and the Respondent's reaction, were a sequence of events in themselves an act of victimisation or events which were the trigger or lead to the series of acts of victimisation. Further, it is submitted that there is no responsibility on an employer to provide leave to enable or permit a teacher to pursue a private action against the employer, whether in discrimination law or any other area of law. The primary responsibility of the teacher is to attend school and teach classes, unless leave has been granted. It is submitted that the allegation of the Complainant that the Respondent's statements on grievances, and linking them with any promotion application or any other issue, demonstrate that as far as the Respondent was aware, there was no grievance outstanding at the time they were alleged to have been made, and the Respondent alleges that the Tribunal did find that it is inherently unlikely that the Respondent would make such statements, as they would be illogical and indeed perverse. It is stated by the Respondent that the work report is a document designed to be placed before an assessment panel when considering applications, and it is one of other documents, and that is its only role. The Respondent denies that his intention in preparing two work reports being that the Complainant would not receive an interview. The Respondent denies that he used the word "slut" and the phrase "slut school". All other witnesses before the Tribunal, giving evidence for the Respondent, also denied this allegation. It is submitted by the Respondent that he did not have the power to stand down an employee, and the Complainant knew, and it is also in direct contradiction to his written statements during the process where he continued to endeavour to assist her to develop as a teacher. The Complainant has agreed that she did not see the Respondent during 1994 and had no contact with him, apart from the receipt of the teaspoon in 1994, previously referred to. On 4 December 1995 the Complainant wrote a letter stating: "I resigned from the department earlier this year in order to stand as a candidate for the federal seat of Banks at the next elections". It is further submitted that apart from an unsupported assertion by the Complainant, there is no evidence to indicate that the panel's decision was not unanimous, both in determining the short list and in the nominated appointee. It is submitted that there is no evidence to support the Complainant's assertion that there was a preference to Mr Marshall because he was acting principal, nor is there any evidence to support a "perception of preference" or "advantage" except in the Complainant's mind. As she was not any of the decision-makers, and the decision-makers specifically denied such a perception having any role in the decision-making process, there is nothing to support this part of the submissions. The actual appointment decision was not made by the panel, but by a senior departmental officer, and the panel, of which the Respondent was just one member, makes a recommendation to that officer and hence does not make the decision as such. The evidence of the witnesses for the Respondent, namely the evidence of Ms McRae and Ms Fox and the Respondent, indicates that the officer did make the correct decision, and that all members were equal. In relation to the telephone call after the culling exercise made by the Respondent, advising the Complainant of the outcome, on the evidence available it would appear that the Respondent endeavoured to be sensitive to one of his staff members, and she has simply misconstrued his attempt and loaded a false motive on to his actions. It is submitted that there is no evidence to sustain her allegation. The taking of leave by the Complainant became a difficult management issue for the school, and the Respondent raised with her his concerns about the time off and the effect this was having on students, especially senior students. She was offended by this suggestion, but it is submitted that it was an appropriate concern for a principal to have when a person is taking time off which is not requested in advance and no arrangements are made. Also the long service leave policy was not being followed. The issue was raised with her by the relevant departmental officer, Ms Sally Lord, whereupon the Complainant replied and made various accusations against this officer. Ms Lord replied and rejected the accusations. The Respondent submits that none of these issues raised any matter of discrimination or victimisation. However, they state that they are further indications of the Complainant's incapacity to deal with the rules and requirements of the system. Relief sought The relief sought by the Complainant in this case includes an application for damages, destruction of certain documents which the Complainant alleges referred to her. She also seeks an apology and costs. Concluding submissions by the Respondent 1. That the Complainant has not discharged her onus of proof and has not established that any of the events, decisions or actions were "on the ground of sex or victimisation". 2. Rather, she has established that they all occurred because of her personality, work experiences and interactions with others. Her demeanour in the witness box was a clear demonstration of many of the comments and criticisms made by the Respondent and others, and she consistently failed to follow directions from the Tribunal, to endeavour to answer questions shortly, rather she chose on innumerable occasions verbose answers failing to address the issue in question. 3. The Complainant's basic stance was demonstrated by this exchange in cross-examination: "RONALDS: So, there was a conspiracy. Who did it involve? HASWELL: It would involve Mr Harkin initially and the leadership within the school, and then going up from there, Ms McRae especially. And then ultimately involving Mr Scott, Mr Fox and Mr Green and then indirectly Mr Ward, in his acting capacity as ADG at the time Mr Green was away. All within the change-over period between Mr Scott and Mr Green. RONALDS: I suggest to you that no departmental officers ever conspired against you, did they? HASWELL: Since we have found out now that Mr Fox was directly and Ms McRae was directly involved in the formulation and the development of the improvement plan, and not only in the process of the development but also in the content of the improvement plan, then yes this could be considered and I do believe conspiratorial". 4. The only conclusion to be reached from this allegation is that the Complainant considered that any person who took a decision or participated in a decision with which she did not agree committed such an act, and was therefore part of the conspiracy. 5. In all major points of dispute in relation to the many conversations alleged by the Complainant and denied by the Respondent's witnesses, the Tribunal will prefer the evidence of the Respondent's witnesses. The Respondent submits that the Tribunal must prefer all other witnesses to that of the Complainant, as her evidence is inaccurate on many occasions, and on occasions, false, and the Respondent was stressed about the processes involved with dealing with the Complainant and handling the many issues and complaints she created, in his opinion, and the effects that these had on the school. His correspondence makes this clear, and there is no evidence to support any other conclusion. 6. It was also observed that the Complainant did not support her own case with any witnesses to corroborate her allegations. Complainant's submissions in reply Counsel for the applicant put the following submissions before the Tribunal in reply, in which he indicated that when assessing the conduct of the Complainant serious regard should be given to the evidence of a number of the Respondent's witnesses, who more reasonably put the conduct of the Complainant in a proper context than did, for example, the Respondent. Counsel gives the following examples of his assertions: Mr Ward (this witness was at that time the chief executive officer of the New South Wales Board of Studies). This witness attempted to give accurate evidence but lapses of memory did not convince the Tribunal of the accuracy of the evidence. This is an opinion of counsel and not necessarily of the Tribunal. Miss Barraclough . This witness, under cross-examination, at page 51ff, in her evidence given on 21 November 1996, gave conflicting evidence concerning her contact with schools which had already been contacted by the Complainant. Her statement says that she did so, but in reply to a question under cross-examination she indicated that she did not contact them personally but gave a direction for things to be done. When asked if within the leadership team it was said that the views of the principal from time to time might carry more weight than the views of the other members of the leadership team, the witness denied this allegation. In relation to the timetable at the school, when a review was being considered, the witness was asked the following question under cross-examination: "Q. There was nothing wrong with a head teacher saying 'please have another look at this' in the context of the whole review, was there? A. No, there is not. Q. You see, apart from you believing that the issue had been addressed as a matter of principle, you have no difficulty with the matter of the time being raised by Ms Haswell being raised at that time? A. Correct". Mr Wicks (a teacher at Moorefield Girls' High School). Under cross-examination he was asked: "Q. You would accept, would you not, that if once the matrix is done and the allocations by the head teacher, that if a head teacher has a serious concern about the proposed timetable that that is a matter which can be raised within the school? A. Yes". Mr Hamilton-Foster (evidence on 21 November 1996, the same date as Mr Wicks gave evidence). Part of this witness' cross-examination led to the following question and answer, in relation to the delay to the timetabling process: "Q. I am just suggesting to you that what you really meant was the delay, however caused, being the cause of concern that you are referring to, rather than the specific delay by the Complainant? A. Yes". Mr Sweet (evidence given on 21 November 1996 - head teacher of mathematics at Moorefield Girls' High School). This witness was asked inter alia the following questions: "Q. ... You don't disagree that head teachers or, indeed, any teachers can talk to the students and give them advice generally about their choices of subject? A. In terms of the question that you're asking, the proposition, yes, but it depends on the time when that is being done. Q. Once subject selection is done, pressures might occur and there is a further selection process by the students to take place? A. Correct. Q. And it would be appropriate, again, for students to seek and be given counselling at that stage about their choices? A. That is true". Ms McRae (evidence given on 22 November 1996 - chief education officer of the Coffs Harbour Education Campus). Inter alia the following questions were asked under cross-examination: "Q. And then did the committee meet to deal with the culling process? A. Yes. Q. Then the final candidates, I think there were four, is that the usual number in this case? A. I can't remember how many we interviewed. Q. The final candidates for interview were then notified and the committee met again later to interview those candidates? A. Yes. Q. Just as the culling process, was it simply a matter of adding up everyone's scores and taking the top how many were chosen, or is it some other sort of process? A. There was - certainly all of us looked at those people that we felt as individual panels should be interviewed, and then there was a discussion on those people that we felt - there was a discussion first of all on why people should not be interviewed and, you know, why we had selected some and not others, and it was all to do with the criteria that was set. Those criteria were discussed first of all and then there were people discussed that we thought should be interviewed and then there was a discussion of some people that we had virtually put in the middle, between us all, because there was some that some wanted interviewed and some didn't give them as high a priority. Q. And you said that the preparation of the work report in February 1992 without consultation was not in line with school policy. That's right? A. Yes. Q. ... In fact it was not in line with departmental policy? A. Yes. Q. Mr Harkin should not have used the forum of the work report as an outlet in a way that you have described it, should he? A. No. Q. There were other outlets available to him, weren't there? A. At that stage he didn't believe there were. Q. And you accept don't you that if there is a perception, rightly or wrongly, of a lack of impartiality of view, I am talking perception, in relation to the Marshall review process, that that perception could continue in relation to any other processes, subsequent processes that you were involved in? A. Yes. Q. Ms McRae, you are aware that there are a number of differences between you and Ms Haswell as to the context of conversations, or the content of conversations? A. Yes. Q. I'm asking you in relation to the unsolicited report written in 1992, the outlet report, if I might put it that way, that greatly contributed to almost an impossibility of reconciling the situation, having regard to human beings? A. It made it more difficult". Ms Taylor (evidence given on 22 November 1996 - a leading teacher at Moorefield Girls' High School). In relation to certain memos sent by this witness to the Complainant, the following questions, inter alia, were asked: "Q. Well I'm suggesting that you having a note about a subject matter, about which you were to be consulted, makes it more efficient for you, before you were to have a meeting with the person concerned, doesn't it? A. The person concerned did not ask for a meeting. Q. And would you accept that readers of documents can put different interpretations on those documents? A. They can indeed. Q. But in your experience on all occasions, was the QA (quality assessment) team able to or does satisfactorily resolve all concerns that an executive may have? A. That has not been my experience". Mr Green (evidence given on 22 November 1996 - Assistant Director General of the Department of School Education). Inter alia this witness was asked the following questions: "Q. Didn't you understand Ms Haswell was complaining in the grievance within the school system about the improvement plan? A. My understanding was that Ms Haswell was declining to participate in improvement plan. Again I believe that the issues of the school were much broader than the improvement plan. Q. Mr Green, I'm not suggesting it is limited to the improvement plan, but it included the improvement plan. You understood that, didn't you? A. The improvement plan was related to the grievance, but my understanding is that the issues, the school-based issues, went back as far as 1990 and 1991. The school improvement plan was a relatively minor issue. Q. And in your comments column you assumed that the existing programme, which is the improvement plan, will continue? A. Should continue. Q. Yes, but you say you would recommend disciplinary action against Ms Haswell if there is no significant improvement as a result of this plan? A. That's standard practice. Q. Yes, but you weren't in a standard situation here were you? A. It was an unusual situation, in that a person had refused to participate". Mr Peter Howard (evidence given on 6 December 1996 - a teacher at Moorefield Girls' High School). This witness was asked certain questions under cross-examination concerning Mr Harkin entering a classroom in which Ms Haswell was teaching, and in relation to the dance at St George Leagues Club in 1993: "Q. What in your view was the relationship between Ms Haswell and the other teachers and staff, amicable or..? A. At the time of...? Q. Generally over the period that you've known her at the school? A. I think there were a number of teachers that felt she was a good teacher, including myself. Q. What proportion of those would there be? A. I would find that hard to estimate a proportion. I was aware there were problems within the executive staff of the school. I was an acting head for a small period of time and I sat in on a meeting and I was aware there was - there were ill - there was ill feeling. Q. Between the principal and..? A. I was aware that Liz was not happy although I really had no idea of the extent of what the problem was at the time. Q. Over what period did that extend? A. A few years. I really only became aware of the problems when I read the transcript this year. I really hadn't - I had really no idea. I knew there was a problem. Q. But for most of the time she was quite well liked by fellow teachers, was she? A. I would rather comment on how I felt about her. I don't feel I'm in a position to comment as much on how the other teachers felt. Q. I think you might be in a position to tell me whether, in fact, you on any occasions saw her speaking amicably or just having normal conversations with other female and male members of the staff. You could tell me that surely? A. Yeah, most definitely, yeah, participating fully. Q. Yes, and what is your precise feeling about it? A. I felt she - I feel she was a great teacher. I thought she was very good. One thing, I respected the Anzac Day service that she - she put on. I remember commenting to Jim at the end of it how good it was - it was one of the best Anzac Day services I've seen - and he agreed with me". Counsel for the Complainant, in reply, submits that his client relies upon her primary submissions. He goes on to comment on particular submissions made by the Respondent's counsel and certain excerpts are referred in this judgment: Timetabling - It was indicated that the Complainant had experience in timetabling and was perfectly entitled to take concerns which she had to the principal, and also that there was nothing inherently wrong in leaving memos for other members of staff. Counsel also questioned the evidence of Ms McCosker when, in his opinion, she expressed her (obviously) adverse view of the opinions of the staff at Moorefield. Work report November 1992 - It was submitted that there was no justification for this report and that there was no discussion about it, and it was undoubtedly unsolicited in circumstances where there was no risk that any application by the Complainant and signed by the Respondent would be considered by a promotions committee. It submitted that this was victimisation. Counsel submits that the suggestion that his client's attitude, if typical within the school system, would mean the breakdown of the school system, the contention is that had she not had the treatment she received, she would not have had to take the steps she did. It was submitted that the comment "Haswellitis" was used, and that the use of it should be the subject of significant criticism. Relief - It was submitted that the treatment by the Respondent was one of the reasons that the Complainant left the school system and sought to establish evidence to substantiate economic loss. Counsel also referred to the evidence given by the Complainant of the physical effects upon her when she left the school, namely anxiety, distress and other matters referred to in her statement, and suggested the non-financial relief sought is a case of lateral thinking within the power of the Tribunal, and that in circumstances such as those which arose in this case, the simple award of money can never fully redress the situation. Conclusion -It was submitted that the Complainant was not simply a Complainant but a person under serious consistent and lengthy attack. Following the conclusion of these submissions, counsel submits that the Tribunal can safely find that the complaints had been made out and make an award of damages and other relief. Findings This was a sad case in the sense that all members of the Tribunal felt that the Complainant was completely genuine in her opinions and belief, but they could not be substantiated having regard to the evidence given by the Respondent and his witnesses, who established on the balance of probabilities that the Complainant was a strong-willed, self-assertive personality and was involved in many verbal clashes with the Respondent and other members of staff, and that she was unable on many occasions to accept a view expressed either by the Respondent or certain committees, which was contrary to her own. It was quite evident when the Complainant was giving her testimony that she had deep-rooted grievances concerning certain members of the staff at Moorefield Girls' High School, and the Tribunal is of the opinion that those grievances arose from emotional rather than factual circumstances. She adopted an extremely assertive attitude in the witness box, mainly because of her unwavering determination and genuine belief in the facts relating to her case. It cannot be doubted that she was in many respects a conscientious teacher, but came into personal conflicts with opinions which were contrary to her own. It therefore cannot be said that the Complainant was an untruthful witness for the reason as previously stated, namely that she genuinely believed that the allegations she made were in her opinion true. The Tribunal considers that the evidence given by the Respondent and his witnesses, apart from some minor contradictions, truthful and that the Complainant did not establish sexual discrimination in the area of employment, or victimisation, pursuant to section 24(1) and 25(2) and section 50 of the Act. In relation to the unsolicited work report given by the principal to her, the Tribunal is of the opinion that the Complainant had admissively frustrated the principal for an extended period of time, but that the report itself did not constitute victimisation. The Tribunal finds that the Complainant has not substantiated her claims of sex discrimination in the area of employment, and victimisation, and on the balance of probabilities, her complaints must fail. Orders (1) That complaint Nos. 17 of 1994 and 81 of 1995 be dismissed. (2) That no order be made as to costs 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.