[2016] FWC 2308
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Ms Susan Purcell
v
Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College
(AB2015/261)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 JULY 2016

Application for an order to stop bullying; whether applicant bullied at work; unreasonable conduct; reasonable management action; whether created risk to health and safety; some of the conduct alleged is repeated unreasonable behaviour towards the applicant that created a risk to the applicant’s health and safety; facilitated or mediated meetings proposed before consideration of any Orders.

Introduction

[1] It is a sad indictment on the capacity of two education professionals and the educational institution in which they are employed, that to resolve an obviously tense interpersonal relationship involving some mutual animus, resort must be had to this tribunal and the anti-bullying provisions of the Fair Work Act 2009 (Act). But, that it seems is the way of things, with workplace combatants all too keen to cede to a third party the capacity to resolve conflict, which with a modest amount of goodwill, some introspection and reflection, ought be capable of resolution by the combatants themselves. In my respectful opinion, this is a case in point.

[2] Ms Susan Purcell is the applicant in this proceeding and is a teacher employed by Mercy Education Ltd T/A St Aloysius College (Mercy Education).

[3] On 25 May 2015, Ms Purcell made an application for an order to stop bullying pursuant to s.789FC of the Act. Ms Purcell would like the Fair Work Commission (Commission) to make a finding and issue a statement to the effect that she has been bullied at work by Ms Mary Farah, the first respondent and Principal of St Aloysius College (College).

[4] The application sets out various incidents of alleged unreasonable behaviour or conduct engaged in by Ms Farah on which Ms Purcell relies to make good her allegation that she was bullied at work.

[5] Ms Purcell was first employed by Mercy Education in 1994. She left in 1995 and returned in 1998, and has been employed as a teacher by Mercy Education at the College ever since. 1 Ms Purcell was appointed as the VCAL Co-ordinator in 2010 but ceased this role in 2015.2 Ms Purcell was elected as an Occupational Health and Safety Representative (OH&S Representative) in May 2013.3

[6] Ms Farah was appointed the Principal of the College in 2013. 4 She had a mandate from the Board of Mercy Education to effect change and to arrest a declining enrolment at the College. As is commonly the case, some staff were resistant to change and preferred the status quo. Ms Purcell gave evidence that she became increasingly concerned about Mercy Education’s bullying policy shortly after Ms Farah commenced as Principal and, during her first Occupational Health and Safety (OH&S) meeting on 28 May 2013, she raised the issue of bullying and the need to update the policy.5 Shortly after this meeting, Mr Brian Collins, former Business Manager of the College, resigned.6

[7] A new Business Manager, Mr Andrew Coates, was appointed by Mercy Education to the College. On 28 September 2013, Mr Coates attended an OH&S meeting and, at the meeting, agreed to review the bullying policy by the end of the year. 7 However, this did not eventuate and by 2014, Ms Purcell became very concerned about the bullying policy. She again raised the issue at an OH&S meeting on 1 April 2014.8

[8] Ms Purcell contends that, at that stage, there was no Deputy Principal at the College because Ms Anne Henderson had resigned from that position in 2013 after Ms Farah had been appointed. Ms Anne Henderson continued to be listed in the outdated bullying policy as the complaints officer. The result of this, according to Ms Purcell, was that there was neither a Deputy Principal nor a complaints officer to whom staff could raise any concerns they may have regarding bullying, and this was of particular concern to Ms Purcell because her evidence was that most complaints being made to her were about Ms Farah. 9

[9] Ms Purcell did not bring this issue up again until the end of 2014, but according to her statement the bullying policy was revised and re-issued in 2015 after she filed complaints in December 2014. 10

[10] From approximately January 2015 to early July 2015, Ms Purcell was on long service leave (LSL). She returned from LSL on the understanding that the current Deputy Principal, Ms Rachel Valentine, would deal with any employment issues on behalf of Ms Farah as an interim measure on account of this application.

[11] Ms Purcell has identified a number of incidents occurring from late 2013 and continuing after her return from LSL in mid-2015 which she maintains were together repeated unreasonable behaviour by Ms Farah towards her. Each of the incidents is discussed later in this decision. The case advanced by Ms Purcell also contained allegations of conduct by Ms Farah towards other staff members, and allegations about Mr Coates’ conduct towards Ms Purcell and others. I have not dealt with these allegations in determining this part of the proceeding save where regard to these allegations was necessary in the context of the principal allegations of conduct by Ms Farah towards Ms Purcell. I have also not taken into account the evidence of the telephone conversation between Ms McCallum and Ms Purcell on 28 August 2015 as on the whole I found the evidence of what was said, the nature of the notes made and how much of the conversation was recorded, as unreliable. Although I have not referred to every portion of the evidence that has been led in this lengthy proceeding, I have considered all of it. However, for reasons indicated above, I have not taken into account some of the evidence, during this phase of the proceeding. I also note that Mercy Education has, unless otherwise stated, adopted and relied upon the submissions made by Ms Farah. 11

Summary

[12] I have concluded that four of the incidents about which Ms Purcell complains, taken together, amount to repeated unreasonable behaviour by Ms Farah towards Ms Purcell, the effect of which caused Ms Purcell distress and thereby created a risk to Ms Purcell’s mental health. Consequently, Ms Purcell was bullied at work. My reasons for that conclusion follow below.

Jurisdiction

[13] Section 789FF confers on the Commission a broad discretion to make any order it considers appropriate directed at preventing a worker from being bullied at work by an individual or group of individuals.

[14] That I have jurisdiction to deal with the application is not in contention in the sense that the application for an order or orders under s.789FF is a valid one. Ms Purcell is a worker for the purposes of s.789FC of the Act, in that she is an employee of Mercy Education which operates a business known as St Aloysius College. There is no dispute that this business is a constitutionally-covered business within the meaning of s.789FD of the Act.

[15] There is also no suggestion that Ms Purcell does not reasonably believe that she has been bullied at work.

[16] In Mac v Bank of Queensland Limited and Others, 12 Hatcher VP undertook a detailed analysis of the jurisdiction created by Part 6–4B of Chapter 6 of the Act and its application. The Vice President observed as follows:

[17] I respectfully adopt the Vice President’s analysis in Mac.

Reasonable management action

[18] As the incidents about which complaint is made raise for consideration whether the conduct or behaviour as alleged was reasonable management action carried out in a reasonable manner, it is necessary to say something about that issue. If the alleged behaviour can be said to be reasonable management action carried out in a reasonable manner, the behaviour will not amount to a worker being bullied at work. 14

[19] The Explanatory Memorandum 15 relevantly provides as follows:

[20] The assessment of reasonableness is a question of fact and the test is an objective one. 16 In Ms SB, Hampton C set out the test that should be used in order to determine whether management action is reasonable:

[21] The reasonableness of management action will depend on the action taken, the circumstances, the way in which the action impacts upon the worker, the implementation of the action and any other relevant matters. 18 Furthermore, as Hatcher VP observed in Mac, “an employee must be able to demonstrate that the decision to take management action lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances”.19

[22] It should also be observed that “management action” is apt to describe a range of conduct which affects an employee. Management action is not confined to matters that might be regarded as a managerial decision. The term catches a much wider form of conduct or behaviour including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out.

Conduct alleged

[23] I now turn to Ms Purcell’s allegations of unreasonable behaviour by Ms Farah towards her. There are 16 incidents of unreasonable behaviour alleged and I address each separately below.

Incident One – VCAL Classroom and Co-ordinator’s Office

[24] The unreasonable behaviour complained of by Ms Purcell is said to have begun in or about October or November 2013. At that time, Ms Purcell learned that Ms Farah had made a decision not to allocate a dedicated classroom to the VCAL program in 2014. 20 VCAL is a “hands on” alternative to the VCE program for senior students and requires a large amount of physical resources and materials.21 Ms Purcell had been the VCAL Co-ordinator since 2010 and the VCAL program had always been allocated a dedicated classroom during that time.22 Ms Purcell does not suggest that the VCAL program required a specific or particular classroom, just one that was designated for the program, as the program seems to have been assigned different designated classrooms over the period of four years.23

[25] In November 2013, Ms Purcell organised a meeting with Ms Farah to discuss issues with the VCAL program, including the decision not to allocate a dedicated classroom to the program. The attendees at the meeting included Ms Purcell, Ms Farah, Mr Justin Roberts and Ms Anna Marizita (Year Level Co-ordinators), Ms Bernadette Doufalidis (VCAL teacher) and Ms Anne Henderson (then Deputy Principal). 24

[26] Ms Purcell alleges that when the meeting started “it was obvious from Mary’s body language that she was angry”. 25 Ms Purcell alleges that Ms Farah “folded her arms across her chest, kept shaking her head no and stared at me unblinking”.26 It is also alleged that Ms Farah sternly rejected the suggestions made during the meeting, and Ms Purcell claims that she felt “discouraged” and “upset by her abrupt, angry tone and body language and was embarrassed in front of my colleagues”.27 Throughout cross-examination, Ms Purcell maintained her view that Ms Farah was angry during this meeting, basing this view on her observation of Ms Farah’s body language, tone and intense stare during the meeting.28

[27] Ms Farah contends that she was not angry during this meeting. She also contends that she had no reason to be angry with Ms Purcell and that she could not remember anything specific Ms Purcell had said during the meeting. 29 She expressed regret that Ms Purcell had taken offence at what she said or did during the meeting and indicated that she thought they had a good working relationship.30 Ms Henderson gave evidence that she had attended the meeting, that Ms Purcell raised concerns about the non-allocation of a dedicated classroom for the VCAL program and that Ms Farah told Ms Purcell that her request was refused.31 Ms Henderson makes no allegation that Ms Farah posited body language from which it could obviously be discerned that she was angry.32 Indeed, despite chronicling a number of largely irrelevant or at the least, tangentially relevant allegations about Ms Farah’s relationship with other employees of Mercy Education, Ms Henderson did not corroborate Ms Purcell’s view of Ms Farah’s conduct or demeanour during the meeting in November 2013.33

[28] The evidence does not support a conclusion that Ms Farah was angry during the meeting in November 2013. Interpreting body language, gestures and voice tones is fraught with danger and it seems clear that both Ms Henderson and Ms Purcell, though in attendance at the same meeting, drew different conclusions from Ms Farah’s body language, gestures and tone of voice, with the former giving no support in her evidence to Ms Purcell’s interpretation. The vagaries and subjective nature of body language interpretation is best summed up by the following extract from the transcript:

But even if Ms Purcell’s assessment were correct, it cannot be supposed from that assessment alone that Ms Farah was angry at her.

[29] Ms Farah gave evidence that the reason the VCAL program was not allocated a dedicated classroom in 2014 was based on a decision to demolish the particular building where the classroom was located in order to make way for a dedicated year 7 area, which would help attract increased enrolments. Ms Farah contends that she consulted the leadership team about this decision and also received the approval of the Board of Mercy Education. 35 She also gave evidence that Ms Purcell approached her when the demolitions began and asked for a new dedicated classroom. Ms Farah contends that she explained to Ms Purcell that, at previous schools she had worked at, the VCAL program did not have a dedicated classroom and that she saw no need for one at the College. She also offered that separate storage could be provided for the items used by students, if necessary.36 Ms Henderson agreed, during her evidence, that the need for the VCAL program to have a separate classroom was not a view shared by everyone,37 and that ultimately, a decision about classroom allocations was a matter for the Principal based on a broad discretionary assessment, and requiring the juggling of competing priorities and limited resources.38

[30] Ms Purcell contends that following the abovementioned meeting, her VCAL students asked if they could write a letter to Ms Farah outlining reasons for a dedicated classroom and, Ms Purcell agreed providing she could first proofread the letter. 39 Ms Farah acknowledged receipt of a letter from the students on 29 November 2013.40 The circumstances in which the letter was organised, drafted and sent to Ms Farah was challenged in cross-examination, but Ms Purcell contended that it was the students’ idea, that she proofread the letter before it was sent and that she was in the classroom while they prepared it. Ms Purcell insisted that students in the VCAL program are encouraged to take initiative and that this is “not atypical in a VCAL program”.41 She denied that she encouraged the students to challenge the authority of Ms Farah, and asserted that she only corrected the grammar and “made sure the language was diplomatic”.42

[31] Whatever may have been the motivation for the students’ letter, I do not accept that Ms Purcell’s involvement in the letter was designed to challenge the authority of Ms Farah. Objectively viewed, the students’ had an interest in the decision not to allocate a classroom to the VCAL program. It seems to me appropriate that those concerns be expressed in the manner they were. That Ms Purcell was involved in, and even encouraged the students to write the letter, is not evidence of any undermining, rather it shows no more than guiding students to express concerns in an appropriate and civil manner. There is no suggestion that Ms Purcell coerced or incited the students to write the letter. Moreover, the text of the letter itself 43 could hardly be described as provocative or undermining. It is in terms politely expressed, hopeful of reconsideration and sets out the major reasons for a classroom allocation. If only all dissent were able to be expressed in such convivial terms. Ms Farah’s concern that the students were being used by Ms Purcell “as a tool to basically challenge”44 the decision was, with respect, a complete overreaction.

[32] Ms Purcell was informed, many months after the students’ letter had been sent to Ms Farah, by Ms Henderson, that Ms Farah was not impressed by receipt of the letter from the students and had said to Ms Henderson words to the effect, “If she wants to operate like this I will teach her”. 45 Ms Farah gave evidence that she was concerned that Ms Purcell was using the students to challenge her decision. She was also disappointed that Ms Purcell had spoken to the students about the classroom allocations at such an early stage.46 Ms Farah also gave evidence that she said to Ms Henderson that she would “show Ms Purcell how professionals should act”.47 I do not accept Ms Farah’s version of her conversation with Ms Henderson, and prefer Ms Henderson’s version for the following reasons:

[33] That said, I am not satisfied that anything material came of the conversation. The conversation was not immediately disclosed to Ms Purcell and indeed, she did not become aware of it until about mid to late 2014, 59 after Ms Purcell had first contacted Ms Henderson.60 Moreover, Ms Farah’s comments were likely made to Ms Henderson in confidence, as senior colleagues and in the expectation that the words would not later be quoted to others.61

[34] Furthermore, after the students’ letter, a brief email exchange 62 followed between Ms Farah and Ms Purcell, as well as subsequent email exchanges which show a positive relationship,63 or at least one that had not been manifestly affected by Ms Purcell’s involvement in the students’ letter.

[35] Indeed, this issue at the heart of the students’ letter and of Ms Purcell’s concern was resolved when another member of the leadership team, Mr Robert Ruzbacky, who was also teaching a VCAL unit agreed that a dedicated VCAL classroom was appropriate. After conducting some investigations 64 he approached Ms Farah indicating that there was a spare classroom. Ms Farah then agreed to allocate a dedicated room to the VCAL program.65

[36] Ms Purcell submits that the decision not to allocate a dedicated classroom to the VCAL program was not based on any demonstrable logic. 66 I cannot agree. Whilst reasonable minds might differ as to the need for, or merits of, a dedicated classroom, it is not in dispute that at the time, the initial decision not to allocate a classroom was made by Ms Farah, a number of classrooms including the one then dedicated to the VCAL program were to be demolished in order to make way for a year 7 area.67

[37] Thereafter, decisions about the allocation of classroom resources needed to be made and these decisions fell to Ms Farah, who in making such decisions, is faced with the prospect of juggling competing priorities with limited resources, and ultimately when such decisions are made, not everyone affected will be happy. 68 The ultimate decision that Ms Farah made, affected not only Ms Purcell but also those students who would participate in the VCAL program in 2014. There is little by way of probative evidence from which it might be inferred that the decision about which complaint is made, was directed to Ms Purcell or that she was being singled out or targeted by Ms Farah in making her decision. Though the decision affected Ms Purcell, I accept Ms Farah’s explanation of her reasons for making it. The decision was not conduct towards Ms Purcell merely because it affected her. In any event, the decision in the circumstances, was a reasonable one.

[38] Ms Purcell’s perception of Ms Farah’s demeanour during the November 2013 meeting is just that, a perception, and, as already indicated, is not corroborated by others who attended the meeting, in particular by Ms Henderson. There is little doubt, in my view, that Ms Farah was unhappy with Ms Purcell’s conduct after she had made a decision, but it cannot be inferred from that unhappiness that the original decision was made for the purpose suggested by Ms Purcell. Moreover, that Ms Farah changed her view and ultimately allocated the VCAL program a dedicated classroom points to the contrary, and shows that her decision-making was not affected by her earlier displeasure at Ms Purcell’s involvement in the students’ letter.

[39] Furthermore, I do not accept the submission of Ms Purcell to the effect that, as Ms Farah was ultimately persuaded by Mr Ruzbacky to allocate the VCAL program a classroom based on the same arguments advanced by Ms Purcell, that this is indicative that Ms Farah’s conduct was for the purpose of singling out and targeting Ms Purcell. It might equally be said that, as Ms Farah changed her view, an inference might be drawn that the initial decision was not directed at isolating or targeting Ms Purcell at all. But more relevantly, the submission ignores the evidence of Mr Ruzbacky that he was approached by Ms Purcell towards the end of 2013 and asked by her whether he could find “a spare classroom to dedicate to the VCAL program”, and after investigating several rooms he identified a possible room which he then communicated to Ms Farah as part of his request that a dedicated classroom be allocated to the VCAL program. 69 So it is then, that armed with information that a “spare classroom” would be available in 2014 for use by the VCAL program, Ms Farah changed her position and allocated a dedicated classroom. If the purpose or motivation of Ms Farah in making the original decision was to isolate or target Ms Purcell, then one would have expected much greater resistance to the allocation from Ms Farah than that which obviously occurred.

[40] Shortly following this incident, the offices occupied by Senior Level Coordinators were vacated for renovations. Other staff members, including the VET Coordinator and the two Year Level Co-ordinators were given another office but Ms Purcell was not, even though there was a vacant office. 70 An office was said to have remained vacant for the first half of 2014 and then given to another staff member in the second semester.71 Ms Purcell attached to her witness statement a copy of the phone directory for semester one which indicated that, at that time, the office was empty.72

[41] Ms Farah set out the reason for the vacated offices (renovations) in her witness statement. She explained which staff members were allocated new offices and her reasons for the allocation. She explained that Ms Purcell was given a dedicated desk in the staff study room together with approximately 20 other teachers. 73 Ms Purcell gave evidence that, ultimately the issue was resolved with another member of the leadership dedicating a room for use by the VCAL Co-ordinator (Ms Purcell).74 Ms Farah said that it never occurred to her that Ms Purcell should need an office, as VCAL Co-ordinator, after the renovations.75 I do not accept Ms Farah’s evidence in this regard. As the passages from the transcript extracted below indicate, Ms Farah was well aware that Ms Purcell wanted an office:

[42] This, together with the obvious knowledge that Ms Purcell had an office in her capacity as VCAL Co-ordinator before the renovations and was displaced by them, makes the statement that it never occurred to Ms Farah that Ms Purcell would need an office as VCAL Co-ordinator after the renovations, seem weak, self-serving and frankly, disingenuous. Indeed, it seems clear that Ms Farah did not allocate an office to Ms Purcell because Ms Farah was firmly of the view that the VCAL Co-ordinator “doesn’t need an office”. 77

[43] Ms Farah’s decision not to allocate an office to the VCAL Co-ordinator seems tinged with some arbitrariness when account is taken of the following matters:

[44] But it does not follow that the conduct was towards Ms Purcell. The conduct complained of must, in my view, be viewed in context. First, it seems to me clear that the decision relates to the need for a VCAL Co-ordinator to have an office, it is not a decision that is personal to Ms Purcell, although she is affected by the decision. It is the need of the “role” that was assessed, not the person. 83 That “needs” assessment was undertaken by Ms Farah who concluded that the VCAL Co-ordinator did not need an office for reasons which included that the VCAL Co-ordinator was part of a group of staff, described as “middle leaders”, each of whom do not have offices.84 The needs assessment was doubtless also affected by Ms Farah’s view as to the need for the VCAL program to be allocated a dedicated classroom and her experience at other schools.85 Ultimately, decisions about use and allocation of the College’s scarce and finite resources are matters for the Principal and doubtless will sometimes be met with unhappiness or be the subject of controversy.

[45] Having regard to this context, it seems to me that the office allocation decision was not directed to Ms Purcell. It was based on an assessment that the position of VCAL Co-ordinator does not need an office. That position pertains today to the role of VCAL Co-ordinator, which is no longer occupied by Ms Purcell. 86 For the reasons earlier given, I do not accept that the conversation between Ms Farah and Ms Henderson shortly after the students’ letter was received, shows either directly or indirectly that the office allocation decision was made to target or isolate Ms Purcell. It follows that the office allocation decision was not a case of conduct towards Ms Purcell. But even if it could be so described, I do not consider the office allocation decision to be unreasonable. As Principal, Ms Farah was entitled to conclude that the VCAL Co-ordinator did not need an office. The reasons for that conclusion given by Ms Farah, are neither illogical nor unintelligible. That others might disagree with the assessment is beside the point. Reasonable minds might differ on the assessment,87 but that that is so, does not render the assessment or the decision made by reason of the assessment unreasonable.

Incident Two – Recycled Goods Market

[46] The escalating exchange between Ms Purcell and Ms Farah about the Recycled Goods Market underscores the animus between the two and is instructional in how molehills become mountains.

[47] The incident began on 30 May 2014 following the organisation and conduct of a Recycled Goods Market by the students in Ms Purcell’s VCAL program. Ms Farah, in a note from the Principal to staff about various matters, acknowledged the work of Ms Purcell and the VCAL students in relation to the Recycled Goods Market. The acknowledgement read as follows:

[48] Ms Purcell says that she corrected the mistaken reference to “Fashion Parade” in a light-hearted way in an email to all staff. 89 The text of the email is reproduced below:

[49] As mentioned above, Ms Purcell contends that this email was sent in a “light-hearted way”, however, Ms Farah claims that she felt humiliated by Ms Purcell’s email. 91 Ms Farah contends that she considered the “…remarks and the general tone of her email to be unprofessional, offensive and humiliating”.92 Ms Farah also indicated that Ms Purcell should have contacted her directly, and if she had done so Ms Farah would have apologised and issued a note to the staff clarifying the mistake.93

[50] Ms Purcell gave evidence that Ms Farah sent Ms Purcell several emails stating Ms Farah expected more from a Co-ordinator and claiming that Ms Purcell had deliberately humiliated her. 94 Ms Purcell alleges that Ms Farah made no attempt to discuss her concerns before sending the emails. She contends that she was very upset and that it is “not in my nature to set out to humiliate”.95

[51] As indicated above, Ms Purcell and Ms Farah exchanged various emails following the Principal’s note and Ms Purcell’s all staff email. Ms Farah gave evidence that she sent an email to Ms Purcell “expressing her views” about Ms Purcell’s all staff email. 96 The text of Ms Farah’s email reads as follows:

[52] Ms Purcell responded by email, the text of which provides:

[53] Ms Farah replied by email as follows:

[54] Ms Purcell’s reply was as follows:

[55] Following this email exchange Ms Farah sent a correction email to all staff. 101

[56] What then should be made of these exchanges? To begin with, Ms Farah not only acknowledged but congratulated Ms Purcell and all the VCAL students “on quite a magnificent” Recycled Goods Market in her Principal’s note. 102 Unfortunately, as it turns out, Ms Farah referred, erroneously, to the Recycled Goods Market as a fashion parade. There is no suggestion, much less any evidence, that the misnomer was deliberate. It is also doubtless the case that Ms Purcell’s all staff email in which she refers to and corrects the error in the Principal’s note was not intended to be malicious but rather, light-hearted. That said, it is rarely wise to refer to and highlight a mistake of another in an email that is widely circulated. It would have been prudent for Ms Purcell to have simply brought the error to the attention of Ms Farah and allowed her to correct it. That would have been the end of the matter.

[57] I can well understand that Ms Farah was embarrassed at having her error, however light-hearted the intention, highlighted in an all staff email. Ms Farah’s email to Ms Purcell following the all staff email was, in the circumstances, not an unreasonable response. A phone call to discuss the matter, preceded perhaps by a day’s delay and calm reflection, might have been a better approach, but reasonableness is not to be judged by the lofty standards of best practice. The email begins with a thank you and an expression of appreciation of the work undertaken in relation to the Recycled Goods Market. It proceeds with an acknowledgement that the correction in the all staff email might have been made in jest and concludes with Ms Farah telling Ms Purcell that she did not appreciate having her innocent mistake highlighted to all staff. Ms Farah says that such conduct is not a trait of hers and one she does not respect in others. Finally, Ms Farah says that she expects more from co-ordinators. 103

[58] From here, the correspondence that passes between the two gets out of hand. There is first Ms Purcell’s suggestion in her reply, that she supposes “it may not have been your intention to trivialise an enormous effort”, 104 with the obvious implication that Ms Purcell regarded the Principal’s note as doing that very thing. The email concludes with that which I regard as a complete mischaracterisation by Ms Purcell of Ms Farah’s preceding email referred to above, that highlighting innocent mistakes by staff “is not a trait of mine, nor one I respect in others. I expect more from Co-ordinators”. Ms Purcell writes in her email that:

[59] On no measure could Ms Farah’s concluding remarks be read as a criticism of Ms Purcell’s performance as the VCAL Co-ordinator. In my view, the tone and substance of Ms Purcell’s response was ill advised and was not assisted by the opening salvo that “I’m glad I created this reaction”. 106

[60] Ms Farah’s reply was, in my view, for the most part reasonable and conciliatory. Again, a day’s reflection before sending the email might well have resulted in the omission of that part of the email which, after expressing disappointment that Ms Purcell’s frustrations, expressed in the email referred to above, were not first discussed with Ms Farah, carries on with the barb “particularly as you confirmed your deliberate intent to insult”. 107 This interpretation of Ms Purcell’s opening salvo is, in my view, exaggerated and with respect, a little bit precious. The email concludes with an offer to meet with Ms Purcell to discuss the issues that she had raised in her email.

[61] The final email in this chain is from Ms Purcell. Unsurprisingly she takes issue with Ms Farah’s exaggeration noted above. Otherwise, the email is not particularly controversial or inflammatory; although I note two matters. First, Ms Purcell does not take up the offer to meet with Ms Farah to discuss her concerns about the VCAL program. This was unfortunate. Secondly, the sentence in Ms Purcell’s email that “I thought, in a light-hearted sense, I was being diplomatic as I included you in the joke” 108 shows a lack of awareness that all staff emails which highlight mistakes made by another, however light-heartedly expressed, might tend to offend (and in this case did offend) the person whose mistake has been highlighted.

[62] In my view, for the most part, Ms Farah’s emails in the chain discussed above were reasonable and proportionate. I agree with Ms Farah’s submissions that some of Ms Purcell’s responses, as set out in the chain of emails, were intemperate. As I have said, a degree of delay before responding, and reflection as well as a face-to-face meeting to discuss the various issues raised, rather than corresponding in the heat of the moment, would likely have avoided much of the angst that the various emails caused. But, I do not accept that the emails sent by Ms Farah to Ms Purcell amount to Ms Farah behaving unreasonably towards Ms Purcell when viewed in the context of the exchange as a whole, and Ms Purcell’s contribution to the exchange.

Incident Three – Meeting on 6 June 2014

[63] On 2 June 2014, Ms Farah asked her personal assistant (Ms Martelli) to organise a meeting with Ms Purcell to discuss the issues raised by Ms Purcell in relation to the VCAL program, and also to discuss the way Ms Purcell had communicated in the abovementioned emails. 109 Ms Purcell gave evidence that upon receipt of the meeting request she contacted Ms Therese O’Loughlin, an official of the Independent Education Union (Union) seeking advice. According to Ms Purcell, Ms O’Loughlin and Ms Purcell agreed that it was not necessary for Ms O’Loughlin to attend the meeting.110

[64] Ms Purcell then alleges that she received an email from Ms Martelli asking whether “Theresa would attend the meeting tomorrow as she hadn’t replied to the invitation”. 111 Upon receipt of this email, Ms Purcell contends that she was confused because she had not invited Ms O’Loughlin and when Ms Purcell sought clarification from Ms Martelli, she apologised for the confusion and told Ms Purcell that she thought Ms Purcell had sent the invitation to Ms O’Loughlin. Ms Purcell concluded that Ms Farah must have sent the invitation to Ms O’Loughlin.112 Ms Farah contends, however, that on 4 June 2014 she received an automatic message from her Outlook email advising her that Ms Purcell had forwarded the calendar invitation to Ms O’Loughlin.113 Ms Farah further contends that she first became aware that Ms O’Loughlin had been invited to the meeting, from Ms Martelli, who had access to Ms Farah’s emails, when Ms Martelli forwarded an email to Ms Farah from her own email account.114

[65] Ms Purcell alleges that during the meeting on 6 June 2014, Ms Farah told her to be careful about what she puts in emails because she had sent the meeting invitation to the Union. 115 Ms Purcell claims she did not send the invitation to Ms O’Loughlin, but she did not argue with Ms Farah because she was unsure how Ms Farah would react.116 Ms Purcell believed that, based on her assessment of Ms Farah’s tone of voice, she was testing Ms Purcell to find out what contact she had with the Union. Ms Purcell also felt that Ms Farah was disapproving of her contact with the Union as, in the words of Ms Purcell, “she continued to stare at me until I dropped my gaze”.117

[66] Ms Farah’s evidence about the meeting is quite different. Ms Farah contends that during the meeting she said to Ms Purcell, words to the effect of “We need to be careful about what we write in our emails” and says that this comment was made in reference to Ms Purcell’s email sent to all staff regarding the Recycled Goods Market and not in relation to the meeting invitation to Ms O’Loughlin. 118 During the meeting, Ms Farah says that she apologised to Ms Purcell if she had offended her in her note to staff and that Ms Purcell said she didn’t mean anything by the comments.119 She says that she told Ms Purcell how much she values the VCAL program and that if there were any issues with the program, Ms Purcell should discuss them with Ms Farah. Ms Farah also gave evidence that she told Ms Purcell that Ms Purcell had invited Ms O’Loughlin to the meeting and that this is why her personal assistant was asking whether Ms O’Loughlin was attending. She said that Ms Purcell denied having done so and Ms Farah did not press the issue.120

[67] According to Ms Purcell, the meeting ended on a cordial note but she was still worried about Ms Farah’s comment mentioned above. 121 Ms Farah, likewise, was under the impression that the meeting ended on a positive note.122

[68] Ms Purcell contends that following the meeting, she was told by Ms O’Loughlin that the invitation for the meeting was sent to her by Ms Martelli. 123 However, Ms Farah gave evidence that she received an automatic message from her Outlook email advising that Ms Purcell had forwarded the appointment to Ms O’Loughlin. Additionally, Ms Martelli, who also gave evidence in the proceedings, said that on 4 June 2014 she saw a notification in Ms Farah’s Outlook calendar that Ms Purcell had forwarded the invitation to Ms O’Loughlin.124 Ms Martelli also said that she sent an email to Ms Farah about that notification,125 and when she noticed on the following day that Ms O’Loughlin had not accepted the invitation, this led to an email exchange between her and Ms Purcell about whether Ms O’Loughlin would be attending.126 Ms O’Loughlin was in attendance during the proceedings, but did not give evidence.

[69] There is clearly a contest about who invited Ms O’Loughlin to the meeting on 6 June 2014.

[70] Ms Purcell submits that, despite Ms Farah’s insistence to the contrary, 127 it was Ms Martelli who sent the meeting invitation to Ms O’Loughlin. She did this at 3.56pm on 3 June 2014.128 It was the following day, in the context of discussing the meeting with Ms O’Loughlin, that Ms Purcell forwarded the invitation to Ms O’Loughlin.129 Ms Purcell was clear that she did not forward the invitation with an intention to “invite” Ms O’Loughlin, but merely to let her know that the meeting was on.130 Ms Purcell contended that, in the absence of evidence to the contrary, it should be assumed that the automatically generated “Meeting Forward Notification” was generated immediately upon the invitation being forwarded to Ms O’Loughlin. In any event, the notification was received by Ms O’Loughlin on the Tuesday (3 June 2014).131 Ms Purcell contends that she did not invite Ms O’Loughlin to the meeting,132 and that when she forwarded the meeting notification on 4 June 2014, Ms O’Loughlin had already been invited by Ms Martelli on 3 June 2014.133

[71] Ms Farah submits that, consistent with Ms Martelli’s evidence, Annexure MF-4C includes Ms O’Loughlin only because the invitation was forwarded by Ms Purcell and that, by forwarding the meeting notification, Ms Purcell “invited” Ms O’Loughlin.

[72] A resolution of this contest is required only if I accept Ms Purcell’s evidence that, during the meeting, Ms Farah told Ms Purcell to “be careful what you put in emails as (I had) sent the meeting invitation to the Union”. 134 On this issue I prefer the evidence given by Ms Farah, for the following reasons:

[73] In these circumstances, neither the meeting nor that which occurred during the meeting can be said to be unreasonable behaviour by Ms Farah towards Ms Purcell.

Incident Four – ICT Tech

[74] This incident in effect concerns an allegation of bullying behaviour experienced by a colleague of Ms Purcell. The colleague, Mr Adrian De Zordi, gave evidence during the proceedings in relation to his experience. 137 Insofar as it is relevant to Ms Purcell’s complaints of bullying to which she says she has been subjected, Mr De Zordi contends that on 17 June 2014, he spoke with Ms Purcell expressing his anxiety in attending a meeting with Ms Farah about his impending resignation, as he had secured other employment.138 Ms Purcell and Mr De Zordi agreed that he would send an email to Ms Farah advising that he would like Ms Purcell to attend any meeting between himself and Ms Farah. Subsequently, Mr De Zordi sent his resignation by email to Ms Farah139 and followed this up with another email advising her that he would like Ms Purcell to attend any meeting.140

[75] Mr De Zordi alleges that, at 10.00pm that same night, he received an email from Ms Farah indicating that if he insisted on having Ms Purcell present at any meeting, then Ms Farah did not want to have the meeting. The text of the email was as follows:

[76] Ms Purcell gave evidence that the next time she saw Ms Farah was on 20 June 2014 at a social gathering in the staffroom. 142 When Ms Purcell first took a seat there was someone blocking her from Ms Farah’s view. However, she believes that Ms Farah pushed her chair back deliberately so that she had a clear view of Ms Purcell. She claims that she received several angry glares from Ms Farah and said that she felt very frightened. Ms Purcell felt that Ms Farah was angry with her because Mr De Zordi had mentioned her in his email. Ms Purcell’s evidence is that she has felt more targeted and very stressed ever since this point.143

[77] Ms Farah’s evidence about this incident is that she does not really remember much about it as it did not stand out to her as unusual at the time. 144 She said that she did not hold Mr De Zordi’s resignation or emails against Ms Purcell and claims that, if she had an issue with Ms Purcell, at that time, she would have called her in for a meeting.145

[78] The way in which Ms Purcell seeks to make good the allegation that this incident amounted to unreasonable behaviour by Ms Farah towards Ms Purcell, is set out in the submissions of Ms Purcell as follows:

[79] This is, with respect, a leap in the reasoning which is not supported by the evidence or any inference that might be reasonably drawn from the evidence. The submission amounts to no more than suppositions made about motives of Ms Farah in order that they fit the case theory. The central supposition is that Ms Farah was annoyed that Mr De Zordi had confided in Ms Purcell about his resignation and had wanted Ms Purcell to be present at any meeting convened to discuss his resignation. Ms Farah denies that she was annoyed. Ms Purcell’s submission to the effect that Ms Farah’s annoyance is borne out by the fact that she had asked Mr Coates to try to establish Mr De Zordi’s reasons for resigning, and the position into which he would become employed, is rejected. It is equally, if not more likely, a plausible explanation that Mr Coates was deployed in order to satisfy that which would, I think, be a reasonable reaction by a Principal to try to establish the reason for an employee’s resignation.

[80] Neither can the subsequent discussion between Mr Coates and Mr De Zordi provide any foundation for the central supposition that Ms Farah was annoyed. Ms Farah had no control over what was said between Mr Coates and Mr De Zordi and it is not suggested that she did.

[81] Furthermore, the submission that Ms Martelli’s request to Mr De Zordi to look at the printer was a device to meet with Mr De Zordi without Ms Purcell, is simply not made out on any objective view of the evidence as a whole. First, to make good the submission Ms Martelli would have needed to have been instructed or requested by Ms Farah to ask Mr De Zordi to attend. That such a request was made was denied by Ms Martelli. 169 Secondly, Mr De Zordi’s email to Ms Farah on 17 June 2014, in which he suggested that if any meeting was required that he would ask Ms Purcell if she would attend, was sent at 4.01pm.170 Ms Martelli’s request to Mr De Zordi was sent on 17 June 2014 at 4.12pm.171 It is, in my view, unlikely that in the 11 minutes that passed between these two emails that Ms Farah would have read the first email and instructed Ms Martelli to send the second email. According to Ms Martelli, and there is no probative evidence to the contrary, Ms Farah would not have been aware of any of this as she was busy with back to back appointments that afternoon.172 Thirdly, despite the submission that the request was a device to have Mr De Zordi attend the office of Ms Farah, the email requests no such thing. It provides as follows:

[82] Fourthly, Ms Farah eventually responded to Mr De Zordi’s email at 10.42pm on 17 June 2014. This is consistent with Ms Martelli’s evidence that Ms Farah was unaware of Mr De Zordi’s email or, of Ms Martelli’s email request for assistance at or about the time each was sent.

[83] In summary, I accept Ms Farah’s evidence that she felt unjustly accused by Mr De Zordi’s advice in his email that he wanted to bring another person to any meeting. Whether or not that feeling was soundly based is beside the point. That feeling explains why Ms Farah did not proceed with any meeting. There is an insufficient evidentiary basis, for the reasons discussed above, to conclude that the refusal to meet was directed at Ms Purcell.

[84] Furthermore, the suggestion that on 20 June 2014, Ms Purcell received a number of angry glares from Ms Farah in the staff social gathering and that this conduct was intended to convey Ms Farah’s annoyance about her involvement with Mr De Zordi (discussed above) is not supported by anything more than Ms Purcell’s perception, and the conclusion based on her perception of Ms Farah’s demeanour, that it must have been motivated by the earlier incident.

[85] Having had the benefit of observing Ms Farah while she gave evidence and in the court more generally, I have little doubt that Ms Farah’s gaze at another person might be construed as glaring. It seems to me, based on those observations, that it is in Ms Farah’s nature and make up that her facial expressions have the unfortunate consequence that they might be interpreted by others as glaring. However, it is one thing to suggest that Ms Farah looked at Ms Purcell during a staff social gathering in a manner that might be construed as glaring, it is quite another to attach a particular motivation to a facial expression, which based on my, albeit unqualified, observations of Ms Farah, is likely to be the result of unconscious rather than conscious factors. The connection is not made out, and in the circumstances, even if the glaring occurred in the manner suggested by Ms Purcell, I am not persuaded that it amounted to unreasonable behaviour directed towards Ms Purcell.

Incident Five – Staff Meeting and General

[86] The first of the incidents falling under this general heading is said to have occurred at a staff meeting held on 23 June 2014 at which Ms Purcell and Ms Farah were in attendance. Ms Purcell gave evidence that Ms Farah turned and glared at her when she was leaving the meeting. She contends that a colleague noticed and later asked her whether Ms Farah was glaring at her. Ms Purcell says that she felt very intimidated and singled out. 174 Ms Farah’s evidence about this incident was that she does not glare at staff and that she does not remember looking at Ms Purcell on this occasion.175

[87] Ms Purcell further contends that from this time on, she “experienced regular expressions of hostility” 176 from Ms Farah. Ms Purcell refers to a number of occasions where she felt that Ms Farah would position herself in a room specifically so that she could stare at Ms Purcell and glare at her when she made eye contact. Ms Purcell contends that when, on the occasions, Ms Farah glared at her, Ms Purcell would turn away and that she felt apprehensive and isolated. She also said, that on a number of occasions, Ms Farah would turn her back when she walked into the room and that Ms Farah would greet others around her, but ignore Ms Purcell. Ms Purcell contends that there were only three occasions in 2014, following this incident, when Ms Farah spoke to her and that, on each of these occasions, she was accompanied by a member of the leadership team.177

[88] Without wishing to diminish Ms Purcell’s feelings of apprehension brought about by her perception of Ms Farah’s stares and glares, to which she says she was subjected, I am not persuaded there is a sufficient evidentiary basis from which it can be concluded that the conduct (glaring and ignoring) occurred as alleged. As I have earlier observed, I can well understand how a perception of glaring might arise given my observations of Ms Farah, but such a perception, even when accompanied by Ms Purcell’s description of her view as to the difference between glaring and staring, remains a perception only. 178 Such corroboration as is offered by, for example, Ms Asha Jacob, is in the form of generalised and non-specific observations:

[89] As Ms Jacobs conceded, little by way of specific examples or instances were offered by her. 180

[90] Moreover, there is a degree of commonality, travelling beyond a common but independent recollection, between Ms Jacobs’ statement and that of Ms Purcell. For example, Ms Jacobs says “Mary would often enter the staffroom greeting various staff and ‘conspicuously’ ignore Sue”. 181

[91] Ms Purcell’s evidence was that “it was very conspicuous when she does it in the staffroom…”. 182

[92] The reference in each statement to “conspicuously” and “conspicuous” is firstly a subjective evaluation, and suggestive of a deliberate strategy on the part of Ms Farah. 183 Secondly, it strikes me as unlikely the two people would independently have come to a subjective evaluation that particular conduct (or in this case an omission) was undertaken conspicuously. It seems to me clear, that at least some discussions about these allegations occurred between Ms Jacobs and Ms Purcell,184 the effect of which is to render unreliable the generalised corroborative evidence of Ms Jacobs.

[93] Moreover, that individual perceptions about stares and glares are by themselves an unreliable foundation from which to infer or conclude the conduct occurred, much less that is unreasonable, is underscored by the following evidence given by Ms Purcell and by Ms Renee Schulberg about the same incident or series of incidents. Ms Purcell gave evidence that:

[94] Ms Schulberg says:

[95] Both statements are replete with generalisations and suggestive perceptions of motive. For example Ms Purcell’s suggestion that eye contact from her “caused” Ms Farah to “glare back” simply underscores the subjective nature of this kind of evidence. Similarly, Ms Purcell’s evidence that the words “Humanity Australia” written on a red bag which Ms Purcell placed on the table, might have caused Ms Farah to “quickly turn away” after one of the episodes of glaring, is not probative evidence but rather, is opinion based on a subjective perception of conduct in search of motive, to explain conduct. It is not, with respect, rational or reasoning.

[96] I agree with the submissions of Ms Farah that these allegations are vague, and the evidentiary basis upon which the allegations are said to have foundation, is simply insufficient to establish that the conduct occurred, much less that it was unreasonable.

Incident Six – OH&S Committee

[97] The alleged incident is said to have occurred on 24 June 2014 when the OH&S Committee held a meeting in Ms Farah’s office. The Business Manager at the time, Mr Coates had, according to Ms Purcell, told the Committee Members to hold the meeting in Ms Farah’s office. 187

[98] The evidence given by Ms Purcell was that halfway through the meeting, Ms Farah stormed into her office with her fists clenched, glanced around at everyone and glared at Ms Purcell. Ms Farah is said to have turned to Mr Coates and asked “what is going on?”. 188 Ms Purcell alleges that after Mr Coates told Ms Farah that it was an OH&S meeting, Ms Farah folded her arms, turned to Ms Purcell and angrily replied, “well you have to leave now”.189 Ms Purcell said that Ms Farah’s tone was very aggressive and that Ms Farah “directed her command at me”.190 Ms Purcell contends that she felt humiliated and afraid by this incident.191

[99] The OH&S Committee meeting thereafter continued in another room. 192

[100] Ms Farah contends that, upon returning from a visit to a nearby primary school, she was startled to discover Mr Coates, Ms Purcell and the other two members of the OH&S Committee sitting in her office. Furthermore, she contended that she was particularly startled because the layout of her office meant that they were obscured from her view until she was already in the office. 193 Ms Farah pointed out that there are a number of meeting rooms available for staff to use throughout the school and that no one, other than Ms Farah herself, has meetings in her office because of the confidential nature of documents kept in her office. She also noted that no one had sought permission to use her office on this day.194

[101] Ms Farah’s evidence was that, upon seeing the group in her office she “immediately focused her attention on Andrew. Andrew was the most senior person…and I knew he was the only person at the table who had a key…I assumed he had let them all in”. 195 Upon being informed by Mr Coates that the Committee were holding an OH&S meeting in her office because the boardroom was being used, Ms Farah contends that she asked them to find another location and that she directed her comments to Mr Coates in particular.196

[102] Ms Farah conceded, during oral evidence, that not only was she slightly irritated as stated in her witness statement, 197 but she was also annoyed.198 She maintained, however, that she did not believe she was aggressive or hostile, although she acknowledged that when she asked the members of the Committee to leave she did so firmly.199 In her witness statement, Ms Farah said that she “would not have clenched (her) hands or crossed (her) arms at the time because (she) would have been holding (her) handbag…”.200 Ms Farah claims that she did not pay attention to Ms Purcell or anyone other than Mr Coates because he was the only one in the OH&S Committee with keys to her office.201 Moreover, Ms Farah gave evidence that while Ms Purcell and others might have perceived that she had clenched her fists, she was “100 percent positive” that she did not, nor was it the case that she might have done so, or was not aware of doing so.202

[103] As to the issue of “clenched fists”, Ms Farah gave a demonstration of something she does when she is stressed, 203 which according to my recollection of the demonstration, involved Ms Farah keeping her hands by her side and closing her fingers. She said that at the same time she would take a deep breath.204 Ms Farah also demonstrated that her view of clenched fists involved raising her arms and making a fist with each hand.

[104] This is perhaps a distinction without a difference, but I accept Ms Farah’s explanation as to her habit in response to stress. Given this, it also seems to explain why others might perceive such a gesture as an expression of anger, frustration and even a source of fear in the workplace. I would expect therefore, Ms Farah, now armed with knowledge of the potential effect of her gesture on others, to take some positive steps to address her responses to stressful situations.

[105] That said, it is not disputed that Ms Farah was unaware that her office was being used for a meeting, that prior permission had not been sought and that she was taken by surprise when she entered her office to find it occupied by a group of people.

[106] That Ms Farah would be annoyed, seems to me to be unremarkable. I do not accept that Ms Farah singled out Ms Purcell by her sternly delivered comment that the members should leave, though I can well understand that any person present might consider such a comment as one directed to them personally. Ultimately, there was a gathering of people in Ms Farah’s office without her permission or knowledge. Would it have been better to have asked the members to leave politely? Yes of course. Was it unreasonable in the circumstances for Ms Farah to be annoyed and to state firmly, and even invoking Ms Farah’s stressful situations response, to tell members they must leave? Not in my opinion.

[107] I agree with the submissions of Ms Farah that inconsistencies in some of the evidence about particular matters given by Mr Coates and Mr Borg amounts to no more than inconsistencies about trivial matters, and consequently do not alter my assessment of the conduct alleged, viewed in the circumstances in which it occurred. Moreover, that Ms Farah may have been looking at Ms Purcell when she said “You’ll need to get out”, 205 does not result in the conduct being directed towards Ms Purcell. It is not suggested that by those words Ms Farah wanted only Ms Purcell to leave. Ms Farah was annoyed, with some justification, that a group of uninvited people were using her office and she wanted them all to leave. Ms Farah conveyed that desire in a firm manner. That everyone else who was present understood the statement uttered to be a direction that they should all leave is evident by their subsequent conduct in leaving the office. The evidence does not establish that this is conduct by Ms Farah towards Ms Purcell, nor that it was unreasonable in the circumstances.

Incident Seven – Staff Association and farewell for Pamela Zaharias

[108] Ms Purcell was a member of a Staff Association that operated at the College. She gave evidence that a member of the Staff Association usually farewells a member of staff who is leaving and, so when she learned, on 26 June 2014, that a colleague, Ms Pamela Zaharias, had resigned, she sent an email to the President of the Staff Association informing her of Ms Zaharias’ resignation and asking whether they should do something. Ms Purcell did not receive a reply to the email and so she asked Ms Renee Schulberg, a friend of Ms Zaharias, to make a quick speech and give her a card the following day. 206

[109] Ms Purcell contends that, at about 1.00pm on 27 June 2014, Ms Farah communicated Ms Zaharias’ resignation to all staff in her weekly bulletin. About half an hour later, at a staff lunch, Ms Schulberg gave a short speech and Ms Purcell’s evidence is that, during the speech, Ms Farah made her way to the back of the room and spoke quite loudly to a caterer. 207 The words uttered by Ms Farah were to the effect of “I cannot believe this”.208 Ms Farah then immediately stood directly behind the chair on which Ms Purcell was sitting and placed her hand on the back of it. Ms Purcell says that she felt quite apprehensive and anxious about this because of the alleged recent aggressive behaviour of Ms Farah towards her.209

[110] Ms Schulberg was called to Ms Farah’s office after giving the speech and was told by Ms Farah that she should not have given the speech. It is not in dispute that Ms Farah was angry at Ms Schulberg, that she asked Ms Schulberg who else was involved and that Ms Schulberg disclosed Ms Purcell by name. 210 It is also not in dispute that Ms Schulberg apologised to Ms Farah.211 Ms Schulberg returned to the staffroom very upset because Ms Farah was angry and told Ms Purcell that Ms Farah had told her to stay away from Ms Purcell and some others because they were trouble. Ms Purcell contends that she felt threatened by this news.212

[111] A good deal of evidence was given about who had a role in giving farewell speeches and the past practice in this regard. 213 But for reasons that will shortly become apparent nothing turns on this.

[112] Ms Purcell seeks to attribute Ms Farah’s conduct during her meeting with Ms Schulberg as conduct directed towards Ms Purcell, principally because it is said that Ms Farah might have expected Ms Schulberg to convey Ms Farah’s anger to Ms Purcell. This is evident from the following extract of Ms Purcell’s outline of submissions:

[113] That this was, or might have been, the expectation of Ms Farah is not only unsupported by the evidence, but directly contrary to it. To begin with, Ms Schulberg gave evidence that she was told by Ms Farah not to discuss their meeting with anyone but did so nonetheless as is evident below:

[114] Moreover, the suggestion that Ms Farah might have expected Ms Schulberg to speak to Ms Purcell about the meeting or that which was said during the meeting relating to Ms Purcell was not directly put to Ms Farah and seems contrary to the line of cross-examination that was pursued as is clear below:

[115] The connection advanced by the Applicant is simply not made out. Moreover, when combined with the undisputed fact that Ms Farah took no step to raise the matter with Ms Purcell, 219 the evidence does not support any finding that Ms Farah’s conduct during the meeting with Ms Schulberg was conduct towards Ms Purcell. That said, whilst it might have been appropriate to have a discussion with Ms Schulberg about the farewell, on no account can it be said that the nature of the exchange, angry as it was, was reasonable.

[116] There is a further aspect of the incident involving the farewell of a staff member in relation to which complaint is made. After Ms Farah had made the audible comment “I cannot believe this” to the caterer, it was said that Ms Farah stood directly behind Ms Purcell and placed her hand on the back of the chair on which Ms Purcell was sitting, and that this had made Ms Purcell quite anxious because of that which, Ms Purcell says, had been recent aggressive behaviour towards her. 220 Ms Farah does not remember putting a hand on the back of the chair occupied by Ms Purcell or, for that matter, where Ms Purcell was sitting.221 Taken at face value, and putting to one side Ms Purcell’s feelings of apprehension and anxiety and the reasons she attributes for that apprehension, the actions of Ms Farah in placing a hand on the back of the chair occupied by Ms Purcell can hardly be described as unreasonable behaviour. The evidence on this issue does not support a finding that there was unreasonable behaviour by Ms Farah towards Ms Purcell. Furthermore, for the reasons given above, the attempt by Ms Purcell in her submissions to combine the chair incident with the content of the meeting between Ms Farah and Ms Schulberg, must be rejected.

Incident Eight – Annual Review Meeting

[117] Mercy Education conducts Annual Review Meetings (ARM) every year for staff, including both teaching and non-teaching staff. ARM’s are dealt with in the Victorian Catholic Education Multi-Enterprise Agreement 2013 (Agreement) which applied to Mercy Education and Ms Purcell during the relevant period. The evidence of Ms Farah was that each ARM is typically conducted by two members of the leadership team and that she does not conduct all of them. Ms Farah indicated that Ms Theresa Daunt was chosen to lead Ms Purcell’s ARM because she could discuss her teaching, and Mr Coates, the Business Manager, was chosen as the second member of the leadership team because of his contact with Ms Purcell through the OH&S Committee. Ms Farah asserted that it did not occur to her at the time that Ms Purcell might be offended by this decision. 222

[118] On 25 June 2014, Ms Farah sent an email to staff about the ARM process, inviting staff to indicate whether they wanted her to conduct their ARM. 223 On 28 July 2014, Ms Farah received an email from Ms Purcell questioning the reasons for Mr Coates’ presence in her ARM.224 According to Ms Farah, an email exchange between Ms Purcell and Ms Farah followed, in which it was agreed that Ms Farah would conduct Ms Purcell’s ARM, rather than Mr Coates.225

[119] Ms Purcell’s belief is that, in appointing Mr Coates to conduct her ARM, Ms Farah was singling her out because Mr Coates was not a teacher and because she, Ms Purcell, was the only member of the teaching staff to have Mr Coates appointed to conduct her ARM. 226 Ms Purcell referred to encounters she had had with Mr Coates in which she had been intimidated by him and submitted that she raised her concern about the decision to appoint Mr Coates with Ms Farah. Ms Purcell was not happy with Ms Farah’s explanation and felt that it was very unfair. She says that she was afraid and stressed because of Mr Coates’ apparent reputation to be verbally aggressive.227

[120] Ms Purcell said that she contacted the Union and sent a letter to Ms Farah questioning the decision to appoint Mr Coates. 228 According to Ms Purcell, upon receipt of this letter, Ms Farah offered to personally conduct her ARM. Ms Purcell contended that although she felt apprehensive and uneasy about Ms Farah conducting her ARM, she was too afraid to ask for another member of the leadership team.229

[121] Evidence was given by Ms Loretta Cotter, the Deputy Secretary of the Union. Essentially, Ms Cotter’s evidence was that, in her roles as both a teacher and Union official, she had never encountered a situation where a business manager conducted the ARM of a teacher. She maintained this throughout cross-examination and although the business manager did not, in the end, conduct Ms Purcell’s ARM, Ms Cotter gave a clear indication that this is unusual in her experience and that it raised concern for her. 230

[122] The differences in the accounts of the exchanges between Ms Purcell and Ms Farah are marginal. The gravamen of the dispute is the decision to nominate Mr Coates to participate in the first place (there being no dispute that he did not participate), and whether that decision was unreasonable. There can be no dispute that the decision was conduct or behaviour which was directed towards Ms Purcell.

[123] Ultimately, I have come to the conclusion that the decision was unreasonable for the following reasons:

[124] Moreover, Ms Farah’s various justifications for assigning Mr Coates to Ms Purcell’s ARM, none of which stand up to scrutiny, serves only to underscore the unreasonable nature of the decision. These included:

[125] Though the decision by Ms Farah to allocate Mr Coates to participate in Ms Purcell’s ARM was doubtless “management action”, for the reasons given above it was not reasonable. It seems to me that there was no evident or intelligible justification for the decision to assign Mr Coates to participate in Ms Purcell’s ARM.

[126] That said, the impact of the original decision is mitigated by the fact that, once objection was taken, the decision was reversed and Mr Coates did not ultimately participate in Ms Purcell’s ARM.

Incident Nine – ARM Outcome

[127] Ms Purcell’s ARM was conducted on 5 August 2014 by Ms Farah and Ms Daunt. Ms Farah’s evidence was that, other than a few small issues, she thought Ms Purcell’s ARM was positive. 252

[128] Ms Purcell contends that Ms Farah “picked on several trivial things” including:

[129] Ms Farah also informed Ms Purcell that she would not be teaching any VCAL subjects in 2015 because she was taking LSL. 254 Ms Purcell felt that she received no positive feedback from Ms Farah during her ARM, other than a brief comment on the Recycled Goods Market and she was very upset by this. She gave evidence that she never received the last page of her ARM which provides feedback from Ms Farah and allows the staff member to read and sign it. Ms Purcell had received this last page in previous years. Copies of her 2013 and 2014 ARM’s were attached to her witness statement.255

[130] Ms Farah gave evidence that Ms Purcell mentioned raising money for the Salvation Army during the ARM and that this led her to “suggesting that next year Susan should consider raising money for the Mercy institution because the College is a Mercy Education and Catholic school, and so we should direct our fundraising efforts accordingly”. 256 Ms Farah conceded that she was irritated because Ms Purcell was answering her questions with “Yes, Mary” or “No, Mary” and that she asked her stop.257 It was, she said, at this point that she told Ms Purcell that they needed to work on their communication.258

[131] Ms Farah denies being angry with Ms Purcell at any point during the ARM and apologised if Ms Purcell thought she was. Ms Farah claimed that she did not glare at Ms Purcell but conceded that she “would have” looked at her intently while listening to her answers. 259 Ms Farah said that Mercy Education did not give staff member’s formal confirmation of their ARM outcomes due to being short-staffed in 2014. She indicated that, following appointment of the new Deputy Principal, however, meetings were arranged with all staff members early in 2015 to review and update the 2014 ARM outcomes and that, apparently, this was not possible in the case of Ms Purcell because she was on LSL. She understood that the new Deputy Principal intended to meet with Ms Purcell upon her return from LSL but that this was “put aside” when Ms Purcell disputed the Deputy Principal’s handling of her return to work after LSL.260

[132] Ms Daunt took notes during Ms Purcell’s ARM. 261 Ms Purcell’s ARM was opened by Ms Farah, and Ms Daunt thought that Ms Farah was positive and light in her approach. Ms Daunt believed that Ms Farah had initially congratulated Ms Purcell on the work she had completed throughout the year.262 Ms Purcell says that she did not receive any positive feedback other than the brief comment on the Recycled Goods Market.263

[133] Ms Farah set out her recollection of the ARM as follows:

[134] Ms Farah suggested in her oral evidence that Ms Daunt’s notes, to which reference was made above, perhaps did not capture the totality of the discussion at the meeting and that Ms Farah had had other notes taken by her, or perhaps by Ms Daunt, but in any event, these were not produced in the proceedings. 265 Ms Farah’s evidence in this regard was, with respect, rather confused and, in my view, wholly unreliable. Ultimately, I accept Ms Purcell’s evidence that, during the ARM Ms Purcell was not given any positive feedback. The best record of that which was discussed during Ms Purcell’s ARM are the notes taken by Ms Daunt. Those notes do not reflect any positive feedback. One would expect a record of an ARM to record positive feedback if it were given, after all this is a document which is ultimately kept on an employee’s file as one of the indicators of performance. Moreover, I also accept Ms Purcell’s description of the ARM insofar as she says that Ms Farah “picked on several trivial things”. That Ms Farah chose to discuss the Salvation Army door knock as part of the social justice activities in an ARM seems to me to be very trivial.

[135] In my view, the conduct of Ms Purcell’s ARM was less than satisfactory. It was of short duration 266 and does not appear to have given adequate attention to the various matters that were set out by Ms Purcell in the self-assessment parts of the ARM document.267 That said, I am not satisfied that the conduct or outcome of the ARM amounted to unreasonable behaviour. It was doubtless a very poor example of anything verging on best practice. That trivial matters were discussed, that positive performance was generally not given, or that more substantive matters were not addressed, does not in my view change the character of that which was undoubtedly a poorly executed ARM, into unreasonable behaviour.

Incident Ten – Sick Leave

[136] On 14 August 2014, Ms Purcell was home on sick leave for the third consecutive day. On this same day, an accounts and payroll clerk employed by Mercy Education sent an email to all staff stating that “a medical certificate must be produced when the number of sick days taken exceeds 5 days in any one year”. 268 The email also advised that a medical certificate must be provided if a staff member takes more than two consecutive days of sick leave or if such leave is taken before or after a public holiday.

[137] Evidence was given by the accounts and payroll clerk, Ms Pina McCallum, that in her role, she is required to enter data into an electronic database relating to staff leave. The database generates a warning when a staff member is required to provide a medical certificate and Ms McCallum asserts that on 14 August 2014, she received warnings from the database about four staff members who had been absent on sick leave that week. 269 After a discussion with Ms Farah, Ms McCallum and Ms Farah agreed that Ms McCallum would send a general reminder email to all staff about the requirement to provide a medical certificate and that Ms McCallum would ask each of the four staff members to provide a medical certificate.270 Emails were also later sent to the four employees the subject of the database alert, including Ms Purcell.271

[138] Following this, Ms McCallum sent an email to Ms Purcell apologising that she “had to send this”. 272 Ms McCallum gave evidence that Ms Farah “told me in hindsight that we should have waited a week for the staff to voluntarily provide medical certificates before chasing them up”.273 Ms McCallum asserts that, at Ms Farah’s request she attempted to recall the emails, “but it was too late because they had already been sent”.274 It is Ms Purcell’s belief that a number of staff made the connection between the timing of the emails and the fact that she was on leave at the time. This made her feel isolated and targeted.275

[139] The Agreement deals with the evidentiary requirement for sick leave as follows:

“30.8 Evidence of sick leave

[140] As earlier indicated, emails were sent by Ms McCallum, on 14 August 2014, to the four employees the subject of the database alert. 277 Ms Farah indicated that these emails were sent because the staff members had each taken more than five days of sick leave and were required to produce a medical certificate, however, it appeared that her recollections about this incident were not clear.278 According to Ms Farah the usual process is that staff call or text Mr Robert Ruzbacky to let him know when they are sick. Ms Farah’s understanding is that Mr Ruzbacky informs the payroll clerk who then advises Ms Farah whether there is an issue or whether a staff member is required to provide a medical certificate. Upon return to work, the staff member completes a leave form which is left in Ms Farah’s pigeon hole for signature.279

[141] Ms Farah contends that the emails were not sent specifically because Ms Purcell was on leave at the time, 280 and the evidence given by Ms McCallum as to the warning or alert generated by the electronic database supports this contention.

[142] Ms Purcell’s submissions assert “tacit” acknowledgement, by Ms McCallum and by Ms Farah, that sending the sick leave email to all staff was an unreasonable action, as set out below:

[143] So far as Ms McCallum is concerned, the “tacit” admission is said to arise from her email to Ms Purcell which read “Sorry Sue but had to send that email to you for sick leave”. 289 The sending of the email supports no such conclusion. Apart from anything else, it is not responsive to the all staff email, which was sent at 10.48am,290 but rather it was sent at 12.08pm291 in relation to the sick leave email sent by Ms McCallum to Ms Purcell at 12.06pm.292

[144] Moreover, the words “had to send that email to you for sick leave” is consistent with that assessment.

[145] As to the tacit admission by Ms Farah, Ms Purcell points to the following evidence:

[146] From this, it is said that a conclusion should be drawn that Ms Farah was aware that staff would draw a connection to Ms Purcell, and so the conduct was unreasonable. That, with respect, requires several leaps of logic, which I will not make. The sending of a general reminder about sick leave, seems to me to be no more than an administrative exercise, which is wholly unremarkable. That an attempt was later made to recall the all staff email does not demonstrate unreasonableness in sending it in the first place. Ms McCallum explained the reason for the attempt to recall the emails as Ms Farah told her that “in hindsight we should have waited a week for the staff to voluntarily provide medical certificates before chasing them up”. 294

[147] The sending of the emails, in my view, was not unreasonable, nor was the all staff reminder conduct towards Ms Purcell.

Incident Eleven – Professional Development Day

[148] The next incident is said to have occurred at a Professional Development (PD) day held at the College on the last day of Term 3, 2014. Ms Purcell’s evidence is that Ms Farah sat at a table occupied by Ms Purcell and others, and that throughout the day Ms Farah was “aloof and dismissive”. 295 When asked to join in activities, Ms Farah declined. Ms Purcell gave evidence that she felt targeted by this behaviour and that the other staff noticed. Another teacher at the same table, according to Ms Purcell’s evidence, later commented to Ms Purcell words to the effect, “She’s so cold today. She’s very upset with you”.296

[149] Ms Farah’s evidence in relation to this incident was that she arrived late and that there were only a few seats left. She joined the table near the back of the room and indicated that Ms Purcell, Ms Jacobs, Ms Dorothy Tarazia and Mr Paul Ives were at that table. She said that she was getting irritated at the others on her table because they were talking during a presentation and she thought it was rude. She said she looked at them to give them a hint to stop speaking. Those involved apparently noticed her looking at them and stopped talking. In relation to Ms Purcell’s assertion that Ms Farah declined to contribute to the group sessions, Ms Farah claimed that she did not want to take over as Principal and that she preferred to hear what the staff had to say. She noted that she would have been looking at everyone as they spoke but does not believe she was glaring at Ms Purcell, or anyone else. 297 That staff were talking during a presentation is denied by both Ms Purcell298 and Ms Jacobs.299

[150] In any event, Ms Purcell does not complain about any glaring directed to her by Ms Farah on that day. 300

[151] The suggestion that Ms Farah’s conduct during the PD day was unreasonable and directed towards Ms Purcell was said to arise because of the context in which it occurred. Namely having regard to some of the incidents, to which earlier reference has been made in this decision, Ms Purcell had reason to suspect that the conduct was directed at her. Moreover, it is said that several teachers made the connection that Ms Farah was expressing her disapproval of Ms Purcell. Although I readily accept that Ms Purcell might well have had reasons to suspect that the conduct was directed at her, particularly as she appears to have been encouraged in this view by Ms Jacobs and Ms Tarazia, 301 there is simply an insufficient evidentiary basis from which one can confidently conclude that the conduct complained of was directed at Ms Purcell. Moreover, the conduct complained of is that Ms Farah was “aloof” and “dismissive during our activities and discussions”, apparently because she had declined to participate in them.

[152] It is doubtless the case that a school Principal participating in a PD day with staff should avoid the appearance of aloofness, disinterest or dismissiveness. Such conduct might be described as “poor form” or lacking leadership, but it is not in my view unreasonable behaviour, and there is, as I have already indicated an insufficient evidentiary basis to conclude the behaviour was directed toward Ms Purcell, much less that the conduct alleged was motivated by past interaction between Ms Farah and Ms Purcell.

Incident Twelve – Reduction of Hours

[153] Ms Purcell says that she received two emails from Ms Farah’s personal assistant, Ms Martelli, informing her that Ms Farah wanted to meet to discuss her employment in 2015 upon her return from LSL. Ms Purcell replied to that email and attached a copy of the email exchange to her witness statement. 302 After what appears to be some confusion over the scheduled time, a meeting took place on Wednesday, 5 November 2014. During the meeting, Ms Farah informed Ms Purcell that her time allotment would drop from 0.88 to 0.70 from the start of 2015. A letter dated 6 November 2014 was sent to Ms Purcell to confirm the reduction in hours, which she was to sign and return by 7 November 2014.303 Ms Purcell asked for an extension as she did not receive the letter until 7 November 2014. Ms Purcell’s Union had advised Ms Purcell that the Agreement required Ms Farah to provide staff with a reason for any hours reduction, and to consult, and that Ms Farah had not complied. Ms Purcell queried the reason for the reduction in her hours via email304 and Ms Farah replied by informing her that the hours would be reduced as Ms Purcell would no longer be coordinating VCAL in 2015. This was the only communication Ms Purcell received regarding the reason for the reduction. Ms Purcell was concerned the reduction would mean her salary would be reduced during her LSL in 2015. However, this did not turn out to be the case.305

[154] According to Ms Farah, it was not appropriate that Ms Purcell be appointed VCAL Co-ordinator in 2015 as she was going to be on LSL for the first half of the year. For this reason, another staff member was appointed VCAL Co-ordinator for 2015 and this subsequently meant a reduction in Ms Purcell’s hours, 306 as the additional time allocated for the performance of Co-ordinator functions was not required. Ms Purcell does not complain about the reduction in hours per se, but says that the manner in which the reduced hours were notified and implemented was unreasonable because:

[155] Contrary to the submissions of Ms Farah, it does seem to me that clause 15 of the Agreement applies to the alteration of hours and that Mercy Education, through the actions of Ms Farah, might not have complied with its obligations. That said, I accept that the alteration was the natural consequence of the altered status of Ms Purcell’s responsibilities.

[156] Furthermore, I accept the evidence given by Ms Martelli about the dates by which Ms Purcell had to reply, which was as follows:

[157] This was mistaken conduct by Ms Martelli about which Ms Farah was unaware.

[158] The reasons for the alteration were ultimately communicated and the pay concerns resolved.

[159] In these circumstances, notwithstanding a lack of communication in the initial meeting, the conduct complained of was not unreasonable, though it fell well short of best practice.

Incident Thirteen – LSL payment

[160] Ms Purcell had, in May 2014, applied to take LSL during the first six months of 2015. 309 Ms Purcell’s LSL had been approved by Ms Farah on 25 July 2014,310 however her request for six weeks’ leave at half pay was an arrangement that also required approval. By early December 2014, Ms Purcell had yet to receive confirmation that the leave at half pay had been approved.311 On 9 December 2014, Ms Purcell was in the staffroom discussing whether her LSL arrangement had been approved with Ms McCallum when Ms Farah entered the staffroom. Ms Purcell’s evidence was that Ms McCallum had assured her that the half pay arrangement had been approved and signed off.312 Ms McCallum appears to confirm that this was the case,313 although when the evidence given during her cross-examination is read as a whole, it seems clear that Ms McCallum was referring to LSL being approved, rather than the half pay arrangement, which Ms McCallum clearly regards as one and the same.314

[161] Ms Purcell’s evidence is that Ms Farah came towards her with her fists clenched and stood very close to her. Ms Farah folded her arms across her chest and looked at her aggressively. Ms Purcell felt quite threatened. Ms Purcell contends that Ms Farah then asked whether they were discussing Ms Purcell’s LSL and she told Ms Purcell, in an angry tone, “I have not signed off on it. You have to wait”. 315

[162] Ms Purcell contends that Ms McCallum looked very upset and embarrassed at this and when Ms McCallum attempted to explain to Ms Farah what she had told Ms Purcell, Ms Farah interrupted, glared at Ms Purcell and repeated that she needed to sign off on it. Ms Farah then told Ms McCallum to follow her and they both left. Ms Purcell says she was very distressed by the incident and upon visiting her doctor, was given a certificate to take leave for the rest of the week. Ms Purcell also gave evidence that she visited a psychologist around this time. 316

[163] Ms McCallum’s evidence of the incident on 9 December 2014 is somewhat different to that of Ms Farah in that she recalls Ms Farah stating that she had approved Ms Purcell’s LSL. 317 This evidence is clearly inconsistent with Ms Farah’s own evidence in that Ms Farah says that she had said words to the effect that: “I still need to sort that out”.318 Ms McCallum contends that Ms Farah appeared upset that they were talking. She also noticed that there was something wrong with Ms Purcell but did not mention it at the time.319

[164] Ms Farah said that when she approached Ms McCallum and Ms Purcell in the staffroom on 9 December 2014, she thought that they had been “gossiping” about her and Mr Coates. 320 This “thought” was based, in part, on earlier information that had been provided to her by a “staff member” to the effect that the staff member had overheard Ms McCallum and Ms Purcell gossiping about Mr Coates,321 and in part because, according to Ms Farah, Ms McCallum and Ms Purcell “immediately appeared to change their tone when they saw” Ms Farah.322

[165] According to Ms Farah, she approached Ms McCallum and Ms Purcell to ask them what they had been talking about, because she had the distinct impression that the two were gossiping about her and Mr Coates. 323 Ms Farah conceded that, in hindsight, she should not have interrupted the conversation between Ms Purcell and Ms McCallum, and says that she recalled that Ms Purcell, in answer to Ms Farah’s enquiry said that the two had been talking about Ms Purcell’s LSL, to which Ms Farah said words to the effect that “I still need to sort that out”.324 Ms Farah concedes that she should not have said this, because Mr Coates and Ms McCallum were sorting out Ms Purcell’s leave. She explained that she was irritated at the time because she thought that Ms McCallum and Ms Purcell had been gossiping, and she wanted to stop the conversation.325

[166] On 17 December 2014, Ms Purcell received an email from Ms McCallum informing her that her LSL had been approved. 326

[167] It seems to me clear on the evidence, that Ms Farah conveyed to Ms Purcell that the issue of LSL on half pay was still to be sorted out by Ms Farah in circumstances where Ms Farah knew that this was not the case. Moreover, Ms Farah did so because she was irritated on the basis of a baseless, or at least a tenuous, belief that Ms McCallum and Ms Purcell had been gossiping about Ms Farah and Mr Coates.

[168] Ms Farah submits that it was known to her that Ms Purcell was, at that time, pursuing allegations against Ms Farah with the Board of Mercy Education and, consequently, that Ms Farah had every reason for unease about what was being discussed by staff members. 327 Moreover, Ms Farah submits that the exchange between Ms Purcell and Ms Farah on 9 December 2014 was not unreasonable because, ultimately, the discussion “went nowhere” as the matter had been finalised by Ms McCallum and Mr Coates.

[169] As to the first submission, that knowledge cuts both ways. It might equally be said that alluding to a suggestion that Ms Purcell’s LSL approval was still outstanding, when that was not the case, in circumstances where Ms Purcell had only just sought to make a complaint about Ms Farah to the Board of Mercy Education, was calculated to reinforce in the mind of Ms Purcell that Ms Farah knew about the complaint and was not happy about it.

[170] As to the second submission, whether the conversation went nowhere, in the sense that the LSL issue had been resolved, is with respect, beside the point. It seems to me inherently unreasonable for a Principal to knowingly mislead an employee about the status of that employee’s LSL application. That she communicated the misinformation in circumstances, on Ms Farah’s own evidence, of irritation, which Ms McCallum described as Ms Farah being visibly or clearly upset, 328 in my opinion serves to underscore the unreasonable nature of the behaviour that was directed towards Ms Purcell.

[171] The conduct about which complaint here is made was directed by Ms Farah towards Ms Purcell and, was unreasonable.

Incident Fourteen – Letter – Return from long service leave

[172] On or about 24 April 2015, Ms Purcell received a letter from Mercy Education signed by Mr John Shannon, the Chairman of the Board of Mercy Education, 329 which provided as follows:

[173] The requirement contained therein was subsequently reversed in correspondence to Ms Purcell from Mr Shannon dated 20 May 2015 331 which in terms was as follows:

[174] The letter, in my view, overstates somewhat the requirement that Ms Purcell indicated that she would abide by the policies to which reference is made, before she returned to work from LSL. Ms Purcell submits that, that which she described as a demand, was unreasonable because:

[175] It is doubtless the case that the Board of Mercy Education, through its Chairman, consulted Ms Farah before sending the correspondence of 25 April 2015 to Ms Purcell, and perhaps also framed the correspondence to take into account concerns raised by Ms Farah, 335 but it does not follow that Ms Farah caused the correspondence to be sent. The letter sets out the context in which it was sent, namely the complaints by Ms Purcell to the Board, the investigation of the complaint, the outcome of the complaint and the reluctance expressed by Ms Purcell to participate in a facilitated mediated discussion with Ms Farah.

[176] I well understand how the overstating of a so-called “requirement” to agree to abide by particular policies as an apparent condition of returning to work might have caused concern on the part of Ms Purcell. That part of the letter was clumsily and inelegantly expressed, to say the least. But when reading the letter as a whole, I cannot conclude that the broad message sought to be conveyed, was in the circumstances, unreasonable.

[177] That said, the letter was not conduct or behaviour by Ms Farah towards Ms Purcell. It was conduct or behaviour by Mercy Education towards Ms Purcell.

Incident Fifteen – Requirement to undertake induction course upon return from Long Service Leave

[178] Ms Purcell returned from LSL on 13 July 2015. Upon her return to work, she was advised that she was required to undertake an induction program. Ms Purcell participated in the induction on 23 July 2015 as instructed. 336 The induction document is stated to be for “new staff”,337 and Ms Purcell is the only staff member of the College returning from LSL, to have been required to participate in the program.338

[179] Ms Farah submits that she had nothing to do with this decision. On her evidence, Ms Farah apparently questioned the need for Ms Purcell to undertake the induction training, but indicated that Ms Purcell should be treated “like any other staff member”. 339

[180] Ms Farah gave evidence as follows:

[181] Ms Purcell argues that Ms Farah’s assertion that she played no role in this decision is “not credible”. 341 Ms Purcell submits as follows:

[182] Ms Purcell further contends that Ms Farah gave “conflicting and evasive evidence” 349 as to whether she had discussed the induction of Ms Purcell. Ms Purcell submits that Ms Farah’s assertion that she could not have participated in the decision to require Ms Purcell to undertake the induction on the basis of an email Ms Farah received from the Union indicating that “We think it is appropriate that while this process continues any communications you need to have with Ms Purcell in the workplace are handled through the Deputy Principal”350 is “not believable”.351

[183] Furthermore, Ms Purcell argues that Ms Farah had, through Mr Shannon, unsuccessfully sought to compel Ms Purcell to sign the new bullying policy and that she achieved this desire by requiring Ms Purcell to participate in the induction program. 352

[184] As discussed above, I do not accept that Ms Farah caused the correspondence of 24 April 2015 to be sent to Ms Purcell. Also, as mentioned above, I consider it likely that the overstating of a so-called “requirement” to agree to abide by particular policies, as an apparent condition of returning to work, might have caused concern on the part of Ms Purcell. It remains the case, however, that there is no probative evidence to establish that Ms Farah caused the correspondence to be sent.

[185] The policy requiring returning staff who have been on leave which extended for 6 months or more, was introduced in September 2015. 353 Ms Purcell returned from LSL in July 2015. Ms Purcell argues that there was no evidence of any such policy being in existence in July 2015, or for that matter, prior to September 2015, and given that Ms Farah conceded this point during oral evidence,354 I accept this argument. In addition, the induction documentation specifically states that it is for “new staff”355. Ms Purcell contends that the requirement that she participate in the induction made her feel isolated and targeted,356 and that it was unreasonable and demeaning.357

[186] Ms Purcell contends that the requirement that she attend the induction and sign the acknowledgement, particularly in the context of the letter from Mr Shannon to Ms Purcell, 358 constituted bullying conduct and that this decision did not constitute “management action”.359

[187] Ms Farah contends that she was not involved in the decision to require Ms Purcell to undertake the induction and that “induction is, after all, a means of supporting staff 360 rather than penalising them”.361 Taken as a general proposition, this is undoubtedly the goal of an induction, however in the particular circumstances, I do not agree with the contention and I am of the view that the requirement was unreasonable for the following reasons:

[188] Moreover, I do not accept that Ms Farah was not involved in the decision to require Ms Purcell to undertake the induction. Ms Farah knew, before the induction commenced that Ms Purcell was to be required to undertake the induction. She was in a position to intervene but did not. From this, I infer that Ms Farah, at the very least endorsed the decision, as she had both the knowledge and authority to overturn it. Moreover, Ms Farah’s evidence that she said “Just treat Susan like any other staff member” 364 is difficult to accept in circumstances where no policy existed, and no previous staff member returning from LSL had been required to undertake such an induction, facts about which Ms Farah was well aware.365 In fact, by allowing the Deputy Principal to require Ms Purcell to undertake the induction in these circumstances, was treating her differently to other staff members. The unexplained absence of Ms Valentine in giving evidence (discussed later in this decision) does not assist Ms Farah in persuading me that she was not involved in the decision. I am therefore satisfied that the requirement for Ms Purcell to undertake an induction upon her return from LSL was unreasonable behaviour by Ms Farah towards Ms Purcell.

[189] The requirement that Ms Purcell undertake the induction was “management action” but for the reasons given, it was not reasonable. In my view, there is no evident or intelligible justification for requiring that Ms Purcell undertake the induction.

Incident Sixteen – Allocation of Mentor

[190] Ms Purcell was also assigned a mentor upon her return from LSL and this is said to be a deliberate action by Ms Farah to target Ms Purcell. 366 Ms Purcell’s evidence is that no other staff member had a mentor at the time and, to her knowledge, no other staff member had ever been assigned a mentor after returning from less than twelve months leave.367 No evidence was adduced to establish otherwise. Ms Purcell’s evidence is that she felt singled out, targeted and demeaned by being unilaterally assigned a mentor.368

[191] Ms Purcell was advised that she had been assigned a mentor during the induction program. The mentor assigned to her was a person with less teaching experience and less knowledge of the College than Ms Purcell. 369

[192] The role of the mentor is set out in the “Induction Information for New Staff 2015” 370 document as follows:

[193] Ms Purcell submits that the decision to allocate a mentor was made by Ms Farah and that Ms Farah’s evidence to the contrary, was contradictory and should not be accepted. In particular, Ms Purcell argues that Ms Farah:  372

[194] Ms Purcell further submits that, although Ms Farah claimed she had nothing to do with the assignment of a mentor, she advanced a number of reasons supporting the decision which she then declined to reinforce in cross-examination. The reasons given by Ms Farah included:

[195] Ms Purcell also contends that the decision to allocate a mentor did not constitute management action, but to the extent that it may, then it was not reasonable in that it was:

[196] Ms Farah contends that she had nothing to do with the decision and, accordingly, it was not conduct by Ms Farah towards Ms Purcell. 389 She says the decision was made by her deputy, Ms Valentine. Ms Farah submits that allocating a mentor is a form of support, and that most of the leadership team, including Ms Farah herself, have mentors.390

[197] The evidence given by Ms Farah in relation to this allegation is contradictory,  391 unconvincing and, in my view, not credible. Ms Farah was aware that the Deputy Principal had appointed a mentor to Ms Purcell upon her return from LSL. She supported the decision392 and said that Ms Valentine’s intentions were good.393 Ms Farah is the Principal of the College and, according to her own evidence, she is involved in the day to day operational decisions, hiring and firing of staff, she makes the decision as to whether or not to place staff on performance management plans and she is involved in the decisions regarding training requirements.394

[198] Moreover, the induction document in which the decision to allocate a mentor to Ms Purcell was set out, 395 carried a “Principal’s Welcome” above the name of Ms Farah. In addition, although Ms Farah suggested that she did not discuss the allocation of a mentor with Ms Valentine,396 I think that is unlikely given that the induction (of which allocation of the mentor was a part) was not discussed with Ms Valentine.397 Indeed, I am not sure how Ms Farah would have formed the view that Ms Valentine’s intentions were good without discussing the decision.

[199] Ms Valentine was held out as the person who made both the decision to require Ms Purcell to undertake an induction and to allocate a mentor yet she was not called to give evidence. The reason she was not called is unexplained by Ms Farah. It seems clear that she could have been called since on at least one occasion, Ms Valentine was in the courtroom during the hearing. 398 In the circumstances, I draw the inference that her evidence would not have assisted Ms Farah.399 The cumulative effect of all this is that I am satisfied that the decision to allocate a mentor to Ms Purcell was that of Ms Farah.

[200] I also accept that the decision was unreasonable for the following reasons:

[201] Consequently, I am satisfied that the decision to allocate a mentor to Ms Purcell was unreasonable conduct or behaviour of Ms Farah towards Ms Purcell.

[202] Although the decision to allocate a mentor to Ms Purcell was “management action”, for the reasons given, it was not reasonable. There is no evident or intelligible justification for the allocation of a mentor to Ms Purcell in the circumstances.

What is bullying behaviour under the Act?

[203] Section 789FD of the Act provides as follows:

Repeated unreasonable behaviour

[204] It is apparent from the analysis above that I have found that Ms Farah has repeatedly behaved (incidents eight, thirteen, fifteen and sixteen) unreasonably towards Ms Purcell.

[205] For the reasons given earlier I do not consider that any of the four incidents constituting the repeated behaviour amount to reasonable management action carried out in a reasonable manner.

[206] In order that the repeated unreasonable behaviour identified may be said to be bullying at work it is also necessary to conclude that the repeated behaviour creates a risk to health and safety.

Risk to health and safety

[207] In Ms SB, Hampton C provided the following analysis in relation to the “risk to health and safety” element in s.789FD as follows:

[208] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. 404 The ordinary meaning of “risk” is the exposure to the chance of injury or loss; a hazard or dangerous chance,405 however, the risk must be real and not merely conceptual.406

[209] It is clear that it is not necessary that an applicant demonstrate that he or she has suffered actual injury or loss in order to demonstrate the necessary risk. 407

Incident Eight – Annual Review Meeting

[210] For the reasons set out at [117] to [126] above, the decision to nominate Mr Coates to participate in Ms Purcell’s ARM was unreasonable conduct or behaviour of Ms Farah directed towards Ms Purcell. The decision was likely, in the circumstances of her poor relationship with Mr Coates, to have caused Ms Purcell some distress. However, as the decision was not ultimately implemented once objection was taken, the impact of the decision on a risk to health and safety is, in my view, somewhat mitigated. Taken in isolation, the decision, which was not implemented, is in my view unlikely to have posed a risk to Ms Purcell’s health or safety, but the incident is not isolated and so the cumulative effect of the repeated behaviour on the risk to health and safety must be taken into account.

Incident Thirteen – LSL Payment

[211] For the reasons set out at [160] to [171], the deliberate communication of the misinformation about Ms Purcell’s LSL payment by Ms Farah was unreasonable behaviour and was, clearly directed towards Ms Purcell. The conduct appears to have been motivated by a groundless suspicion about gossiping, and was, in my view, calculated to cause uncertainty in the mind of Ms Purcell and is likely to have caused her distress.

Incident Fifteen – Induction Course

[212] As detailed at [178] to [189] above, I have concluded that the requirement that Ms Purcell undertake induction, upon her return to work after LSL, constitutes unreasonable behaviour by Ms Farah towards Ms Purcell. That she was required to undertake the induction in the circumstances was likely to have caused Ms Purcell to be distressed.

Incident Sixteen – Allocation of Mentor

[213] It is also my view that the allocation of a mentor was an unreasonable decision. I have set out my reasons for this conclusion at [190] to [202] above and am satisfied that the decision was that of Ms Farah. The allocation of a mentor to Ms Purcell, given her years of experience and absent any demonstrable need for a mentor would likely have been a source of embarrassment to Ms Purcell and a source of distress.

[214] As discussed earlier in this decision, it is not necessary that Ms Purcell demonstrate she has suffered actual injury or loss in order to establish a risk to health and safety. Ms Purcell provided two very brief reports from a general practitioner and a psychologist, both of whom she presented to after 18 June 2015. 408 However, neither the general practitioner nor the psychologist were called to give evidence during the proceedings.

[215] Ms Purcell submits that she was exposed to “multiple and repeated instances of isolation, targeting, disparagement to other staff and demeaning treatment” and asserts that “No further evidence is required to establish that exposure to such treatment raises a real risk to health and safety”. 409 There must be a causal link between the behaviour and the risk, and that risk must be real and not just conceptual.

[216] In my view, Ms Purcell’s perception as to risk, cannot be the sole determinant of the risk to health and safety. Ms Purcell contends that she has experienced distress, and significant stress and anxiety as a result of the conduct complained of. 410 Having observed Ms Purcell during these proceedings, I have no doubt that the events complained of have affected her wellbeing. As I have indicated above, the incidents are likely to have caused distress to Ms Purcell. Moreover, the cumulative effect of the incidents is likely to have heightened the level of distress. Some of the distress experienced by Ms Purcell will have, in my view, been caused by her perception of Ms Farah’s attitude towards her, and Ms Purcell’s perception of Ms Farah’s demeanour, facial expressions and manner, rather than the conduct of Ms Farah.

[217] Nonetheless, the four incidents which I have concluded constitute repeated unreasonable behaviour were likely to have caused distress and thereby posed a real risk to Ms Purcell’s mental health. The allocation of a mentor and the requirement that Ms Purcell participate in the induction program was, in the circumstances, insulting, embarrassing and humiliating. Ms Farah’s communication of the status of Ms Purcell’s LSL application was not only unnecessary, but in my view calculated to cause uncertainty in the mind of Ms Purcell. The decision to nominate Mr Coates to conduct Ms Purcell’s ARM did not have any legitimate purpose and was likely to have caused Ms Purcell some distress given her previous dealings with Mr Coates and about which Ms Farah was aware.

[218] It follows that Ms Farah repeatedly behaved unreasonably towards Ms Purcell and that behaviour created a risk to the health and safety of Ms Purcell. Ms Purcell was bullied at work.

What orders if any should be made?

[219] These proceedings were ultimately conducted on the basis that I would first make findings as to whether bullying at work occurred, and that if I were satisfied that there has been bullying of Ms Purcell by Ms Farah at work, I would separately deal with the question of whether there is an ongoing risk of bullying, and if so what orders (if any) should be made. 411 This was appropriate having regard to the array and nature of the allegations made by Ms Purcell, and the need to consider both the question of ongoing risk and the need for any consequential orders having regard to the conduct actually found as constituting bullying at work.

[220] As I have concluded that there are four incidents which together constitute repeated unreasonable behaviour by Ms Farah towards Ms Purcell that create a risk to health and safety, it is appropriate to now establish a program by which the question whether any orders should be made is to be considered and determined.

[221] As I have endeavoured to indicate at the outset of this decision, the relationship between Ms Purcell and Ms Farah is an obviously tense one involving some mutual animus. It appears to me that this poor relationship is at the heart of many of the issues about which complaint has been made, whether or not the evidence about those issues has ultimately persuaded me that they constitute part of the repeated unreasonable behaviour. I consider that interpersonal relationship disputes are best resolved through the efforts of the parties and perhaps assisted by some form of facilitation or mediation. Any orders that I might make will likely favour one side over the other. Such orders will only be made after further evidence is received and submissions are made, the effect of which will be to reinforce established views that each party has of the other rather than to facilitate some form of reconciliation between the parties. The latter is much more likely to produce a lasting positive improvement in the working relationship between Ms Farah and Ms Purcell than any order that I might make. The better the relationship repair, the less likely it will be that orders are necessary. Although Ms Purcell has previously declined to embark upon a restorative process proposed by Mercy Education, I would urge her to reconsider. That the offer was made is, in my view, recognition that there is a relationship in need of repair. This is a good start.

[222] With this in mind, I propose for the parties’ consideration that they engage with each other in a series of mediated or facilitated meetings with the aim of repairing their relationship and engaging in a dialogue that will accommodate an ongoing professional working relationship and a safe working environment.

[223] If the parties are unwilling to engage with each other in the way I have suggested, then the parties are to file in my chambers within 14 days of the date of this decision an agreed form of directions which will facilitate the expeditious hearing and determination of the question whether orders should be made pursuant to s.789FF of the Act.

Conclusion

[224] For the reasons given, incidents eight, thirteen, fifteen and sixteen taken together, amount to repeated unreasonable behaviour by Ms Farah towards Ms Purcell and that behaviour created a risk to Ms Purcell’s mental health. Consequently, I am satisfied that Ms Purcell was bullied at work by Ms Farah. The parties are to give consideration to participating in a facilitated or mediated series of meetings with the aim of repairing an obviously damaged working relationship. If the parties, or one of them, are not willing to participate, the parties are to file consent directions in my chambers by 25 July 2016 to facilitate the expeditious hearing and determination of the question whether orders should be made pursuant to s.789FF of the Act.

Seal of the Fair Work Commission with Member's signature

DEPUTY PRESIDENT

Appearances:

Mr D. Matson of the IEU on behalf of Ms Purcell.

Mr R. Millar of Counsel on behalf of Ms Farah.

Mr J. Forbes of Counsel on behalf of Mercy Education.

Hearing details:

2015.

Melbourne.

November 9, 10, 11, 12 and 13.

December 21.

2016.

Melbourne.

March 23.

Final written submissions:

Applicant’s Outline of Submissions, 19 February 2016.

Outline of Final Submissions of Mary Farah, 10 March 2016.

Second Respondent’s Outline of Final Submissions, 16 March 2016.

Applicant’s Reply Submissions, 22 March 2016.

 1   Exhibit 2 at [3].

 2   Ibid at [5].

 3   Ibid at [7].

 4   Ibid at [9].

 5   Ibid at [12].

 6   Ibid at [14].

 7   Ibid; Exhibit 2, SP-2.

 8   Ibid at [15].

 9   Ibid.

 10   Ibid at [17]; Exhibit 2, SP-3.

 11   Outline of Final Submissions of Mercy Education Limited at [33].

 12   [2015] FWC 774.

 13   Ibid at [74] – [95].

 14   Section 789FD(2).

 15   Explanatory Memorandum to the Fair Work Amendment Bill 2013.

 16   Re Ms SB [2014] FWC 2104 at [52].

 17   Ms SB [2014] FWC 2104 at [49]-[53]; Re GC [2014] FWC 6988.

 18   Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42; [1998] SASC 6519; Re Ms SB [2014] FWC 2104 at [52].

 19   Mac v Bank of Queensland & Ors [2015] FWC 774 at [102].

 20   Exhibit 2 at [19].

 21   Ibid at [18].

 22   Ibid.

 23   Transcript PN760.

 24   Exhibit 2 at [20].

 25   Ibid at [21].

 26   Ibid.

 27   Ibid.

 28   Transcript PN741 – PN756.

 29   Exhibit 21 at [29].

 30   Ibid.

 31   Exhibit 18 at [27].

 32   See for example Exhibit 19 at [8].

 33   Exhibit 18 at [8]-[26] and then at [27].

 34   Transcript PN745 – PN757.

 35   Exhibit 21 at [25].

 36   Ibid at [30].

 37   Transcript PN2956 – PN2957.

 38   Transcript PN2958 – PN2961.

 39   Exhibit 2 at [22]; PN773 – PN798.

 40   Exhibit 21 at [31]; Exhibit 21, MF-2B.

 41   Transcript PN773 – PN783.

 42   Transcript PN794 – PN797.

 43   Exhibit 21, MF-2B.

 44   Transcript PN3512.

 45   Exhibit 18 at [27]; Transcript PN2975 – PN2995.

 46   Exhibit 21 at [31].

 47   Transcript PN3508.

 48   See for example Transcript PN2957 – PN2962 and PN2973 – PN2975.

 49   Transcript PN3012 – PN3016.

 50   Transcript PN3035 – PN3043.

 51   See Exhibit 21.

 52   Exhibit 18 at [27].

 53   Transcript PN3066 – PN3067.

 54   Transcript PN3508.

 55   Transcript PN3509.

 56   Transcript PN3531 – PN3540.

 57   Exhibit 21 at [31]; Transcript PN3512.

 58   Transcript PN3519.

 59   Transcript PN2987 – PN2989.

 60   Transcript PN2995 – PN3008.

 61   Transcript PN2973 – PN2977.

 62   Exhibit 21, MF-2D.

 63   Exhibit 21, MF-2E.

 64   Exhibit 32 at [13].

 65   Exhibit 2 at [25]; Exhibit 21 at [35]; Exhibit 32 at [11] – [14].

 66   Applicant's Outline of Submissions at [18].

 67   Exhibit 21 at [25].

 68   Transcript PN2958 – PN2962.

 69   Exhibit 32 at [12] – [13].

 70   Exhibit 2 at [24]; Exhibit 2, SP-5.

 71   Ibid.

 72   Exhibit 2, SP-5.

 73   Exhibit 21 at [36]-[41].

 74   Exhibit 2 at [25].

 75   Exhibit 21 at [41].

 76   Transcript PN3688 – PN3695.

 77   Transcript PN3647 and PN3696.

 78   Transcript PN3608 – PN3609.

 79   Exhibit 21 at [38].

 80   Ibid at [39].

 81   Ibid at [40].

 82   Transcript PN3660 – PN3673.

 83   Transcript PN3609 and PN3659.

 84   Transcript PN3659.

 85   Exhibit 21 at [30].

 86   Transcript PN3696.

 87   For example Mr Ruzbacky thought that Ms Purcell “most likely should have had an office”, see Transcript PN6894 – PN6897.

 88   Exhibit 2 at [26]; Exhibit 21, MF-3C.

 89   Exhibit 2 at [26].

 90   Exhibit 2, SP-7; Exhibit 21, MF-3D.

 91   Exhibit 21 at [54].

 92   Ibid.

 93   Ibid.

 94   Exhibit 2 at [27]; Exhibit 2, SP-8; Exhibit 21, MF-3E.

 95   Exhibit 2 at [27].

 96   Exhibit 21 at [55].

 97   Exhibit 21, MF-3E.

 98   Exhibit 2, SP-9; Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 3:07pm.

 99   Exhibit 21, MF-3F – Email from First Respondent dated 1 June 2014, 5:14pm.

 100   Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 5:45pm.

 101   Exhibit 2 at [27]; Exhibit 2, SP-9; Exhibit 21, MF-3G.

 102   Exhibit 21, MF-3C.

 103   Exhibit 21, MF-3F – email from First Respondent dated 1 June 2014, 2:39pm.

 104   Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 3:07pm.

 105   Ibid.

 106   Ibid.

 107   Exhibit 21, MF-3F – email from First Respondent dated 1 June 2014, 5:14pm.

 108   Exhibit 21, MF-3F – email from Applicant dated 1 June 2014, 5:45pm.

 109   Exhibit 21 at [61].

 110   Exhibit 2 at [28].

 111   Exhibit 2 at [29]; Exhibit 2, SP-10.

 112   Ibid.

 113   Exhibit 21 at [64]; Exhibit 21, MF-4B.

 114   Ibid; Exhibit 21, MF-4C.

 115   Exhibit 2 at [30].

 116   Ibid.

 117   Ibid.

 118   Exhibit 21 at [66].

 119   Ibid.

 120   Ibid at [66]-[67].

 121   Exhibit 2 at [30].

 122   Exhibit 21 at [70].

 123   Exhibit 2 at [30].

 124   Exhibit 24 at [7]; Exhibit 24, AM-1B.

 125   Ibid at [8]; Exhibit 24, AM-1C.

 126   Ibid at [9]; Exhibit 24, AM-1D.

 127   Transcript PN5859 and following.

 128   Exhibit 21, MF-4C; Transcript PN977.

 129   Transcript PN996.

 130   Transcript PN988 – PN996.

 131   Transcript PN1044.

 132   Exhibit 2 at [29].

 133   Exhibit 21, MF-4C.

 134   Exhibit 2 at [30].

 135   Ibid.

 136   Transcript PN3810.

 137   Exhibit 7.

 138   Ibid at [14]-[15].

 139   Exhibit 7, AD-1.

 140   Exhibit 7 at [15].

 141   Exhibit 7, AD-2 – email from First Respondent dated 17 June 2014, 10.42pm.

 142   Exhibit 2 at [38].

 143   Ibid.

 144   Exhibit 21 at [82].

 145   Ibid.

 146   Exhibit 7 at [15].

 147   Ibid at [13].

 148   Transcript PN3914 – PN3921.

 149   Exhibit 21 at [75]; Transcript PN3897 – PN3898.

 150   Transcript PN3903 – PN3905.

 151   Exhibit 7, AD2.

 152   Ibid.

 153   Transcript PN4247.

 154   Transcript PN3921 and PN4450.

 155   Exhibit 21 at [76].

 156   Exhibit 7 at [18]; Exhibit 8 at [12]; Exhibit 26 at [5].

 157   Exhibit 21 at [81]; Transcript PN4271 – PN4275.

 158   Exhibit 26 at [4].

 159   Transcript PN6168.

 160   Exhibit 26 at [5]; Transcript PN6185 – PN6194.

 161   Transcript PN6194.

 162   Exhibit 24 at [11]-[12].

 163   Exhibit 21 at [74]-[75].

 164   Transcript PN5984 – PN6016.

 165   Transcript PN5998.

 166   Transcript PN2232 – PN2237.

 167   Exhibit 2 at [38]; Transcript PN1108 – PN1113, PN1125 – PN1136.

 168   Applicant’s Outline of Submissions dated 19 February 2016.

 169   Transcript PN 6021 – PN 6022.

 170   Exhibit 7, AD 2.

 171   Exhibit 24, AM–1A.

 172   Exhibit 24 at [13].

 173   Exhibit 24, AM–1A.

 174   Exhibit 2 at [39].

 175   Exhibit 21 at [84].

 176   Exhibit 2 at [40].

 177   Ibid at [40]-[42].

 178   Transcript PN1125 – PN1136.

 179   Exhibit 13 at [18] – [19].

 180   Transcript PN2674 – PN2678.

 181   Exhibit 2 at [41].

 182   Ibid.

 183   See Transcript PN2677.

 184   See Transcript PN2675.

 185   Exhibit 2 at [40].

 186   Exhibit 9 at [24].

 187   Exhibit 2 at [43].

 188   Ibid.

 189   Ibid.

 190   Ibid.

 191   Ibid.

 192   Transcript PN1165.

 193   Exhibit 21 at [88]-[90].

 194   Ibid at [91].

 195   Ibid at [92].

 196   Ibid at [93].

 197   Ibid at [94].

 198   Transcript PN4361 – PN4362.

 199   Transcript PN4364.

 200   Exhibit 21 at [94].

 201   Ibid.

 202   Transcript PN4365 – PN4369.

 203   Transcript PN4391 – PN4396.

 204   Transcript PN4395.

 205   Transcript PN6131 – PN6133.

 206   Exhibit 2 at [45]-[46].

 207   Exhibit 2 at [48].

 208   Transcript PN4945 – PN4946.

 209   Exhibit 2 at [49]; Transcript PN1207.

 210   Exhibit 9 at [10]; Transcript PN4857 – PN4858; PN4875 – PN4879.

 211   Exhibit 9 at [10]; Transcript PN4873.

 212   Exhibit 2 at [50]-[51].

 213   For example: Exhibit 21 at [100] – [101]; Exhibit 2 at [46]; Exhibit 3 at [30]; Exhibit 19 at [9]; Exhibit 10 at [6]; Exhibit 2 at [107]; Exhibit 13 at [10]; Transcript PN1174 – PN7173; PN1190; PN2602; PN2612; Exhibit 15; Exhibit 23.

 214   Transcript PN2282; PN1195.

 215   Exhibit 21 at [109].

 216   Applicant’s Outline of Submissions at [67].

 217   Transcript PN2282.

 218   Transcript PN4923 – PN4937.

 219   Exhibit 21 at [109].

 220   Exhibit 2 at [49].

 221   Transcript PN4948 – PN4955; Final Outline of Submissions of Mary Farah at [54].

 222   Exhibit 21 at [121]-[123].

 223   Exhibit 21, MF-7A.

 224   Exhibit 21, MF-7B.

 225   Exhibit 21, MF-7B.

 226   Exhibit 2 at [56].

 227   Ibid at [58]-[62].

 228   Ibid at [64]; Exhibit 2, SP-15.

 229   Exhibit 2 at [65].

 230   See Exhibit 1 at [4]-[12]; Transcript PN94 – PN125; Transcript PN189.

 231   Transcript PN1281; PN5204; PN5208; Exhibit 11 at [19].

 232   Transcript PN5252 – PN5256 (note that at PN5256, the second sentence of transcript should read “it was the only one to which he was ever assigned?”).

 233   Applicant’s Outline of Submissions at [79].

 234   Transcript PN6163.

 235   Transcript PN6260.

 236   Transcript PN6264 – PN6265.

 237   Transcript PN6276 – PN6281.

 238   Transcript PN6968 – PN6969.

 239   Exhibit 21, MF-7B; Transcript PN5238.

 240   Exhibit 21 at [123].

 241   Exhibit 21, MF-7B.

 242   Exhibit 26 at [1]; Transcript PN6162 – PN6163.

 243   Transcript PN5252 – PN5256.

 244   Transcript PN1593; PN5779.

 245   Transcript PN5211 – PN5213; PN5252 – PN5256.

 246   Transcript PN5201.

 247   Transcript PN5204.

 248   Transcript PN5207 – PN5209.

 249   Transcript PN1279.

 250   Victorian Catholic Education Multi-Enterprise Agreement 2013, clause 24.1(a).

 251   Transcript PN6965 – PN6969.

 252   Exhibit 21 at [129]-[130].

 253   Exhibit 2 at [66].

 254   Ibid at [67].

 255   Ibid at [68]; Exhibit 2, SP-16.

 256   Exhibit 21 at [130(c)].

 257   Transcript PN5283 – PN5287.

 258   Exhibit 21 at [131].

 259   Ibid at [133].

 260   Ibid at [134].

 261   Exhibit 2, SP–16.

 262   Exhibit 33 at [15].

 263   Exhibit 2 at [68].

 264   Exhibit 21 at [130].

 265   See Transcript PN5264 – PN5273.

 266   Transcript PN6967.

 267   Exhibit 2, SP-16.

 268   Exhibit 21, MF-8C; Exhibit 28, PM-1A.

 269   Exhibit 28 at [10].

 270   Exhibit 28, PM-1B.

 271   Exhibit 21, MF-8B

 272   Exhibit 2, SP-17; Exhibit 21, MF-8C; Exhibit 28, PM-1C.

 273   Exhibit 28 at [15].

 274   Ibid.

 275   Exhibit 2 at [69].

 276   See Victorian Catholic Education Multi Enterprise Agreement 2013; Exhibit 21, MF-8A.

 277   Exhibit 21, MF-8B.

 278   Exhibit 21 at [137].

 279   Ibid at [136].

 280   Ibid at [139].

 281   Exhibit 2, SP-17.

 282   Transcript PN6538.

 283   Exhibit 28 at [14].

 284   Exhibit 21 at [135] – [139]; Exhibit 28 at [11] – [14].

 285   Transcript PN5386 – PN5387.

 286   Transcript PN5388; PN6509.

 287   Transcript PN5388.

 288   Applicant’s Outline of Submissions at [100] – [103].

 289   Exhibit 2, SP-17 at p.2.

 290   Exhibit 21, MF-8C.

 291   Exhibit 2, SP-17 at p.2.

 292   Exhibit 2, SP-17 at p.3.

 293   Transcript PN5388.

 294   Exhibit 28 at [15].

 295   Exhibit 2 at [70].

 296   Ibid.

 297   Exhibit 21 at [142]-[146].

 298   Exhibit 3 at [40]; Transcript PN1420 – PN1426.

 299   Exhibit 14 at [5] – [6]; Transcript PN2660 – PN2665.

 300   See Exhibit 2 at [70];Applicant's Outline of Submissions at [111]; Transcript PN2662.

 301   Exhibit 2 at [70].

 302   Ibid at [71]; Exhibit 2, SP-18.

 303   Exhibit 2 at [72]-[73]; Exhibit 2, SP-20.

 304   Exhibit 2, SP-22.

 305   Exhibit 2 at [75]-[77].

 306   Exhibit 21 at [147]-[149].

 307   Applicant’s Outline of Submissions at [118].

 308   Exhibit 24 at [16] – [19].

 309   Exhibit 21, MF-10B.

 310   Exhibit 21, MF-10E.

 311   Exhibit 21 at [157]; Exhibit 2 at [81].

 312   Exhibit 2 at [82].

 313   Transcript PN6558 – PN6559.

 314   Transcript PN6590 – PN6601.

 315   Exhibit 2 at [80]-[83].

 316   Exhibit 2 at [84]-[85].

 317   Exhibit 28 at [19].

 318   Exhibit 21 at [160].

 319   Exhibit 28 at [19].

 320   Exhibit 21 at [160].

 321   Ibid.

 322   Ibid.

 323   Ibid.

 324   Ibid.

 325   Ibid.

 326   Exhibit 2, SP-24.

 327   Exhibit 21 at [159].

 328   Transcript PN6570 – PN6575.

 329   Exhibit 2, SP-29.

 330   Exhibit 2, SP-29.

 331   Exhibit 2, SP-30.

 332   Exhibit 2, SP-30.

 333   Transcript PN3140 – PN3143.

 334   Transcript PN3148 – PN3158.

 335   Transcript PN3141 – PN3142.

 336   Applicant’s Outline of Submissions at [134]; Outline of Final Submissions of Mary Farah at [88].

 337   Exhibit 2, SP-31.

 338   Exhibit 2 at [109].

 339   Transcript PN5687.

 340   Transcript PN5685 – PN5687.

 341   Applicant’s Outline of Submissions at [135].

 342   Transcript PN4776.

 343   Transcript PN3095.

 344   For example, see Transcript PN3085 – PN3088; PN3114.

 345   Transcript PN3095.

 346   Exhibit 2, SP-30.

 347   Transcript PN5763.

 348   Applicant’s Outline of Submissions at [135] - [136].

 349   Ibid at [137].

 350   Ibid at [138].

 351   Ibid.

 352   Ibid at [139].

 353   Applicant’s Outline of Submissions at [141]; Transcript PN5731 – PN5738.

 354   Transcript PN5695 – PN5706.

 355   Applicant’s Outline of Submissions at [143]; Exhibit 2, SP-31.

 356   Transcript PN1599.

 357   Applicant’s Outline of Submissions at [143].

 358   Exhibit 2, SP-29.

 359   Applicant’s Outline of Submissions at [145] – [146].

 360   Transcript PN5963.

 361   Outline of Final Submissions of Mary Farah at [90].

 362   Applicant’s Outline of Submissions at [142]; Transcript PN5741 – PN5751; Exhibit 2 at [109].

 363   Transcript PN6834 – PN6835.

 364   Transcript PN5687.

 365   Transcript PN5688; PN5689 – PN5706.

 366   Transcript PN1594.

 367   Exhibit 2 at [113]; Transcript PN1594.

 368   Applicant’s Outline of Submissions at [151].

 369   Ibid at [148]; Exhibit 2 at [113]; Transcript PN1593.

 370   Exhibit 30.

 371   Exhibit 30 at p.4.

 372   Applicant’s Outline of Submissions at [149].

 373   Transcript PN5764; PN5769; PN5773; PN5768.

 374   Transcript PN5771 – PN5772.

 375   Transcript PN5793.

 376   Transcript PN5784 – PN5786.

 377   Transcript PN5793 – PN5795.

 378   Applicant’s Outline of Submissions at [150]; Transcript PN5791 – PN5793.

 379   Ibid; Transcript PN5794 – PN5795.

 380   Ibid; Transcript PN5781 – PN5783.

 381   Exhibit 2 at [113]; Transcript PN1593; as to departure from established procedures supporting a finding of not carried out in a reasonable manner, see Yu v Comcare [2010] AATA 960.

 382   Exhibit 1 at [14] – [15].

 383   Despite the assertion that most leadership have mentors (Transcript PN5769), no other teachers have had mentors unilaterally allocated to them.

 384   Exhibit 2 at [113]; Transcript PN1593; PN57765; PN5779.

 385   Transcript PN1593; PN1603.

 386   Exhibit 2 at [113].

 387   Georges v Telstra Corporation Limited [2009] AATA 731.

 388   Applicant’s Outline of Submissions at [153].

 389   Final Outline of Submissions of Mary Farah at [92].

 390   Final Outline of Submissions of Mary Farah at [93]; Transcript PN5769.

 391   Transcript PN5793; PN5795.

 392   Transcript PN5770.

 393   Transcript PN5768.

 394   Transcript PN3095; PN3085 – PN3088 and PN3114.

 395   Exhibit 30 at p.4.

 396   Transcript PN5771.

 397   Transcript PN5770.

 398   Transcript PN6398 – PN6399.

 399   Jones v Dunkel (1959) 101 CLR 298.

 400   Exhibit 30 at p.18.

 401   Transcript PN5791 – PN5788; PN5793 – PN5795 and PN5781 – PN5783.

 402   Transcript PN1593; PN5776; PN5779.

 403   Re Ms SB [2014] FWC 2104 at [44]; See also Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121 at [301].

 404   Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, 78 NSWLR 94 at [65]-[67]; Abigroup Contractors Pty Ltd v Workcover Authority of New South Wales (2004) 135 IR 317 at [58]; Ms SB [2014] FWC 2104.

 405   Macquarie Dictionary definition.

 406   Re CG [2014] FWC 6988 at [49]-[50].

 407   Mac v Bank of Queensland & Ors [2015] FWC 774.

 408   Exhibit 2, SP-34; See also Report of Melanie Hunter, Psychologist filed 23 September 2015.

 409   Applicant’s Outline of Submissions at [164].

 410   Ibid at [165] – [166].

 411   See Transcript PN13 – PN28.

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