Industrial Court of New South Wales CITATION: Patricia Cretney v State of New South Wales [2008] NSWIRComm 131 Applicant: Patricia Cretney PARTIES: Respondent: State of New South Wales FILE NUMBER(S): IRC7430 of 2003 CORAM: Kavanagh J CATCHWORDS: s106 application - unfair contract - allegation conduct of departmental investigation into school management unfair to staff member- recommendation for formal investigation of matters which may be disciplinary - recommendation for transfer of applicant in any circumstance - recommendation not acted upon - recommendations not findings nor proposed findings - applicant given procedural fairness - departmental policy followed - departmental procedures meet procedural fairness rules - no application of principle of legal coherence - distress suffered not related to unfairness in contract - no evidence of damage to reputation or defamation - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Abboud v The State of NSW (Department of School Education) (1999) 92 IR 32 Banas v State of New South Wales [2003] NSWIRComm 317 Bowker & Anor v Software Engineers Australia (NSW) [2004] NSWIRC 104 CGU Workers Compensation (NSW) Ltd v Garcia (2007) Aust Torts Reports 81-908 Hyde v Energy Australia (1999) 92 IR 409 CASES CITED: Hunter Area Health Service v Presland (2005) 63 NSWLR 22 Mitchforce v Industrial Relations Commission (2003) 57 NSWLR 212 New South Wales v Paige (2002) 60 NSWLR 371 State of New South Wales v Banas (2004) 137 IR 63 Sullivan v Moody (2001) 207 CLR 562 Sydney Water Corporation Ltd and Anor v Industrial Relations Commission of NSW & Anor [2004] 61 NSWLR 661 Truelove v Sydney Water Corporation Limited [2005] 146 IR 253 HEARING DATES: 01/04/08, 03/04/08, 07/04/08, 08/04/08, 09/04/08, 13/05/08, 20/05/08 DATE OF JUDGMENT: 6 August 2008 Applicant: Ms C. Howell of counsel Solicitors: Ms M. Walsh Turner Freeman LEGAL REPRESENTATIVES: Respondent: Ms K. Nomchong of counsel Solicitors: Mr M. Burns Hicksons JUDGMENT: - 70 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Wednesday 6 August 2008 Matter No IRC 7430 of 2003 PATRICIA CRETNEY v STATE OF NSW Application under s106 of the Industrial Relations Act 1996 JUDGMENT [2008] NSWIRComm 131 1 In the heart of the beautiful Southern Highlands lies Penrose, a semi rural village community. In the year 2000, the primary school had 49 children enrolled. The teaching staff at the school was a Principal, an assistant teacher and a casual teacher (who acted as relief librarian). The administrative staff was a part-time senior school assistant (the applicant), a part time school assistant and a part time general assistant. The school was supported by an active Parents and Citizens' Association (P&C) and a School Council. 2 All was not well in the sleepy village. The community was torn asunder as to who should be the Principal of Penrose Public School. The school had four Principals between 1989 and 2000 and a number of relieving Principals. Most had asked for a compassionate transfer within a short period after appointment. In May 1999, another Principal left on compassionate grounds. This became a matter of concern to the NSW Department of Education and Training (the Department). A Management Review of the school was proposed by Mr Thomas the District Superintendent of the Shoalhaven area (the district which covers the Penrose Public School). On 30 June 1999, he wrote to the Assistant Director, General Primary Education, requesting a School Management Review of Penrose Public School as follows: BACKGROUND · Penrose Public School had had four Principals in the past 10 years. · Each principle had stayed a short period of time and had sought compassionate transfer or relinquished the position. · The community supports the second teacher and wants him to be directly appointed as Principal. · This request is currently with the Minister. COMMENT · Each Principal that has left has done so indicating how difficult it is to work in the school with the community supporting the ideas of the second class-room school teacher. · There are indications that this classroom teacher could be undermining the authority of the Principal. RECOMMENDATION · It is recommended that a School Management Review be undertaken early in Term 3, 1999. 3 The Review was approved by the Assistant Director General and on 1 July 1999, the District Superintendent wrote to the President of Penrose P&C advising there would be a formal Management Review to investigate past Principals leaving and the educational performance of students at the school. However, following correspondence from the P&C and the School Council, the Department agreed to delay the Review until a new Principal was appointed (following the usual merit selection procedure). 4 Mr Robert Randazzo was the school's Assistant Teacher. He had been Acting or Relieving Principal for many periods between 1989 and 2000 on the departure of each Principal. He had strong support from within the school community including, at the time of the proposed review, Mr Chris Mullett, President of the Penrose School Council and Mr Ben Hall, President of the school's P&C Association. One Principal revealed he sought compassionate transfer on the grounds Mr Randazzo was undermining his authority and affecting the proper functioning of the school; another because Mr Randazzo had factionalised the community/parents and had the support of Mrs Cretney; a third because she felt she had to do battle with Mr Randazzo and his supporters and her health was being affected. A number of casual teachers also refused to work at the school citing difficulties including altercations with Mr Randazzo. 5 The position of Principal was advertised in mid 1999. Mr Randazzo applied for the position. Ms Kate Murphy also applied. The Selection Panel comprised two independent persons together with Mr Mullet, President of the School Council. The Selection Panel chose Ms Murphy as the new Principal. Mr Randazzo appealed that decision and Mr Mullett supported the appeal, declaring, in his view, the panel had been biased. Mr Randazzo's appeal was unsuccessful and Ms Murphy commenced as Principal on 9 February 2000. 6 Patricia Cretney, the applicant, had commenced employment with the Department as a casual clerical employee at Moss Vale High School in 10 September 1987. In 1989, she was appointed as part time senior school assistant at Penrose Public School. In 1992, the applicant was given additional casual part-time work as the senior school assistant at Wingello, another public school. On 14 October 1996, she was appointed as a permanent part-time employee and worked at Penrose Public School for 12 hours 30 minutes per week (and also had three hours five minutes work per week at Wingello). Mrs Cretney had therefore enjoyed a long professional relationship at the Penrose Public School. Over the past years she had also been a member of the P&C and had been nominated by the School Council as its representative on a selection panel for the appointment of one of the past Principals. She had been an active school community member as well as a staff member. The Department's School Development Policy 7 The Department had a School Development Policy. Under that Policy, Education Support Teams could be placed into schools and a School Programme Review could be conducted. A School Management Review could also be conducted. A Management Review of a school is authorised where there is substantive evidence of a significant malfunctioning in the operation of the school. The objective of the School Management Review is to assist the school to improve its management. 8 The Policy states, for the conduct of a Review, it must identify its Objectives; meet Key Principles; accept Guidelines on the Relationship between the School Reviews and Individual Teacher Efficiency and Conduct and refer for monitoring, the Review Process. 9 Under Part 3 of the Policy, after the recitation of the relevant key principles necessary for the establishment of such a Review (as recited in Stage 3.2(a)-(h)), the key principles to be observed during a Review relevantly read: Key Principles (a) . . . (b) . . . (c) . . . (d) . . . (e) . . . (f) . . . (g) . . . (h) . . . (i) All available relevant information will be drawn on. The relevant school staff identified in (d) above should have the opportunity to respond to the information gathered. (j) Information gathered in school program reviews may be used in departmental investigations and the resolution of complains and grievances. In these circumstances there is no guarantee of confidentiality. Individual Review Team members are required to use information gathered during a program review for the purposes of review only. (k) Close liaison will be maintained between the superintendent, the principal and relevant staff regarding all aspects of the school management review. (l) As a result of the review a report containing recommendations and strategies for further action and development will be produced. (m) It is expected that the report, including the recommendations, would be fully discussed with the relevant staff of the school and provide the basis for improved management practices. (n) A variety of support will be considered to assist schools to implement the recommendations. (o) Reports will be for internal school use. General issues arising from the report may require a systemic response. (p) At all times in the process of the review, the professional integrity of the school and its staff will be preserved. (q) The superintendent will have a responsibility to oversight the implementation of the recommendations of the management review in consultation with the principal and relevant staff. (r) It is important to note that the management review process is separate to the process associated with reviewing the efficiency of individual staff. (s) . . . 10 The applicant asserted that in the conduct of the Management Review of Penrose Public School, many of the key principles outlined above were breached and the review became unfair and such conduct made the applicant's contract of employment unfair. She asserts her professional integrity was not respected and her efficiency as a staff member challenged. 11 Also relevant is Part 4 of the School Development Policy which states: GUIDELINES ON THE RELATIONSHIP BETWEEN SCHOOL REVIEWS AND INDIVIDUAL TEACHER EFFICIENCY AND CONDUCT 4.1 The provisions of the Protected Disclosures Act and the Child Protection Act still apply. Teachers are still required to notify under the Children (Care and Protection) Act and have rights under the Protected Disclosures Act. 4.2 If, in the course of a review, information is revealed which relates to a breach of discipline, including teacher efficiency, the team leader of the review must inform the District Superintendent who will inform the Assistant Director-General. 4.3 The Assistant Director-General, in consultation with the District Superintendent and the team leader, will decide: i) if the review is to continue, taking into account the nature of the issues raised and whether the objective of the review can still be achieved; and ii) if the matters require separate departmental or legal procedure. 12 In the conduct of the Penrose Management Review, the applicant asserts it was at Stage 4 that the Review process became unfair. She asserts the use of the powers vested in the Review Team and the Assistant Director General under Part 4.2 and 4.3 of the guidelines were used unfairly and against her interests. 13 The stages in the conduct of a Management Review of a School are also outlined in the Policy and relevantly read: STAGES OF SCHOOL MANAGEMENT AND PROGRAM REVIEW Stage 1: School Review Nomination Process . . . Stage 2: Review Team and Nature of the Review Determined . . . Stage 3: Pre-Review Activity . . . Stage 4 : Review Conducted . . . Stage 5: Post Review Activity . . . 14 The applicant takes issue with how the Review was conducted. Stage 4 of the Management Review procedures reads: Stage 4: Review Conducted: 4.1 Activities undertaken as per agreed timetable (interviews, document analysis, observation, etc). 4.2 Synthesis session held daily. 4.3 Relevant staff have the opportunity to respond to the information gathered. 4.4 Findings, proposed recommendations and strategies for further action are discussed with relevant school staff and the principal. The Policy contains "Notes" guiding the implementation of Stage 4 and at Stage 4.4 "the findings, proposed recommendations and strategies for further action are discussed with relevant school staff and the principal". The notes state: It is important that: .... Consideration should be given to including others where it is considered appropriate. 15 Stage 5 of the Management Review outlines the post Review activity. It states: Stage 5: Post-Review Activity 5.1 Team leader writes report within 2 weeks. 5.2 Draft of the report sent to the principal and superintendent for comment (1 week). 5.3 Report finalised (2 weeks) and forwarded to the D/S (where D/S not team leader), ADG, school evaluation unit and team members. 5.4 Report including recommendations and strategies for further action fully discussed with the principal and relevant school staff by the team leader and the D/S (where appropriate). 5.5 Principal (in the case of program reviews) and D/S (in the case of management reviews) oversights ( sic ) implementation of the recommendations. Under Stage 5, the Post-Review Stage, the draft of the Report is sent for comment to the Principal and superintendent. It is also stated in the "notes" to Stage 5: . . . It is important that: · the discussion of the report includes all persons who have a stake in the implementation of the recommendations. The Penrose Public School Management Review 16 In March 2000, Ms Murphy, once she took up the position of Principal, sent an open letter to the school parents stating: . . . The terms of reference for the review are as follows: The circumstances relating to staff leaving Penrose Public School after short periods of service. Information for the review will be obtained mainly through interviews of past and present school staff and parents and the community members. . . . Some parents will be invited by random selection to take part in an interview. Letters have been sent to those people. Those not selected randomly may volunteer to take part. . . . 17 Mr Bob Chalmers, Chief Education Officer, School Improvement and Mr David Ashford, Chief Education Officer, School Improvement, Batemans Bay were appointed to conduct the Review. Both were senior and experienced educationalists. Each had over 30 years' experience, acted as Principals of schools and also served in senior positions within the Department. 18 After the announcement of the Review in July 1999, Penrose school's P&C Association objected to the conduct of the Review and won a concession from the Department to delay the Review until appointment of a new Principal was finalised. On receipt of the Principal's letter advising the Review would now proceed on 14 March 2000, the P&C objected again to the proposed Management Review. In a letter written to the Assistant Director, the following view was relayed to the Department: . . . It is the decision and view of the Penrose School Council and the Penrose School P&C Committee that no useful result could be obtained from such a review taking place at this time. We therefore request that in order to support the community quest for maintained stability at Penrose School that the Department will not initiate such a review at this time. The request was denied. The Management Review 19 On 21 March 2000, Mr Chalmers and Mr Ashford met with school staff. The purpose was to outline the reason for the Review and procedures to be followed in its conduct. Staff were informed the terms of reference of the Review was in relation to why staff were leaving the school after short periods of service. (In the first recommendation for a Review there was to be consideration of "student performance" but this term of reference was not accepted). Staff were informed that in accordance with procedures set out in the School's Development Policy, after the Review was conducted recommendations would be formalised and then independently audited. At the meeting, Mr Chalmers informed staff there was no guarantee of confidentiality. He explained under the Policy "interested parties" were to be consulted. The meeting was informed that in the conduct of the Review: questions would be open ended but would follow a format; each interviewee would sign a record of interview; support persons would be allowed; the previous four Principals had been notified; and there would be anonymity but not confidentiality. 20 The Review Team then met with the President of the P&C and members of the School Council who were informed staff had been briefed, the Review was to proceed and an auditor would review any recommendations arising from the Review. They were told the Review was being conducted in accordance with the School Development Policy. A copy of the School Development Policy (which also outlined the stages for the conduct of a School Management Review) was handed out at the meeting. The meeting was informed that seven parents had been randomly selected and others could volunteer. Any problems raised during the Review would be referred to the Assistant Director General or other appropriate authorities. All these steps were taken in accordance with stages 1, 2 and 3 of the defined policy procedure leading to Stage 4 - The Conduct of the Review. 21 On 24 March 2000, the day following the staff meeting where the Review procedure was outlined and before any interviews were conducted, Mrs Cretney, Mr Randazzo and the teacher's aide/school assistant wrote a letter to Mr Chalmers, the Review convenor. They expressed concerns about the proposed Management Review. The letter opened with the comment: ... we have concerns that Policy has already been breached in regard to the proposed Management Review at Penrose school. As well as information already requested by Rob Randazzo, could you please provide: . . . The letter then made 15 detailed separate requests for further information from the Review Team. The letter recorded staff concerns as to: the terms of reference, expected outcomes of the Review; selection of staff to be interviewed, time frame of the Review and observance of due process. The letter asserted it was Departmental policy that this information be provided before the commencement of the Review. The letter further stated: c. Another Distress We Do Not Need This same school community, still reeling from the last 'departure' and its repercussions, is now subjected to an unwanted review, to answer questions to which the Department has answers it will not disclose because of the 'privacy' of those staff who have left. The consideration and protection bestowed upon those staff who have left has not been extended to those who are left holding the school together and supporting the bewildered students. . . . d. Selection of staff to be interviewed . . . e. Timeframe of the review . . . Nine years after the first sudden and unexplained departure why is there now an urgency to review circumstances and make recommendations? . . . 22 On 24 March 2000, Mr Chalmers forwarded to Ms Murphy by facsimile a document headed "Clarification of some matters from briefing of staff 21.3.00" in reply to the staff letter and asked it be forwarded on to members of staff. Relevantly, it stated: CLARIFICATION OF SOME MATTERS FROM BRIEFING OF STAFF 21.3.00 1. . . . 2. . . . 3. . . . 4. INDEPENDENT OBSERVER: The question of an independent observer was raised by a staff member. The School Development Policy does not provide for the presence of a such a person to be present in a review. For the purposes of this review and in the interests of natural justice, interviewees are invited to have a support person present. The responsibilities of that person are outlined in the accompanying sheet entitled "The Role of the Support Person in an Interview or Meeting". 5. . . . 6. . . . 7. . . . 8. INTERVIEW QUESTIONS: These will not be given to interviewees in advance, that will centre on personal details of involvement with the school and knowledge of the circumstances relating to staff leaving the school after short periods of service. 9. . . . 10. . . . 23 As the Review proceeded there were a total of 43 interviews. These included 7 current staff, 12 former staff, 22 past and present parents and community members (four chosen randomly, four invited to be interviewed and four volunteering for interview) and two departmental officers. Mr Chalmers and Mr Ashford conducted the interviews together. Mr Chalmers asked the questions and Mr Ashford took notes. As to any queries about confidentiality it was said: We may disclose in our report what is said during the course of our interview but we will not disclose who said it. At the beginning of each interview, discussions were held with the interviewee as to the difference between confidentiality and anonymity. 24 The applicant attended her first of two interviews on 30 March 2000. She was accompanied by a representative of the Public Service Association (PSA/Union). The Terms of Reference were read out and she was provided with the introductory information which included the confidentiality/anonymity information. She answered the open ended questions asked of her. A record of the interview was kept. During the interview, she produced notes she had taken of a telephone conversation with a Ms Beverley Baker, President of the NSW Federal P&C Association (in 1999). Mrs Cretney revealed she thought Ms Baker did not realise she was recording the conversation. The notes were very comprehensive and recorded the views of Ms Baker as well as repeating other alleged views about the Assistant Teacher. They were some two pages in length detailing viewpoints. Mr Chalmers, when hearing this evidence and seeing the notes, thought this statement from Mrs Cretney implied some subterfuge on Mrs Cretney's behalf. Mrs Cretney also gave the Review Team recorded notes by her of a meeting she had had with the District Superintendent in May 1997 which occurred after she had approached the Department to express her concerns about the school management and the community atmosphere around the school. A representative from the PSA accompanied her to that meeting. At the time, Mr Randazzo was Acting Principal. At the meeting Mrs Cretney acknowledged there was community unrest around the school, including false rumours slandering Mr Randazzo. She expressed her support for Mr Randazzo. In 1997, Mrs Cretney requested the Department "prove or disprove accusations against Rob (the assistant teacher) and the school community". 25 In assessing the information collected after all the 43 interviews were conducted, the Review Team determined to raise some matters with the Assistant Director General, Mr Sutton. Mr Sutton was informed matters "which may be a breach of the code of conduct" (emphasis added) had been raised with them in the conduct of the interviews. They approached the Assistant Director General as required by Clause 4.2 of the School Development Policy. Some of the matters raised related to the conduct of Mr Randazzo. However, some related to the conduct of Mrs Cretney. The complaints made as to the conduct of the senior school assistant had not been expected. Mr Chalmers expressed the view he had an expectation concerns would be raised about Mr Randazzo's role but had been surprised Mrs Cretney's role had been raised. The Assistant Director General determined the Review would proceed. He advised the issues raised with the Review Team during the Review interviews, which had been identified as potential breaches of the Code of Conduct, should be put to those staff concerned, namely, Mr Randazzo and Mrs Cretney. 26 On 31 May 2000, the Review Team conducted second interviews with both Mrs Cretney (with a support person) and Mr Randazzo. At the beginning of the interview Mr Chalmers read out the following as an introduction: 1. . . . 2. . . . 3. During our interviews at that time, and as we synthesised the information available to us, we became aware of issues that we considered may have related to breaches of discipline. Keeping in mind Section 4.2 of the guidelines of the School Development Policy we had concerns about the continuation of the review. 4. In accordance with section 4.2 and 4.3 of the School Development Policy the panel sought the advice of the Assistant Director-General (Mr Sutton) who determined that the review would continue and that the issues we raised should be discussed with the relevant staff members giving them an opportunity to respond appropriately. 5. . . . 6. . . . It is of note the first mention of the word "discipline" was made by Mr Chalmers at this stage. 27 Of her second interview, Mrs Cretney says: Mr Chalmers then read out a list of ten allegations to me from a sheet of paper. I made notes of these allegations. When Mr Chalmers had read the allegations, I asked him for a copy of the allegations. He refused to provide them. I asked for details of the allegations and when he refused, I advised him that I could not respond, as the PSA had advised me not to respond to unofficial questions. Shortly after my interview I notified Mr Chalmers in writing of this advice. . . . 28 In order to address the claim mounted by the applicant, it is necessary to recite the 10 questions put to Mrs Cretney in the second interview which were as follows: 1. It was reported to the review that you kept extensive personal diaries and files on the actions of various principals. Do you wish to respond to this? 2. It was reported to the review panel that in your position as senior school assistant you were privy to many confidential school matters that you reported to the assistant teacher knowing that these matters were supposed to be confidential. Do you wish to respond to this? 3. During the review you gave the panel a record of a private telephone conversation you had transcribed from the longhand notes. Some would see this as a breach of confidentiality. Do you wish to respond to this? 4. It was reported that when asked by the current principal about the telephone in the assistant teacher's classroom, you replied that it was not connected. It was in fact connected and you had been paying the accounts. Do you wish to respond to this? 5. During the review a fax was received at the school addressed to the review team leader, Bob Chalmers. You photocopied the fax, gave it to Mr Chalmers in an envelope and did not provide him with the original. This could be seen as a breach of normal and appropriate confidentiality procedures. The question arises as to whether other copies of the fax were made and, if so, who has them. Do you wish to respond to this? 6. The above fax was sent from Queensland by your daughter yet you failed to mention your family relationship in the matter. Your daughter also failed to mention the family relationship when the fax was discussed with her. Do you wish to respond to this? 7. Many respondents to the review mentioned a number of instances of conflict between the assistant teacher on the one hand and principals and casual teachers on the other. You mentioned only one conflict between Stewart Cameron and Rob Randazzo. Your responses at interview either did not mention or found no fault with the assistant teacher's actions in these conflicts. Do you wish to respond to this? 8. It was reported that one of your daughters was employed to set up the OASIS library system, but that she was untrained in the OASIS library program. It was reported that trained personnel were available to do this but were not employed. Do you wish to respond to this? 9. Respondents reported to the review panel that you had fuelled criticism of past principals in the community by discussing school matters in public. Do you wish to respond to this? 10. It was reported that you had been critical of the current principal in public. Do you wish to respond to this? 29 The applicant was, therefore, invited to comment on some propositions such as the assertions her record keeping was very extensive; that she failed to ensure confidentiality in school matters; that she mislead a Principal; that she took part in public criticism of past and present Principals; that she supported the assistant teacher in his activities; that she failed to reveal a communication handed to the Review Team was from her daughter. At the second interview Mrs Cretney requested all questions be put in writing. She took notes of all the questions. When some of the questions were put to her, she requested further particulars. Sometimes she inquired who had made the allegations. Generally, she refused to answer. 30 In compiling the Management Review Report, the Review Team considered the documentary material gathered and information obtained through interviews conducted in their investigation. They reached their conclusions, therefore, based on what they had been told in interviews and from what they had read. They compiled their Report with its Recommendations and Conclusions on that basis. It was to the "management" of the school to which the Report was directed. 31 On 19 June 2000, Mr Chalmers and Mr Ashford convened a meeting with staff to outline the proposed findings of the Review. When the Review Team arrived they were confronted by parents in the school car park (who had been advised of the meeting by staff). The Review Team were questioned and some aggressive comments were made to the Review Team by the parents. Mr Ashford made a file note recording the abuse and the detailed and well informed questioning they had encountered from the parents when arriving for the staff meeting. The meeting with the staff then proceeded. Mr Chalmers read out proposed Recommendations of the Review Report. Mr Randazzo recorded the meeting. 32 The Report to the staff outlined the six categories that would be covered in the proposed Management Report. The staff were told comments would be considered in the drafting of the Final Report. Proposed Management Review Report 33 The draft document read out at a meeting of staff on 19 June 2000 relevantly states: Reasons for principals and teachers leaving Penrose Public School Three principals indicated they left because of the stressful situation in which they found themselves in the school. Many former staff identified the lack of support by the assistant teacher as a reason for leaving. Other respondents believed that the choice of principal was inappropriate in some cases and that some principals could not handle the role. Breakdown in interpersonal relationships The most significant circumstance relating to staff leaving the school can be encapsulated under this heading. There appears to be no identifiable, single event that precipitated each teacher's departure however former principals indicated that the behaviour and actions of the assistant teacher were major factors in their decision to leave Penrose. Criticism of principals The review was informed that principals since 1989 have been the subject of wide community criticism. Past principals believe that the assistant teacher or the senior school assistant fuelled this criticism from within the school. There is perceived to be in the community a pro-assistant teacher / anti-principal group. Community support for the assistant teacher It was apparent to the review team that the assistant teacher's teaching ability is highly regarded by the majority of parents and community. The assistant teacher was seen as more influential than the principal and support for his direct appointment to the principal's position is high. Some respondents believed that the assistant teacher cultivated parent support and had developed a culture of indebtedness in the school community. Many respondents believed that a core group of parents formed a "fan club" for the assistant teacher and supported him against other staff. Other related issues A number of issues were raised with the review team. These were as follows: a) Sections of the Penrose community have a negative view of the Department and its employees other than the assistant teacher. b) The community is either unaware or unaccepting of many department policies and procedures. c) The School Council does not always act in accordance with its constitution. The current situation Respondents reported that many of the issues said to have influenced the departure of former principals and teachers were still apparent in the school. Proposed Recommendations 1. Because we are still concerned that there may have been breaches of the Teaching Services Act 1980, the Teaching Services (Education Teaching Services) Regulation 1994, the NSW DSE Code of Conduct 1994, 1995, 1997 and the Professional Responsibilities of Teachers (97/227, S.209) we will recommend that the department carries out an investigation into a number of issues raised by the respondents to the review. 2. We will also recommend: i) that the assistant teacher be transferred to large staffed school. ii) that the senior school assistant be transferred to another school iii) that the school community agrees on a discipline and welfare policy to be consistently applied by all teachers iv) that community awareness be raised of the range of appropriate teaching strategies available to meet the needs of Penrose students v) that the respective roles of principal and school council in school governance be clearly delineated and understood and that the school council be directed to act in accordance with its constitution vi) that parents and community be made fully aware of appropriate channels of communication in school matters. Comprehensive notes taken at that meeting and tendered in evidence reveal Mr Randazzo asked a number of questions and debated some issues with the Review Team. Mrs Cretney is not recorded as commenting. 34 By the time the proposed matters to be covered in the Management Review Report were read to staff, Mrs Cretney knew of the matters which "may be related to breaches of discipline" and they had been raised with her in the second interview. It was not new information to her. After the reading of the proposed Report, she was informed the Review Team would report she had fuelled community criticism of past Principals' behaviour; that she was pro the assistant teacher and part of the anti-Principal group, and it was to be recommended that she be transferred to another school. 35 After the staff meeting with the Review Team there was a flurry of activity. On 19 June 2000, Mr M. O'Sullivan, Acting General Secretary of the PSA wrote to Mr Thomas, Shellharbour District Superintendent on Mrs Cretney's behalf. The letter noted Mrs Cretney's participation in the Management Review and complained about the allegations made against Mrs Cretney and threatened lodging a dispute if the Department took any action adverse to Mrs Cretney. The letter relevantly states: . . . The Association is concerned that the Department's actions appear to be disciplinary. The action initiated by the Department towards our member does not conform to the appropriate regulations concerning disciplinary procedures and consequently, our member has not been afforded natural justice. . . . 36 Mr Irving, the Department's General Manager of Personnel, on 26 June 2000, replied to Mr O'Sullivan's letter regarding Mrs Cretney's involvement in the Penrose Management Review, relevantly stating: . . . I wish to advise that the final report on the management review has not yet been made available to the District Superintendent for consideration. No action has therefore been taken in relation to any recommendations made in relation to staff at the school. I am advised that a number of questions were put to Ms Cretney at interview, that she chose not to provide a response and the interviewers accepted her decision in this regard. The interview with Ms Cretney was not conducted as part of a disciplinary process, and on this basis I do not consider there to be any breach of natural justice. . . . 37 The Review of Penrose Public School concluded in late June 2000. The final Management Review Report (together with a significant number of annexures) was then forwarded to the Assistant Director General, Mr Sutton. 38 On 31 July 2000, the day before the public meeting, in reply to a letter from Mr Mullett, President of the Penrose School Council regarding the Review and Mrs Cretney, Mr Sutton wrote to Mrs Cretney as follows: . . . DET has not stated any intention to transfer you from Penrose and I am not prepared to discuss your situation publicly, following the recent School Management Review, until I have spoken to your (sic) personally. 39 She asserts this letter gave her a general assurance that nothing would be discussed publicly by the Department about her. In a further letter of 10 August 2000, the PSA asserted Mr Sutton was in breach of this undertaking by allowing the public meeting to be informed of the Report Recommendation to transfer Mrs Cretney to another school. However, in submissions, the respondent contended the assurance in the letter was in the context of the proposed transfer and not an assurance the Review Report would not be discussed publicly. 40 The Review Team determined to edit the full Report for release to parents and the community. They made this decision as required under Stage 5 of the procedures for the conduct of a Review, which states in the Notes: . . . the discussion of the report includes all persons who have a stake in the implementation of the recommendations. . . It was the edited version of the Report which was read out at the public meeting on 1 August 2000. The final Report was not released or read out to either the P&C, School Council nor was access given to others at this time. The Edited Management Review Report 41 On 1 August 2000, by arrangement with Mr Mullett the President of the Penrose School Council, the Assistant Director General, Mr Sutton, met with the School Council, parents and interested community members to reveal the determinations made in the Report to stakeholders. The media, who were in attendance at the meeting, were asked to leave. 42 Approximately 100 people attended the meeting. An edited version of the Management Review Report was read out (in accordance with Stage 5 of the Management Review Procedures). Those present at the meeting were informed copies of the Review Report would be made available. A copy of the edited Report was then sent to each parent on 8 August 2000. The edited Report outlined, in separate sections, the Review purpose; the terms of reference with background, the methodology used by the Review Team; the opportunity for staff to respond and the Review Team's Recommendations. 43 The edited version of the Management Review Report relevantly states under the heading "Opportunity For Staff to Respond" as follows: Following 43 interviews with staff, parents and community members the panel offered the principal, the assistant teacher and the senior clerical assistant the opportunity to respond to a number of issues during the review (TAB T). This is in accordance with Stage 4 Section 4.4 of the School Development Policy. The principal responded orally and responses have been incorporated in this report. The senior clerical assistant made little response orally and declined the opportunity on Public Service Association advice to respond in writing. The assistant teacher made little response orally, having sought and gained from the panel approval to tape the interview. He accepted the opportunity to respond in writing. . . . All responses have been considered in drawing the conclusions below. The assistant teacher subsequently transcribed from the taped interview the issues raised by the panel. The document was photocopied and discussed by at least two parents in the presence of students at the school. It was also tabled by the assistant teacher and sections discussed at a P and C meeting on Tuesday 13 June. (TAB V) On Friday 16 June the principal approved the school newsletter for distribution to parents. The principal found that without her knowledge the transcription of the issues raised with the assistant teacher was subsequently attached by the senior school assistant to the newsletter with the P & C minutes and distributed to students and parents (TAB W). (emphasis added) 44 The conclusions of the edited Review Report were then read out: CONCLUSIONS 1. Staff left Penrose Public School because of the breakdown in interpersonal relationships and staff conflict together with undue pressure placed upon them by criticisms from parents and community members. 2. There has been and continues to be significant breakdown in interpersonal relations within the school. This has been caused by the active and passive actions of the assistant teacher, often supported by the senior school assistant and key members of the community. (Emphasis added) 3. These actions have led to considerable stress among staff resulting in past principals and staff seeking compassionate transfer, relinquishment of position and demotion, or alternative employment. 4. The breakdown in personal and professional relationships between the assistant teacher, the last four principals and at least two casual teachers has caused significant destabilisation of the school. 5. Criticism of principals by parents over the last ten years has made difficult the completion of duties. 6. There will continue to be little possibility of any principal being able to fulfil the role effectively while a significant section of the community continues to criticise principals in an attempt to support the assistant teacher. 7. Unless action is taken to address these issues the position of the current principal will rapidly become untenable. 8. There is substantial community support for the assistant teacher, both in his capacity as a classroom teacher and his perceived ability to be principal of the school. 9. Support for the assistant teacher is often fueled by his own actions and often exhibits itself in adverse criticism of principals and other members of school staff. 10. Sections of the Penrose community have a negative view of the Department and its employees other than the assistant teacher. 11. The community is either unaware or unaccepting of many departmental policies and procedures. 12. The School Council does not always act in accordance with its constitution. 13. In less than one school term of the current principalship the relationships between the principal, assistant teacher and community have broken down and there is no evidence of a positive working relationship developing in school. The pattern of previous years continues to emerge. 14. Conflict with the principals will continue while the assistant teacher remains on the staff at Penrose. While the decision may be unpopular within sections of the community, the panel concludes that the only solution is his transfer to a larger staffed school. 45 The recommendations of the Review Report then stated: RECOMMENDATIONS 1. That the assistant teacher be transferred to a large staffed school. 2. That the senior school assistant be transferred to another school. ( Emphasis added) 3. That the school's fair discipline code be revised in co-operation with the school community to ensure that the discipline and welfare policy is consistently applied by all teachers 4. That community awareness be raised of the range of appropriate teaching strategies available to meet the needs of Penrose students. 5. That the respective roles of the principal and the school council in school governance be clearly delineated in order to be understood and that the school council be directed to act in accordance with its constitution. 6. That the Parents and Citizens association be reminded of Section 3 of their constitution which deals with School Staff. 7. That parents and community be made fully aware of appropriate channels of communication in school matters. It is of note there are only three mentions of Mrs Cretney's activities at the school in the edited Report. They are found in Conclusion 2 which refers to her support of the assistant teacher, in the Recommendation that she be transferred and also with regard to the newsletter incident. In the section headed "Opportunity to Respond" of the edited Review Report mention was made of Mrs Cretney attaching minutes of a P&C meeting to the newsletter for distribution without the Principal's knowledge on 16 June 2000. This matter came to the attention of the Review Team after both Mr Randazzo and Mrs Cretney had been to their second interview and so this issue had not been put to them. The Final School Management Report 46 The edited Report read at the public meeting on 1 August 2000 was based on the more detailed Final Report, which was finalised in late June 2000. Mrs Cretney received a redacted version of the full Report from Mr Sutton on 26 September 2000 and obtained a full and uncensored version (excluding some appendixes) on 20 July 2001. The final Report (27 pages in all) was divided into the following sections: Review Purpose, Terms of Reference, Methodology, Findings and Conclusions, Conclusions and Recommendations. Relevantly, the section on "Findings" has a number of sub-sections headed: 1. Reason for Principles and Teachers leaving Penrose Public School (a Conclusion is drawn) 2. Breakdown in Interpersonal Relationships (a Conclusion is drawn) 3. Criticism of Principals (a Conclusion is drawn) 4. Community Support (a Conclusion is drawn) 5. Other Related Issues (a Conclusion is drawn) 6. The Current Situation (a Conclusion is drawn) 7. Opportunity for Staff to Respond 8. Final Meeting With School Staff 19 June 2000 The Report then listed its general Conclusions and Recommendations. 47 The final Review Report drew 14 "Conclusions", only one of which refers directly to the applicant. Conclusion 2 reads: There has been and continues to be significant breakdown in interpersonal relations within the school. This has been caused by the active and passive actions of the assistant teacher often supported by the senior school assistant and key members of the community. The applicant contends the court would find the conclusions of the Review, as they were based upon highly flawed information, were false and inaccurate. 48 There were 10 Recommendations in the Final Report. All 10 of the Recommendations related to particular matters/issues which came to the Review Team's attention in the conduct of the Review and which they considered required further investigation. Recommendations numbered 1-6 relate to the activities of the Assistant Teacher, Mr Randazzo and are of no relevance to this consideration. Recommendations numbered 6-10 relate to Mrs Cretney, in her role as the School Assistant. The Recommendations were prefixed with the following: Given the nature of this management review a thorough investigation of certain matters was not possible. Section 3.2(j) of the School Development Policy states that "information gathered in school program (sic) reviews may be used in departmental investigations. . ." It is therefore recommended that a formal investigation be held to ascertain more fully whether breaches have occurred of the Teaching Services Act 1980, Teaching Services (Education Teaching Services) Regulation 1994, the NSW DSE Code of Conduct 1994, 1995, 1997 and the Professional Responsibilities of Teachers (97/227, S.209). More specifically, the panel recommends that the following matters be considered for further investigation. . . . 49 The Report then listed the following matters related to Mrs Cretney (numbered 6-10). 6. The fact that the assistant teacher transcribed, distributed to parents and tabled at a P and C meeting the issues raised with him at interview on 31 May 2000 may be in breach of an act, code of conduct (section 5.2) or departmental policy or direction and therefore warrants further investigation. Similarly the action of the senior school assistant in attaching the list of issues to the school newsletter warrants investigation. 7. The reported disclosure to others of school and student information by the assistant teacher and the senior school assistant. This may be in breach of the Teaching Services (ETS) Regulation 1994 Sect. 9 which states: "9. (1) A member of staff must not, except in the discharge of official duties, use any information gained by or conveyed to the member in the course of those duties. (2) A member of staff must not, without express direction or permission of the Minister or the Director General, disclose (whether directly or indirectly) any such information." 8. By copying a fax sent to the review team leader the senior school assistant may be in breach of the Code of Conduct 3.1.xvi (1997) which states that staff should "use information gained in the course of employment only for proper and appropriate purposes" and section 5.2 of the Code which states that "staff should maintain the security and integrity of all information and/or documents for which they are responsible or to which they have access. 9. The senior school assistant also may have breached the Code of Conduct 3.1.xvi and 5.2 by the transcription on 6 June 1999 and the publication to others of a private telephone conversation. Some review respondents believed that other confidentialities had been breached. 10. Two of the senior school assistant's daughters have been employed in a casual capacity at school. Some respondents to the review questioned the integrity of these appointments. It is considered that an investigation may clarify the circumstances. Much of the evidence led by Mrs Cretney in the hearing went to challenge the truth of these "Recommendations". The final Report concluded the Recommendations saying: Regardless of whether this investigation takes place or of its possible outcomes, the following recommendations are made. 1. That the assistant teacher be transferred to a large staffed school. 2. That the senior school assistant be transferred to another school. 3. That the school's fair discipline code be revised in co-operation with the school community to ensure that the discipline and welfare policy is consistently applied by all teachers. 4. That community awareness be raised of the range of appropriate teaching strategies available to meet the needs of Penrose students. 5. That the respective roles of the principal and the school council in school governance be clearly delineated in order to be understood and that the school council be directed to act in accordance with its constitution. 6. That the Parent and Citizens association be reminded of Section 3 of their constitution which deals with School Staff. 7. That parents and community be made fully aware of appropriate channels of communication in school matters. ( emphasis added. ) Ramifications of the Management Review Report 50 On 3 August 2000, Mrs Cretney complained by letter to her Union about the content and publication of the edited Report and its Recommendations. She wrote outlining her expressed concerns about the edited Report. She complained of the public disclosure of her situation through the Recommendations of the Review being revealed at the meeting. (This is despite, she asserted, a recent assurance from the Assistant Director General, Mr Sutton, to her on 31 July 2000 that he was not prepared to discuss the situation publicly until he had spoken to her privately about the outcomes of the Review). In her letter to the Union, she went into a close analysis of the background of the Report, the opportunity for staff to respond and her view as to the conclusions of the Report. As to the opportunity for staff to respond, she asserted she had been given no opportunity to respond to the allegations contained in the edited Report. She concluded her analysis as follows: The inclusion of these unsubstantiated allegations against me in this public document discredits my integrity and my professionalism of which I am very proud and I believe effectively destroys my employment opportunities. The inclusion of those unsubstantiated allegations against me in this public document has caused great distress to my family including my elderly mother, my community and myself. On 10 August 2000, the Union made further representations on Mrs Cretney's behalf to Mr Paul Irving, General Manager of Personnel, with the Department. It incorporated some of Mrs Cretney's complaints contained in her letter to the Union. Relevantly, it directly reproduced Mrs Cretney's submission regarding the newsletter incident which had first been raised in the Review's edited Report as it was read to the 1 August 2000 public meeting. 51 The environment in which the Management Review was conducted aroused a great deal of community interest. An active role was played by the P&C, School Council and other members of the Penrose community, many of whom continued to canvas the appointment of the assistant teacher as the ideal Principal for Penrose. The edited Report became the subject of more widespread discussion than that isolated within the community: it was debated in the New South Wales Primary Principals' Association; four former Principals of Penrose wrote to the Minister urging action on the recommendations of the edited Report; the issues were canvassed on radio talkback by interested community members; the recommendations and issues were reported in the Daily Telegraph (2 August 2000 with Mr Randazzo and Mr Mullett, President of the School Council directly quoted). 52 After the Review Report was finalised, Mr Phil Irvine was sent as "caretaker" Principal of the school. He appears to have been acting Principal from August to September 2000. Mrs Cretney alleges Mr Irvine immediately called her and Mr Randazzo to a meeting on 7 August 2000 and said words to the following effect: You two are under investigation, I've heard about you on the grapevine and I will come down on you if I need to. The information in the report was sufficient for your dismissal. The applicant asserted Mr Irvine was harsh in the language he used toward her. Mr Irvine agrees there was such a conversation but he asserts he used less harsh language. Mr Irvine further commented everything he said at the meeting he had with Mrs Cretney and Mr Randazzo was recorded by Mr Randazzo. Mr Irvine felt this recording of every word spoken was used as an intimidatory tactic towards himself as acting Principal. 53 In his role as acting Principal, Mr Irvine immediately reviewed a number of practices related to the management of the school. He advised Mrs Cretney against using the facsimile machine. She asserts he later reduced her working hours by one and a half hours per week. She submits these actions by Mr Irvine were part of the unfairness accorded to her and were a reflection of the unfair findings of and unfair recommendations contained in the Review Report. 54 On 25 August 2000, in accordance with Stage 5 of the Management Review procedure, an audit of the final Management Review Report and its conclusions and recommendations was conducted by Ms Wells, the Assistant Director of School Valuations, with another officer. It produced a report titled: "Evaluation of information arising from the Management Review of Penrose PS - June 2000". It took into account the Union's support, advice from the Senior Legal Officer - Industrial Relations and Senior Officer - Industrial Relations. The audit recommended that the applicant not be transferred to another school but her supervision be strengthened. The evaluation concluded: The Management Review identified five potential breaches of legislation or policy involving Mrs Pat Cretney. The Audit/IR review concluded that disciplinary action against Mrs Cretney was not warranted on any of these matters. 55 The Assistant Director General, Mr Sutton, then determined not to accept the Recommendation of the Review that: "regardless of the further investigation or outcome" of the matters/issues referred for formal investigation, the senior school assistant be transferred. 56 On 8 September 2000, Mr Sutton then wrote to Ms Cretney as follows: . . . The very high turnover of executive staff at Penrose Public School in the past ten years, has inevitably resulted in some uncertainty and tension within the school community. This has clearly not been conducive to maximising the learning opportunities of all of the students who attend that school. Irrespective of whom must bear the responsibility for past events everyone employed at Penrose Public School must play their part to ensure that all students at the school receive a quality education in the future. A co-operative, collaborative atmosphere conducive to the promotion of integrity in the workplace is of assistance to all staff in achieving this outcome. Both yourself and the persons that work with you at the school are entitled to such a working environment. You will remain on duty at Penrose Public School from the beginning of Term 4. ( emphasis added ) To this end I remind you that while you are employed by the New South Wales Department of Education and Training you must comply with the Department's Revised Code of Conduct of August 1997. In particular you should note that: 1. Section 3.1 (iv) . . . 2. Section 3.1 (vii) . . . 3. Section 3.1 (xvi) . . . 4. Section 3.1 (xviii) . . . . . . A copy of the Department's revised Code of Conduct was included with the letter. Mr Sutton thus communicated with Mrs Cretney she was not to be transferred. The Department reminded her of the obligation as the school assistant under the Department's Code of Conduct. In particular, her obligation to the Principal and her obligations regarding information obtained in the performance of her duties. 57 On the same day, Mr Sutton wrote to the Acting Principal, Mr Irvine, informing him of matters affected by the decision made in the audit of the Management Review Report adopted by the Assistant Director General relevantly stating: Attached please find the ( sic ) a copy of the recommendations from the Penrose Public School Management Review Report. . . . An investigation of other matters referred to as 1 to 10 in the School Management Review Report has been concluded. Mr R Randazzo, classroom teacher, and Mrs P Cretney, Senior School Assistant, will remain in their current positions from the beginning of Term 4. Recommendations 1 and 2 of the report have not been accepted. Recommendations 3 to 7 have been accepted and require implementation at the school level. I would appreciate your discussing the implementation of these with Mr A Thomas, District Superintendent, Shellharbour. . . . Thereby, Mr Irvine was informed Mrs Cretney was not to be transferred (Mr Randazzo later agreed to a voluntary transfer). It was at this point that all procedures and steps required under the Management Review of Penrose School were completed. 58 After Mr Irvine left at the commencement of the last term of the year 2000, Ms Murphy resumed duties as the Principal. She continued to maintain Mrs Cretney's reduced hours. Ms Murphy agreed she no longer allowed Mrs Cretney to type the school newsletter. In evidence Ms Murphy described the newsletter incident as "deceptive conduct" by Mrs Cretney. Mr Irvine had withdrawn Mrs Cretney's right to use the facsimile machine. The Union made approaches on Mrs Cretney's behalf and Ms Murphy restored that right although also there was some minor contention as to when this occurred. 59 After Mrs Cretney made a further specific request on 26 September 2000, she received from Mr Sutton a copy of the final School Management Review Report. She was instructed she was not to show, give, provide or transmit the Report or any copy of it or any extract from it to any person or to discuss the contents of the Report with any other person other than her legal representatives. She asserts this Report contained further details related to her activities and although the final Management Review Report was not publicly circulated, it was the basis upon which the edited Report was made. She asserts it revealed the unfair findings, conclusions and recommendations (which were published) and which defamed her and affected her reputation and caused her stress. 60 The applicant later agitated for the annexures to the full Management Review Report and other documents through actions she took in the Administrative Appeals Tribunal and before the Privacy Commission. 61 Mrs Cretney continued in employment as the school assistant from 1987 until her retirement on 18 July 2003. She then applied to be re-employed on 27 April 2004 and has worked at Penrose as the Senior School Assistant for a further four years. Today she is still in that employment, though at present she is on leave. The Claim 62 By way of a Second Further Amended Summons for Relief filed under s106 of the Industrial Relations Act 1996, the applicant claims in the conduct of the Department's Management Review of Penrose Public School, the contract of employment between herself and the respondent whereby she performed work as a senior school assistant for the Department from 1986-2005 became unfair, harsh or unconscionable or against the public interest. Relevant statutory provisions 63 Sections 105 and 106 are defined as follows: Section 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. Section 106 Power of Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (2A) . . . (3) . . . (4) . . . (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. (6) . . . The applicant asks for: 3. An order varying contract or arrangement or collateral arrangement . . . in order to: ii) Require the respondent to investigate fully, thoroughly and fairly all and any allegations involving the applicant's conduct or work performance; iii) Require the respondent to grant to the applicant a reasonable opportunity to be heard in any Management review or other process involving assessment of the applicant's conduct or work performance; iv) Require the respondent to refrain from making unsubstantiated allegations concerning the applicant's conduct or work performance; v) Require the respondent to refrain from publishing inaccurate and defamatory statements about the applicant in any report or other document. vi) Require that in the event that the respondent publishes inaccurate or defamatory or unsubstantiated statements about the applicant in any report or other document it is required to withdraw such statements by publication of such withdrawal in the Electronic Newsletter "In Principal" in a form to be agreed between the applicant and the respondent. vii) Require that in the event that the respondent publishes inaccurate or defamatory or unsubstantiated statements about the applicant it is required to apologise in writing to the applicant for such publication. viii) Prohibit the respondent from engaging in conduct, whether during or at any time after the term of the contract, that damages, or is calculated, or likely, to damage the personal, and professional reputation of the applicant, or to cause her anxiety, distress and embarrassment. ( emphasis added ) 3. ( sic) An order that the document(s) known as The Penrose Public School Management Review Report June 2000 be withdrawn from circulation by the respondent. 4. An order that the respondent advise all those persons who received a copy of or have an interest in the Penrose Public School Management Review Report June 2000 that the Report has been withdrawn from circulation due to inaccuracies about the applicant contained in the Report. 5. An order that the respondent apologise to the applicant for publishing inaccurate and defamatory material about her in the Penrose Public School Management Review Report June 2000 . 6. An order that the Respondent pay to the Applicant such amount of money in connection with the contract as may appear to be just in the circumstances. 7. An order that the Respondent pay to the Applicant interest upon such an amount of money as is ordered to be paid to the Applicant in connection with the contract as such rates and in respect of such period of time as the Court considers appropriate. 8. An order that the Respondent pay the Applicant's cost of and incidental to these proceedings. 9. Such further or other orders as appear to this Honourable Court to be fit or just. D. Particulars of any Amount Claimed Pain, Suffering anxiety, hurt, humiliation and distress : $50,000 Damage to reputation: $50,000 Cost of Medical Treatment and Medication: $1,500 TOTAL: $101,500.00 64 The applicant pleads her case as follows: her contract of employment was unfair because it failed to contain terms ensuring the Department fairly conducted the Management Review of Penrose Public School. The applicant submitted she was not accorded procedural fairness in the conduct of the Review. She asserts through the conclusions drawn in both Reports and the publication of the findings and recommendations in the edited Report, her employment contract became unfair and such conduct entitles her to relief for that unfairness by way of orders, variations and compensation. 65 The applicant asserts she suffered damage stemming from the contractual unfairness in the conduct of the Management Review. Specifically, the applicant asserts the recommendations from the edited version of the School Management Report read out at the 1 August 2000 meeting of the P&C, school council members and community members were false, inaccurate and defamatory. Further, she asserts the conclusions and recommendations contained in the final Review Report were false, inaccurate and defamatory and led to the defamatory statements published in the edited Report. The conduct of the Review and the publication of its Report caused her pain, suffering, distress and damage to reputation. 66 Although the applicant pleaded unfairness throughout her two contracts of employment, during the course of the hearing, she conceded the events relied upon occurred during the first contract. Though it was pressed the effects of those events continued to be felt throughout her ongoing second contract of employment. The Respondent's Case 67 In reply, the respondent denies: · the applicant's claim that the contract operated in an unfair manner · there is any basis on which the Court would declare void, in whole or in part, the contract and the respondent pleads: · The orders claimed are otiose and if ordered by the Court would be nugatory since there is no proper basis asserted on which such injunctive relief of the kind sought in the application could be based. In particular, the orders asked for are too vague in terms or would not be enforceable in all the circumstances. · Further and in the alternative, the respondent denies the Court has power to make the award as sought or, if it was held such powers existed, the court would not exercise its discretion to make such orders. · Further, the respondent contends that the orders sought could only be made after the court first determined that the remedies were not available under the general law, namely, the law of defamation; the Defamation Act, 1974 (NSW) or the personal injury scheme in NSW through the Workers Compensation Act 1987 (NSW); the Limitation Act 1969 (NSW), the Workplace Injury Management and Workers Compensation Act, 1998 (NSW) and the common law for personal injuries arising out of a breach of duty of care and/or breach of contract and that the court is either not empowered to make such a finding or if such a power existed such a finding ought not to be made. 68 The respondent submits the applicant's claim for unfair contract brought under s106 of the Act is "dressed up" and is in essence a claim for defamation or personal injury. The respondent asserted that if the court considered the defamation claim then the defences such as truth, contextual truth and qualified privilege available under the Defamation Act 1974 should guide the court in its deliberation. 69 The respondent submits the court would reject the Summons for Relief brought under s106 for consequential relief for an unfairness arising out of the conduct of the Management Review conducted at Penrose Public School on the basis of the application of the principle of "legal coherence". 70 The respondent further denies the applicant is entitled to any money orders as claimed, or at all. The damages claim for pain and suffering, anxiety, hurt, humiliation and distress, medication, medical treatment and damage to reputation are not within the jurisdiction of the Court under s106 of the Act. Or alternatively such claims should not attract a compensation order in the use of the Court's discretion. 71 Generally, the respondent asserts, it has at all times treated the applicant fairly and the application ought be denied on the basis of the doctrine of Laches. 72 Further, and in the alternative, the respondent contends that as there exists alternative and more appropriate forums in which the applicant could bring her claims, the Court ought to decline its jurisdiction in accordance with its powers under Rule 82(1) of the Industrial Relations Commission Rules. Relevant legal principles 73 There are a number of authorities guiding the court in its consideration as to whether a contract is unfair in its terms and/or application such as to attract relief under s106. A claim under s106 asserting an unfairness related to conduct of the contractual parties was given recent consideration. In Sydney Water Corporation Ltd and Anor v Industrial Relations Commission of NSW & Anor [2004] 61 NSWLR 661, the New South Wales Court of Appeal, when considering the jurisdiction of the Court in an application under s106 of the Act (challenging a termination of an employee) under a contract of employment determined at [25]: Section 106(2) states in the plainest terms that a contract may become unfair, so as to attract the jurisdiction of the Commission, because of post-contract conduct of the parties. But it is the "contract" that is to be held unfair, and not the conduct, in the final analysis. Unfairness may of course stem from what the contract fails to provide, for example as regards termination procedures. Therefore, unfair conduct in breach of a contract of employment does not of itself render a fair contract unfair so as to be amenable to relief under s106 of the Industrial Relations Act 1996. It is the contract itself which must be demonstrated to be or to have become unfair. 74 In the Appeal (remitted from the Court of Appeal to the Full Bench of the Commission in Court Session) in Truelove v Sydney Water Corporation Limited [2005] 146 IR 253, the Full Bench reiterated this principle stating at [41]: . . . applicants . . . should not overlook the consideration that s 106 is directed to the fairness, etc., of contracts and arrangements and with the fairness, etc., of their terms, and that the primary focus should be the contract or arrangement and its respective terms or omitted terms as to the effect thereon of the impugned contract. Therefore, a demonstrable unfairness in an employment contract requires the terms of the contract be found unfair and/or how conduct effects a term (or omitted term) of the contract such as to make the contract itself unfair. Conduct in the performance of the contract must make the contract itself unfair (see Sydney Water Corporation at [25]). Procedural Fairness 75 In Abboud v The State of NSW (Department of School Education) (1999) 92 IR 32, the Full Bench of the Commission (when adopting the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410) said (at 51): . . . The absence of an opportunity being afforded to explain the conduct alleged (particularly where an innocent explanation is available) is a significant factor when assessing whether the contract or arrangement is rendered unfair as a result of the conduct of a respondent. This was not done in this case. (As cited in Bell and Berg v Macquarie Bank Ltd & Anor [2003] NSWIRComm 363 at [10]; Van Huisstede and the Commissioner of Police [2000] NSWIRComm 97 at [198]; Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247 at [299].) Abboud endorses the view that a defined procedure for an investigation, be it defined by a term of the contract or enunciated through the employer's policy as a matter of fairness, requires procedural fairness in the conduct of the investigation. 76 On the authorities, a contract may become unfair because of how the conduct of one of the parties affects a term of the contract. Such unfair conduct must have the effect of making the contract itself unfair. In any investigation into an employee's behaviour or allegations of misconduct, a failure to accord procedural fairness to an employee may make that contract unfair. Jurisdiction 77 Jurisdictional and discretionary arguments have been raised by the respondent. The respondent contends the existence of other statutory schemes and/or common law regimes which govern causes of action means the court ought determine it has no jurisdiction to hear the claim. This is because: · the claim is one in defamation and at the time of publication of the Report in 2000, was governed by the Defamation Act 1974 (NSW);or alternatively, · the claim is one for personal injury arising during the course of employment and therefore governed by the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and common law principles; alternatively · a claim which under the principles of "legal coherence" (given the existence of the Defamation and Workers Compensation legislative schemes and common law) would be outside jurisdiction as directly inconsistent given the scope and purpose of those other schemes. The Defamation Act 78 Schmidt J in Bowker & Anor v Software Engineers Australia Pty Ltd & Ors [2004] NSWIRC 104 considered a similar argument to that mounted by the respondents where a loss of reputation claim was considered on the grounds there was a statutory scheme for defamation actions which acted as a bar to the jurisdiction under s106 to consider such a claim. Schmidt J said: 176 The fact that an applicant might have a cause of action for injury to reputation under the tort of defamation, or for recovery of financial loss at common law, in a breach of contract case, is also not a basis for concluding that no money order should be made, in exercising the statutory discretion. The discussion of Kirby P, as he then was, in Walker is apt to recollect. His Honour observed at pp134-135: It is by no means unusual in our legal system for the one set of circumstances to give rise to a number of remedies which the person affected may pursue, sometimes in the one court, sometimes in differing courts, to the full extent of that person's entitlement. The commonest example is the entitlement of an injured worker to bring proceedings for benefits under the Workers Compensation Act , and to maintain a claim for damages at common law. The ingredients of the various entitlements may be different. But the existence of alternatives has never excluded a person from pursuing rights expressly conferred by statute. Unless those rights are expressly, or by necessary implication, excluded by the alternative claim, or controlled an obligation to elect or by time limits, the beneficiary of the statutory right can pursue any, or all, or no entitlement. I adopt the reasoning of Schmidt J. I therefore accept a "loss of reputation" may, in very particular circumstances, give rise to relief granted under s106 in an employment contract where it is found unfair conduct makes the employment contract unfair. The Workers Compensation Act and Common Law Rights 79 Alternatively, the respondent submits the claim is actually one for personal injury arising out of employment and therefore should be dealt with under the relevant Workers Compensation legislative scheme, read with common law personal injury rights. The respondent also contends the Workers Compensation Act and associated legislative provisions are schemes which act as to bar the jurisdiction of the court or the granting of any monetary order in relation to pain, suffering and anxiety arising from an unfairness in an employment contract. This proposition was raised but rejected by Haylen J at first instance in Jozef Banas v State of New South Wales [2003] NSWIRComm 317. His Honour reasoned: 209 It was submitted that s106 was directed to providing a remedy for matters in relation to which the common law and other statute law did not and does not provide a remedy. To the extent that Parliament had considered it appropriate to modify the common law it had done so by statute, namely, the Workers Compensation Act 1987. Since 1987, there had been significant changes with respect to the entitlement of employees to sue their employers with respect to personal injury sustained in the course of their employment. The result was that common law rights had been modified by statute. In relation to workplace injuries not covered by the common law, claims arising from such injuries are dealt with by a specialist court, namely, the Compensation Court. It would be odd if that specialist court had no jurisdiction to dealt with common law claims for personal injuries but the Commission in Court Session did have such jurisdiction. 210 It was noted that the applicant relied upon the decision in King v State Bank of New South Wales (2000) NSWIRComm 229 in support of damages for psychological distress arising from an unfair contract being within the jurisdiction of the Court under s 106. That case was under appeal. The respondent contended that the present case was a personal injury claim masquerading as a s106 claim: in King the Court considered the discretionary jurisdiction to award damages for personal injury within the context of broader claims made pursuant to s 106. Thus the claim for compensation for psychological stress was a minor part of a much larger claim. The extent to which the Court should entertain personal injury claims under s 106 had also been considered by Peterson J in interlocutory proceedings in Clarke and Doherty v State of New South Wales. There the claim was sought to be struck out because the respondent categorised it as one for the payment of damages for personal injury. Peterson J stated that if, that characterisation was correct, he would incline to the conclusion that the Commission lacks jurisdiction to deal with the matter or, alternatively, should decline to exercise jurisdiction in relation to such a claim which would be heard in a more appropriate jurisdiction. . . . 321 The orders that are proposed in this matter arise from contractual unconscionability or unfairness, treating the contract in the extended sense as defined in s 105 of the Act. It is the unfairness arising from the conduct of the respondent which gives rise to the two proposed primary orders for the payment of money. I am unable to accept the proposition that the provisions of the Workers Compensation Act identified by the respondent were intended to have the effect of impinging upon these orders proposed to be made under s 106 of the Industrial Relations Act. 80 On appeal, the Full Bench in State of New South Wales v Banas (2004) 137 IR 63 confirmed Haylen J's reasoning, saying: 94 The fact that a remedy might be available under a statute will not exclude a person from pursuing rights expressly conferred by another statute unless "those rights are expressly or by necessary implication, excluded by the alternative claim, or controlled an obligation to elect or by time limits, the beneficiary of the a statutory right can pursue any, or all, or no entitlements": Walker v Industrial Court of New South Wales (1994) 53 IR 121 at 134-135 per Kirby P. 95 Of course, Mr Menzies also contended that because the orders made by Haylen J tended to frustrate or be in conflict with the statutory scheme for compensation for workplace injury under the Workers Compensation Act , as a matter of discretion his Honour should not have made the orders. It seems to us, however, that having found what he considered to be a clear case of unfairness and that jurisdiction existed to make money orders that were just in the circumstances of the case, it would have been a curious, if not unjust, exercise of discretion by his Honour to refrain from providing the remedy that was available under the statute. However and in any event, the order made by his Honour was made in the exercise of his Honour's discretion and we do not consider the appellant has demonstrated that the exercise of discretion miscarried. 81 Notwithstanding the existence in NSW of a Workers' Compensation legislative scheme and the ongoing rights of an individual under the common law for personal injury, I accept that if an employee establishes an unfairness or unconscionably in their employment contract, a statutory remedy is available under s106. An applicant is then entitled to pursue "just compensation" for that unfairness which can be measured through proven pain and stress associated with the unfairness. The Principal of Legal Coherence 82 Alternatively, the respondent submits the principle of "legal coherence" acts as a bar to these proceedings based upon the consideration of the High Court in Sullivan v Moody (2001) 207 CLR 562 at [60], [62]. In that matter, a claim had been pressed that public officers investigating and reporting allegations of sexual abuse had a duty of care to exercise "reasonable care" toward the alleged perpetrators in the conduct of investigations. The High Court determined: 60 The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable . . .But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations. . . . 62 The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. The High Court rejected the claim, noting such a duty of care conflicted with the specific statutory obligation regarding reporting of suspected abuse. 83 In CGU Workers Compensation (NSW) Ltd v Garcia (2007) Australian Torts Reports 81-908 (at 70,164), the NSW Court of Appeal was also asked to consider whether the Court below was entitled to find and apply a novel form of tort in light of a particular statutory scheme. The Court held that it was inappropriate to develop a new tort to provide a remedy to "trump" the perceived inadequacies of statute and common law saying at [169]: …any such tortious liability would be precluded if inconsistent with some aspect of the relevant legislative scheme or, if not directly inconsistent, not rendered otherwise inappropriate by reason of the scope and purpose of the legislation . . . ( emphasis added ) 84 Spigelman CJ in New South Wales v Paige (2002) 60 NSWLR 371 said at [93]: 93 When considering the issue of coherence it is necessary to give close consideration to the statutory scheme: specifically whether a common law duty is "inconsistent" or "incompatible" with the statute and, relevantly in this case, the regulations. (See, for example, Crimmins (at 13 [3], 16 [18], 39 [93], 46 [114], 72 [203]–[213]); Sullivan v Moody (at 582 [60]).) However, issues of coherence may arise even if there is no direct inconsistency. It may be enough if the effect of imposing civil liability is to "distort [the] focus" of the statutory decision-making process. ( Crimmins (at 101 [292]) per Hayne J.) 85 The respondent submitted that under this line of authority (see also Hunter Area Health Service v Presland (2005) 63 NSWLR 22) the law has been extended and a court must now determine if it is "appropriate" to utilise an alternative course of action when the legislature has provided a specific legislative avenue to give relief sought, in this case, the Defamation Act and Workers Compensation Act. However, the authorities relied upon by the respondent to establish the principle of "legal coherence" as a bar to jurisdiction under s106 of the Act, all address applications for the development of a novel "duty of care" in tort law. In the circumstances of those cases, an expansion of a duty of care was pressed and it was found that such claims were inconsistent with and undermined the relevant statutory provisions. The expansion of the tort of negligence through the development of a new or novel duty of care was denied in each case. 86 The court is not considering the application of a novel tortious duty which would be incoherent with or be incompatible with a statutory scheme as in Sullivan v Moody or Paige. Rather, it is asked to examine whether a claim for relief for unfair contract under a statutory scheme would be in conflict with defamation or workers' compensation legislation as well as common law rights for personal injury. Therefore, the consideration of legal coherence needs to be approached differently to that in Sullivan v Moody or Paige which I accept are binding authorities of legal principle but I distinguish their direct application to the facts of this case. 87 A claim that a contract is unfair because an employer acted unfairly or with unconscionability in making findings and publishing that material, against the employee's interest, which caused pain or distress may sit uncomfortably alongside the law of defamation, or the workers' compensation scheme. However, simple discomfort does not constitute sufficient incoherency or even conflict with other statutory schemes or legal principles because of the narrowly confined nature of the contractual duties under examination. The source of the obligation not to conduct the contract unfairly is narrowly confined to mutual contractual duties and specific terms and circumstances of the employment contract and its performance. Any relief under s106 addresses the contractual terms and conduct allowed or permitted by those terms, present or absent. Therefore, any finding of unfairness in an employment contract under s106 in the circumstances such as in this case cannot create broad ranging duties attracting civil liability the same way the development of a novel tort would. 88 In dealing with the coherence of statute law with the common law and the question of conflict in a number of laws, courts are obliged to consider the intention of the legislature. In circumstances applicable to this case, the confined contractual concern examined under s106 does not directly conflict, inhibit or undermine defamation law and the statutory scheme of workers' compensation or breach the rights held for personal injury claims under the common law or the general, unified bedrock of one coherent system of law (Hill v Van Erp (1997) 188 CLR 159 (at 231)). 89 A partial overlap of consequential remedies available under s106 with common law or statutory forms of action (being the making of orders for the payment of money) does not raise the application of the principle of legal coherence. It is a fundamentally different matter to read down one statutory scheme relating to unfair contracts under the Industrial Relations Act 1996 solely by reference to the fact that other statutory or common law remedies may be available. There is no inconsistency between relief which could be available to Mrs Cretney for unfairness in her employment contract under s106 and relief which could be available through independent remedies under other common law or statutory regimes. There is no cause of action, statutory or otherwise available under which can consider the fairness of a contract of employment between the parties and the associated granting of relief in the form of variations to the contract and "just compensation" other than through s106 of the Act. Therefore, the principle of legal coherence is not applicable in this case and does not prevent the applicant from validly pursuing her case for unfair contract. The court has therefore jurisdiction to hear and consider the claim. As Mason J, President of the Court of Appeal said in Sydney Water Corporation Ltd and Anor v Industrial Relations Commission of New South Wales and Anor (2004) 61 NSWLR 661 at [28]: the availability of alternative remedies is not a jurisdictional answer to a claim under s106. Use of Court's Discretion 90 Alternatively, the respondent submits in the application of Rule 82(1)(h), the Court should determine, in the use of its discretion, to give no order. Relevantly, Rule 82(1) states: 82 Setting aside originating process etc (1) A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2), by order: (a) set aside the originating process, or (b) set aside the service of the originating process on the respondent, or (c) declare that the originating process has not been duly served on the respondent, or (d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State, or (e) discharge any order extending the validity for service of the originating process, or (f) protect or release property seized, or threatened with seizure, in the proceedings, or (g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings, or (h) decline in its discretion to exercise its jurisdiction in the proceedings, or (i) grant such other relief as it thinks appropriate. 91 Wright J, President, in Hyde v Energy Australia (1999) 92 IR 409 (at 424-425) said: Parenthetically, I should indicate the reason why I consider that r82 does not apply is not only (as contended by the applicants) that the respondent's notice of motion had not been filed in the manner required by r82(2) but also because r82, considered as a whole, appears to be a rule essentially intended to deal with situations where the respondent contends that the Commission lacks jurisdiction in relation to the proceedings purportedly commenced; where there has been some invalidity or irregularity in relation the service of the originating process (or leave given in relation to service of such process); or where issues such as that considered by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 539 are raised. (Adopted by the Full Bench in Caltex PetroleumPty Ltd and Others v Harmer 92 IR 264 (at 269)). I accept the preconditions outlined by Wright J, President, in circumstances where there is evidence of some invalidity regarding service of the claim or a finding it is an inappropriate forum for the litigation. That is not the case here. I decline the application in the application of Rule 82(h). Judicial Review 92 The pleadings and the application to re-hear evidence and receive further evidence on the recommendations and conclusions reached by an investigative body raises the further question: is s106 of the Act here being used to conduct a judicial review of an administrative decision. Judicial review generally addresses procedural irregularities in administrative decision making. Spigelman CJ in State of NSW v Paige (2002) 60 NSWLR 371 at [174]-[175] said: The courts do not determine, either directly or indirectly, the substantive issue. Judicial review results, in the ordinary course, in the statutory decision maker making the decision again. The purpose of judicial review of administrative decisions is not compensatory. Its purposes include such aspects as upholding the rule of law and ensuring effective decision-making processes. . . Judicial review is generally allowed under the relevant statute as the final appeal on limited grounds for an administrative decision. However, this claim is not mounted as a judicial review of the administrative decision. The administrative decision made was not to transfer Mrs Cretney. That decision has not been challenged. Neither has the decision to conduct the Management Review. Both decisions were fairly taken. It is in the conduct of an authorised investigation by the Department that it is asserted there was an unfairness in the performance of an employment contract. This inquiry cannot therefore be perceived as a judicial review of an administration decision. 93 Having found jurisdiction, the court now directs its attention to the claim as to unfairness in the contract. Consideration 94 I begin by identifying whether or not there was an unfairness in the contract and then determine if any unfairness had a consequence which should attract relief. I accept the applicant's submissions the final Management Review Report was the source of the conclusions and recommendations in the edited version of the Report. Through its distribution to the parents of students at Penrose Public School, I also accept the edited version of the Report was published by the Department. The applicant urges the court undertake a full analysis of the "findings" of the final Report which, even if it does not provide "support for her defamation claim", will establish the findings were unfair and untrue and therefore will establish an unfairness in the employment contract such as to attract relief. 95 The applicant submits that in order to ascertain unfairness, the court must examine the truth of the statements contained in both the edited and final Management Review Reports so as to address whether they were false, misleading and defamatory. The applicant asserts the question for the court is whether: the Department's conduct in the procedures followed for the Management Review of Penrose Public School led to unfair findings and conclusions in the Report which made the contract of employment between herself and the Department unfair? Alternatively, the applicant asserts that even if the procedures followed by the Department in the Review were fair, the Review "findings" were unfair and given the publication of those findings at the 1 August 2000 meeting, the contract was made unfair. 96 The Management Review of Penrose Public School has caused the applicant great concern. Over eight consecutive years she has pursued this matter through a number of forums because she clearly feels statements made about her and "findings" drawn by the Review Team were "false, inaccurate and defamatory". Much time was taken up in the hearing as to the veracity of the "Conclusions" and "Recommendations" reached by the Management Review Team. The court will traverse the evidence as to how the review was conducted into the management of Penrose Public School and then examine the applicant's assertions as to its "findings" and effects on her. 97 While the applicant asserts the Report contains "findings" she in fact takes objection to the five "Recommendations" made in the Final Report related to issues raised during the Review regarding her conduct. The applicant asserts the "findings" made in the Report through the publication of its Recommendations related to five issues were untrue and unfair. She contends these "findings" led to the unfair conclusions on which the recommendation to transfer her was reached and this recommendation was itself unfair. Recommendations 98 Recommendations in the final Review Report numbered 1-5 deal with the conduct of Mr Randazzo so only recommendations numbered 6-10 relating to the conduct of Mrs Cretney are relevant to the consideration. The Review Team recommended the five matters for a "formal investigation" to "ascertain more fully whether breaches had occurred" of the Department's Code of Conduct or the relevant statute and award provisions under which Mrs Cretney was employed. Recommendation 6 . . . the action of the senior school assistant in attaching the list of issues to the school newsletter warrants investigation. 99 On 16 June 2000, as part of her role as School Assistant, Mrs Cretney prepared the school newsletter and left it on a desk inside the then Principal, Ms Murphy's classroom. As was her practice, the name of each child was written on top of the newsletter. The Principal then distributed the newsletter. The school newsletter had attached to it minutes of the 15 June 2000 school P&C Meeting. Unbeknown to the Principal, attached to those P&C minutes was a transcription of questions put to Mr Randazzo by the Review Team. The transcription of questions had been the subject of discussion at the P&C meeting and the Principal had objected to their tabling because the Review was ongoing. 100 There is no evidence to suggest Mrs Cretney knew the transcription of the questions were attached to the P&C Minutes. She was not at the P&C meeting so was not aware of the debate that had occurred and the Principal's prior objection to them. When the P&C minutes were handed to Mrs Cretney, they included the transcription of questions and were accordingly attached to the newsletter. 101 It is of note the distribution of the P&C minutes and attached transcription of questions occurred in the context where the P&C, through correspondence and other activities, were playing an active role and not necessarily an approving one, as to the manner and purpose of the Review. Additionally, the community members were not supportive of the Review potentially calling into question the conduct of the assistant teacher, Mr Randazzo. 102 While I accept the applicant was a supporter of the assistant teacher, it was not proper that those questions be attached to the minutes for distribution, nonetheless, I do not find there can be a basis for the inference cast in both the edited and final Report, that the school assistant was deceptive in attaching the transcription of the Review questions to the newsletter. While the statement "the transcription of the issues raised with the assistant teacher was subsequently attached by the senior school assistant to the newsletter with the minutes of the P&C meeting" may be a blunt statement of fact, it is, by inference, misleading. Further this was not a matter raised with Mrs Cretney in the second interview. At the point of publication, I accept Mrs Cretney was not given an opportunity to respond. 103 However, from the day after the publication of the edited Report, Mrs Cretney recorded the circumstance in which she attached the questions to the newsletter. The Union made representations on her behalf and her explanation of that matter and the other four matters were sent on to the Department by Mr Thomas, Shellharbour District Superintendent. The Department through Mr Paul Irving, General Manager of Personnel wrote on 18 August 2000 to the Union acknowledging that the recommendations of the Report were being considered and gave the assurance as follows: . . . Your comments and explanations in respect of those matters concerning Ms Cretney as identified in the Report are noted. . . . 104 The Final Management Review Report then went to the Audit Committee. It determined there was no basis for any disciplinary procedures arising from any of the five matters. The Evaluation Report of the Audit Committee relevantly said: The potential evidence relating to each of the ten potential breaches was assembled and evaluated. The results were presented to the Senior Legal Officer Industrial Relations Services . . . and the Senior Officer Industrial Relations . . . for review. Their advice was incorporated into the analysis. . . And it noted: The PSA has already signalled their support of Mrs Cretney to the Department. 105 The background document related to the Audit Committee decision clearly indicates the committee was aware of the Union's active support of Mrs Cretney. The Audit Committee also records that it sought advice from the Department's Senior Legal Officer, Industrial Relations and Senior Officer, Industrial Relations. Through both of the branches consulted and through Mr Sutton, the Department was aware of Mrs Cretney's submission containing her reply to the specific issues raised by the Review of her conduct. 106 Generally in employment law, as in civil cases, inferences must be drawn on the balance of probabilities and there need only be circumstances raising a more probable inference in favour of what is alleged but, before it can be drawn, the inference must be something which follows from a given premise as being at least probably true (Chapman v Cole (2006) 15 VR 150 at [14]). However, inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the facts which it is sought to establish. In some cases, other facts can be inferred with much practical certainty (as if they had been actually observed). In other cases, the inference does not go beyond reasonable probabilities. But if there are no positive proved facts from which inference can be made, the method of inference fails and what is left is mere speculation or conjecture (per Spigelman CJ in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 at [87] quoting Lord Wright in Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 (at 169-170)), Marinov v ASADA (2007) 2(1) ANZSLJR 2 (at 134)). 107 A number of objective facts lead me to infer the Audit Committee or at least the Departmental Officers from whom review and advice was sought, had available the submissions to the Department from the Union on Mrs Cretney's behalf. (The School Council also wrote supporting Mrs Cretney as was acknowledged by Mr Sutton.) These submissions detailed Mrs Cretney's response and explanation regarding the newsletter incident and the other issues relating to the Review Report. The Audit Committee assembled the "potential evidence" regarding the potential breaches of policy and noted "Union support" for Mrs Cretney. I find the collation of "potential evidence" infers the Audit Committee and/or the Departmental advisors went beyond the recital of evidence collected for the Review. The determination itself is also an indication of the fact the Department and the Audit Committee had sufficient evidence before it to comfortably determine not to implement the Review Report Recommendation that, regardless of whether any investigation occurred or its outcomes, Mrs Cretney be transferred to another school. 108 I find at Stage 5 of the Management Review, Mrs Cretney was accorded procedural fairness regarding the newsletter incident. I find, therefore, there was no unfairness in the conduct of the Management Review that could be connected to the newsletter incident. 109 Further, even if (at Stage 5 of the Policy) Mrs Cretney's replies were not given consideration by the Department (and I accept, by inference, they were), I would not accept the publication of the newsletter issue in the edited Report before she had an opportunity to reply, would establish such unfair conduct by the respondent sufficient, on its own, to make the contract unfair (see Antonakopoulos v State Bank of NSW (1999) 91 IR 385 (at 389-392)). It remains to be considered whether, given her submission, there was any other such alleged unfair conduct. Recommendation 7 The reported disclosure to others of school and student information by the assistant teacher and the senior school assistant. This may be in breach of the Teaching Services (ETS) Regulation 1994 Sect. 9 . . . 110 Evidence that both the assistant teacher and the senior school assistant kept extensive personal diaries, files and databases of incidents at the school was reported as threatening by some staff members. Evidence revealed the applicant did keep such extensive diaries, files and databases of incidents. However, there was no evidence the information and records Mrs Cretney retained were in any way obtained illegally or were her records necessarily inaccurate although, on examination, many of the entries in her notes and diary clearly relate to school affairs. They all reveal unswerving support for the assistant teacher. This has been established by the applicant herself through the many references she made to her own documentation (by way of an affidavit by the applicant tendered in this litigation in the respondent's case). There are numerous (some 76) references by the applicant to documentation which she asserts would support her various descriptions of events and conversations related to school business. Some examples include: In 1996 a parent nominated Rob for the Minister's Award for Excellence in Teaching and was most upset when Stewart refused to endorse her nomination (she found out only when she called the organising committee). (documentation available). . . . "Stewart" is a reference to a former Principal). . . On 4 August 1999 the P & C states strongly objects (sic) to District Superintendent's proposal of an Inquiry, seen as a 'witch hunt' and demands information regarding the proposal. (document available) . . . The district superintendent told the panel that he believed that Rob was responsible for 3 principals leaving the school on compassionate grounds. (document available) 111 The issue related to her record keeping of the activities of various Principals and the use of her records generally was raised with the applicant in the second interview with the Review Team. She refused to elucidate. The evidence satisfies the applicant recorded school information and such information was disclosed to various persons, including the Union, the P&C members, Mr Randazzo and others. I accept the question raised in the Recommendation 7 as to whether confidential school information and student information was disclosed outside the performance of school duties was a reasonable question raised from the bulk of the evidence before the Review Team. Mrs Cretney's recording of conversations, opinions of third parties and her own views warranted the recommendation for further investigation to determine if disclosure of such information was in breach of the Department's Code of Conduct for staff. On the evidence, both before me and what was before the Review Team, further investigation appears a reasonable conclusion of the Review Team and a fair one. Recommendation 8 By copying a fax sent to the review team leader the senior school assistant may be in breach of the Code of Conduct 3.1.xvi (1997) 112 The applicant agreed she handed to the Review Team leader a photocopy of a facsimile sent to him in the conduct of the business of the Review. She asserts the instruction booklet for the operation of the particular facsimile machine concerned advised that the print could fade on the thermal paper used. The operator of the facsimile machine was advised that copies should be made of all facsimiles. Mrs Cretney asserts this was her practice. However, the details related to this particular facsimile are of concern. The facsimile was signed by Sharon Fujie. It was directed to the Review Team in support of Mr Randazzo, the assistant teacher, and it attacked a prior Principal's conduct. When handed to the Review leader, Mr Chalmers, Mrs Cretney did not reveal the author was Mrs Cretney's daughter, who had been employed at the school as a casual teacher. Mrs Cretney further asserts that her daughter had requested her to keep a copy of the facsimile. Both explanations from Mrs Cretney for copying the facsimile may have some validity. However, in the environment in which this Review was being conducted, I understand the concern expressed by the Review Team as to the procedures adopted by Mrs Cretney in handing to the team leader a copy of a confidential facsimile communication and not revealing it had been written by her daughter. This issue was raised with Mrs Cretney in her second interview. She refused to answer. I find it was a reasonable and fair recommendation for the Review Team to determine the circumstances be further investigated as it "may" reveal a breach of the Code of Conduct. Recommendation 9 The senior school assistant also may have breached the Code of Conduct 3.1.xvi and 5.2 by the transcription on 6 June 1999 and the publication to others of a private telephone conversation. Some review respondents believed that other confidentialities had been breached. 113 The applicant had given to the Review Team notes of a telephone conversation she had with a Ms Baker, President of the NSW Federation of P&C Associations. They were comprehensive notes. They appear to record Ms Baker's and third parties' views of the assistant teacher. She gave the notes to the Review Team as she thought they were relevant to the Review Team's inquiry. Mrs Cretney revealed to the Review Team she did not know if Ms Baker knew she was recording the conversation. The opportunity for her to reply to the assertion that "some would see this as a breach of confidentiality" was put to Mrs Cretney in the second interview. She refused to answer the inquiry. The applicant asserts it is unclear what part of her action could be seen as a breach of confidentiality and asked for further particulars such as: "by whom and why". Without her reply, the Review Team recommended that this "may" have been a breach of the Code of Conduct and recommended a formal investigation. In giving the notes to the Review Team, I cannot accept there was any inappropriate behaviour on the part of the applicant. Given the content of the notes referring to the view of others and the significant number of other records related to school activities kept by the applicant, the question of their promulgation does arise. I can, therefore, accept it was a fair recommendation from the Review Team that a formal investigation be conducted as to the use of such records. Recommendation 10 Two of the senior school assistant's daughters have been employed in a casual capacity at the school. Some respondents to the review questioned the integrity of these appointment. It is considered that an investigation may clarify the circumstances. 114 A question was put to Mrs Cretney in the second interview about the employment as a librarian at Penrose School of one of her daughters who was not so qualified. The integrity of that appointment was brought into question. The applicant was told it was reported that trained personnel were available to do the work. She refused to answer the question. There has been little evidence offered to the court as to the circumstance of both of her daughters being employed at the school. By inference from documentation tendered, one of the applicant's daughters was a qualified teacher who filled in casually at the school. Generally a school assistant, such as Mrs Cretney, has no power within a school to hire staff. If there is any basis to question the integrity of either appointment, I cannot see how it reflects on Mrs Cretney. However, Mrs Cretney in an affidavit (tendered in the respondent's case) revealed the hiring of each of her daughters was sometimes the action of Mr Randazzo (when he was acting Principal) and at other times actions of other Principals who had served at the school. The recommendation for an investigation can therefore not be perceived as one necessarily against the interests of the school assistant. If there was any inference that she exercised influence in these appointments, it would rightly warrant further investigation to determine if there was any breach of the Code. The Recommendation was fair in the circumstances but not necessarily one for which Mrs Cretney carried a great burden. Other Alleged Unfairness 115 The applicant made a number of other assertions as to the unfairness she suffered. She asserted Ms Murphy was the sole source of any complaint made against her interest to the Review. From documentation, there were recorded a myriad of complaints as to the role Mrs Cretney played in supporting the machinations and ambitions of the Assistant Teacher. Her correspondence, records of meetings and her expressed views persuades the court she played an active role in supporting Mr Randazzo. I accept there was evidence of Mrs Cretney's passive acts of unco-operation as detailed by Ms Murphy. This includes, for example, in not assisting Ms Murphy as to the place where school equipment was stored; refusing to give her information as to why older children or children with special needs, not enrolled at Penrose Public School, were attending classes; and offering no explanation as to why a telephone line was connected to the assistant teacher's classroom. While these were Ms Murphy's complaints, other Principals joined in evidencing a failure by Mrs Cretney to support them in their role. Mr Irving also gave evidence of her unco-operative attitude. In one of the interviews with the Review Team, a parent reported, and it was recited in the Final Management Review Report that: "if she could fly a (assistant teacher's name) banner, she would". 116 On Mrs Cretney's behalf Ms Howell, of counsel, asserted she had provided full professional support to all Principals appointed to Penrose Public School. The applicant's notes, memorandums and affidavit evidence revealed otherwise. In Mrs Cretney's affidavit of 27 October 2003 (tendered in the respondent's case) by its tone and content I accept she expressed contempt for four of the previous Principals, namely, Mr Peaks, Mr Cameron, Ms Wallace and Ms Murphy and in doing so she gave covert and overt support to Mr Randazzo. 117 I accept Mrs Cretney may have been genuinely motivated to serve the interests of the students of Penrose Public School and the school community. However well intentioned, in providing such clear support actively and/or passively to the Assistant Teacher, whether he was the acting Principal or not, her actions were inappropriate. While the Review Team noted the difficulty in pinpointing the "passive" actions that made life so difficult for the various Principals, I accept there has been a demonstrated pattern of unco-operative behaviour from the applicant. When considered alongside those actions of the assistant teacher, it is evidence Mrs Cretney contributed to conduct which was at the heart of some of the difficulties faced by the various Principals at Penrose Public School causing them to ask for transfer, often on compassionate grounds. Natural justice 118 Within the School Development Policy there are, clearly defined, steps to be taken for the conduct of a School Management Review. Those steps have been outlined above at [7]. The Policy put obligations on the Review Team to ensure the professional integrity of staff (key principle 3.2(j)). A Management Review has a defined objective relevantly related to the "management" of the school. When matters of a "disciplinary nature" (as identified by the Review Team) arose, the Review Team were required under 4.2 and 4.3 of the Policy to refer the matter to the Assistant Director General. In accordance with the Policy, the Review Team referred matters which "may" have been a breach of the Code of Conduct. The Assistant Director General had weighed up the issues raised and whether, if the Review continued, its objective could be achieved. The obligation to ensure the professional integrity of staff was considered by the Assistant Director General who required particular issues of concern be raised with the staff concerned. Mr Sutton determined the Review of the Management of Penrose Public School was to continue. The issues raised were put to the staff concerned through the second interview conducted. All except one of those matters of concern was put to the applicant. There was no response from Mrs Cretney. Five of the ten matters of concern raised with her in the second interview were recommended for further investigation (in accordance with 4.2 and 4.2 of the School Development Policy). 119 Further, I reject the Review made unfair "findings". In the referral of matters for a formal investigation there was an acknowledgement the limitations of investigations under the Management Review of a school to determine if there were disciplinary matters to be addressed. This was a fair conclusion and open to the Review Team. The referral of the issues was a proper step in the Management Review. Under the Policy, information obtained may be used in Departmental investigations (3.2(j)). 120 I am satisfied in the conduct of the Review, the treatment of the applicant was consistent with the Policy. The Policy, in its stages and steps, incorporated the principles of natural justice (recognised as procedural fairness in administrative law). There was no breach of natural justice as Mrs Cretney was given an opportunity to respond to all issues raised regarding her conduct except that of the newsletter. I accept, before publication, Mrs Cretney was not given an opportunity to respond to the issues regarding the distribution of the newsletter. However above at [99-108], I have found that prior to the finalisation of the Review, Mrs Cretney's replies to the issues raised in the second interview and the newspaper incident were submitted to the Department by the Union and given consideration. The Department determined not to adopt the Report's recommendation to transfer Mrs Cretney nor to send the matters for a formal investigation under disciplinary procedures. She was in the circumstances accorded procedural fairness. 121 The applicant also asserts the respondent published the edited Management Review Report and should not have. The edited Report was read out to a meeting convened through the P&C and the School Council. Parents were sent a copy of the Report. The Departmental procedures for a Management Review allow for such circulation. No one was given a guarantee of confidentiality and each person interviewed was informed of this fact. However, the Report did not name any person. It is true the staff titles were used but this was in the context of the performance of their duties related to the management of the school. I accept the Review Team under the Policy and stages outlined was authorised to discuss the final Report with all persons who had a stake in the implementation of the Recommendations. In this case, the school parents and interested community members (stage 5.5) were those who were identified as active and affecting the school's management difficulties and would be involved in most of the recommendations to ensure the recommended strategies in the Report (including the community's role in the school) were implemented. It is also of note over 100 community members attended the meeting to hear the result of the Review announced. They could, therefore, be held to be persons who had a stake in the Review implementation. 122 The applicant further claims the "purported findings" of the Review were false, inaccurate and defamatory. I do not accept there were any "purported findings". There were matters identified in "Recommendations" for further investigation not "findings". The only finding related to Mrs Cretney as stated in the edited Report and in the final Report was in Conclusion 2 of 14 conclusions. It reads: There has been and continues to be a significant breakdown in interpersonal relations within the school. This has been caused by the active and passive actions of the assistant teacher, often supported by the senior school assistant and key members of the community. This conclusion was the second of 14 conclusions published. That part of the conclusion relating to Mrs Cretney is couched in the context that her actions were seen "in support of the assistant teacher" along with that of others who supported him. In the context of the finding there was a "systematic breakdown in interpersonal relations within the school". A recommendation was made that both the assistant teacher and the applicant be transferred and the school community be further educated as to its role within the context of an efficient school. I accept these were reasonable conclusions and open on the evidence before the Review Team and therefore fair. 123 I reject the proposition that during the Review the respondent took no steps to check the veracity of the "purported findings". All matters except the newsletter incident were put to the applicant (and addressed at a later stage of the Review). Mr Chalmers and Mr Armstrong only reported on matters which were raised by at least two persons in the conduct of the investigation. 124 There is some suggestion by the applicant the final Report of the Management Review was published. I do not accept evidence that the NSW Primary Principals' Association Newsletter "Statelines", nor the letter to the Minister from four former Principals of Penrose urging action on the recommendations of the Report, establishes the Principals' Association were given a copy of the full Report. It could have been drafted with reference to the edited Report. Therefore I do not accept I should make a finding the full Report was given to the Principals' Association and thereby published widely. Disciplinary procedures 125 In pleadings and submissions, counsel for the applicant, Ms Howell, asserted from the moment the issues raised by the Review Team were put to the Assistant Director General Mr Sutton, the Department embarked upon a "disciplinary procedure". She asserted such disciplinary proceedings were not conducted in accordance with the provisions of the relevant Act and Regulations. 126 Therefore, at the heart of Mrs Cretney's claim for unfairness in her employment contract is her assertion the five "recommendations" relating to her as recited in the final Review Report were in fact "disciplinary matters" which should have been examined under the Department's Disciplinary Procedures. She asserts the complaints should have been formalised in accordance with the Department's disciplinary procedures and been given the "allegations" (as she referred to them) in "writing". 127 The relevant Departmental disciplinary procedures related to an ancillary staff member such as Mrs Cretney are contained in a number of Acts, Regulations and Award. Legislation under which Mrs Cretney was employed was the Education (School Ancillary and Support Staff) Act 1987. It relevantly reads: 28 Procedure for dealing with breaches of discipline (1) A breach of discipline alleged to have been committed by a permanent employee shall be dealt with by the Director-General. (2) Subject to this Act, the regulations may: (a) make provision for or with respect to the manner of dealing with alleged breaches of discipline, and (b) prescribe all matters that are necessary or convenient to be prescribed for carrying out or giving effect to this Part. The relevant regulations dealing with alleged breaches of discipline are in the Education (School Administrative and Support Staff) Regulation 1998. Section 5 relevantly states: 5 Procedure: breaches of discipline by permanent employees For the purposes of section 28 of the Act, alleged breaches of discipline by permanent employees are to be dealt with by the Director-General in the same way as alleged breaches of discipline by officers and temporary employees of the Education Teaching Service are dealt with under the Teaching Service Act 1980 . 128 Therefore, the procedures to be followed for breach of discipline governing Mrs Cretney are outlined in the Education Teaching Service Regulation 2001 and relevantly read: 13 Officers who may deal with breaches of discipline In accordance with paragraph (a) of the definition of prescribed officer in section 82 of the Act, the positions within the Department that contain the following titles are prescribed as positions for the purposes of Division 6 of Part 4 of the Act in its application to the Education Teaching Service: Deputy Director-General Assistant Director-General Director General Manager Executive Director District Superintendent Disciplinary Inquiry Officer Senior Manager 14 Procedures for dealing with breaches of discipline (1) If it appears to a disciplinary authority that a member of staff may have committed a breach of discipline, the disciplinary authority may, after conducting a preliminary investigation into the matters relating to the alleged breach of discipline: (a) charge the member with the alleged breach in accordance with clause 15, or (b) deal with the alleged breach in accordance with subclause (2). (2) . . . (3) . . . (4) . . . (5) . . . 15 Laying of Charges (1) A charge may be laid by a disciplinary authority against a member of staff for an alleged breach of discipline orally or in writing. If the charge is laid orally, the member of staff must be furnished with a written copy of the charge within a reasonable time. (2) At the time the member of staff is charged by a disciplinary authority in writing or furnished with a written copy of the charge, the member must be directed to send a written reply to the authority within 14 days (or such other period of time as is agreed). The Crown Employees (School Administrative and Support Staff) Award 2000 also applies. 129 If Mrs Cretney was facing disciplinary procedures, then in accordance with the relevant legislative requirements the following procedure should have occurred. She first had to undergo an investigation by a prescribed officer which included Mr Sutton as Assistant Director General. Following the investigation, the disciplinary authority had to determine whether to lay a charge. Only then would any charge be put in writing to the employee 130 The scheme for the laying of charges under the applicable legislation "involves the formulation of an opinion that a breach may have occurred and inquiry whether it is denied prior to the charge" (Spigelman CJ in New South Wales v Paige (2002) 60 NSWLR 371 at [121]. Investigation is the first step in a disciplinary procedure before a charge is laid. In this case, matters in a disassociated investigation raised whether there were matters which should be "formally investigated" related to a possible disciplinary charge against two particular staff members. 131 The Management Review has a guarantee in the guidelines regarding staff. It reads from Stage 3.2 in the Policy: p) At all times in the process of the review the professional integrity of the school and its staff will be preserved. The applicant asserts the Policy therefore requires an immediate referral under the disciplinary procedures if anything related to matters of a disciplinary nature are raised in a Review. In the Policy, it is stated under 3.2: (i) All available relevant information will be drawn on. The relevant school staff identified in (d) above, should have the opportunity to respond to the information gathered. (j) Information gathered in school program reviews may be used in departmental investigations and the resolution of complains and grievances. In these circumstances there is no guarantee of confidentiality. Individual Review Team members are required to use information gathered during a program review for the purposes of review only. . . . (r) It is important to note that the management review process is separate to the process associated with reviewing the efficiency of individual staff. I accept the Review took account of the key principles and related the complaints about Mrs Cretney's conduct in their Conclusions only to its effect on the "management" of the school. The conclusion drawn affecting Mrs Cretney related in its terms only to the effect her conduct had on the management of the school. It was therefore not unfair. The fact that some matters were referred for "formal investigation" is a step envisaged under 3.2(j) where it is said such information can be used in departmental investigations. 132 The process followed regarding matters "which may be a breach of the code of conduct" I outline above at [118]. In summary, in accordance with the Policy the Review Team referred matters of concern raised in the Review to Mr Sutton. He determined the Review ought to proceed and the issues be put to the staff members. This step was one of procedural fairness. After the Report was finished its Recommendations were then sent to the Audit Committee. As outlined above at [54] and [104], the Audit Committee made a determination based upon the evidence before it, which included the Review material and Union submissions, not to accept the Recommendation of the Review regarding Mrs Cretney. The Assistant Director General agreed with the Audit Report and determined not to implement the Review Report's recommendations regarding investigation or transfer of Mrs Cretney. 133 I do not accept, and it was denied in writing by the Department, that the investigation ever became the first step in a disciplinary proceeding. But even if it did, an authorised person, the Assistant Director General, considered the matters, the investigation, the applicant's denial and determined not to initiate a disciplinary investigation. So while I do not accept there was a s14 investigation, if the full Report is seen as the investigation under s14, the denials of the applicant were by inference, weighed up at Audit and by the Assistant Director General and no charge laid. It would be a curious result if, arising from this litigation, an unfairness is found and the matters were referred back for disciplinary action notwithstanding the determination of the Audit and the Assistant Director General that there were no disciplinary issues. The applicant inferred the matter could not go to a disciplinary hearing because of the time constraints (the passing of eight years) yet she seeks the court to rehear all issues and reconsider all recommendations and conclusions of the Management Review by a consideration of evidence placed before it which she asserts, somehow could not be placed before a disciplinary tribunal. The Relief Claimed 134 Having found no unfairness in the conduct of the Review it would not be necessary to consider the orders sought for relief. However, the applicant pressed a number of claims for relief she asserts are reflective of the unfairness of the contract and have left her reputation damaged and herself in ill health. I will therefore briefly address those issues. Variations sought 135 Generally, pleadings in the form presented by the applicant asserting "failures" which led to unfairness are claims which attract the Court's jurisdiction under s106 of the Act. The applicant asserts terms were omitted from the employment contract that would ensure fairness in the conduct of a Management Review of Penrose Public school. The employment contract should therefore be varied and relief granted. She pleads for variations to the contract to ensure the respondent fully and fairly investigate all allegations; give her a reasonable opportunity to be heard; and required the respondent to refrain from publishing such allegations. The orders sought by Mrs Cretney are as follows: the Report/Reports be withdrawn; notification to all parties who received the Report it had been withdrawn; an apology from the Department for publishing inaccurate and defamatory material about her; just compensation, interest and costs. The applicant submits the orders sought in the Summons to vary the contract are shaped to: remedy the unfairness in the contract and to preclude the respondent from behaving in an unfair manner. There was an inference cast that the matter could have a wide significance, namely, the protection of all employees within the Department so there is a public interest test to be applied. Given the compliance with what I accept are fair procedures for the conduct of a Management Review and there was a fair application of those procedures, I reject the relevance of the application of the public interest test. 136 Orders of the Court must relate to the subject matter of the litigation and be reasonably capable of implementation under the powers given to the jurisdiction of the court. The Industrial Court is a superior court of record (s152(1)) but its powers are those expressed or implied by statute notwithstanding it also holds the "widest" of privative clauses (s179). As it is not necessary to canvass in particular the orders sought by the applicant, nonetheless, it is necessary to note s106 provides a statute imposed limitation for the type of orders sought by the applicant. It is my view many of the orders and variations sought by the applicant could lead to error but an error made within jurisdiction. As Handley JA said in Mitchforce v Industrial Relations Commission (2003) 57 NSWLR 212 at [174]: 174 The Commission therefore had jurisdiction to determine whether the contract was unfair, and the relief, if any, to be granted. Any error, assuming one were made, would be within jurisdiction. Error within jurisdiction "is a wrong exercise of a jurisdiction [the Court] has, and not a usurpation of a jurisdiction which [it] has not" (per Lord Sumner in R v Nat Bell Liquors, Ltd [1922] 2 AC 128 at 151–152). The same point was made in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 LCR 369 at 374, by Latham CJ who said: "When jurisdiction is given to decide a question, there is power to decide it, rightly or wrongly, and not only power to decide it rightly". and at [202]: 202 The Commission is a superior court of record (s 152(1)), but as a statutory court it only has the powers conferred on it, expressly or impliedly, by statute. In R v Forbes; Ex parte Bevan (1972) 127 CLR 1, the High Court held that the Commonwealth Industrial Court had no implied or inherent power to grant an ex parte injunction to prevent a de facto amalgamation of registered organisations and their funds. This is persuasive authority that the Commission had no implied or inherent power to make order 11 and order 12, whether they are characterised as orders for specific performance, injunctions, or simply as mandatory orders. Accordingly, subject to the privative clause in s 179, certiorari should go, but only to quash those orders, which are clearly severable: R v Arundel Justices; Ex parte Jackson [1959] 2 QB 89. Any variation made to the contract would have to be related to the unfairness found in an employment contract as would any "just" compensation. The orders sought by way of a variation to the applicant's employment contract would not normally be within the ambit of an employment contract. Therefore even if an unfairness was established it is questionable whether all the orders sought would be within the court's power. Claim for Damage to Reputation/Defamation 137 As to her claim brought under s106(5) for "damage to reputation", I adopt the reasoning of Schmidt J in Bowker that a claim for loss of reputation related to the unfairness in the employment contract can be pressed. However, I do not accept there are grounds for such an order in this case. I do not accept it has been established the applicant suffered an unfairness. Further, no evidence has shown she suffered a loss of reputation in the conduct of the Management Review at Penrose Public School or in the publication of a Report which recommended a number of matters be further investigated. Also relevant is the Audit Report (part of the final stage of the Management Review) which concluded that disciplinary action was not warranted and in a further consideration of the Report by the Assistant Director General, the recommendation for her transfer was not acted upon. 138 For there to be any "just compensation" for the damage to reputation (as is her perception of the effect of the Review) there must be damage directly related to an unfairness found in her employment contract. No evidence has been led of any loss of reputation or defamation of her character except her own perception she has lost her reputation and has been defamed. She kept her chosen professional occupation. She has been re-hired and stayed at Penrose School. The hours of work were correctly reduced and her restricted access to the photocopier was short lived. The restriction on typing the newsletter was Ms Murphy's restriction and upon her departure the evidence is that the restriction was eased. Neither restriction could be viewed as representative of damage to her reputation. Accordingly, the claim for loss of reputation is rejected. Claim for Stress/Distress/Medical Loss 139 Section 106 is a statutory scheme and s106(5) does not recite heads of damage as developed in the common law (tort of negligence). The statute limits the form of "money orders" to "just compensation" directly related to the unfairness. 140 Mrs Cretney claims compensation for the stress she suffered in the conduct of the Review. She submitted the report and notes of Dr Mouroukas, her general practitioner as evidence that she presented to him on 3 April 2000 with insomnia, panic attacks and palpitations. He opined "she had been stressed regarding her employment". He further stated she suffers "chronic post traumatic stress disorder with major depression". She also relies upon the effect she describes that the meeting of 1 August 2000 had on her where the "findings" were read out and she felt "shocked and publicly humiliated". She remembered feeling a blood rush to her head and she reports hearing someone abuse her. 141 Mrs Cretney also claims she suffered the hurt and humiliation of being named in the Daily Telegraph newspaper and being asked to leave her position "to maintain the stability of the school". Mrs Cretney asserts after the publication of the Review Report she then suffered the indignity of the two Principals she then had to work for, Mr Phil Irvine and Ms Kate Murphy, taking the view that she was untrustworthy, disloyal or deceitful. She therefore lost her reputation and was defamed. 142 The Court has provided relief for a claim for "stress and suffering" but as the Full Bench cautioned in State of New South Wales v Banas at [105]: 105 Finally, on this issue we wish to emphasise that claims for stress and suffering or claims under a similar rubric must be carefully scrutinised. As it was cautioned in King v State Bank of New South Wales (No 2) there needs to be "a very careful approach" taken to the assessment of compensation for unfairness arising under such labels as "stress and suffering" and the precise basis for the award must be specified. See also King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [110]-[115]. 143 I accept Mrs Cretney has a vulnerable personality. In June 2003, she has complained of another incident at work which has affected her and, by inference, seems to have brought about her first resignation. From the beginning of the announcement of the Review Team's investigation she objected to its conduct. I accept she attended at the doctors during the conduct of the Review in April 2000. While this was prior to the publication of the Report or mention of any of the specific events relied upon in the pleading as causing her distress, I accept Mrs Cretney clearly suffered stress in the conduct of the Review. I accept she continues to be distressed by the thought of the recommendations contained in the Review Report notwithstanding they were reviewed and not implemented. She clearly has a perception those recommendations were "findings" and further they were unfair "findings". 144 However, I have accepted that four of the Recommendations in the Reports arising from the information received in the conduct of the Management Review were not unfair. I have found that related to the newsletter issued, notwithstanding publication before she had opportunity to respond, Mrs Cretney's reply was given consideration before the Department acted on the Report Recommendations. I do not accept her obvious distress, be it as particularised in the medical evidence or symptomised through her behaviour over the last eight years, is reflective of any unfairness in the conduct of, or publication of, the Management Review Report. I reject the diagnosis of her general practitioner that she suffers "chronic post traumatic stress disorder with major depression" an identifiable psychiatric disorder not supported by qualified specialist diagnosis. However, I accept she had stress and still has distress. Unfortunately, I cannot accept her ongoing distress can be related to any unfairness in her employment contract. Therefore there should be no re-imbursement of her claim for medical expenses. Conclusion 145 The circumstances surrounding the resignation of four Principals from Penrose Public School over a 10 year period entitled the Department to activate its School Development Policy and conduct a Management Review. When conduct of a potentially disciplinary nature was raised under that Review, the procedures of the Policy required an Assistant Director General's consideration as to whether the Review could achieve its aim if continued. I accept the Assistant Director General considered all issues and determined the Review proceed but, as a matter of natural justice and procedural fairness, the matters raised be put to those concerned. I accept the conclusions reached by the Review were open to it, fair and related to the Review's objective regarding the "management" of Penrose Public School. Mrs Cretney's refusal to answer some issues raised during her second interview contributed to the Recommendation for a "formal investigation". This was a procedure open to the Review Team under the School Development Policy. I further accept the Review Report was distributed to those with a stake in its conclusions - parents and the community members. The Review was not completed until after the Audit determined no disciplinary action was warranted and the Assistant Director General determined not to action the recommendation to transfer Mrs Cretney. The decision not to transfer Mrs Cretney was made by taking into account her submissions as to the issues identified (through the Union) as well as the possible effect of the recommendations on her personal circumstances. However, the other four Recommendations from the Review Report were to be implemented. I find Mrs Cretney was accorded procedural fairness and there was a compliance with the rules of natural justice. 146 The Department of Education and Training has obligations under statute and a duty to the public of NSW to ensure the efficient functioning of public schools within its administration. In the conduct of a justified inquiry into the management of Penrose Public School, I find there was no unfairness. I therefore reject Mrs Cretney's claim the Department's conduct of the Review led to an unfairness in her employment contract. I reject the claim that "findings" made in the conduct of the Review were unfair. I reject the claim that any distress she suffered/suffers is reflective of any unfairness in her employment contract. I do not accept she suffered damage to her reputation because of the conduct of the Departmental investigation into the management of Penrose Public School. Even if there is a public interest test to be applied to this litigation I find the Department has given the applicable members of staff and Mrs Cretney procedural fairness: assurances about professional integrity were complied with; the procedures were fairly defined and followed. 147 For all of these reasons, I make the following orders: 1. I declare the contract of employment between the parties was not an unfair contract within the meaning of s105 of the Act. 2. The application brought under s106 of the Act is dismissed. 3. Leave to relist 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.