Industrial Court of New South Wales CITATION: Vibeke Vistisen v Sydney South West Area Health Service [2007] NSWIRComm 215 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: Vibeke Vistisen PARTIES: RESPONDENT: Sydney South West Area Health Service FILE NUMBER(S): IRC 4795 of 2004 CORAM: Haylen J CATCHWORDS: Unfair contract - Industrial Relations Act 1996 - s 106 - temporary employment in Drug Diversion Programme - period of employment limited by visa provisions to three months with any one employer - alleged sexual harassment by supervisor - supervisor holds out promotions and support for visa extension on condition that applicant provides sexual favours - applicant rejects sexual advances but expects appointment to promotional positions and support for visa extension - applicant lodges complaint against supervisor - complaint investigated and applicant transferred to other employment - applicant alleges alternative employment does not use her skills - shortly after lodging complaint applicant claims stress and inability to continue work - no return to work before temporary employment comes to an end - workers compensation claim based on stress rejected by insurer - applicant continues to suffer stress, anxiety and psychological conditions - complaint of sexual harassment denied by supervisor - investigation unable to determine if allegation or denials established - claims for promotional position represented by supervisor to be paid to applicant - payment for absence from work claimed - payment claimed for stress and psychological conditions - claims not made out against respondent - no relevant conduct or representations by employer - unfairness established in relation to non-payment of period of absence caused by stress and anxiety LEGISLATION CITED: Workers Compensation Act s 11A CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 The State of New South Wales v Banas [2004] 137 IR 63 HEARING DATES: 30/07/07, 31/07/07, 01/08/07, 02/08/07 DATE OF JUDGMENT: 23 August 2007 APPLICANT: Mr P Bruckner of counsel SOLICITOR: Mr Kevin Solari LEGAL REPRESENTATIVES: RESPONDENT: Mr P Newall of counsel SOLICITOR: Sydney South West Area Health Service JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 23 August 2007 Matter No IRC 4795 of 2004 VIBEKE VISTISEN v SYDNEY SOUTH WEST AREA HEALTH SERVICE Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2007] NSWIRComm 215 BACKGROUND 1 Ms Vibeke Vistisen was born in Denmark in 1973 and lived there until she came to Australia in July 2003 to stay with her boyfriend, Mr Joshua Mitchell, at Cronulla. The couple met in July 2002 while holidaying in Bali. When Ms Vistisen arrived in Australia she had no pre-arranged employment but held tertiary qualifications as a social worker. 2 In early November 2003, Ms Vistisen was successful in obtaining employment with what was then the South West Area Health Service [since amalgamated and now known as the Sydney South West Area Health Service] ("Area Health Service") as a Residential Youth Worker involved in counselling young people between the ages of 14 and 18 who were part of a Drug Court programme. Ms Vistisen took up this position on 10 November 2003 but the term of that employment was for a period of three months because her visa limited her to a maximum of three months' employment with any one employer. The Supervisor in this position was Mr Roger Hoskins, himself a person employed on a temporary basis in the Drug Court programme. 3 Ms Vistisen claims that, from almost the commencement of her employment, she was the subject of suggestive and sexual remarks amounting to sexual harassment made by her supervisor Mr Hoskins. It was her hope that his unwelcome conduct would subside but from mid to late December 2003 the nature of these comments escalated. At the time, Ms Vistisen was attempting to organise an alteration to her visa arrangements to enable her to continue working in a role in which she appeared to be performing well and was seeking the support of her employer, primarily through Mr Hoskins. In late December 2003, Mr Hoskins let Ms Vistisen know that he was likely to obtain a promotion in May 2004 and indicated that he had sufficient influence to have her appointed firstly as Assistant Manager and later as his replacement and to take a leadership role in the Unit in which they worked. Ms Vistisen alleges that, in the course of these discussions, Mr Hoskins had asked her to have sexual relations with him, apparently in return for his support in obtaining a suitable visa and a promotion. Distressed at this continuing unwanted attention and escalating sexual comments made by Mr Hoskins, in late December 2003 Ms Vistisen complained to managers of the Area Health Service about Mr Hoskins's sexual harassment of her. 4 Officers of the Area Health Service immediately commenced an investigation into Ms Vistisen's complaints. Although it was considered appropriate that she be moved from a close working relationship with Mr Hoskins, there was some short time available to look for another position as Ms Vistisen was to take a few days leave over the Christmas period and was also able to complete a few night shifts in circumstances where Mr Hoskins would not be present. By 9 January 2004, Ms Vistisen was sent to work in another programme that did not require her skills as a social worker or counsellor but did not involve any reduction in her remuneration. She became dismayed when Mr Hoskins discovered that she had been moved - she thought she had an undertaking from the investigating officers of the Area Health Service that her location would be kept confidential. Ms Vistisen regarded the work available to her as not comparable to the position that she had held and noted that there was, in fact, little work to perform. By 13 January 2004, she became so disillusioned with the process, including the work she was performing, that she did not attend for work, consulted a medical practitioner and obtained a medical certificate. Ms Vistisen did not return to work for the Area Health Service and her three month appointment expired on 9 February 2004. PROCEEDINGS COMMENCED UNDER s 106 5 It is against that briefly stated background that proceedings were commenced by Ms Vistisen against the Area Health Service. Because of the unusual way in which the claim was formulated it is appropriate to set out essential parts of the Further Amended Summons for Relief that was filed in Court on 30 July 2007. Those parts of the Amended Summons for Relief dealing with the manner in which the contract should be varied, the remedies sought and the allegation of the way in which the contract was unfair, harsh and unconscionable are set out below: . . . Further employment in similar or promoted capacity 3 An order that the Contract is amended by providing that, if a supervisor of the Applicant (" Supervisor ") represents to the Applicant expressly or impliedly to the effect that (" Representations" ): a) the Respondent intends to sponsor the Applicant in support of any application for a visa which relies on the Respondent's intended ongoing employment of the Applicant (" Sponsored Visa "); b) the Respondent sees no impediment in the requirements of the Department of Immigration to the approval of the Sponsored Visa; c) there is no need for the Applicant to apply for a visa which relies on the Applicant's relationship with her de facto partner (" De Facto Relationship Visa") ; d) the Respondent has approval for a new Assistant Manager's position and the Supervisor wants the Applicant to take that position; e) the Supervisor has power to make the decision to give the Applicant a further position; f) the Respondent does not want to lose the Applicant because of the Assistant Manager's position the Supervisor wants the Applicant to be in; g) the Supervisor is going to get promoted to a position located out of the premises at which the Supervisor and Applicant were employed, and the Supervisor wants the Applicant to take over the Supervisor's position; h) the Supervisor's promotion should be coming through in about May 2004 and the Supervisor will have some months to work closely with the Applicant so that the Applicant is ready to take over the Supervisor's position; i) the Supervisor has already discussed with the Supervisor's boss (" Vivian ") the Applicant taking over the Supervisor's position; j) Vivian asked the Supervisor if the reason why the Supervisor gave the Applicant the job was because the Applicant is pretty, to which the Supervisor replied that the Applicant is pretty but the Supervisor also thinks the Applicant has the qualifications; k) the Supervisor will take care of the necessary letter of support from the Respondent to assist with the Sponsored Visa application; l) here is a letter of support for the Sponsored Visa application [and the Supervisor provides such a letter to the Applicant]; m) the Supervisor could push even harder for the Applicant's sponsorship with Vivian; n) the Supervisor is going to pursue a business sponsorship for the Applicant after the new year for a position which is already funded until 2007; and/or o) the position which is available right now for the Applicant is a position as a counsellor, then p) the Respondent must in fact offer to the Applicant, for a period of 3 years, from 10 February 2004 or thereafter depending on Visa requirements, the highest position which the Supervisor represented to the Applicant that she: i) had been given; ii) in the alternative, would be suitable for; iii) in the alternative, could be suitable for; q) the Respondent must promptly take all reasonable steps to advance any Sponsored Visa application made, or which may be made; r) if the Respondent cannot secure for the Applicant any Sponsored Visa, then the Respondent must provide to the Applicant sufficient notice of that fact, so as to enable her a reasonable period to apply for De Facto Relationship Visa, and sufficient time for that application to be considered prior to 9 February 2004; s) in the alternative, if it is possible that the Respondent may not be able to secure for the Applicant any Sponsored Visa, then the Respondent must provide to the Applicant sufficient notice of that possibility so as to enable her a reasonable period to apply for a De Facto Relationship Visa, and sufficient time for that application to be considered prior to 9 February 2004; t) the Respondent should not represent, for purposes of its potential sponsorship of Applicant regarding a Sponsored Visa, that the salary to be offered is at a level which does not include either: i) penalty rates with respect to shifts required or expected to be worked; ii) annual leave loading; iii) other salary benefits; iv) the salary level of the highest position which the Supervisor represented to the Applicant that she: (1) had been given; (2) in the alternative, would be suitable for; (3) in the alternative, could be suitable for; v) or is less than the then minimum salary required by the Department of Immigration level for the Sponsored Visa. 1. An order that the Contract is amended by providing that the Respondent should not make the Representations if the salary intended to be offered by the Respondent to the Applicant is less than the minimum requirement for the granting of any such Sponsored Visa. Misconduct by other employees, and handling of complaints 2. The Contract is amended by providing that a Supervisor should not: a) including as set out in the Representations, make any representation that furtherance of the Applicant's employment in an equivalent or promoted capacity; or b) including as set out in the Representations, make any representation that the Supervisor's or Respondent's willingness to assist with a Sponsored Visa, c) is dependant, or could be assisted in any way, by the provision of sexual favours by the Applicant to the Supervisor. 3. An order that the Contract is amended by providing that, if: a) a Supervisor breaches any obligation in paragraph 5; or b) a complaint is made by the Applicant about the conduct of a Supervisor as referred to in paragraph 5, then the Respondent must: c) properly investigate the matter; d) take action with respect to the complaint; and e) if the action taken is to transfer the Applicant away from the premises: i) the transfer must be to a position in continued employment with the Respondent, ii) with the opportunity to work the same hours iii) performing substantially the same duties, iv) performing duties not of a lesser nature, v) with the position regarding future promotion remaining unchanged, vi) with the position regarding further emloyment beyond the initial term remaining unchanged; and vii) the Respondent is to take all reasonable steps necessary to ensure that: (1) the Applicant is not thereafter subjected to harassment by the Supervisor; and (2) the Applicant is not thereafter contacted by the Supervisor, and, if any of the Respondent breaches any of these obligations, or the Applicant feels unable to attend work as a result of the matters complained of, then: f) the Applicant need not thereafter attend work for the balance of the initial term of the Contract; g) the Respondent is not to terminate the Applicant's employment; and h) the Respondent is to pay to the Applicant wages from the date of her non-attendance until the end of the initial term of the Contract. Remedies for breach 4. An order that the Contract is amended by providing: a) if the Representations are made; and b) the Respondent is in breach of any of the obligations in paragraphs 3,4,5,6(c)-(e) of 6(g), then the Respondent must pay to the Applicant: c) for any period from 10 February 2004 to 9 February 2007 that the Applicant is not engaged in alternative full-time employment, but excluding any period that the Applicant does not actively seek to obtain alternative full-time employment in the same or a similar field to her employment with the Respondent, d) an amount equivalent to wages from 10 February 2004 to 9 February 2007, e) at the greater of: i) the rate of pay in the position of a Supervisor whose position the Applicant was to take over (as referred to in the Representations); ii) the rate of pay of any position which a Supervisor represented to the Applicant that she: (1) had been given; (2) in the alternative, would be suitable for; (3) in the alternative, could be suitable for; iii) the rate of pay as a counsellor with the Applicant's qualifications; iv) the rate of pay of the Applicant with the Respondent; and v) the minimum salary required by the Department of Immigration level for the Sponsored Visa, vi) as amended, or expected to amended, from time to time, f) provided that, if the Applicant does obtain alternative full-time employment, then the amount shall be calculated by deducting: i) wages paid to her; and ii) wages to be paid to her, on the assumption she remains in that full-time position, but the amount payable shall not be less than zero, and the Respondent must also pay to the Applicant: g) in lieu of lost promotional and other opportunities, $45,000, less any amount payable under sub-paragraphs 7(c)-(f) if such amount is based on a wage rate applicable to a promoted position; and h) costs incurred by the Applicant with respect to obtaining a De Facto Relationship Visa. 5. An order that the Contract is amended by providing, if the Respondent is in breach of the obligations referred to in paragraph 5, then the Respondent shall pay to the Applicant such amount as shall be considered just in the circumstances, being $30,000. 6. Further, or in the alternative to paragraphs 7-8, an order that the Respondent pay to the Applicant any such amount of money in connection with the contract so avoided or varied as may appear just in the circumstances. Other orders 10. An order that the Respondent pay interest upon such amount of money as is ordered to be paid to the Applicant in connection with the Contract as varied at such rates and from such time as this Honourable Court considers appropriate. 11. An order that the Respondent pay the Applicant's costs of these proceedings. 12. Such further order or other orders that this Honourable Court considers appropriate. . . . 12. The contract under which the Applicant performed work in an industry was and is unfair, harsh and unconscionable and contrary to the public interest in that: (a) It permitted the Respondent to terminate the Applicant's employment without proper notice; (b) It permitted the Applicant to be subjected to harassment of a sexual nature; (c) It allowed the Applicant to be discriminated against in terms of promotion and permanency on the basis of her having refused to grant sexual favours to an officer of the Respondent in a position of authority over her; (d) It permitted an officer of the respondent to use the Applicant's immigration status as a lever to obtain sexual favours from her; (e) The Applicant was at all times in a position of unequal and inferior bargaining power in respect of her dealings with the Respondent; (f) It did not provide for the Respondent to assess the Applicant's qualifications to ensure that she was paid at a rate appropriate to those qualifications; (g) It did not provide for the matters set out elsewhere in this Summons, including: i) facilitation of promotions offered or intimated; ii) extension of the term beyond 3 months in an equivalent or promoted position; iii) the Respondent performing matters and meeting requirements to facilitate the extension of the terms beyond 3 months; or iv) procedures for dealing with misconduct by other employees of he handling of complaints; and (i)(sic) Such other reasons as this Honourable Court deems just. 13. In the premises, the Applicant suffered distress and developed or exacerbated psychological conditions. 14. The Applicant's distress and psychological conditions have worsened or been prolonged by the length of the proceedings. . . . 6 The claim for money orders was ultimately formulated as follows: (a) payment for the period between 14 January 2004 and 9 February 2004 during periods the applicant was absent from work but unpaid by the respondent. The total claim for this period was $3,083; (b) a claim for wages until the commencement of other employment, being a period of six weeks. This sum was quantified by reference to three possible levels of salary: firstly, on the continuation of the existing position in the amount of $4,281.84; secondly, on the basis of the Assistant Manager's position to which Mr Hoskins had promised to appoint the applicant, being an amount of $5,262.90; and, thirdly, at a Supervisor's rate in the sum of $7,370.40; (c) an amount representing what the applicant would have earned in the following one-year period in relation to which she had a legitimate expectation of further employment. Again, this was calculated by reference to various rates leading to three possibilities. The first calculation was based on a third-year non-graduate rate where the amount claimed was $1,822.04; the second rate was based upon the position of Assistant Manager, the claim being in the sum of $6,207.90: the third basis for this claim was based on the Supervisor's rate and involved a claim of $22,197.71. In relation to these figures, there was deducted what the applicant actually earned during this period; (d) a claim for penalty rates otherwise unspecified; (e) $45,000 (less other amounts) for lost promotional opportunities; (f) $30,000 for stress and psychological conditions. THE COURSE OF EVENTS 7 On 10 November 2003, Ms Vistisen commenced her employment with the Area Health Service as a Youth Worker in the Youth Drug Court Programme. Ms Vistisen alleges that, from almost the commencement of her employment, her supervisor Mr Hoskins made ever-increasing suggestive remarks to her. The comments by Mr Hoskins were said to be made at least once or twice a shift and up to four or five times a shift while nobody else was present. After a few weeks, Mr Hoskins began sending a number of text messages to Ms Vistisen's mobile telephone but she did not respond to those messages. Ms Vistisen, while trying to ignore the comments and hoping they would not continue, felt uncomfortable and a growing unease at the continuing nature of those comments. 8 On approximately 26 November 2003, Ms Vistisen attended the office at Mr Hoskins's request. He told her that there was approval for a new Assistant Manger's position, that he would like Ms Vistisen to take the position and had spoken to Ms Vivian Tait, Project Manager, about that appointment. 9 On 18 December 2003, Ms Vistisen obtained a brochure from the office of her local Federal Member dealing with the sponsorship of a temporary overseas employee in Australia. She saw Mr Hoskins later that day at work and spoke to him about arranging sponsorship of her visa. Mr Hoskins said that he would look into it with his other bosses but would support her application and attend to it the following day. It was alleged that Mr Hoskins said they did not want to lose her because of the Assistant Manager's position she would be in and that he would be promoted out of the Unit and wanted her to take over his job. Mr Hoskins said his promotion would be coming through in approximately May 2004 which would leave some months to work closely with Ms Vistisen in the position of Assistant Manager so that she would be able to take over his position when he left. Mr Hoskins said he had already discussed taking over his role with Ms Vivian Tait. During the course of this discussion, Ms Vistisen alleged that Mr Hoskins asked her to sleep with him once and, when she refused, he asked if she would go half-way and show him what was under her top. 10 On the following day, Mr Hoskins asked Ms Vistisen if the answer was still "no", to which she replied that it was. On 20 December 2003, Ms Vistisen spoke with her friend, Ms Katrina Fisher, about her concerns regarding Mr Hoskins's conduct and the fact that she had not told her boyfriend because it might put their relationship at risk. On approximately 22 or 23 December 2003, Ms Vistisen telephoned the Department of Immigration, and as a result of that call, spoke to Mr Hoskins telling him that the Department informed her that she was to write to them and to obtain a letter of support from her supervisor. Mr Hoskins said that he would take care of that request. 11 On 19 December 2003, Mr Hoskins, apparently unknown to Ms Vistisen, sent a memorandum to the Manager of Court Diversion Programmes (Ms Sandra Sunjic) with a copy to Ms Tait concerning business sponsorship of Ms Vistisen. In that memorandum he noted that Ms Vistisen's work visa limited her to a three month period of employment with any employer, and stated that recruitment had not been very successful in providing qualified candidates or candidates of her calibre. Ms Vistisen had been trying to obtain permanent resident status but the Department of Immigration had informed her that she was not yet qualified for a de facto visa and had recommended that she pursue a skilled migrant visa because of her social work and nursing qualifications. The memorandum stated that it had been indicated to her that she was 99 per cent certain that this type of visa would be approved but that it would take approximately six months from the date of filing such an application. The purpose of the business sponsorship would be to "bridge the two visas together". Mr Hoskins expressed the opinion that Ms Vistisen was employed and trained in the position already and that it would be beneficial to the respondent to provide the sponsorship. He pointed out savings in recruitment, training and additional manpower to fill the position with agency or casual staff and expressed his willingness to undertake the burden of co-ordinating with Employee Services to ensure the completion of necessary documentation. He attached to the memorandum a copy of the Human Resources policy on sponsoring overseas job applicants. 12 On 29 December 2003, Mr Hoskins as Co-ordinator, Youth Drug Programme wrote to the Department of Immigration in support of Ms Vistisen's application to continue her employment in the New South Wales Health system which was due to expire on 9 February 2004. The letter spoke of the nature of the work in which she was involved and its importance in assisting young people to make choices in their lives, especially in the transition to rehabilitation and suitable living arrangements: he spoke of her role as requiring a special person "like her". Reference was made to Ms Vistisen's professional qualifications and her hope to gain permanent resident status through having her qualifications assessed by the Department of Immigration. Mr Hoskins then said: I will assure you that my intent is to continue to provide employment to Vibeke if permitted to do so by DIMA and when granted permanent resident status in the near future place her in a leadership role within the programme. I once again would respectfully ask if it is in any way possible for you to extend her time period to work with one employer to gracefully do so. As, by not doing so, could take a professional out of the health care system when it is at a time, when they are needed the most within the system. 13 On 25 December 2003, while at the work residence Ms Vistisen was speaking to Mr Hoskins on the telephone when he asked her if her answer was still "no" to which she replied that it was. On 29 December 2003, Ms Vistisen met Mr Hoskins and discussed the letter he was to send to the Department of Immigration. He also gave her assistance in writing her own letter in relation to that matter. Ms Vistisen was supplied with the letter Mr Hoskins had drafted to the Department of Immigration. During their conversation, he again asked if the answer was "no", then he put his hands on each side of her head. Ms Vistisen alleged that Mr Hoskins said that, in order to pay him back for his support, she could consider turning her "no" into a "maybe", when he could push even harder for her sponsorship, saying that he could get anything he wanted from Vivian. Ms Vistisen said to him that that was blackmail and he replied that was the way he worked. Ms Vistisen said she then drove home crying and scared. She received a call on her mobile telephone from Mr Hoskins saying that he just wanted her to know that he would never blackmail her. Later that day, she received a text message from Mr Hoskins that read: Hopefully U made it 2 to the post office! I am going to pursue a Business Sponsorship 4 U after the New Year 4 a position that is already funded until 2007. Tell U more latter as lots of reading to do! 14 On 30 December 2003, Ms Vistisen worked a night shift and Mr Hoskins came into the house just before 6.30 am. Mr Hoskins spoke to Ms Vistisen and said that with the position he was putting her into, there was a lot of material to read, lots of questions to be answered and that they had to do it. There was a need for a counsellor for the young children and that position was available now. Ms Vistisen said she was shocked when she heard that comment because she believed that the position of Assistant Manager was already hers. She said she was confused but, since the sponsorship was important to her, she told him that she could do that work. Later in the day, following this conversation, Ms Vistisen spoke to her boyfriend and, later still, contacted a staff counsellor and made an appointment to see Human Resources concerning Mr Hoskin's conduct. On 31 December 2003, Ms Vistisen met with representatives of the Area Health Service, Ms Gina Finocchiaro and Ms Helen Goulden. 15 The notes of the meeting held between Ms Vistisen, Ms Finocchiaro and Ms Goulden held on 31 December 2003 were in evidence, although Ms Vistisen said that there were some errors in that document. Ms Vistisen had supplied the meeting with a copy of her notes regarding Mr Hoskins's conduct and how it affected her. Ms Vistisen was told that complaints of sexual harassment were dealt with under the Area Health Service Grievance Policy; they needed to listen to her concerns and investigate the matters raised. They needed to develop an action plan to resolve the situation and Ms Vistisen was required to be involved in that action plan. Issues of confidentiality were discussed. During the meeting, Ms Vistisen said she found the first seven weeks of the job to be "really good" but that problems began for her approximately two and a half weeks after commencing the job. She then recounted in detail the various conversations and suggestive remarks made to her by Mr Hoskins. She mentioned that there was sometimes another male employee in the office who might have heard some of these comments, a person called Shane. Ms Vistisen also raised issues about her visa and sponsorship and told them that she felt trapped and that Mr Hoskins knew it because she was reliant on him. In the interview, Ms Vistisen was told that sponsorship was not reliant on the Manager alone and was normally arranged through the Area Health Service. It was further explained that sponsorship looked at a wide range of issues, including how long and how often the position had been advertised. Ms Vistisen said she had seen an Immigration counsellor and as a result had spoken to Mr Hoskins about sponsorship: she felt her viability as an employee was dependent upon him and she felt that she was in a corner. Ever since she asked him to help her with her visa, the situation had "got ugly". On 29 December 2003, Mr Hoskins had told her that he could not give her an answer about the sponsorship as there was a possibility that the Youth Drug Court would be privatised. Mr Hoskins had told her that he could get anything from Vivian Tait, his Manager, and that her superior was on leave. Ms Vistisen was concerned about her sponsorship. 16 During the course of the interview, the representatives of the Area Health Service told Ms Vistisen that they needed to ensure that she was not victimised. The Area Health Service had an obligation to proceed with an investigation into the matter, ensure that the behaviour ceased and that she did not suffer because she had expressed her concern. Ms Vistisen told them that she was scared of being alone with Mr Hoskins. As to what she expected to be an outcome from the process, Ms Vistisen said that she would like Mr Hoskins to be told not to do it, she wanted to get out of the workplace and felt that she could not go back. Ms Vistisen clarified that comment by saying that she wanted to be taken care of in relation to her work and sponsorship. Ms Vistisen was then asked to clarify whether she could return to the Unit on the basis that the harassment stopped because of strategies in place, but she said that she could not do that. She was told that there was a need to review the situation and the practicality of moving her. Ms Finocchiaro confirmed that there was a need to get her out of the Unit since she was upset by going there. Mr Vistisen said that she was able to perform and willing to perform the shifts for the next three nights as Mr Hoskins was not there or not there for much of the time. She thought that she would not see very much of him and would be able to do the overnight shifts for 31 December 2003 and 1 and 2 January 2004. Ms Vistisen was then to proceed on leave from 3 January 2004 until Friday 9 January 2004 when she was due to resume work. She told the interviewers that it made her sick to think about performing the morning shift on 9 January 2004. During the course of the interview, Ms Vistisen again confirmed that she was willing to work the three overnight shifts. Ms Finocchiaro said that she would look for another location for her to work at on 9 January 2007 which involved liaising with Ms Nesire, the Director of Drug Health Services about "an interim alternate work location". In relation to further temporary employment, Ms Vistisen told the interviewers that she would like another two months if her visa could be extended and also that Vivian Tait had told Mr Hoskins that she could have another job. Ms Finocchiaro said that, if an alternate position could be identified for her, it would extend to 9 February 2004, which was the end of the current contract. Ms Finocchiaro stated that there was need to look at the immediate issues and to find an alternate position which was viable and used Ms Vistisen's skills. Ms Vistisen expressed her concern that the matter would affect her application for sponsorship and Ms Finocchiaro told her that there was no answer at this time in relation to the sponsorship matter and reiterated that the matter was not dependant on Mr Hoskins but was a matter for the Area Health Service. 17 Ms Finocchiaro asked if mediation would help in relation to getting her back into the Unit when it would be made quite clear to Mr Hoskins as to what was appropriate and inappropriate behaviour. Ms Vistisen replied that she did not see herself working there. Ms Finocchiaro advised that she needed to confirm this. Ms Vistisen said that the matter was putting stress on her relationship with her boyfriend. It was confirmed that the sponsorship issue would be investigated and followed through; Ms Finocchiaro reiterated there was a need to ensure that Ms Vistisen felt safe coming to work and was free from harassment. They confirmed that Ms Vistisen had done the right thing in coming forward and that it was a difficult matter to deal with. Ms Vistisen said that she was scared of the whole situation. Ms Finocchiaro advised her that Mr Hoskins would be told that he was not to make contact with her or discuss the matter with other staff. Ms Vistisen then identified the name of the other person who was present in the office and gave her approval for that person to be spoken to if necessary. Ms Goulden said to Ms Vistisen that, if she felt she could not go to work on the next three overnight shifts, she should call in sick. It was reiterated that Ms Vistisen should not work if she was uncomfortable about doing so. Towards the end of the interview, it was confirmed that Ms Vistisen would not return to her normal place of work on Friday, 9 January 2004. 18 Ms Vistisen worked two of the night shifts and said she was unable to complete the third shift after being told by a staff counsellor that she should not work if she felt sick. While on leave on 6 January 2004, Ms Finocchiaro contacted her and told that she was starting on the MERIT programme when she returned. Approximately two hours later, Mr Hoskins contacted her on her mobile telephone and asked why she was moving to the MERIT programme. Ms Vistisen then telephoned Ms Finocchiaro and told her that she had been contacted by Mr Hoskins who knew that she was being transferred and that she wanted to know how he had obtained that information. Ms Finocchiaro did not know how that information had been obtained but expressed her sorrow - it was something that they could not prevent. Ms Vistisen said she was most upset and scared at the time and was not prepared for that situation. 19 On 7 January 2004, Ms Vistisen was contacted again while absent on leave and informed that she was to be transferred to the MERIT programme commencing on the morning of Friday, 9 January 2004. On arrival at MERIT on that day, there was only a meeting scheduled. Ms Vistisen was told there was no work for her that day, that she would be the "second person" working on Monday and was to be there three days a week. She was told that, even though they were understaffed at the programme, they could not use her skills because her contract expired in a few weeks. Ms Vistisen then tried to see Ms Finocchiaro but she was not in her office. During the course of the day, Ms Vistisen received another telephone call from a person in another programme who informed her that they had been told that they could have Ms Vistisen work for them two days a week. 20 On 6 January 2004, there was other activity. Earlier that morning, Ms Nesire had faxed Ms Finocchiaro and Ms Goulden, with copies to other persons, confirming that the team leader from the MERIT programme was happy for Ms Vistisen to commence with them on Friday, 9 January 2004 as they were down on staff and required a range of skills in assisting with the running of the Group Programmes, attending Courts, setting up appointments with other agencies, technical assistance and arranging case management etc. In addition, Drug Health, which was in the same building, might need some assistance with counselling services. Ms Nesire, in her position as Area Service Director, Drug Health Services, then asked to be contacted if any further assistance was required. Later in the morning, Mr Hoskins forwarded an email, with a copy to Ms Nesire, making an enquiry about business sponsorship for Ms Vistisen, noting her employment would expire on 9 February 2004. The email stated that she had asked the Immigration Department for an extension of time and that it would be a shame to let her slip away as an employee because of the skills she possessed. Mr Hoskins suggested it would make good business sense for the Area Health Service to sponsor her, noting his understanding that the cost was nominal as against the cost of recruitment and training. He had made an enquiry of Employee Services because he understood they handled this type of request but had heard nothing further from them and noted that time was slowly expiring. He asked if anything could be done to retain Ms Vistisen in employment. Later in the day, Ms Nesire forwarded that enquiry to Ms Finocchiaro and Ms Goulden asking for advice as to how to proceed with the enquiry. 21 On 7 February 2004, Ms Finocchiaro sent a letter to Mr Hoskins outlining Ms Vistisen's complaints about his conduct and directing him to attend a fact-finding interview on Thursday, 8 January 2004 at 11 am. The purpose of the fact finding interview was stated as being to investigate the matters raised by Ms Vistisen and to discuss the letter he had sent to the Department of Immigration dated 29 December 2003. That letter indicated a commitment to continued employment for Ms Vistisen in a leadership role within the Youth Drug Court Programme if permitted by the Department of Immigration, but it did not meet with Area Health Service delegation. 22 On the morning of 9 January 2004, Ms Nesire received an email from Ms Carla Moscaritolo from the MERIT Programme. She had spoken to Ms Vistisen that morning and discussed the areas they would like her to assist in and noted that she seemed "quite eager" to do so. Assistance was required on Monday, Tuesday and Wednesday each week and, if Drug Health did not require her assistance on Thursday and Friday, "we may be able to offer her some admin work". In the afternoon of 9 January 2004, Ms Nesire replied to that email with copies to, amongst others, Mr Hoskins, Ms Finocchiaro and Ms Tait. In that email, Ms Nesire confirmed the arrangements for Ms Vistisen to work three days a week on the MERIT Programme and two days a week working with the Drug Health Services, Liverpool Counselling Service. Those arrangements would remain in place until 9 February 2004 "or until further notice". The email continued: This arrangement has come about at Vibeke's request to find an alternative work location. Thank you for your support in this matter. I trust Vibeke will provide a valuable service to your teams. 23 Despite the apparent satisfactory nature of these arrangements, Ms Vistisen stated that she was immediately concerned with these arrangements because there was no appropriate work for her and her skills and there was not a full five days a week position where she was required. In the afternoon of 9 January 2004, Ms Vistisen spoke to Ms Finocchiaro and raised these concerns: she was upset and crying and Ms Finocchiaro said that she did not understand why Ms Vistisen was so upset. Ms Vistisen told her that she was frustrated and felt like a ball being towed around - she was not being put into a job where she could use her skills. She asked what was happening to her sponsorship but Ms Finocchiaro said she could not comment on that matter. 24 On the following Monday, 12 January 2004, Ms Vistisen worked at MERIT all day performing the work of a "second person" in group work. On 13 January 2004, she returned to MERIT where her task for the day was making up new files. She was told by Ms Moscaritolo that was the only job she could think to give to Ms Vistisen and that she did not know what work to give her. Ms Vistisen stated that, by this time, she was not sleeping well and was feeling stressed and depressed. Later in the day, Ms Vistisen was told that the notes of the interview with Ms Finocchiaro and Ms Goulden were available for her to collect but when she obtained that document, she found errors that she was unable to correct because Ms Finocchiaro was not in her office. 25 Ms Vistisen then saw another staff counsellor, Mr Tony Homer. He told her she was not in a fit state to work and that she should go off on sick report. She returned to the MERIT Programme and whilst there, burst into tears while speaking to Ms Moscaritolo. She told Ms Moscaritolo that she was confused and that there was something going on but was unable to tell Ms Moscaritolo what it was about. Ms Vistisen then left work on "sick report" and consulted a local medical practitioner. She was advised by Dr Barrett to take the rest of the week off and that he would lodge a workers compensation claim. Dr Barrett issued a medical certificate for the period 13 January to 16 January 2004. At a later consultation, Dr Barrett extended the medical certificate until 9 February 2004. Ms Vistisen said that she did not return to work with the Area Health Service. Ms Vistisen said that her pay stopped on 13 January 2004 and that she had not been paid for any work performed for the MERIT Programme. 26 Ms Vistisen's telephone discussion with Ms Finocchiaro on 13 January 2004 was overheard at Ms Finocchiaro's end by Ms Goulden who made notes of what was said by Ms Finocchiaro. The telephone discussion lasted approximately 20 minutes, during which it was confirmed that Ms Vistisen was off work for that week due to sickness. There was discussion concerning Ms Vistisen's unhappiness with the work available at MERIT - how they had her making up files, how they needed to find work to give her and did not know what work to allocate to her. During the course of the discussion, Ms Finocchiaro said to Ms Vistisen that she was not worse off: 9 February 2004 was always the final date of her contract of employment and that, in the advertisements for Drug Court positions, it was stated they were all for a temporary period although three months was at the short end of the temporary period but that was tied up with her visa limitations. Ms Vistisen told her that she had broken down while speaking to the counsellor, Mr Homer, who told her that she had done the right thing by reporting the matter. Ms Vistisen said that everyone had said that she had done the right thing by reporting it "but no one is doing anything to help". She felt she was presently worse off now and she was on sleeping pills. Ms Finocchiaro told her that the sooner the matter was resolved the better - it needed to be wrapped up: Ms Vistisen needed to know what to do and what processes needed to be followed in relation to the visa and sponsorship matters. There was a discussion about the work in MERIT and its rostered hours. 27 On 14 January 2004, Ms Moscaritolo sent an email to Ms Nesire and Ms Finocchiaro regarding Ms Vistisen. In that email, it was noted that Ms Vistisen had left the MERIT office the previous afternoon at approximately 12.15 pm and was "visibly upset". She said that she had just received some upsetting news and needed to leave early in order to visit her doctor. Ms Vistisen contacted Ms Moscaritolo later that afternoon stating that her doctor had advised her not to return to work that week and it would be best if she did not inform Area Health Service of the circumstances surrounding her condition. Ms Vistisen indicated that she was unsure if and when she would return to work at the MERIT office. Her absence did not have anything to do with the work conditions at the MERIT office and she had quite enjoyed her time there. Ms Moscaritolo said that, should Ms Vistisen return to work in the MERIT programme, a request had been made for her to be permitted to assist the Adult Drug Court Programme while continuing to perform duties for the MERIT Programme. Apart from assisting with running the MERIT Groups each Monday, they would be quite flexible about the request. Later that day, Ms Nesire replied by email that she was happy to approve Ms Vistisen working in conjunction with the Adult Drug Court Programme. 28 On or about 23 January 2004, Ms Vistisen met with Ms Finocchiaro and Ms Goulden and was advised that, in relation to her complaint, the case was closed because the supervisor denied everything. However, they had recommended that she receive a sponsorship for a year. 29 On 22 January 2004, Ms Finocchiaro had supplied to Ms Nesire a copy of her report regarding the complaint. In that report, it was recorded that Ms Vistisen was advised during the meeting on 31 December 2003 that she would not be required to work at the Unit on her return from leave commencing on 9 January 2004. Ms Vistisen was assured that, on the basis of her concerns about returning to the same work location as Mr Hoskins, she would be found a new "temporary" work location. The report stated that Mr Hoskins vehemently denied the allegations although he did admit to sending text messages to Ms Vistisen enquiring about contact from the Department of Immigration. The report stated that of more concern was Mr Hoskins's admission and subsequent explanation for sending a text message to Ms Vistisen on 29 December 2003 indicating that he was not trying to blackmail her. A review of the emails did not support the comment made by Mr Hoskins that he had advised Ms Vistisen on 29 December 2003 that the chances of sponsoring her were slim. An email sent by Mr Hoskins to Employee Services on 24 December 2003 requested information in relation to visa requirements. An email sent by him to Drug Health Services Administration on 6 January 2004 also sought guidance as to the process for providing business sponsorships. The report then stated: Notwithstanding the above two anomalies, there is no clear evidence to substantiate that Mr Hoskins has sexually harassed Ms Vistisen. There is, however, concern about the level of detail provided by Ms Vistisen and that she presented a consistent and plausible account of incidents during the meeting and in prior and subsequent telephone contact. 30 The report stated that Ms Vistisen was now focusing on pursuing sponsorship opportunities and had expressed the view that she was a "victim of the broken promises" made by her Manager. After commencing work on the MERIT Programme, a claim for workers compensation had been submitted on the ground of stress. Having set out these matters, there were a number of recommendations made including: that Ms Vistisen be provided with an alternative work location for the duration of her temporary contract; that appropriate duties be provided to Ms Vistisen in keeping with her qualifications, experience and status; that the Area Health Service review the possibility of applying for sponsorship of Ms Vistisen; and, given that a number of Drug Health Services positions were temporary in nature and were advertised as temporary up to 12 months, it was recommended that the Area Health Service investigate sponsorship for 12 months in an identified alternate work location. It was noted that employment would be dependent on the Department of Immigration. On 22 January 2004, Ms Nesire acknowledged recept of the report and approval of its recommendations. 31 On 27 January 2004, Ms Goulden telephoned Ms Vistisen. During the course of that telephone conversation, Ms Vistisen asked if she could obtain a three year sponsorship instead of a one year sponsorship because she had been promised that length of sponsorship. Ms Goulden said that she could not grant that request and could only offer a one year sponsorship. 32 By letter dated 28 January 2004, Ms Vistisen was advised by the insurer for the Area Health Service of its decision on her workers compensation claim. That letter stated that the claim had been declined under s 11A of the Workers Compensation Act and that decision was based on an opinion provided by Claims Intervention. The letter stated that the report outlined the details of the harassment and fact finding that took place regarding the grievance lodged by Mr Vistisen and the enquiry into the issues of her application for sponsorship. The letter advised that s 11A of the Act stated that no compensation was payable if reasonable action had been taken by the employer regarding the transfer and provision of employment benefits and, also, that the factual evidence indicated that her employer had dealt with her grievance and application for sponsorship in a reasonable manner. 33 In relation to the business sponsorship for Ms Vistisen, Ms Goulden referred to the email request for advice sent to her by Ms Nesire on 6 January 2004. At some time during January 2004, the date apparently being unknown, Ms Goulden forwarded to Area Human Resources a memorandum requesting that they process an application for business sponsorship of Ms Vistisen. That memorandum related to an application for sponsorship for the position of Technical Assistant within the MERIT Programme, Drug Health Services, based at the Liverpool Health Service. The position was described as full-time and the classification for the position was "Health Education Officer". The duration of the sponsorship and employment was expected to be "up to 12 months". The memorandum requested that the application be processed for approval by the Department of Immigration: it was noted that previous advertising of the position had not brought forward the required number of qualified candidates and that Ms Vistisen was the preferred applicant, having been initially employed in the Area Health Service. It was stated that Ms Vistisen's previous experience qualified her for the role of Technical Assistant in Drug Health Services and, if sponsorship was granted, the Area Health Service would transfer her to this vacant position. The commencement salary for a non-graduate Year 1 was stated to be $33,222. A review of her work history had been undertaken and, following the production of a statutory declaration, further assessment would occur and it was anticipated that her salary would increase to $37,125. It was further noted that Ms Vistisen was forwarding her qualifications to the National Office Overseas Skills Recognition and that, if a favourable response was received, she might well be classified as a "Social Worker". 34 The summary description of this position of Technical Assistant was stated to be: "Assist the Court Diversion Programme Counselling and Case Management Staff in working with clients and administrative duties". The summary of duties stated that the position was to provide clients with access to appropriate services as requested and, according to the client's case plans, to undertake administrative support duties to ensure the effectiveness of the MERIT team and programme. Essential qualifications were the ability to relate well to individuals with drug dependence problems, effective communication and organisational skills, a non-judgmental attitude towards individuals with drug use or criminal histories, good written and oral communication skills, good time management skills, ability to work independently and as part of a team and an unrestricted driver's licence. 35 Ms Goulden's memorandum regarding sponsorship nomination for Ms Vistisen was received by Mr Douglas Cameron who was employed as a Senior Human Resources Officer. He was able to say that he received the memorandum during January 2004 but stated that, upon receiving the material, he commenced an assessment to determine whether the application complied with the Area Health Service's policy and the business sponsorship application requirements of the Department of Immigration. While reviewing that material, it soon became apparent to him that there were a number of problems with the proposed sponsorship application. He first raised these problems by email to Ms Goulden on 30 January 2004, suggesting that it was about this time that he received the memorandum. He firstly noted that the salary was below the threshold for applications, that a salary waiver may be necessary and he also enquired whether Ms Vistisen would be paid more if her social worker qualifications were recognised. 36 In a later email on the same day, Mr Cameron advised Ms Goulden that he had spoken to the Department of Immigration and had been advised that, unless a salary of nearly $36,000 was being paid, the application would be refused. Also, the occupation proposed was not on the ASCO gazetted list of occupations for sponsorship and he expressed the view that they were likely to experience difficulty with the application on this aspect. He advised that the wages needed to be at a higher level, that Ms Vistisen's qualifications needed to be assessed before the application was submitted and that a search should be made for an occupation that bore a resemblance to something in the ASCO list. He said it was not looking particularly promising at this point. Ms Goulden replied on the same day that Ms Vistisen's qualifications were likely to be accepted but that was not known at the present time. After a further assessment, it was likely that, on the non-graduate rate, they would pay her at third year level taking her salary to $37,000 which was above the threshold set by the Department of Immigration. 37 On 2 February 2004, Mr Cameron contacted the Department of Immigration and enquired if there was anything that could be done to increase the prospects of the sponsorship application receiving approval. He was informed that it was unlikely that the sponsorship application would be approved because the occupation was not on the list of positions in demand and held to be in short supply in domestic labour markets. However, it was possible for an application for sponsorship to be approved where the employer could demonstrate that it had made reasonable attempts to fill the position using Australian labour over a period of at least six months without success. Despite this information, Mr Cameron forwarded by facsimile an application to the Department of Immigration seeking sponsorship for Ms Vistisen. In that application, he noted that the Area Health Service was currently waiting for her qualifications to be approved at which time her classification might then be re-considered for upgrading to Social Worker. While it was understood that her salary was currently under the threshold, on the approval of her qualifications, it was expected that her salary would increase to a level above the threshold. The application was made in relation to a position of Technical Assistant in the Court Diversion Programme. 38 By letter dated 17 February 2004, Mr Cameron received advice from the Department of Immigration that the sponsorship application might not be favourably considered at that time because it did not meet the minimum salary requirements. He was advised that the application could be withdrawn in writing: however, if it was processed it might result in a refusal because of the problem with the salary limit. By letter dated 1 March 2004, the Department of Immigration informed Mr Cameron that under the Regulations, tasks of the nominated activity had to correspond with the tasks of an occupation specified in the Gazette Notice. The most recent Gazette did not mention the occupation indicated, therefore the application could not be processed at this stage, nor could the nomination be approved. On 11 August 2004, Mr Cameron was advised by the Department of Immigration that Ms Vistisen had since been granted unlimited work rights and did not need to be sponsored in order to work in Australia. The application had now become unnecessary. On that basis, Mr Cameron withdrew the application. 39 In mid-January 2004, Ms Vistisen's local State Member made representations to the New South Wales Minister for Health concerning her allegations of sexual harassment and complaints relating to her request for employer sponsorship. On 3 May 2004, the Minister for Health responded, noting that the Area Health Service's investigations were unable to substantiate the allegations for harassment based on a lack of clear evidence supporting the claims by Ms Vistisen or the denial by Mr Hoskins. The letter then continued: Ms Vistisen possesses a unique set of skills and experience that would be of great value to the Area Health Service and so SWAHS is endeavouring to sponsor Ms Vistisen for a period of up to 12 months. The Department of Immigration, Multicultural and Indigenous Affairs has not, at this time, advised SWAHS of the outcome of the sponsorship application. Following assessment of Ms Vistisen's qualifications by the National Office of Overseas Skill Recognition, and on the basis of sponsorship being granted, consideration will be given to alternative positions within the Drug Health Services of SWAHS. Any further enquiries were to be directed to Ms Nesire, the Director, Drug Health Services at the Area Health Service. 40 After waiting for clarification of her position with the Area Health Service, Ms Vistisen ultimately decided to seek other employment. From March 2004 to May 2004 she worked as a Youth Worker with Impact Youth Services at Kogarah Bay. From May 2004 to approximately September 2004, she worked as an Alcohol and Other Drug Worker with nursing responsibility for the Salvation Army at Albion Street, Surry Hills. From mid-October 2004 to October 2006, she worked with Mission Australia as an Alcohol and Drug Care Worker/Counsellor and, from 3 October 2006, commenced working with SDN Childrens Services, Inc as an Early Intervention Worker. POLICY DOCUMENTS 41 The parties each tendered a number of documents that represented either the policy of the Area Health Service or were policies or guidelines laid down by New South Wales Health relating to sexual harassment, grievance and disciplinary procedures. The Area Health Service had a policy document dealing with an harassment-free workplace that had been revised in August 2001. The aim of the policy was declared to be to enable the Area Health Service to achieve and maintain a workplace that was fair to all and free from harassment. The policy was issued in 1996 and had been reviewed. The document identified a number of legislative and policy frameworks stating that the principle applicable was that the Area Health Service should be an harassment-free workplace in which it would implement fair and effective people management practices, managers would be responsible for ensuring that the workplace was free from harassment, managers and staff were expected to foster standards of ethical behaviour and conduct that contributed to a productive and customer focused workplace, managers and staff were to treat each other and the public with respect and sensitivity and that prompt action was necessary when harassment occurred. This policy set out in some detail what constituted harassment. It stated that staff were responsible for respecting the rights of others and were never to encourage harassment. Staff becoming aware of a member being harassed were to help prevent it by offering support to the person being harassed. Under the heading "Preventing Harassment" the policy stated: A pro-active approach to preventing harassment in the workplace is necessary to ensure staff awareness and to improve compliance. Sectors and area services should implement the following strategies to help prevent harassment. (a) ensure all staff are briefed on the range of human resources policies and receive a copy of the Code of Conduct; (b) promote harassment free workplace through effective management practices, in-services, newsletters and team meetings; (c) integrate the issue of preventing harassment in the managers' and supervisors' training; (d) ensure managers and supervisors attend the grievance and discipline courses conducted by Area Human Resources Development Service; (e) collect and evaluate staff data on issues affecting staff through staff surveys (including exit interviews) and recording allegations of harassment and staff grievances. 42 The policy then set out the steps to be followed in dealing with harassment: those steps included considering submitting a written complaint in accordance with the Area Health Service's grievance management policy. If a manager became aware through direct observation or received a complaint that a staff member was being harassed, they were to take action "without delay". Depending on the circumstances, action might be formal or informal and might include "a detailed investigation". The procedures detailed in the Grievance Management Policy and the Staff Discipline Policy contained in the Human Resources Manual 2000 were to be followed. It was also stated that it was essential that information gathered during the investigation of allegations of harassment be treated with sensitivity and confidentiality by all parties. In particular, managers conducting an investigation needed to be careful how they used or passed on information provided by staff. 43 The Area Health Service Code of Conduct, April 1999 dealt with a number of issues including discrimination and harassment. That policy stated that employees and visiting practitioners must not harass, discriminate or support others who harass and discriminate against colleagues or members of the public on the grounds of sex, pregnancy, age, race, marital status, disability or sexual orientation. 44 Within the Human Resources Manual there was a policy document on Grievance Management dated June 2000. This policy noted that the Area Health Service was committed to providing all staff with a safe and healthy workplace through a range of effective employment strategies. The commitment recognised the obligation of the Area Health Service as an employer to prevent and respond to any evidence of harassment and/grievances and the important link between staff performance and the achievement of the Area Health Service's purpose of better health, good health care. The policy referred to formal grievances which were to be placed in writing and set out steps that were to be taken in relation to such complaints. Such grievances were to be resolved "as soon as possible" and, where not resolved within two weeks, the person rasing the grievance was to receive a written feedback on the progress of the complaint. In relation to staff submitting a grievance, the Policy said that such a person had a number of nominated rights including: the identification of the desired outcome; to be provided with protection against any victimisation or harassment because a grievance has been raised; to be informed of all decisions and progress made which might affect the person with consideration to be given to the privacy of other parties; to pursue the grievance through alternative channels if not satisfied with the management of the grievance by the Area Health Service; to have a support person present at any meeting or interview attended in relation to the grievance; have access to records of meetings and interviews attended to enable them to confirm the accuracy of the record and have any comments included on the file containing the grievance; and directed that the grievance be forwarded to the next level of review should they remain dissatisfied with the outcome. There were five levels of review nominated culminating in a review by the Chief Executive Officer or the Director-General of the New South Wales Department of Health. The Policy also stated that it was essential that information gathered during the investigation of grievances was treated with sensitivity and confidentiality by all parties. 45 From 2001, New South Wales Health issued a Policy directive dealing with disciplinary processes and providing a framework for management that applied to a number of bodies including the Area Health Service. In dealing with assessment and investigation, that framework document stated that, where a Chief Executive Officer believed that the breach of discipline alleged against a staff member was of a very serious nature, that person could, as a risk management strategy, consider the options of temporary transfer or suspension from duty, pending the outcome of an investigation. The document stated that, in deciding whether disciplinary action should be taken against staff members, the responsible officer had to consider: the nature of the matters; evidence collected during the investigations; findings of the investigating officer; staff members' responses; previous work history of the staff member; and, the nature of the staff member's duties. It was emphasised that each case was to be treated on its individual merits and the form of action to be taken decided on a case by case basis. In relation to the standard of proof, attention was drawn to the judgment in Briginshaw v Briginshaw (1938) 60 CLR 336 where the High Court confirmed the principle that the standard of proof applicable in civil matters was the balance of probabilities. It was noted that case held that the strength of the evidence necessary to establish a matter on the balance of probabilities might vary according to the nature or gravity of the fact to be proved. The policy then stated that, in considering whether to proceed to disciplinary action, the standard of proof required must be considered. If the outcome of the disciplinary action was likely to result in dismissal, the standard of proof applied must be higher than for action that was not likely to result in dismissal. THE MEDICAL EVIDENCE 46 In the applicant's case, reports were tendered from Dr Bruce Westmore, Forensic Psychiatrist and from Mr Malcolm Desland, Psychologist. Dr Westmore had seen Ms Vistisen in mid-January 2006 and, as part of the history given by Ms Vistisen, she said that her problems had commenced sometime in November 2003 while she was employed as a Youth Worker at Liverpool Hospital. She spoke of her Supervisor making inappropriate comments to her of a sexual harassment nature but, initially, did not take them too seriously. She had formed the view that her Supervisor's promise of a promotion was linked to his sexual propositions although she was thrilled at the opportunity of a promotion. Her Supervisor then told her that there was a new position as Youth Counsellor for her and she felt that the proposed promotion had been taken away: she felt sick at work because of his continuing sexual propositions. 47 Dr Westmore was given some details of the investigation of her complaint against her Supervisor by the Area Health Service but stated that while she was absent from work, the Supervisor contacted her asking why she was not returning to her previous work environment. While initially she had been told that she would be moved to another environment, she was later informed that her Supervisor had denied all her allegations and there was nothing her employer could do. Ms Vistisen complained that she was then put into an inappropriate position at work and spoke to Human Resources about the situation and was told that there was nothing they could do. Human Resources asked her on several occasions if she could return to her previous position but she declined to do so. 48 Ms Vistisen's initial contract lasted until February 2004; her Supervisor had previously agreed to sponsor her from that time but that did not happen. She said she was sick during the last two weeks of January 2004 and did not go to work saying she was depressed, uncomfortable, crying and had trouble sleeping. Her contract then ran out. Her symptoms continued for four to five months thereafter and she initially received some sleeping pills from her Doctor but no other medication. Her symptoms "gradually resolved". 49 In relation to her past medical history, Dr Westmore said there was no psychiatric history and no previous forensic history. She initially presented with some anxiety which diminished through the interview: her mood was within normal range and there were no psychotic symptoms such as delusions or hallucinations displayed or described. She presented as being an attentive historian and her premorbid history suggested that she was of high to above average intelligence. 50 Nearly three weeks after the consultation, Ms Vistisen telephoned Dr Westmore saying that, since speaking to him about her problems, she had an exacerbation of obsessive thoughts and behaviour regarding cleanliness. Dr Westmore asked her to speak to her General Practitioner for a referral to a psychiatrist. In expressing his opinion regarding Ms Vistisen, Dr Westmore noted that she had developed the view that any promotion promised by her Supervisor was based upon her willingness to engage in sexual activity with him but she also described "other workplace difficulties". Dr Westmore then expressed the following opinion: I have diagnosed her as developing an adjustment disorder with symptoms of depression and anxiety. She has no pre-existing psychiatric or psychological morbidity and I do not believe she has any significant personality psychopathology. It is likely that there is a direct and positive relationship between her workplace difficulties and the onset of her psychiatric problems. She suffered symptoms for several months. She did not receive any psychiatric care or counselling and the symptoms progressively resolved after she left her workplace where the problems occurred. After her interview with me, when her specific problems were raised again, she has indicated a return to an exacerbation of some OCD type symptoms. These need further investigation. I think her condition has stabilised and that her prognosis for the future is extremely good. I think she is a woman with a large number of positive personality strengths and attributes. At the time I examined her, I did not think she required specific psychiatric or psychological care although I would accept that at the time her problems were occurring her psychological response was a significant one and that it caused her to suffer a moderate to high degree of stress. Following her phone call on 30 January 2006 I did advise her to speak to her General Practitioner and possibly seek psychiatric assistance. Her prognosis has been assisted by the history that she has a caring and supportive partner and because of her identifiable personality strengths. 51 In oral evidence, Dr Westmore stated that he had seen a report prepared for the respondent by Dr Phillip Brown, Consultant Psychiatrist and Psychologist. The things that stood out for Dr Westmore were the areas of agreement between the two reports rather than the disagreements. From the history given to Dr Westmore, both doctors agreed that, if those facts were true, Ms Vistisen had developed an adjustment disorder directly related to the events. However, Dr Brown looked at a number of possibilities other than the events occurring. The main area of disagreement was the OCD condition but that history was not given by Ms Vistisen to Dr Westmore. The area of difference was that Dr Brown spoke more about the OCD and its possible relationship to her employment but, since that history was not given to Dr Westmore, he could not speak about it in relation to Ms Visisten but could only speak about the condition generally. Dr Westmore agreed with Dr Brown that, if the OCD was pre-existing, then it did not result from her employment. It was correct that an episode could be precipitated and sustained by stress and he agreed with that possibility. The later report that Dr Westmore received from Ms Vistisen was of an exacerbation, being a stressful experience, suggesting a pre-existing condition. He would have expected that, if the condition was very severe at the time he examined Ms Vistisen, she would have mentioned it to him. It might be that the symptoms were somewhat controlled when she consulted him but the stress of the meeting might have exacerbated it, prompting the telephone call. Dr Westmore did not think he was qualified to make the same observations as Dr Brown about the responses of the employer and the appropriateness of those responses. 52 In cross-examination, Dr Westmore accepted that during his consultation he observed no symptom of OCD and that Ms Vistisen gave no history of that kind. He stated that if the condition was severe, he would have expected to have been given some history of it during his consultation. It was possible that the OCD emerged after his consultation and was not present when Dr Westmore saw Ms Vistisen. It may have been a condition that was undiagnosed until she saw the psychologist a few months after she saw Dr Westmore. The condition may have been present when he saw her: he had no idea about that because it was not reported to him. Dr Westmore would have expected that, if those symptoms were severe, her behaviour would have been clear or reported to him. Most people who develop this psychiatric illness had pre-existing, premorbid traits or characteristics - OCD rarely developed out of the blue and almost always developed in people with a pre-disposition - always sensitive about cleanliness, time, checking locks and security and the like. His own examination of Ms Vistisen would not necessarily have ruled out the presence of those symptoms because it also depended upon being given a full history. Sometimes, patients tried to contain and control symptoms and may do so with different levels of success, but with breakthrough periods when they cannot control it: at other times, they will have more control. 53 In relation to Dr Westmore's diagnosis linking the onset of her problems with Ms Vistisen's workplace difficulties, the primary stress was the sexual harassment and a secondary stress was her perception of how the matter had been dealt with which was important as well. The secondary stressors included her employer asking her to return to the position and then being placed in an inappropriate position or location. A further significant stressor affecting Ms Vistisen at the time of consultation was the litigation, because it kept these things fresh in her mind. 54 Mr Malcolm Desland was a psychologist Ms Vistisen consulted from early March 2006 when referred by her General Practitioner, Dr Barrett. The history given by Ms Vistisen was that, shortly after taking up the position in the Youth Drug Court Programmes, she was subjected to harassment by way of sexually orientated questions and comments that were initially dealt with by her not taking her Supervisor's actions seriously. She became more irritable at home and sleep became disturbed and less restful and she began to worry more and more about work. Ms Vistisen was then approached about a promotion by the Supervisor who propositioned her for sex in return for the promotion and supporting visa applications. She refused these advances and the possibility of promotion at work was lost. The Supervisor's behaviour was reported to Human Resources and they suggested that she make a complaint enabling the Department to undertake an investigation. During this time, Ms Vistisen was advised to take leave and upon her return to work she would be placed in another work area. While on leave, she received a telephone call from her Supervisor enquiring why she was not returning to her previous position. The investigation into her Supervisor's conduct did not result in action against the Supervisor because he denied all allegations. Ms Vistisen said that the transfer to another work situation compounded her problems: she was transferred to work inappropriate for her training and experience but it was the only position available. On a number of occasions, the Human Resources Department asked if she wanted to return to her previous position but she declined to do so. 55 By January 2004, her functioning had deteriorated to the point where leave from work was necessary. She was suffering anxiety and depression. Episodes of depressed mood, tearful agitation and worry affected her day-to-day functioning. Her contract for work at the Liverpool Hospital expired in early February 2004 and it was noted that the symptoms and experiences persisted over the following months. Mr Desland noted there was a high level of consistency in the information reported to Dr Westmore as contained in the Amended Summons for Relief and in the information given to him in consultation. 56 As to the nature of the condition found on examination, Mr Desland said that at the interview in March 2006, Ms Vistisen met the criteria for Obsessive Compulsive Disorder (OCD) with the level of impairment rated as moderate, the duration as chronic, being more than six months. In his view, the interview with Dr Westmore clarified for Ms Vistisen what had been happening to her for a considerable period of time and an OCD was apparent. Paradoxically, this had led to an intensifying of her symptoms and distress, hence the re-contacting of Dr Westmore for further help and advice. In Mr Desland's view, Ms Vistisen suffered from an OCD. The idiopathic features noted were obsessional thinking related to cleanliness versus contamination issues and distortions in body image and height. Ms Vistisen's OCD was most active and distressing when at home and near her partner. Her OCD had caused interference in her relationship with her partner and personal life. 57 As to the question whether there was a relationship between the condition found and the history given by Ms Vistisen, Mr Desland said that in his opinion there was a causal relationship between the events at Liverpool Hospital (the sexual harassment by her Supervisor and the treatment received by Ms Vistisen by the Area Health Service) and her OCD. The ongoing sexual harassment led to clinical deterioration in Ms Vistisen's functioning to the extent where an Adjustment Disorder with Mixed Anxiety and Depressed Mood was diagnosed by Dr Westmore. This was of sufficient severity to warrant leave from work in January 2004. Since that time, an Obsessive Compulsive Disorder related to cleanliness, contamination and distortions in body shape and size had developed. Ms Vistisen's type of OCD was considered treatment resistant, therefore it was premature to assume her condition had stabilised. Mr Desland noted Dr Westmore's report outlining a positive prognosis for her symptoms and distress reducing over the course of time, but he disagreed with those observations. In his view, Ms Vistisen's prognosis had to remain very guarded at the time as the type of OCD from which she suffered was usually treatment resistant. Medication might be necessary but did not necessarily provide a guaranteed solution. Unfortunately, there had been no evidence of significant gains for Ms Vistisen to date. 58 In oral evidence, Mr Desland said that Ms Vististen's OCD was unusual in that it occurred later in life than was typically seen for most such disorders. It followed inter-personal crisis and harassment in her workplace. It manifested and developed sometime after the crisis at work. At the time of presentation, in March 2006, it had been there for a considerable period of time. He reached the conclusion that the disorder had incubated over a period of time and was now quite severe and presented as quite a difficult disorder to treat: therefore, the prognosis was not straightforward. 59 When Mr Desland prepared his report he had not seen a report prepared by Dr Brown and there were parts of that report with which he disagreed. Mr Desland disagreed with the view that Ms Vistisen presented with typical OCD. He was of the view that it was atypical because of age at onset, the nature of the actual condition, that there were obsessions regarding cleanliness and body shape which was highly unusual, that the onset was post-stress of a personal situation at work, there was no previous history of OCD in the client or family history and that was unusual. Usually, 50 per cent of people with OCD have a childhood onset and the majority would have an onset not prior to but in early adulthood. It is seen to wax and wane in the presentation but it tended to be seen much earlier. He disagreed with Dr Brown's assumption that the condition was not intractable and had a poor prognosis. Mr Desland also disagreed with the view that the condition was not the result of her employment but that an episode could be precipitated and sustained by stress at the time. In his view, Ms Vistisen initially suffered from an Adjustment Disorder with features of anxiety and depression. Clinically, an Adjustment Disorder was diagnosed for the six months post-presentation. In Ms Vistisen's case, it became apparent that Obsessional Anxiety and Obsessive Compulsive Disorder developed following this and, in his opinion, it was the result of employment and also had its own stresses as part of it. 60 In cross-examination, Mr Desland said that with OCD, he would have expected to see a presentation earlier than in this case, but Ms Vistisen's OCD was atypical. If the view was taken that the Disorder was dormant prior to the workplace issues, then the exacerbation and the onset of the exacerbation of the Disorder would be due to stresses endured by Ms Vistisen. Nevertheless, his diagnosis relied on the information provided to him by Ms Vistisen. 61 At the request of the respondent, Dr Phillip Brown, a Consultant Psychiatrist and Psychologist, prepared a report after examining Ms Vistisen on 9 August 2006. As part of the history relating to her present illness, Ms Vistisen told Dr Brown that she was keen to obtain ongoing sponsorship from the Area Health Service and that she was given to believe from the start of her employment through her Supervisor that this was to be sorted out. Her Supervisor wanted to give her sponsorship until 2007 but that did not happen due to her problems with him. Sexual comments had occurred from approximately two weeks after she commenced work and, at the beginning, she did not take it too seriously but she became distressed at their continuation. Her supervisor persisted with explicit sexual invitations and, when speaking to her about processing sponsorship, he touched her unnecessarily. The Supervisor made it clear that progress in the matter of promotion and sponsorship was dependant upon her agreeing to have sexual intercourse with him and she felt trapped by that situation. She became anxious, felt nauseous in his presence, had trouble sleeping and was irritable at home. 62 A complaint was made to Human Resources who commenced an investigation of her allegations. She was advised to take leave and another position was to be found for her whilst the matter was being investigated. Ms Vistisen said that Human Resources kept asking her return to her position. She told them she was unable to continue to work with her Supervisor but, pending alternative placement, she agreed to work another three shifts as her Supervisor would not be present at those times. Ms Vistisen ultimately worked two of the three shifts. She did not work the last shift when a counsellor told her not to work because of her symptoms. She then took leave and returned on 9 January 2004 to the MERIT Programme as alternative employment. However, while she was on leave, her Supervisor telephoned her to ask why she was transferring her employment. 63 Ms Vistisen believed that the problem was handled very inappropriately by Human Resources because they told her Supervisor where she was going. She felt that her employer was buying time since this was the third medical examination she had undergone. Her employer said that she was not to become the victim, but that did happen and their promises were not kept. Although the employer kept asking her to stay, Ms Vistisen refused and she was moved a week later. She had some days off, the counsellor told her to take sick leave and she was moved to where her Supervisor could not come and that was the MERIT Programme. Ms Vistisen said she was only able to work for a few days because the Manager of the MERIT Programme advised her that there was no job for her on the first day: following that, she was to sit in as a second person in a group. They were only able to use her for three days per week when someone else contacted her with work for the other two days, which Ms Vistisen described as "chaotic". She made up files at the MERIT Programme and considered the position inappropriate because she was not using her skills. She received a copy of her interview for the purposes of investigation of her complaint but she could not agree to it because of its inaccuracies. She saw a counsellor and left work angry and emotional. She could not sleep: this was her state in mid-January 2004. She saw her local General Practitioner and was placed on workers compensation and prescribed sleeping pills. She did not return to work with her employer and her contract expired in February 2004. 64 As to subsequent progress, Ms Vistisen said that she was later told that her Supervisor had denied everything, the case was closed and that there could be no action against him as it was his word against hers. The employer had recommended a sponsorship for her for a period of one year. She said she had been promised sponsorship until 2007, and was later told that she could not obtain sponsorship as she had not had her skills assessed. Ms Vistisen said that her employer did not take responsibility - it had an investigation; her supervisor denied it all (as of course he would) and it ended up "just her and him". She said there was one witness on a few occasions when that person overheard her Supervisor but she did not know if she told the investigation about that person. 65 Ms Vistisen then said her obsessive-compulsive symptoms started soon after: it sneaked up on her and she was not comfortable. She then became concerned with cleanliness, began washing and was not comfortable with her partner, although he was not aware of her condition and they did not talk. She was anxious until the problem emerged: they were now stable. Ms Vistisen had subsequently obtained a de facto visa but had not wanted to proceed along that path because it put pressure on the relationship. She had since worked full-time for the last two years although she had been unemployed for approximately two to three months. 66 Dr Brown then referred to Dr Westmore's January 2006 report. He commented that the history indicated that Ms Vistisen was without significant psychological symptoms for some five months after leaving her employment until an exacerbation of obsessive behaviour occurred after she attended Dr Westmore, a period of some 18 months. The implication was that any obsessive-compulsive symptoms were precipitated by the stress of the time, such as the court case. Her current situation was that she was attending her General Practitioner as needed and was seeing a psychologist, Mr Desland, for treatment. Ms Vistisen described her current symptoms as obsessions and compulsions. She was obsessed with cleanliness, food, people and things. She washed her hands and wiped things frequently. She is unable to put on clothes from the floor without washing them. She used the same side of a towel each time and folded things in a special way and protected her bed. She checked what came into the home, such as letters, and remained aware of where the remote control had been. She spoke of debating within herself as she knew nothing would happen, but could not resist. She then became very anxious with hot flushes and nausea and if she washed, it would go away. It was very rare for her to resist this conduct. She had on occasions resisted two or three times but it continued automatically. If she overlooked something she became anxious with hot flushes. She felt that her body would change if she did not do these things. Physical contact was hard for her and, if she felt a person was dirty, she did not want to touch them. Her OCD was more evident at home and with her partner. She wanted her partner to wash his hands and if he did not, she would not touch him. She was always aware of where his hands had been and needed him to wash his hands. She hoped it would go away and that she could accept a hug. Her partner became frustrated and upset to see her this way and wanted to hold her. She was able to eat in public but did not put her fingers to her face and washed her hands when she went home. She avoided social gatherings because of her OCD. She felt she had butterflies in her stomach all the time and was generally anxious most of the time, apart from when she was with clients at work. She sometimes walked as a strategy for her anxiety. She was aware of comments men made to her and became uncomfortable if a man said anything positive. She was very defensive and shunned them for simple comments made by them. She said she overanalysed things to look for the intent of what people were saying. She was concerned that her Supervisor had got away with his conduct and it worried her how he might be behaving with other female staff and clients. She was no longer active and her exercising was unstable. On bad days, she could not exercise and would try to do more natural and calming things. She felt "down a lot", cried easily, was not sociable as she had been and was unhappy. She had nothing to say socially, did not feel well and felt a bit depressed. She occasionally had lack of interest and motivation. She was better at home and had had a good day or night, but had no suicidal thoughts. Her legs and wrists became tired from tension in her hands and her shaking legs. She became frustrated to the point of throwing a pillow and did not accept her OCD as normal. It was hard to remember what she had been like as it was so long since she felt normal. She wanted to be able to be normal and was frustrated by her illness, the cause of it and the effect on her relationship. 67 Ms Vistisen was angry at her Supervisor for causing the trouble and the way in which it was handled by Human Resources and that nothing had happened to her Supervisor as well as the way her OCD had controlled her. She lacked concentration and her memory was not as good. She woke five to ten times a night and had six to seven hours sleep but it was light sleep and she did not feel rested. She moved a lot in her sleep, shaking, crying and screaming. She woke up anxious and crying and could not remember her dreams: that occurred most nights. She felt tired all the time and had occasional headaches and neck pain from her previous car accident. 68 Dr Brown found nothing to suggest that Ms Vistisen was exaggerating her symptoms, other than the different history given to Dr Westmore and himself. From those accounts, Ms Vistisen had either had significant symptoms of OCD since 2004, or she developed a recurrence in January 2006. In Dr Brown's opinion, Ms Vistisen had developed an adjustment disorder of a mild degree prior to leaving her employment. She later developed symptoms of an obsessive-compulsive disorder of the cleanliness/contamination type. This, too, was to a mild degree and she was able to work full-time. In relation to Mr Desland's report, Dr Brown did not consider her description of her OCD atypical or that it was necessarily intractable. From her history, she coped with its symptoms in public but they became a problem at home where they were focused on her partner washing his hands. This was not unusual for relatively common cleanliness/contamination type OCD. Her OCD was described as extending to physical contact with her partner where she saw him as not being clean. Given that there was no significant conflict of a personal or psychodynamic nature with him then a possibility could be a displacement of her feelings about the past behaviour of her Supervisor: that is, her cleanliness obsessions had taken this form due to her anxiety or anger regarding the behaviour of Mr Hoskins. That would explain this aspect of their form but did not necessarily explain their cause. Ms Vistisen described some anxiety symptoms as she could not control her OCD and, as a result, had some reactive depression. In Dr Brown's opinion these were not sufficient to diagnose another anxiety disorder or a major depressive episode. 69 In dealing with causation and the relationship to employment, Dr Brown analysed the nature of Ms Vistisen's complaint and pointed to the factors that supported the correctness of her account. There was some practice factors pointing in the other direction but Dr Brown was able to conclude as follows: In relation to her OCD, this is a constitutional condition and not the result of her employment but an episode of it could be precipitated and sustained by the stress at the time. Thus, if the onset of her OCD coincided with or soon followed inappropriate behaviour of Mr Hoskins, then that episode could be considered the result of such behaviour. If her history as given to Dr Westmore is the correct one then she was relatively symptom free over the intervening time then such a recurrence (episode) is not related to any work injury but the stress at the time. A salient stress could be her legal case. Whilst individuals with OCD may keep it hidden in public and practice it mainly in their home and avoid seeking treatment for it I find it hard to accept that in the circumstances of her case she would not have told Dr Westmore of such ongoing OCD symptoms in view of the reason for her consulting. Thus one must have the suspicion that there may well be some malingering of causation in relation to her OCD. She may well be trying to retrospectively attribute her OCD to the problem at work. She retains unresolved anger with Mr Hoskins and her employer. In my opinion the current symptoms of her OCD are being sustained by this unresolved anger. 70 Dr Brown noted that Ms Vistisen was not repeatedly asked to return to her position by her employer. He stated that, despite her ongoing anger, the response of her employer was appropriate and all that could be done in the circumstances: that conduct was not the cause of her adjustment disorder or any episode of OCD. In a summary of his opinion, Dr Brown noted that, in any event, Ms Vistisen's OCD symptoms had not responded to a sufficient course of appropriate psychological treatment and, thus, any psychological treatment would only be supportive pending the determination of her legal entitlement. If she was concerned about her symptoms, particularly in the home environment, then she should be referred to a psychiatrist for a prescription of an appropriate anti-depressant. She should continue on this course and practice the techniques her psychologist would have taught her, including response prevention. However, if she was angry at her Supervisor and employer, Dr Brown would not anticipate any significant response until her legal case was concluded. The cause of any future exacerbations relating to OCD should not be attributed to any work problems but should be analysed on the personal and other stresses she was under at the time. 71 In cross-examination, Dr Brown accepted that it was possible that, at the time of consulting Dr Westmore, Ms Vistisen was managing her OCD symptoms and that she subsequently reported to Dr Westmore because those symptoms became unmanageable. He noted that OCD was called the "hidden disease", in that those who can cope or manage with their symptoms do not often seek treatment. Dr Brown also accepted that, whether or not the employer's response was inappropriate, if Ms Vistisen perceived it to be or felt aggrieved by the procedure, it could have been a cause of anger whether that perception was justified or unjustified. It was the perception of the individual to the validity of events: their perception might in fact be quite right or wrong, but in either case, if there was anger as a result of that, it would sustain symptoms and treatment would involve de-stressing that anger. Conflict over sexual harassment, the inadequacy of the investigation by her employer, failed promises as to promotion and visa sponsorship could all be perceived by an individual in such a way as to contribute to anger with the way in which they regarded themselves as being treated. 72 While accepting that it was possible that Ms Vistisen had failed to inform Dr Westmore of the OCD symptoms at consultation because she was able to manage those symptoms up until that time, Dr Brown noted that Dr Westmore was a very experienced medico-legal psychiatrist and that the profession performed very thorough examinations and all asked about obsessions and compulsions. He said he was often the first person to diagnose OCD in some of the workers compensation cases sent to him. While the proposition was possible, he wondered if there were significant symptoms at the time or even after, in the period between leaving work and seeing Dr Westmore. They should be mentioned to a psychiatrist whose primary purpose was assessing the level of her symptoms and he found it quite extraordinary that they had not been mentioned. However, it was possible that the questions asked by Dr Westmore did not bring forth a history of this condition so there was therefore nothing relevant to cause Dr Westmore to consider OCD. DELIBERATION 73 The substance of the Further Amended Summons for Relief has been set out in detail in paragraph [5]. The framing of the relief, by way of variation of the contract, was somewhat convoluted and required close examination in order to establish precisely what was being sought by the applicant. In summary, the first claim appears to operate on the basis of the representations made by Mr Hoskins that there was an Assistant Manger position available for Ms Vistisen and eventually she could take over his position, that there was another position available for a term of three years and that there would be support for sponsorship to take up this further employment, including representations that the Supervisor had the power to make these appointments. In light of those representations, the claim seeks that the Area Health Service must, in fact, offer Ms Vistisen a three year appointment or the highest position which the Supervisor represented to the applicant that she be given or for which she would or could be suitable. In addition, the respondent was to promptly take all reasonable steps to advance the sponsored visa application and, if unable to secure a sponsored visa, the respondent was to provide to the applicant sufficient notice of that fact to give her a reasonable period in which to apply for a de facto relationship visa. The respondent was not to represent for the purposes of potential sponsorship that the level of salary was anything less than the minimum salary required by the Department of Immigration for a sponsored visa. The contract was also to be varied to provide that the respondent should not make representations that the salary intended to be offered was less than the minimum requirement for the granting of a sponsored visa. Having regard to the fact that the contract had come to an end, there was a high degree of artificiality about his part of the claim. Indeed, the entirety of the claim may be described as seeking to reverse every action Ms Vistisen regarded as being either unsupportive or detrimental to her interests during the course of her temporary employment. 74 In support of this claim, it was submitted that Ms Vistisen had a legitimate expectation to obtain these appointments and promotions and that there would be support for sponsorship to allow the promotions to be taken up. In paragraph 12(g) of the Further Amended Summons for Relief it was alleged that the contract was unfair in: not facilitating the promotions offered or intimated; in not facilitating the extension of the term beyond the three months in an equivalent or promoted position; and, in not requiring the Area Health Service to perform the matters and meet the requirements to facilitate an extension of the work visa beyond three months. There are insurmountable difficulties for this part of the claim. Ms Vistisen was aware that Mr Hoskins had to seek approval from a superior officer to obtain the position of Assistant Manager, namely, Ms Vivian Tait. Although she may not have been familiar with Department of Health structures and delegations, it is unlikely that Ms Vistisen believed that Mr Hoskins had actual authority to make the variety of appointments discussed and it is more likely that she understood that he had influence which could assist in attaining those positions. Any expectation she had as a result of what was said to her by Mr Hoskins could not reasonably give rise to a legitimate expectation that any of these positions would be available to her without any other process (such as advertising and interviewing other applicants) or the involvement of more senior officers. Indeed, the history she gave to the consulting psychiatrists and psychologist accepted that she had quickly formed the view that Mr Hoskins's proposed promotions were directly linked to what she understood to be his request for a sexual relationship which were requests that she was not willing to contemplate and were requests to which she took offence. The strength of this point is simply not met by the submission that, because Mr Hoskins was, in fact, the person who conveyed to her on behalf of the Area Health Service the offer of the three-month appointment, she thereafter had a legitimate expectation that he could actually make any appointment he spoke of to Ms Vistisen. In addition, there is nothing in the evidence to support a finding that the Area Health Service (the only respondent to these proceedings), knew of these representations when they were made or endorsed them or declined to take action to make it clear that Mr Hoskins had no authority to make those offers. 75 It is difficult to believe that Ms Vistisen had any expectation other than, if it was possible to make appropriate visa arrangements, her employment might be continued in her present position for up to 12 months. The ability to achieve that result depended on rulings by the Department of Immigration. In fact, representations were made by the respondent for business sponsorship of Ms Vistisen. The submissions as to the adequacy of that effort are dealt with from para [76]. It is also fanciful to suggest that a legitimate expectation for appointment to a position for three years could arise from Mr Hoskins's text message on 29 January 2004, that he was going to pursue a business sponsorship after the New Year for a position that was already funded until 2007. The evidence does not disclose the nature of that position but it relied upon business sponsorship. It was, on the evidence, in any event, not a representation known to the respondent Area Health Service nor was it one which was made by any senior officer with authority to make appointments, nor was it a situation in which the Area Health Service acquiesced or declined to take steps to disabuse Ms Vistisen of Mr Hoskins's ability to actually make such an appointment. This was no more than mere puffery in the workplace by a person whom Ms Vistisen understood was pressing her for a sexual relationship and, in return, was willing to make certain representations favourable to her in relation to her employment. None of this could be altered by Mr Hoskins's assertion that he had Ms Vivian Tait under his influence since there was no evidence as to Ms Vistisen's understanding of or the ultimate and actual authority that Ms Tait had to make any appointment herself. Ms Vistisen was educated to a tertiary level and the psychologist and psychiatrists who saw her regarded her as an intelligent person who, apart from her emotional difficulties, was well organised and competent. There is simply no unfairness demonstrated in this situation for which the respondent can be properly held responsible in relation this part of the applicant's claim. 76 The claim associated with the employment representations is that certain steps should have been be taken in a timely way so that Ms Vistisen was in a position to apply for some visa extension or sponsorship prior to the termination of her three month contract on 9 February 2004. The claim is that, if any of the representations were not honoured or if there was a failure to provide sufficient notice and assistance to the applicant to obtain a visa extension or sponsorship, then the contract is to be varied by providing that the respondent must pay certain amounts of money representing employment for up to a three year period but excluding money actually earned in that time. These amounts were calculated by reference to the Supervisor's rate, the rate of pay for a counsellor and an amount of $45,000 in lieu of lost promotional and other opportunities. None of these payments fall for consideration in light of the applicant's failure to make out a case of unfairness based upon the legitimate expectation of appointment to a variety of positions referred to in the evidence. It is difficult, therefore, to see how this variety of payments should be made because of an alleged insufficiency of notice given to Ms Vistisen to make a timely application for sponsorship that might have been dealt with by the Department of Immigration prior to the end of her three month period of employment. In fact, Ms Vistisen did make application for visa extension on 29 December 2003, supported by a letter from Mr Hoskins (made beyond his delegation). This application suggested that a sponsorship application was likely once the future of the Programme was resolved. Ms Vistisen, therefore, was not disadvantaged to the extent claimed. 77 The starting point for considering this aspect of the claim is: What was unfair about the contractual relationship between the applicant and the respondent or the respondent's conduct that requires that contract to be varied in the manner sought? The Area Health Service had policies in relation to sponsorship and one policy stated that Managers who were responsible for sponsored employees had responsibility for preparing the application to sponsor an overseas applicant and submitting it through the General Manager or Area Service Director to Area Human Resources. Such applications were to be dealt with in recognition of the policy of the Area Health Service which was that it would sponsor overseas applicants "where previous exhaustive efforts have unsuccessfully been made to recruit within Australia an Australian resident". There was no evidence of Ms Vistisen being employed on the basis that she would be engaged for more than three months and, during that initial three month period, sponsorship would be sought. Her initial appointment was available up to a period of 12 months but her visa restrictions meant that she could only be offered and accept a contract for temporary employment for a period of three months terminating on 9 February 2004. That position could not be altered by Mr Hoskins saying that she was to be appointed for three months because of her visa but not to worry too much about that because "we'll work it out". There is no evidence of representations made at this time which added flesh to the bare bones of this throw away comment. 78 Ms Vistisen's letter of appointment was signed by Deborah Picone as acting Chief Executive Officer and stated that the position was available from 10 November 2003 until 9 February 2004. Ms Vistisen was advised that, as a temporary employee her services could be terminated prior to that date with the giving of the appropriate notice of four weeks as stated in the relevant award. There was no representation in that document as to future employment or taking steps to secure sponsorship for an extended term of employment. At the interview held on 31 December 2003, Ms Visitsen was informed that her sponsorship was not dependant on Mr Hoskins but was a matter for the Area Health Service. She should not have been in doubt as to the status of Mr Hoskins' promises or representations after that meeting with senior members of the staff of the respondent. 79 Ultimately, there is nothing in the conduct of the respondent Area Health Service that was unfair in relation to these matters or that would require a variation to the contract as sought by the applicant, the breach of which would properly give rise to the money sums claimed. The claim that notice should be given to allow an application to be made for a de facto visa bears no relationship to any representation alleged to be made with by Mr Hoskins or the respondent Area Health Service. That application was ultimately granted in August 2004 at a time when Ms Vistisen became eligible for such a visa. The respondent at no time represented to Ms Vistisen that it would continue her employment well after the three months prescribed by her visa and until she was eligible for a de facto visa (a period of more than another six months after her temporary employment terminated). 80 The second head of claim broadly deals with misconduct by other employees and the handling of associated complaints. In substance, this claim proceeds on the basis that the contract be varied in circumstances where, should a supervisor make the representations about promotional positions becoming available and being appointed to them and giving support for a sponsored visa (but with all of those matters being dependant upon the provision of sexual favours by the applicant), then the contract was to be varied so that, if the supervisor breached any obligation (not otherwise specified in the Further Amended Summons for Relief) or a complaint was made about the conduct of the Supervisor, then the respondent was obliged to properly investigate that matter and take action in relation to the complaint. If that action included transferring the applicant, the transfer had to be to a position in continued employment, with the opportunity to work the same hours, performing the same duties or duties of no lesser nature, with the guarantee of future promotion according to the representations and further guaranteeing further employment beyond the initial term. Further, the contract was to be varied so that the respondent was to take all reasonable steps necessary to ensure that the applicant was not thereafter subjected to harassment by the Supervisor and was not thereafter contacted by the Supervisor. If there was a breach of any of these requirements or the applicant felt unable to attend work as a result of the matters complained of, then the applicant was not required thereafter to attend for work for the balance of the initial term of the contract, the respondent was not to terminate the applicant's employment and the respondent was to pay the applicant wages from the date of her non-attendance until the end of the initial term of the contract. 81 This part of the claim links a number of matters but ultimately seeks, because of the alleged unfairness, the payment of the contract to the extent that there was no payment or reduced payment from 9 January 2004 but essentially, from 13 January 2004 until the contract expired on 9 February 2004. It should be noted that this part of the Further Amended Summons for Relief, in terms, does not challenge the investigative process of Ms Vistisen's complaint. That matter was raised in submissions and will be dealt with later in this judgment. 82 The first matter to note about this part of the claim is that a variation to the contract is not necessary in order to prohibit the Supervisor from making offers of promotion and visa support dependant upon the applicant providing sexual favours. As already set out in some detail, the respondent Area Health Service had a policy against harassment, including sexual harassment, and a process for dealing with it. Ms Vistisen's Supervisor was not permitted under the terms of her contract or any contractual arrangement or otherwise to sexually harass other employees or clients of the Area Health Service. There was no evidence that this was a paper policy that was not enforced or taken seriously nor was there evidence that the Area Health Service was aware of the conduct of the Supervisor but chose to do nothing about that conduct. 83 On the basis that there was such a contract or arrangement as alleged, this head of the claim for relief requires a variation to the contract to make sure that the alleged conduct was properly investigated and that the applicant be treated in a certain manner by protecting her interests during the investigations. The evidence shows that there was a proper investigation of the allegations against Mr Hoskins. Ms Vistisen made an appointment late in December 2003 to speak to Human Resources about the matter and was interviewed at length the following day notwithstanding that there was likely to be fewer senior officers present because of the traditional Christmas - New Year break. The notes of the meeting were promptly transcribed and Ms Vistisen was given an opportunity to indicate errors in that record. Within a few days, Mr Hoskins was advised of the nature of the allegations and he regarded himself as being interrogated by the respondent's investigators. None of those steps speak of unfairness or a lack of interest by the respondent Area Health Service in the serious complaint raised by Ms Vistisen. 84 The thrust of the complaint appears to be that, firstly, Ms Vistisen was not transferred to a position that fully utilised her skills. In submissions, reference was made to a Displaced Persons Policy that was applicable in circumstances of restructuring and redundancy but it had nothing to do with handling complaints of sexual harassment in the workplace. There was no unfairness in not applying to this situation some part of that policy about relocating permanently employed persons whose role had become redundant. It is to be remembered that Ms Vistisen was soon to take some leave and was to travel to Queensland but had three night shifts to perform in the intervening period. The evidence shows that she was offered the opportunity of not working those shifts and to be placed on some unidentified form of leave. However, she offered to work those shifts because they could be performed at a time when Mr Hoskins would not be present. There was no unfairness by the respondent in accepting that approach and there was no acceptable evidence to support a suggestion that Ms Vistisen was continually pressed to keep working in the Unit for this three day period or for any period thereafter. Indeed, she was informed that it was important that she feel safe coming to work and to be free from harassment. 85 Ms Vistisen returned to work on Friday, 9 January 2004 but apparently there was insufficient work for her that day. Steps had been taken, as an interim measure, for her to work three days in the MERIT Programme and two days with Drug Health Services, Liverpool Counselling Service. Ms Vistisen appeared to be quite eager to perform this work on the first day but, by the second day appears to have become disillusioned and thought the work was not a proper use of her skills even though this was initially an interim measure while the investigation was being conducted. Ms Vistisen's reaction seems to be quite extreme considering it was so early in her new position and, even if she did have legitimate complaints about the nature of the work, there was no evidence of vacant positions existing outside the residential unit for which she was qualified and in which the respondent declined to place her. Ms Vistisen appears to have been in an understandably emotional state at this time and perhaps she felt acutely that the circumstances and actions taken were not supportive of her when this was not necessarily the case. She seems to give no credit for the fact that she was removed from the Unit in which Mr Hoskins was working or that work was to be provided, not only in the MERIT Programme but also in the Adult Drug Programme, work which she did not perform before she went on sick leave. 86 In particular, the submission was made on her behalf that there was effectively unfairness to her because no consideration was given to moving Mr Hoskins from his position as Supervisor so that she could perform the work for which she was qualified. The removal of Mr Hoskins at this early stage of the investigation may well have been a step that Mr Hoskins would challenge and the respondent Area Health Service was placed in the difficult position of attempting to be even-handed with employees in circumstances of a complaint of serious sexual harassment. In those circumstances, it is not possible to find, especially considering the few days involved, that there was unfairness under the contract because the Area Health Service did not find at this time some better position for Ms Vistisen. It may well have been the position that the Area Health Service was not aware of the extent of Ms Vistisen's feelings of rejection, depression and lack of support. However, at that time, there was no medical or other evidence identifying the extent of her difficulties and this material was not available until 2006. While it could be expected that the Area Health Service would act with some sensitivity and be supportive of an employee who had raised a serious allegation of sexual harassment, I am unable to find anything in the conduct of the respondent in those few days that would justify the finding of unfairness that itself would warrant the type of relief claimed in the Further Amended Summons for Relief. Ms Vistisen did not return to work and the occasion did not arise for the Area Health Service to consider any complaint she had about her work and/or to look for suitable alternatives. 87 Part of this head of relief also sought a variation to the contract so that the respondent was to take all reasonable steps necessary to ensure the applicant was not thereafter subjected to harassment by the Supervisor and was not thereafter contacted by the Supervisor. While there was nothing in the policy directly prohibiting contact, the evidence showed that there was only one episode of contact by Mr Hoskins after the applicant made her complaint. This contact arose from the information that was circulated that Ms Vistisen would commence with the MERIT Programme from 9 January 2004 and that information was communicated directly to Mr Hoskins a few days beforehand and while Ms Vistisen was on leave. She was shocked to received a telephone call from him asking why she was being moved. Ms Vistisen recounts nothing of the terms of that conversation that were otherwise threatening or constituted further sexual harassment. It was undoubtedly a preferable course that there be no such contact: the respondent could have taken the step of indicating briefly to Mr Hoskins that there was a difficulty and that he should not try to contact Ms Vistisen. The nature and extent of the contact, however, does not warrant any variation to the contract nor does it, either alone or as part of the general case pressed by the applicant, support the relief sought because of unfair conduct: further, there was no evidence of direct contact by Mr Hoskins after 9 January 2004. 88 As earlier indicated, in terms, the Further Amended Summons for Relief does not seek orders that the result of the grievance process be overturned or that the unfairness of the grievance procedure should lead to a money order. Nevertheless, in oral submissions, relief to this effect was pursued on behalf of the applicant. To the extent that this issue was actually part of the applicant's case, which is surrounded by considerable doubt, nevertheless, the applicant faces a significant hurdle. To act on this basis requires the Court to form the view that there was significant unfairness in the way in which the grievance procedure was undertaken and the conclusion reached. It has already been found that the procedure was undertaken promptly and generally in accordance with the policy of the Area Health Service. Both the applicant and Mr Hoskins were interviewed but there was criticism that the only possible independent witness, a person known as Shane, had not been interviewed before Mr Hoskins was interviewed. Ms Vistisen had said that on a few occasions only was it possible that "Shane" may have seen or overhead some inappropriate conduct by Mr Hoskins but there was no certainty about that having occurred: the majority of the conduct occurred when nobody else was around. Ms Vistisen was asked if the investigators could speak to Shane "if necessary" and she consented to that course. Ms Finocchiaro did not interview Shane prior to interviewing Mr Hoskins and, when Mr Hoskins was interviewed, Shane was nominated as his independent witness. In cross-examination, Ms Finocchiaro said that, from what was said during the course of the interview with Mr Hoskins, she believed that there was no point in seeing and interviewing Shane separately as to words or actions of Mr Hoskins that he may have overhead or seen. There was no cross-examination of Ms Finocchiaro as to precisely what it was that occurred during the course of that interview that led her to that conclusion. 89 While it is clearly preferable that any independent witnesses in such circumstances be interviewed as part of the information gathering exercise at an early stage, Ms Finocchiaro nevertheless had no more than the mere possibility that this person may have some information and elected to firstly confront Mr Hoskins with the detail of the allegations made by Ms Vistisen. Clearly, as discussed with Ms Vistisen, she did not regard it as "necessary" to speak to Shane before the interview with Mr Hoskins. Although there was a preferable course available to Ms Finocchiaro, in the circumstances, her election not to follow that course does not, either by itself or in combination with the other matters raised by the applicant, give rise to such unfairness that the contract should be varied or that the claim for relief should be granted. 90 A further extension of the applicant's case emerged in submissions concerning Ms Finocchiaro's decision-making process. The complaint was made that, although she found two anomalies in answers given by Mr Hoskins especially in relation to the "blackmail" issue, Ms Finocchiaro decided that there was no clear evidence to substantiate that Mr Hoskins had sexually harassed Ms Vistisen. However, she did express concern that the level of detail provided by Ms Vistisen presented a consistent and plausible account of incidents during the meeting and in prior and subsequent telephone contact. In submissions, it was urged that, once the two anomalies had been identified and Mr Hoskins's version of the blackmail incident was capable of being characterised as a nonsensical answer in the context in which he placed it (compared to the context in which Ms Vistisen said it arose), then, against the detailed consistency and plausibility of Ms Vistisen's account, the decision should have been made that the complaint was made out and that Mr Hoskins was responsible for the conduct alleged against him. Although not submitted in these terms, the underlying suggestion seems to be that the process was unfair in not coming to an adverse conclusion against Mr Hoskins and was unfair to Ms Vistisen by not upholding her complaint when there were grounds to do so, but says nothing about the consequences that should follow. 91 The response of the Area Health Service was that, in reaching a decision on an issue as serious as a claim of sexual harassment, the Briginshaw test must be applied and care had to be taken to ensure that any finding made of such harassment could withstand challenge. Ms Finocchiaro, while apparently impressed by the detail, consistency and plausibility of Ms Vistisen's account and having concerns about two anomalies in Mr Hoskins's account, looked for evidence outside of those responses but found none: ultimately, she could not determine which account was correct and, in those circumstances, the investigation was concluded. The Inquiry, however, gave no weight to the fact that prior to 31 December 2003, Ms Vistisen had raised her concerns about Mr Hoskins's behaviour, firstly, with a friend (Ms Fisher) and then with her boyfriend. This was disclosed in the interview by Ms Vistisen and was available to be considered as a relatively early complaint and one that could have been tested for its consistency with the allegations subsequently raised. It will often be the case, however, that the conduct complained of occurs in the absence of witnesses: sometimes a decision has to be made by weighing competing versions of events. In the present case, there was no evidence to support a finding that the Area Health Service would never act on an allegation of sexual harassment, merely because there was an absence of independent witnesses. It may well be that other minds may have concluded that the combination of the detail, consistency and plausibility of Ms Vistisen's account together with the two anomalies in Mr Hoskins's responses were sufficient to conclude that the complaint had been made out, but an issue then arose as to how the grievance could be resolved: such a finding may have resulted in Ms Vistisen being transferred to another position for the remainder of her contract. It also has to be recognised that there were levels of appeal available to both Ms Vistisen and Mr Hoskins in the event of any dissatisfaction with the result of the grievance procedure but Ms Vistisen did not take advantage of that mechanism. 92 If there was any unfairness capable of being found in the way in which Ms Finocchiaro reached her conclusion on Ms Vistisen's complaint, that finding had to be put in the context of her other recommendations, namely, that Ms Vistisen be provided with an alternate work location for the duration of her temporary contract, that appropriate duties be provided to her in keeping with her qualifications, experience and status and that the Area Health Service review the possibility of applying for sponsorship for Ms Vistisen in a temporary position for a period of up to 12 months in an identified alternate work location. These recommendations were all protective and supportive of Ms Vistisen and recognised that she should no longer work in the same Unit as Mr Hoskins. Looked at in a global way, there is no unfairness of the level that would warrant the intervention of the Court or would warrant any of the orders for relief sought by the applicant. In relation to this part of the attack framed on behalf of the applicant, account needs to be taken of the fact that any adverse finding against Mr Hoskins at the grievance level would then have to proceed to some disciplinatry hearing and possible internal appeal proceedings, even externally, in circumstances where there was less than three weeks remaining of the unexpired term of Ms Vistisen's contract with the Area Health Service. A speedy resolution of the issues was unlikely to have been achieved during the remaining term of her contract. 93 The Further Amended Summons for Relief was meant to clarify a claim for the payment of $30,000 based upon the applicant's distress and her developed or exacerbated psychological condition. The evidence in this regard has been summarised and, while there is a division of opinion over the OCD condition, an essential element in sustaining this claim must be that the condition arose from the unfair conduct of the respondent Area Health Service. The limited availability of this type of relief was discussed by the Full Bench in The State of New South Wales v Banas [2004] 137 IR 63. In that case, at first instance it was found that the applicant's medical condition was clearly put as part of his case and he provided evidence in that regard, including a medical history that seemed to be consistent. That evidence had not been seriously challenged and it was held that there was sufficient connection between the history given by Mr Banas, his medical condition and the findings of unfairness by the respondent to leave the Court comfortably satisfied that the medical views were soundly based. The medical condition was directly linked to actions authorised by the respondent Department. Medical and other necessary evidence of that nature is not present in this case. 94 The psychiatrists and psychologist reports identify the behaviour alleged by Ms Vistisen and come to varying conclusions about how her condition of stress and anxiety and possibly OCD were explicable by reference to the fact that she had been sexually harassed by her Supervisor. As referred to earlier in this judgment, the Court is unable to identify any conduct by the respondent (as distinct from the Supervisor) that was unfair or unfair to the extent that it would warrant orders being made under s 106 of the Act. The expert reports presented in evidence dealt with conditions that arose because of Ms Vistisen's perception of what was happening: the condition that resulted was real, whether or not those perceptions or all of them were accurate. To the extent that Ms Vistisen had a perception that the Area Health Service had treated her unfairly, that perception is without basis: it is the fact of unfairness rather than her perception of the unfairness which must ground the making of such an order as sought on her behalf in this aspect of the claim. This approach does not detract, in any way, from the fact that Ms Vistisen was genuinely stressed, and that distress affected her capacity to continue to perform her work. Observations of Ms Vistisen during the course of her evidence and while present in Court during the evidence of others, demonstrated a continuing high level of distress and anxiety while the medical evidence referred to unresolved issues of anger directed to Mr Hoskins and the respondent. However, the Court is unable to lay that condition at the door of the respondent Area Health Service. The judgment in Banas makes it clear that this type of claim made in s 106 proceedings must be directly linked to the unfair conduct of the respondent, and is not simply a substitute for workers compensation and/or common law damages. 95 Paragraph 12 of the Further Amended Summons for Relief was something of an omnibus claim drawing together various strands of the case pursued against the respondent. The claim that the respondent terminated the applicant's employment without proper notice is simply without foundation and, having regard to the term of the contract, lacks substance. The allegation that the contract permitted the applicant to be subjected to harassment of a sexual nature, to be discriminated against in terms of promotion and permanency by refusing to grant sexual favours to her Supervisor, and permitted the Supervisor to use the applicant's immigration status as a lever to obtain sexual favours, is simply misconceived. The contract made no such provisions at all and, in fact, to the extent that the Area Health Service Policies were part of the contract or arrangement, they expressly prohibited sexual harassment in the workplace. The allegation that the applicant was at all times in a position of unequal and inferior bargaining power in respect of her dealings with the respondent was, in no relevant sense addressed, let alone made out. The complaint that the contract did not provide for the respondent to assess the applicant's qualifications to ensure that she was paid at an appropriate rate overlooks the fact that there was no evidence that the respondent ever undertook the task itself of assessing qualifications but required employees to bring forward evidence of the local equivalent status of overseas qualifications they obtained: there was nothing unfair about such an approach, especially in light of the evidence of the existence of other recognised expert bodies that carried out such assessments. The remaining part of paragraph 12 of the Further Amended Summons for Relief has been dealt with elsewhere in the judgment. 96 In submissions, a variety of propositions were advanced either in support of the claim set out in the Further Amended Summons for Relief or as some further expansion of those claims. In light of the conclusions that have been reached, it is unnecessary to deal with the propriety of that approach. It was submitted that part of the unfairness is that Ms Vistisen would not be prejudiced by virtue of making a complaint. It was pointed out that the recommendation of 22 January 2004 supported seeking a position for Ms Vistisen in the Drug Programme, but it appears that Ms Nesire made the decision that an application for sponsorship should be made in relation to a different position, namely, that of Technical Assistant. The application for sponsorship, however, makes it clear that the position of Technical Assistant was in the MERIT Programme/Court Diversion Programme and was placed within Area Drug and Alcohol Services of the Area Health Service. It was submitted that this was a narrowing or confining of the position to which Ms Vistisen should be allocated and that, in any event, it was not a position that would qualify under Department of Immigration guidelines for sponsorship. There was no evidence as to how the respondent came to decide that the position of Technical Assistant was available but the respondent's policy required applications to be made only where there had been a thorough search for suitable local applicants that had failed. No relevant unfairness on behalf of the respondent is demonstrated by the way in which this application was framed in the narrow time frame available. 97 It was then submitted that it was unfair to make the application for sponsorship for the position of Technical Assistant because such an application was bound to fail, as confirmed by Mr Cameron to his superiors, and it did not meet Department of Immigration requirements as to minimum levels of salary. The evidence does demonstrate a good deal of activity after 22 January 2004 and well beyond the remaining three weeks of Ms Vistisen's temporary appointment to obtain sponsorship for her. There were discussions with the Department of Immigration in March 2004 and by May 2004 her position was still under consideration. Her existing low level salary was to be boosted by recognising her previous experience but the respondent was also inhibited by the fact that Ms Vistisen had not yet produced evidence of equivalent Australian tertiary qualifications to enable a salary assessment to be made on graduate pay levels. The respondent had a certain status with the Department of Immigration regarding visa sponsorship applications and continued to make responses and representations for consideration of its proposal. It simply failed to obtain the Department's consent. The evidence shows that, although those efforts continued some little while after Ms Vistisen's contract came to a conclusion, by August 2004, Ms Vistisen had been granted a visa with unlimited work rights because of her de facto relationship. 98 In the case put on behalf of the applicant, it seems to be suggested that the application for sponsorship should have been made in relation to the various positions referred to by Mr Hoskins but there is no evidence that those positions were actually vacant at the time that this application for sponsorship was made or that they met the other strictures of the policy in not being able to be filled. The Court is unable to accept the proposition put on behalf of Ms Vistisen that this application was doomed to failure and the almost sub silentio submission that the respondent knew that the application was doomed to fail. It is also to be remembered that there was no representation by the respondent Area Health Service that these positions would be given to or made available to Ms Vistisen. There was certainly no representation by the respondent at the time of the employment that during the course of the employment, such an application for sponsorship would be made or that other positions would be looked for in order to keep the applicant in employment. There were additional efforts undertaken by the respondent after her complaint but they were not undertaken as a result of contractual obligations: that fact has particular relevance when weighing issues of fairness. These matters do not advance the applicant's case. 99 One aspect of the applicant's claim deserves closer consideration. After making her complaint in late December 2003 about her Supervisor's conduct, Ms Vistisen was offered the opportunity of not returning to work for the three days before she was due to take some leave although she declined that opportunity. She was advised by a counsellor not to perform the third night shift because of her distressed condition. Shortly after resuming duties on returning from leave, Ms Vistisen became so distressed that, after consultation with a counsellor, she was advised to leave work and take some time off. She consulted her local practitioner and was given a medical certificate that was ultimately extended for the remainder of her term of employment, namely, to 9 February 2004. 100 The claim in relation to this period cannot be considered as a claim enforcing a right to sick leave as it was asserted by the respondent (and was acquiesced in by the applicant's legal representatives) that there was no award entitlement for sick leave until after three months' continuous service. Further, this aspect of the claim cannot be regarded as enforcing a workers compensation right nor does it attempt to overturn the insurer's determination that certain provisions of the Workers Compensation Act precluded granting the claim as workers compensation. As in Banas, this part of the claim is associated with contractual unconscionability and the conduct of the employer. At the interview conducted by the investigators, she was told she should not work if she felt uncomfortable doing so: there was no suggestion that she should suffer any loss by following this advice. Ms Vistisen's obvious distress, recognised by those who conducted the interview and later by two counsellors and her Supervisor in MERIT, warranted recognition of her inability to continue to perform her duties and it was unfair that she was not paid for that time away from work. While this was not leave conferred as of right, the respondent clearly recognised the ability to permit paid absences due to Ms Vistisen's emotional state. As this form of leave had been offered, the respondent should not have been surprised when, on medical advice, it was ultimately taken and fairness required that leave taken, in those circumstances over a relatively short period, should be paid leave. 101 As earlier indicated, the evidence does not make it totally clear whether Ms Vistisen was not paid for some of the time immediately before proceeding on leave and whether or not she was paid for part of the time between 9 and 13 January 2004. In those circumstances, the parties should discuss the period during which Ms Vistisen was not paid up until 9 February 2004 when her contract concluded and the applicant is to bring in Short Minutes of Order reflecting that position or, if necessary, some short amount of time may be set aside to hear any dispute about that period. 102 The decision of the Court is that there should be a declaration that the applicant's contract became unfair due to the conduct of the respondent in not providing payment for the period in which she was unable to perform work because of the stress and anxiety she suffered following the lodgement of her complaint of sexual harassment. In view of the fact that the contract was short term and expired in February 2004, the appropriate order is that the contract should be voided ab initio except in relation to payments already made under the contract. There should be an order for the payment of a sum of money equivalent to the unpaid time during which Ms Vistisen was unable to perform her duties between January and February 2004. The parties are to discuss the terms of orders that reflect this decision and the applicant is to file and serve Short Minutes of Order within 14 days or such other period as is mutually agreed upon by the parties. AMENDMENTS HISTORY: 21/09/2007 - Orders issued in this judgment 21 September 2007 - See Attachment at end of judgment - Paragraph(s) 102 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.