Lane v Commissioner of Corrective Services & anor [2002] NSWADT 139 (14 August 2002)

Last Updated: 17 October 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Lane v Commissioner of Corrective Services & anor [2002] NSWADT 139

PARTIES: APPLICANT

Sharon Lee LANE

FIRST RESPONDENT

Commissioner of Corrective Services

SECOND RESPONDENT

Ronald Devaney

FILE NUMBERS: 011031

HEARING DATES: 10/12/01-13/12/01, 19/02/02, 20/02/02-22/02/02, 20/05/02

SUBMISSIONS CLOSED: 20/05/2002

DECISION DATE: 14/08/2002

BEFORE: Bartley R - Judicial MemberStrickland J - MemberPun A - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: V v Y & Anor NSWADT 121

M v R Pty Ltd (1998) (EOC 1992-229)

H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd (1974) 1 QB 159

Universal Telecasters (Qld) Ltd v Guthery (1977) 18ALR 513

cp Hill v Water Resources Commission (1985) EOC 92-127

Shaikh v Commissioner, NSW Fire Brigades (1996) EOC -92-808

APPLICATION: Sex Discrimination - In work

Sexual Harassment - In workplace

Victimisation

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

T Dennis, barrister

RESPONDENT REPRESENTATIVE: FIRST RESPONDENT

T Anderson, barrister

SECOND RESPONDENT

In person

ORDERS: 1 Application dismissed.

Reasons for Decision:

Introduction

1 During 1997 Sharon Lee Lane (The Applicant) was employed as a Prison Officer by the Department of Corrective Services (The First Respondent) at the Reception and Induction Centre, Long Bay Correctional Centre.

2 At the same time Ronald Devaney (The Second Respondent) was employed as a Prison Officer by the Department of Corrective Services at the same Centre holding the rank of Senior Assistant Superintendent.

3 On 5th September 1997 the Applicant lodged a written report to the Governor of the Gaol Reception and Induction Centre about the second-respondent's conduct on 31st August l997 at a parade he was conducting and the Applicant was attending. Earlier the second respondent had given a written report to the Governor concerning the Parade. Each party was cross-examined concerning their reports.

4 On 7th September 1997 the Applicant made a written complaint to the Department's then Manager of Equal Employment Opportunity, Superintendent Lorraine Bridge, that she had been sexually harassed by (the second respondent) whilst on duty at the Reception and Induction Centre, Long Bay Correctional Complex from about June 1997 to August 1997.

5 The Applicant gave evidence that on 1st September l997 she had attempted to report the sexual harassment matter to Deputy Governor Frank Kelly but Mr Kelly had refused to discuss the matter with her. Mr Kelly later denied this happened.

6 On 12th September 1997 the second respondent made a statement with respect to the Applicant's allegations in which he denied he subjected the Applicant to sexual harassment, denied discriminating against the Applicant on the ground of sex and denied victimising her.

7 Due to the nature of the allegations the matter was referred to the Department's Review Committee.

8 On 16th October 1997 the matter was allocated to Superintendent Adrian Jones to investigate.

9 In the course of that investigation Superintendent Jones interviewed the Applicant who confirmed her allegations and the second respondent who denied her allegations. Superintendent Jones also interviewed Mr Kelly who denied he had refused to discuss with the Applicant her allegations against the second respondent. In the course of his investigations Mr Jones reviewed statements provided by Officers Cheryl Kendall, Stuart Lyle and Brian McCann. Governor Jeanine McGlinn was not interviewed as she was not named in Ms Lane's Complaint to the Department.

10 The report of that investigation was completed on 6th January 1998. The report found no evidence to support any of the Applicant's allegations. The report found that while the staff members referred to by the Applicant in her complaint had been told by Applicant of the allegations against the second respondent, none of them had actually witnessed any form of sexual harassment or victimisation or rude or aggressive behaviour towards the Applicant by the second respondent.

11 Mr Jones in his report said that Officer Brian McCann in a statement reviewed by him had said that the Applicant had said to him about the second respondent words to the effect: `I will fix him. I'll get him for sexual harassment'. Mr McCann later affirmed that comment in evidence before the Tribunal.

12 Deputy Governor Kelly denied that the Applicant had attempted to speak to him about sexual harassment and the report of the investigation found no corroborating evidence to support this allegation.

13 The Report by Superintendent Jones was sent to the Senior Assistant Commissioner Ron Woodham. By 4th February 1998 Mr Woodham had considered the Jones Report and determined that there was no substance to the allegations made by the Applicant.

14 The second respondent and Mr Kelly were informed of the Senior Assistant Commissioner's determination on 6th February 1998.

15 The Applicant was not informed of the Determination at that time.

16 On 16th June 1999, not having received the result of her original complaint to the Department of Corrective Services, the Applicant lodged a complaint to the Anti-Discrimination Board of New South Wales. The Complaint was then `out-of-time' but due to the circumstances was accepted by the President.

17 Ms Lane advised the Anti-Discrimination Board at the on 16th June 1999 `The Sexual Harassment claim has remained unresolved for far too long and as I am aware is not the subject of an Inquiry. This alone has raised grave concerns on my behalf, as to report a matter as unlawful as this, in the belief of receiving an appropriate conclusion. I believe I have not been represented in a fair and equitable manner from the commencement of this episode either by the P.O.V.B or anyone connected with the Department of Corrective Services'.

Summary of Complaints

18 The Applicant in her letter to the Anti-Discrimination Board made the following complaints (which were agreed by both parties as a correct summary)

(i) She was treated less favourably on the grounds of her sex and also sexually harassed by Ronald Devany and that both the Commissioner for Corrective Services and Mr Devaney were liable for Mr Devaney's conduct.

(ii) Mr Devaney victimised her for having made the allegations of sexual harassment and that both he and the Department are liable for his victimising treatment.

(iii) She was victimised by the Department when her complaint was not dealt with, causing her further detriment.

(iv) She was victimised by the Department when it failed to provide her with the outcome of their investigation causing her further detriment.

(v) She was victimised by the Department when it failed to contact her while she was off work, suffering from acute anxiety and depression causing her further detriment.

19 Mr Dennis appeared for the Applicant and Ms Anderson appeared for the First Respondent and Mr Devaney (The Second respondent) appeared unrepresented.

RELEVANT LEGISLATIVE PROVISIONS

ANTI-DISCRIMINATION ACT 1977

Meaning of `sexual harassment'

s22A For the purpose of this part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or a unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Harassment of employees, commission agents, contract workers, partners etc

s22B(1) It is unlawful for an employer to sexually harass:

(a) an employee, or

(b) a person who is seeking employment with the employer.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

(3) It is unlawful for a person to sexually harass:

(a) a commission agent or contract worker of the person, or

(b) a person who is seeking to become a commission agent or contract worker of the person.

(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.

What constitutes discrimination on the ground of sex

s24 (1) A person (`the perpetrator') discriminates against another person (`the aggrieved person') on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are, not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex; or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case with which the aggrieved person does not or is not able to comply.

(1A) For the purposes of sub-section (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

(1B) For the purposes of this section, but without liiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women.

(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs -

(a) are a woman who is pregnant and a man; or

(b) are not of the same marital status.

Discrimination against applicants and employees

s25.(1) It is unlawful for an employer to discriminate against a person on the ground of sex -

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment;

(b) in determining who should be offered employment; or

(c) in the terms on which the employer offers employment.

(1A) Nothing in subsection (1) renders unlawful discrimination by an employer against a woman on the ground of sex if, at the date on which the woman applied to the employer for employment or, where the employer interviewed the woman in relation to her application for employment, at the date of the interview, the woman is pregnant.

(2) It is unlawful for an employer to discriminate against an employee on the ground of sex -

(a) in the terms or conditions/ of employment which the employer affords the employee;

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c) by dismissing the employee or subjecting the employee to any other detriment.

(2A) Nothing in subsection (2) (c) renders unlawful discrimination by an employer against a woman on the ground of sex in respect of the dismissal by an employer of a woman who is pregnant if, at the date on which the woman applied to the employer for employment or, where the employer inter-viewed the woman in relation to her application for employment, at the date of the interview, the woman was pregnant, unless, at that date, the woman did not know and could not reasonably be expected to have known that she was pregnant.

(3) Subsections (1) and (2) do not apply to employment -

(a) for the purposes of a private household;

(b) where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5; or

(c) by a private educational authority.

(4) For the purposes of subsection (3) (b), a corporation shall be regarded as the employer of the employees of any other corporation, which, with respect to the first mentioned corporation, is a related corporation within the meaning of the Corporations Law.

Victimisation

s50. (1) It is unlawful for a person (`the discriminator') to subject another person (`the person victimised') to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceeding against the discriminator or any other person under this Act;

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act;

(e) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Aiding and abetting etc

s52. It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

20 The Applicant also relied on V v Y & anor [2000] NSWADT 121 (1 September 2000) where the Tribunal said:

Para 17 Despite the strong representations by the Applicants to the contrary, the Tribunal is unable to conclude that the role performed by Mr Z as a joint manager or assistant manager at the Motel brought him within any of the four categories of employee whose discriminatory conduct will cause the employer to have acted unlawfully under the Act (M v R Pty Ltd (1998) (E0C 1992-229 at 77,173)). Graham J in that case noted that these four categories were not an exhaustive list. The Applicant's submissions did not canvas a basis for categorising Mr Z's position other than falling within the second and third categories listed by His Honour in that decision. Graham J described the list as follows:

`Thus an employer may be in breach of the personal obligation created by sec 25(2) in a number of ways. The following is not intended as an exhaustive list of those ways:

[1] Where the relevant discriminatory act or conduct is personally performed by the employer.

[2] Where in the case of an incorporated entity the relevant discriminatory act or conduct is performed by a senior official whose conduct is to be identified as being that of the company or other incorporated entity because he or she represents the `mind or will' of the entity: H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd (1974) 1 QB 159: Universal Telecasters (Qld) Ltd v Guthrie [1978] FCA 8; (1977) 18 ALR 531.

[3] Where the relevant discriminatory act or conduct is that of a person or persons whose duty it is to, or who customarily or usually has the function of, affording terms and conditions of employment to the employee alleging discrimination.

[4] Where the relevant discriminatory act or conduct is that of employees not in any of the three earlier categories but whose conduct is known to any of the persons in those categories and by active condonation or inactivity, no prompt or adequate steps are taken by or on behalf of those in any of the first three categories to rectify the adverse working conditions thus `afforded' to the employee: cp Hill v Water Resources Commission (1985) E0C 92-127.'

21 In particular the Applicant relies on paragraphs (2), (3), and (4) above. In addition the Applicant relies on the following sections of the Anti-Discrimination Act 1977. In respect of the first complaint sections 24, 22A and 22B(6) and the second, third, fourth and fifth complaints sections 50 and sections 25 (2)(a).

THE EVIDENCE

First Complaint

22 The Applicant said that from June 1977 until the end of July 1997 the second respondent engaged in unwelcome conduct of a sexual nature towards her.

23 She said the second respondent began asking her questions of a personal nature, which then became more intimate, including asking her if she had ever played up on her husband.

24 She further said that on 1st, 5th and 6th July 1977, the second respondent told her of erotic dreams, in which he was having sex with her and made gratuitous comments about the details of the dreams.

25 She recalls him telling her about his erotic dreams on about 7 occasions.

26 Other comments included asking her when she last had sex with her husband.

27 She also said that the second respondent would also make unwelcome comments about his own sex life.

28 She further said that Mr Devaney persistently badgered her on numerous occasions about attending a work party and suggested to her that she should attend the party with him, instead of her husband.

29 She said that during 25th, 26th and 27th July 1997 further suggestive comments were made to her by the second respondent.

30 She said she asked the second respondent to stop this conduct towards her on several occasions, but he persisted with the unwelcome conduct.

31 On 16th August 1997, she spoke to another female correctional officer, Ms Cheryl Kendall and sought her advice regarding the treatment.

32 In August 1997, the sexual comments had ceased and the second respondent 's attitude towards her became hostile.

33 The second respondent has at all times categorically denied the Applicant's allegations and that he spoke to her in the manner she stated in her complaint. He further said that he did not use the words alleged by the Applicant.

Second Complaint

34 The Applicant alleged that the second respondent victimised her for having made the allegations of sexual harassment and that both he and the Department are liable for his victimising treatment.

35 The Applicant stated that she sought advice from another female, Correctional Officer, Ms Cheryl Kendall, in August 1997.

36 The Applicant said it was in August 1997 the second respondent became hostile toward her. The treatment she said included finding faults with her work and the duties she performed, contacting her at home on her days off, and abusing her regarding work matters.

37 The second respondent denied that he became hostile to the Applicant and said in effect he carried out all his duties properly and in the correct manner.

38 The evidence of Ms Kendall was summarised by Mr Dennis (and agreed to by Ms Kendall) that she remembers receiving a phone call from the Applicant and that she was upset, she went to see her and she was still upset and that is all she (Ms Kendall) remembers.

39 She did say however in cross-examination that Ms Lane was upset because she thought she was being harassed and victimised.

40 The Tribunal is of the view the first and second Complaints should be dealt with together. They each involve the conduct of the two main parties Ms Lane (the Applicant) and Mr Devaney (the second respondent), together with Ms Kendall.

41 Mr Dennis in his closing address submitted, `regarding the substance of the allegations of harassment those allegations are largely word against word. In my submission, that is not unusual for an allegation of that particular nature. It would be surprising for allegations of harassment to occur in the presence of numerous witnesses. Indeed it is very much part of the applicant's case that the harassment alleged was done in a fashion where there would be no witnesses. So that there is nothing unusual about the absence of direct witnesses regarding the substantive allegations themselves.

42 He further submitted that therefore in determining the question of whether those alleged events in fact occurred it really comes down to a question of assessing the credibility of the respective witnesses.

43 The Tribunal has inferred this approach is in accord with the views of Ms Anderson, and in fact it was the way both Ms Anderson and Mr Dennis conducted their cases.

44 The Applicant maintained throughout the hearing, and in fact has since 1997, that she had been sexually harassed and victimised by he Respondent.

45 The harassment was verbal and was followed by the victimisation in respect of finding fault with her work, and the duties she performed, contacting her at home on her days off and abusing her regarding work matters.

46 She said the harassment occurred from June 1997 to the end of July 1977, when it ceased and the victimisation began.

47 Mr Jones who conducted an investigation into the Applicant's allegations against the second respondent was clearly faced with the problem of word against word. He said:

`...while staff members had been told by Ms Lane of allegations, none of them had actually witnessed any form of sexual harassment or victimisation or rude or aggressive behaviour by Mr Devaney towards Ms Lane'.

48 The second respondent made his first statement about the Applicant's allegations on 12th September 1997 in which he denied in the strongest terms the allegations made against him by the Applicant.

49 He repeated his denials to Superintendent Jones when he was investigating the matter and again before the Tribunal.

50 Whilst the second respondent never wavered in his denial of the allegations of the Applicant neither did the Applicant in asserting they were correct.

51 Ms Anderson and Mr Dennis explored a series of happenings concerning the Applicant and the second respondent, concerning the administration of the prison, such as happenings at the Parade on 31st August 1997; matters concerning various prisoners; the question of security information; the responsibility for warrants for court; the movement of Ms Lane to Campbelltown and other matters.

52 Suffice to say the evidence in all of the above matters did not assist the Tribunal in being able to add to or subtract from, or confirm, the credibility of either the Applicant or the second respondent. In addition the Tribunal is unable to be satisfied whether everything was being done in accordance with the proper procedures for the running the gaol or whether certain actions were being taken to victimise the Applicant.

53 In a civil trial if the party is to succeed, the issue of fact on which the party bears the onus must be established to the satisfaction of the court or Tribunal on the balance of probabilities. In this case the party bearing the onus is the Applicant. If the Applicant does not establish her case to the satisfaction of the court on the balance of probabilities then the case fails.

54 The basic picture in this case is that both the Applicant and the second defendant presented well in the witness box. The Tribunal has looked at collateral matters to see whether it is more likely than not that the Applicant's case is weighed down in her favour. However, the collateral matters examined did not change the fact both parties presented well in the witness box.

55 The Tribunal is not satisfied, on the balance of probabilities, that the Applicant has made out the facts necessary for her to establish either the First or Second Complaints. It is proposed to dismiss the first and second Complaint against both the first and second respondents.

Third Complaint

56 The Applicant said that she was victimised by the Department when her complaint was not dealt with, causing her further detriment.

57 The Applicant said that on 1st September 1997, she attempted to speak to the Deputy Governor Mr Frank Kelly about her sexual harassment allegations but he advised her that he did not wish to get involved.

58 When she tried to raise the matter with the Acting Governor, Ms McGlinn, she advised her, `I don't want to hear about it, put it on paper'.

59 The Applicant gave evidence that she was only allowed to put her allegations to Ms McGlinn after the Union had to persistently advise Ms McGlinn that she should listen.

60 When she was finally given the opportunity to present her complaint, Ms McGlinn only expressed concern for the seriousness of the allegations and did not show any concern for her well being.

61 According to the particulars of the third complaint (which were agreed to by the parties) it concerns the delay by the Department of Corrective Services in dealing with the complaint against the second respondent between 1st September 1997 and 7th September 1997 when her written complaint was lodged with Ms Lorraine Bridge.

62 The two people she said delayed dealing with or did not accept the complaint were Mr Kelly Deputy Governor and Acting Governor Ms McGlinn.

63 Mr Kelly in his evidence denied the evidence of he Applicant. He said she did not tell him on 1st September she wanted to make a complaint against Mr Devaney, and that it was a sexual harassment complaint. He said he did not say `I don't want to hear about it. Put it on paper'.

64 He further said in evidence that he was not aware of the sexual harassment allegations until three or four days before the day Mr Jones interviewed him in November 1997.

65 Ms McGlinn gave evidence Ms Lane came to her office only once on 1st September 1997 and that was with a Union Representative. She said

When I heard what Miss Lane had to say I was quite taken back, particularly when she named Senior Assistant Superintendent Devaney, as I hold Mr Devaney in high esteem and as I said earlier I was very comfortable when I knew Mr Devaney was the Acting Governor, particularly on a week end, because of his attention to duties and the way he carried out his duties and I was quite distressed when I first heard that it was Mr Devaney that Ms Lane had named in these allegations.

66 She further said she did not recall ` saying if you have a complaint put it in writing.'

67 She further said she offered her support to the Applicant, such as providing a different place in the gaol in which she could work away from Mr Devaney. She also detailed the actions she took following the interview with the Applicant.

68 She agreed that Mr Brian Harrison was present during the conversation with the Applicant.

69 Neither side called Mr Brian Harrison to give evidence.

70 Mr Dennis has submitted that if the first complaint is dismissed does not mean that the third, fourth and fifth complaint must be dismissed on ground that the first complaint has not been made out. The Tribunal accepts that submission.

71 In dealing with the third, fourth and fifth complaints the Tribunal has had its attention drawn by Ms Anderson to the case of Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at page 78,986 where the Tribunal set out the elements of `victimisation'. The Tribunal in that case said:

The elements of victimisation can be described as a four-fold requirement. Firstly, the respondent must have caused the Applicant to undergo or experience something. Secondly, the Applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the Applicant did one of the things referred to in sub-paragraph (a) to (d). Under subsection (2) the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith.

72 The Tribunal accepts that case sets out correctly the elements of `victimisation'.

73 In respect to the third complaint the Applicant alleges she was victimised by the Department when her complaint was not dealt with, causing her further detriment. In effect the Applicant says the Department is responsible for the actions of Mr Kelly and Ms McGlinn.

74 The period covered by this complaint is ostensibly from 1st September 1997 to 5th September 1997, when the Applicant made her hand written complaint to Ms Lorraine Bridge, which was acted on according to the Respondent.

75 The Applicant said she tried to lodge her complaint about Mr Devaney's behaviour to Deputy Governor Mr Frank Kelly who refused to take it. She further said that she had difficulty in seeing the Governor McGlinn who took no action. Both Mr Kelly and Miss McGlinn deny the actions attributed to them by the Applicant. In fact Mr Kelly said he was not aware of the allegations until he had to attend the investigation by Mr Jones in November 1997. The Tribunal accepts the evidence of both Ms McGlinn and Mr Kelly.

76 It does not appear having regard to the terms of the Act and the case quoted earlier that the Applicant suffered any detriment at all by the actions of Mr Kelly and Governor McGlinn.

77 It is proposed that the third complaint will be dismissed.

Fourth Complaint

78 The Applicant stated that she was victimised by the Department of Corrective Services when it failed to provide her with the outcome of their investigation causing her further detriment.

79 The Applicant stated that on 7th September 1997 she lodged a written complaint of sexual harassment and victimisation with the Department's Equal Employment opportunity Officer, Ms Lorraine Bridge.

80 An investigation was held.

81 The Report was sent to the Senior Assistant Commissioner for consideration who, on 4th February 1998 determined there was no substance in the allegation.

82 Mr Devaney and Mr Kelly were informed of the Senior Assistant Commissioner's determination on 6th February, 1998

83 The Applicant was not informed at the relevant time of the outcome of the investigation.

84 The Applicant was not advised of the Department's outcome of its investigation until she received the Department's response to the Anti-Discrimination Board's first letter on 4th April 2000, over 2 ½ years after having made her written complaint to the Department.

85 Margaret Alice Parmeter, a Solicitor employed in the professional Standards Branch of the Department of Corrective Services, said in evidence:

`At that stage the procedures in he Professional Standards Branch were not as complete as they could have been and certainly not as complete as the procedures which we now have at the Employment and Administrative Law Branch. My understanding is that- my recollection is that there were no specific procedures for the notification of Applicants at the time. The emphasis was in the notification of those who had been subject to an investigation, that they should be notified of the outcome but there were no particular procedures in place'.

86 The Affidavit of Deborah Anne Dickenson, who was a fellow employee of Margaret Alice Parmeter at that time, confirms that evidence

87 The Tribunal accepts that in l997 when a matter was referred to the Department's Review Committee it could be referred to a person to investigate it. Once the investigation was completed it is apparent the person complained about was notified of the result of the investigation (that is whether an Inquiry was to be held or not) but the person making the complaint was never so informed.

88 The system has now been changed. It is incredible such a system ever existed in a Government Department.

89 Thus when the investigation in respect of Ms Lane's complaint was finalised and it was decided no Inquiry was required, the two persons complained about, Messrs Devaney and Kelly, were advised of the result but the Applicant Ms Lane was not advised. She should have been.

90 Dr Keliher, Commissioner, in a letter to the Anti-Discrimination Board, said the failure to notify Ms Lane was a regrettable and serious oversight. However, as Mr Dennis put it ` the Department had a very clear management systemic problem at that time'. It was not an oversight it was the clear Policy of the Department that Applicants not be notified of the result of any investigation into their complaints.

91 In so doing the Department was not in breach of any provisions of the Anti-Discrimination Act 1977.

92 In addition at the time of lodging her complaint with the Anti-discrimination Board the Applicant advised them she was aware that the allegations were not the subject of an Inquiry by the Department.

93 How the Applicant found out that her allegations were not the subject of an Inquiry was not disclosed to the Tribunal. Nevertheless, she clearly knew that fact at the time of lodging her application to the Anti-Discrimination Board. There is no doubt this information did not come to her officially.

94 At the time the Applicant was not being treated any differently than any other Applicant, male or female

95 The Applicant has not shown on the balance of probabilities that she was victimised by the Department in not providing her with the outcome of their investigations. Nor did she suffer any detriment within the terms of the Act. We do not accept that the Department was liable for an act or omission as submitted by Mr Dennis. It was simply poor administration.

96 We would propose this complaint be dismissed.

Fifth Complaint

97 The Applicant in this complaint states she was victimised by the First Respondent when it failed to contact her while she was off work, suffering from acute anxiety and depression causing her further detriment

98 The Applicant in a letter to the Anti-Discrimination Board received by them on 16th June 1999 said:

I find the Departments treatment unfair, and very discriminative. I have been off work since 5th May 1999 (work cover) suffering from Acute Anxiety and Depression. It is the Departments Policy to contact a person who is off sick for three (3) days or more. No Departmental person has contacted me since I have been absent. I began seeing Psychologist Alex Frater on 18th May 1999 and now on a regular basis due to the fact I am finding it considerably hard to cope with, due to depression, from a Department I once believed in.

99 In cross-examination it was disclosed that Alex Frater was not registered in Australia as a Psychologist and is not qualified to be one.

100 Mr Frater said a General Practitioner sent the Applicant to him, however, there was no referral certificate tendered in evidence.

101 As far as the Tribunal can ascertain from the evidence, there was no requirement that the Department contact employees who are off sick for more than three days, other than the statement by the Applicant.

102 The Tribunal is not satisfied on the evidence that it was a requirement that the Department contact the Applicant after being on sick leave for more than three days. In addition, assuming there was, the Applicant has not shown on the balance of probabilities any detriment suffered by the Applicant, which can be related to that failure.

103 It is proposed that this Complaint be dismissed.

104 Each of the Complaints for the reasons given earlier is Dismissed.