Absolon v NSW TAFE [1999] NSWCA 311

New South Wales Court of Appeal CITATION : Absolon v NSW TAFE [1999] NSWCA 311 FILE NUMBER(S) : CA 40367/97 HEARING DATE(S) : 01/10/98 JUDGMENT DATE : 30 August 1999

PARTIES : Elizabeth Jadwiga Absolon v NSW Technical and Further Education Commission & Anor JUDGMENT OF : Powell JA at 1; Fitzgerald JA at 88; Sheppard AJA at 151

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 30003/97 LOWER COURT JUDICIAL OFFICER : Simpson J

COUNSEL : B R Rayment QC/ J B Bishop/P M Lane (Appellant) A R Moses (Respondent) SOLICITORS : W J Whitting (Appellant) I V Knight Crown Solicitor (Respondent) CATCHWORDS : Adequacy of reasons; Equal Opportunity Tribunal; discrimination on grounds of sex; discrimination on grounds of previous complaint; victimisation; specialist body; exercise of jurisdiction; whether error of law; no defect manifest on record; adequacy of reasons; whether failure to take material considerations into account. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40367/97 EOT 23/91

POWELL JA FITZGERALD JA SHEPPARD AJA Monday, 30 August 1999 Elizabeth Jadwiga ABSOLON v NEW SOUTH WALES TECHNICAL & FURTHER EDUCATION COMMISSION & ANOR

JUDGMENT

1 POWELL JA: I have read, in draft, the Judgment which has been prepared by Fitzgerald JA. I regret, however, that I cannot share his Honour's conclusions that the Equal Opportunity Tribunal ("the Tribunal") erred in law when dealing with complaints 11, 19 and 21. 2 Although, in his Judgment, Fitzgerald JA has provided some of the background which led to this appeal, it is necessary, if I am to explain the reasons which have led me to differ from his Honour, that I provide a more extended record of the background facts. 3 The Appellant, who, at the time of lodging her complaint with the President of the Anti-Discrimination Board ("the Board") in September 1989, appears to have been about 43 years of age, commenced employment with the Department of Technical Education, as it was then known, as a teacher in shorthand and typewriting at the beginning of 1967. Thereafter, the Appellant progressed through various positions with the Department and, later, with the Respondent which came to replace it, until January 1980 when she was appointed Principal Grade III at Campbelltown TAFE College, a position which she held until April 1986. Among the positions which the Appellant held during that period was that of Principal Grade IV at Mudgee Technical College, a position which she held for about 12 months. It was while she was at Mudgee that the Appellant met Mr. Michael Ryan, another employee of the Respondent who, at the time of the Appellant's lodging her complaint to the President of the Board, was employed by the Respondent as Administrative Officer (Colleges and Schools). Mr. Ryan's place in this history can be seen from the terms of Complaints 1-5 with which the Tribunal was concerned to deal - the 21 complaints with which the Tribunal was ultimately concerned to deal are set out in the Schedule to this Judgment. 4 In January 1986 the position of Principal of the Campbelltown College of TAFE was upgraded to Grade II level, it following that, if she were to retain her position as Principal, the Appellant needed to be placed high enough on the Eligibility List for Grade II Principals to be given promotion. 5 The Selection Panel for the Grade II Eligibility List, of which panel Mr. Ryan was a member, conducted interviews in February 1986. Although placed on that Eligibility List - a fact of which the Appellant was informed by letter written by Mr. R.J. Puffett the then Director (Staff) on 24 March 1986 - the Appellant was not placed high enough to be given promotion. Meantime, on 7 March 1986, the Appellant had complained to Mr. Puffett of the attitude of Mr. Ryan and one other member of the Selection Panel during the course of her interview. This incident forms the basis of Complaint No. 1 with which the Tribunal was concerned to deal. 6 In April 1986 the Appellant was transferred to the Strathfield College of TAFE as Principal. 7 It would seem that, meantime, a number of those who had been placed on the Eligibility List ahead of the Appellant - included in which number was a Mr. Kretchmer - had been promoted to Principal Grade II positions. The Appellant thereupon appealed to the Government and Related Employees Appeal Tribunal ("GREAT") in respect of those promotions, the appeal - and, as it would seem, appeals which had been lodged by others - being heard by GREAT in September 1986. The Appellant's appeal appears to have been dismissed. 8 In 1987 the Appellant applied for two promotional positions, one being for Grade I Principal positions, the other being for Principal Grade II at Shellharbour. The Appellant was not placed on the Eligibility List for the Grade I positions and in company with a number of others - including Mr. Kretchmer - appealed to GREAT against the appointment of a Ms. Schofield. Those appeals were all dealt with in March 1988, all appeals being dismissed. Meantime, the position at Shellharbour College of TAFE had been filled although the Appellant and two others were placed on an Eligibility List which remained current until July 1988. 9 It would appear that, in December 1987, the Appellant fell ill with pneumonia and was absent on sick leave for the better part of 3 months, during the early part at least of which there was no one acting in the role of Principal. As from early 1988, the problem caused by the Appellant's absence was compounded by the fact that the then existing Registrar was promoted and left, that Registrar being replaced by an Acting Registrar who was inexperienced - a more experienced officer to act as Registrar was not appointed until mid-May 1988 and the substantive position of Registrar was not filled until November 1988 when Mr. C.A. Gleeson was appointed to the position which was then graded Grade 2/3 - that grading, so the Appellant was later to point out, was quite inadequate for the task required to be fulfilled by the Registrar at Strathfield College of TAFE. In the result, so the Appellant was later to write (Exhibit A p.191) "The College … operated for almost 12 months without substantive officers in key management and administrative positions. When the Registrar's position was ultimately filled, the successful officer, although possessing the 'essential' qualifications set by HO, unfortunately turned out to have no previous experience in most of the managerial skills required for this position." 10 In March 1988, a few days after the Appellant's appeal to GREAT in respect of the appointment of Ms. Schofield was dealt with, the Appellant, who had applied for a Grade II Principal's position, was interviewed by a selection panel which included among its members a Ms. Brell and a Mr. B. O'Reilly. The Appellant did not obtain a Grade II position nor was she placed on the Grade II Eligibility List. Although it is not entirely clear that this was so, it would seem that the Appellant once more lodged appeals against the promotion of those who had been appointed to the vacancies, those appeals being heard by GREAT in about October 1988 and being dismissed. This matter was the subject of Complaint No. 2. 11 In the course of its Judgment the Tribunal recorded that: "Assistance had been provided for the (Appellant). On 5 August 1988 she had sought assistance for Strathfield from Mr. Bob Puffett who sent his administrative assistant Ms. Crawford to the College on 8 August 1988. Mr. Puffett regarded this as an unusual request and he was unaware of any other principal seeking such assistance. Ms. Crawford remained at the College until 23 September 1988. While she was there she performed a number of duties which the Tribunal saw as designed to assist the (Appellant). Mr. Puffett had Ms. Crawford's reports concerning the state of Strathfield College, which the Tribunal has accepted on the basis, not of their accuracy, but on the basis of how the reports would have affected Mr. Puffett's view of the state of Strathfield College when the decision was made to have a Management Support Team appointed." 12 On 19 November 1988, the Appellant forwarded to Dr. A. Patterson, the then Director-General of the Department, a strongly worded complaint as to what she alleged was the biased treatment which she had received at the hands of Ms. Brell and Mr. O'Reilly and demanding that they be removed from any future selection committees within TAFE. That letter was followed by a letter of 4 December 1988 to Mr. White the then Deputy Director-General, an interview by Mr. White in mid-December 1988, a further letter to Mr. White of 7 February 1989, and letters to Mr. Michael Brinsden, the then newly appointed Director-General, on 7 and 21 February 1989. In her letter to Mr. White of 7 February 1989, the Appellant concluded: "As I am aware that Hornsby College (Gr II) is currently available I request appointment to Hornsby as rectification of the obvious injustice caused by not placing me on an eligibility list when I was clearly qualified and eligible for such placement."