Alexa Mclaughlin (Complainant)
The Commonwealth of Australia (Respondent)
DISABILITY DISCRIMINATION ACT 1992
WILLIAM CARTER QC
Number of pages - 54
CANBERRA, 17-18, 31 May, 20-23, 26-27 July, 12 August 1999 (hearing), 25 October 2000 (decision)
The complainant appeared for herself except on 17, 18 & 31 May 1999 when she was represented by Dr Bell of The Welfare Rights and Legal Centre Limited.
The respondent was represented by Sarah Court of the Australian Government Solicitor's Office.
See para 5. Conclusion
WILLIAM CARTER QC
The complainant, Ms McLaughlin, was until her resignation on 5 November 1993 a member of the Australian Public Service. During the course of her employment, and even after her resignation, her relationship with the respondent and with a variety of its agencies was from time to time contentious and this is evidenced by a voluminous body of documentation much of which is argumentative and contains assertion and counter assertion in relation to an ever-widening range of issues. The complaint to the Human Rights and Equal Opportunity Commission ("the Commission") is only one of those issues.
At the source of this contentious relationship with the respondent was the state of health of the complainant. This itself became the subject of numerous medical reports from a variety of medical practitioners possessed of a variety of specialist expertise. In a statement of the complainant dated 22 September 1998 she refers to her several medical conditions including obesity, chronic fatigue syndrome, multiple chemical sensitivities, sleep apnoea, breast cancer, anxiety, depression and hypertension. She asserts that the effect of these various medical conditions or one or other of them was the cause of cognitive, emotional and physical disabilities which severely impacted on her lifestyle and consequentially on her employment.
In the pre-hearing period relating to her complaint to the Commission, a question emerged as to whether any of these conditions and if so which one(s) was or were relevant to the acts of discrimination which she alleged against several Commonwealth agencies including the Department of Social Security ("DSS"). As will emerge the subject matter of her complaint was, as a result of the statutory processes provided for by the Disability Discrimination Act 1992 (Cth) ("the Act"), narrowed significantly both in terms of time and subject matter but at the outset a potentially complex issue arose as to the medical condition(s) which was or were relevant to the specific period of time within which the complaint was confined and had to be determined. This was the period March 1993 to November 1993. The identity of the relevant medical condition(s) and the question whether that or those condition(s) was or were comprehended by the definition of "disability" in the Act at first loomed as a major issue. However, the respondent prior to the hearing conceded that for purposes of the inquiry into Ms McLaughlin's complaint, she suffered an illness or medical condition during the relevant period which was a "disability" within the meaning of the Act.
It is necessary to dwell for a moment, by way of introduction only, on some general matters in order to better expose not only the contentious background to the complaint itself but also the difficulties which emerged in the course of the inquiry by the Commission and in the hearing.
As will be seen the need for the hearing arose as the result of an interlocutory decision by Sir Ronald Wilson, the delegate of the President of the Commission. It will be convenient to refer to it as "the Wilson decision". Whilst the complainant would submit that there is some difficulty in identifying with precision the content of the issues left for inquiry by Sir Ronald, the fact is that detailed inquiry and an examination of the mass of documents soon made clear enough the relevant issues. As will be seen, the parties over a period of years prior to 1998 had engaged in a series of other contentious and litigious processes (not involving the Commission) and those closely involved in them, including the complainant, were well versed in the complex matrix of fact arising out of the complainant's employment by the Commonwealth and her resignation from that employment. For anyone approaching the matter for the first time it was a somewhat daunting task made somewhat more difficult by the complainant's insistence that the relevant issues within the scope of the Commission's inquiry could only be understood by a comprehensive reference to the minutiae of almost every event, letter or document which had emerged in contentious circumstances at least since 1991. It was therefore out of an abundance of caution that I was liberal in the general ruling which I made to the effect that Ms McLaughlin could canvass in her evidence a range of factual issues which went far beyond the relevant facts which occurred in the relevant period. I will refer to this and related matters later.
I turn to the complaint and in doing so it is essential that it be placed in the context of a much wider range of issues which had arisen out of the complainant's employment and her resignation from the Australian Public Service. Before doing that I should add that the respondent was originally identified by the Disability Discrimination Commissioner as the Department of Social Security (DSS) or Centrelink but by agreement the Commonwealth was substituted as the respondent.
2. THE COMPLAINT AND THE COMPLAINANT'S EMPLOYMENT HISTORY
Ms McLaughlin joined the Australian Public Service in 1989 as an Actuarial Officer in the office of the Government Actuary in the Insurance and Superannuation Commission. She had previously been employed in the life insurance industry for ten years in the Victorian Public Service as an actuarial officer involved in life insurance and superannuation. She had also served for four and a half years as a personnel officer, resource manager and actuarial officer. One can observe that she presents as a woman of maturity, highly intelligent and resourceful with University based qualifications to support her professional expertise in actuarial and related disciplines. Although she vigourously asserted the contrary she presented as one with a comprehensive memory and an almost encyclopaedic knowledge of the dates, facts and documents which in her view were relevant to her complaint. Perhaps her longstanding familiarity with matters relevant to her complaint and the other litigious processes relating to her employment by the respondent more readily explain her apparent good memory.
In August 1991 she was promoted to a position in the Tax and Distribution Analysis Section of the Social Policy Division in DSS. She worked there until August 1992 and her tasks included computer modelling, the evaluation of research literature and policy analysis. In her initial period of employment at DSS (August 1991 - August 1992) serious concerns about her health emerged as a result of the incidence of breast cancer. In March 1992 she had been referred for specialist attention and was hospitalised for a week. After her return to work a breast biopsy on 18 May 1992 revealed a malignancy and she was hospitalised for the necessary surgery for the removal of the lump. She returned to work in June 1992. In this period her supervisor had been a Mr Gallagher and she remained employed in this section of the Social Policy Division of DSS until August 1992. Ms McLaughlin gave extensive oral evidence of events during this period of her employment and of the somewhat stormy relationship which, in her view, had characterised her working relationship with Mr Gallagher. She vigorously alleged an adverse view of Mr Gallagher and detailed her negative assessment of his attitude towards her, as she saw it.
It is unnecessary to decide whether there was any justification for this. Certainly the contemporaneous documentation does not support it. In August 1992 Mr Gallagher had recommended that the complainant's work performance was satisfactory for the purposes of determining her entitlement to a pay increment (Exhibit 11). The qualification written on the face of the document - "allowing for illness" - cannot reasonably be considered as other than realistic. The body of the document evidences what appears to be a balanced view of her work performance in the light of her then recent illness. It was very shortly after this that she was transferred, as will shortly appear. Later reports were also written by Mr Gallagher dated 25 January 1993 (Exhibit's 17 and 18) concerning her employment both in DSS and in Treasury where she again came under Mr Gallagher's supervision. These reports were written for the benefit of the Commonwealth Medical Officer ("CMO"), Dr Heathershaw, who in late January 1993 was engaged to provide a medical assessment of the complainant. Again these reports of Mr Gallagher appear to reflect a balanced assessment of her then working style and capacities and appear inconsistent with the quite severe criticism which the complainant levelled at Mr Gallagher.
In August 1992 Ms McLaughlin was seconded to the Retirement Incomes Modelling Taskforce ("the RIM taskforce") in the Department of the Treasury. Whilst working under his supervision prior to August 1992 she alleged that Mr Gallagher had failed to "accommodate" her condition of chronic fatigue syndrome (CFS). Upon accepting the secondment to the RIM taskforce in Treasury where she was to work under the supervision of Mr Colin Brown, she and Mr Brown at the outset met for lunch and discussed mutually acceptable working arrangements. She stated that her relationship with Mr Brown later deteriorated for reasons unconnected with her health. In December 1992 her previous supervisor at DSS, Mr Gallagher, was himself appointed to the RIM taskforce and again assumed the role of Ms McLaughlin's supervisor in January 1993. During her previous period of employment under Mr Gallagher's supervision she had on or about 21 July 1992 consulted Ms Johanna Stevens, a staff counsellor in the Work Environment Unit at DSS. Upon Mr Gallagher's arrival at the RIM taskforce she again sought out Ms Stevens for counselling in January 1993. Ms McLaughlin's major concern was her state of health and the likely impact upon that of again being placed in a work environment under the supervision of Mr Gallagher.
Ms Stevens in the course of their meeting(s) presented to Ms McLaughlin the option that she might undertake part time employment and in association with that that she later apply for a partial invalidity pension (PIP). The superannuation scheme of which she was a member made provisions for such an entitlement and for that purpose she was referred to a CMO, Dr Heathershaw, whose report dated 22 February 1993 refers to her examination of the complainant on 28 January 1993. The report of Dr Heathershaw recommended that the complainant should "reduce to permanent part time work", that her hours should be "flexible" and that the hours worked "should average no less than 20 hours a week". Her report concluded with the suggestion that the Retirement Benefits Office ("the RBO") which administered the superannuation scheme "be approached to obtain a partial invalidity benefit".
The processes within DSS consequential upon her application for permanent part time employment and the report of Dr Heathershaw, along with other matters, became, from the point of view of the complainant, matters of serious contention and remained so until her resignation from the Australian Public Service on 5 November 1993.
Permanent partial disability ("PPD") was granted to her as from 13 January 1993 when permanent part time work ("PPTW") commenced. She remained at the RIM taskforce on part time employment between January - March 1993. Although she remained seconded to the RIM taskforce for the period August 1992 - March 1993 all personnel and human resource management issues remained with DSS. Such matters were managed by the Divisional Support Unit ("DSU") of which in the relevant period Mr Peter Thornton was the manager. As will appear Mr Thornton is the "manager" or "personnel manager" referred to in the relevant paragraphs of the Wilson decision. He is, for the most part, the focus of Ms McLaughlin's complaint.
It was agreed after negotiations that Ms McLaughlin would transfer out of the RIM taskforce and return to DSS where she would take up a position under the supervision of Mr Roger Brown in the Income and Assets Test Review in the Social Policy Division. This was agreed in February/March 1993. In March 1993 Ms McLaughlin fell ill; she left work and remained off work except for a few weeks until her resignation in November 1993. On 2 May 1993 she applied for workers compensation to Comcare, the relevant Commonwealth agency. This application was granted on 27 July 1993 effective from the time she had ceased work in March. Accordingly, she had by this time sought PPD from the RBO, workers compensation from Comcare and, as will be seen, in this context her sick leave entitlements became a significant issue.
On 23 June 1993 she attempted to resume work at the Income and Assets Test Review at DSS but remained there only until 13 July 1993 when she again left work and Comcare resumed compensation payments from that date. By this time she was also the recipient of a PIP which had been approved by the RBO. She did not return to work again prior to her resignation from the Australian Public Service on 5 November 1993. Therefore, from the time of the coming into operation of the provisions of s.15 of the Act on 1 March 1993 (at about which time Ms McLaughlin had ceased work at the RIM Taskforce) and until her resignation in early November 1993 she had worked for a few weeks only (23 June 1993 - 13 July 1993) at the Income and Assets Test Review at DSS.
It is necessary to go back a little in time. On or about 11 May 1993 Ms McLaughlin resorted to the grievance procedure available within the Australian Public Service by which an employee can seek relief or redress in respect of the actions of departmental personnel. The source of this grievance was her perception that she had been disadvantaged by the actions of Mr Thornton in his handling of her pay entitlements from about mid-March 1993. At that time Ms McLaughlin had been granted a permanent partial invalidity pension by the RBO and had been in receipt of sick leave. As pointed out she had later sought workers compensation from Comcare. The question of sick leave became contentious (the details will be dealt with below) and in her grievance Ms McLaughlin focussed on the perceived failures of Mr Thornton in his management of the personnel issues arising by reason of her ill health and its impact on her employment and income. The grievance was resolved on or about 10 August 1993 (the date of a letter from Ms Kerry Blackburn, Assistant Secretary Industrial Relations and Personnel,) although not to the entire satisfaction of the complainant.
Mr Parkes, who had investigated the grievance, had reported on the matter on 25 June 1993.
This process has been referred to as the first grievance.
From the time of her ceasing work on 13 July 1993 at which time compensation payments again became payable (the decision to grant compensation was made on or about 27 July 1993), Comcare put in place a rehabilitation program which was designed to ensure the complainant's ultimate return to work. For that purpose a rehabilitation provider, Health Access Pty Ltd, was engaged to provide the rehabilitation services in respect of the complainant. Health Access Pty Ltd was a private organisation. Dr Scott, a specialist in rehabilitative medicine, was the person primarily concerned in establishing and maintaining the program which was designed to achieve, if possible, Ms McLaughlin's return to her employment.
It suffices to say here that from the time Health Access Pty Ltd and Dr Scott became involved in the possible rehabilitation of the complainant from shortly after the acceptance by Comcare of liability on or about 27 July 1993, and until 5 November 1993 the date of her resignation, Ms McLaughlin remained dissatisfied with the execution of the rehabilitation process particularly insofar as her return to work plan was related to her flexible working arrangement which had operated in January - March 1993 (at the RIM Taskforce) and in the period 23 June - 13 July 1993 (at DSS). Again it will be necessary to return to this matter.
In November 1993 at about the time of her resignation Comcare ceased the payment of compensation benefits. The basis of this decision was the belief that at the time of her resignation, at which time the rehabilitation program remained in place, Ms McLaughlin was capable of part time work. This and related issues later became the subject of further review and proceedings in the Administrative Appeals Tribunal. On 5 May 1994 about 6 months after her resignation Ms McLaughlin then applied for reinstatement as a member of the Australian Public Service. This was refused on 22 June 1994 and on 20 October 1994 she submitted a further grievance - the second grievance. A review of the documents submitted shows that they range over many issues including some or most of those already referred to. Her application for reemployment and the consequential grievance was supported by the Community and Public Sector Union. This process is also evidenced by a voluminous exchange of correspondence between the investigating officer and Ms McLaughlin and others and there is other related documentation as well.
On 19 December 1994 Ms McLaughlin was advised by letter that the grievance application in respect of her application for reemployment had been rejected and this was accompanied by the 17 page grievance officer's report dated 16 December 1994.
On 11 January 1995 this grievance application and the grievance officer's decision was referred on behalf of Ms McLaughlin to the Merit Protection Review Agency ("MPRA"). The MPRA's investigation is detailed in its investigating officer's report dated 26 July 1995 which rejected the grievance and found that it was appropriate in all of the circumstances for DSS to accept Ms McLaughlin's resignation.
The above outline of some only of the facts relevant to her employment at DSS is not intended to be exhaustive. The purpose only is to set the context so that the details of the complaint to the Commission under the Act and the Wilson decision will become more intelligible.
3. THE COMPLAINT TO THE COMMISSION
3.1 Outline of complaint
By letter dated 16 September 1994, the complainant lodged with the Disability Discrimination Commissioner a complaint of discrimination pursuant to the Act against DSS, Comcare and Health Access Pty Ltd, the rehabilitation provider, on the basis that each agency had discriminated against her unlawfully because of her disability. On 23 August 1995 the complainant added the MPRA as a fourth respondent to her complaint. It will have been noted that the MPRA had rejected her second grievance on 26 July 1995. Her complaint against the MPRA was that in its investigation of her grievance arising out of the department's failure to reinstate her in employment at DSS the MPRA had also discriminated against her on the ground of her disability.
Subsequent to the lodgement of her complaint dated 16 September 1994 the complainant, under cover of a letter dated 14 December 1994, lodged with the Commission a schedule of documents and 90 pages of detail being excerpts from the 342 documents referred to. Some other matters of detail in relation to the history of the complaint are set out in Exhibit 3.
The complaint against DSS alleged that the Department between March 1993 when she was approved for part time employment (the Act became operative from 1 March 1993) and until her resignation in November 1993 discriminated against her on account of her disability by failing to address the conflict which she alleged had developed between herself and Mr Thornton. This conflict is alleged to have arisen by reason of the fact that staff made mistakes in administering her pay and entitlements during this period, and in the manner of the administration of her pay and entitlements that Mr Thornton failed to "accommodate her disabilities and to deal adequately with her concerns".
The complaint also alleged that she had been discriminated against by DSS when she tendered her resignation in October/November 1993 because she had not been offered an immediate transfer or alternate placement which she claimed could have resolved the difficulties with her then current workplace, and have provided her with an alternative to resignation. In respect of her application for reinstatement, she complained that she had been discriminated against by DSS in its not accepting this application.
The complainant further alleged that the rehabilitation provider, Health Access Pty Ltd, had discriminated against her in the development and implementation of her rehabilitation plan. This complaint contained the additional allegation that Health Access Pty Ltd had imputed to her a psychiatric disability which affected the development of the rehabilitation plan by the rehabilitation provider.
The complaint also alleged that Comcare had discriminated against her on the grounds of her disability by ceasing compensation payments in November 1993 because they assessed her as fit for part time duties in accordance with the report of Dr Heathershaw dated 28 February 1993.
After the MPRA had in July 1995 rejected the review of her grievance in relation to DSS' refusal to reinstate her after resignation in November 1993, the complainant added a further complaint that MPRA had discriminated against her on the grounds of her disability in its investigation of her grievance lodged in respect of DSS' refusal to reinstate her after resignation.
It is necessary to add that after ceasing compensation payments to her in November 1993 Comcare later in 1994 reviewed that decision and it was overturned later. Comcare undertook a further review of Ms McLaughlin's entitlement to compensation and ultimately ceased payments of compensation. This was again the subject of another request for further reconsideration but the decision was reaffirmed and compensation payments ceased. This decision was later the subject of appeal to the Administrative Appeals Tribunal.
On 7 February 1997 the Disability Discrimination Commissioner advised the complainant that she was declining to inquire further into the complainant's complaint and detailed her reasons for so declining. The Disability Discrimination Commissioner considered that some aspects of the complaint were lacking in substance and in respect of others that other remedies had been sought in relation to the subject matter of complaint. Furthermore, in respect of other parts of the complaint the Commissioner took the view that the subject matter had been adequately dealt with by another statutory body.
3.2 The Wilson Decision
(2) The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, if:
(a) the Commissioner is satisfied that the act is not unlawful under a provision of Part 2; or
(b) the Commissioner thinks the person aggrieved by the act does not desire, or no other person aggrieved by the act desires, that the inquiry be made or continued; or
(c) in a case where a complaint has been made to the Commission in relation to the act (other than an act to which Division 4 of Part 2 applies)--a period of more than 12 months has elapsed since the act was done and the complaint was made to the Commission; or
(d) in a case where a complaint has been made to the Commission in relation to the act--the Commissioner thinks that the complaint was trivial, vexatious, misconceived or lacking in substance; or
(e) in a case where some other remedy has been sought in relation to the subject matter of the complaint--the Commissioner thinks that the subject matter of the complaint has been adequately dealt with; or
(f) the Commissioner thinks that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act; or
(g) in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority--the Commissioner thinks that the subject matter of the complaint has been adequately dealt with; or
(h) the Commissioner thinks that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority."
Section 71(3) of the Act provides:
"(3) If the Commissioner decides not to inquire into, or not to continue to inquire into, an act in respect of which a complaint was made to the Commission, the Commissioner must give notice in writing to the complainant or each of the complainants of that decision, of the reasons for that decision and of the rights of the complainant or each of the complainants under subsection (5)."
Section 71(5) of the Act provides:
"(5) If the Commissioner has given a complainant a notice under subsection (3), the complainant may, within 21 days after receipt of the notice, by notice in writing served on the Commissioner, require the Commissioner to refer the complaint to the President."
On 3 March 1997 the complainant sought a review by the President of the Disability Discrimination Commissioner's decision. Section 71(6) of the Act provides:
"(6) On receipt of a notice under subsection (5), the Commissioner must refer the complaint to the President together with a report relating to any inquiries made by the Commissioner into the complaint."
Pursuant to this section the Disability Discrimination Commissioner referred the complaint to the President of the Commission on or about 13 March 1997. The complainant had asked that the Presidential Review of the Disability Discrimination Commissioner's decision be delayed pending her consideration of whether she wished to file a further submission. Nothing further was forthcoming from the complainant until on 20 October 1997 she advised that she proposed to make a further submission. On 23 October 1997 the Commission requested that the further submission be filed by 13 November 1997. On 14 November 1997 the complainant asked for an extension of time until 12 December 1997. By letter dated 20 November 1997 Sir Ronald Wilson agreed to Ms McLaughlin's request for an extension of time to file additional material until 12 December 1997. On 19 December 1997 Sir Ronald Wilson, in accordance with s.101(1)(a), (c) and (e) of the Act, having reviewed the Commissioner's decision dismissed those parts of the complaint referred to in paragraphs 5.3, 5.4, 5.6, 5.7, 5.8, and 5.9 of the Wilson decision.
On 12 December 1997 the complainant provided to Sir Ronald further details concerning her complaint against Comcare and included a document headed "Statement of Facts and Contentions" which was relevant to the complainant's appeal against Comcare in the Administrative Appeals Tribunal. The matters in the AAT were settled by agreement on 9 December 1997.
In respect of her complaint against DSS the Wilson decision states in paragraphs 5.1 and 5.2:
"5.1 In relation to Ms McLaughlin's allegation that she was treated less favourably by the Department of Social Security ("the DSS"), on the ground of her disability, or an imputed disability in the administration of pay and personnel decisions and the failure of the DSS to resolve the conflict between her and the personnel supervisor, I find that there may be sufficient evidence of discrimination against the complainant on the ground of her disabilities in the period March 1993 to November 1993 only. Although the problems which the complainant experienced as a consequence of the administration of her pay and leave may have arisen by virtue of the fact that the complainant required a complex pay calculation because her pay was regularly a combination of pension, sick leave, recreation leave, and flex leave, I am satisfied that there may be sufficient evidence that the manner in which the complainant was treated after the rectification of the pay and leave difficulties may amount to discrimination.
5.2 In relation to Ms McLaughlin's allegation that she was treated less favourably by the DSS due to her disability, or an imputed disability, by failing to address her conflict with her manager it is my view that there may be sufficient evidence that the complainant was treated less favourably than a person without a disability would have been treated."
Paragraph 5.5 provides:
"5.5 However, in my view the issues of whether or not the DSS could have, or would have, but for the complainant's disabilities, provided a transfer or placement, as opposed to arranging redeployment, prior to her resignation, needs further investigation."
As will appear the effect of the Wilson decision was that it was only those matters set out in 5.1, 5.2 and 5.5 which remained for inquiry by the Commission under the Act.
As regards that part of the complaint which alleged discrimination against both DSS and Health Access Pty Ltd in relation to the rehabilitation process Sir Ronald Wilson held as follows:
"5.3 I find that there is no sufficient evidence that the DSS discriminated against the complainant in relation to the rehabilitation process. I note also from the decision of the Administrative Appeals Tribunal ("the AAT") dated 10 December 1997 that the complainant is to be compensated by Comcare in relation to the aggravation to her disabilities of depression and anxiety which the AAT found were "contributed to in a material degree by her employment with the Department." I consider that this aspect of the complaint has already been dealt with by another statutory authority."
Paragraph 5.7 of the Wilson decision also provides:
"5.7 In relation to Ms McLaughlin's allegation that she was treated less favourably by Health Access because of her disability I find that there is no evidence that the complainant was treated less favourably because of her disability by her rehabilitation provider."
As regards to that part of the complaint which alleged discrimination against Comcare in discontinuing her compensation benefits in November 1993 Sir Ronald Wilson held as follows:
"5.8 In relation to Ms McLaughlin's allegation that Comcare discriminated against her on the ground of a disability imputed to her by discontinuing benefits for incapacity in November 1993 (on the basis of Dr Scott's assessment that she was fit for part time work, but was not participating in the return to work program), and in relation to the rehabilitation services which it offered the complainant, I find that the complainant's allegations against Comcare have been adequately dealt with by the AAT.
Concerning her complaint against DSS that she had been discriminated against on the grounds of her disability in relation to her resignation Sir Ronald Wilson held as follows:
"5.4 In relation to Ms McLaughlin's allegation that she had no choice but to resign because of her disabilities I find that she was counselled to delay resignation, pending further consideration of her circumstances in the return to work program and that she was offered, but refused, redeployment. I find that there is no, or no sufficient, evidence that the complainant was discriminated against on the basis of her disabilities, or an imputed disability, by the DSS acceptance of her resignation. I also find that there is no sufficient evidence that DSS discriminated against the complainant on the basis of her disability in refusing to reinstate her. I am of the view that this aspect of the complaint has already been dealt with by the Merit Protection Review Agency.
Concerning her complaint against the MPRA Sir Ronald Wilson held as follows:
"5.9 In relation to Ms McLaughlin's allegation that the MPRA discriminated against her on the grounds of disability in the investigation of her grievance by ignoring her representations, failing to provide her with clear information about how they supported their conclusions and by ignoring the requirements of proper process I note that the complainant has withdrawn her complaint against the MPRA."
The Wilson decision concludes:
"Therefore, in accordance with sections 101(1)(a), (c) and (e) of the Act, having reviewed the Commissioner's decision I now dismiss those parts of the complaint referred to in paragraph 5.3, 5.4, 5.6, 5.7, 5.8 and 5.9.
And in accordance with s.101(2) of the Act having reviewed the Commissioner's decision I refer to the Commissioner those parts of the complaint referred to in paragraphs 5.1, 5.2 and 5.5 for her to continue to inquire into the acts contained therein."
3.3 The complaint - further procedural aspects - the hearing
Between December 1997 and March 1998 the Commission was in communication with the parties concerning any further inquiry that may be necessary. The acting Senior Conciliation Officer sought the views of the parties as to whether the matter should be referred to hearing. Both parties responded that their wish was that the matter be referred to the Commission for hearing and on 21 April 1998 the matter was referred. On 14 August 1998 an officer of the legal section of the Commission wrote to the parties advising that the matter had been referred for hearing and advised the parties of the date. Meanwhile a timetable had been set for the filing of the relevant material. The hearing was scheduled for the 9 - 13 November 1998.
By a letter dated 16 September 1998 the complainant sought leave to be legally represented and furnished an outline of her witness statement together with three tables of documents alleging direct discrimination, indirect discrimination and harassment. The letter indicated that the complainant sought the following remedies:
"1. Acknowledgement that I have not been at fault in this situation, that rather I have been grossly mistreated.
2. Acknowledgement that I have made exhaustive efforts to resolve these questions as efficiently and effectively as possible.
3. Acknowledgement that I have considerable talents and integrity that I offer for the service of the community.
4. Apology from each of the parties for their incorrect behaviour and the harm it has caused me.
5. Reinstatement of Comcare benefits for incapacity.
6. Reinstatement to the Australian Public Service.
7. Reinstatement of Partial Invalidity Pension from the date of resignation.
8. Redeployment to a suitable position in which my contributions are valued and the working environment is not obstructive.
9. Rehabilitation to identify appropriate working conditions and any training required.
10. Financial compensation for other financial losses.
11. Financial compensation for distress, loss of face, humiliation and harm to my reputation and career.
12. Development and dissemination of guidelines in both DSS and Comcare of how concerns about disagreements are to be processed including expected time frames, dispute resolution procedures and how persons with disabilities can have effective access to these procedures."
By letter dated 7 October 1998 the solicitor for the respondent, having referred to some aspects of the various disputes between the parties, which is briefly dealt with above, raised a number of other issues:
* the clarification of the complainant's disability by reference to the relevant period defined in the Wilson decision;
* the lack of particularity in the material submitted by the complainant on 16 September 1998 with reference to the matters left for inquiry by the Wilson decision;
* a critique of the issues alleged by the complainant to constitute direct and indirect discrimination;
* the question whether the Commission should now deal immediately with the complaint under s.100 of the Act on the ground that it is "trivial, unsubstantiated and unsustainable"; and
* the question of a directions hearing for the purpose of clarifying the issues to be dealt with at the proposed hearing set to commence on 9 November 1998.
On 22 October 1998 I convened a directions hearing by means of a teleconference with the parties in which the various issues were discussed at considerable length. A direction was made that the complainant redefine more precisely the issues of fact relevant to her complaint which were comprehended by the Wilson decision and at the same time identify the medical evidence and related issues which were to be relied upon at the hearing. The dates already fixed for the hearing were preserved namely 9-13 November 1998.
In the ensuing correspondence the complainant provided "comments on the medical evidence" and filed a list of over 200 medical documents which she claimed to be relevant to the proposed inquiry.
By letter dated 4 November 1998 the complainant requested an adjournment on medical grounds. The adjournment having been granted, the respondent's solicitor by letter dated 24 November 1998 again wrote to the Commission and again emphasised the respondent's earlier concerns that the complainant had persistently failed to provide to the Commission and the respondent a clear indication of the matters upon which she was intending to rely in alleging discrimination against the respondent on the ground of her disability. The same letter also raised concerns in relation to the medical evidence. The thrust of the respondent's concern is encapsulated in this statement from the letter:
"...it is unreasonable for the complainant to simply refer the respondent to excessive numbers of documents filed in different proceedings without indicating on what basis she intends to rely on them and how they are relevant to these proceedings."
Again the respondent submitted that the complaint be dismissed pursuant to s.100 of the Act and that the respondent's application to that effect be considered "a standing application" to the Commission.
Immediately subsequent to the adjournment of the hearing fixed for 9 November 1998 and because of the apparent complexity of the matter, and more importantly because of the unsatisfactory state of things partly reflected in the concerns expressed on behalf of the respondent, a further directions conference was arranged by the Commission which I chaired in Canberra on Wednesday, 3 February 1999. The parties had been advised that this date had been set aside to attempt to resolve the state of contention between the parties and to clarify in the minds of all the legal and factual issues which were to be appropriately dealt with at a hearing consequential upon the Wilson decision of 19 December 1997.
At this further directions conference on 3 February 1999 the complainant was represented by Dr Bell, solicitor engaged by the Welfare Rights and Legal Centre Limited, an ACT community legal service. Dr Bell, on behalf of the complainant, acknowledged at the conference the need to define for the purposes of an inquiry the matters to be relied upon by the complainant and undertook to confer with Ms Court, then the principle legal officer of the Australian Government Solicitor's office in Canberra, to have the outstanding issues clarified. No directions were therefore necessary and the expectation was that in the immediate future the complainant would have sufficiently defined to the satisfaction of the respondent and the Commission the matters on which the complainant would rely on at the hearing. Dr Bell indicated his view that two days should be sufficient to complete the matter. Accordingly, I fixed 17 and 18 May 1999 in Canberra for the inquiry.
Regrettably the expectations raised at the directions conference on 3 February 1999 were not to be realised. The complainant's response was not received by the Commission and the respondent until 3 May 1999 - two weeks prior to the hearing date. The relevant document is described in Dr Bell's letter as a "Statement of the Applicant's Issues, Facts and Contentions." The letter added:
"There is documentary evidence to be filed in support of the issues of fact. The documents and a list of those documents will be forwarded to HREOC and the respondent on Monday 10 May 1999."
The "documentary evidence" when it was received was constituted by approximately 2000 pages of documents which became Exhibit 4.
Notwithstanding the late delivery of the "Applicant's Issues, Facts and Contentions" and the accompanying voluminous documentation, the hearing commenced on 17 May 1999 as earlier determined. Dr Bell appeared for the complainant and Ms Court for the respondent. At the outset of the hearing Ms Court renewed her application for the Commission to dispose of the matter under s.100 of the Act and at the same time objected to the Commission dealing with those aspects of the alleged complaint which in the Applicant's Issues, Facts and Contentions identified several officers of the respondent (other than Mr Thornton) who had not been referred to either in the original complaint or in the Wilson decision. The submission was that at the hearing it was seemingly the intention of the complainant to raise fresh complaints of discrimination which had never been considered by the Disability Discrimination Commissioner.
The decision was thereupon taken to defer consideration of this application in favour of commencing to hear the case for the applicant, in particular, the evidence of Ms McLaughlin. This decision was taken after a consideration of the following matters:
* the fact that I then had a less than comprehensive understanding both of the details and of the complex history of the matter and of the voluminous documentation;
* the fact that the complaint to the Commission was a part only of that history and I then had an imperfect understanding both of the historical context and of any relevant relationship between the complaint and the matrix of contentious facts and circumstances surrounding Ms McLaughlin's employment with DSS; and
* the expectation that the core of the complainant's case would quickly emerge given that she now had a legal representative who had apparently been engaged in better defining the issues for inquiry (I refer to Dr Bell's involvement in the directions conference in Canberra in 3 February 1999 and the preparation and dispatch of the Statement of the Applicant's Issues, Facts and Contentions to the Commission and the respondent under cover of his letter dated 3 May 1999).
Accordingly, the decision was taken to hear the evidence of the complainant. It soon became apparent that Ms McLaughlin herself was clearly in control of her case and its manner of presentation. The presence of Dr Bell at the bar table in this process became almost superfluous. Ms McLaughlin was apparently insistent upon dealing in detailed chronological order from the time she commenced her employment with every fact, issue or document which she perceived to be relevant and important to a hearing of her complaint. She seemed intent on conducting a wide ranging inquiry into every aspect of her employment. The usual dialogue which is an essential feature of presenting evidence-in-chief was absent and the matter proceeded with Ms McLaughlin apparently drawing upon her detailed preparation of the matter and her comprehensive knowledge of the voluminous documentation and the content of numerous documents within a series of lever arch files, which she was quickly able to identify, but with her counsel in the apparent role of a bystander. Several appeals to Ms McLaughlin to ensure relevance, to be more expeditious and/or to rely on the services of her counsel were either not heard or ignored. In the result the two days fixed for the hearing expired with the complainant still in "evidence-in-chief" and at a point in the chronology in which the relevant period (March 1993 - November 1993) had not even been reached nor had there been so far any significant reference to the officer of the respondent, Mr Thornton, against whom the substantial complaint had been made.
It is understandable when one has to focus on and to make findings arising out of facts occurring within a specified time span that it may be necessary to have regard to facts which have occurred outside that period because to do so may assist the better understanding of what occurred within the period. It was for that reason and to ensure that Ms McLaughlin's concerns were fully appreciated that she was afforded the opportunity to provide a sweeping body of evidence some of which dealt with pure matters of fact but most of which was a mixture of comment and submission and went far beyond what would normally be regarded as acceptable evidence in a hearing of this kind.
At the end of the hearing on the second day (18 May 1999) it was necessary to adjourn the further hearing to Monday, 31 May 1999. On the Friday preceding Monday 31 May 1999 the Commission was advised that the complainant would be unable to resume for health reasons and would not be attending. She required that the matter be adjourned. The decision in respect of an application for the adjournment which was made on Monday 31 May appears in the transcript. The further hearing was adjourned to 20 July 1999. A further six days was allowed for the hearing.
Upon resumption on 20 July 1999 Dr Bell did not appear and Ms McLaughlin informed the Commission that she would conduct her own case. Her "evidence-in-chief" continued until the morning of Friday 23 July by which time she had been in the witness box for almost five and a half days. On the afternoon of day 5 (22 July 1999), by which time she had apparently canvassed the relevant issues up to and including the circumstances of her resignation in 1993, I inquired of the complainant as to how long she intended to remain in "evidence-in-chief". In particular I sought information concerning any other documentation beyond November 1993 upon which she intended to rely. I pause to add that much of the documentation in the case had been generated by the complainant herself and was in the form of letters and other documents which she had herself composed. In answer to my query her indecisive response suggested an intention by her to deal with relatively few additional documents. Because of my concern as to the time taken so far and to ensure as far as possible that only probative material was to be used I requested the complainant to give to the Commission's legal officer immediately the remaining documents on which she proposed to rely and tender, so that on the night of that day I could consider the relevance of each. I was surprised to receive two bundles of documents containing in total another 110 documents. I examined each document in turn and on the morning of Friday, 23 July 1999 I ruled in respect of each of them. My ruling will appear in the transcript.
Later, on the morning of the same day, Ms Court commenced to cross-examine the complainant with specific reference to the issues alleged in the Applicant's Issues, Facts and Contentions document already referred to. On the morning of Tuesday, 27 July Mr Thornton, the only witness for the respondent gave evidence which was relatively brief. He was cross-examined by Ms McLaughlin until the hearing concluded at the end of that sitting day. Arrangements were then made for the parties to make written submissions and the decision was reserved.
On the next day 28 July 1999 by which time I had returned to Brisbane and the Commission's legal officer to Sydney, Ms McLaughlin wrote to the Commission advising her desire to further cross-examine Mr Thornton. I dealt with this application and gave to each party a written decision in favour of the complainant, subject to certain conditions. The matter ultimately resumed and concluded with the further cross-examination of Mr Thornton in Canberra by the complainant on 12 August 1999.
Finally, the complainant at the conclusion of cross-examination by Ms Court sought to exercise the right to "re-examine myself". She indicated her preference to do this in writing. As can be seen in the documents this "re-examination" really constituted a further series of comments and submissions. Again it should be recorded that in the course of cross-examination by Ms Court the complainant had insisted on handwriting the question asked and then her answer. When it was suggested to her that this was an unnecessarily time consuming task and that she might with advantage concentrate more on the questioning process rather than on attempting to reproduce the process in handwritten form, she appealed to her poor memory as justification for this unorthodox course. She might easily have sought the assistance of friends who were supporting her generally throughout the hearing.
The unnecessarily lengthy hearing which has several unorthodox features presented the opportunity to better assess the complainant and the many issues which are involved in her complaint whether express or to be implied.
There can be no doubt that Ms McLaughlin has an intense and deep seated concern not only that she has been unjustly and unlawfully dealt with by the various agencies of the Commonwealth with which she had been concerned in the course of her employment, but also that she had been the victim of unlawful discrimination by Mr Thornton. At the same time she was intent on variously labelling Mr Thornton as dictatorial, unyielding, high handed and arbitrary. These intensely subjective assessments by Ms McLaughlin will need to be scrutinised. It is worthy of mention however that in the course of her employment she demonstrated, I am sure, a persistent and at times an unnecessarily aggressive attitude towards several personnel in the employment of the respondent. Ms McLaughlin no doubt submits that her several lengthy approaches to Commonwealth personnel, which she saw as necessary, were a product of her frustration and her apparent inability to obtain what she perceived as a proper outcome in a particular case because of a total failure on a part of others to "accommodate" her illness(es) and disability. At various times in the chronology of events she described herself as "disintegrating". Whilst there is no doubt and it is agreed that one or other of her several illnesses in the relevant period impacted heavily on her lifestyle and in her mind constituted grave risks for her wellbeing, it is my view that this understandably idiosyncratic or egocentric view failed frequently to do justice to the responsible and reasonable efforts of many others in the employment of the Commonwealth including Mr Thornton. The considerable efforts of others can be compendiously described as having been done in good faith and they were concerned not only to do what was seen to be best for the complainant in the circumstances at the particular time but which were also consistent with and in some cases required by the legal and administrative procedures laid down by the Commonwealth.
Again a clear view emerged that in any case where the complainant perceived herself as not having achieved the outcome she desired she hastened unduly to a conclusion that she was being dealt with unfairly - indeed that she was being discriminated against unlawfully in breach of the Act. A not dissimilar scenario emerged from time to time in the course of the hearing.
I have dealt with the hearing and my assessment of the complainant in some detail in an attempt to capture a broadly based picture of the complainant over a long period, her frequent want of objectivity in her assessment of others, her apparent inability to recognise in Mr Thornton a person who was appropriately sympathetic to her concerns but who at the same time was charged with the very difficult task of meeting Ms McLaughlin's expectations. One can genuinely sympathise with the complainant, a talented woman, who has much to offer but who has been very much constrained by the unfortunate illnesses which have beset her from time to time. The case however, requires a dispassionate and objective assessment of all of the relevant issues because in the ultimate result the fundamental task for the Commission in this inquiry must be to determine whether the respondent by its employee, Mr Thornton, acted unlawfully - a serious finding which can only be made if properly supported by the facts of the case and the proper application of the statutory provisions. It was readily apparent that frequently the complainant had lost sight of the main thrust of the Commission's inquiry. For Ms McLaughlin it became merely the opportunity and provided the forum for her to air any complaint which she may have had over a long period of time in respect of the whole of her employment by the Commonwealth.
It is essential in such a process to try to separate out of this confusing mass of contentious dialogue after some six years the relevant facts and circumstances which are properly comprehended by paragraphs 5.1, 5.2 and 5.5 of the Wilson decision. This process can be assisted by an examination of the contemporaneous documentation but only insofar as it assists a better understanding of the relevant factual scenario to which reference can relevantly be made. I have already noted that much of the documentation is self generated by the complainant and whilst it is clear that the complainant would give to her letters or submissions a certain value these need to be evaluated in the same process which is referred to above.
Needless to say the complainant had over a long period communicated with the legal section of the Commission either by telephone, facsimile or email. Any decision or response to inquiry by the Commission either before or during the period of the inquiry seemed only to provide the occasion for generating further documentation. I mention this in the context of my attempting to obtain written submissions which the complainant had indicated was her preferred methodology for putting any submission of law or of fact to the Commission. Any deadline set for this became incapable of being met. The evidence had finally concluded on 12 August 1999 and by late October 1999 the Commission still awaited a response. Since to me it seemed almost impossible to obtain finality a decision had to be taken which is reflected in the letter which I directed should be written to the parties on 27 October 1999. By this time I had for a long period deferred any consideration of the voluminous material until I had received, in particular, Ms McLaughlin's submissions. In my view she had in the course of her evidence engaged largely in advancing matters of comment and argument and whilst I questioned in my own mind whether further submissions would assist me, out of an abundance of caution I decided to await the receipt of further material the content of which was, I am certain, fairly predictable. When it seemed increasingly impossible for deadlines to be met I took the decision to conclude the matter and to enter upon a consideration of the issues. The ensuing holiday period and other commitments has unfortunately delayed my finalising this determination.
4. EVIDENCE AND FINDINGS
4.1 The Wilson decision and the complainant's statement of issues
In this determination under the earlier heading "The Complaint to the Commission" and "The Wilson decision" one can examine and catalogue the matters in respect of which complaint was made to the Commission under the Act. The decision of the Disability Discrimination Commissioner not to inquire was reviewed by Sir Ronald Wilson, delegate of the President of the Commission, and his decision on review thereupon determined which of those matters should become the subject of inquiry. These are set out in the Wilson decision in paragraphs 5.1, 5.2 and 5.5.
As pointed out above the evidence of the complainant extends far beyond the factual issues dealt with in those paragraphs and the complainant frequently asserted that the Wilson decision was confusing and unclear. It is therefore necessary to deal with it because it was a persistent theme in the course of her evidence and comments that she proposed to deal with the contents of the Wilson decision in her submissions. As will be seen the decision as to the matters to be left for inquiry is clear and easily intelligible in the light of the whole body of material. The respondent's counsel when she ultimately cross-examined the complainant did so specifically with reference to it and to the Statement of Issues, Facts and Contentions which had been prepared by or on behalf of the complainant and delivered to the Commission shortly prior to the date fixed for hearing on 17 May 1998.
Paragraphs 5.1, 5.2 and 5.5 contain the matters identified by Sir Ronald Wilson which in his view should be referred back to the Disability Discrimination Commissioner so that she continue to inquire into them. It is these matters which are referred for further inquiry by the Commission.
This paragraph refers to the complainant's allegation that on the ground of her disability she was treated less favourably by the DSS:
* in the administration of pay and personnel decisions; and
* on account of the failure of DSS to resolve the conflict between her and her personnel supervisor.
The "personnel supervisor" was Mr Thornton to whom reference has already been made.
The Wilson decision involves a finding that "in the period March 1993 to November 1993 only" there may have been discrimination in the administration of her pay and leave entitlements. Sir Ronald Wilson notes that the problems experienced by her in relation to such matters may have arisen because of the complexity of the issue "because her pay was regularly a combination of pension, sick leave, recreation leave and flex leave" and not because of discrimination. However, he concludes that "there may be sufficient evidence that the manner in which the complainant was treated after the rectification of the pay and leave difficulties may amount to discrimination" (the underlining is mine).
Therefore it is clear from paragraph 5.1 that, in Sir Ronald's view, the first of the two issues referred to at the commencement of the paragraph, namely, the "administration of pay and personnel decisions" may have been a source of discriminatory conduct towards her in the period "after the rectification of the pay and leave difficulties". It is that matter which in Sir Ronald's view required further inquiry.
This paragraph addresses the second of the two issues referred to in the opening sentence of paragraph 5.1 namely "the failure of the DSS to resolve the conflict between her and the personnel supervisor". Paragraph 5.2 simply repeats that part of paragraph 5.1. In Sir Ronald's view "by failing to address her conflict with her manager..." there may be sufficient evidence that the complainant was treated less favourably than a person without a disability would have been treated.
This paragraph speaks for itself. Sir Ronald was of the view that the issue whether or not DSS could have or would have but for the complainant's disabilities provided a transfer or placement (as opposed to arranging re-deployment) prior to her resignation required further investigation.
In summary therefore the matters left for further inquiry by the Wilson decision were these:
* whether, in the period March 1993 to November 1993, the complainant was discriminated against in the manner in which she was treated after the rectification of pay and leave difficulties;
* whether, in failing to address her conflict with Mr Thornton, the complainant was discriminated against on the basis that she was treated less favourably than a person without a disability would have been treated; and
* whether the DSS could have or would have but for the complainant's disability provided her with a transfer or placement (as distinct from re-deployment) prior to her resignation.
The Statement of the Applicant's Issues, Facts and Contentions dated 3 May 1999 seems to assume acceptance by the complainant of the limited inquiry required as a consequence of Sir Ronald Wilson's review of the Disability Discrimination Commissioner's decision not to inquire at all. As the transcript of her evidence will show that assumption proved to be false and the complainant was intent upon ranging over a much wider matrix of fact than that envisaged by the Wilson decision. Before proceeding it may be helpful to summarise some relevant chronology:
August 1991-August 1992
Ms McLaughlin was employed in Social Policy Division of DSS. (During this period she was treated for a breast malignancy)
Seconded to the RIM taskforce, Department of Treasury
Sought counselling from Ms Johanna Stephens. (The latter proposed the option that the complainant undertake part time employment and that she apply for a partial invalidity pension.)
23 February 1993
Dr Heathershaw's report - that the complainant undertake reduced permanent part time work. (Permanent Partial Disability was granted as from 13 January 1993)
January 1993 - March 1993
Part time employment at the RIM Taskforce.
The complainant fell ill and left work.
2 May 1993
The complainant applied for Workers Compensation.
23 June 1993
The complainant returned to work at DSS
13 July 1993
The complainant left work - compensation payments resumed.
5 November 1993
The complainant resigned from Australian Public Service.
This chronology points only to the major factual events around each of which there has grown a sizeable body of documentation which itself has generated a gloss of allegation and accusation, assertion and counter assertion and also in my view, substantial misconceptions and/or misunderstandings. The chronology also encompasses the period of inquiry covered by the Wilson decision. It is perhaps coincidental that the more significant sections of the Act including those which are of particular significance for this case were proclaimed to commence on 1 March 1993.
It is in my view appropriate therefore to examine the factual issues by reference to:
* the administration of pay and personnel decisions;
* the alleged failure of DSS to resolve the conflict between her and Mr Thornton; and
* the question whether she was discriminated against by the alleged failure of DSS to provide for her a transfer or placement (as opposed to re-deployment) prior to her resignation.
4.2 Paragraph 5.1 of the Wilson decision - the administration of pay and personnel decisions
In her statement the complainant alleges that in the period March - 23 June 1993 she had "continuing problems with Mr Thornton" over his "timely and appropriate resolution of problems affecting
1. crediting of sick leave,
2. payment of partial invalidity pension back pay,
3. payment of approved salary,
4. access to anticipated sick leave entitlements and advanced salary payments,
5. implementation of permanent part time arrangements, and
6. implementation of the flexible work hours recommended by the CMO".
It will be helpful to take each of these in turn and to then consider the alleged failure of DSS to resolve what the complainant alleges was a consequential "conflict" between herself and Mr Thornton which allegedly arose as a consequence of the pay and personnel decisions referred to. As will be seen it is a significant part of the case for the respondent that whilst difficulties arose in the management of these matters by the DSU and in particular Mr Thornton and others, the difficulties were a consequence of the complexity which attended her employment and related issues on account of her persistent ill health. The respondent's case is that in spite of this complexity and the fact that Ms McLaughlin at times presented to the relevant staff in an aggressively persistent and demanding manner every conceivable effort was made to relieve her concerns and that Mr Thornton, a competent and caring officer, did all that could be reasonably expected of him. The notion that Mr Thornton acted towards or dealt with Ms McLaughlin in the relevant period in a discriminatory and unlawful manner is rejected. She was one of several employees whose employment gave rise to pay and personnel matters which required the attention of Mr Thornton and/or his staff. Mr Thornton would say that whilst hers was a difficult case, perhaps at the time the most difficult case which he and his staff had to contend with, every effort was made to deal sympathetically with the complainant's concerns and to ensure their resolution within the legal and official framework which was in place in the Public Service. The submission that because of her disability she was discriminated against is rejected by the respondent. I will address each of the six matters listed. It will be convenient to deal with each in the order which is set out below.
4.2.1 Issues relating to the payment of approved salary
In relation to this and the other issues the focus for the complainant's complaint is Mr Thornton. The only persons she dealt with in relation to all of the listed items were Mr Thornton, Ms Yates and Ms Morley. In respect of Ms Yates the only evidence of the complainant which focuses on her was in relation to the matter to be dealt with later and which is covered in the content of paragraph 5.5 of the Wilson decision concerning her resignation from the Public Service in November 1993. In respect of Ms Morley the complaint insists only on lack of communication on her part.
In the period January - March 1993 the complainant was employed in the RIM Taskforce. On 28 January 1993 she was examined by Dr Heathershaw whose report is dated 22 February 1993. This examination was organised by Mr Thornton and is referred to in his letter dated 19 January 1993 (page 13 Exhibit 30).
In her letter which is undated but which it is agreed was written on or about 31 March 1993, Ms McLaughlin referred to the questions which she needed to resolve as being "the outstanding salary repayment and my sick leave credits".
Errors had been made in payment of salary. During the relevant period the complainant had been on sick leave from time to time and because sick leave forms and like formalities had been presented and dealt with irregularly errors were made in payments of salary to the complainant. It was said that "9 out of 10" payments contained an error and had resulted in an overpayment to her for a variety of reasons.
However, the contemporaneous documentation makes it clear that rather than be a cause for complaint by Ms McLaughlin, the manner in which the Department dealt with the overpayment issues was both timely and efficient. In Exhibit 32 the complainant refers to a difficulty being resolved "in a couple of hours of goodwill". However, the same document refers to DSU personnel adopting an "unhelpful position" and this conceivably relates also to the resolution of the overpayment of salary issue. In her letter to Mr Thornton (page 33 Exhibit 30) dated 3 May 1993 the issue of sick leave and overpayment of salary is summarised and the gross overpayment is estimated at the sum of $2,600.00. The overpayment and the complainant's liability to repay it were a matter of concern to her and she sought advice from Care - a credit and debit counselling service. On 2 April 1993 a counsellor wrote to Mr Thornton and offered, on behalf of the complainant, to repay the debt at the rate of $10.00 per fortnight with a review in 12 months time. The same letter raised another matter to be dealt with later, that is, that the complainant on 15 April 1993 be allowed to anticipate sick leave credits which would not fall due until 15 April 1994. The letter dated 2 April 1993 (page 18 of Exhibit 30) was noted with the following - "Peter Thornton has agreed to $10.00 recovery on overpayment". That is the offer to repay at the rate of $10.00 per fortnight the overpayment of $2,600.00 was accepted. This rate of repayment would extend the repayment period to approximately 10 years. This generous response by Mr Thornton could not be described as "unhelpful". There is little doubt that each matter in issue, including this one, caused the complainant some degree of stress. On the other hand all the other material points to a concerned response by DSU staff to the complainant's concerns. In his letter dated 5 July 1993 (page 66 Exhibit 30) Mr Thornton was addressing the flexible working hours issue in a letter to the complainant (this issue will also be dealt with below) and there he pointed out that the "salary problems" had arisen because of technical problems in the computer system but that staff had rectified problems as soon as possible. I am satisfied that this was so.
Concerning this aspect of the complaint one cannot find any evidence of the complainant being treated less favourably by Mr Thornton or by any other person in DSU in respect of this issue. On the contrary it is clear enough that the complainant presented frequently as one who was anxious and concerned and who on account of her poor health persistently saw Mr Thornton as the source of her anxiety and concern. This perception did not coincide with the reality which was objectively demonstrated by Mr Thornton in seeking to respond to each concern in a way which would relieve Ms McLaughlin of her persistent anxiety. Whilst I am satisfied that Mr Thornton did all he reasonably could in this respect to ensure that administrative matters relating to Ms McLaughlin's employment were dealt with in a timely and proper manner, it was never likely that in all respects he would be able to meet the complainant's expectations. There is certainly no basis for a finding in relation to this issue that he unlawfully discriminated against her on account of her health. Rather his main concern was to ensure that any issue which arose because of her health was dealt with properly and sympathetically.
4.2.2 Access to anticipated sick leave entitlements and advanced salary payments
Again in respect of this matter it is alleged that the complainant had "continuing problems" with Mr Thornton concerning his "timely and appropriate resolution" of the matter.
In the letter from Care dated 2 April 1993 (page 18 Exhibit 30) which offered terms in respect of the repayment of the overpayment of salary, the counsellor had raised this issue with Mr Thornton. At the same time, perhaps a few days earlier, the complainant had raised this issue as one of the questions requiring resolution. The amount of sick leave available to her at any one time had in the past been of concern to the complainant. In April 1992 she had anticipated sick leave credits due in April 1993. Now in April 1993 she saw the need to anticipate her sick leave credits which would normally not have become due until April 1994. The final paragraph of her letter, written probably on 31 March 1993, requested Mr Thornton to "anticipate the sick leave credits due at 15 April 1994 at the 1993 anniversary date". That date was 15 April 1993. There was a strict rule which bound Mr Thornton that the credits could not be made available prior to the 12month anniversary date. According to Mr Thornton (his letter dated 3 June 1993, Exhibit 36, in response to the grievance lodged by the complainant) the request was agreed to immediately it was received but as pointed out it could not become effective before the anniversary dated 15 April 1993. In fact the credits were advanced on 15 April 1993.
In spite of this some controversy ensued which in my view was at worst a misunderstanding. It was Ms McLaughlin's expectation that on the date the credits were advanced there would be immediate payment on that day. Mr Thornton, it seems, expected that now that further sick leave entitlement was available to Ms McLaughlin the funds would be paid in the normal pay day cycle. She had previously spoken to Ms Morley about the matter and she was "certain" that Ms Morley understood the complainant's expectation that payment would be made on 15 April 1993. In fact the payment was not made on 15 April 1993 but on the following day or within the next few days. Ms McLaughlin described Mr Thornton's failure to pay the monies on 15 April 1993 as a decision which was "high-handed" "arbitrary" and "nasty".
It seemingly had been Mr Thornton's intention that, once the credits became available one year earlier than would otherwise have been the case and bearing in mind that the entitlement was a yearly entitlement, the first payment would be made on the next fortnightly payday. When the funds did not appear as anticipated by her she made representations to Mr Thornton based on her impecuniosity. He apparently accepted her representations and on the next day made arrangements for the money to be paid. They were in fact paid immediately after the matter had been processed.
This issue was one which really involved Ms Morley and the complainant. The latter gave evidence of what she understood to be Ms Morley's understanding of her (the complainant's) expectations concerning the payment. Having heard Mr Thornton's comments generally, it is apparent that the pejorative terms which she applied to him in respect of this matter have to be rejected. Whilst she could not remember this matter of detail I am satisfied that the delay which would have normally attended the actual receipt of the funds was nothing other than an assumption that once the decision was properly made to allow the anticipated credit that the payments would be made in the normal course. When the funds were not credited to her bank account on 15 April 1993 prompt action was taken and on the next day or within the next few days the necessary administrative action was taken and the funds were credited to her account. The notion that in respect of this matter the complainant was dealt with in an unlawful and discriminatory fashion has to be rejected.
4.2.3 The implementation of part time work arrangements
This issue has its genesis in January 1993 when the complainant was working in the RIM Taskforce. In December 1992 her previous supervisor at DSS, Mr Gallagher, had also been appointed to the RIM Taskforce and this was a matter of concern to the complainant. So much so that she sought counselling from Ms Stevens again. Her health was poor and the question of her working part time hours was canvassed. She also explored with the RBO the prospects of her obtaining PIP in accordance with the relevant superannuation scheme. The planning seemingly involved the notion that if she could obtain PIP from the RBO she could also work part time hours. Thus the income from these two sources would provide for her support. In a letter dated 12 January 1993 (page 12 Exhibit 30) she wrote to Mr Gallagher, then her recently appointed supervisor, and discussed the issue. The letter raised the need for an assessment by the CMO and she suggested, on Ms Stevens' advice, the idea of an examination by Dr Heathershaw. On 19 January 1993 Mr Thornton advised Mr Gallagher that an appointment had been made for the complainant with Dr Heathershaw for 28 January 1993. Meanwhile, Ms McLaughlin had obtained a medical certificate as from 14 January 1993. It will be recalled that previously reference was made to two letters written by Mr Gallagher to the CMO dated 25 January 1993 (Exhibits 16 and 17) in the context of his assessment of her then working capacity.
In a detailed letter dated 28 January 1993 (Exhibit 19) the complainant explained to Dr Heathershaw her state of health and its relationship to her employment. On 28 January 1993 the latter's brief interim report stated that the complainant "is fit for duty as an AO6 working flexible part time hours to average no less than 20 hours a week". Her more detailed report (Exhibit 29) is dated 22 February 1993. It identifies a longstanding condition of chronic fatigue syndrome and recommended that:
* Ms McLaughlin should reduce to permanent part time work and her hours should be flexible to accommodate her fluctuating medical condition but should average not less than 20 hours per week; and
* the RBO be approached to obtain a partial invalidity benefit.
On 10 March 1993 (page 14, Exhibit 30) the complainant wrote a memorandum which evidenced a proposal that she transfer from the RIM Taskforce to the Social Policy Division of DSS at the beginning of May 1993 and noted the proposal that she engage in part time work. The memorandum also noted the need for her to occupy a disabled car parking space, the need for an efficient air-conditioning facility, that she not be required to use a photocopying machine and that she be located away from traffic corridors and passers-by who may be wearing perfume. She expressed the "hope" that her immediate colleagues would "forego the use of perfumes and pot-plants".
On 1 April 1993 the complainant made application for permanent part time work (PPTW) see page 15 Exhibit 30. The application was transmitted to Mr Thornton's office on that day by facsimile when the complainant was en route to Melbourne. She had about one hour earlier phoned the office and had requested that the application form be transmitted to her which it was. This was on the Thursday before the traditional Easter holiday period. By 8 April 1993 all of the required formalities were completed and PPTW was approved. The prompt and timely matter in which this matter was dealt with is obvious on the face of the relevant documents.
On 13 April 1993 Mr Thornton wrote to the complainant (page 22 Exhibit 30) and advised that approval had been given "on the basis of an agreed attendance pattern of 20 hours a week". The letter went on to state that any variation of the agreed hours required formal approval and that any request for variation had to be requested "through your Branch Head". The conditions attaching to PPTW were explained in the letter.
As will be seen the implementation of the PPTW arrangements became extremely contentious for the complainant. For Mr Thornton the matter of PPTW was settled and all that awaited final conformation was for him to be advised of the "agreed attendance pattern". As he explained the only matter which ultimately remained outstanding in his dealings with Ms McLaughlin was in his view for her to settle this outstanding issue and advise him. No finality it seems was ever reached.
The implementation of the PPTW arrangements and the need for agreed work hours was an ongoing issue and remained outstanding at the time of her resignation in November 1993. It is necessary to consider this issue in association with that which concerned the crediting of sick leave and the payment of PIP. These latter two matters which can be conveniently dealt with together are the first two of the six issues identified in the complainant's Statement of Issues, Facts and Contentions.
This somewhat complex issue needs to be examined in this context. The CMO, Dr Heathershaw, had recommended a "flexible" working arrangement of not less than 20 hours per week. Mr Thornton and other staff in DSU, in particular Ms Yates, were working on the basis that the work arrangements would be flexible and of 20 hours duration and that any hours worked less than 20 would be taken as sick leave or leave without pay depending upon the available entitlements. Further, it was understood that the PIP payable by the RBO was based on her working 20 hours at DSS.
On 16 April 1993 (page 24 Exhibit 30) Ms Morely wrote to the RBO advising that:
* the complainant had worked no more than 20 hours per week since 11 January 1993;
* her fortnightly salary since 13 January 1993 had been reduced by "sick leave half pay which has now been exhausted"; and
* as from 7 April 1993 Ms McLaughlin had been on sick leave without pay.
The RBO response dated 22 April 1993 became for Ms McLaughlin a source of considerable tension. That letter advised DSS that PIP had been approved and it had been determined that the complainant had an entitlement to PIP "with effect from 13 January 1993". The letter further advised that -
"...this date has been determined based on the premise that the half pay sick leave used by Ms McLaughlin during the period 13 January 1993 to 7 April 1993 will be recovered. If recovery does not occur the calculation set out below (in the same letter) will be incorrect and it will be necessary for you to refer the matter back to this office before you commence paying the benefit."
On the next day 23 April 1993 Mr Thornton advised the RBO that as Ms McLaughlin was a full time officer from 13 January 1993 to 7 April 1993 (part time work was not approved until 13 April 1993) it was not possible to re-credit her sick leave for that period. The letter requested a recalculation.
Immediately following these determinations the issue became contentious. Ms McLaughlin on 28 April 1993 (page 28 Exhibit 30) expressed her disagreement with what had been said and asserted - "...I do not understand how the sick leave from January to cover the reduced hours cannot be re-credited". It is unnecessary to refer to each item of correspondence nor to the detail of the several telephone conversations. Finally, Ms Morley on 29 April 1993 (it is likely Mr Thornton was on leave at this time) asked Ms Hollis to reply. The latter's letter in response is dated 6 May 1993 in which Ms Hollis advised that in providing the advice she had consulted with the Department of Industrial Relations and the Public Service Commission - (see pages 36/7 Exhibit 30). On 7 May 1993 (pages 39/40 Exhibit 30) Mr Thornton advised the complainant concerning the advice given by Ms Hollis the content of which is contained in the letter. He concluded with the advice that the RBO was engaged upon a recalculation of the PIP as from 13 January 1993 on the basis that it was not possible "to re-credit your half pay sick leave". That recalculation was advised by the RBO in a letter dated 10 May 1993 (page 48 Exhibit 30). Ms Morley's letter dated 13 May 1993 advised the result of the RBO recalculation.
The letter was hand delivered to the complainant on the evening of 12 May 1993. Although Ms McLaughlin vehemently complained that she was kept poorly informed (particularly by Ms Morley) in relation to dealings between the RBO and the DSU there is no sound basis for such a conclusion. The whole issue had arisen because of her 1 April 1993 application for PPTW and her seeking PIP from the RBO. This had produced contentious and competing views between various government agencies in the course of which the complainant remained intent on asserting her own views. The DSU had sought expert industrial opinion in relation to the issue. Not only did Ms McLaughlin freely express her dissent, she later pursued the issue further by seeking to reopen it. Her letter to Mr Thornton (received in DSU in June 1993) sought to have the issue "re-considered" (pages 54/5 Exhibit 30). Mr Thornton's prompt response of the same day (page 56 Exhibit 30) restated the official Departmental advice.
Meanwhile Ms Morley had sought advice about the implementation of the PPTW arrangements and by letter dated 29 June 1993 it was made clear that the complainant "in consultation with her supervisor and the PPTW committee must specify her weekly hours of attendance". On 30 June 1993 Mr Thornton advised the complainant accordingly in anticipation of her advice concerning "your hours per day". I will return to this shortly.
On 11 July 1993 (page 73 Exhibit 30) Ms McLaughlin withdrew "my request to re-credit sick leave" although she remained convinced "that my interpretation of the intentions and possibilities of recent legislation is that sick leave should be re-credited for partial invalidity benefit". This issue had been enlivened by her application for PPTW on 1 April 1993 and the RBO determination to grant PIP on 22 April 1993. In the context of the RBO and the DSU resolving issues as a result of the complainant's proposed work arrangements, which itself produced differing views, the DSU remained intent on ensuring that its view was sound and in accordance with relevant legislation and departmental rules. Ms McLaughlin's dissent and her persistent refusal until 11 July 1993 to accept the advice was in the interim the occasion for her to believe that the DSU and Mr Thornton in particular were intent only on frustrating her. The truth is that he and Ms Morley did all that they could to ensure that the complainant received that to which she was justly entitled. Her dissatisfaction has now been elevated to the point of claiming that in this and related respects she was unlawfully discriminated against.
There is no sound factual basis for such an allegation. It has to be rejected.
It is significant that in her letter dated 11 July 1993 referred to above she again referred to "flexible working arrangements". This needs to be seen in the context of Ms Morley's memorandum to the Director, Personnel Services, dated 24 June 1993 (page 50 Exhibit 30) in which she notes, concerning the complainant, that the original recommendation was for "flexible" hours but that since the approval of PPTW no set hours were agreed. He sought advice on the matter. Upon receipt of advice on 29 June 1993 that there was a requirement for Ms McLaughlin in consultation with others to specify her weekly hours of attendance, Mr Thornton on the next day, 30 June 1993 (page 60 Exhibit 30), wrote to the complainant and requested her to advise and at the same time indicated that a meeting of the PPTW committee would be arranged upon receipt of her advice. Finally, on 5 July 1993 Mr Thornton again wrote to the complainant in response to her letter of the same date in which he sought to achieve some satisfactory outcome concerning this outstanding matter. He repeated that in respect of the issue relating to the re-crediting of sick leave "there is no other way of handling your situation". He went on to request that, having discussed the matter of "the working hours" with "your supervisor" - "I would appreciate knowing the standard hours agreed between you by Friday 9 July 1993". His letter concludes:
"the only outstanding matter deals with your hours that will be deemed as your standard part time hours and I am hoping with your assistance that this matter will be resolved by the end of this week."
Ms McLaughlin finished work on 13 July 1993 after having been at work since only 23 June 1993 and she did not subsequently return to employment. She was insistent that by 13 July 1993 she and Mr Roger Brown, her supervisor, had reached an agreement on flexible hours and that this had been advised to Mr Thornton. I cannot accept this evidence because it is wholly inconsistent with the documentary evidence subsequent to Mr Thornton's letter of 5 July 1993 referred to above.
Ms Yates replied to Ms McLaughlin's letter dated 11 July 1993 (page 73 Exhibit 30) on 13 July 1993 (page 74 Exhibit 30). Further information had recently been received in the Department from the Department of Industrial Relations (page 67 Exhibit 30). A copy of this advice was given to Ms McLaughlin. Ms Yates was concerned to ascertain whether the new directive from the Department of Industrial Relation would impact on Ms McLaughlin's pension payable by the RBO. On the same day, 13 July 1993, Ms Morely wrote to the RBO (Exhibit 48). The complainant wrongly perceived this to mean that her right to flexible working hours was being put in issue. However, on 5 August 1993 Ms McLaughlin spoke to Ms Morely who noted that the complainant was now fully appraised of the matter raised by the Department of Industrial Relations' circular and noted - "she (Ms McLaughlin) does understand now the reason for our request for specific daily hours and this should not now cause any further problems."
Clearly the longstanding issue for Ms McLaughlin which required her and her supervisor to agree on "specific daily hours" had remained outstanding. On the same day Mr Thornton noted that the complainant had informed him that her hours would be Monday to Friday, 9.30 am to 1.30 pm. This was acceptable to Mr Thornton "so long as we get the arrangements down on paper." Clearly if the hours had been agreed upon the process was yet to be finalised. Mr Thornton's further letter to the complainant dated 25 August 1993 (page 84 Exhibit 30) again dealt with the question of flexible hours in the light of the advice from the RBO. At this time Ms McLaughlin was off work and she was again requested to finalise the agreement concerning hours with Mr Roger Brown.
On 7 October 1993 Ms McLaughlin met with Dr Scott and Ms Vanessa Marsh. Dr Scott was engaged by the rehabilitation provider Health Access Pty Ltd which itself had been engaged by the Department to provide rehabilitation services for Ms McLaughlin. She had made an application for workers compensation to Comcare; she had been off work since 13 July 1993 and the focus had by October turned more towards her rehabilitation and her return to work as part of the rehabilitation process. It was that issue which probably brought the rehabilitation service provider Dr Scott and Ms Marsh, the liaison person, into contact with Mr Thornton. On 14 October 1993 Mr Thornton and Ms McLaughlin spoke on the telephone (page 100 Exhibit 30). In that conversation Mr Thornton read to her his notes of his meeting on 7 October 1993 with Dr Scott and Ms Marsh. Mr Thornton noted that the complainant said that she would be pursuing the matter of the "20 hours per week". She expressed her view that the RBO was in error (probably a reference to the RBO letter dated 19 August 1993 - page 93 Exhibit 30). She indicated that she proposed to address the issue further with Dr Scott. I am satisfied that as between Mr Thornton and Ms McLaughlin the issue was for all practical purposes concluded by August 1993. A formal written agreement in respect of hours was outstanding but Mr Thornton expected he would receive it. Thereafter when the issue was raised by the DSU with the RBO the latter had replied and Mr Thornton, having passed on the letter from the RBO, regarded the issue henceforth as one between the complainant and the RBO. Henceforth in October 1993 it was clear that the complainant proposed to pursue the issue of the RBO involvement with Dr Scott who had by now assumed the role of rehabilitation service provider. He was an independent person in all of this and whilst the person engaged to provide rehabilitation services, he was not a Departmental person as such.
The above does not attempt to address each item of evidence relevant under this heading but rather with reference to the contemporaneous documents it presents the factual position in broad outline. The issue of flexible hours consumed the attention of the parties, particularly the complainant, along with other related issues between January 1993 and October 1993. It had involved interaction with other agencies such as the Department of Industrial Relations and the RBO. So far as Mr Thornton is concerned, the documents and his evidence which I accept, persuade me that the DSU personnel were at all relevant times responsive to the needs of the complainant to have flexible working hours implemented and sought to accommodate her needs within departmental and public service requirements. At the same time they were solicitous for her well being knowing of the relationship between the RBO and the grant of PIP and her requirement for PPTW.
In my view there is no basis for a finding that in any respect concerning this issue Mr Thornton acted in any discriminatory way towards the complainant. Rather, it is apparent that he approached the matter in a professional and appropriate manner, at the same time intent on accommodating Ms McLaughlin's medical condition and the restrictions which that imposed on her working life. He was necessarily intent on ensuring compliance with governmental regulations and policies. In this environment the complainant often became stressed and she was no doubt vulnerable in the face of what she perceived to be decisions which she again perceived to be adverse, all because of the fragile state of her health. It should also be noted however that the somewhat volatile relationship between herself and DSU personnel also impacted significantly on the latter who had to cope with her persistent and marginally aggressive correspondence and lengthy phone calls and at the same time seek to satisfy the needs of many other employees who were reliant upon the DSU for their personnel requirements.
4.3 Paragraph 5.2 of the Wilson decision -- the alleged failure of DSS to address conflict between the complainant and Mr Thornton
There needs to be written into the chronology of events as set out above from March 1993 the fact that on 2 May 1993 the complainant made a claim to Comcare for compensation and on 9 May 1993 she lodged a grievance against Mr Thornton in accordance with Public Service procedures. Her claim for compensation (Exhibit 32) and the grievance (Exhibit 33) emerged in the context of the pay and the other personnel issues which have been dealt with above. It is significant that in her grievance document dated 9 May 1993 she states:
"I believe that Mr Thornton has made wrong decisions, that he has failed to give me information that I needed and requested, that he has ignored my request to reconsider his decisions. I assume he did all this in good faith but - ..."
Among other outcomes sought by her was the following:
"G - a mediated outcome between myself and Mr Thornton so that he understands why I have formed my views and taken the actions that I have. I hope that such understanding will prevent any further difficulties between he and myself."
The report on the grievance by Mr Parkes dated 25 June 1993 is in the documents presented to the Commission (pages 492-494). That document speaks for itself. One of the recommendations was that "a mediated discussion take place with Mr Thornton as requested with a mediator to the satisfaction to Ms McLaughlin."
Accordingly, as at 25 June 1993 the complainant in the course of pursuing the grievance had requested a mediation and that process was to involve a mediation by a person of Ms McLaughlin's choice. Mr Thornton had agreed to participate in the process although he did not believe that, from his point of view, there was any issue which required mediation. By this time many issues had been raised and addressed. Ms McLaughlin, at least since March 1993, had actively pursued her several concerns with Mr Thornton and other DSS staff and Mr Thornton believed that by the end of June 1993 he and his officers had to the best of the their ability addressed the several concerns and whilst in every respect it was clear that all of Ms McLaughlin's expectations may not have been met he and his staff had sought to resolve the issues in accordance with legislative and other government requirements by which they were bound. By June 1993 so far as Mr Thornton was concerned all that remained was for Ms McLaughlin to submit in writing the agreed hours referrable to her PPTW arrangements and for her to arrange a mediator to her satisfaction. Meanwhile Mr Thornton continued to pursue his commitments within the DSU. It is clear that in respect of the outcome of the grievance it was the complainant who was to arrange for a mediator (see Exhibits 60 and 62). Both of these documents are dated 10 August 1993. So that by that date the mediation had not yet occurred and awaited the complainant's selection of a mediator. She had originally considered a particular person but later chose to rely on Dr Scott who was to become involved as the rehabilitation provider.
The complainant met with Dr Scott and Ms Marsh, the liaison officer, on 29 September 1993. It was agreed that both of the latter, Dr Scott and Ms Marsh, should have a meeting with Mr Thornton. This was the meeting that took place on 7 October 1993 and is referred to at pages 98/99 of Exhibit 30 and again on page 100 Exhibit 30.
Mr Thornton had made a diary note as a result of his meeting with Dr Scott/Ms Marsh in which he noted his belief that by October 1993 the same two issues remained outstanding; firstly, the "20 hours per week" question and secondly, the "mediated meeting" between Mr Thornton and the complainant both of which he noted are "waiting on action from Ms McLaughlin". Ms Marsh's note of the same meeting (Exhibit 71) notes her understanding as to how the issue might be resolved. Ms McLaughlin's return to work was then expected on 20 October 1993.
What might have been seen as a satisfactory outcome seems to have changed quickly because of a telephone conversation between Mr Thornton and Ms McLaughlin on 14 October 1993 in which an issue arose about a pay increment but more importantly because of the fact that it was suggested by Mr Thornton that Ms McLaughlin should be re-examined by the CMO prior to her returning to work. Ms McLaughlin's response to this was in my view unnecessarily contentious and negative. It is clear from her evidence in cross-examination that she adopted a view of Mr Thornton on account of this suggestion which is demonstrably quite false and by which she was intent on attributing to him motives which had no substance. I am satisfied that Mr Thornton saw the examination as desirable, if not necessary, because by October 14 1993 Ms McLaughlin had been absent from work for most of the period of the previous seven months and in view of her anticipated return to work on 20 October 1993 Mr Thornton thought it proper that having regard to her lengthy absence she should be examined by the CMO prior to her return. One cannot avoid the conclusion that Ms McLaughlin had by this time developed a negative mindset concerning Mr Thornton. Having observed the latter and listened carefully to his evidence it is clear that by October 1993 Mr Thornton had become non-plussed in the face of the varying nature of the contentious submissions which Ms McLaughlin had continued to put before the DSU. The suggestion of an examination by the CMO is a good example of the point. Mr Thornton's intentions were, I am sure, honourable. He was doing what he believed to be right yet Ms McLaughlin seemed incapable of recognising that and was more intent on attributing to him questionable motives for his suggestion. She had from the time of her contact with Dr Scott seemingly lost sight of Mr Thornton's willingness to engage in the suggested mediation to resolve whatever concerns she may have had. That matter had been put in her hands from August 1993 but she seemingly had done little if anything about it. Rather, the engagement of Dr Scott and the prospects of a rehabilitation process seemed to have from that time been dominating her mind and, of course, the ever contentious issue of working hours and "flexibility" remained. It is unnecessary to repeat that there were departmental requirements in respect of this issue which were apparently not negotiable and within which the flexibility question had to be addressed. It seems to me that Ms McLaughlin was never comfortable with nor accepting of such constraints and was intent on pursuing the matter as if it were at large. Furthermore, the finality sought by Mr Thornton from her in relation to the hours question never materialised.
On 18 October 1993 Ms Yates had a conversation with Ms McLaughlin (pages 104/5 Exhibit 30). It was initiated by Ms Yates who had phoned to give Ms McLaughlin the details of the car park which she had requested and which had been allocated to her in view of her anticipated return to work on 20 October 1993. Ms McLaughlin's response was that she had been to see her doctor (Dr Yuille) and would not be returning "for another two weeks". Ms Yates noted that she would have to advise "compensation" of that, no doubt because it had been expected that she would return to PPTW on 20 October 1993 - two days hence. Significantly, Ms McLaughlin went on to raise three other matters. Firstly, she queried "why is she being sent to the CMO?"; secondly, the payment of the increment and finally, she stated that "she still had a problem with dealing with Peter Thornton" and doubted that she could return to work "with him still working in the same area". Involved in this were newly perceived concerns which had only recently arisen - the increment and the proposed visit to the CMO. Mr Thornton had discussed these issues with her on 14 October 1993 and had attempted to explain. One week later when advising her intention not to return to work on 20 October 1993 it was these matters which were uppermost in her mind. Certainly they were matters of recent origin and, finally, she still had a "problem" with Mr Thornton to the point that she doubted her ability to return to employment with him working in the same area. The "problem" is noted by Ms Yates as "he didn't understand the financial problem". Nothing could have been further from the truth. It was and is demonstrable that in the course of his evidence Mr Thornton was concerned about the complainant's welfare; he was concerned about her financial position; he had, in a timely way responded to her concerns and attempted to relieve any financial concerns for her; he had for example, dealt with the repayment question very generously and he had responded immediately to her concerns in respect of the anticipated sick leave in April 1993. He had also dealt expeditiously with her application for PPTW in early April. Her expressions of concern about Mr Thornton to Ms Yates on 20 October 1993 had really left Mr Thornton in a hopeless position. His every move seems to have been the occasion for another contentious response. One is left with the definite view that Mr Thornton could only have been seen to be right had he done the very thing which Ms McLaughlin had requested on every occasion. However, as he frequently said in evidence, he had done his best within the restrictions to which he was subject.
In my view there is no sound basis for a finding that departmental personnel failed to address "her conflict with her manager". One can seriously question whether on the evidence put before the Commission a true "conflict" existed which required mediation. Mr Thornton simply did not see himself as being in conflict with Ms McLaughlin. Rather, he saw it as part of his responsibilities to address as best he could her concerns relating to her employment which were referrable to the chronic poor state of her health. He was aware of his seeming inability to satisfy all of Ms McLaughlin's concerns to her satisfaction but realistically he had to address them within a framework set by others. That no doubt made the complainant dissatisfied and generated for her what she perceived as a "conflict". In fact there was no true conflict. Rather, there was on the one side a perception of conflict which was largely self generated and on the other side, one who was attempting to meet all of the other, at times, unreasonable expectations unsuccessfully but who was nevertheless intent on fulfilling the legal and moral obligations to this employee which his position demanded.
Other senior departmental personnel became involved from time to time but they were more on the periphery and there is no sound basis for criticising them or Mr Thornton.
The allegation that she was discriminated against because of her state of health in respect of this matter has also to be rejected.
4.4 Paragraph 5.5 of the Wilson decision - the resignation issue - re-deployment, transfer or placement
The events leading immediately to the complainant's resignation really commenced with the conversation between the complainant and Mr Thornton on 14 October 1993 (pages 100-101 Exhibit 30) referred to above. As she told Ms Yates on 18 October 1993 she had been to see her doctor, Dr Yuille, and then she told Ms Yates that she would not be returning to work on 20 October 1993. Dr Yuille was to advise the rehabilitation provider, Dr Scott, that Ms McLaughlin believed that she could no longer work with Mr Thornton. It will be noted that the complainant was to work in the Social Policy Division. Mr Thornton's role was in personnel management in the DSU. As she said in evidence "it wasn't him being around that was the problem, it was his direct role in my work". That "role" was by reason of his position in DSU as a resource manager. He was not involved, nor did he have any "role" in the work Ms McLaughlin would do as part of her employment in the Social Policy Division.
It will have been noted that paragraph 5.5 of the Wilson decision draws a distinction between "a transfer or placement" and "re-deployment". The question which needed investigation in Sir Ronald Wilson's mind was whether the failure of DSS to offer the complainant a transfer or placement as distinct from re-deployment might have been discriminatory conduct on the part of DSS personnel and in breach of the Act. As will be seen, the complainant, at some time in 1994, after she had resigned became aware of paragraph 4.4 of Exhibit 80 - a policy document which addressed the question of "resignations". Paragraph 4.3 of the document dealt with the need for counselling the officer in question as "an integral part of the resignation process" in the course of which the counsellor should "ensure that the person has made a considered decision and is aware of other options or entitlements available". These options are stated in paragraph 4.4 of the document and include "transfer to a new work area". In the course of the evidence various terms were used by the complainant - Re-deployment with a "capital R", re-deployment with a "small r", placement and "a quick transfer". There is a process called re-deployment in the Public Service whereby a person can be re-deployed to work elsewhere in the Service. It is said to be a lengthy process and attended with some measure of formality. Ms McLaughlin would call that process Re-deployment with a "capital R". A placement or transfer or what Ms McLaughlin would call "re-deployment with a "small r" is a less formal process and seems to be considered more temporary in nature and it is said, could have been more easily arranged than formal Re-deployment with a "capital R". The policy document (Exhibit 80) uses the more generic phraseology "transfer to a new work area".
The issue identified for investigation by Sir Ronald Wilson was whether DSS had been unlawfully discriminatory in respect of Ms McLaughlin because of her disability by its failure to offer her a placement or a quick transfer rather than the more formal re-deployment. This issue seems to have been first raised in the course of the second grievance which she had lodged after her 1994 application for re-employment had been rejected. Her evidence was that in the course of that process in 1994 she first became aware of the policy document and in particular of paragraph 4.4 of that document. The investigation pursuant to the grievance had upheld the propriety of the decision of DSS in respect of the resignation and re-application. Thereupon an appeal was lodged by the complainant to the MPRA which was dismissed. This had led to the amendment of the complaint in July 1995 to include an allegation of discrimination against the MPRA which had been dismissed by Sir Ronald in his decision (see paragraph 5.9 of the Wilson decision.).
In the course of the hearing this issue focussed on whether Ms McLaughlin had been discriminated against because, at the time of DSS accepting her resignation the exit counsellor or any other employee of DSS concerned in her resignation, such as Ms Briggs, a senior officer of DSS, had not suggested that she might as an alternative consider a quick transfer or placement to other employment rather than engage in the more formal and cumbersome process of re-deployment.
Returning to the matrix of fact embedded in this issue it seems clear that her intention to resign emerged at some time in the period between 7 October 1993 and, at the latest, 14 October 1993. The earlier date had been the date of the meeting between Mr Thornton, Dr Scott and Ms Marsh; the later date had been the date of the telephone conversation between Ms McLaughlin and Mr Thornton concerning, inter alia, the meeting of 7 October 1993, the question of the pay increment and perhaps most importantly the suggested re-examination of the complainant by the CMO. After this conversation the complainant visited Dr Yuille, her GP, and expressed concern about Mr Thornton and his alleged inability to deal appropriately with the "flexibility problem". It was suggested that Dr Yuille speak to Dr Scott to explore the issue. It will be recalled that it had been the expectation of the latter that the complainant would return to work on 20 October but in a conversation with Ms Yates on 18 October 1993 Ms McLaughlin had advised that she would not be returning for a further two weeks. She had been off work since 23 July 1993. On 26 October 1993 the complainant had spoken to Ms Marsh (Exhibit 72). Their conversation seems to have addressed the issues which the complainant had discussed with Dr Scott and in the course of it I am satisfied that Ms McLaughlin made statements which were consistent with Ms Marsh's note "needs to go somewhere else".
One can, from the contemporaneous document, identify the matters which were operating in the mind of the complainant. Firstly, there had been her troublesome conversation with Mr Thornton on 14 October 1993. It needs to be recalled that this occurred in the context of the rehabilitation plan which was being overseen by Dr Scott assisted by Ms Marsh. This had envisaged her return to work on 20 October 1993. Secondly, on or about 15 October 1993 Ms McLaughlin had spoken to Dr Yuille who was to speak to Dr Scott. Thirdly, on 18 October 1993 the complainant had spoken to Ms Yates about the increment problem, why she is being sent to the CMO; and finally, that she still had a problem with "Peter Thornton...she didn't know how she could return to Social Policy with him still working in the same area". And finally on 26 October 1993 (Exhibit 72) she had expressed these concerns in a conversation with Ms Marsh (the "Rosie" referred to in the diary note is a reference to Dr Yuille).
On 27 October 1993 (Exhibit 73) Ms McLaughlin wrote her letter of resignation. The letter speaks for itself. Some features of it can be noted:
* her statement that she, the complainant, "had organised (her) thoughts";
* it contains a logical and measured presentation of the state of her health and the matters relevant to her employment which were affecting her; and
* she then addressed plans for her proposed rehabilitation and advanced a proposal for "my new working life".
Finally, she expressed her belief that "I will never again fit into the bureaucracy of the APS. I need to seek a fruitful working life". Mr Thornton is again identified as the source of her apparent inability to remain employed in the Australian Public Service. She expressed unequivocally her intention to resign for the reasons which she advanced.
While the complainant in the hearing referred to her resignation letter as a "cry for help" one can be reasonably confident that the letter was her considered response to a state of affairs which she believed was adverse and unsympathetic to her but which on the basis of any objective assessment was not nor had it been. She was clearly disillusioned with her employment and had considered plans for an alternative working life which would be more consistent with her fragile state of health.
It is important to recognise the response of the various government agencies to her stated intention to resign. Before doing that however, it is important to note her evidence at the hearing that the "trigger" for her letter of resignation was advice from Dr Scott that he was again considering a meeting with Mr Thornton. This fact is not referred to in the resignation letter. It is reasonably clear that the prior events referred to above present the context within which the resignation letter was written. Even had Dr Scott intended a further meeting with Mr Thornton one can be confident that both would have appropriately addressed any issue concerning Ms McLaughlin which needed to be raised. That proposal for a meeting could hardly provide the justification by itself for resignation. On the same date, 27 October 1993, Ms McLaughlin wrote to Mr Thornton a shorter more formal letter of resignation expressing her intention to resign "with effect from Friday 5 November 1993" (page 112, Exhibit 30). Arrangements were made for the exit interview with the complainant which was a departmental requirement. It was conducted by Ms Yates on 3 November 1993. I will return to it shortly.
On the next day, 28 October 1993, Mr Conlon of the Work Environment Section wrote to Ms McLaughlin (page 113, Exhibit 30). This was the immediate response to her letter to Ms Marsh dated 27 October 1993 in which she advised her intention to resign. Mr Conlon's letter speaks for itself. In spite of the complainant's unequivocal statement of intention to resign Mr Conlon provided a sympathetic response. In particular he urged the complainant to continue with the Return to Work Plan which was being overseen by Dr Scott (and Dr Yuille) and Ms Marsh.
On the following day, 29 October 1993, Ms McLaughlin spoke again to Ms Marsh (Exhibit 78). In the course of this conversation the complainant advised that she was waiting for the exit interview and indicated that she may still withdraw her resignation depending on the situation next week. Clearly Ms McLaughlin's mind was well organised.
On 3 November 1993 Ms Marsh met with Mr Conlon and with Mr Segrot and Ms Sephton of Comcare and Dr Scott (Exhibit 81). They continued discussions relating to the existing rehabilitation proposal for the complainant and it was agreed that Ms McLaughlin be advised of the need for her to pursue "the CMP" (the Case Management Plan) designed by Dr Scott, an integral feature of which was to be her return to work. On the same day Mr Segrot wrote to the complainant and, inter alia, urged her "as a matter of extreme urgency" to return to work as originally planned.
Meanwhile, Ms Yates was preparing for the exit interview which was to be held on 3 November 1993. She had on 2 November 1993 sought advice from Personnel Services as to what options should be offered to the complainant. As page 114 of Exhibit 30 shows, one such option to be offered was re-deployment. It is not clear as to what precisely this was meant to convey. Ms McLaughlin insisted that it was Re-deployment with a "capital R". Whether that was so or whether the term used was a more generic proposal or option is really beside the point. It is not inconsistent with a proposal to "transfer to a new work area" envisaged by paragraph 4.4 of Exhibit 80. In any event it is clear that employment elsewhere for Ms McLaughlin was canvassed both prior to the exit interview and in the course of the exit interview and was to be put to her for her consideration at the interview. It is also important to note that on the same day, 2 November 1993, Ms McLaughlin spoke to Ms Yates (page 115 Exhibit 30). The contact was initiated by the complainant who inquired:
* as to what "she needed to do"; and
* as to a letter confirming her resignation.
Significantly, the complainant advised Ms Yates that she, Ms McLaughlin, had contacted DIR (the Department of Industrial Relations) and that they had spoken to her about "other options" which she had available to her "besides resignation". These were, inter alia, a "different job". Ms McLaughlin went on to advise Ms Yates that she "had given a great deal of consideration to all of these options" but that "none would be suitable to her circumstance".
So that by the date fixed for the exit interview:
* Ms McLaughlin had written her detailed letter to Ms Marsh on 27 October 1993;
* Ms McLaughlin had discussed the issue with Ms Marsh on the previous day;
* Mr Conlon had on 28 October 1993 written to Ms McLaughlin and had urged her to return to the rehabilitation plan which involved her return to work;
* Mr Segrot on 3 November 1993 had likewise urged Ms McLaughlin to adhere to the rehabilitation proposal; and
* Ms McLaughlin, herself, had on 2 November 1993 sought advice from DIR who had advised her of the other options alternative to resignation and one of these had been to seek a "different job" but that after consideration of these other options she had concluded that none were suitable.
On 3 November 1993 Ms Yates in the interview addressed the various options including re-deployment. Ms McLaughlin apparently rejected the proposal "because of time delays". Ms McLaughlin again insisted that her understanding was that the formal process of re-deployment was what was being addressed rather than the less formal process of placement or a quick transfer.
The issue here has to be considered in the relevant context. In my view Ms McLaughlin in her letters to Ms Marsh and Mr Thornton on 27 October 1993 indicating her intention to resign had a firm mind on what she proposed and the reasons for it. She is a patently intelligent and resourceful person. Whilst not diminishing in any way the impact upon her of her state of health the fact remains that she was well aware of the various options available to her. I am satisfied that other employment was discussed as an option. Whether that was addressed in purely formal or less formal terms it was not seen by her at the time as an option which she was disposed to embrace. Others had urged her to return to work; she herself had discussed other options with Industrial Relations personnel and clearly by the time she came to the exit interview her mind was made up. She wished to put the past behind her, to concentrate on improving her health and lifestyle and then planned to engage her considerable talents in an employment situation or working environment in which she would feel comfortable. I am left with the firm view that assuming that she had been offered the "immediate transfer" or placement option it is more probable than not that she would have rejected it. In the exit interview Ms Yates noted her as saying that any delay in respect of any other employment option meant that she could not seriously consider it. Clearly for her, time was of the essence and her dominant intention was to resign from the APS on 5 November 1993 so that she could, without distraction, address her health concerns and then in the future move into what she perceived would be for her a more attractive working environment. It cannot be assumed, in my view, that the quicker option of transfer or placement would have made any difference whatsoever. That process itself would have taken time. It was late in the year; there would be the need for consultation with other departmental heads; a suitable job would have had to be identified which satisfied her considerable skills; such a position would have had to be available on a part time basis requiring no more than 20 hours per week because of her disability. One cannot be satisfied that such a position could have been found in such circumstances as would have been likely to have had Ms McLaughlin abandon her already reasoned and positively stated intention to resign. It is more probable than not that any delay, and some delay was probably inevitable, would have been unacceptable to Ms McLaughlin whose mind was already firm in its intentions.
Whether or not Ms Yates in the exit interview explored in detail all of the relevant options, I am satisfied that at this time in November 1993 any suggestion of re-employment elsewhere in the Australian Public Service, be it a placement or transfer either within DSS or elsewhere or formal re-deployment, would not have led her to resile from her intention to resign. If the facts be that Ms Yates overlooked or for whatever reason failed to canvass the temporary option with Ms McLaughlin that in my view was in no way decisive nor would it have been, had it been mentioned, a significant turning point. Ms McLaughlin stated in evidence that she regarded Ms Yates as "always very ethical". DSS personnel in my view addressed the issue with the required degree of professionalism and in a manner which reflected their concern for this employee. They were, however, dealing with a very determined person who would not nor could she have been distracted from her firm purpose. In no sense could it be said in my view that their manner of dealing with this difficult issue was in any respect unlawful and discriminatory.
As mentioned above, this question only became relevant for the complainant in the course of pursuing her later grievance in relation to her resignation and application for reinstatement. For the purposes of this part of the complaint it became very much an afterthought.
The important question however is whether she was the victim of direct or indirect discrimination by DSS personnel in relation to their handling of her plans for resignation. Nothing emerges which could sensibly lead one to a conclusion that in the events which happened she was unlawfully discriminated against in her employment.
Ms McLaughlin had developed a longstanding antipathy towards Mr Gallagher who had been her supervisor in 1992 and who in January 1993 was himself transferred to the RIM Taskforce. Ms Briggs was a senior officer in DSS. Any assessment of Ms McLaughlin's evidence in relation to this issue needs to take into account her unsupported and unsupportable view that, in spite of the urgings of Mr Conlon and Mr Segrot that she consider return to her rehabilitation return to work plan, Ms Briggs and Mr Gallagher were in some undisclosed way instrumental in ensuring that she was not invited to consider this so-called re-deployment with a "small r". This suggestion is fanciful and cannot be accepted. When pressed on the point of whether she was alleging that Ms Yates had been directly influenced by her superiors to withhold the suggestion for a "quick transfer" Ms McLaughlin replied: "I think it's possible but it's not an allegation I can accurately make". The question of her resignation and her application for re-employment, as pointed out earlier, only became contentious in the course of the second grievance, the investigation of it and a final appeal to the MPRA. Considerable documentation was generated in the course of that, some of which was referred to in the evidence. In inquiring into the issue identified in the Wilson decision in paragraph 5.5 I have focussed more closely on the events which occurred in the period October - November 1993 rather than on the various statements recorded in the documents in the course of the investigation of the grievance. At the same time the events in that period cannot be sensibly separated from those which had occurred in the earlier months of 1993. If it is necessary it should be said again that the Wilson decision was intent on having the Commission address the facts which occurred in the period March - November 1993 in order for it to determine whether in the relevant respects there was any basis for founding supportable allegations of unlawful discrimination on the ground of the complainant's disability.
I have concluded that in all respects the complaint is unsubstantiated and therefore it must be dismissed.
I certify that this and the preceding fifty-three
pages is a true copy of the Reasons for
Decision of the Hon William Carter QC
Date: 25 October, 2000