Industrial Relations Commission New South Wales Medium Neutral Citation: Brown v State of New South Wales (Department of Education and Communities) [2013] NSWIRComm 115 Hearing dates: 1, 2, 3 May 2013 and 3 June 2013, 13 August 2013, 11 November 2013 Decision date: 20 December 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The Court makes the following orders: (1) I declare the temporary employment contract between the applicant and the respondent that applied to the applicant's employment as at 17 April 2010 was an unfair contract (2) The contract referred to in order (1) hereof is varied to provide a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact will be given significant weight in assessing her application for permanent appointment in that position. (3) In connection with the contract as varied in accordance with order (2) hereof the respondent shall pay to the applicant an amount of 12 months' salary as compensation for the loss of income and employment opportunity associated with the failure to be appointed as a full-time Aboriginal Education Officer, which amount to be calculated at the current rate of that position. (4) In connection with the contract as varied in accordance with order (2) hereof the respondent shall pay to the applicant an amount of $5,000 in addition to that ordered in order (3) hereof as compensation for costs associated with the psychiatric injury. Catchwords: UNFAIR CONTRACT - Claim by Aboriginal Education Officer (AEO) of unfair contract - Whether contract was unfair due to alleged unfair interview process which resulted in the applicant failing to win a permanent position as an AEO after four years at a primary school as an AEO on a temporary basis - Whether contract was unfair in that the AEO was not paid as a qualified teacher in circumstances where she was performing teaching duties - Finding of unfairness regarding interview process - Money orders made - Compensation in respect of psychiatric injury in connection with unfair contract Legislation Cited: Education (School Administrative and Support Staff) Act 1987 Industrial Relations Act 1996 Institute of Teachers Act 2004 Institute of Teachers Regulation 2010 Cases Cited: Banque Commerciale SA in liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Bowman v Ricegrowers Limited (formerly Ricegrowers' Co-operative Limited) [2007] NSWIRComm 204; (2007) 167 IR 325 Illawarra Breads Pty Ltd v Bakers Delight Holdings Ltd [200] NSWIRComm 223; (2007) 167 IR 393 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 Sydney Water Corporation Ltd v Industrial Relations Commission of NSW [2004] NSWCA 436; (2004) 61 NSWLR 661 Category: Principal judgment Parties: Gaylee Maree Brown (Applicant) State of New South Wales (Department of Education and Communities) (Respondent) Representation: Dr J Berwick of counsel for the Applicant Ms E Brus of counsel for the Respondent and later Mr S Benson of counsel for the Respondent Craddock Murray Neumann for the Applicant Crown Solicitors Office for the Respondent File Number(s): IRC 312 of 2011 Judgment 1Gayle Maree Brown ("the applicant") has sought relief under the unfair contract provisions of the Industrial Relations Act 1996 in respect of what the applicant asserted was an unfair contract or arrangement with the State of New South Wales in its manifestation as the Department of Education and Communities ("the respondent"). It was claimed that under the contract or arrangement the applicant worked variously as a cleaner, secretary, tutor and Aboriginal Education Officer (AEO) between 1997 and 2010. 2The applicant claimed that despite being employed as a full time AEO from about 2006 on a temporary basis under s 21 of the Education (School Administrative and Support Staff) Act 1987, she performed the work of a primary school teacher for which she was not remunerated. Further, that the contract or arrangement was unfair because of the respondent's failure to appoint the applicant as an AEO on a permanent basis in 2010. As a result of her treatment by the respondent, the applicant claimed she was suffering from a Major Depressive Disorder. The respondent rejected the claims. Background to the claim 3The applicant, an aboriginal woman of about 40 years of age, had her family roots in Weilmoringle. Weilmoringle is an isolated community in far northwestern New South Wales near the Queensland border. 4The applicant had attended Weilmoringle Public School ("the School") as a child. The School has a one-room classroom and caters for primary age children from kindergarten to Year 6. The applicant attended high school at Forbes, but finished her secondary education in 1986 at some stage during year 8, after which it appears she returned to her community at Weilmoringle. 5In or around 1992, the applicant participated in a Community Development Employment Program ("CDEP"). This was a program to help unemployed people obtain work related skills. As part of the CDEP the applicant undertook gardening and rubbish collection and a two-day per week TAFE course "on how to be a secretary". The applicant completed the coursework but did not sit the final exam. 6Whilst participating in the CDEP the applicant was asked if she could undertake part of the program at the School and commenced to do so in February 1997. 7The applicant was initially employed by a private cleaning contractor as a cleaner at the School from about 1997 to 1999. It appears not to be in issue that from about 1999 the applicant commenced as a temporary school administrative and support member of staff at the School. It also appears not to be in issue that the applicant performed the duties of a tutor in her capacity as a temporary school administrative and support member of staff. In about 2006 the applicant was appointed as an AEO on a temporary basis. 8According to the applicant, there were usually about a dozen students at the school, all of whom were Aboriginal children except one or two. The school consisted of a single classroom divided in two. At one end of the classroom were those children in kindergarten to year 2. At the other end of the classroom were children from year 3 to year 6. 9The applicant claimed that whilst she had not received any teacher training and was not qualified as a teacher, nevertheless, while working as an AEO at the School, she undertook the teaching work of a qualified primary school teacher in respect of the children in kindergarten to year 2 "all day, every day." 10The applicant claimed she was required by the Principal to arrive at 8:45 am at which point the Principal, Margarete Coddington, showed the applicant the teacher's guidebook. The applicant would prepare a program and print it from the computer. The program would set out the relevant pages from the mathematics textbook which was entitled "Maths Plus". Other duties the applicant described included teaching phonics, reading, spelling and setting a test in spelling each Friday. 11The applicant claimed she was never provided with a statement of duties as an AEO. Early in 2010 the applicant said she investigated the role of an AEO on the Internet and formed the view that she had in fact been working as a teacher. The applicant complained about this and about certain treatment of her by the Principal, but her complaints were either not accepted as being correct, were rejected, or not dealt with. 12In about May 2010, following Ms Coddington's successful application to be permanently appointed as the Principal of the School, the respondent advertised for a full time AEO at the School. The applicant applied for the position but was unsuccessful. The applicant claimed that currently a Principal and properly qualified full time teacher, as well as an AEO, were employed at the School. 13The applicant said that "As a result of her treatment by the Respondent she is suffering from a Major Depressive Disorder within the meaning of that term set out in DSM - IV." Summons for Relief 14The summons for relief initiating the proceedings was twice amended, firstly on 18 June 2011 ("amended summons for relief") and, secondly, on 24 April 2013 ("further amended summons for relief"), which was shortly before the trial of the matter was to commence on 1 May 2013. Second further amended summons 15On 13 August 2013, which was the date set for hearing final submissions, the applicant filed a notice of motion seeking a further amendment to the summons ("the second further amended summons"). Having heard the parties the Court offered the applicant the option of having the motion dismissed and proceeding to deal immediately with final submissions or adjourning the proceedings, including the motion, to provide the respondent with the opportunity of dealing with the second further amended summons. The applicant chose the latter course and the matter was listed for hearing on 11 November 2013. 16In submissions filed on 3 October 2013, the respondent contended the second further amended summons constituted a new and separate application that was barred by operation of s 108B of the Act. Section 108B provides: 108B Time for making application (1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract. (2) The Commission does not have jurisdiction to extend the time for making any such application or, subject to subsection (3), to accept an application made after the time prescribed by subsection (1). (3) The Commission may accept an application made within 3 months after the time prescribed by subsection (1) if the applicant satisfies the Commission that there are exceptional circumstances justifying the making of the late application. 17The respondent submitted that a chronology of relevant dates indicated that: (a) On 18 April 2010 the last temporary employment contract between the applicant and the respondent was terminated; (b) On 30 March 2011 the original Summons for Relief was filed (and thus was within the 12 month limit set out in s. 108B(1) and hence within jurisdiction). The essence of the applicant's original Summons was to the effect that the contract or arrangement whereby the applicant worked on a temporary basis in various classifications such as cleaner, secretary, tutor and Aboriginal Education Officer ("AEO") was unfair as the contract or arrangement allegedly failed to take into account the reality of the applicant's true role as a teacher. In other words, the essence of the claim was for underpayment of wages between what the applicant actually earned and what the applicant would have earned as a qualified primary school teacher for the relevant period (ie "the underpayment claim"); (c) On 17 April 2011 the threshold time limit set out in s. 108B(1) expired (thus precluding new unfair contract claims unless, within the following three months as provided for in s. 108B(3), the applicant satisfied the court that there were exceptional circumstances justifying the making of the application at such a late stage); (d) On 18 June 2011 the Amended Summons for Relief was filed by the applicant. The essence of the amendment was to add new claims (3); (4); (5) and (6) so as to seek an order inserting into the contract or arrangement provisions for "special consideration" in the future consideration of the applicant's application for a permanent position as an AEO (ie "the special consideration claim"). The particulars also added a claim for an amount of 12 months' salary as compensation for loss of income and employment opportunity associated with the applicant's failure to be appointed as a permanent AEO (ie "the compensation for loss of opportunity claim"). The "special consideration" and "compensation for loss of opportunity" claims thus changed the nature of the original claim and significantly increased the monetary relief sought to underline the fact the Amended Summons constituted an entirely new application. As the applicant made no application pursuant to s. 108B(3), the jurisdictional foundation for the Amended Summons was absent. (e) On 24 April 2013, two years after the original summons had been filed and three days before the final hearing, the applicant filed and served the Further Amended Summons without prior notice. The essence of the further amendment was to include in the contract a claim (see Clause 8(a)) that the applicant be paid an amount of 24 months' salary by reason of lost employment opportunity (ie "the enhanced compensation for loss of opportunity claim"); plus a clause relating to the retention of documents (which was struck out on 1 May 2013); and, in the matters f fact, the insertion of Clause 21(e) "that regardless of her employment status she (the applicant) was doing the work of a teacher" (which was a re-iteration of the original underpayment claim). (f) On 13 August 2013, some three months later, at the scheduled final hearing date, the applicant filed in court the Second Further Amended Summons (a copy of which had been served on the respondent in the course of the previous day). The essence of the further amendments in claims (7) and (8) was to claim that unfairness arose from non-compliance with s. 21 of the Education (School Administrative and Support Staff) Act, 1987 ("the SASS Act") and such unfairness was compounded by alleged non-compliance with certain workplace planning guidelines and related policies (ie "the non-adherence to statutory and policy requirements claim"). The amendments in the Second Further Amended Summons constituted a totally different application in terms of quality and character from the original application which sought relief for the pleaded underpayment claim. The Second Further Amended Summons has not been made within the time prescribed by s. 108B of the Act and is thus statute barred. It ought thus be struck out. 18In Illawarra Breads Pty Ltd v Bakers Delight Holdings Ltd [200] NSWIRComm 223; (2007) 167 IR 393 at [7]-[20] the Full Bench addressed the operation of s 108B of the Act when considering whether a further amended summons in that case constituted a new and separate application such as to be statute barred. The Full Bench relevantly observed at [10] of the decision that: [A]ny inquiry to determine whether an Amended Summons is statute barred by virtue of s. 108B is not to be directed to the quantity of the amendments but rather their true nature or character, in the sense that the question has to be asked whether, in substance, the amendments constitute an application of such a different quality or character to the original application that it may be said the application incorporating the amendments had not been made within the time prescribed by s 108B. 19The respondent first contended that the amended summons for relief filed on 18 June 2011 constituted a new application and was, therefore, statute barred. This is despite the fact that counsel for the respondent at the time did not object to the amendment and, indeed, filed a Reply to the amended application. I think it is too late, 28 months after the event, for the respondent to be contending that s 108B(3) was not complied with. It must be accepted that the Court was satisfied that the amended summons constituted a late application and that in the absence of any suggestion or submission to the contrary, there were exceptional circumstances justifying the making of the late application. Further amended summons 20On 24 April 2013, the applicant filed and served the further amended summons. Counsel for the respondent took objection to certain amendments, but not on the basis of s 108B. One of the amendments, identified as A9(a) was struck out by the Court. That claim was in the following terms: A further order that the contract or arrangement referred to in paragraphs 1-6 above be varied to include the term that the Respondent would not destroy documents relevant to the application lodged for the position of permanent Aboriginal Education Officer once it had become aware that the Applicant had lodged a Summons pursuant to Section 106 of the Industrial Relations Act 1996 (NSW). 21Another amendment sought by the applicant and identified as A8(a) was: A(8)(a) A further order that the Applicant be paid an amount of 24 months salary by reason of loss of employment opportunity. 22The amendment that was A8(a) was simply a claim for compensation in connection with an order sought by the applicant (in A5) seeking to vary the contract or arrangement to include a term that in considering the applicant's suitability for the full-time position of Aboriginal Education Officer the lack of employment opportunity for her in Weilmoringle would be a consideration. I do not consider this amendment constituted an application of such a different quality or character to the original application that it may be said the application incorporating the amendments had not been made within the time prescribed by s 108B. 23A further amendment in A9(b) was simply a machinery amendment providing the basis for the Court to make alternative orders considered by the Court to be just in all of the circumstances of the case. That amendment did not alter the nature and quality of the original application. 24It was the further amended summons that was to constitute the basis of the applicant's case, with the trial due to commence on 1 May 2013. 25At this point it is appropriate to set out Part A of the further amended summons constituting the applicant's claims in order to understand the amendments that were sought to be made to that summons by the applicant in her notice of motion filed on 13 August 2013: (1) An order declaring that the contract or arrangement whereby the Applicant worked for the Respondent variously as cleaner, secretary, tutor and Aboriginal Education Officer between 1997 and 2010 was an unfair contract within the meaning of Section 105 of the Industrial Relations Act 1995 (sic)(NSW). (2) An order that the contract or arrangement referred to in (1) above be varied ab initio or from some other time to include a term that while carrying out the work of a primary school teacher, the Applicant would be paid as such rather than at a casual rate applicable to an Aboriginal Education Officer. (3) A further order that the contract or arrangement referred to in (1) above be varied to include a term that any complaint made by the Applicant in regard to her role would not prejudice her application for the position of Aboriginal Education Officer. (4) A further order that the contract or arrangement referred to in (1) above be varied to include a term that in circumstances where the Applicant had performed adequately in the position of Aboriginal Education Officer over a period of years that fact would be given significant weight in assessing her application for that position. (5) A further order that the contract or arrangement referred to in (1) above be varied to include a term that in considering the Applicant's suitability for the full-time position of Aboriginal Education Officer the lack of employment opportunity for her in Weilmoringle would be a consideration. (6) A further order that the contract or arrangement referred to in (1) above be varied to include a term that in circumstances where the Applicant had carried out the functions of a qualified teacher she would be given special consideration in her application for a full-time Aboriginal Education Officer position. (7) A further order that the Applicant be paid an amount of five thousand dollars ($5,000.00) per annum being the difference between what she was paid as a casual employee and the amount she would have earned as a qualified primary school teacher. (8) A further order that the Applicant be paid an amount equal to 6 months salary of a qualified primary school teacher by way of notice of termination -$24,685.00. (8)(a) A further order that the Applicant be paid an amount of 24 months salary by reason of loss of employment opportunity. (9 A further order that the Applicant be paid fifty thousand dollars ($50,000.00) by way of compensation for psychiatric injury suffered as a result of her treatment by the Respondent. (9)(a) [struck out on 1 May 2013] (9)(b) In the alternative to orders 7, 8, 8a and 9 above, an amount of money considered by this Honourable Court to be just in all of the circumstances of the case. (10) Costs. (11) Interest. 26In the further amended summons the applicant asserted: 21(a) The opportunity for the Applicant to obtain an education related position in the Weilmoringle area is essentially nonexistent now that the permanent Aboriginal Education Officer position at Weilmoringle Public School has been permanently filled. (21)(b) In regard to the rejection by the Applicant of the tutor's position, her treatment by the Respondent in (a) failing to pay as a teacher and take proper account of the complaints about Margaret Coddington to Mr Loxley; (b) failing to give proper consideration to the application for the permanent Aboriginal Education Officer, given the amount of time she had been doing the job; and (c) failure of Mr Loxley to take account of the Plaintiff's complaint that she was doing teacher's work amount to a fundamental breach of the term of mutual trust and confidence which was implied into employment contract. (21)(c) Further this fundamental breach alleviated her of any responsibility to mitigate her damages by taking the tutor's position. (21)(d) The Plaintiff could not be expected to take a tutor's post in the circumstances, especially when the person who was appointed temporary Aboriginal Education Officer (and subsequently permanent Aboriginal Education Officer) was previously a tutor under the Applicant and had no experience as an Aboriginal Education Officer. (21)(e) Whether or not the Applicant was employed under the Education (S)chool Administrative and Support Staff) Act 1987 (NSW) or the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009 (NSW), her case is that regardless of her employment status she was doing the work of a teacher. (21)(f) The Applicant had superior (i) experience and skills as an Aboriginal Education Officer; and (ii) intellect than the person who was appointed temporary Aboriginal Education Officer (and subsequently permanent Aboriginal Education Officer). 27In relation to matters of law the further amended summons asserted that the contract or arrangement between the applicant and the respondent was unfair in that it: (a) failed to take into account the reality of the Applicant's true role as a teacher; (b) failed to give any, or any adequate, weight to the Applicant's qualifications for the Aboriginal Education Officer position when it was eventually advertised; (c) failed to provide adequate protection to the Applicant in circumstances where she had made a complaint which first counted against her in the selection process for the Aboriginal Education Officer position. 28It was further asserted in the summons that: (23) The fact that an award, or part of an award, may be relevant to a claim under Section 106 of the Industrial Relations Act 1995 (NSW) does not of itself deprive the Commission of jurisdiction over a matter pursuant to Chapter 2, Part 9 of that Act. (24) The proposition that compensation for psychological/psychiatric damage related to the unfairness should be limited in the way prescribed in King v State Bank [2001] NSW IRC 229 is bad in law in that such a limitation is a fetter on a discretionary power exercised pursuant to a statute. (25) The current staffing of the school...is an admission pursuant to Pt. 3.4 of the Evidence Act (1995) NSW that the staffing of the School during the Applicant's tenure was inadequate. (26) A term of mutual trust and confidence was implied into the contract of the Applicant as a matter of law. (27) In regard to D(IV) below, following the decision of the New South Wales Court of Appeal in Salt and Shaw v the State of New South Wales [2012] NSWCA 102 it is open to an Applicant relying on section 106 of the Industrial Relations Act 1996 (NSW) to apply for an amount of compensation concerning future economic loss on the grounds that Addis v Gramophone Co (1909) AC 488 is no longer good law in the State of New South Wales. See also Sorby DCJ's decision in Salt and Shaw v State of New South Wales (District Court judgment dated 10 April 2013 Proceedings No. 2005/298445). (28) The Department had a policy under which the Applicant was deemed to have worked 18 months for every 50 days worked under temporary engagements (see paragraphs 146 and 147 of the affidavit of Gayle Brown filed 24 April 2012 and page 8 of the report of Dr Pat Cavanagh dated 12 March 2013. 29Particulars of the amounts claimed as compensation were set out in Part D of the claim as follows: (I) An amount of five thousand dollars ($5,000.00) per annum being the difference between what she was paid as a casual employee and the amount she would have earned as a qualified primary school teacher. (II) An amount equal to 6 months salary of a qualified primary school teacher by way of notice of termination - $24,685.00. (III) Fifty thousand dollars ($50,000.00) by way of compensation for psychiatric injury suffered as a result of her treatment by the Respondent. (IV) An amount of 24 months salary as compensation for the loss of income and employment opportunity associated with the failure to be appointed as a full-time Aboriginal Education Officer which amount is to be calculated at the current rate of that position. Whether second further amended summons constituted a new application 30The second further amended summons sought to add new paragraphs to the claims in Part A of the summons, namely, A(7) and A(8) with the subsequent paragraphs to be re-numbered. The new paragraphs were in the following terms: A(7) A further order that the contract or arrangement referred to in (1) above be varied to include a term that the Respondent would adhere to s 21 of the Education (School Administrative and Support Staff) Act 1987 (NSW). A(8) A further order that the contract or arrangement referred to in (1) above be varied to include a term that the Respondent would adhere to terms of the: (a) Workplace Planning: a guide, NSW Premier's Department, Public Employment Office 2003; and (b) policies stemming from Workplace Planning: a guide, including the New South Wales Public Sector Workforce Planning Strategic Framework and Action Plan 2004 2006, NSW Premier's Department, Public Employment Office, 2003. Consequential amendments were proposed to the further amended summons in respect of matters of fact and law. 31The question is whether the application to further amend the summons by adding paragraphs A(7) and A(8) constitutes an application of such a different quality or character to the original application that it may be said the application incorporating the amendments had not been made within the time prescribed by s 108B. Before answering that question, there is some relevant background. 32Following the taking of evidence in the matter in May 2013 the parties were directed to file written submissions. In the written submissions for the applicant it was contended (footnotes omitted): The Respondent admits the Applicant was hired under the Education School Administrative and Support Staff Act 1987, thus demonstrating the Respondent's systemic breach of its obligations in relation to a range of positions classified as administrative or support roles, including the Applicant's previous support roles from 1999. The Respondent has not provided any evidence that the Minister relieved the Respondent of its obligations under s 21(3) of the Education School Administrative and Support Staff Act 1987. The Respondent should not be permitted to rely upon its decision to hold the permanent AEO position open for Ms Williams (for 3 years, until about 28 July 2009) in breach of its legislative obligations to the Applicant and, in the process, hang the Applicant out in the wind until such time as it was decided, for whatever reason (malicious or otherwise), to rely on the transient nature of her employment contracts to terminate her AEO position. Once it is established that the Respondent breached legislation by which it was bound in relation to the employment of the Applicant, it must follow that the contract subsequently became unfair because of the conduct of the Respondent in (a) continually renewing the Applicant's temporary employment contracts instead of either ceasing them or making the Applicant's position permanent in 2007; (b) not affording the Applicant protection in relation to her complaints against Mrs Coddington and the nature of the AEO role; (c) using a dubious recruitment process which did not adequately take into account the Applicant's experience; and (d) using a dubious recruitment process which allowed Mrs Coddington to be contacted as referee of Ms Annis-Brown in circumstances where she held personal and professional grudges against the Applicant and, therefore, reason to support the application of Ms Annis-Brown. 33In the written submissions filed by the respondent it was contended that at no time did the applicant plead in her various summonses for relief a claim that unfairness arose from a "systemic breach of its (the Respondent's) obligations" arising from a failure to comply with Education (School Administrative and Support Staff) Act. Counsel submitted this was not a contention prosecuted by the applicant other than in the most general and limited of terms during the cross-examination of a witness for the respondent, Mr Paul Loxley, School Education Director for the Bourke Group of Schools. 34The respondent's contention outlined in the preceding paragraph generated a concern on my part and so I gave leave to the applicant to file and serve any further evidence regarding this matter, together with any supplementary submission, and for the respondent to reply by way of further evidence and/or submissions. I would then hear the parties' oral submissions on all matters. 35The applicant's supplementary written submissions addressed the respondent's contentions including as follows (footnotes omitted): (a) section 21 of the Education (School Administrative and Support Staff) Act 1987 (NSW) created a presumption that the Applicant should have either: (i) been made permanent AEO at Weilmoringle Public School ("the School"), subject to her performance in her first year, after one year of temporary employment; or (ii) had her temporary employment contracts ended by the Respondent at that time; (b) the Applicant was employed by the Respondent for a continuous period as temporary administrative and support staff from 1999 to 1 August 2006; (c) the Applicant was employed by the Respondent for a continuous period as temporary Aboriginal Education Officer ("AEO") from 2 August 2006 - 18 April 2010. This act is admitted by the Respondent; (d) by employing the Applicant for 8 or more continuous months without the concurrence of the Minister, the Respondent breached section 21 of the Education (School Administrative and Support Staff) Act 1987 (NSW); (e) the policies referred to above in paragraphs 4 ["Workforce Planning: a guide"] and 5 ["The New South Wales Public Sector Workforce Planning Strategic Framework and Action Plan 2004 - 2006"] were either part of the Applicant's contract of employment of (sic - "or") a collateral arrangement within the meaning of s 105 of the Industrial Relations Act 1995 (NSW). The Applicant's contract required that the Respondent follow its policies as a matter of fairness: Banas v State of New South Wales [2004] NSWIRComm 255; (f) the contract between the Applicant and the Respondent became unfair as against the public interest at a time immediately after the Applicant was temporarily employed for one continuous year of temporary employment; and (g) in light of the unfairness of the Applicant's contract of employment in being required to perform teaching duties, it should be deemed that the Applicant was a permanent employee after 8 or more months of continuous service and she should be awarded: (i) compensation for the teaching duties the Respondent required her to perform in her AEO role from 2 August 2006 - 18 April 2010; and (ii) consequential damages resulting from the Respondent's termination of her AEO position in April 2010 and her unsuccessful application for the permanent AEO role at the School in June 2010. 36The respondent's response to the applicant's supplementary submissions is essentially summed up in the following two paragraphs: The Applicant has at no time provided any evidence in the proceedings to support any claim of unfairness arising from the failure to comply with the legislation. Had the Applicant done so at the appropriate time, the Respondent would have had the opportunity to put forward its own evidence on this issue and both parties would, in the normal course of the litigation process, have had the opportunity to test that evidence. ... If the Applicant wished to pursue the claim of unfairness arising from non-compliance with s.21 of the Education School Administrative and Support Staff Act 1987, it should have done so at the appropriate time - i.e. prior to the hearing or during the hearing so that the Respondent could have dealt with any evidence filed to support the claim of unfairness and any damages that might result from that unfairness. No such evidence has been filed by the Applicant. 37As I have mentioned, what followed was the filing by the applicant of the second further amended summons, obviously seeking to deal with the respondent's contention that at no time did she make a claim of unfairness arising from non-compliance with s 21 of the Education (School Administrative and Support Staff) Act. 38In addressing the question whether the second further amended summons constitutes a fresh application that is statute barred, it is quite clear from the earlier versions of the summons, including the original summons, that there were three limbs to the applicant's unfairness claim. Unfairness contentions in further amended summons 39It is evident from a reading of the further amended summons as a whole and the applicant's opening submission that the first limb of the applicant's unfairness contentions concerned the applicant's failure to secure the permanent position of AEO at the School. In this regard, as I understand the contentions, they were that the contract or arrangement was unfair because: (a)it did not contain a term that any complaint made by the applicant in regard to her role would not prejudice her application for the position of AEO. In the absence of this term it permitted the respondent to regard the making of complaints as counting against the applicant in what was an unfair selection process that resulted in the applicant failing to gain the permanent AEO position; (b)it did not contain a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact would be given significant weight in assessing her application for permanent appointment in that position. In the absence of this term it permitted the respondent to disregard the applicant's good performance in conducting what was an unfair selection process for the permanent AEO position; (c)it did not contain a term that in considering the applicant's suitability for the full-time position of AEO the lack of employment opportunity for her in Weilmoringle would be a consideration. In the absence of this term it permitted the respondent to disregard the lack of employment opportunities in conducting an unfair selection process for the permanent AEO position; and (d)it did not contain a term that in circumstances where the applicant had carried out the functions of a qualified teacher she would be given special consideration in her application for a full-time AEO position. 40The second limb of the applicant's unfairness contentions was that the contract or arrangement was "unfair, harsh or unconscionable" in that at the time it was entered into it was unfair, or subsequently it became unfair, because: (a) the applicant was never given a copy of the AEO job description by the respondent; and (b) the School required the applicant to undertake class management and control, playground supervision and eaching, which were expressly prohibited by the AEO job description. 41The third limb was that the contract or arrangement was unfair because the applicant was paid total remuneration that was less than a person would have received performing the same duties required of the applicant between August 2006 and April 2010. In other words, the applicant was performing the work of a teacher, but was paid for work as an AEO, the remuneration for such work being less than that prescribed for the work of a teacher under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award. No claim of systematic breach of Education (School Administrative and Support Staff) Act 42There was no claim, in terms, in any version of the summons that the contract was unfair as a consequence of a "systemic breach of its (the Respondent's) obligations" arising from a failure to comply with the Education (School Administrative and Support Staff) Act. The applicant, nevertheless, submitted that the respondent was put on notice of this claim as follows: (a) the respondent raised the Education (School Administrative and Support Staff) Act in its Reply to the Summons filed 12 July 2011. Therefore, it could not subsequently say it had no notice that the statute was part of the proceedings; (b) the applicant's claim was made under s 105 of the Act, which defines "unfair contract" as one including a contract that is against the public interest (s 105(1)(b)). Failure to observe the Education (School Administrative and Support Staff) Act by rolling over Ms Brown's temporary contract in contravention of that Act is against the public interest; (c) on 23 August 2012, the respondent was put on further notice that s 105(1)(b) of the Act was in play via paragraph 9 of the affidavit of Gayle Maree Brown sworn 23 August 2012; (d) on 10 October 2012, the respondent was put on further notice that s 105(1)(b) of the Act was in play via the Notice to Produce of the same date; (e) on 23 April 2013, the respondent was put on further notice that s 105(1)(b) was in play via paragraph 2 of the applicant's Notice to Admit Facts of the same date; and (f) cross-examination of Mr Loxley on 3 June 2013(f)cross-examination of Mr Loxley on 3 June 2013. 43In dealing with the foregoing contentions, firstly, the fact that the respondent identified that Ms Brown's employment was subject to the Education (School Administrative and Support Staff) Act falls well short of a claim that the respondent systematically contravened that Act. Secondly, the fact that the Act prescribes that an unfair contract may be one that is against the public interest is not notice to a respondent that a claim is made against it that a contract is unfair because there were contraventions of a statute. Thirdly, that the respondent may have been put on notice that that "s 105(1)(b) was in play" from August 2012 onwards might be an argument that there is, therefore, no prejudice to the respondent, but it does not overcome the objection under s 108B that an application for an order in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract. 44The last temporary employment contract between the applicant and the respondent was terminated on 18 April 2010. Subject to s 108B(3), any amendment made 12 months after 18 April 2010 that constituted a new application would mean that amended application was statute barred. In my opinion, the proposed second further amended summons contains new elements that add an additional ground of unfairness not contemplated by the earlier versions of the summons. 45Contrary to the submissions of the applicant, and the reliance of the applicant on Banque Commerciale SA in liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 296-297, it is not permissible in unfair contract proceedings under Ch 2 Pt 9 of the Industrial Relations Act, to enlarge the scope of the claim such that it represents a new or additional claim once the 12 months' time limit provided by s 108B(1) has been passed, subject to s 108B(3). Application to amend further amended summons refused 46Accordingly, I refuse leave to amend the further amended summons for relief as sought by the motion filed 13 August 2013. Evidence For the applicant 47Three affidavits of the applicant were read. Ms Brown was required for cross-examination. In addition, Ms Donna Williams gave evidence for the applicant and was required for cross-examination. At the time of giving her evidence Ms Williams was a Teachers Aide Special working in a school in Dubbo. The relevance of Ms Williams' evidence was that between 1999 and 2006 she worked at the School as an AEO. During the same period, the applicant worked at the School as a tutor assisting Ms Williams. 48A further witness, summoned by the applicant, was Ms Lesley Annis-Brown. Ms Annis-Brown is presently the AEO at the School, having replaced the applicant in that role in April 2010. Ms Annis-Brown did not attend in answer to a summons served on her on the grounds she was required to care for a sick child. A medical certificate was tendered to that effect. The applicant did not press the matter. 49In addition, an expert witness report of Dr Pat Cavanagh was admitted into evidence. Dr Cavanagh was required for cross-examination. 50In the course of the proceedings the applicant summonsed Mr Allan Hall to give evidence. Mr Hall was the convener of a three-person panel that interviewed applicants for the permanent position of AEO at the School in May 2010. The two applicants were Ms Brown and Ms Annis-Brown. As I have indicated, Ms Annis-Brown was successful in obtaining the position and Ms Brown was unsuccessful. Ms Brown 51The applicant recounted her employment history at the School. This included cleaning and secretarial tasks and also some work as a tutor. Her duties as a tutor required her to attend the school from 9:30 am to 1:15 pm, five days per week. Ms Brown said she was required to stay in the classroom and assist children who needed help. Children would indicate they needed help by putting their hand up. When she first started tutoring she assisted children in years 3 to 6. She later assisted with the children in Kindergarten to Year 2. 52At the time she commenced her temporary AEO employment in August 2006, the applicant was not aware that the AEO job description existed until about February 2010. The applicant had a conversation with Ms Coddington, in which Ms Coddington advised the applicant of her AEO duties: Q. Now, do you recall, Ms Brown, at paragraph 24 of that affidavit the following sentence occurs, "My duties as an AEO according to Margarete was to teach the children in kindergarten, grade 1 and grade 2." Do you recall that sentence? A. Yes. Q. Margarete is Margarete Coddington? A. Yes. Q. The principal? A. Yes. Q. When you say according to Margarete you were to teach the children in kindergarten, grade 1 and grade 2, the Little End, did you have a conversation with her about that topic? A. Yes. Q. When did this conversation occur? A. 2006 but I can't remember exactly like. Q. When you say the Little End, when you say the Little End which end, presumably you are talking about an end of the classroom, correct? A. Yes. Q. And what did you mean when you said the little end? A. Kindergarten to grade 2. Q. Is it the case the big end is 3 to 5? A. Yes. Q. Go back to that sentence for a moment. Did Ms Coddington actually use the word "teach"? A. Yes. Q. Okay. Can you tell his Honour to the best of your recollection what she said? A. She said, "Is it all right for you to teach K to 2?" And I said "yes". 53Ms Brown described her duties as an AEO. They included following the Teacher's Guidebooks, which contained the set curriculum for each subject. The applicant said she taught Maths and English (which included Spelling, Reading, Phonics/Letterland) and Writing using the Teacher's Guidebooks, as well as Sport and sometimes Art. 54Ms Brown said she had the children complete their work in workbooks, which were provided to each student for Maths and English. The children also all had small white boards, which allowed them to write things in non-permanent markers and scrub them off. The school got a smart board for Kindergarten, Year 1 and Year 2 in or about 2009. This enabled the applicant to play the Teacher's Guidebook discs on the smart board instead of writing everything on the blackboard. 55The applicant said she was also required to do playground duties, which mainly involved supervising the children during recess and lunch breaks. 56In her affidavits, Ms Brown described a typical day at the School: In the morning, I would sign a book kept upstairs in the office to record the time I started for the day. All staff had to do this before starting work for the day. Every morning, Margarete (or Ros, if Margarete wasn't there) would get the children together around the back and go for a walk or jog to the turnoff to the school. Some mornings they would play games (e.g, Red Rover) in addition to a walk or if it was too hot for a walk as it was always cooler around the side of the school. Some morning I would join in. Margarete would then mark the roll and ask the children questions about any news they had. I did class preparation and marked work during 9 and 10am or joined in the exercise and question time if I was free. I started teaching at about 10am each day. Maths Class Maths was the first subject taught for the day. I would go upstairs and get the 3 different levels of Maths Plus Teachers Guidebooks (for Kindergarten, Year 1 and Year 2) that I used to teach this subject. I would check the lesson for the day and set out any teaching aids needed. Example 1: I would get a ball for Kindergarten to teach them how to count the number of times the ball bounced. Cards - children will each get a card and have to match it with an object marked with the number on their card. Example 2: I would make little cards. I would write an equation on one card (e.g, 1 x 2) and the answer (e.g, = 2) on another card and put all the question in one pile and the answers in another. The children would pick a question card from one pile and try to find the answer in the answers pile. Whilst I was doing this, the children would go up to Margarete's end of the classroom and say their times tables in front of the whole classroom. Margarete would mark the children off when they said their times tables correctly. Children that were successful would choose another times table to learn. The unsuccessful students would continue learning the same times table. After times tables, I would take the Kindergarten, Year 1 and Year 2 students back to my end of the classroom and use the hundreds chart, which had numbers from 0 to 100. I would point to each number on the hundreds chart and get the children to say out loud as a group which number I was pointing to. I would then set exercises from the Maths Plus Teachers Guidebook, which required the children to complete exercises in their workbooks, and sometimes required them to participate in the practical exercises outlined in paragraph 49. Maths class would finish at about 11.00am. Recess Recess would begin at about 11.05am. I was required to supervise the children in the playground during recess with one other staff member, usually Margarete or Ros. At about 11.35pm, we would call the children in. At this time, the children would go to the toilet and brush their teeth. While they did these things, I would go upstairs and prepare for the next class, which was English. English Class English class started at about 11.45am. I used the Jolly Phonics/Letterland Teachers Guidebook to teach English to children in Kindergarten. I used the Reading to Learn Teachers Guidebook to teach English to children in Year 1 and Year 2. At the beginning of each class I would stand at the front of the Kindergarten, Year 1 and Year 2 children and point to letters of the alphabet on an alphabet chart. The children would sing out loud the ABC song as I pointed to the letters. We would read Johnson's sight words as a group. The Johnson's sight words were cards which words on them for children to learn from. The cards were marked different colours - green, purple, red and yellow. The colours would signify the difficulty of the words. I would ask the children to choose cards and say the words. If the Kindergarten children could correctly pronounce two words from the same colour, they would get to choose a new card of a different colour. If the Year 1 and Year 2 students could correctly pronounce three words from the same colour, they would move on to a different colour.... Once this was completed, I would set work for children in Year 1 and Year 2. This usually required them to write words written on the blackboard into their workbooks. (At the beginning of the week I would write about 8-10 words from the Reading to Learn book on the blackboard.) While the children in Year 1 and Year 2 were completing this task, I would take the Kindergarten children through sounds from the Jolly Phonics/Letterland Teachers Guidebooks. Later, Marg would pick a couple of short sentences from a story for the children in Kindergarten, Year 1 and Year 2. I would read the story to the children as a group. The children would then get into groups and write the sentences on cardboard strips, and I would write the sentences on the blackboard. The children and I would then discuss the sentence. I would ask the children questions like "Who is the person we are talking about?" and "Where did the story take place?" The children would highlight parts of the sentences in response to my questions. Lunch Lunch would begin at about 1.15pm. Lunch break would never be more than 30 minutes. It was Margarete's policy to only have a 30 minute lunch break so we could build extra time to have a long weekend every now and then. I was required to supervise the children in the playground during lunch with one other staff member, usually Margarete or Ros. When lunch ended at about 1:45, we would call the children in to brush their teeth and go to the toilet. Afternoon Class The afternoon class started at 2:00pm. I would normally read a book to the Kindergarten, Year 1 and Year 2 children and Margarete would do the same for the children in years 3, 4, 5 and 6. This was so the children could wind down after lunch. I would then teach the children HSIE. For the HSIE subject, Margarete would give me a folder at the beginning of the week which contained an information booklet about different topics of discussion, and which contained instructions about what to ask the children and activities to give them. I would ask the children questions about the topics of discussion. The children and I would brainstorm as a group and the children would often write answers to the questions on the blackboard. I taught this class to children in Kindergarten, Year 1 and Year 2. I would ask the children questions like "What kind of transport do you take to get to school?" and "If you want to go to America, how would you get there?" Many of the questions were travel and transport themed. Friday Sports The children would do sport on Friday between 2pm and 3pm. Margarete (or Ros) would be in charge of an activity and I would be in charge of another activity. Sometimes a tutor would be in charge of a third activity. Activities included cricket, basketball, running, long jump and other athletic activities and sports. We would rotate the children through the different activities so they all had a chance to have a go at each one. Sports class would finish at 3pm. The End of the Day At 3pm, Margarete (or Ros) and I would walk the children to the front gate and wait for the parents to pick their children up. When all the children had been picked up, I would sign off in a book kept upstairs in the office to record the time I finished for the day. All staff had to do this when finishing work for the day. Preparation of Homework and Assessments I would prepare homework whenever I had time on Monday or Tuesday for the children to complete and bring back on the following Friday or Monday. I would set homework using the Maths Plus books or Mentals Homework books or find something else similar in another book that I thought would help the children learn. When I set assessments, I would look what I had taught the children for the week from the Teachers Guidebooks and choose a selection of questions. I would prepare these during the Maths and English sessions on Fridays. I would grade the children's assessments with either A (achieving) or D (developing) or by giving a percentage. I would place their marked work into a folder which Margarete would look at when compiling the children's reports. 57Reference was made in the proceedings to Murdi Paaki reading, which was a project aimed at improving the literacy outcomes of Indigenous students. The applicant and Ms Coddington were formally trained to teach Murdi Paaki Reading to Learn classes in Bourke on 22-23 February, 2-3 May, 25-26 July and 31 October and 1 November 2007. Attendance at the Murdi Paaki training courses was not restricted to teachers. AEOs and tutors were also encouraged to attend. 58The relevance of the reference to Murdi Paaki reading was that the applicant claimed that in the absence of Ms Coddington she was the only employee trained to teach the Murdi Paaki Reading to Learn program. 59In 2008, the school went on an excursion to Jindabyne and Thredbo to see the snow. The applicant deposed that one afternoon, Ms Coddington's husband, Tony, came to the girls' room where the children were accommodated and stood in the doorway "semi-naked in front of the children, the applicant, her sister Michelle and Ms Coddington" and that Mr Coddington used "only a towel to cover his private parts." The applicant said the children "referred to Tony as 'big red underpants' as he often walked around wearing only speedos." Ms Brown said she had not seen Mr Coddington in underpants, but only with a towel wrapped around the lower half of his body. Nevertheless, she said she was offended by Mr Coddington's conduct. 60The applicant referred to another occasion during the excursion where she alleged Mr Coddington was "walking around semi-naked" with a towel wrapped around his lower half. Ms Brown said she lodged a written complaint with the respondent regarding Mr Coddington's conduct. 61Ms Brown said that she felt Ms Coddington "treated me differently when we returned from the excursion." However, it is to be noted that the applicant did not take the matter up with either Mr or Ms Coddington. It is also to be noted that the applicant's complaint was not made until 21 April 2010 and it is not apparent on the face of the letter of complaint who the complaint was directed to. No response was received regarding the complaint. Mr Paul Loxley, School Education Director for the Bourke Group of Schools, said he never received the complaint. 62In her complaint of 21 April 2010, which apparently Mr Tyson, the former Principal, helped the applicant to compose, the applicant accused Ms Coddington of harassing and bullying her. Under cross-examination, however, it seems to have been conceded by the applicant that the only two examples of bullying and/or harassment that had any substance were, firstly, when the applicant claimed that Ms Coddington raised her voice in a conversation that occurred in March 2010 concerning the applicant's future as an AEO (which I shall shortly deal with) and when Mr Coddington allegedly made fun of the applicant in connection with an incident I shall shortly describe regarding the applicant's consumption of noodles that were allegedly contaminated. 63The applicant referred to a further incident in late 2009 about which she filed a written complaint. The applicant complained that during a school excursion to Bathurst Ms Coddington left a tutor, the applicant and nine students "in Dubbo park on a really hot summers day while she took 1 student with her shopping. They were gone for two hours." This is dealt with later in relation to the evidence of Mr Loxley. Ms Brown said she felt that Ms Coddington was not happy with her for reporting this incident to the Department. 64Again, Ms Brown did not take up her concern with Ms Coddington at any stage and it was not until 9 March 2010, some three months after the excursion, that Ms Brown filed her complaint with Mr Loxley. 65Under cross-examination, it appears the nub of the applicant's concern was that Ms Coddington took one child with her whilst she went shopping and that she felt the policy was that at all times there needed to be two adults present when children were being supervised. Ms Brown conceded that her concern was not being left in the park on a hot summer day, that there was shade and cool water available and that she was able to supervise the children in the park with the assistance of Ms Annis-Brown, who was also present. 66Ms Brown referred to a contaminated water incident. She said she used contaminated water from the staff room tap to make coffee and pour on noodles. The applicant said the contaminated water made her sick, so much so that she was twice forced to go to the hospital for treatment. Ms Brown said that Mr Coddington made a joke about the contaminated water and the illness it caused her, which shocked and offended her. The applicant said she was upset that the students and parents were not told about the contaminated water in the School. However, it is quite clear that staff and children were advised about the water and it appears the applicant used the water notwithstanding she knew it may be contaminated. 67The applicant complained to the Department that in February 2010 Ms Coddington made errors in lodging payroll forms that resulted in the applicant not receiving any pay for a month. The applicant did not directly accuse Ms Coddington of making the errors deliberately (although this appears to be implied). However, it appears she was upset at not receiving her pay on time giving the need to meet her living expenses. 68In March 2010, Ms Brown said Ms Coddington advised her there would not be an AEO at the School next term. Ms Brown's affidavit evidence in this regard was as follows: In February 2010, at the start of the new school year, Margarete and I had a conversation about my employment in which words to the following effect were said: Margarete said: The AEO job will probably be advertised at the end of the term. In mid-February I went on long service leave, and at the same time we were evacuated from Weilmoringle to Dubbo because of flooding. Lesley Annis-Brown was appointed by Margarete to relieve me when I went on long service leave. Shortly before I was due to return from long service leave, I rang Margarete to tell her I had been evacuated from Weilmoringle to Dubbo because of flooding. During this telephone conversation, words to the following effect were said: I said: If I can't get back to work because of the floods will I still get paid? Margarete said: I will ring up the Department and find out. On 25 March 2010, Margarete telephoned me and we had a conversation in which words to the following effect were said: Margarete said: There isn't going to be an AEO next term. You finish on April 1 anyway. You can have a tutoring job if you want on a lot less money. I said: Because there will be no AEO does that mean I have been made redundant? Margarete said: I will not be having an AEO at the school next term, and if I get the permanent Principal's position I won't have an AEO at the school at all. If another person gets the job I don't know what they will do. I said: Who decided this? Margarete said: Me and the School Education Director Paul Loxley have decided this. According to the Department, I was actually meant to finish my temporary teaching engagement on 18 April 2010. After the conversation with Margarete, I rang the staffing section of the Department of Education and spoke to Annie Austin about what Margarete had told me. During this conversation, Annie said words to the following effect: Annie said: It is compulsory for Weilmoringle Public School to have an AEO. 69Ms Brown conceded that in her conversation with Ms Coddington she called the Principal an "arrogant pig". At the time, the applicant said she was under a lot of stress as she had been evacuated to Dubbo because of floodwaters, was living in emergency accommodation, and had just been told the AEO position at Weilmoringle Public School no longer existed and she did not have a job to go back to. 70Ms Brown complained to Mr Loxley regarding the circumstances relating to the termination of her employment. 71Ms Brown said that in May 2010 she submitted an application for the permanent AEO position at the School. In or around June 2010, interviews were held at the School for the position by a three-person interview panel. The panel was constituted by three persons: Paul Knight, a member of the Aboriginal Education Consultative Group, Allan Hall and Melissa Kirby an employee of the respondent. Ms Brown said she understood the interview panel was supposed to be constituted by six persons. 72In or about late June 2010, the applicant was advised she was unsuccessful. She learned that Lesley Annis-Brown was successful and that surprised her because Ms Annis-Brown only had about one year's experience as a tutor. In comparison, the applicant said: I had almost 4 years experience as an AEO, and under the Department's policy I was entitled to receive 18 months credit for every 50 days I worked under my temporary engagement. 73The applicant said she has not worked since February 2010. Further, that she had been diagnosed as suffering from a Major Depressive Disorder of which a substantial contributing factor was her experience at Weilmoringle Public School. Ms Brown referred to a report of Dr Stephen Allnutt, a psychiatrist, dated 14 April 2011. Dr Allnutt diagnosed Ms Brown as suffering from a Major Depressive Disorder. He noted that prior to March 2010 she denied suffering any significant psychological problems and there was no history of any psychiatric illnesses. He further noted the presence of some familial stresses. He felt that what had precipitated her depression were an incident in the workplace, her failure to obtain the AEO position and her "perception... that complaints were not taken seriously.., that she was treated unfairly..." Ms Williams 74Ms Williams, an aboriginal woman, was the partner of Mr Chris Tyson, who was the Principal of Weilmoringle Public School for about 11 years up to 2006. As noted earlier, Ms Williams was the AEO at the School between 1999 and 2006. 75Ms Williams' oral evidence was that Ms Brown assisted her as a tutor for kindergarten and years 1 and 2 in respect of literacy and numeracy. Ms Williams said that for about 70 per cent of the time between 1999 and 2006 she and Ms Brown worked "hand in hand" and "we basically ran the infants section under the supervision of the teacher who worked the primary section." Ms Williams said there was no difference between the work she undertook and the work performed by Ms Brown. 76Ms Williams described the layout of the classroom, which was split into "big end" (where years 3 to 6 were located) and "little end" (where kindergarten to year 2 were located). There was about 15 metres of open space (except for two book shelves about 1.2 metres high) separating the big end and the little end. The Principal teaching the "big end" could see Ms Williams and the tutor and vice versa. 77In explaining her role and that of Ms Brown, Ms Williams said in her oral evidence: [W]e would split in into our infants, primary end, sorry, the senior infants' end and then I would then work with the three different maths groups, we would prepare the work, set our examples, have a chat about this way, the best resources to use, organise those, bookwork. Q. So if I can ask you to pause again, you say book work and organise, so was there something else besides book work? A. Our hands on activities, our resources that we would use to teach the lesson . Q. Did you do that with Mrs Brown? A. Yes. Q. And did, at that stage, Mr Tyson involve himself in that or did he do something else? A. Because we worked in the maths books, we know what the next lot of work was to go on with so we pretty much organised that ourselves, where in doubt we always speak to Mr Tyson about it. ... Q. Now, when you were working with Ms Brown, can you just describe to his Honour, I mean, what was the approach you and her took. By that, I mean, as you were, did you do all the talking or was there interaction between you and her with the children? Can you tell us a little bit about how you interacted with the children? A. We would usually sit on the carpet, the children would sit on the carpet. First of all we would do K, 1 and 2 together, an example of the work that was going to be in their work books, we would then, previous to that we would have all their books ready, waiting to go from the floor back on the table. Q. Who would have arranged their books on the table? A. Gayle and I. Q. So? A. I would have done most of the examples on the carpet but Gayle would still be sitting with the infant's group. We did it that way because it gave the children that were more advanced the chance to be more advanced and to pick up on it. Q. So you said, I think that Gayle was sitting on the floor, she would sit on the floor with the infant's group? A. They would all be together on the floor, Gayle would be sitting on a chair where the whole group was, we didn't say Kinder, Year 1, Year 2 sit, they would be in a group on the floor. Gayle would usually put herself with the children somewhere, there thereabouts, and pass the resources over. We would show Kinder, then Year 1, then Year 2 because in their maths books, if they were doing measurement they were all doing measurement, if they were doing space they would all be doing space, some of the children who were advanced to pickup on other work. ... Q. Now then, what would happen in the afternoon when you have done numeracy and literacy in the morning, then there was lunch, you would do those tasks up until lunch, up until what time? A. I think it was 2, when lunch completed, then we had easy science. Word exercise, science, we may have had a sporting activity, may have had art, craft, which probably 95 per cent of the time we would all do those together, may not 95, may be 80 per cent of the time we would do that altogether as a whole group. Q. When you say altogether, as whole, are you talking about all of the K to 6? A. Yes. Q. So what was it again, altogether as a whole? A. Word exercise, science, art, craft or may be some sort of sporting activity, that was the majority of the time, the afternoon work. Q. What time did school finish? A. School finished at 3. 78Ms Williams described Ms Brown as "very confident, very caring, very efficient in what she did and there was never any doubt that she wasn't afraid to ask questions and find out about anything." Ms Williams said that both she and Ms Brown set homework for the children. Dr Cavanagh 79Dr Cavanagh provided an expert witness report. It was said his expertise derived from his extensive experience in Aboriginal education in New South Wales. Since 1982 this experience has included his employment as: ● an Education Officer and Senior Education Officer in the Aboriginal Education Unit of the NSW Department of Education from 1982-1984 and again from 1989-1993; ● the first Research Officer of the NSW Aboriginal Education Consultative Group (AECG) from 1984-1987; ● a teacher in Adult Aboriginal Education Programs in NSWTAFE in 1987-1988; ● a lecturer in Aboriginal History and/or Aboriginal Education at Macquarie University (1993-1998); the Australian Catholic University (2002-2009); and the University of Sydney (2010- 2012); and ● Senior Officer of the Walgett Community of Schools (1999-2002); ● a consultant and independent researcher since his retirement from full time academic work in 2009. 80Dr Cavanagh expressed the opinion that on the basis of the statements made in her affidavits, it was clear that Ms Brown quite often worked in a teacher's role, particularly in the teaching of English, Maths and Sport. He said Ms Brown also demonstrated her role as a teacher in setting and correcting homework, in the evaluation and assessing of student learning, and in classroom management and other in-school supervision of the students. However, she appeared to have worked more in the role of a "teacher's assistant" in the teaching of Human Society and Its Environment (HSIE), in the teaching of reading and in library classes that she supervised in conjunction with the Principal. 81In relation to Maths and English classes, Dr Cavanagh opined that planning by Ms Brown of daily work activities with reference to what she termed the "teachers' guidebooks" was significant evidence of her role as a teacher while employed at Weilmoringle. 82In relation to sports lessons, Dr Cavanagh said there is no evidence that any of these activities were planned or programmed by either Ms Brown, the Principal or others employed at the school in accordance with the Board of Studies Syllabus in Personal Development, Health and Physical Education. Dr Cavanagh said the activities mentioned in Ms Brown's description of this part of the school's curriculum, referred to in her affidavit as "Friday Sports", showed little or no awareness of the broader aims of the PDHPE Syllabus which schools are expected to implement. Dr Cavanagh stated: There is certainly no indication that these activities were based on a broad notion of health that encompasses all aspects of an individual's well being, inclusive of social, mental, physical and spiritual health... that will enable them to lead healthy and fulfilling lives and address the health priorities for young people of drug education, fitness and physical activity, child protection and nutrition. Instead these Friday afternoon sports sessions all appear to be related to various sports that were no doubt of considerable interest to the children (and their parents) in this isolated rural community. Most probably they also represented a relaxed and relatively easy way for both staff and students to wind down and end the school week (footnote omitted). 83In relation to HSIE lessons Dr Cavanagh stated that these appeared to have been a team teaching activity, but one for which the Principal clearly took most responsibility and in which Ms Brown was more in the role of assistant rather than in the lead role of teacher. 84Regarding art lessons, Dr Cavanagh considered that whilst the applicant was "quite unaware" of Syllabus and Education Act requirements and did not show any "deep awareness" of the educational rationale for the arts in the curriculum: [T]he fact that she was given responsibility for these areas of the curriculum with apparently very little guidance or instruction by the Principal suggests that, for whatever reason, those in positions of authority at the school at times allowed her to assume the role of teacher rather than guiding her in the role of teachers assistant . It is also noted that, on occasions, the Principal would leave all the children from K-6 with Ms Brown while she took the opportunity to complete administrative work. In leaving Ms Brown unsupervised it can only be assumed that she believed Ms Brown capable of conducting these classes alone or, in other words, that she could perform the major function of a trained teacher. 85In relation to other matters, Dr Cavanagh stated: Library Classes Despite deferring to the Principal in the reading segment of English lessons Ms Brown did assume the role of the teacher during at least some Library classes. She reports assisting students in the selection of books and sometimes reading to them as a group activity. Once again it is noted that the Principal at times allowed Ms Brown to conduct these classes on her own. Evaluation and Assessment of Students Ms Brown's statements that she monitored the children's progress through the setting of regular assignments and the marking and grading of assessment tasks are definite and significant evidence of her performing the role of a teacher. Student Management Ms Brown was clearly aware of a range of classroom management strategies and reports that she applied these various strategies without reference to the Principal. This again is indicative of her independently working in the role of a classroom teacher. Playground and Excursion Supervision Ms Brown reports being required to undertake playground supervision each day during recess and at lunchtime and, at least once when on an excursion, supervising students in a park in Dubbo. However, she notes that the daily playground supervision was done with either the Principal or the relief teacher also present on duty. It is therefore open to argument whether the school is complying with the AEO statement of duties in that she was being asked to assist teachers with Aboriginal students in all school activities including excursions or contravening the stipulation in that duty statement that the school must not require an Aboriginal Education Officer to accept responsibility for class management and control, playground supervision or teaching students. If the latter interpretation is valid then Ms Brown was, on the evidence provided in the affidavit, again being asked to fulfil the role of a teacher at the school. In the incident at Dubbo that she reports, Ms Brown was left to supervise the children in the park, albeit with another adult, presumably a parent, also present. In this situation Ms Brown is clearly given the responsibility of a teacher. 86Regarding Ms Brown's role in relation to the role of School Administrative and Support Staff, Dr Cavanagh was of the view that on many occasions the applicant was given and undertook responsibility for duties that are normally assigned to trained teachers. He said many of these duties clearly breached the stipulation in the AEO duty statement that "the school must not require an Aboriginal Education Officer to accept responsibility for class management and control, playground supervision or teaching students." 87Dr Cavanagh noted that Ms Brown was given and accepted major responsibility for: ● organising the daily activities of the K-2. ● the setting of assignments and the monitoring and assessment of the K-2 students. ● the selection and/or production of appropriate resources for use in the classroom including for the Murdi Paaki Reading Program designed to meet the needs of Aboriginal students. He said many of these "teaching" tasks were performed independent of the Principal while other duties were performed in a way that was consistent with good team-teaching or with support and guidance from the Principal that was consistent with what might be given to a beginning teacher. 88Dr Cavanagh referred to the significance of the classroom partition and stated that: The partitioning of the quite large classroom by bookshelves; the fact that each section of the classroom had its own whiteboard, desk and teaching aids; and the fact that the children in each section sat facing opposite ways, reinforces the suggestion that the responsible adult in each section of the room was I the role of an independent teacher with their particular group (footnote omitted). 89Dr Cavanagh referred to the main duties of an AEO and the main duties of a teacher. He accepted that the main duties of an AEO were as outlined in the departmental Statement of Duties. However, he said this statement was open to interpretation and, in practice, its application could vary from location to location depending on the relationships established between Principals, classroom teachers and AEOs. 90Dr Cavanagh's understanding of the main duties of a typical Primary School Teacher was: 1. Prepare a teaching program each term based on the Board of Studies Syllabus content requirements and specified outcomes for each Key Learning Area. 2. Prepare a Day Book (on a weekly basis) setting out teaching and learning activities for implementing the program. 3. Submit both Program and Day Book to immediate supervisor for checking, confirmation and advice. 4. Provide students with sequential lessons based on the relevant Syllabus, the teachers Program and the teacher's Day Book so as to meet relevant Syllabus outcomes. 5. Monitor and assess progress of students towards achieving school outcomes through a schedule of regular assignments and assessment tasks 6. Report regularly on the progress of each student to parents and care givers. 7. At all times ensure the safety and security of all students through the application of appropriate classroom management strategies and other procedures relating to child safety and protection. 91It was Dr Cavanagh's view that: [W]hile not actually herself preparing a Program or a formal Day Book, and possibly having little understanding of Syllabus requirements, Ms Brown nevertheless performed many of these teaching duties during her employment at Weilmoringle. In particular, on the evidence provided in her affidavit, she carried out the duties specified in points 2, 3, 4, 5 and 7, to a considerable extent unsupervised on a day to day basis. She also contributed to the preparation of reports on the progress of students (Point 6) though final responsibility for this appears to have been assumed by the Principal. 92In concluding his report Dr Cavanagh stated: The role performed by an AEO and their effectiveness in performing that role depends very much on the relationship between the AEO and the Principal or Teacher with whom the AEO is working and it is not uncommon for all parties in these relationships to not fully understand the role of the other. Thus, Principals or teachers with little understanding of the para professional role intended for AEOs, or little appreciation of the local cultural knowledge that the AEO can bring to the school and the classroom, sometimes undervalue the role of AEOs and use them mainly for administrative work or as aides in the behavioural management of difficult students. On the other hand, inexperienced teachers and Principals may also defer to an experienced AEO and allow them more control of classroom teaching than their training has prepared them for. AEOs can themselves make the same incorrect assumptions. Not understanding the para professional role intended for them they sometimes find that the carrying out of relatively simple administrative tasks or community liaison duties is an easy option. And even those who have a good relationship with their teachers and who may be quite skilled at assisting in the classroom do not always appreciate the additional work that teachers do in lesson preparation outside the classroom. Indeed, many experienced AEOs who undertake teacher training late in their careers are absolutely astounded by the workload outside of classroom hours that teachers must undertake. Clearly the relationship is one that is fraught with difficulties and the potential for cross cultural misunderstanding is great. Unfortunately, when the relationship breaks down, whatever the reason, the effectiveness of the AEO is undermined. 93In cross-examination, Dr Cavanagh agreed that formal teaching qualifications were extremely important. He further agreed that Ms Brown was not performing the role of a teacher to the extent she wrote a teaching program which was "one of the most onerous and important parts of a teacher's role." Dr Cavanagh said: I would not expect somebody like Ms Brown to write a program because she hasn't had that professional training.... she's quite capable of fulfilling the role in implementing the program, to some extent anyway, similar to the way a teacher does. 94Dr Cavanagh also said in cross-examination that there was considerable overlap between the role of a teacher and the role of an AEO, and it was not always black and white. Dr Cavanagh considered that in a school such as Weilmoringle, that overlap can be quite large at times. Further, the following exchange occurred with counsel for the respondent: Q. And that part of the position description which deals with the assistance provided to teachers by the AEO, would you agree, sir, that in a school such as Weilmoringle that may extend to, under supervision, limited implementation of the teaching program? A. Yes. I think in any school that happens with the AEO, and that's part of their role. Q. It is part of their role, and it has always been part of their role to a greater or lesser extent, hasn't it? A. Yeah, to assist teachers, yeah, but the role gets very blurred at times. 95Dr Cavanagh conceded that it was not physically impossible for the Principal to supervise the work of an AEO situated at the other end of the classroom at Weilmoringle. He stated that this type of collaboration and cooperation should be encouraged within a one-teacher school. 96I should observe that Dr Cavanagh had not seen the applicant performing duties at the School. He had visited the school sometime prior to 2006, but had not visited the school since that time. I should also observe that much of Dr Cavanagh's report was based upon what he had read in Ms Brown's affidavits and on assumptions about the way in which Ms Coddington allocated work to the applicant and the nature of the supervision provided by the Principal to the applicant. 97Thus, when Dr Cavanagh referred to responsibilities of the applicant his knowledge about that comes from the applicant and from assumptions he has made and he did not have the whole picture when compiling his report. 98Whether Ms Brown had responsibility for a particular activity is a matter for the Court to determine on the whole of the evidence. Allan Hall 99Mr Hall was a Senior Education Officer grade 2 connected to the Regional Aboriginal Team, Western Region. His duties were in connection with training and development for Aboriginal Education Officers. As I mentioned earlier, Mr Hall chaired the selection panel that chose Ms Annis-Brown to fill the role of permanent AEO at Weilmoringle in about June 2010. 100Mr Hall stated: Gayle [Ms Brown] had a great CV, which is why she got an interview. She also had good referees. She did not get the job because of her poor interview. A great CV gets you an interview - it doesn't get you the job. Mr Hall did not check the applicant's referees. Mr Hall called only one of Ms Annis-Brown's referees, Ms Coddington, who gave evidence that she would have supported Ms Annis-Brown's application. Mr Borham 101The applicant's solicitor on the record, Mr B Borham, gave some brief oral evidence concerning his interview with Mr Hall regarding the evidence Mr Hall was to give in the proceedings. The following question by the applicant's counsel and Mr Borham's answer regarding the interview of Ms Brown is relevant: Q. What did Mr Hall say about this particular interview...about the issue as to how the application was assessed in regard to the CV in the interview and the reference? A. Mr Hall said that a good CV and application will get you a job interview. After that point it is the interview and referee checks that count. For the respondent 102Three affidavits were read, one of Ms Coddington, an affidavit of Paul Loxley, and an affidavit of Diane Wasson, Director Human Resources Policy and Planning for the respondent. Ms Coddington and Mr Loxley were required for cross-examination. In addition, a report of Dr Bruce Westmore, forensic psychiatrist, was admitted into evidence. Ms Coddington 103The respondent employs Ms Coddington as the Principal of the School. She has held this position on a permanent basis since Term 1 in 2010. Up until then Ms Coddington had been employed on a temporary basis as Principal. Ms Coddington stated that an AEO has been employed at the school for over 15 years. In addition to a permanent AEO there was also currently a second teacher (Ms Ros Davis) employed at the school on a temporary basis. The second teacher has been at the school since April 2010. Currently one tutor is employed on a casual basis up to three days per week. 104It would appear that second teacher, employed on a part time basis, was funded by Commonwealth money allocated to schools within low socio-economic communities, the funding having become available in late 2010. The second teacher shares the teaching of all classes with the Principal. The AEO assists both the second teacher and the Principal. 105Ms Coddington described the duties of AEOs, that is, they may, with guidance, assist teachers in the following areas and ways: ● by involving parents and the community in school programs; ● in all school activities including excursions; ● with the progress of Aboriginal students; ● with the identification and development of resources to support programs for all students with particular reference to Aboriginal education; and ● in developing and implementing an appropriate curriculum for all students and specifically one which meets the needs of Aboriginal students. 106Ms Coddington stated that: In order to make the role of the AEO a rewarding experience for the students and the AEO my practice has been that I encourage AEOs to work on areas/topics in the curriculum in which they express and/or show a particular interest and/or skill in. I develop and devise work programs which address their individual interests. I followed this practice during the time that the Applicant was employed at the school as an AEO. The applicant showed an interest in the development of resources for learning activities in literacy and numeracy as well as implementing strategies acquired during the Reading to Learn workshops. 107Ms Coddington explained that from 2006 the applicant was employed as an AEO on a temporary basis. The applicant was appointed on a temporary basis because the school already had a permanent AEO, Ms Williams. Ms Williams took extended leave and until such time that Ms Williams relinquished her permanent AEO position that position could not be advertised. Ms Williams relinquished her position on or about 28 July 2009, but due to staff freezes at the time Ms Coddington was unable to advertise the position. She was advised at the end of March 2010 that she had approval to advertise the AEO position. However, a decision was made to defer advertising the AEO position until a permanent Principal was appointed, as the permanent Principal's position had also become vacant. Ms Coddington successfully competed for the Principal's position and was appointed on or about mid-April 2010. 108Ms Coddington said she explained to the applicant that the permanent AEO position would not be advertised until the Principal's position was filled. She also explained that the applicant's temporary appointment which was coming to an end in April 2010, but that it would not be extended because the respondent was close to advertising the permanent AEO position. Ms Coddington offered the applicant casual employment as a Tutor at the school until the finalisation of the proposed AEO and Principal recruitment action, but the offer was declined. 109Ms Coddington deposed that in March 2010 she became aware of some complaints made about her by the applicant. As a result of this she did not have any involvement in the recruitment action for the permanent AEO position at the school, although Ms Coddington accepted in cross-examination that she provided a reference for Ms Annis-Brown, which was relied on by the interview panel in awarding the AEO position to Ms Annis-Brown. Ms Coddington could not recall providing Ms Brown with a reference and believed no request was made of her in that regard. Ms Coddington stated that at no stage of the selection process did she discuss the recruitment of the permanent AEO with the convenor or any other member of the selection panel, nor did she indicate any preference as to applicants for the position to any member of the panel. 110In referring to the applicant's duties as an AEO, Ms Coddington said the applicant was not responsible for supervision, the delivery or planning of the school curriculum and/or managing teaching objectives. She said she regularly asked the applicant to carry out literacy and/or numeracy tasks with the Kindergarten to Year 2 students. The applicant was always either provided with these tasks or shown where they could be copied or taken from (that is from parts of text books or work books). Ms Coddington said she was generally always in the classroom attending to the older students when the applicant was with the younger students. This allowed her to supervise the applicant. 111Ms Coddington stated: The applicant enjoyed her work and showed initiative with the allocated tasks. However, around the beginning of 2009 I noticed a change in the applicant's behaviour and her enthusiasm at school began to noticeably decrease. The applicant was not as keen about being at school and would spend the majority of her recess/lunch breaks outside of the school. I spoke to her about this at the start of Term 1 in 2009. She would frequently refuse to meet with me to have discussions about work unless her partner was present. Her absenteeism also increased around this time. During her time as AEO at the school the applicant was never required or responsible for planning or devising teaching programs nor was she responsible for student management. Such responsibilities are related to the role and obligations of being a teacher. At the end of each school day I would review student work marked by the applicant so that I could then address any learning difficulties I noticed. 112In responding to evidence of the applicant, Ms Coddington said that: ● Tthe suggestion that the applicant was "teaching" in a professional sense was incorrect. The applicant was assisting Ms Coddington in carrying out her teaching responsibilities and obligations. Ms Coddington was responsible for teaching the students. The applicant assisted her in carrying out this responsibility; ● Tasks for Kindergarten to Year 2 referred to by the applicant were planned, programmed and supervised by Ms Coddington. The applicant was provided with the resources and framework allowing her to assist Ms Coddington in the delivery of these tasks; ● The applicant preferred not to be involved in the sports lessons and as such Ms Coddington would not force her to be involved; ● The applicant would ordinarily sign off at 3.00 pm and leave soon thereafter. She would not wait for the students to be picked up by their parents. This was not her responsibility; . ● Any preparation for homework was completed by the applicant under Ms Coddington's supervision and guidance. The applicant was not required to devise or set homework but did assist by photocopying tasks that appeared in guidebooks, for example extracting spelling lists or numeracy sets from books. Ms Coddington was responsible for the assessment of the students. Ms Coddington would review all students' work on a daily basis after school in the afternoon after everyone had left. She would identify deficiencies and determine whether concepts and/or lessons needed to be re-visited; ● In respect of the Thredbo School excursion: I refute the suggestion that my husband only had a towel covering him. My husband would walk to the showers early in the morning before the majority of students had woken with a towel wrapped around him but he would wear underpants under the towel. As soon as my husband and I became aware of the applicant's and her sister's concerns my husband would be fully clothed when walking to the showers. I never heard the children refer to my husband as "big red underpants". I find this extraordinary because at no time did he walk around in red speedos. My husband does not own red speedos. ● In respect of the Bathurst School excursion: I deny that I simply announced to the applicant and Ms Annis-Brown that I was going to go shopping to buy costumes for the Christmas play when we had reached Dubbo on our way back to Weilmoringle from Bathurst during the 2009 Bathurst school excursion. Instead I consulted both of them and canvassed the idea about me going to buy the costumes before deciding that I would go. Given our remote location in Weilmoringle the selection of stores in Weilmoringle is non-existent. Therefore, I wanted to take advantage of where we were and shop for costumes for the students to use at Christmas. At no stage did either the applicant or Ms Annis-Brown state that they did not want me to go. Had either the applicant or Ms Annis-Brown said that they were not happy about me going I would not have gone. I was the only one who could drive the hired bus so it made sense that I should go. The park in Dubbo had a fountain, many trees and lots of shady areas. Prior to leaving I bought a bag of ice so that the water in the ice cooler was chilled as well buying KFC for everybody. I did all that I could to make sure the students, the applicant and Ms Annis-Brown were comfortable while I was gone. There were 8 students on this excursion. The toilets were not far from where the group were and as such I cannot understand why the applicant could not go to the toilet as Ms Annis-Brown was also present. I also recall that on that day the applicant had only 1 student she was taking care of and the rest were in Ms Annis-Brown's care as she was related to those students. In total I was gone for approximately 90 minutes. I deny that I treated the applicant different after the excursion. The applicant made a complaint to Paul Loxley School Education Director about this incident on 9 March 2010 whilst she was on a period of extended leave. ● In respect of the contaminated water issue, took action to deal with the smell and this was rectified. With respect to the direction by the respondent that water from the water tanks could not be drunk, the water bubblers were disconnected and a water station installed instead. Soon after the directive was issued Departmental personnel attended the school and placed signs on the water tank warning people that the water was not for consumption. After the directive signs were placed reminding people about the risk of drinking the rainwater in the staff kitchen. Ms Coddington used the rainwater in the staff kitchen to wash up dishes and made her own coffee with it. At no time was the applicant forced to use that water, as there was always water stations available; ● The matter concerning the delay in the applicant's pay was the result of an inadvertent administrative error not a deliberate act to cause delay. 113As to allegations by the applicant that she was bullied, Ms Coddington denied any bullying. As to the leave issue raised by the applicant, Ms Coddington said the leave was taken as long service leave without any mention of or reference to "stress" in the relevant leave application. This was leave taken after seven weeks' holidays and only two weeks into Term 1. Ms Coddington said the applicant gave her less than two weeks' notice of this leave. Further, that: The applicant actually wanted to start her leave within a week of mentioning it to me but I asked her to work for a few more days to give me time to re-organise programs etc. I deny that I called her and asked her to come to the school during her leave, this is something I would not do. 114As to the allegation that P & C meetings were conducted in an illegal manner, Ms Coddington denied this was so. Ms Coddington said records of meetings were prepared and kept. She said the applicant and her partner attended very few meetings. Her recollection was that they only attended one or two meetings. Mr Loxley 115Mr Loxley gave evidence regarding his investigation of the applicant's complaint dated 9 March 2010 that Ms Coddington had required the applicant to undertake teaching duties and that Ms Coddington had: [L]eft a tutor and myself and 9 students in Dubbo park on a really hot summers day while she took 1 student with her shopping. They were gone for two hours. 116Mr Loxley responded to the complaint in a letter dated 15 March 2010, in which he stated: ● he understood the complaint to concern the Dubbo park incident; ● a copy of the applicant's complaint was provided to Ms Coddington who was requested to respond within 10 working days; ● confidentiality would be maintained. 117On 23 March 2010, Mr Loxley wrote to the applicant stating: ● he had received a response from Ms Coddington regarding the applicant's complaint about the Dubbo park incident; ● he had made the following determinations having regard to the respondent's Complaint Handling Policy Guidelines: * Margrete had received consent from yourself and tutor to supervise the children while she did some shopping for the end of year Christmas play costumes. Margrete understands she shouldn't have left you and the tutor to supervise the students; however she felt comfortable that you were reliable and capable in looking after the children. * Margrete felt it would have been unreasonable to drag the children around the shops while they could be playing in the park on the swings and water feature. * feel that Margrete's actions on this occasion were warranted and acted in the best interest of the children and staff at Weilmoringle Public School. ● all aspects of Ms Brown's complaints were unsubstantiated and the matter was finalised. 118Mr Loxley said that, although he advised Ms Coddington of Ms Brown's complaint and sought her response, he did not advise Ms Brown of his findings regarding that part of Ms Brown's complaint that Ms Coddington had required the applicant to undertake teaching duties. Mr Loxley could not explain why he did not do so. 119On 23 April 2010, Mr Loxley received a further complaint from the applicant regarding her failure to be re-appointed to the position of AEO at the School. Ms Brown indicated in her complaint that she believed this was because she had made a complaint against the Principal. Ms Brown also indicated that she felt bullied and harassed "because I have had the guts to inform you of the misconduct of the principal". Ms Brown said the issue was placing a lot of stress and hardship on her. 120In response to this complaint Mr Loxley made inquiries as to whether any monies were owed to the applicant. He also telephoned the applicant and spoke with her and her partner twice regarding the AEO position. However, it does not appear that Mr Loxley made any attempt to investigate serious allegations of harassment and bullying by Ms Coddington. No explanation was given for this failure. Ms Wasson 121Ms Wasson provided a history of the development of the role of Aboriginal Education Assistants who became known as AEOs in 2008 following a review of Aboriginal education. Ms Wasson also provided information about the recruitment process applying to AEOs and about the process of AEOs being trained to become teachers. Up until 2010 the number of Aboriginal people who have been appointed after receiving a teacher education scholarship is 153. 122Ms Wasson provided a role statement for AEOs. An AEO's statement of duties provides: ● Responsible to the Principal or delegate for providing assistance to teachers, Aboriginal students and their families to support improved learning outcomes for Aboriginal students. ● Working with teachers: - to assist Aboriginal students in all school activities including excursions; - to discuss with Aboriginal parents the educational progress of their children; - to identify and develop resources to support the learning outcomes of Aboriginal students; - to assist in the development and implementation of personalised learning plans for Aboriginal students; - to support Aboriginal cultural awareness for all students with particular reference to Aboriginal students; - to help maintain effective relationships between Aboriginal parents, the Aboriginal community and school staff. ● Working as part of a school team to support students: - in relation to their school participation and programs; - in relation to their attendance and retention. ● Liaising with the Principal and staff: on protocols for interacting with the Aboriginal community in relation to staff and Aboriginal students in the school and Aboriginal education activities. Other Duties Performing other related duties as required by the Principal. Note: The school must not require an Aboriginal Education Officer to accept responsibility for class management and control, playground supervision or teaching students. Dr Westmore 123Dr Westmore examined Ms Brown on 30 October 2012. Having recorded his observations, Dr Westmore proffered the following opinion in his written report tabled in evidence: Ms Brown is a 40 year old woman who was born the 5th of 8 children. She describes a generally happy early family life and she indicated she had not been the victim of violence or other abuses. Her educational and occupational history has been noted in the body of this report. Ms Brown was unaware of any family history of psychiatric problems and she does not report any past personal history of suffering any significant psychiatric or psychological difficulties. She indicated that she had experienced a number of situations in the workplace which caused her distress. She made complaints about these various difficulties, but she indicated that she feels that she was not believed and that appropriate action was not taken. Adding to her stress was her failure to obtain an AEO position and while she was taking long service leave, her local town was flooded and she needed to be evacuated. On specific questioning, Ms Brown indicated that she took long service leave because she was at that time suffering psychological and psychiatric problems. She confirmed that the stress associated with the floods and evacuation aggravated her depressed mood. Ms Brown describes a number of discrete symptoms, including a depressed mood and she demonstrated emotional lability (tearfulness). She describes disturbances in biological functions, including poor sleep initiation and early morning wakening. She has experienced weight gain and she has had a loss of energy. She denies any thoughts of self−harm, but said she had become more irritable. Relationships with her siblings have deteriorated. She has had some counselling and her general practitioner treated her with Zoloft. She was on that medication for a few months. She was not certain whether it assisted her, but she said she did not like taking tablets. I have noted some impairment in her day to day activities. She is less attentive to her personal hygiene, her social and recreational activities are restricted and she feels more comfortable at home. Her irritability is impacting on her relationships with her family and with her partner. She has problems with concentration. I agreed with the conclusions reached by Dr Allnutt in his report, 18 April 2011. Her history and clinical presentation are consistent with the diagnosis of a Major Depressive Disorder. She requires 10 to 12 sessions with a psychiatrist over the next 12 months. She should be retrialled with antidepressants. I have read the Expert Witness Code of Conduct within the said rules and agree to be bound by it. Legislation 124The legislation applicable to the applicant's claim is s 105 and s 106 of the Act: 105 Definitions (1) In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. (2) A contract is not an unfair contract for the purposes of this Part merely because of any provision in the contract that gives effect to a policy that is declared under section 146C. (3) A contract relating to the employment of a police officer is not an unfair contract for the purposes of this Part merely because of a matter relating to payments of a kind to which section 146D applies. 106 Power of Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (2A) A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as: (a) the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and (b) the performance of work is a significant purpose of contractual arrangements made by the person. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. (6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss Consideration 125The applicant sought, inter alia, an order declaring that the contract or arrangement whereby the applicant worked for the respondent variously as cleaner, secretary, tutor and AEO between 1997 and 2010 was an unfair contract within the meaning of s 105 of the Act. 126The "contract or arrangement" referred to in the further amended summons for relief was specified in the applicant's submissions as being "the temporary employment contracts she entered into with the respondent between 2 August 2006 and 18 April 2010". The reference to temporary contracts arises from the fact that the applicant's employment was governed by the Education (School Administrative and Support Staff) Act, which provides in s 21: 21 Employment of temporary employees (1) The Director-General may appoint persons to be employed in the service of the Crown on a temporary basis as members of the school administrative and support staff of the Department in any classification. (2) A temporary employee may be employed for a period not exceeding 4 months, but may, from time to time, be employed at the end of that period or any subsequent period for a further period not exceeding 4 months. (3) A person may not be employed under this section for: (a) a continuous period of 12 months, or (b) 2 or more periods that together are in excess of 12 months in any period of 2 years, except with the concurrence of the Minister. (4) The services of a temporary employee may be dispensed with at any time by the Director-General. 127The relevant contract in my view is the last of the temporary contracts between the applicant and the respondent, which was terminated on 18 April 2010. 128I earlier identified three limbs to the applicant's unfair contentions. The first limb concerned the unfairness of the contract that led to the applicant's failure to secure the permanent position of AEO at the School, notwithstanding that she had fulfilled that role satisfactorily for the previous four years and had an expectation of being permanently employed. The second limb involved the contention that Ms Brown was required to undertake and did undertake the work of a teacher contrary to her job description as an AEO. The third limb was that although the applicant performed the work of a teacher, she was paid less than that prescribed for the work of a teacher under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award. 129I deal below with each of these limbs of the applicant's case. First limb 130The first aspect of this limb of the applicant's unfairness contentions was that the contract did not contain a term that any complaint made by the applicant in regard to her role would not prejudice her application for the position of AEO. In the absence of this term it permitted the respondent to regard the making of complaints as counting against the applicant in what was an unfair selection process that resulted in the applicant failing to gain the permanent AEO position. 131The applicant's case theory was that because of various complaints the applicant had made against Ms Coddington, Ms Coddington developed a grudge against the applicant. The temporary contract expiring in April 2010 provided the opportunity for Ms Coddington, aided however benignly by Mr Loxley, to get rid of the applicant. In the absence of any term in the contract protecting Ms Brown from being prejudiced, Ms Coddington was able to pursue a strategy through what was described as a "dubious recruitment process" whereby the applicant failed to be selected for the permanent AEO position. 132According to the applicant the first indication of Ms Coddington's intention to get rid of her was that in February 2010, Ms Coddington notified the applicant that the permanent AEO position would probably be advertised at the end of the term. The applicant submitted that presumably in anticipation of the impending changes to the applicant's employment, on 11-12 February and 18-19 March 2010 Mrs Coddington sent Ms Davis to Bourke to be trained in the Murdi Paaki Reading to Learn program. 133I understand that Ms Davis worked as a casual teacher at the School prior to May 2010 and acted as relieving Principal prior to 2010. There is insufficient evidence to conclude that Ms Davis was provided with Murdi Paaki training in February and March 2010 because Ms Coddington had at that stage decided to dispense with Ms Brown. The training may well have been provided simply as part of a normal requirement that a relieving teacher undertook such training. 134The applicant then submitted that on 17 February 2010, she commenced long service leave and on the same day Ms Annis-Brown assumed the position of temporary AEO. 135Next, it was submitted that in about February or March 2010, while the applicant was on long service leave, Mrs Coddington compiled a contemporaneous note about the applicant, which included details of her teaching and supervising activities and personal and professional issues Mrs Coddington had with the applicant, including criticisms of the applicant and a note which asked: Temp engagement ends this term - do I have to employ her or not.... 136Next, the applicant stated that on 9 March 2010 she submitted a written complaint to Mr Loxley about the Bathurst excursion and the fact she was required to perform the role of a teacher. Mr Loxley found the complaint against Ms Coddington was unsubstantiated. However, Mr Loxley did not respond to the complaint about the applicant performing the work of a teacher and could not explain in cross-examination why he failed to do that. 137Next, the applicant submitted that on 25 March 2010, shortly after Mr Loxley had investigated and responded to the applicant's complaints of 9 March 2010, Ms Coddington telephoned her and informed the applicant that there would be no AEO at the School in Term 2 and that as a consequence the applicant's temporary AEO contract would not be renewed. It was submitted the applicant's recollection of this conversation was clear and that both the applicant and Ms Coddington recalled some animosity in the conversation, which reinforced that Ms Coddington had, indeed, told the applicant upsetting news (i.e., that she no longer had her AEO job). 138The applicant noted that on 19 April 2010, her temporary employment contract ceased being renewed, "without reason, after having performed the AEO role for about 4 years." 139On 21 and 23 April 2010 the applicant contended she made two further written complaints to Mr Loxley. The first complained that she had been bullied by Ms Coddington, that she had been advised her services were no longer required and this had occurred because of complaints she had made to Mr Loxley regarding Ms Coddington, that she was required to undertake teaching tasks and questioned whether this was part of the role of an AEO, that Ms Coddington had caused the applicant's pay in February 2010 to be delayed by one month, that Ms Coddington had mishandled the contaminated water issue and as a consequence the applicant fell ill, that Ms Coddington had used the derogatory word "camp" to refer to the aboriginal community at Weilmoringle, that Ms Coddington authorised the payment of $7,000 for a school sign that could have been done at less cost in the community, that P&C meetings were always run illegally by Ms Coddington, that at the Thredbo excursion in 2008, Mr Coddington was "parading around the camping area with only a pair of speedos on". 140There was no indication on the letter of complaint of 21 April 2010 as to whom the complaint was sent. Mr Loxley said he never received the complaint and, therefore, did not reply to it. The complaint of 23 April 2010 was marked for the attention of Mr Loxley. However, Mr Loxley said he never received the complaint. In the complaint the applicant sought confirmation of Ms Coddington's advice that a decision had been taken not to renew her contract and felt that the reason for this was her complaint against Ms Coddington on 9 March 2010. The applicant stated that she had been bullied and harassed by Ms Coddington because she "had the guts" to inform Mr Loxley of Ms Coddington's misconduct. The applicant indicated the issue was placing a lot of stress and hardship on her. 141 Next, the applicant observed that in May 2010, the permanent AEO position was advertised. The applicant and Ms Annis-Brown were the only applicants for the permanent AEO position. In June 2010, the applicant was notified that she was unsuccessful in securing the permanent AEO position at the School. On 6 September 2010, Ms Annis-Brown was notified that she was the successful applicant for the permanent AEO position. 142The applicant addressed the timing of her replacement. She observed that her temporary employment contract ceased being renewed on 18 April 2010, a month prior to the permanent AEO position being advertised, two months prior to the interviews being conducted, two months prior to the permanent appointee being decided upon, and five months prior to Ms Annis-Brown being awarded the permanent AEO position. It appears that from April 2010 Ms Davis commenced regular employment as a second teacher and no AEO was employed until Ms Annis-Brown took up her appointment in September 2010. 143It was the applicant's contention that as there was no logical reason given as to why Ms Coddington did not require an AEO in Term 2 of 2010 (noting that Ms Davis continues to be employed at the School, Ms Annis-Brown took up her appointment in September 2010 and there was no material change in student numbers) the inference is open to be made that Ms Coddington wanted to get rid of Ms Brown as soon as possible because of grudges Ms Coddington held against Ms Brown owing to the latter's complaints against Ms Coddington. 144It was further submitted for the applicant that in providing a reference for and generally supporting Ms Annis-Brown in her application for the permanent AEO position, Ms Coddington was involved in the selection process. It was submitted it could reasonably be assumed that Ms Annis-Brown's role between April and June 2010 was that of temporary AEO, not community tutor, and that Ms Coddington wanted Ms Annis-Brown to secure the permanent AEO position. 145In relation to the interview and selection process, which the applicant described as "dubious", it was submitted that Mr Hall participated in AEO workshops with the applicant as part of her AEO employment, but there was no evidence that Mr Hall took into account his prior dealings with the applicant in assessing her suitability for the permanent AEO position. Mr Hall's evidence was that the applicant's experience was not taken into consideration after the application was assessed. Moreover, Mr Hall did not check the applicant's referees but did check that of Ms Annis-Brown, namely, Ms Coddington. 146It was further submitted for the applicant that whilst Ms Coddington recused herself from the selection panel, she chose the person who replaced her on the permanent AEO panel, Mr Hall, and supported Ms Annis-Brown's application to the exclusion of the applicant. Consideration 147Any finding of unfairness must relate to the contract or arrangement and not the conduct of the parties. In other words, whilst conduct may be unfair, in order to find unfairness under s 105 and s 106 of the Act the unfair conduct must render the contract or arrangement unfair: see Sydney Water Corporation Ltd v Industrial Relations Commission of NSW [2004] NSWCA 436; (2004) 61 NSWLR 661 at [25] and [47]. 148The effect of Sydney Water was explained by the Full Bench in Bowman v Ricegrowers Limited (formerly Ricegrowers' Co-operative Limited) [2007] NSWIRComm 204; (2007) 167 IR 325 at [66]-[70] and [72]: [66] ... Mason P found, in conformity with longstanding authority, that the availability of an action for breach of contract did not preclude relief under s 106 (at [31]); that remedies under s 106(3) and (5) were available even though applied after termination and/or against a party to the contract who has acted in breach or repudiation of its terms (at [28]); and that unfairness, for the purposes of s 106, may stem from what the contract failed to provide, for example as regards termination procedures (at [25]). Thus, a contract may be found to be unfair because it permits termination that is unfair and discriminatory (at [32] and see Walker v Industrial Court of NSW (1994) 53 121 at 149). In such cases, no remedies are available in the general law for breach of contract. [67] Again, in conformity with longstanding authority, in Sydney Water the Court of Appeal also held that the Commission may examine not merely the contract (or arrangement) as originally negotiated, but also the manner in which it worked out and operated between the parties to it (at [26]). The remedies granted by the Commission may include the payment of monies under a contract reformulated by the Commission (at [28]), although all remedies must stem from a finding that the contract (or arrangement) is or has become relevantly unfair (at [29]). [68] However, Mason P (with whom McColl JA agreed in this respect, but not Hodgson JA) found that he was: ...unable to conceive how a contract allows or fails to prevent conduct that is in contravention or fundamental breach thereof, whether or not that contract is unfair. To be contravening or repudiatory the conduct must be in defiance of the contract exposing the party at fault to a range of adverse consequences under the general law (at [35]). [69] His Honour had less difficulty in concluding that the Commission had jurisdiction to deal with a contract that failed to make appropriate provisions for addressing the consequences of conduct that was, or was arguably, in breach (at [36]), provided the Commission was able to conclude that the remedies of the general law were "unfairly deficient" in their application to the contract. [70] Mason P found that even though s 106 was not excluded merely because a party was in breach of contract, it did not follow that "the contract of employment is unfair because or whenever it leaves the employee to remedies under the general law" (at [40]). However, his Honour concluded (at [42]): On the other hand, one can envisage arguments about the unfairness of non-statutory employment law that permits dismissal without procedural fairness or that enables the "innocent" party to be discharged from future performance entirely in certain circumstances. From this standpoint, the idea that the Commission could find a particular contract of employment unfair because it did not contain a positive regime of fair investigation pre-dismissal becomes less problematic, with the consequence that it is easier to envisage that Parliament may have committed such inquiry to the Commission by s 106. ... [72] It follows in our view, that the decision in Sydney Water is not of assistance to the respondent in these proceedings. The mere fact that the respondent may be in breach of the contract for summarily dismissing the appellant in circumstances where the contract provided for one month's notice does not, of itself, exclude the jurisdiction of the Commission. Where the express provision of the contract providing for notice was unfair in consequence of its own terms or because of the way the contract worked out, having regard, inter alia, to Mr Bowman's length of service with Ricegrowers, his seniority, experience, level of remuneration, personal circumstances or his contribution to the employer's business, then the contract may be reformulated so as to make the provision for notice fair, even though Ricegrowers may be in breach of the provisions of the contract regarding notice. Thus, a contract may 'permit' - in the sense used by Sheller JA (with which Meagher JA agreed) in Walker - certain conduct by expressly sanctioning it (see Sydney Water at [33]) and such conduct may be found to be unfair. In the present case, the contract provided for one month's notice of termination irrespective of the circumstances of Mr Bowman's employment at termination that, as a matter of fairness, required a period of notice of longer duration. Having found unfairness the Court may then assess compensation under s 106(5). 149In relation to the first aspect of the first limb of the applicant's contentions, the applicant's case was that in the absence of a term in the contract that any complaint made by the applicant in regard to her role would not prejudice her application for the position of AEO, it permitted the respondent to regard the making of complaints as counting against the applicant in what was an unfair selection process that resulted in the applicant failing to gain the permanent AEO position. That rendered the contract unfair. 150There are very real concerns about the events that led up to the decision by Ms Coddington not to renew Ms Brown's employment contract in April 2010 and about the interview and selection process itself: (a) Ms Coddington advised Ms Brown in February 2010 that the permanent AEO position would probably be advertised at the end of the term. Nothing was said at that stage about not renewing Ms Brown's employment contract; (b) in about February or March 2010, while the applicant was on long service leave, Mrs Coddington compiled a contemporaneous handwritten note about the applicant, which included personal and professional issues Mrs Coddington had with the applicant, including criticisms of the applicant, for example, "long breaks outside school", "dobbed me in about furniture twice!", can't look you in the eye when talking", "Wants Les [Ms Brown's partner] at all meetings!!", "Intimidated Lesley while I was at Principal's Conference...", "no enthusiasm at work" and noted that Ms Brown's temporary employment would finish at the end of Term 1. The note asked rhetorically whether Ms Coddington had to employ the applicant; (c) Ms Brown filed a complaint against Ms Coddington on 9 March 2010. Ms Coddington became aware of the complaint via Mr Loxley before 25 March 2010. This is inconsistent with Ms Coddington's evidence that she became aware of complaints against her after 25 March 2010. On that date, when Ms Brown was still absent from work because of floods in the area, Ms Coddington had a telephone conversation with Ms Brown. Even on Ms Coddington's version of the conversation Ms Brown was advised that the permanent AEO position would not be advertised until the Principal's position was filled and that the applicant's temporary appointment, which was coming to an end in April 2010, would not be extended because "we were" close to advertising the permanent AEO position; (d) Ms Coddington was appointed to the Principal's position in mid-April 2010; (e) the AEO position was advertised in May 2010. The applicant and Ms Annis-Brown were the only applicants for the position. In June 2010, the applicant was notified that she was unsuccessful in securing the permanent AEO position at the School; (f) Ms Coddington did not sit on the selection panel and maintained she did not discuss the candidates with anyone on the selection panel, but I note she asked Mr Hall to perform the convenor role; (g) according to the evidence of Mr Hall and Mr Borham's evidence regarding what Mr Hall had told him, Ms Brown was not impressive at the interview; Ms Brown did not get the job because of her "poor interview". Ms Brown's experience and her four years' good performance in the role was not taken into account at all, which, in my opinion, was a major flaw in the interview process. Regardless of whether Ms Brown nominated a referee, the question of her experience, performance and time in the role, all of which were very much in favour of her being selected, should have been followed up by the selection panel. Ms Annis-Brown did nominate a referee, Ms Coddington, who offered strong support for Ms Annis-Brown's application notwithstanding that Ms Annis-Brown's experience in the role of AEO was very much less than that of the applicant; (h) the interview and selection process disadvantaged Ms Brown; (i) Ms Brown was advised in June 2010 that she was unsuccessful. Presumably at about the same time Ms Annis-Brown was advised she had been successful. However, Ms Annis-Brown did not take up her appointment until September 2010. This is consistent with Ms Brown's evidence that on 25 March 2010 Ms Coddington told her "There isn't going to be an AEO next term." The reason for not having an AEO in second term was not explained. It could not have been because of a drop in student numbers. Nor could it have been because Ms Davis commenced as a second teacher in April 2010, as Ms Davis continued to be employed in that role after Ms Annis-Brown was appointed to the permanent AEO position in September 2010; (j) on 3 June 2013, the final day of the hearing of the evidence, the respondent produced four pages of the recruitment file for the permanent AEO position. The applicant had first requested the recruitment file on 14 September 2011 under the Notice to Produce of that date and again under the Summons to Produce filed 16 November 2011. The notes taken by Mr Hall and other members of the selection panel recorded during the interviews of Ms Annis-Brown and the applicant were not produced by the respondent, nor were the application documents and other documents one might expect to find in recruitment files. The only explanation for not producing the whole file was that it was not in the respondent's possession or control at the time. That is difficult to accept given that it is most likely the respondent had an entitlement to control of the file and, therefore, an entitlement to possession and custody of the file. No explanation was given as to why, after so long, only part of the recruitment file could be produced. All this adds to the Court's concern about the validity, transparency and fairness of the interview and selection process. 151There are some countervailing considerations to the foregoing. First, there is Ms Coddington's evidence that it was not her intention to get rid of Ms Brown. In light of Ms Williams having relinquished the permanent AEO position and the staff freeze having been lifted on making permanent appointments, Ms Coddington decided, apparently in consultation with Mr Loxley, that she would not renew Ms Brown's temporary employment contract and would advertise the permanent AEO position. That was a perfectly reasonable position to adopt. Nevertheless, I consider there is a strong inference to be made that Ms Coddington was ill-disposed towards Ms Brown and that her preference was that Ms Brown should not be permanently appointed to the AEO role. 152Secondly, I should have regard to Ms Brown's conduct. It is clearly the case that Ms Brown felt a degree of animosity towards Ms Coddington and this had developed well before the events of March, April and May of 2010. Perhaps it was because Ms Brown had a close friendship with the previous Principal, Mr Tyson, a friendship that she was not able to establish with Ms Coddington and, instead, an animosity developed. But I am only speculating in that regard. I also have a lingering concern about Mr Parker's role and his persistent presence in any dealings between Ms Brown and Ms Coddington. Despite this, Mr Parker was not called to give evidence even for the purpose of collaborating Ms Brown's evidence, which was challenged by Ms Coddington. There was also the fact that the aboriginal community at Weilmoringle seems to have been divided, with Ms Brown in one family faction and Ms Annis-Brown in another. In that respect, Ms Brown stated in her affidavit: [T]he Weilmoringle Aboriginal community is divided into two factions: the top end and the bottom end. Margarete [Coddington] had some contact with the top end: the tribe of Lesley Annis-Brown's family. She rarely had contact with the bottom end: my family's tribe. 153These matters may have contributed to the development of the poor relationship between Ms Brown and Ms Coddington. 154When one examines the various complaints made by Ms Brown against Ms Coddington one is driven to ask what was it about the matter that caused Ms Brown to be antagonistic towards Ms Coddington. In relation to the Thredbo excursion it appears that students may at least have seen Mr Coddington with only a towel wrapped around the lower half of his body. Ms Coddington denies the "red underpants" allegation. Accepting that what she had seen was an affront to Ms Brown's sense of decency and that it caused her concern for the children's sake, one would expect her to have immediately taken up the matter with Ms Coddington, but she did not. Ms Coddington somehow became aware of Ms Brown's concern and thereafter her husband walked to the showers fully clothed. 155Ms Brown eventually made a complaint about what occurred at Thredbo, but it was not until two years later on 21 April 2010, after her period of temporary employment had ceased. Mr Loxley said he never received the complaint, but one has to question Ms Brown's motives in seeking to make the complaint so long after the incident and following Ms Coddington's advice to her that the temporary employment contract would not be renewed. 156The fact that it was Mr Coddington who may have upset Ms Brown's sensibilities and in circumstances where Ms Brown did not raise the matter with Ms Coddington directly (and there was no evidence Ms Coddington took exception to Ms Brown complaining about the incident), makes it difficult to understand how that incident could have triggered any animosity towards Ms Coddington but it appears it may have and continued festering away in Ms Brown's mind for two years. 157Ms Brown formally complained about the Bathurst excursion, albeit not until three months after the event and, again, without raising it directly with Ms Coddington. The complaint was dismissed, with it being held Ms Coddington acted appropriately, an outcome with which I entirely agree. 158In the normal course it could be expected that if a person harboured a concern about an unaccompanied teacher taking one student shopping the person would raise it with the teacher immediately. Ms Brown did not do that. Perhaps there was some culturally based impediment to Ms Brown raising it directly with Ms Coddington, although I note in the telephone conversation between Ms Brown and Ms Coddington on 25 March 2010, Ms Brown did not feel constrained in calling Ms Coddington an arrogant pig. What is puzzling, however, is why Ms Brown took three months to lodge a formal complaint and why it generated any animus. The complaint was not about any inconvenience to, slight against or criticism of Ms Brown, but rather what Ms Brown perceived to be a contravention of the rule against teachers being alone with students. 159Ms Brown did complain that she had been bullied and/or harassed by Ms Coddington. The applicant claimed that Ms Coddington raised her voice in the conversation that occurred on 25 March 2010 concerning the applicant's future as an AEO. The telephone conversation may well have been a reason for Ms Brown to feel ill-disposed towards Ms Coddington, but it seems to me such feelings had developed well before 25 March 2010. 160The only other example of bullying was in 2009 when Mr Coddington allegedly made fun of the applicant in connection with an incident regarding the applicant's consumption of noodles that were allegedly contaminated. The respondent did not challenge Ms Brown's version of what occurred and so it may be accepted as accurate. When Mr Coddington did make fun of Ms Brown eating contaminated noodles, a foolish and inconsiderate jibe, apparently Ms Coddington was present. It may be accepted that this incident may well have generated ill feeling towards Ms Coddington. However, I also note it took Ms Brown six or seven months to complain and then only after she had been advised her appointment was not to be renewed. 161In my opinion, Ms Brown contributed to the poor relationship with Ms Coddington. It seems she preferred to file complaints about Ms Coddington and never once sought to settle any concern she had by speaking directly to Ms Coddington or by obtaining the assistance available under the respondent's Employee Assistance Program (EAP) in respect of interpersonal conflict. 162On the other hand, of course, evident from Ms Coddington's handwritten note prepared in February or March 2010, she clearly had issues with Ms Brown. I have the impression that Ms Coddington did make some attempt to deal with her concerns directly with Ms Brown but without success. Ms Coddington said in her evidence: [A]round the beginning of 2009 I noticed a change in the applicant's behaviour and her enthusiasm at school began to noticeably decrease. The applicant was not as keen about being at school and would spend the majority of her recess/lunch breaks outside of the school. She would frequently refuse to meet with me to have discussions about work unless her partner was present. 163It would have been open to Ms Coddington to access the EAP, but it appears she chose not to do that. 164That Ms Brown contributed to the poor relationship with Ms Coddington does not excuse any prejudice visited upon the applicant by the respondent. However, whilst the inference is available that Ms Coddington was ill-disposed towards Ms Brown and her preference was that she not be permanently appointed to the AEO role, there is insufficient evidence to support a conclusion that on the balance of probabilities Ms Coddington or any other representative of the respondent sought to influence the selection process to such an extent that Ms Brown would not be selected. 165It will be recalled that the claim is that the contract was unfair because it did not contain a term that any complaint made by the applicant in regard to her role would not prejudice her application for the position of AEO. In the absence of this term, it was submitted the contract permitted the respondent to regard the making of complaints as counting against the applicant in what was an unfair selection process that resulted in the applicant failing to gain the permanent AEO position. There is a lack of evidence to show that any grudge held by Ms Coddington against Ms Brown because of complaints made by Ms Brown counted against the applicant in the selection process. That connection has not been made. 166In coming to this conclusion I have had particular regard to: (a) of the circumstances leading to Ms Coddington's decision to advertise the AEO position including the fact she was ill-disposed towards Ms Brown; (b) the fact that Ms Coddington requested Mr Hall to convene the selection committee; (c) the fact that Ms Coddington provided Ms Annis-Brown with a strong reference; (d) the unfair selection process; and (e) missing documents from the recruitment file. 167However, I am unable to draw an inference from these matters that Ms Coddington or anyone else influenced the selection committee to prefer Ms Annis-Brown to Ms Brown because Ms Coddington was ill-disposed towards Ms Brown. 168The second aspect of the first limb of the applicant's unfairness contentions is, however, made out. That is, the contract did not contain a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact would be given significant weight in assessing her application for permanent appointment in that position. In the absence of this term the contract permitted the respondent to disregard the applicant's good performance in conducting what was an unfair selection process for the permanent AEO position. 169In circumstances where Ms Brown had performed the role of AEO under successive temporary contracts over a period of four years; where her performance was rated good in that role; where the applicant failed in her application for the job merely because she did not perform well in the interview (on my observation of Ms Brown in the witness box this may have been because of cultural influences), but where the selection committee failed to follow up the interview of Ms Brown by making inquiries as to her experience and performance in the temporary AEO role; and where the candidate selected for the role had significantly less experience in the AEO role than Ms Brown, the selection process was patently unfair and rendered the contract unfair. 170The third aspect of the applicant's first limb of her unfairness contentions was that the contract did not contain a term that in considering the applicant's suitability for the full-time position of AEO the lack of employment opportunity for her in Weilmoringle would be a consideration. In the absence of this term it permitted the respondent to disregard the lack of employment opportunities in conducting an unfair selection process for the permanent AEO position. 171The evidence established a very distinct lack of employment opportunities in Weilmoringle. However, I am not prepared to accept there was any unfairness because the contract did not contain a term relating to lack of employment opportunities. A term in the contract that lack of employment opportunity should be a consideration would visit unfairness on any other applicant who may suffer the same disadvantage as Ms Brown in being able to find employment. The unfair contract provisions are about providing relief against unfairness not creating it. 172The fourth aspect of the applicant's first limb of her unfairness contentions was that the contract did not contain a term that in circumstances where the applicant had carried out the functions of a qualified teacher, she would be given special consideration in her application for a full-time AEO position. As it will be seen I have found that the work she was performing was not the work of a qualified primary school teacher. Accordingly, no unfairness arises. 173In relation to the first limb of the applicant's unfairness contentions I find the contract was unfair in that the contract did not contain a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact would be given significant weight in assessing her application for permanent appointment in that position. In the absence of this term the contract permitted the respondent to disregard the applicant's good performance in conducting what was an unfair selection process for the permanent AEO position. I will vary the contract accordingly. Second limb 174The second limb of the applicant's case was that the contracts or arrangement were "unfair, harsh or unconscionable" in that at the time they were entered into they were unfair, or subsequently they became unfair, because: (a)the Applicant was never given a copy of the AEO job description by the Respondent; and (b)the School required the Applicant to undertake class management and control, playground supervision and teaching, which were expressly prohibited by the AEO job description. 175The applicant was employed as a temporary AEO at the School on about 2 August 2006 to replace the previous AEO, Ms Williams, who relocated to Dubbo with her husband, Mr Tyson (former permanent Principal at the School), and family. 176The applicant's evidence was that she did not see the job description for an AEO until about February 2010. Up to that time she simply performed the role having regard to how her predecessor, Ms Williams, did so and in response to Ms Coddington's alleged request, "Is it all right for you to teach K to 2?" 177The job description is quoted earlier in this judgment, but it is useful to again note that it stated: Teacher Support Assisting teachers: ● ... ● with Aboriginal students in all school activities including excursions. ● with the progress of Aboriginal students. Other duties Carrying out other related duties as required by the principal. Note: the school must not require an Aboriginal Education Officer to accept responsibility for class management and control, playground supervision or teaching students. 178In her complaint sent to Mr Loxley on 9 March 2010, Ms Brown relevantly stated that: I am an AEO at Weilmoringle Public School where for nearly 4 years the Principal has been getting me to teach K-2 also doing programming assessments, marking work and homework also supervising students in the playground.... Mr Loxley, for some inexplicable reason, did not deal with this complaint. 179In my opinion Ms Brown was teaching, as that word is ordinarily understood, in respect of K-2 class at the School and undertook the main load in that respect. Ms Brown was "imparting knowledge" or "giving instruction" to the young students. In arriving at that conclusion I have had regard to the evidence, particularly that of Dr Cavanagh, of the applicant herself and of Ms Williams. 180The question, however, is not so much whether the contract or arrangement was unfair because Ms Brown was teaching, but rather whether the contract or arrangement was unfair because the applicant was employed and paid as an AEO when the work she was performing was the work of a qualified primary school teacher. 181It cannot be denied the work Ms Brown was performing in teaching the K-2 class at the School was work that would also be performed by a qualified primary school teacher. The work included playground supervision, teaching the K-2 students Maths and English and participating in the supervision and teaching of children in HSIE (social science), Art and Sports classes. 182I was surprised at the significant extent to which Ms Brown was involved in direct teaching of students and I have some reservations about whether the extent of it is contemplated by the AEO job description. My concern is whether the respondent was using an AEO as a substitute for employing a qualified teacher, thereby giving rise to unfairness. 183However, I am satisfied Ms Brown was not employed, or performing work, as a substitute for a qualified primary school teacher. My reasons are as follows: (a) Dr Cavanagh agreed that to be regarded as a teacher it was essential to obtain formal qualifications and accreditation; (b) Ms Brown is not qualified to be accredited as a teacher in New South Wales and has not been accredited: see the Institute of Teachers Act 2004 and the Institute of Teachers Regulation 2010; (c) section 3A of the Institute of Teachers Act defines "teach" and "teacher" as follows: 3A Meaning of "teach" and "teacher" (1) In this Act, teach means to undertake duties in a school that include (but are not limited to): (a) the direct delivery of courses of study that are designed to implement the curriculum and the responsibility for assessing student participation, performance and progress in those courses, or (b) the direct delivery of any other course or program for primary, secondary or preschool children (being a course or program prescribed by the regulations, or of a class prescribed by the regulations, for the purposes of this definition) and the responsibility for assessing the participation, performance and progress of children in that course or program. (2) A reference in this section to undertaking duties in a school is a reference to undertaking duties on the premises of a school in the course of providing services conducted by the school. ((3) In this Act, teacher means a person who is, or is to be, employed to undertake any duties referred to in subsection (1) (whether or not the person undertakes any other duties). ("School" is defined in s 3 to mean "a government school or a non-government school.") (d) the evidence does not support a conclusion that Ms Brown had "responsibility for assessing the participation, performance and progress of children" in any course or program for primary school children. The key word is "responsibility", which means in the context of the Institute of Teachers Act, being answerable or accountable for. Ms Brown was not an accredited teacher and could not be held accountable for the failure to deliver a course or program to the proper standard. That responsibility fell on Ms Coddington; (e) similarly, Ms Brown was not required to "accept responsibility for class management and control, playground supervision or teaching students" and, therefore, the teaching work she undertook was not inconsistent with the job description for an AEO; (f) it was Ms Coddington's evidence, which I accept, that the applicant was never required or responsible for planning or devising teaching programs nor was she responsible for student management. At the end of each school day Ms Coddington would review student work marked by the applicant so that she could then address any learning difficulties she noticed; (g) it was Dr Cavanagh's evidence that on a daytoday basis Ms Brown "was carrying out some of the functions of a teacher" and whilst part of the role of an AEO may extend to limited implementation of the teaching program under supervision, Ms Brown was not writing teaching programs, which "is one of the most onerous and important parts of a teacher's role"; (h) Dr Cavanagh also agreed that it was not physically impossible for the Principal to supervise the work of an AEO situated at the other end of the classroom. He stated that this type of collaboration and cooperation should be encouraged within a one-teacher school; (i) Ms Coddington was generally always in the classroom attending to the older students when the applicant was with the younger students. This allowed Ms Coddington to supervise the applicant; (j) the teaching work performed by Ms Brown was principally the mechanical aspects of such work learned mainly by observing Ms Williams. The respondent was correct in contending that on her own evidence the applicant did not understand the concepts of lesson programming or curriculum development and played a limited role in the compilation and analysis of assessments and reports. She may have assisted the Principal in respect of some of these areas, but in my opinion she did not and could not, by reason of her lack of training and general lack of understanding about these concepts, have undertaken these tasks independently and without supervision. At no time was she directed to undertake these tasks independently and without supervision; (k) attendance at the Murdi Paaki training courses was not restricted to teachers; people in AEO or tutor positions were also encouraged to attend. There was nothing in the evidence to suggest that teaching children to read using the Murdi Paaki method required the skills and experience of a qualified teacher; (l) in order to be regarded as a teacher under the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and paid as such the person must be employed permanently or temporarily in a full time or part time teaching position under the provisions of the Teaching Service Act 1980 and appointed to a school. Ms Brown was not employed under the Teaching Service Act. 184As I earlier intimated, I consider the teaching work Ms Brown was performing was at the outer limit of what could reasonably be expected of an AEO. However, Ms Brown could not be regarded as a substitute for a primary school teacher for the reasons I have given. Ms Brown did not perform the full range of duties of a primary school teacher, she had neither the training nor qualifications to enable her to do so and she was not required to be accountable for the participation, performance and progress of children at the School. That responsibility fell squarely on the shoulders of Ms Coddington. 185In those circumstances, Ms Brown was properly remunerated as an AEO and no unfairness arose because she was not paid as a teacher. Third limb 186The third limb was that the contracts were unfair because the applicant was paid total remuneration that was less than a person would have received performing the same duties required of the applicant between August 2006 and April 2010. This is an extension of the second limb of the applicant's case. Having found the duties performed by the applicant fell within the job description of an AEO, there is no basis to find the applicant was paid less than a person would have received performing the same duties required of the applicant. I so find. Variation to the contract 187The temporary employment contract between the applicant and the respondent that applied to the applicant's employment as at 17 April 2010 is varied to provide a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact will be given significant weight in assessing her application for permanent appointment in that position. The order in this regard is set out later in this judgment. Money orders 188Section 106(5) of the Act provides that the Court may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as it considers just in the circumstances of the case. 189Relevantly, the applicant claimed in the further amended summons an amount of 24 months' salary as compensation for the loss of income and employment opportunity associated with the failure to be appointed as a full-time Aboriginal Education Officer, which amount to be calculated at the current rate of that position, and $50,000 by way of compensation for psychiatric injury suffered as a result of her treatment by the respondent. 190In my opinion, if the selection process had been a fair one, there was every probability that Ms Brown would have secured the permanent AEO position. Instead, after four years as a temporary AEO, a position in which she performed well, she was left in an isolated community without employment. 191I consider the applicant should receive an amount of 12 months' salary as compensation for the loss of income and employment opportunity associated with the failure to be appointed as a full-time Aboriginal Education Officer, which amount to be calculated at the current rate of that position. 192In relation to compensation for psychiatric injury, Dr Allnutt diagnosed Ms Brown as suffering from a Major Depressive Disorder. Any compensation may only be ordered in connection with the contract that is declared wholly void or varied. As I understand the cause of the injury, it was Ms Brown's treatment at the hands of the Principal, her failure to secure the permanent AEO position and that the respondent failed to take her complaints seriously. 193Clearly, the failure to win the permanent AEO position was a factor of some weight in causing Ms Brown's psychiatric injury and compensation in that regard is appropriate. I do not intend to provide compensation for psychiatric injury arising from Ms Brown's treatment at the hands of the Principal or for the reason her complaints were not taken seriously. 194In King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [114] the Full Bench cautioned that "unless a very careful approach is taken there is a tangible risk of double compensation" and secondly that "the precise basis for the award must be specified to ensure that situation does not occur." 195As I have already indicated, I intend to provide compensation for the unfairness associated with the recruitment and selection process and the loss of income that Ms Brown could reasonably have expected to earn over the 12 months following her failure to gain the AEO position. That is a different basis for awarding compensation for psychiatric injury. 196The respondent submitted the applicant had not sought treatment for her psychiatric injury and had, therefore, somehow contributed to the ongoing symptoms. However, the applicant submitted she is on Newstart Allowance and is unlikely to be in a position to afford regular ongoing treatment by a psychiatrist or drug treatments prescribed by a medical professional. I accept this would be so. 197 Dr Allnutt estimated the ongoing cost of psychological and psychiatric consultation to be in the region of $200 to $300 per month, and the cost of antidepressant medication to be in the region of approximately $100 per month. 198In my opinion, a payment that would enable the applicant to afford these costs over a 12 month-period is reasonable and so I consider an amount of $5,000 is appropriate. Orders 199The Court makes the following orders: (1) I declare the temporary employment contract between the applicant and the respondent that applied to the applicant's employment as at 17 April 2010 was an unfair contract. (2) The contract referred to in order (1) hereof is varied to provide a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact will be given significant weight in assessing her application for permanent appointment in that position. (3) In connection with the contract as varied in accordance with order (2) hereof the respondent shall pay to the applicant an amount of 12 months' salary as compensation for the loss of income and employment opportunity associated with the failure to be appointed as a full-time Aboriginal Education Officer, which amount to be calculated at the current rate of that position. (4) In connection with the contract as varied in accordance with order (2) hereof the respondent shall pay to the applicant an amount of $5,000 in addition to that ordered in order (3) hereof as compensation for costs associated with the psychiatric injury. 200As to costs and interest, the applicant has 28 days from the date of this judgment to file and serve written submissions regarding those matters. The respondent has a further 14 days to file written submissions in reply. Unless either party wishes to make oral submissions on costs and interest that issue will be determined on the papers. ********** 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. Decision last updated: 07 January 2014