Anti-Discrimination Decisions

[2007] TASADT 09

Parties:	L V DEPARTMENT OF EDUCATION and OTHERS
File No/s:	43/2004
Delivered on:	22 November 2007
Decision of:	M Otlowski, G Hay, M Bartlett, Tribunal Members

Catchwords:

Equal opportunity - Direct discrimination on the basis of age and race in the area of education and training - Victimisation - Whether conduct amounted to discrimination/victimisation - Anti-Discrimination Act 1998 (Tas) ss 3, 14, 16, 18, 22, 104

Bogie v University of Western Sydney (1990) EOC 92-313; Hautlieo Pty Ltd trading as Russell Pathology v McIntosh [2000] WASCA 146; Rogers v Hanusiewicz (2004) TASADT 14; Dealey v Australian Leisure and Hospitality Group [1998] HREOCA 10; Briginshaw v Briginshaw (1938) 60 CLR 336; Elmarazi v The University of New South Wales [1996] HREOCA; La Roche v President and Members of the Equal Opportunity Board & Anor (1991) EOC 92-361, referred to

Representation:

Counsel:
Complainant:	In Person
Respondent:	Paul Turner, Lucy Wilkins

Solicitors:
Complainant:	In Person
Respondent:	Office of the Director of Public Prosecutions
Decision Number:	[2007] TASADT 09
Number of paragraphs:	236

Reasons For Decision

BACKGROUND

1. For the reasons set out in this decision, the complaint brought by Mrs "L" on behalf of herself and her son, "J", against the Department of Education, Mrs "S", Mrs "M", Mrs "C" and Mr "G" is dismissed.

The Complaint under Consideration:

2. This is a decision in respect of a complaint of direct discrimination brought by Mrs "L" on behalf of herself and her son, "J", against the Department of Education, the Principal of "R" Primary School, Mr "G", and a number of the teachers of that school, Mrs "M", Mrs "C" and Mrs "S". The complaint was lodged on 29 January 2004 and alleged discrimination on the basis of age and race as well as victimisation in the area of education and training. The complaint was brought pursuant to section 14 of the Anti-Discrimination Act 1998 (Tas)(‘the Act’) dealing with direct discrimination and section 18 of the Act dealing with victimisation. 3. The allegations of Mrs "L" (as summarised in the Commissioners’ Referral report) included:

. Race discrimination against Mrs "L" by certain "R" Primary School teachers and Principal, including:

• Teachers refused to talk to Mrs "L".
• Teachers ignored Mrs "L".
• Teachers would give Mrs "L" looks which made her feel unwelcome.
• Teachers intimidated Mrs "L".
• Teachers would talk to other parents but not Mrs "L".
• Mrs "L" alleged that when the teachers talked to her, their body language would change, they would talk to her only ‘when they had to’, Mrs "L" felt that her ‘presence was grudgingly tolerated’.
• Teachers would not provide her with appointments to meet with them.
• At the start of the 2003 School BBQ a teacher said to Mrs "L" ‘it must be difficult being a "N" in Australia’.
• When Mrs "L" visited teachers with her ‘white Australian’ husband, Mrs "S", Mrs "M" and Mr "G" would talk ‘normally’ to Mr "L", different from the way they spoke to Mrs "L".
• Mr "G" spoke to Mrs "L" in a ‘quite demeaning and condescending manner’.

· Race and Age discrimination against "J".

• The treatment of "J" by his teachers;
• The teachers shouted and shoved "J";
• The Principal did not investigate the alleged conduct of the teachers;
• The Department of Education’s Grievance and Investigation Unit:
• did not investigating the complaints properly.
• said the complaint was Mrs "L’s" complaint not "J’s" complaint.
• did not talk to "J" about the allegations.

· Victimisation.

• Mr "G" fostered an environment of ‘hostility towards Mrs "L" because of her actions and complaint to the Grievance Unit.’

History of the Proceedings

4. On 15 March 2004, Mrs "L’s" complaint was accepted by the Anti-Discrimination Commissioner (‘Commissioner’) for investigation on the basis that it disclosed possible breaches of sections 14, 16(a) and (b), 18, 22(1)(b) and 104 of the Act. Mrs "S", Mrs "M", Mrs "C", Mr "G" andtheDepartment of Education were named as Respondents to the claim. All Respondents have at all times denied the allegations raised against them.

5. The Complaint was referred to the Tribunal on 27 September 2004. A number of Directions Conferences were held during 2005 and 2006. With the leave of the Tribunal, Mrs "S", Mrs "M", Mrs "C", Mr "G" andtheDepartment of Education (‘the Respondents’) were legally represented by the office of the Director of Public Prosecutions. Mrs "L" and her son did not have legal representation but for a period during the Direction Conference process, were represented by Mr Dino Ottavi from the organisation ‘Helping Hands Consultancy.’ At all other times, the Complainants were represented by Mrs "L’s" husband, Mr "L". In the course of the Directions Conference process, a suppression order was made in relation to the hearing, to apply to the name of the school, the name of the child, the name of the parents, the nationality of the mother and the child, the name of any school staff appearing before the Tribunal.

6. The Directions Conferences focused on exchange of information between the parties and preparation of the matter for Inquiry. Some time was taken up with concerns of the Complainants as to whether full disclosure of relevant documents had been made by the Department for Education. The Directions Conferences process became somewhat protracted due to a number of changes to lists of documents and witnesses on the part of both parties. Procedural issues were raised before the Tribunal when it became apparent that some of the witnesses that the Complainants indicated that they wished to call were in reality Respondent witnesses. Counsel for the Respondents subsequently advised the Tribunal that as these witnesses were now identified as witnesses for the Complainants, they no longer intended to call those witnesses on behalf of the Respondents and therefore would not be providing witness statements for these witnesses. To avoid any possible disadvantage to the Complainants, the Tribunal resolved that these witnesses would be called as Tribunal witnesses so that the Complainants (and Respondents) would have an opportunity to cross-examine them. Accordingly, the following witnesses were designated as the Tribunals’ witnesses: Mr "H", Ms Kirralea Gates, Mrs "D", Mr Keith Scott, Mr "B", Mr Phil Cleaver, Mr Richard Ramaszko, Mr "P" and Mr Kevin Fagan. The nominated witnesses for the Complainants were Mrs "L", Mrs Glenda Olivier, Ms Mandy Cornelius, and Ms Michelle Absolom. For the Respondents, each of the named individual Respondents were specified as Respondents’ witnesses, namely, Mr "G", Mrs "M", Mrs "S" and Mrs "C".

7. Conciliation of the matter was attempted but was unsuccessful in resolving the matter. The matter was subsequently listed for Inquiry for February 2007 before a three-member panel.

8. The following documents were received in evidence before the Tribunal:

• Letter to Mrs "L" from the Grievance Unit (C1);
• Fax to Marilyn from Kirralea Gates (C2);
• Mrs "L’s" Diary Entries (C3);
• Claim Form and attachments, received 29 January 2004 (C4);
• Letter from Mrs "L" to (OADC), dated 8 April 2004 (C5)
• Response to claim, from Department of Education, dated 6 May 2004 (C6);
• Reply to response to Claim from Mrs "L", dated 28 May 2004 (C7);
• Complainant’s Witness Statements dated 2 February 2006 (C8);
• Complainant’s further Witness Statements dated 30 March 2006 (C9);
• Complainant’s Orders sought 21 April 2005 (C10);
• Statement of Agreed Facts (C11);
• Letter from Philip Moore to Dr Christine Chuter dated 8 June 2001 (C12);
• Request for consultation from Dr Christine Chuter to Mr David Merry dated 13 June 2002 (C13);
• Letter from Thomas Edwards, Intern, to Dr Christine Schuter (sic) dated 5 June 2001 (C14);
• Letter from Matthew Taylor, ENT Registrar, to Dr Richard Roffe dated 17 January 2003 (C15);
• Letter from Philip Moore to Dr Christine Chuter dated 22 June 2001 (C16);
• Letter to "J" from Appointment Office, Royal Hobart Hospital, dated 27 September 2001 (C17);
• Letter to "J" from Outpatient’s Department, Royal Hobart Hospital, dated 23 December 2002 (C18);
• Medical certificates from Dr Christine Chuter dated 15 August and 12 August 2002 (C19);
• Memo (email) from Richard Romaszko, Hartz Support Service, to "R" Primary School Principal, "G" dated 7 August 2003 together with memos (emails) from Richard Romaszko to Kevin Fagan and from Kevin to Richard Romaszko both dated 29 July 2003 and memo (email) from Richard Romaszko to Kevin Fagan dated 30 July 2003 (C20);
• Memo(email) from Richard Romaszko to "G" and memo from Richard Romaszko to Kirralea Gates, Grievance and Investigation Officer, Department of Education, both dated 13 August 2003 (C21);
• Memo (email) from Richard Romaszko to Kirralea Gates dated 12 August 2003 (C22);
• Memo from Mark Edwards, Manager Hartz Support Services, to Kirralea Gates dated 5 August 2003 and memo from Kirralea Gates to Mark Edwards dated 28 July 2003 (C23 );
• Letter to "L" from Richard Romaszko dated 12 August 2003 (two versions; one with handwritten annotations) (C24);
• Memo (email) from Mark Edwards to Rebecca Strong and Kirralea Gates dated 3 September 2003 (C25);
• Hartz Support Service Guidance Referral in respect of "J" (undated) (C26 );
• Memo (email) from Richard Romaszko to Kirralea Gates dated 11 August 2003 (C27);
• Respondents’ (fuller) witness statements (Respondents "G", "C", "S" and "M") dated 12 May 2006 (C28);
• ‘Contemporaneous’ notes of the Respondent Ms "C" (made 19 April 2003) referred to in her Witness Statements (C29);
• Report of proceedings re parental concerns re "J" by Principal "G" covering period November 2002-26 August 2003 (C30);
• Memo from "L" to "G" re concerns dated 30 April 2003 annotated by "G" 9 May 2003 (C31);
• Record of meeting with "L" prepared by "G" covering period April-July 2003 (5 pages) (C32);
• Notes of parent teacher interviews with "L" (July 2003) from "H", "R" Primary School (C33);
• Memo to "L" from "G" dated 17 April 2004 seeking permission for assessment of "J" by a guidance officer (C34);
• Letter from Dino Ottavi, Helping Hands Network Advocate, to Kirralea Gates, Grievance and Investigation Officer, Department of Education, dated 1 December 2003 and attached handwritten 9 page memo from Mr and Mrs "L" (undated) (C35);
• Memo written by Kirralea Gates re telephone conversation with Dino Ottavi, dated 28 November 2003 (C36);
• Fax from Kirralea Gates to Dino Ottavi dated 20 November 2003 (C37);
• Letter to Dino Ottavi from Kirralea Gates dated 11 November 2003 (C38);
• Record of discussion with "M", "R" Primary School, dated 7 November 2003 (C39);
• Copy of record of discussion with "M", "R" Primary School, dated 7 November 2003 with tracked changes (C40);
• List of questions for "M" (annotated) dated 7 November 2003 (C 41);
• "G’s" response to Mr and Mrs "L’s" statement of complaint dated 4 November 2003 (processed by Kirralea Gates 28 October 2003) (C42);
• Further copy of "G’s" response to Mr and Mrs "L’s" statement of complaint with annotations (undated) (C43);
• Letter from Dino Ottavi to Keith Scott, Grievance Unit, Department of Education dated 10 October 2003 (C44);
• Report in relation to "J" prepared by "H" dated 2 September 2003 (C45);
• Letter to Kirralea Gates from Mr and Mrs "L" dated 11 September 2003 (C46);
• Faxed letter to Mr and Mrs "L" from Kirralea Gates dated 11 September 2003 (C47);
• Letter from Keith Scott to Dino Ottavi dated 1 October 2003 (C48 );
• Memo from "G" to Keith Scott/ Kirralea Gates dated 30 September 2003 (C49);
• Letter from Dino Ottavi to Kirralea Gates dated 29 September 2003 (C50);
• Letter from Kirralea Gates to Dino Ottavi dated 24 September 2003 (C 51);
• Letter from Mr and Mrs "L" to Kirralea Gates dated 24 September 2003 (C52);
• Fax from Kirralea Gates to Marilyn for passing on to Mr and Mrs "L" dated 4 September 2003 with attached referral to guidance officer (C53);
• Fax from "G" to Keith Scott dated 28 July 2003 attaching letter from Mr and Mrs "L" to "G" dated 28 July 2003 (C54);
• Letter from Mr and Mrs "L" to Kirralea Gates dated 3 September 2003 and attached draft complaint to "G" (22 pages) with annotations added (C55);
• Letter from Mr and Mrs "L" to Kirralea Gates dated 4 September 2003 and copy of completed complaint from Mr and Mrs "L" to "G" (27 pages)(C56);
• Memo (email) from Mark Edwards to Rebecca Strong and Kirralea Gates dated 3 September 2003 (C57);
• Letter to Mr and Mrs "L" from Kirralea Gates dated 29 July 2003 (C58);
• Letter from Mr and Mrs "L" to Kirralea Gates dated 12 August 2003 (C59);
• Letter from Mr and Mrs "L" to Kirralea Gates dated 13 August 2003 (C60);
• Letter from Kirralea Gates to "L" dated 13 August 2003 (C61);
• Letter from Mr and Mrs "L" to Kirralea Gates dated 14 August 2003 (C62);
• Letter to "L" from Richard Romaszko, Hartz Support Service, dated 12 August 2003 (C63);
• Letter to "L" from Kirralea Gates dated 15 August 2003 (C64 );
• Letter from "L" to Kirralea Gates dated 14 August 2003 (with annotation by Kirralea Gates) (C65);
• Memo (email) from Richard Romaszko to Kirralea Gates dated 13 August 2003 (C66);
• Memo (email) from Richard Romaszko to Kirralea Gates dated 12 August 2003 (C67);
• Memo (email) from Richard Romaszko to Kirralea Gates dated 11 August 2003 (C68);
• Memo (email) from Mark Edwards to Kirralea Gates dated 5 August 2003 and memo (email) from Kirralea Gates to Mark Edwards dated 28 July 2003 (C69);
• Medical certificate dated 5th May 2004 for Mrs "L" from Dr Richard Ralph (C70)
• "R" Primary School Handbook 2002 Parent Handbook (C71, R1);
• Mr "L" witness statement (C72)
• Email to Keith Scott dated 30/09/03 from "G" (C73);
• Statement of Mr "H" and notes (R2);
• Notes of phone conversation between Mr "G" and Mrs "L" (R3).

9. In addition, Mrs "L’s" diary for 2003 was received into evidence as an Exhibit (Exhibit 1).

THE COMPLAINANTS’ EVIDENCE: Mrs "L"

10. Mrs "L" led her evidence-in-chief.In many ways, her evidence was convoluted, not chronological and at times very difficult to follow. The Tribunal has set out her evidence in some detail to ensure that all possible evidence that might give rise to a claim under the Act, whether for unlawful discrimination on the grounds of race and age; or victimisation or otherwise, might be properly considered.

11. Mr and Mrs "L" have 2 children - "A" aged about 14 and "J" born 05/07/1996.

12. The "L" family moved to Tasmania in 1999.

13. "J" commenced at Puddleduck pre-school at the age of 2 and then started kindergarten at "R" Primary School in 2001 at the age of 4.At the time, "A" was a student at that school in grade 3. Mrs "L’s" evidence was that "J" was focused and attentive during his initial schooling and had wonderful and attentive teachers.

14. Mrs "L" parent-helped approximately 1 day per week.

15. In 2002, "J" was to enter his preparatory year at "R" Primary School with Mrs "S" and Mrs "M" as the class teachers."J" was looking forward to it.

16. On the first day of class in that year at about 8.35 to 8.40am, Mrs "L" took "J" to his classroom."J" was with her.2 or 3 other parents were ahead of them and they were talking.

‘Mrs "S" looked over at me – she was not close – I went to say ‘hello’.Mrs "S" I felt was not acknowledging me.She had been chatting to others – on eye contact she looked away – she went to the next parent – others were coming in and she was avoiding me; I was waiting my turn, she was aware of my presence – she spoke to other parents; she seemed unwilling to approach me, she turned away from me.The room had filled with parents, she was unwilling to make eye contact and interact with me.She talked to "J" and did not want to look at me – it was not normal behaviour’.

17. Mrs "L" then gave evidence about numerous subsequent meetings and events, all of which she alleges gave rise to concerns for her that she and her son had been discriminated against –

• fairly soon after the first day of school in a meeting with Mrs "S", Mrs "L" gave her a magazine about Jehovah’s Witnesses and asked her if she had had a student who was a Jehovah’s Witness before.Mrs "S" responded ‘yes’ and took the magazine.
• At the next meeting with Mrs "S", Mrs "L" needed to provide information about "J’s" allergy to jack-jumpers and his tonsillitis and information that "J" had been sick a lot at kinder.Mrs "L" alleged Mrs "S" was evasive and Mrs "M" was also unwilling to make contact.Mrs "L" felt she could not approach them because she felt they did not want to be approached.Mrs "L" did eventually get Mrs "S"’ attention and communicated the information but she was unwilling to interact.Mrs "S" was in the classroom, she stopped to listen and Mrs "L" told her of "J’s" problems regarding health and that she needed to be informed if he had reactions to jack-jumpers.Mrs "L" had to approach the teachers because she felt they had to be made aware of the matters.It is important to note from this part of Mrs "L’s" evidence that she said - ‘I would always go in early in the morning, they would be busy, they would make themselves busy – they knew I wanted to talk because I was trying to make eye contact, waiting for an acknowledgement.They would give no greeting’.
• Not long after "J" started at prep he was to go on his first excursion.Prior to that occasion, he had been enthusiastic and happy but had quickly deteriorated.It was a ‘seashells’ excursion to the beach just for "J’s" class."J" did not want to go which was unusual and on the day Mrs "L" had to make him go.Once "J" saw his friends he was fine.Mrs "L" assisted at the excursion and as they were walking to the beach "J" said quite loudly to his mother - ‘I hate Mrs "S"’.Mrs "L" believes that Mrs "S" was close by. At the beach the students joined in activities but "J" was doing the opposite to what he had been told. Mrs "L" went to Mrs "S" and ‘made a comment on the day to lead into talk about what "J" had said.She (Mrs "S") stopped and gave a look and nodded, I cannot recall her response.She was unwilling to talk to me and she walked away.I tried several attempts during the day but she walked away- she gave only short responses – while I had eye contact she would turn away and walk away’.
• 10 mins later Mrs "L" and "J" sat on the grass while Mrs "M" was giving a talk about ‘Taroona’. ‘"J" just stood up and said - ‘I hate Mrs "M"’ – quite loudly.She looked at him and continued with her talk.We left the beach and "J" kept saying he hated both teachers and was very distressed’.
• From that time, Mrs "L" says that contact with either teacher was very hard and other parents were not treated the same, ‘all seemed normal with the others.I would get to school early to talk to the teachers but they would not talk or they would just not respond and that was it’.
• Mrs "L" alleges other things happened in between or around these events where the teachers were unwilling to speak with her and she felt isolated and embarrassed because others were around.‘They knew I would get to school early and needed to speak with them.At 8.55am I knew the bell would go and time to leave.When I did make contact they would tell me to make an appointment and then walk away’.
• At a time after the ‘seashells’ excursion, Mrs "L" needed to make an appointment to speak with Mrs "S".Mrs "L" informed her that she needed to talk about "J".‘She looked at me and agreed to an appointment after school’.At the meeting, Mrs "L" informed Mrs "S" that "J" did not want to go to school and asked ‘how things were going – any problems?’Mrs "S" informed that there were no problems and "J’s" learning ‘was as was expected’.Mrs "L’s" evidence is that Mrs "S" gave no response of any kind about "J" not wishing to come to school, so she just left.She said that she did not want to push it any further because she did not want any negative repercussions.
• At a later time, but at a time where Mrs "L’s" evidence was confusing - ‘near the middle of the year or near October’, Mr and Mrs "L" met with Mrs "S" and Mrs "M".Mrs "L" had been taking "J" to school but he had been telling her he did not wish to go – he was distressed.Mr and Mrs "L" told the teachers that "J" did not want to attend school and Mr "L" stated that maybe "J" needed a child psychologist.The teachers were very quiet and there was very little verbal communication on their part.Mrs "S" said ‘we will see how he goes, the school has a guidance officer – give it a couple of weeks and see how it goes’. It is Mrs "L’s" evidence that she did not know what a ‘guidance officer’ was.
• Mrs "L" was unsure but she thought it was at this meeting the teachers said that "J" was grade appropriate.Mrs "L" made a strange admission when reflecting upon her lack of memory when referring to this when she said ‘It is not a topic I like to talk about or remember’.
• Mrs "L" did give evidence that she was aware that "J" was involved in the ‘Flying Start Program’ to help young children with difficulties with reading and that Mrs "S" was the Flying Start teacher, although this was not referred to at this meeting. She also gave evidence that before this meeting she was distressed because she would get to school early but the teachers would be too busy to talk to her; that "J" was saying that he did not want to stay at school and that he did not like school and that he hated the teachers.While she said this, there was no acceptable evidence that she conveyed this to the teachers at the meeting and the Tribunal is asked to infer that she did.
• After that meeting "J" changed dramatically.He was back to his normal self.‘That went on for a little while – about 5 days – that week.He said the teachers were nice’.Mrs "L" then went on immediately to say that ‘It probably lasted a month or so.But he started to go back very quickly and talking about being bullied at school’.It is Mrs "L’s" evidence that "J" told his teachers about this but they would not listen to him.‘I am not sure but he told me he reported to the headmaster "G" about bullying by other children.Teachers being angry with him all the time.He was coming home and shaking, with closed fists and turning red’.
• Mrs "L" told the Tribunal that she had seen both teachers shake, close their fists and turn red. She saw Mrs "M" do this at Easter time – ‘she shook, standing facing me because I asked her to change a counting exercise from eggs – we don’t do that.She agreed to the change but was angry’.
• Under cross-examination this matter became a little clearer."J" was given a math work sheet containing Easter eggs.Mrs "L" asked Mrs "M" if she would mind if she changed the picture to bread.Mrs "M" agreed. The Tribunal was asked to infer that Easter eggs was a concept not acceptable to Mrs "L’s" religious beliefs.
• On another occasion when the children were on the mat playing she observed Mrs "S" make a boy feel very terrible and he was crying.Mrs "L" did not complain at the time.
• For the last 3 weeks at school that year "J" was really bad, saying he hated teachers, and was being bullied."J" reported to his mother that the teachers had told him to go away and play.
• In December that year Mrs "L" made an appointment to see the headmaster, Mr "G".This was her first meeting with him.She had a meeting in his office.She stated that he looked bored and was not attentive, was very casual with his hands behind his head.She told him what a shocking time "J" had been having under those teachers and problems had been escalating rather than improving. She asked Mr "G" if she could be told who would be teaching "J" in the following year.He did not know that information at the time and asked her to come back next year if she still had any problems.She alleged that Mr "G" informed her that Mrs "M" was a friend of his, he had known her a long time.In her evidence-in-chief she admitted that she did not make any complaint to Mr "G" about his behaviour or of the teachers or the way "J" was behaving at school.
• During the summer holidays, "J" informed his mother he was not going back to school.Mrs "L" made no contact with the school during those holidays.Her evidence is that on the first day of school in 2003 she did not know who "J’s" teacher was to be.She arrived at school early and there were a lot of other parents there. The teacher (Mrs "C") knew she was there because ‘she looked at me and "J" at length.She continued what she was doing, chatting with parents. I did not know her.She was going from one parent to the other. She was quite a way from us. It was near bell time when she approached us but did not make eye contact and spoke directly with "J" and kept focussed on him, mainly her back and shoulder to me.I spoke to her and introduced myself and "J".She looked only at "J" and talked to him. She was evasive to me.I gave up trying after a while but I had tried constantly to interact’.
• On subsequent occasions, Mrs "L" would arrive in the morning, Mrs "C" gave her initial eye contact but would then turn away.At times Mrs "L" would inform Mrs "C" she needed to speak with her but was told to make an appointment because she was too busy at the time.
• "J" was happy for the first 2 weeks in 2003 but then started complaining about Mrs "C" yelling at him and shaking when she was angry.It was Mrs "L’s" evidence that she had also witnessed Mrs "C" shaking a couple of times.It was about this time that the school newsletter gave notice that Mrs "M" was to be the Flying Start teacher for 2003.
• Mrs "L" attempted to gain an appointment with Mrs "C" to discuss but could not get one. Later she did.
• Mrs "L" gave evidence of sports day 2003, approximately 13 – 15 March 2003, although her written diary suggests it was 14 February 2003. Mrs "L" took "J" to school.‘In his classroom Mrs "C" looked at us, she was chatting with others; I approached her and said "J" was distressed and I need to talk to you about Mrs "M"."J" was shaking and saying ‘I do not want to come to school’.Mrs "C" looked away’. The Tribunal notes that Mrs "L’s" diary entry is at variance to this evidence.She went on to say – ‘Mrs "M" then came to me and "J" and looked down on us, we were seated.She mentioned something to "J", reprimanded him I cannot remember what for.I ignored her.She was very close and facing me and I felt very intimidated’.Despite this seemingly clear recollection of a conversation, under cross-examination Mrs "L" was unable to recall the substance of any conversation which related to this incident.
• Lunch time that day, Mrs "L" again spoke with Mrs "C" who was on duty.Mrs "C" invited her to speak and Mrs "L" told her that "J" had had a shocking year the previous year with Mrs "S" and Mrs "M" and that was why he was distressed.She told Mrs "C" she and "J" had complained but nothing was done. Mrs "C" looked shocked and said she was not aware of any of that.She could not talk any further because she was on duty but said Mrs "L" should speak with the principal about it.Mrs "L" took the view that ‘Mrs "C" was upset and dismissive, she was not advisory and not supportive’.
• "J" reported to her that students, Billy and Jack, on 3 occasions, had bullied him at school and that the teachers would not listen to him about it.Mrs "L" went to the school about it and spoke with Mrs "C". Her evidence was that Mrs "C" reported that "J" was not being bullied and that ‘"J" is the bully’. Mrs "C" was shaking and looked angry and had an aggressive manner.Mrs "L" felt she could not pursue it any further.
• The next day, "A" ("J’s" older brother), saw "J" being bullied and "A" reported to Mrs "M" who got the boys together.When "J" tried to explain, Mrs "M" growled at him and said he was the troublemaker and was disciplined.Mrs "L" reported this at a later time to the principal, Mr "G", in her second meeting with him and he responded by saying ‘he did not believe it, Mrs "M" was a friend of his and he had known her for a very long time.’. In her view, Mr "G" was disinterested.
• On another occasion at the school office, possibly on 26 March 2003, Mrs "L" spoke with a Mr "P" and requested to speak with Mrs "M".Mrs "L" approached Mrs "M" in the presence of Mr "P" and other females in the office.Mrs "M" led her to the back of the room, in a doorway, the door was open. Mrs "L" alleges she said ‘"J" is in a terrible way and he is afraid of you and Mrs "S" and I am having trouble getting him to school – treat him with respect and he will be fine’.Mrs "M" is alleged to have said ‘I am the most unassuming person I know’.Mrs "L’s" evidence is that ‘Mrs "M’s" eyes then became rounded and she had a smile on her face’.Mrs "L" took the view she was being ‘inciteful’ and was not responding in a caring way.
• During this conversation Mrs "L" alleges that Mrs "M" said ‘"J" has been very sick.Oh you take alternatives medicines’. Mrs "L" alleges this was ‘out of line’ and a ‘put-down’ and was deliberately discriminatory and inappropriate because it had nothing to do with why she was there.‘Whenever I spoke to the teachers, their response would be opposite to what I expected’.
• At a barbeque in March, prior to sports day, the principal was chatting to parents and when he saw Mrs "L" he just froze, ‘he followed me with his eyes – he held his gaze and gave me a very hard unrelenting look’.Mrs "C" was close by and came over to Mrs "L" and started a discussion and said ‘It must be hard being a "N" here’.Mrs "L" was ‘upset by the tone of voice and she just looked at me in a derogatory condescending way’. Mrs "L" conceded she did not complain to anybody about that conversation.
• One evening, after sports day, "J" came home and reported ‘Mrs "C" thinks I cannot read, she says I have to read level 1’.Mrs "L" looked at his reading book and it was a level 17.She went to the school to speak with Mrs "C" and noticed on the wall of the classroom all level 1 readers with names of students next to them.Mrs "L" asked the teacher if "J" was a level 1 reader and the teacher responded ‘yes’.Mrs "L" said ‘But I want to say that he is reading at Level 17’.Mrs "L" said she attempted to show the teacher the book he was reading, but the teacher refused to talk and was shaking her head and arm – ‘she went right off’.
• Mr and Mrs "L" went to see Mr "G" because she was unable to communicate with the teacher.He was leaning back in his chair with his hands on his head and swinging.They had written out their issues but Mr "G" informed them they would have to see Mrs "C" at the parent/teacher meeting coming up.She thinks that later that afternoon she and her husband had another meeting with Mrs "C" who was outwardly hostile and just stared with no greeting.Mrs "L" was unclear what they spoke about and she was unsure whether they mentioned they had spoken with Mr "G" and unsure if they raised the reading level issue.She did discuss "J" and what had happened the previous year.Mrs "C" argued and defended what they said about "J".Mr "L" did say they did not want to see a guidance officer, they wanted to see a psychologist with "J".The Tribunal finds that the evidence by Mrs "L" about this conversation was unclear and uncertain.
• After this meeting, "J" returned to school and things picked up for him– ‘back to his normal self’.However, over time, he went backwards and started talking about the teacher yelling again.
• At the end of first term, they met with Mrs "C".When the issue of the reading level was raised Mrs "C" dismissed it because she had another parent waiting.
• "J" missed school on two occasions because Mr "G" would not respond to serious concerns. "J" was taken out of school, supposed to be a few days – maybe a week or two.Mrs "L" contacted Hartz Support every day and was dealing with Mr Romazkos because Mark Edwards had gone away.
• "J" returned to school but not to Mrs "C’s" class.He was put into Mr "H’s" class.
• Guidance Officer, Mrs "D" contacted Mrs "L" one morning and she spoke in a condescending manner. This was while "J" was away from school.Mrs "L’s" evidence is that she told Mrs "D" the reasons "J" was being kept from school and that she was talking to Hartz.She heard Mrs "D" call ‘out to "G"- you didn’t tell me that’.Mrs "L" then said that she was taking written concerns to Mr Edwards at Hartz.
• 10 minutes later Mr "G" telephoned Mrs "L" and sated ‘we have a lovely school and would love to have "J" back, he can go into another classroom’.
• Mr and Mrs "L" made an appointment about "J" going back to school and Mr "G" was extremely rude. He was very angry when he received a written list of issues, although Mrs "L’s" evidence about whether she did deliver the written list was less than satisfactory.Her evidence was that he had the list and became inflamed saying he ‘did not believe Mrs "M" had done any of the alleged behaviour.He confirmed she was a good friend and had known her for a long time.He was angry about "J" going into another class’.She could tell his anger by his body language and words, but she could not remember the words.They enquired if Mrs "M" would be teaching in Mr "H’s" class.He said it would be Mr "H" and somebody else.
• Mr and Mrs "L" allege they had an agreement with Mr "G" that Mrs "M" would not be engaged in teaching "J".
• "J" started school again the next day.There were no problems.
• Mr "H" informed them that Mrs "M" would be teaching and to give it 2 weeks with her and he would keep a close eye.Mrs "L" agreed.
• Then "J" came home and said ‘Mrs "M" had been poking him and telling him to hurry up and get on with his maths’. Mrs "L" could not recall if this occurred during the 2 weeks."J" was again taken out of school because of the poking. Mrs "L" spoke with Mr "H" about it and he told her to go and see Mr "G".However, in cross-examination she could not recall if Mr "H" suggested she speak to Mr "G" about the poking.
• Mrs "L" took a letter to Mr "G" written by Mr "L" and told him why she was there.He stopped her saying he did not believe it. He was aggressive and volatile and said ‘"R" Primary School is a lovely school, you are one of a few who have made a complaint, 75% are happy – you belong to the other percentage’.In cross-examination she said that Mr "G" lost his temper.
• Mrs "L" informed Mr "G" she was going to see Mark Edwards.He told her to go and see Mr Fagan.This was in about July.
• Mrs "L’s" complaint was referred to the Grievance Unit by Mr "G" without her knowledge.She received a telephone call from Ms Gates late one afternoon.Ms Gates introduced herself as being from the Grievance Unit and that she took care of the complaints process and that Mrs "L" had made allegations against the principal.Mrs "L" informed Ms Gates of her complaint and she responded by saying she should keep in contact and an information booklet would be sent out, which occurred – see exhibit C1.Mrs "L’s" evidence was that she felt a bias in this telephone call in the way Ms Gates presented information.
• It is Mrs "L’s" evidence that Ms Gates called her a lot.At a later time her evidence was that there were a couple of meetings by telephone.Mrs "L" complained that Ms Gates asked irrelevant questions - information seeking.Keith Scott’s name was raised – he worked at Hartz Support Unit.
• "J" was taken to the Hartz Support Unit for teaching.Hartz was not informative and they were unclear about what they were doing with "J" – they were not keeping her informed – it was something to do with his learning.
• On one communication with Ms Gates, she had to fax confidential information to Mrs "L" and it was going to be faxed to her at Hartz.Mrs "L" was waiting in the office and she did not want the document – (exhibit ‘C2’) viewed by others.However, an employee stood in front ‘and read it’.It must be noted here that Exhibit C2 had a cover sheet letterhead as the first page.
• Ms Gates became angry with Mrs "L" when Mrs "L" requested an independent psychologist be appointed. Ms Gates recommended a psychologist but Mrs "L" refused because that person was not independent.The Tribunal notes there was no evidence from Mrs "L" as to why this person may not have been independent.The implication is that Ms Gates was not objective and was biased.

Mrs Glenda Oliver

18. It was Mrs "L’s" evidence that after "J" was taken from school Mrs Glenda Olivier telephoned her.Mrs Olivier was the parent of children at the same school and they were acquaintances.The essence of Mrs "L’s" evidence about Mrs Olivier was that she had a close relationship with Mrs "C" and that the telephone call and a later meeting in a surf shop were because Mrs Olivier was fishing/soliciting for information for the Respondents.Mrs "L" felt that Mrs Olivier was harassing her and had been put up to it by one of the Respondents and that is why she would not speak with Mrs Olivier during a chance meeting with her in a surf shop.

19. The Complainant called Mrs Glenda Olivier in support of her claims.

20. Mrs Olivier’s evidence was that their respective eldest sons were friends and from time to time the two parents baby-sat the other’s children.She could recall being at the ‘seashells’ excursion but could not recall speaking with Mrs "L" or Mrs "M" on the beach.She could not recall Mrs "M" giving a talk to the children and she could not recall "J" saying anything on that occasion.

21. Mrs Olivier could recall Mrs "L" removing "J" from school and recalls telephoning Mrs "L" after that event in a friendly enquiry as to whether "J" was being home schooled again.She recalls that she and Mrs "L" both had had concerns about the methods of education, but she did not elaborate.She could not recall any conversation during that phone call about bullying.

22. Mrs Olivier last saw Mrs "L" during Christmas holidays 2005, although she was unsure of the year.They were in a surf shop and she went to say hello but Mrs "L" did not wish to speak with her.More than once she asked Mrs "L" why she did not want to talk to her. She found Mrs "L’s" ‘response’ cold and abrupt.

23. Her evidence was that Mrs "C" was Mathew’s (her son) teacher and got to know her reasonably well because of that but they were not friends socially.

24. Under cross-examination by Mr Turner, Mrs Olivier conceded that any issues she had with the school in relation to her eldest son had been resolved by the beginning of 2003 following consultations with his teacher and establishing strategies as to how he could better cope with his difficulties.She had no need to approach the principal.

25. She denied that she was fishing for information for Mrs "C".She had some involvement with Mrs "M" but could not recall her shouting at the children or losing her temper.Although she did not know Mrs "M" very well, she would have remembered if Mrs "M" had done anything like shouting at the children.

26. Mrs Olivier was aware of receiving the parent handbook each year and she was aware that if she wanted to see the teacher she had to complete a ‘slip’ for an appointment and send it back for the parent/teacher interview.From time to time in 2002 and 2003, she was parent help and performed structured tasks with the children, but not necessarily her own child.

27. Mrs Olivier was aware that the children were not to be dropped to school before 8.30am and that parents had to be gone by 9.00am.She was aware of this because it was part of the parent handbook.She was aware that it was not appropriate to talk to the teacher about issues between 8.30 and 9.00am and that if there was a need to speak then it had to be done via an appointment.

28. The Tribunal finds that Mrs Olivier gave her evidence in an honest and reliable manner and is a believable witness. The Tribunal accepts her evidence including where it conflicts with versions of events alleged by Mrs "L". The Tribunal finds nothing in her evidence that supports the allegations by Mrs "L" referred to above.The Tribunal does not accept that Mrs Olivier was in any way harassing or acting in any form of collusion with any of the Respondents.

Mrs Machael (sic) Absolom and Mrs Mandy Cornelius

29. Prior to the hearing, the Complainant delivered proofs of evidence from these two potential witnesses.The Complainant intended to call those persons.During her evidence-in-chief, the Complainant stated that after she had lodged her claim with the Anti-discrimination Commission she became aware that Mrs Cornelius had similar complaints against the Respondents. Mrs "L" became aware of this through Mr Ottavi, an advocate assisting her during the directions hearing process. She also stated that she became aware Mrs Absolom had what she described as ‘similar complaints’ against the Respondents.Mrs "L" conceded that neither of these potential witnesses were involved in any way with her own claims.

30. The Tribunal ruled that it would not hear evidence from either Mrs Absolom or Mrs Cornelius on the basis that whatever they could say would not be probative of any fact germane to any issue before it in this case.

Evidence of the Tribunal’s Witnesses

31. As explained above, the Tribunal had called the following witnesses:

Mr "H"

32. Mr "H" gave evidence to the Tribunal that after being approached by the "R" Primary School Principal, Mr "G". "J" had joined his year 1-2 class in approximately May 2003, where he had remained for approximately one term. He recounted that some time after "J" had joined his class, Mrs "L" had raised with him concerns that she had about the Flying Start teacher, Mrs "M", in particular that "J" had been man-handled by her, and also concerns about unregulated bullying in the playground. Mr "H" told the Tribunal that he subsequently raised these concerns with Mr "G" who advised that he was talking to all parties.

33. In cross-examination by the "Ls", Mr "H" was asked what he could recall about the agreement of two weeks. His recollection was that soon after "J" came into his class, he had determined that he was having some difficulties in terms of his literacy and reading ability and Mr "H" formed the view that "J" needed assistance from the Flying Start program. Whilst this was initially implemented with success, some time later (according to Mr "H’s" written statement, in July 2003), when the "Ls" had first raised with him their concerns about Mrs "M" being involved in the teaching of "J", he could recall an agreement being reached between himself and the "Ls" that Mrs "M" would continue to work with "J" through the Flying Start program for a trial period of a further two weeks or so to see if the situation improved.

34. He was asked about his understanding of what would happen if it did not work out and he responded that he would have looked to other options but was sure that he would have made clear that he would need to discuss the matter further with Mr "G".

35. The option of involving the teacher’s aid to assist "J" was put to him by the "Ls" in cross-examination as one option that had been raised with them. In response, Mr "H" explained that he was only allocated one hour of teacher’s aid assistance to his class per week and that if this time were allocated exclusively to "J", that would not be equitable to other class members. So whilst this may have seemed a reasonable idea when it was first raised, it became clear after looking at the issue more closely that this was not going to be an equitable solution. Furthermore, the teacher’s aid did not have the special literacy skills required.

36. In response to a question whether he found Mrs "L" to be a reasonable person, Mr "H" responded that she was a mother who cared very much about her son and his educational outcomes and she may have come across as a bit anxious.

37. Mr "H" agreed with the proposition that the allegation regarding Mrs "M" was quite a serious matter. When questioned as to whether he would have been able to see Mrs "M" at all times when she assisted children with the Flying Start program, he replied that he had a fair idea of what was going on in his classroom, but acknowledged that he would not have been able to see her every move.

38. When it was put to Mr "H" in cross-examination by the "Ls" that Mrs "L" was not demanding he replied that on a few occasions she might have been upset and shown anger and frustration at the situation, but not anger directed at him personally.

39. In cross-examination of Mr "H" by Mr Turner for the Respondents, Mr "H" confirmed that he had given a statement to the Independent Investigators, Crawfords, in respect of this matter. Mr "H’s" statement to Crawfords and notes dated April 2005 were tendered (Exhibit No R2). These notes detailed Mr "H’s" recollection of the chronology of events.

40. Mr "H" was asked about his assessment of "J’s" reading when he joined his class. He told the Tribunal that he had formed the view that "J" required further assistance and for this reason he organised for the Flying Start teacher, Mrs "M" to become involved. At this stage, although there had been a number of meetings (an initial meeting before "J" joined his class than a further meeting 4-5 weeks later), the "Ls" had not raised with him their concerns about Mrs "M" during this time and this was only done a later meeting in July 2003. At this meeting, Mrs "L" had raised concerns about Mrs "M" but these had not been specific at this stage. It was at this meeting that the possibility of "J" working with the teacher’s aid was raised by Mrs "L". He had told the "Ls" that he would monitor the situation with regard to Mrs "M" and would also speak with Mr "G". He confirmed that he had, in fact, monitored the situation but told the Tribunal that he had not noticed anything untoward. Mr "H" gave evidence that when he had discussed the matter with Mr "G", he had suggested that he keep notes which he did from that time on.

41. It was put to Mr "H" that Mrs "C" was a calm person to which he agreed and he confirmed that he had never seen her loose her temper. He also told the Tribunal that he had never seen Mrs "M" angry, or with clenched fists and he strongly agreed with the proposition put by Mr Turner that she was in fact timid in nature and certainly not intimidating or aggressive. He also agreed that the suggestion of her poking "J" was something he did not believe in the light of working closely with Mrs "M". When asked questions about Mrs "S", and whether he had ever seen her shaking or clenching her fists or turning red, he replied no and agreed that it was not conceivable to him that she would behave in this way.

42. Mr "H" was asked to recount his recollection of the day that Mrs "L" had come to the school during the lunch hour, as detailed in paragraph 57 of his tendered statement. Mr "H" told the Tribunal that Mrs "L" had appeared quite worked up about "J". He descried her demeanour as aggressive and upset and that he had not seen her display such behaviour to that extent. Mr "H" told the Tribunal, that this had been quite a confrontational meeting with Mrs "L". He had been upset as a result and consequently had gone to seen Mr "G". When it was put to Mr "H" by Mr Turner that Mrs "L" was overbearing and demanding of his time, Mr "H" agreed; he also concurred with the proposition that she was a difficult person to deal with. In further cross-examination by the "Ls" it was put to Mr "H" that this account was inconsistent with his earlier description of Mrs "L" as a caring parent. Mr "H" confirmed that she was a caring parent but also reiterated that on that particular day when she had come to the school during the lunch hour, he had found her to be aggressive and demanding.

43. Mr "H" was also asked questions by Mr Turner about "J’s" reading assessment. He told the Tribunal that a formal assessment was undertaken when he came to the class. No formal assessment was taken when he left as he had left suddenly, but in Mr "H’s" view, he was at about a level 11 at that time based on his informal assessment of "J’s" reading.

44. Questions were also put to Mr "H" about his relationship with Mr "G". Mr "H" stated that Mr "G" does not intimidate him; to the contrary, he had always found Mr "G" to be an open and engaging person.

45. Mr Turner questioned Mr "H" under cross-examination about the part of his statement where he had said that to the best of his knowledge, there had been no discrimination against the "Ls". When asked why he had said that, Mr "H" told the Tribunal that in his dealing with "J", he had not witnessed anything in the classroom or playground which would amount to discrimination.

46. The Tribunal found Mr "H" to be an open and truthful witness, eager to assist the Tribunal, and the Tribunal accepts his evidence, including where it conflicts with versions of events alleged by Mrs "L". The Tribunal found his evidence of relevance in relation to his dealings with the "Ls", his interaction with Mr "G", Mrs "M", and other Respondent teachers, and also his assessment of "J" including his educational needs particularly with regard to literacy and reading, and the progress that he made in Mr "H’s" class. There is, however, nothing in Mr "H’s" evidence which supports the allegations made by the "Ls" of discriminatory conduct by the Respondents either on the basis of race or age, nor does it support allegations of victimisation. 

Mr Kevin Fagan

47. Mr Fagan gave evidence to the Tribunal about his former role as District Superintendent for the Hartz Education region. His professional relationship with Mr "G" was as his line manager, as it was for the principals of the other 35 schools in that region. He told the Tribunal that he had never spoken with Mrs "L" and his knowledge of the matter had come from a brief conversation in 2003 that he had with Mr "G" who had phoned him to inform him of the concerns that Mrs "L" had raised about the Flying Start teacher’s treatment of her son. Mr Fagan told the Tribunal that Mr "G" had explained that the "Ls" may be contacting him about this. Mr Fagan gave evidence that he did not seek any further information at that stage as it was his policy to get the story initially from the parent. He recalled in his evidence, receiving a call from Ms Gates from the Grievance Unit advising that a grievance had been filed by the "Ls". This was normal procedure in circumstances where a grievance had been received in respect of a school within his region. Mr Fagan told the Tribunal that the Grievance Unit operated completely independently of him and was also physically separate, located in Bathurst Street whereas his office was at the time in Kingston.

48. Under cross-examination by the "Ls", Mr Fagan confirmed that he has known Mr "G" since the 1980s when they both were in teaching positions on the Tasmanian East Coast but he was not a close personal friend. Questions were put to Mr Fagan concerning his knowledge of the "L’s" dealings with the Hartz Support Service. He gave evidence to the Tribunal that he was responsible for the service and was Mr Mark Edwards’ supervisor. However, in response to questions in cross-examination by the "Ls" he stated that whilst he was aware that Mr Richard Ramaszko had ongoing contact with Mrs "L", he had not assisted Mr Ramaszko in his communications with Mrs "L" nor had he received any information about Mrs "L" through Mr Ramaszko.

49. In cross-examination of the witness by Mr Turner for the Respondents, Mr Fagan was asked to explain the usual progression and process of handling of complaints made against a teacher. He noted that a complaint involving an alleged assault was towards the serious end of the scale and he would therefore expect to be informed; investigation of a maltreatment case could also be undertaken by Hartz Support but this would only be on Mr Fagan’s specific direction.

50. Mr Fagan agreed with the proposition put to him by Mr Turner that complaints of abuse and or discrimination are inherently serious and stressful for teachers. He also agreed with the suggestion that Mr "G" was a competent and capable headmaster, calm and even-tempered, and not prone to outbursts or anger.

51. When asked to comment about the "L’s" complaint, he confirmed that he had only become aware of the details more recently through the Crawford investigation. He gave evidence to the Tribunal that he did not get the impression that this had involved a serious physical assault on the student, rather that the teacher had put their finger on the student. Mr Fagan agreed with the proposition put to him by Mr Turner that it had been appropriate for Mr "G" to refer this matter to the Grievance Unit and for Mr "G" to inform him what he was doing. He strongly rejected any suggestion that Mr "G" had colluded with him to influence the investigation of the Grievance Unit.

52. Questions were also put to Mr Fagan in light of his extensive experience in education concerning the merits of moving a child to another class during the school year. He gave evidence that this would only be done very rarely due to the interruption in the educational program and was a last resort measure.

53. Mr Fagan gave evidence that the role of Flying Start teachers is to assist children with their literacy and numeracy. Their allocation at a school would be determined in consultation with the class teachers based on the educational needs of the students. He agreed with the proposition put to him by Mr Turner that Flying Start teachers are not the tools of parents.

54. Mr Turner’s cross-examination of Mr Fagan also touched on a number of classroom and educational matters. One of these related to the dropping off of children at school in the morning and whether this was an appropriate time for parents to be discussing issues child related issues in depth with the class teacher. Mr Fagan’s evidence was that this was not appropriate for two reasons: firstly, because the teachers have a duty of care to the other students, and secondly, because teachers would not be in a position to talk confidentially about issues.

55. He was also questioned about the role of parent help and agreed with the propositions that it needs to be structured, and for the teacher to determine who is involved and the idea is not that a parent simply turns up and looks after their own child.

56. Finally, on the issue of literacy and primary school children’s progress with reading, Mr Fagan gave evidence that it is not unusual for a parent’s assessment of a child’s reading to be higher than what the teachers think, although he did suggest that it was more common the other way around.

57. The Tribunal found Mr Fagan to be an independent and very credible witness whose evidence was of relevance with regard to his dealings with Mr "G", the Hartz Support Service, and the Grievance Unit, and more generally with regard to organisational and educational issues within the school and classroom setting. The Tribunal accepts his evidence as truthful and authoritative and has concluded that it provides no support whatsoever of the allegations made in the complaint against any of the Respondents with regard to race discrimination against Mrs "L" and her son "J", or age discrimination against "J", nor is there any evidence in support of the victimisation allegation.

Ms Kirralea Gates

58. Ms Gates commenced her evidence to the Tribunal with an explanation of her role with the Department of Education Grievance Unit. She gave evidence that that role involved the investigation of grievances or complaints from staff or from external clients. She told the Tribunal that the Principal of "R" Primary School, Mr "G", had phoned her manager at the Grievance Unit, Mr Keith Scott, advising that Mr and Mrs "L" had raised a serious allegation which he was now referring to the Grievance Unit for independent investigation. Ms Gates explained that in cases involving allegations of physical abuse, Child Protection would usually also become involved and it would be conducted as a joint inquiry. With regard to the "Ls’" complaint, which involved an allegation of shoving and pushing, which she described as a lower level allegation, Ms Gates told the Tribunal that she had followed the Unit’s usual procedures by giving Child Protection a courtesy call to let them know they had received the complaint and to get the OK for them to proceed with the investigation and then advise them of the outcome.

59. Ms Gates gave evidence that she had carriage of the investigation which had extended over a period of a few months. She told the Tribunal that the situation was a little unusual because complaints are normally brought by the client. In this case, however, the school had initiated the investigation, and it was the Grievance Unit that had initiated contact with Mr and Mrs "L". Ms Gates informed the Tribunal that she had sensed some scepticism on the part of the "Ls" as to her role and whether they should trust the process. Ms Gates sought to assist by providing them with information about the unit and explained the unit’s process of gathering evidence and that decisions are based on the evidence. Ms Gates told the Tribunal that these discussions with the "Ls" about the nature of the process and the role of the Grievance Unit were ongoing even when they were engaging with the process.

60. Ms Gates explained that her work on the investigation began once she had the received the statement from the Complainants. She told the Tribunal that although the matter had been referred to the Grievance Unit with regard to a particular concern, the "Ls" had wanted to add information and provide a fuller statement which would cover all of their concerns.

61. Ms Gates told the Tribunal that once she had received the statement from the "Ls", she contacted Mr "G" and Mrs "M" so that they could be interviewed with regard to their response to the claims. Interviews were undertaken with each of them. "J’s" class teacher, Mr "H", also provided a statement. Ms Gates gave evidence that she had also had conversations with staff from the Hartz Support Service.

62. Ms Gates gave evidence that she had then provided the "Ls" with the information that she had gathered so that they could respond to it. She told the Tribunal that it was at that point that they had advised that they were not happy with the process and had decided to take their complaint to the Anti-Discrimination Tribunal. Following discussion with her manager, Mr Scott, the complaint was deemed withdrawn. As a result, no final report was prepared with regard to the investigation. Ms Gates told the Tribunal that this decision to treat the complaint as withdrawn would have been made with a view to the preliminary evidence which did not appear to point to a significant outcome in terms of a teacher being disciplined. From her recollection, she stated that there was no evidence that Mrs "M" had pushed or shoved or mistreated "J". She did, however, state that she believed that the "Ls" were genuine about their concerns and his reaction to school, but there was simply no evidence to relate that back to the conduct of Mrs "M".

63. Allegations of conspiracy and/or bias that were put to Ms Gates in cross-examination by the "Ls" were strongly rejected. Ms Gates pointed out that she had not met Mr "G" before the investigation. She emphasised that as an investigator, she had to enter an investigation impartially and listen to both sides. She agreed that she had followed up on requests by the "Ls" for further information about the Grievance Unit and also with regard to the statement of duties of a Principal.

64. When questioned about her approach to interviews, she told the Tribunal that she would usually sketch out some relevant questions but that would normally just be the starting point for an interview. In addition, if the complainant had provided any information that relates to the person to be interviewed, that would be shown to them so that they could respond to that. Ms Gates gave evidence that her normal process would be that she would write up the interview by way of draft statement and then show that draft to the person interviewed to ensure that they are satisfied that it represents an accurate record of the interview. This statement would then be used to go back to the complainants. Ms Gates confirmed that this was the process that was followed on this occasion.

65. Ms Gates rejected suggestions put to her in cross-examination by the "Ls" that in preparing questions for interview, she would also be influencing the person about how to respond. The "Ls" had particularly questioned her about the link between the statement from Mr "H" and the questions prepared for Mrs "M"; they drew attention to exhibit C41 where Ms Gates’ hand written note states: ‘start with information from "H" – not witnessed or believe that you would ever do.’ Ms Gates explained that this would not have been read out to Mrs "M"; rather this was for her own use to focus on the evidence.

66. It was also put to Ms Gates by the "Ls" that whilst staff were given the opportunity to have their information put together, they were not and therefore Ms Gates was not even handed in her investigation. However, this was also disputed by Ms Gates on the ground that in this case, as with other investigation of complaints by the Grievance Unit, the complaint would be put in writing by the person making the complaint so that it is in their own words.

67. In their cross-examination of Ms Gates, the "Ls" also put to her that her investigation into the matter had been undertaken over a period of only a few days, in view of the date of the interview and the date that the prepared statement was dispatched to the "Ls", and therefore was not a thorough and unbiased investigation. This was also refuted by Ms Gates. Some questions were raised in the evidence as the exact date of the covering letter pursuant to which the statement were dispatched (Ms Gates advising that it may have been prepared in advance in anticipation of receiving the statements back from Mrs "M" earlier).

68. Ms Gates gave evidence to the Tribunal that her interview with Mr "G" had followed the usual process. She recalled that he had some prepared notes, having gone through his diary, and this formed the basis of his statement. She could not recall, however, whether his written notes had been brought to the interview meeting or had been prepared by him subsequently.

69. Questions were also put to Ms Gates by the "Ls" about discussions that they had had about what would be required to make out the complaint, in particular, the need for someone to have witnessed the conduct complained of. It was put to Ms Gates, that there was a witness, namely "J", yet Ms Gates had not requested that he be interviewed. In response, Ms Gates explained that as the complaint relates to "J", he could not be an independent witness to the complaint. She did, however, acknowledge the difficulty of proving a complaint such as that raised unless there is an independent witness or the teacher admits it.

70. Mr and Mrs "L" sought clarification from Ms Gates as to what she had meant by the following passage in her letter to them dated 11 September 2003 (C47):

‘…the psychologists report will rely on what "J" tells him and for this reason it may confirm what "J’s" perception of the situation is, so it may or may not confirm what has actually happened.’

71. Ms Gates explained that she had wanted to emphasise the need for independent evidence. Her response to this issue was reiterated in her responses to questions in cross-examination by Mr Turner on behalf of the Respondents. She also told the Tribunal that she believed that there must have been some consensus about what it was that "J" had alleged and for this reason there had been no need to interview him.

72. In cross-examination by Mr Turner, Ms Gates was asked whether there was anything out of the ordinary with this particular investigation. In her reply, Ms Gates referred to the scepticism of the "Ls" and that it was unusual for her to have to continually promote the role of the Grievance Unit. She also referred to the fact that she spent more time with the "Ls" than would normally be the case in an investigation. She also told the Tribunal that she felt that there was a lack of clarity on their part about what the process could achieve.

73. Ms Gates was also questioned about her use of the terminology ‘alleged’ in referring to the complaint, and the suggestion that this showed that she did not give the content of the complaint sufficient weight. This was firmly refuted by Ms Gates; indeed, she explained that the investigation of a complaint is an evidence based process, and that she is obligated to use the word ‘alleged’ until such time there is evidence of the allegation. Rejecting the suggestion of bias, she told the Tribunal that she approaches her role impartially and that she gave equal weight to what the "Ls" were saying as what others were saying. She told the Tribunal that she has never had a prejudged view of a complaint and this was also the case in respect of the "Ls" complaint. She did, however, acknowledge that she found it difficult to communicate with Mr and Mrs "L"; that they had their own views on what should happen. She told the Tribunal that she had got the impression that because the "Ls" felt so strongly about their complaint that somehow that would have more weight, and Ms Gates explained that it was for this reason that that she had tried to emphasise the need for evidence.

74. When asked whether she had formed a view about the complaint and whether it could be substantiated, Ms Gates told the Tribunal that she had not come across any information which could substantiate allegations against Mrs "M" that she had been pushing and shoving "J". Therefore, the direction that her investigation was heading in, if she had been required to prepare a report, was that the complaint was not substantiated.

75. She was asked about the distinction between a finding that a complaint is not substantiated and concluding that there is no substance in the complaint. Ms Gates explained that a conclusion that the complaint is not substantiated means that there is no evidence, no independent witness to substantiate a positive finding that it did occur; just the word of one against the other, but that in the light of the statement of Mr "H", she would be leaning to a finding that it did not occur.

76. In contrast, to find that a complaint is without substance, means that it is made without any basis whatsoever. Ms Gates told the Tribunal that this was not the case as she did not feel that the "Ls" were making up their concerns.

77. Ms Gates unequivocally rejected any suggestion of collaboration between herself and Respondents Mr "G" and or Mrs "M". She also denied that she was overborne by anyone. Further, she refuted that she had not undertaken an honest investigation, asserting that she had followed her normal processes as best she could. She told the Tribunal that she had gone to great lengths with Mr and Mrs "L" to be honest and transparent about the process.

78. The Tribunal found Ms Gates to have been helpful witness who gave her evidence honestly and in a forthright manner. The Tribunal accepts Ms Gates’ evidence, including where it conflicts with versions of events alleged by Mrs "L". The Tribunal accepts that Ms Gates had conducted her investigation of the "L’s" complaint on behalf of the Grievance Unit in an even-handed and impartial manner. The Tribunal finds nothing in her evidence, which supports the allegations made in the complaint of race and age discrimination or victimisation. In particular, the Tribunal finds that her evidence provides no support for any allegations of bias by Ms Gates or the Grievance Unit or the allegations of conspiracy or collusion between herself and any of the Respondents.

Mr Richard Ramaszko

79. The Tribunal also heard evidence from Mr Richard Ramaszko who had formerly served as Assistant Manager at the Hartz Support Service. He told the Tribunal that his principle role had been to co-ordinate the channel cluster schools and that he was in charge of flexible delivery for schools. He informed the Tribunal that he had had telephone conversations with Mrs "L" but had not met Mr and Mrs "L" in person. Mr Ramaszko gave evidence that he had been standing in at the time for his manager, Mr Mark Edwards, who was on sick leave. Mr Edwards had been dealing with this case but because of issue of confidentiality, he had not informed Mr Ramaszko of the specific issues. In his evidence to the Tribunal, he recalled a telephone conversation with Mrs "L" regarding her son and her concerns that he was not attending school. Mr Ramaszko told the Tribunal that he was also concerned to hear about this, and because he was in charge at the time, became involved, notwithstanding that "R" Primary School is not within the cluster of schools that he was normally responsible for.

80. Mr Ramaszko told the Tribunal that he was not aware of "J" attending at Hartz Support Service but said that he could have been. However, this would have only been a transitional arrangement as the Hartz Support Service does not school children on a long-term basis. Mr Ramaszko gave evidence that in consultation with Mrs "L" and "J’s" class teacher at "R" Primary School, Mr "H", arrangements were made for the reintroduction of "J" to school. He saw this as in the best interests of the child and his education. Mr Ramaszko told the Tribunal that he had organised to be there in person to support Mrs "L" and her son. However, Mrs "L" had phoned the school that morning to say that she was not able to come in and he had no further communication with her after that. He described his involvement with this case as ‘short-lived’; and that only later had he realised that the case was more involved. Following this unsuccessful attempted reintroduction, Mr Ramaszko recalled going back to his office and communicating with both the School Principal and the Grievance Unit, advising them of the situation.

81. It was put to Mr Ramaszko by the "Ls" that he had advised Mrs "L" to contact the Principal and request, ‘as a gesture of good will’ that he assist with the provision of school work for "J". Mr Ramaszko did not recall that conversation specifically, but agreed that this was the sort of advice that he would give in this kind of situation, with a view to try and keep the conversation going between the Principal and the parents. Accordingly, he told the Tribunal that asking for some schoolwork would not be an unusual request in the short term. When asked by the "Ls" in cross-examination as to whether it seemed unusual for the school to have refused this request, he stated that it was difficult for him to comment because he did not know what was happening overall.

82. Under cross-examination by the "Ls", Mr Ramaszko strongly refuted the suggestion that he had shown bias against the "Ls" once the particular school was mentioned. It was further put to Mr Ramaszko that his email communications with Mr "G" indicated bias against the "Ls". In particular, reference was made to an email that he had sent dated 7 August 2003, (Exhibit C20) where he had made reference to Mrs "L" ‘trying to find a way to use the system’ and her continuing to ‘muddy the waters’. He unequivocally refuted the allegations of bias. When asked to clarify what he had meant by ‘trying to find ways to use the system’ he told the Tribunal that this probably indicated his concern that he did not become involved in something that he should not be, or used in ways which would compromise his role in getting the child back to school. With regard to his reference to her ‘muddying the waters’, he told the Tribunal that this reflected his concern that his role be clearly defined and his desire to avoid the situation becoming messy. Mr Ramaszko rejected the proposition that use of this language in communications with Mr "G" would be detrimental to his stated goal of getting "J" back to school.

83. In cross-examination by Mr Turner for the Respondents, Mr "G’s" notes, dated 7 August 2003, (R3) were related to Mr Ramaszko where he recorded his response to Mrs "Ls’" request for school work to be sent home for "J". In particular:

• that he had indicated to Mrs "L" that due to the seriousness of her allegation, that the whole matter was now being dealt by the Grievance Unit;
• that Government Schools do not usually provide ‘Home Education Programs’ and that his preference was that "J" return as soon as possible;
• further he had suggested that if Mrs "L" did not wish to do this, perhaps she could enrol "J" at their neighbourhood school or try home education.

84. When asked whether this was response was correct, Mr Ramaszko replied very correct but stated that it would not be unreasonable to ask a teacher for a short time in circumstances of illness for example, and where it is anticipated that the child is returned to school.

85. Finally, Mr Ramaszko rejected the contention related to him by Mr Turner, that the Grievance Unit had taken the Hartz Support Service off the case and he told the Tribunal that the Grievance Unit does not give instructions to the Hartz Support Service. He also rejected the contention that Mr "G" had sought or gained his support with regard to the Grievance Unit.

86. The Tribunal found Mr Ramaszko to be a reliable and truthful witness, and accepts his evidence, including where it conflicts with the evidence of Mrs "L". The Tribunal has found nothing in his evidence which supports the allegations of discrimination and/or victimisation made in the complaint, in particular the allegations of bias or collusion on the part of the Educations Department’s Grievance Unit or Respondent Mr "G" in the handling of the investigation into the "L’s" complaint.

Mr "B"

87. In his brief evidence to the Tribunal, Mr "B" described the two occasions on which he had met Mrs "L": at an after-school football training session in early 2004 which her older son, "A", had attended, and at which "A" had sustained an injury to his thumb, and a second occasion a week or so later when Mrs "L" had returned the football jumper that "A" had been given. Mr "B" was at the time teaching at New Town Primary School. He explained that he had some involvement with "R" Primary School in connection with recruitment for the sports carnival and that he knew the Principal, Mr "G", professionally from earlier in his teaching career when they had both worked on the East Coast. In response to a question from the Tribunal as to whether he had had any contact with Mr "G" in respect of the "Ls", he advised that he recalled that he had phoned Mr "G" the day after "A" had sustained his thumb injury to check on how he was. He gave evidence that he was not aware at that time of there being another son.

88. It was put to Mr "B" in cross-examination by the "Ls" that when Mrs "L" had come to the classroom to return the football jumper he had kept Mrs "L" waiting and had then spoken to her in a hostile and angry manner. This was unequivocally rejected by Mr "B" who appeared a credible and honest witness; he also rejected the contention put to him that Mr "G" had negatively influenced him, seeking to discredit the "Ls". Mr "B" reiterated that the only discussion that he had had with Mr "G" concerned "A’s" football injury and there had been no other conversation between them about the "L" family.

89. The Tribunal found Mr "B" to be honest witness and accepts his evidence, including where it conflicts with the evidence of Mrs "L". The Tribunal finds nothing in the evidence of this witness to support any of the allegations against the Respondents.

Mr Phillip Cleaver

90. Mr Cleaver gave evidence that he was the Manager of the Work Place Relations Unit of the Education Department and in 2003 he was a Senior Consultant with that department based at the Bathurst Street office.

91. His evidence was that he had not had any meetings with Mr or Mrs "L" or "J" during 2002 or 2003. He had also had no meetings with anybody else in relation to any complaints from Mr and Mrs "L" in relation to "R" Primary School and/or the Education Department.

92. Mr Cleaver’s involvement began in March 2004 after Mrs "L" had lodged her compliant with the Anti-Discrimination Commissioner. At that time, one of Mr Cleaver’s roles was to be the Education Department’s representative in Anti-Discrimination complaints. Therefore, any correspondence or matters requiring attention regarding the Anti-Discrimination matter, although addressed to the Head of the Agency, would be passed on to Mr Cleaver for action.

93. In cross-examination by Mrs "L", Mr Cleaver agreed that he had a telephone discussion with Mr Ottavi who was representing Mr and Mrs "L" at that time, and said that his concern was the Department’s desire to return "J" to school. When cross-examined by Mr Turner he confirmed he had taken part in a conciliation conference in late August 2004, which was the first time he had met Mr and Mrs "L". The only times he had met them was at directions conferences once the matter was before the Anti-Discrimination Tribunal.

94. Mr Cleaver also gave evidence in cross-examination by Mr Turner that after the Anti-Discrimination complaint was received he met with the Respondents to the complaint and that as the issue of discrimination had not been raised with them previously it came as a shock to them and he agreed that it had been very stressful for them.

95. Mr Cleaver’s evidence was of limited relevance to the issues before the Tribunal as he had not been involved with the substantive issues before the Tribunal, having only been involved since the filing by the Complainants of their complaint of discrimination.

Mr "P"

96. Mr "P" gave evidence that he has been Principal at Clarendon Primary School since third term 2004.

97. Prior to that, he was an advanced school teacher, and in 2000 he was employed as a teacher at "R" Primary School. He confirmed that he knew Mrs "L" and "J", but that he had not taught "J" or had him as a student at any time.

98. He had previously had "J’s" elder brother, "A", in his class in 2004 and he confirmed he would have spoken to Mrs "L" during that time, but could not recall having spoken to her specifically. When asked whether he recalled a conversation with Mrs "L" about "J", he indicated that he could recall a conversation on one day when the Principal, Mr "G", was out of the school.

99. Mrs "L" came to collect an envelope with information from the school in relation to "J". Mr "P" recalled being in the office area when Mrs "L" arrived and providing information to Mrs "L". He recalled Mrs "L" requesting some additional information which was not in the envelope he had handed her. He could not recall specifically what was said, but he recalled he was unable to locate the additional information. He therefore went to ask "J’s" teacher, Mr "H", if there was any other information in relation to "J". His evidence was that his conversation with Mr "H" took place in or near Mr "H’s" classroom and in examination-in-chief he indicated he was unsure where Mrs "L" was when he was speaking to Mr "H".

100. Mr "P" was unable to remember if he was able to get any further information from Mr "H" for Mrs "L". He said the meeting was unremarkable and that he did not see the day as different or extraordinary in any way.

101. Mr "P" did not recall receiving a call from Miss Kirralea Gates in relation to Mrs "L" picking up this information. In cross-examination by Mr "L", Mr "P" said that he could not remember if Mrs "L" had asked if she could check the information in the envelope. He only remembered her expressing a concern that some other information was needed. He also gave evidence in cross-examination that he could not recall Mrs "L" asking him if she could telephone Kirralea Gates and he indicated that if Mrs "L" had asked him if she could make that call he would have done so and would have ensured that she had privacy to do so.

102. It was put to Mr "P" by Mr Turner that he had run to Mr "H’s" room and tried to bar Mrs "L" from entering that room. Mr "P’s" response was, that did not happen. He said he spoke to Mr "H" well inside the room, away from the entrance door, and he recalled going into the room as the last of the children were coming out of the room to go and play.

103. Mr "P" confirmed that Mr "G" was a calm and collected person and gave due reflection to matters. He confirmed he was measured in his responses and that he had never witnessed Mr "G" become angry or livid. Mr "P" confirmed that he knew Mrs "S", Mrs "M", and Mrs "C" and none of them had ever displayed to him or to anyone else in his presence, shaking with anger, clenching of fists and becoming red and shaking. He confirmed he had not seen them shout at children or belittle children. He said Mrs "M" was a reserved, quiet person who was not aggressive and not intimidating and he said the same would apply to Mrs "S" and Mrs "C".

104. Mr "P’s" evidence was given in a considered and straightforward manner. The Tribunal accepts Mr "P’s" evidence, including where it conflicts with evidence given by Mrs "L".

Mrs "D"

105. Mrs "D" was the Guidance Officer at "R" High School in 2003 and had been so employed since 2000.She gave evidence that her role as a Guidance Officer in primary schools was to assess the intellectual levels of students and be helpful to students who had issues, by talking with them.She was involved with 7 schools and for 3 days each week she was engaged with primary school students.

106. Her only contact with any member of the "L" family was with Mrs "L".She never met "J".She had one telephone conversation with Mrs "L" on 7 April 2003, but she cannot exactly recall the discussion.She telephoned Mrs "L" from "R" Primary School.

107. A verbal brief had been given to her by Mr "G" on 30 March 2003.He had provided her with background information and asked her to telephone Mrs "L" to let her know the school would like to support her in any issues and that it would be a good idea to have "J" assessed by Mrs "D".

108. Mrs "D’s" evidence was that the ‘assessment’ would have been an intellectual one because of the difference in perception in his performance; the school said he appeared happy but down a little in three strands of literacy skills but no concerns; but Mrs "L" thought he was not progressing well.Mrs "D" had been informed by Mr "G" that "J" was age appropriate.

109. During the next week, Mrs "D" spoke with Mrs "L". She can recall Mrs "L" informing her that Mrs "L" had been in touch with Mr Edwards at Hartz Support Services who had informed her ‘not to see me but write things down.She said she had trained as a teacher for one year and she hoped she got to speak to me.She said she had an appointment at 10 at Hartz Support Services’.Mrs "D" said that she could not recall any issues about "J" being discussed.

110. Under cross-examination by Mrs "L", Mrs "D" stated that Mr Edwards was her boss and she conceded that the conversation with Mrs "L" could have been in April/May rather than March.

111. Under cross-examination by Mr "L", Mrs "D" confirmed she is a psychologist by profession.She stated that she thought Mrs "L" said that Mr Edwards was coming down to talk to Mr "G" and that seemed unusual to her.She did not speak to Mrs "L" in a condescending way or manner, but she was surprised by the Edwards issue and that Mrs "L" had been told not to see her.She concluded her discussion with Mrs "L" by saying that she hoped that they could talk later and she left it open for a later time.

112. After the discussion with Mrs "L", Mrs "D" spoke with Mr "G" in person and she told him what had been said.Mr "G" was surprised that Mr Edwards had been mentioned.

113. Under further cross-examination by Mr "L", Mrs "D" gave evidence that she also spoke with Mrs "C" who, as class teacher, had informed her of the literacy issues and that "J" had missed a lot of school. In her view, that would impact upon a child’s development and that may be compounded by an overly protective parent. In that event, a child cannot properly plan their day.

114. In response to a question by Mrs "L" to the effect that an expression of hatred towards teachers and schools or not wishing to go to school by a student may be indicative of the student experiencing negative aspects at school, Mrs "D" provided an insightful reply - ‘if a child is reluctant to go to school then that could be a reflection of the parents anxieties’.

115. It was also suggested to Mrs "D" that during her conversation with Mrs "L", she had called out to Mr "G".She denied that occurred because her office at "R" Primary School is physically remote from Mr "G’s".

116. The Tribunal found Mrs "D" to be an honest and credible witness. The Tribunal accepts that she had no more than a professional relationship with any relevant members of staff at "R" Primary School or Hartz Support Services. The Tribunal accepts her evidence, including where it conflicts with evidence given by Mrs "L". In particular, Mrs "D’s" evidence provided no support for any allegation: -

• she had a close relationship with any teachers involved with "J", or
• that Mr "G" had provided her with any information about the "L" family that might have coloured her perception of them or influenced her judgment, or
• she was condescending to Mrs "L", had a negative view of her or was evasive or reluctant to reply, or
• she spoke with Mr "G" during her only discussion with Mrs "L".

Mr Keith Scott

117. Mr Scott was the head of the Education Department ‘Grievance and Investigation Unit’ at the time Mrs "L" made a complaint.

118. He first heard of the "L" family when he received a telephone call from Mr "G" stating that he had an issue at the school and he sent some information.Following that, Mr Scott and Kirralea Gates met with Mr and Mrs "L" to ascertain the nature of their concerns.He met only once with them.The meeting was to see what concerns the "Ls" had, there was no comment about outcomes.He believed a report may have gone to Human Resources Manager, Ms Leigh Taylor, but he did not recall seeing the report.He was not the decision maker.He believed that at a later time, demands were made by Mr and Mrs "L".

119. Mr "G’s" concerns related to an internal investigation regarding "J".Mr Scott made a decision to pass it on for further investigation to Ms Gates and he had no further dealings with it.

120. In cross-examination, Mrs "L" put to Mr Scott that he never had a discussion or meeting with them.He responded by saying that ‘you both sat in my office in Bathurst St with Ms Gates and we had a discussion, I cannot recall the time of the appointment’.

121. When questioned by Mr Turner, he stated that Ms Gates was present at the interview with the "Ls" because she has been tasked to investigate (their complaint).He confirmed that Mr Fagan did not have anything to do with the Grievance Unit as it answered to somebody else.Mr Scott firmly denied that the Grievance Unit had conducted a dishonest investigation of "J’s" case.

122. The Tribunal finds that Mr Scott gave his evidence in an honest and reliable manner and is a believable witness.The Tribunal accepts his evidence including where it conflicts with versions of events alleged by Mrs "L" and it specifically accepts that he had no contact with a Mr Fagan in relation to "J".The Tribunal finds nothing in his evidence that supports the allegations by Mrs "L":

• of bias by Mr Scott or Ms Gates or the Grievance Unit, or
• that the Grievance Unit conducted a dishonest investigation, or
• that the Grievance Unit or any of its personnel were involved in illegal behaviour or ‘perversion of the course of justice’.

THE RESPONDENT’S EVIDENCE:

Mr "G"

123. Mr "G" gave evidence that he has been employed by the Education Department for thirty years and has been Principal of "R" Primary School since 1999, having been a school Principal for sixteen years at four different schools.

124. He confirmed his Witness Statement (Exhibit C 28) was true and correct. In relation to "R" Primary School, he confirmed that there are approximately two hundred and thirty students at the school with twenty three or twenty four support staff and with twenty to twenty five students from non-Australian backgrounds. He said there was a mix of nationality, ethnic origin and race and several of the staff were from different nationalities.

125. In relation to the "L" family, he had had "J" at his school since 2001 when he was in Kinder and also "J’s" older brother was a student at the school.

126. Mr "G" was asked whether he had had contact with another teacher from another school, Mr "B". He confirmed that Mr "B" had telephoned him to inquire as to an injury suffered by "A" to his thumb at a football training session that Mr "B" was running. He confirmed with Mr "B" that "A" was okay, and denied the suggestion that he had told Mr "B" things about Mrs "L" that would make him think differently about her. He said that that was just not true.

127. Mr "G" gave evidence that in 2000 he introduced a policy in relation to class placement requests which required parents to either email him, send him a letter, or come and see him by November in relation to class placements for the following year. A list of class placements was then done and after that was completed he would then go through the list and look to see if he could accommodate the parental requests for class placement of children. Class placements had to be made on an educational ground.

128. Mrs "L" had asked for "J" to be in Mrs "C’s" class in 2003 and had indicated that "J" had had a bad year with Mrs "S". Mr "G" indicated that they had been able to accommodate that request and that there was nothing out of the ordinary in relation to that. He denied that he had any reason to be irritated by that request. He said from his recollection the meeting was fairly brief and no different to any other meeting with parents. Mr "G" confirmed that "J" was placed into Mrs "C’s" class.

129. His evidence was that parents were given an opportunity to make a request, but that was all they could do. If parents were still upset about the placement, he said his general policy was to tell them that they needed to see how it went and if there was a good reason then the decision would be reviewed.

130. His evidence was that in his seven years at "R" Primary School there have only been two changes of students from one class to another during the school year. One was "J" and one was two years before that. The other move was a child who was just not fitting in with that teacher’s style, there were difficulties and strategies were put in place after lots of meetings were not successful, and it was decided that the child’s academic progress was suffering and the child was moved and the problem was solved.

131. In relation to "J", Mr "G" said that there did not appear to be any difficulties in "J’s" performance in Mrs "C’s" or Mr "H’s" classes. He appeared to be going okay and he could not find anything unusual hindering his progress. There was nothing apparent in what Mrs "C" was doing in relation to "J", but she was feeling very pressured and Mr "G" said he did agree to move "J", firstly to get him back to school and secondly because Mrs "C" was under stress because she felt her teaching ability was being tested and she also felt she was being harassed by Mrs "L". Mr "G" said he had several meetings with Mrs "C" to talk about the matter. He said "J" was making progress with reading, literacy, numeracy, and getting on well with other children.

132. At the meeting with Mrs "C", questions were raised by Mr and Mrs "L" about "J’s" reading. It was indicated that he was reading level 7 at school and Mrs "L" said he was reading level 17 at home, but that "J" was saying at home he was being required to read level 1 at school. Mr "G" gave evidence that it was not correct that "J" was reading level 1 at school. He taught forty minutes each week in that class and took "J" for reading and he was aware "J" was reading level 7 or 8 at that time.

133. There was a parent/teacher meeting coming up so Mr "G" said he looked at the assessment and was satisfied that "J" was progressing reasonably and that it was only early in the year. He said children learn at different rates and "J" was average or just below. He was confident that with the programs in place he would progress satisfactorily. He agreed that absences affect progress and impact on learning.

134. Mr "G" confirmed that "J" was moved to Mr "H’s" class and continued to progress well.

135. In relation to the meetings Mr "G" had with Mrs "L", his evidence was that at initial meetings, he usually took no notes and that was the same with Mrs "L". It was fairly straightforward at first, but then he became concerned because educational issues were being raised and complaints made, and so he then began to keep notes of the meetings. He also became concerned because at subsequent meetings other matters were being raised. Initially he understood the issue being "J’s" progress in Mrs "C’s" class, which he thought he had dealt with by moving "J". However, other issues of complaint were then added as time went by and the extra things being brought in at the meetings were new and therefore not reflective of previous meetings.

136. Mr "G’s" notes of 15 March 2003 were shown to him and those indicated matters that were discussed and matters that he was going to attend to, including obtaining a guidance report, speaking with Mrs "C", and then discussing that further after Easter with an answer to some educational issues.

137. Mr "G" confirmed that he spent forty minutes in Mrs "C’s" class each week and had also been in Mrs "S" class and had been in the class when Mrs "M" was in there. It was part of his job description to make observations of teachers. His evidence was that he had never seen Mrs "C" shake with anger or seen Mrs "S" clench her fists, shake and turn red in the face with anger. He said he was shocked at the suggestions when they were made by Mrs "L", because he had never seen that happen. He said Mrs "C" was a fairly affable person who was compassionate and he had never seen her become angry like that, and would not expect her to do so. He described Mrs "M" as hard working, friendly and easy to get on with, and Mrs "S" was, in his view, caring, compassionate and hard working. However, he spoke to Mrs "M" and Mrs "C" about the issues raised at the meeting he had had with Mr and Mrs "L", and as a result, he agreed he would be telling Mrs "L" that "J" appeared to be having a go at things, that he was progressing well, that it was only early in the year and that if Mrs "L" wanted to undertake parent help, that needed to be pre-arranged and not something she could arrive to do unannounced.

138. Mr "G" indicated he met Mrs "L" on 17 April 2003 to let her know the outcome of his meeting with Mrs "C" and that he would follow up again after Easter, after the assessment. On 28 April 2003, he had a further meeting and took notes. His evidence was that he was taken aback when Mr and Mrs "L" began the meeting by saying that "J" hated his teachers last year and Mr "L" said he had no confidence in Mrs "C". Mrs "C" was quite upset by that comment. Mr "G" said he disagreed and said that Mrs "C" was very experienced in early education and if anyone could diagnose a problem it would be her. Mr and Mrs "L" indicated they were happy to have a guidance assessment. Mr "G" said that Mrs "C" and he were saying things were fine with "J" and the parents were saying they were not. He also thought the matter was at an impasse and the logical next step would be to have an objective assessment. Mr "L" agreed and thought it was a good idea and Mr "G" indicated he would contact Ms "D" to arrange the assessment.

139. Mr "G" said that at that meeting he had told Mr and Mrs "L" that he had the utmost confidence in Mrs "C". He was put in a dilemma because of the difference in views, that he was surprised because he had never had any complaints about Mrs "C" previously.

140. When asked whether this complaint would have been sufficient to move a child from one class to another, Mr "G" indicated that it probably would not be because it may just be a perception rather than reality. He said that it was a matter of professional judgment and it would be necessary to have something really obvious, some hard evidence, ongoing complaints and observations from teachers and/or other parents. He had not found any such evidence in this case. There was no evidence that "J" was not progressing well, that he was not coping in class or in the playground, and he agreed that there can be a divergence between how parents see things and how things are actually occurring at school.

141. Mr "G" confirmed that he could not have contacted Ms "D" without the agreement of the parents which he had obtained at a meeting and he contacted her by phone and indicated that a parent of a child at his school had agreed to have an academic assessment. Ms "D" indicated she would contact Mrs "L". Mr "G" did not think that Ms "D" contacted him to tell him of the outcome of her phone call with Mrs "L".

142. Mr "G" gave evidence that he was aware the assessment was not done when he met with Mrs "L" again on 28 April 2003. She indicated to him that she still wanted "J" moved and would only have the assessment done if "J" was moved.

143. Mr "G" gave evidence that it was his experience that things would be arranged with Mr and Mrs "L" at meetings and then Mr and Mrs "L" would decide to take a different turn.

144. In relation to the meeting on 29 April 2003, Mr "G" felt that it was a bit of a threat by Mrs "L" in that she was keeping "J" at home, which Mr "G" regarded as serious and concerning.

145. Mr "G" received a further report from Mr and Mrs "L" on 30 April 2003 comprising ten pages. He gave evidence in relation to the notes he had made on that report which indicated his responses to the comments by Mr and Mrs "L’ including matters that he would follow up on.

146. Mr "G" confirmed that once "J" was moved to Mr "H’s" class, he requested Mr "H" to monitor "J’s" progress in detail and he asked Mr "H" to give him a report. Mr "H" had reported to Mr "G" that he thought "J" had improved a lot and that this was due to his work with Mrs "M".

147. Mr "G" then gave evidence that he was stunned to receive a letter on 28 July 2003 from Mr and Mrs "L" to say that Mrs "M" had pushed and shoved "J". He had not been aware of this allegation and it came as a total surprise to him. He said in his evidence he could not imagine Mrs "M" would push or shove a child. Mr "G" confirmed that the only occasion a teacher can touch a child is in relation to a safety issue where there is a duty of care, for example, if one child is attacking another child, then the teacher can restrain the appropriate child.

148. Mr "G" said he then advised Mrs "L" that she may want to contact Mr Fagan and he then telephoned Mr Fagan to say that he had recommended that course of action to Mrs "L". Once the allegation was made on 28 July 2003, he confirmed that it was not something he could deal with and it needed to go for investigation to the Guidance Unit or to the Superintendent.

149. Mr "G" restated the difficulty with the progressively new information and new allegations, and whenever he thought that agreement had been reached with Mr and Mrs "L", the arrangements were altered. He said he believed that Mrs "L" had attacked the integrity of one of his teachers but denied losing his temper with her, although he agreed that he was ‘pretty frustrated’ because he thought the school had done everything it could to help. He told the Tribunal that in all this, his main objective was to help to "J" and he felt he should be at school, getting a good education, and he was frustrated about that.

150. In relation to the issue of sending work home, Mr "G" confirmed that it was not common practice to send work home to students when they are being kept home. Mr "G" had indicated that to Mrs "L" and reconfirmed with her that he wanted "J" back at school or that he should attend his local school at Kingston or be home educated.

151. In cross-examination by Mr and Mrs "L", Mr "G" denied that there had been any change in attitude by him towards Mrs "L" and denied that when he met Mrs "L" in late November or December 2002 he sat in his office chair with his arms behind his head swinging in the chair. He said that was ‘just a load of rubbish’.

152. Mr "G" was also cross-examined in relation to whether, at the meeting he had with Mrs "L" in December 2002, he would have been aware of who the teachers would be for the following year for programs, such as the Flying Start program. Mr "G" stated that he would not have been aware at that time because the class placements are done first and then the specialist teachers, such as the Flying Start teacher, would have been allocated.

153. Mr "G" denied that he had said to Mrs "L" that he did not believe her when the final complaint was given to him. He confirmed that he may have said he would not have expected Mrs "M" to have done what was suggested, but he did not respond in a negative way, and he provided Mrs "L" with information as to the process which would be followed.

154. When Mr "G" was asked what steps he had taken to protect "J" after the complaint was made, he pointed out that "J" had been withdrawn from school the following day.

155. Mr "G" was also asked a number of questions about the fact that Mrs "L" had been speaking to Mr Edwards at the Hartz Support School. Mr "G" was unable to recall whether he was aware that information was being taken to Mr Edwards and he denied that "J" was moved to another class because Mrs "L" had said she was taking her concerns to Mr Edwards.

156. In relation to the investigation by the Grievance Unit, Mr "G" confirmed in cross-examination that he was contacted by Kirralea Gates and she interviewed him, took notes, prepared a statement and sent that to him for verification, which he signed as being correct.

157. Mr "G" indicated that he had not investigated any claim of discrimination because none was made to him.

158. He did not recall the raising of racial or religious discrimination at the first meeting on 15 April 2003. He did not recall at all Mrs "L" relating the incident to him when she said that Mrs "M" got angry at Easter the previous year.

159. Mr "G" denied treating Mr and Mrs "L" differently to anyone else. He also denied showing unfavourable treatment towards "J" saying that he had never done that. He agreed that he had not spoken to "J" in relation to the issues and said that it was better to speak to the staff first and he was satisfied once he had spoken to the teachers.

160. Mr "G" was a confident and convincing witness who gave his evidence clearly and in a matter of fact manner. The Tribunal accepts his evidence, including where it conflicts with versions of events as alleged by Mrs "L".

Mrs "M"

161. Mrs "M" gave evidence that she had been a teacher for more than thirty years with the Education Department and was at "R" Primary School since 1999. She knew "J" in her capacity as the Flying Start Teacher. This is a program which provides an additional teacher whose role is to improve literacy and numeracy skills either in small groups or for the whole class. Mrs "M" taught "J" in 2002 and 2003 in her capacity as the Flying Start teacher and also on each Friday.

162. She said she found "J" to be a quiet child who appeared to be a bit timid.In relation to the sports day early in 2003, Mrs "M" could not recall chastising "J" when he was sitting near her or standing in an intimidating way near Mrs "L". She said she would not have done that, she said it was a very busy day and she was getting children organised and would have had no time for doing anything like that.

163. She recalled a math’s sheet with Easter eggs on it which the children were working on prior to Easter in either 2002 or 2003. She agreed that Mrs "L" had requested that the eggs be changed to bread because according to her religious beliefs, Easter eggs were not appropriate. Mrs "M" said that that did not upset her or cause her to be angry at all and she did not ever behave that way. When asked if she had seen Mrs "S" behaving that way, she said never, she is always in control.

164. She gave evidence that in March or April 2003, Mrs "L" approached her and wanted to speak to her about "J". She said she was in the corridor at the time and suggested they speak in a room at the end of the corridor. She said it was difficult to determine what the issues were that Mrs "L" was referring to, but she said that Mrs "L" told her that "J" felt uncomfortable with her, afraid of her and that he has unhappy. Mrs "M" said that was the first time she had been made aware of this. She gave evidence that when she received the details of the complaint made by Mr and Mrs "L" to the Anti Discrimination Commissioner, she was surprised by the allegations because the allegation that she had pushed and shoved "J" had never been put to her previously. She said that was not the way she acts and she has been very troubled by these proceedings. She said that she had never been investigated before and it was not very easy to have her integrity questioned.

165. She confirmed that in 2002, "J" was in the Flying Start program which was a program that all the children would get a turn at. She said that in different classes, the program targets specific children with a problem or it targets specific problems for the class in general. In relation to 2003, Mrs "M" could not recall whether "J" had a specific problem or whether the program was to assist him with improving his reading and spelling.

166. Mrs "S" had told Mrs "M" about the change to the math’s sheet in relation to the Easter eggs and she had an article to read that Mrs "L" had given her. Mrs "M" was not sure if she already knew of Mrs "L’s" beliefs or whether she was told about them on that day.

167. Mrs "M" was cross-examined in relation to whether she had seen "J" distressed in her care and she said she had not. She was asked whether at any time she had seen him distraught or distressed and she said not that she could recall. She said that she had no impression that "J" was unhappy at school and as a teacher she tries to treat all children the same and help them in their learning capacity. She said she had no reason to treat him unfavourably and that she never did.

168. Mrs "M" agreed that she herself was a quiet person, meek and not an over bearing person.

169. In relation to the alleged incident of her pushing and shoving "J", she was told by Mr "G" that the matter would be taken further and reported to the Grievance Unit and she subsequently had an interview with Kirralea Gates. Her recollection was that "J" was not at school again after that allegation was made. She indicated that she did not think it was appropriate to ask "J" about the allegation and she denied that there was any way she could have had physical contact with "J" that would give him feelings of being pushed and shoved. She said she was in the classroom with Mr "H" who was always there. She was not on her own with "J" at any time in Mr "H’s" class.

170. They were generally sitting around a table and she would be beside, opposite or near them at the small desk. When asked if she had ever treated "J" in an unfavourable way, Mrs "M" said no, she had been very obliging, she had dealt with complaints and issues raised by Mrs "L". She said she had been unaware that Mrs "L" had serious concerns about her, prior to the meeting in the corridor.

171. Mrs "M" agreed that she recalled Mrs "L" saying to her that she only had to treat "J" with respect, although she said she did not understand what was meant by that at the time. She recalled Mrs "L" saying that you only have to tell him to do things and he will.

172. Mrs "M" did not recall an incident in the playground later on that same day with "J’s" brother "A" being involved, but she recalled "J" and other boys playing with sticks and told them they had to sit out. She did not recall "A" coming to her relating an incident where boys were bullying "J" and "A" approaching her and telling her what had happened and she telling "A" to go away and play.

173. In relation to her suggestion that Mrs "L" ‘mollycoddled’ "J", Mrs "M" said that she was referring to "J" sitting on Mrs "L’s" knee when Mrs "L" was in the classroom. She said that when children are at school it is nice for them to be part of the group, rather than sitting on the parent’s knee. When asked whether Mrs "L" was trying to console "J" because of what was happening, she did not recall any reason for that and she did not recall seeing him being consoled by his mother. She also did not recall "J" being reluctant to come into the classroom or hanging on to his mother.

174. At the meeting with Mrs "S", Mr "G" and Mr and Mrs "L", she could not recall Mr "L" suggesting "J" be taken to a psychologist, but she did recall Mrs "S" saying there was a Guidance Officer who could deal with this type of situation.

175. When asked in cross-examination by Mr "L" whether Mrs "M" observed any behavioural problems with "J" after the suggestion at the meeting from Mr "L" that "J" be taken to psychologist, Mrs "M" said he was generally happy in the classroom and outside and she did not observe any change.

176. Mrs "M’s" evidence was convincing. She attempted to recall incidents with as much detail as possible and gave her evidence objectively. The Tribunal accepts her evidence, including where it conflicts with versions of events as alleged by Mrs "L".

Ms "S"

177. Mrs "S" was employed with the Education Department from 1969 until the end of 2004 when she retired. In 2002 she taught the prep/grade one class at "R" Primary School. She was a fractional point eight appointment and Mrs "M" was point two. Mrs "M" was also the Flying Start teacher on Tuesdays to Thursdays and taught in her class on Fridays. She recalled "J" being in her class in 2002, which was the only year she taught him. She said he was a pleasant child, friendly, but reserved. He enjoyed coming to school and fitted into the class. He was keen to learn and loved being with his friends. He had a close group of friends and was able to relate to other children in the class. He enjoyed learning and got on well with other teachers in subjects such as physical education and music. He coped well with the transfer from kinder to full time school. There were no concerns about his social development, although later in the year he was lagging a bit behind in literacy skills. Social and other academic development was all fine.

178. In relation to Mr "G", Mrs "S" said that the staff were quite close and felt they could speak freely to Mr "G". He made a point of visiting classrooms and being on duty and she said she had never observed him to lose his temper.

179. In response to the suggestion that Mrs "L" had said she shouted at and belittled children, Mrs "S" said ‘I do not do that to children, I do not humiliate them, and I have other strategies to deal with them.’ She told the Tribunal she raised her voice in situations requiring it, but never lost control. She said that raising her voice would be necessary for safety of children or to enable her to be heard above the children. In response to the suggestion that Mrs "L" had given evidence that she had clenched her fists, turned red and shook with anger, she denied that and said ‘I just do not react in that way’.

180. Mrs "S" said that she had not ever seen anything unusual or problematic in Mrs "M’s" teaching of "J" and she treated "J" as she would any other members of class working with her in her calm and efficient manner. Mrs "S" said that she received the detailed complaint from the Anti Discrimination Commissioner’s Office in March 2004 and was absolutely surprised because no complaint had been made to her in 2002 and 2003 she had no knowledge of the problem either. She confirmed that in October 2002, Mrs "L" had asked for a meeting and expressed concerns to her that "J" was unhappy at school and distressed at night, and Mrs "L" suggested they might involve a Child Psychologist. Mrs "S" said she suggested they might use the Guidance Officer. Mrs "S" said she had no explanation because "J" seemed fine at school, although illness in late second term had put him a little behind in his literacy skills and that may have been worrying him. She confirmed that there was no evidence at all in that year of distress by "J", or evidence that he was not coping. She said she did not change her relationship with "J" following the meeting with Mrs "L" and she did not see any change in "J" after that meeting. She said she did not understand why "J" would be saying to his parents he hated her and Mrs "M". She said "J" was compliant, and when asked to do something he would not object. He was interested in a lot of different areas and keen to do things.

181. Mrs "S" did not recall Mrs "L" being one of the parents at the seashells expedition at the beginning of the year in prep, or Mrs "M" addressing the children and talking about Taroona Beach. She did not recall any other particular incident on that day.

182. Further in cross-examination, Mrs "S" was asked if she recalled getting upset one day when Mrs "L" was in the class. Mrs "S" said she did not recall that and had never reacted like that. She had no idea why "J" would repeatedly say that he hated her.

183. When asked whether Mrs "S" recalled treating Mrs "L" differently than anyone else when she first met her in 2002, Mrs "S" responded that she would not have treated her any differently.

184. In relation to the process if a parent wishes to have a conversation with her, Mrs "S" said the parent would approach her directly or by phone or in the classroom in the morning, indicating they had a concern. If it was a small concern it could be dealt with then and there, but if it needed more exploration then the parent would make an appointment between 3:00 and 4:00pm. She indicated there was not time to speak to parents at length before school, but it was a time to built rapport and a relationship with parents. She said that she felt that she had a sufficient relationship with parents, that if they wanted to speak to her they would come up and do so and not need to stand waiting, letting her know by body language that they wanted to see her.

185. She said she felt she had a reasonable relationship with Mrs "L" who spoke to her on a number of occasions. Sometimes "J" came on the bus and sometimes Mrs "L" brought him in. She denied that she would ever have ignored Mrs "L" on purpose and that she would make a point of being available to speak to parents, and if Mrs "L" had approached her, she would have spoken to her. She denied that she would ever have said to Mrs "L" that she needed to make an appointment and then walked away without making an appointment time.

186. Mrs "S’" evidence showed her to be a caring teacher who was able to provide a detailed and considered description of "J" and his progress both in the classroom and in his social interaction with his peers. She was a convincing witness and her evidence was credible. The Tribunal accepts her evidence, including where it conflicts with versions of events as alleged by Mrs "L".

Ms "C"

187. Mrs "C" gave evidence that she had been a teacher for in excess of twenty years and had been a teacher at "R" Primary School since 2000. She previously worked with young adults and young children with disabilities and multiple-handicapped people. In 2003 she was teaching grade one and "J" was in her class. When asked how he appeared to her, she said he appeared fairly happy and had a number of friends. She confirmed that Mrs "M" was the Flying Start teacher and was in her class three or four times a week for sessions. She denied she had ever seen Mrs "M" lose her temper and she never observed Mr "G" lose his temper either. She said that neither she nor Ms "M" shouted at any of the children.

188. In relation to the first day of school in 2003, Mrs "C" was asked if she ignored Mrs "L" on that day and she said that she was not aware of having done that. She did not recall speaking to "J" on that occasion. She said she would have spoken to various children but could not recall who she spoke to because it was so long ago.

189. She confirmed that she began to feel uncomfortable with her relationship with Mrs "L" and was harassed by her, so she decided to keep notes. She said she had not had a situation like this previously in her career, and she could not grasp what the parents were having difficulties about. She said she gave them a lot of time to try and resolve things, but the situation seemed to change as time went by.

190. Mrs "C" confirmed that one morning, she had a discussion with Mrs "L" about the level of "J’s" reading. She explained to the Tribunal what she had in the class, namely reading books that children can take home with them. The readers were bunched together in boxes of different levels. The assessment of a child’s reading level is done by hearing the child read first and then determining their reading level. It is not a precise measurement and is used as a guide to enable children to read around that level. There are formal assessments and the last one for "J" would have been at the end of prep which showed he had a reading level of level 1. "J’s" reading level had been informally assessed at around level 7 which is average. She said that in her discussions with Mrs "L", she did not tell her what the informal assessment level was, but it was discussed at the parent/teacher meeting, although she could not recall the detail of what was said. She said that the idea is to enable children to read easily and not struggle, because, if they are having to concentrate on the words, they lose comprehension.

191. In relation to the issue of whether "J" was required to read level 1 in the class room, Mrs "C" recalled Mrs "L" coming into the class room to discuss it and her saying to Mrs "L" that she had some notes at home which she wanted to talk to Mrs "L" about, and suggested they do that at a parent/teacher meeting. She denied getting angry, but said she was feeling extremely harassed by Mrs "L’s" attempt to continue discussing the reading, although she had already told her that she wanted to talk to her on another occasion about it. She said that Mrs "L" was persistent in continuing the discussion. Mrs "C" could not recall Mrs "L" leaving the classroom after that discussion and then coming back into the classroom.

192. When it was put to Mrs "C" that at the formal parent/teacher meeting she spoke for the entire time and did not allow Mr and Mrs "L" to speak, she denied that and said she had difficulty in making any points she wanted to make about "J’s" progress.

193. She indicated she was stressed by the information she had received from the Anti Discrimination Commissioner with regard to these proceedings.

194. Mrs "C" gave further evidence in cross-examination in relation to meetings between herself, Mr "G" and Mr and Mrs "L" and denied showing any resentment to Mr and Mrs "L". There were questions in relation to the appointment of a child psychologist, but Mrs "C" could not recall whether she had suggested going to the child psychologist and her recollection was that she had suggested that "J" see the Guidance Officer. She said she was not angry when Mr and Mrs "L" mentioned a child psychologist but she was wary about the meeting because she knew that Mr and Mrs "L" had been to Mr "G" with a couple of complaints about her.

195. She denied that when Mrs "L" spoke to her in the morning about the reading, it was for a short period and she said it would have been more appropriate to have done that after school. She was unable to give any reason why "J" would say to his parents that he had to read level 1 at school. She said he was not required to read level 1 in the class room and would have had access to various books, not all of which were levelled.

196. It was suggested that Mrs "L" had approached her about the level 1 reading, it was done in a diplomatic way and not in an angry or aggressive way. Mrs "C" did not agree and said that if it had stopped at the first question and Mrs "L" had accepted her response, she would not have felt harassed, but she had to give the same response about four times.Mrs "C" had indicated she wanted to speak with Mrs "L" but at a later time, but she said Mrs "L" continued and demanded a response there and then. She became more insistent and was tapping at the books.

197. She recalled a meeting she had had with Mrs "L" on the sports day at lunch time when they ended up sitting together. She could not recall asking Mrs "L" to tell her about the concerns that she had, but she said that she may have done.

198. She denied treating "J" or Mrs "L" in an unfavourable way.

199. Mrs "C" was obviously very troubled by the complaints made by Mr and Mrs "L". She gave her evidence concisely and clearly tried to recall the details as best she could, given the time that has elapsed since the incidents in question. She was an honest and credible witness. The Tribunal accepts her evidence, including where it conflicts with versions of events as alleged by Mrs "L".

The Legislation

200. Section 14 of the Act provides as follows:

"14 Direct discrimination:

(1) Discrimination to which this Act applies is direct or indirect discrimination on the grounds of any prescribed attribute.

(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

(3) For direct discrimination to take place, it is not necessary -

(a) that the prescribed attribute be the sole or dominant ground for the unfavourable treatment; or

(b) that the person who discriminates regards the treatment as unfavourable; or

(c) that the person who discriminates has any particular motive in discriminating."

201. Relevant attributes are set out in section 16 of the Act, and in this case, the attribute alleged to be in issue was race (section 16(a)) and age (section 16(b)).

202. The Act’s application to areas of activity is spelt out in section 22(1) which includes in paragraph (b) reference to education and training.

203. The prohibition on victimisation is contained in section 18 of the Act and provides as follows:

"18 Prohibition of victimisation

(1) A person must not victimise another person because that other person -

(a) made, or intends to make, a complaint under this Act; or

(b) gave, or intends to give, evidence or information in connection with any proceedings under this Act; or

(c) alleged, or intends to allege, that any person has committed an act which would amount to a contravention of this Act; or

(d) refused or intends to refuse to do anything that would amount to a contravention of this Act; or

(e) has done anything in relation to any person under or by reference to this Act.

(2) Victimisation takes place if a person subjects, or threatens to subject, another person or an associate of that other person to any detriment."

Issues to be decided

204. The key issues before the Tribunal are whether the Complainants’ allegations of age and race discrimination by the Respondents (Department of Education, Mr "G", Mrs "M", Mrs "C" and Mrs "S") against Mrs "L" and "J" in the area of education and training, also victimisation, have been made out. The relevant provisions have been outlined above (section 14 dealing with direct discrimination and section18 dealing with victimisation).

205. The essence of establishing direct discrimination is to show that there has been less favourable treatment on the basis of a prescribed ground (here alleged to be race and age), in an area of activity recognised under the Act (here in the area of education and training) than treatment of a person without that attribute. The requirements for establishing ‘victimisation’ under the Act are very specific. ‘Detriment’ is defined in section 3 to include ‘humiliation or denigration’.The provisions of section 18 in the Act are intended to provide protective measures to ensure that a person who has or wants to exercise their statutory rights to make a complaint is not further disadvantaged by other detriments being imposed on them.

206. There are three separate components which must be met for a claim of victimisation to be established.The first is that the person must suffer, or there must be a threat to cause the person to suffer, a detriment.Secondly, there must be a detriment established.And thirdly, there must be a causal nexus between the detriment and one of the matters listed in section 18(1) of the Act.

207. The meaning of ‘detriment’ was referred to in Bogie v. University of Western Sydney (1990) EOC 92-313 at 78,416 as follows:-

‘[A]ll that is required to constitute ‘detriment’ in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter.’Other cases have provided broader definitions of ‘detriment’ to include loss, damage or injury e.g. Hautlieo Pty Ltd trading as Russell Pathology v McIntosh [2000] WASCA 146.

208. The cases make it clear that to establish the third component, the detriment perceived by the Complainant must have a nexus with the lodging of the complaint or some other action taken to assert rights.However, the ultimate failure to establish that discrimination has in fact occurred will not prevent a claim of victimisation, as an act or acts of victimisation may occur during the course of the investigations and resolution of the discrimination claim.

209. The onus of proof with respect to these matters lies on the Complainants on the civil standard of balance of probabilities: Rogers v Hanusiewicz (2004) TASADT 14.

Submissions to the Tribunal

210. The Tribunal had the benefit of submissions from Mr Turner on behalf of the Respondents as well as written submissions provided by Mr and Mrs "L" on behalf of the Complainants dated 5 March 2007.

211. On the issue of onus of proof, drawing on the decision of Commissioner Crennan in Dealey v Australian Leisure and Hospitality Group [1998] HREOCA 10, Mr Turner submitted that racial discrimination, in particular, is a serious matter and therefore the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 must be taken into account. Mr Turner submitted that the following passage from Briginshaw, and cited in Dealey v Australian Leisure and Hospitality Group (above), was especially pertinent to the present case:

‘The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

212. Mr Turner also urged the Tribunal to bring ‘commonsense’ to the task of evaluating the evidence, and for the Tribunal members not to leave their credulity at the door of the Tribunal. He also submitted that the Tribunal should leave ‘zealous sympathy’ to one side.

213. The Tribunal has also taken note of Mr Turner’s submissions regarding Mrs "L’s" evidence, including his reliance on the decision of Elmarazi v The University of New South Wales, [1996] HREOCA, extracts from which were provided to the Tribunal. Mr Turner drew a number of analogies with this case and the matter before the Tribunal, including that it involved an allegation of race discrimination in an education setting involving conspiracy theory, and that virtually every detrimental act suffered by the Mr Elmarazi was said to be grounded on race. Mr Turner had highlighted the following passage from the decision of Commissioner Basten QC:

‘Finally, in assessing ambiguous circumstances, it is inevitably necessary to consider whether there are other non-discriminatory bases put forward for the conduct in question. If there are, and particularly if a range of conduct is alleged to be rooted in racial prejudice, but viewed on its own can readily be explained on other grounds, care must be taken in drawing an inference that such conduct is based in any significant respect upon race.’

214. In summary, Mr Turner contended that there is no substance to Mrs "L’s" evidence and that, to the contrary,reliable, credible evidence was available. Further it was submitted that if the Tribunal were to find that there had been unfavourable treatment, there was no evidence that the Complainants were treated differently as a consequence of the prescribed attributes. Mr Turner accordingly submitted that there is no proper basis for the complaint and it should therefore be dismissed.

215. With respect to the issue of victimisation, Mr Turner submitted that as this allegation had not been part of the original complaint, it could not be properly considered by the Tribunal, irrespective of what was contained in the referral report, as the complaint had not been formally amended. Mr Turner further submitted that in any event, there was no evidence of victimisation within the meaning of the legislation.

216. The Tribunal has also carefully considered the written submissions for the Complainants. This sets out the relevant provisions of the Act on which they rely, including section 21 which prohibits a person aiding contravention of the Act which they submit is applicable in this case. Reliance was also placed on section 105 of the Act which prohibits the making of false or misleading statements which they have submitted applied to a number of the Respondents. Their written submission makes no reference to section 18 of the Act dealing with victimisation. The "L’s" submissions provides commentary on the evidence before the Tribunal pursuant to various headings (21 in total), seeking to reiterate points made in the course of the Complainants’ case and the cross-examination of the Respondents. In essence, it seeks to highlight parts of the evidence which, in the Complainants’ submissions, demonstrates race and age discrimination and seeks to refute contrary evidence provided on the part of the Respondents. These submissions also addressed in some detail the effect of the Complainants’ experience on their family. It also set out details of the orders sought in the event that the Tribunal were to find the complaint substantiated. In coming to its decision, the Tribunal has given careful consideration to the evidence heard on behalf of the Complainant and all the submissions made by Mr and Mrs "L".

Tribunal’s Conclusions

217. The Tribunal is of the view that it is appropriate for it to consider allegations of both discrimination and victimisation. Consistent with other Tribunal decisions, the Tribunal takes a broad view of what constitutes the relevant ‘complaint’ and the fact that a complainant does not initially identify conduct as ‘victimisation’ does not preclude the Tribunal from considering such an allegation provided that it is a matter properly referred by the Commissioner to the Tribunal based on the Commissioner’s evaluation of the complaint.

218. Section 84 provides the Tribunal with power to amend any complaint.However, it should also be noted that in conducting an Inquiry the Tribunal is not restricted to the characterisations of conduct claimed by the Complainant in the complaint.If the facts justify it, the Tribunal is entitled to make a finding of discrimination or prohibited conduct on the basis of an attribute or in an area of activity not indicated in the complaint.The role of the Tribunal is not to act as a passive evaluator of material put before it, but to inquire into the matters raised by the Complainant. Having said that, it is, however, necessary for the complaint to provide a basis for jurisdiction on the face of the matter.(La Roche v. President and Members of the Equal Opportunity Board & Anor (1991 EOC92-361)).

219. Determination of the issues of direct discrimination (based on age and race) and victimisation against the Complainants requires evaluation of the evidence before the Tribunal in respect of each of the various Respondents. For convenience, the position of the Department of Education will be considered last, as its liability is dependent on the Tribunal’s conclusions in respect of the other Respondents who were all, at the relevant time, employees of the Department.

The Tribunal’s findings on the evidence of Mr "G"

220. Mr "G" had rejected the allegations made against him and the Tribunal has found him to be a credible witness whose evidence the Tribunal accepts. The Tribunal has also taken account of other evidence which supports Mr "G’s" account including:

• the other named Respondents (Mrs "C" and Mrs "S", also Mrs "M" in general terms);
• Mr "H", whose evidence indicated Mr "G" to be a caring and supportive headmaster, and whom he described as an open and engaging person;
• Mrs "D", who had rejected the suggestion that she had spoken with Mr "G" during her only phone call with Mrs "L";
• Mr Fagan, whose evidence the Tribunal found to be particularly relevant in view of his senior role, and independence from these proceedings. Mr Fagan had agreed with the suggestion that Mr "G" was a ‘competent and capable headmaster, calm and even-tempered, and not prone to outbursts or anger’. Further, he had rejected suggestions of collusion between himself and Mr "G" to influence the investigation of the Grievance Unit and was satisfied that Mr "G" had acted properly in relation to this matter;
• Mr "B" – who had refuted any suggestion of negative influence by Mr "G";
• Ms Gates who confirmed that the interview with Mr "G" had followed the normal process and rejected any suggestion of collusion or bias against the "Ls";
• Mr Ramaszko who had rejected any allegation of bias or collusion involving Mr "G" with regard to the "Ls" or the investigation of their complaint by the Grievance Unit;
• Mr "P" who confirmed Mr "G" to be a calm and collected person, whom he had never witnessed become angry or livid.

221. In summary, Mr "G" himself and every other witness (aside from Mrs "L"), have given evidence in support of his account. The only witness to give evidence contrary to this account was the Complainant, Mrs "L", and the Tribunal has noted earlier the difficulties that it has with her evidence. The Tribunal is satisfied in the light of this substantial weight of evidence from numerous different witnesses, that there is no basis to the allegations against Mr "G".

The Tribunal’s findings on the evidence of Mrs "M"

222. Mrs "M" has refuted the allegations made against her and the Tribunal has found her evidence to be convincing. In addition, the Tribunal has also taken account of relevant evidence from a number of witnesses in support of Mrs "M’s" denial of the allegations including:

• Mr "H" who gave evidence that he had never seen Mrs "M" angry, or with clenched fists and had strongly agreed with the proposition put by Mr Turner that she was in fact timid in nature and certainly not intimidating or aggressive. Further, he had rejected outright the idea that she poked "J";
• Ms Gates whose evidence also supports Mrs "M’s" account, including her view formed in the course of the Grievance Unit investigation, that there was no evidence that Mrs "M" had pushed or shoved or mistreated "J";
• Mr "G" who had described Mrs "M" as hard working and friendly and had told the Tribunal that he could not imagine Mrs "M" would push or shove a child;
• Mr "P" who has described Mrs "M" as a reserved, quiet person who was not aggressive and not intimidating whom he had never seen shake with anger or clench fists or become red, or shout at or belittle children;
• Mrs "S" whose evidence to the Tribunal had been that she hadnever seen anything unusual or problematic in Mrs "M’s" teaching of "J" and she had treated him as she would any other member of class working with him in her calm and efficient manner;
• Mrs "C" who had denied that she had ever seen Mrs "M" lose her temper or shout at the children in her class;
• Mrs Olivier had never witnessed Mrs "M" shouting at the children or losing her temper.

223. Indeed, as is the case in respect of Mr "G", the only witness to give evidence contrary to Mrs "M’s" account was the Complainant, Mrs "L", and the Tribunal has previously noted the reasons why it is unable to accept her evidence. The Tribunal is accordingly satisfied in the light of this evidence from a number of different witnesses, that there is no basis to the allegations against Mrs "M".

The Tribunal’s findings on the evidence of Mrs "C"

224. Mrs "C" in her evidence to the Tribunal had rejected the allegations made against her and was clearly very concerned about the complaints raised. The Tribunal has found her to an honest and credible witness and accepts her evidence. Furthermore, that Tribunal has had regard also to the evidence of a number of other witnesses which supported her account of the evidence including:

• Mr "H" who had described Mrs "C" as a calm person and had given evidence that he had never seen her loose her temper;
• Mr "G" who described Mrs "C" as an affable and compassionate person, and gave evidence that he had never seen her become angry;
• Mr "P" whose evidence indicated that he had never seen Mrs "C" shake with anger or clench fists or become red, or shout at or belittle children and that she was not an aggressive or intimidating person.

225. The only evidence against Mrs "M" is that of the Complainant, Mrs "L", and for the reasons previously indicated, the Tribunal does not accept her evidence. In view of Mrs "C’s" own evidence and that of other witnesses which has fully supported her account, the Tribunal is satisfied that there is no basis to the allegations made against her.

The Tribunal’s findings on the evidence of Mrs "S"

226. The Tribunal found Mrs "S" to be a convincing witness and her evidence, unequivocally rejecting the allegations against her, to be credible. The Tribunal has also taken account of the evidence from a number of other witnesses which has fully supported Mrs "S’" account including:

• Mr "H" who had given evidence that he had never seen Mrs "S" shaking or clenching her fists or turning red, and had told the Tribunal that it was not conceivable to him that she would behave in this way;
• Mr "G" who had described Mrs "S" as caring, compassionate and hard working and gave evidence that he had never seen her clench her fists, shake and turn red in the face with anger and had been shocked at suggestions to this effect;
• Mr "P" whose evidence indicated that he had never seen Mrs "S" shake with anger or clench fists or become red, or shout at or belittle children and that she was not an aggressive or intimidating person;
• Mrs "M" who told the Tribunal that she had never seen Mrs "S" get upset or angry and that she was always in control.

227. As in the case of the other named Respondents, the only evidence against Mrs "S" is that of the Complainant, Mrs "L", whose evidence the Tribunal does not accept. The Tribunal is therefore satisfied, in the light of its evaluation of Mrs "S’" own evidence and that from a number of different witnesses, that there is no basis to the allegations against her.

General Observations about the Evidence

228. By way of general comments in respect of the evidence before it, the Tribunal notes the consistency in the evidence of witnesses (with only minor discrepancies on non-relevant matters); and that there was a substantial weight of evidence in support of each of the individually named Respondents. The only evidence in support of any of the allegations made is that of Mrs "L". The Tribunal reiterates its earlier conclusions with respect to the unsatisfactory nature of her evidence. In the Tribunal’s view, Mrs "L" has been highly sensitive and lacking in objectivity in how she has perceived her interactions with others and the Complainants have not come up to the required standard of proof to establish the allegations contained in the complaint. Indeed, objectively viewed, the Tribunal has come to the view that there is no basis whatsoever in the allegations contained in the complaint of either discrimination or victimisation. In particular, the Tribunal has found that there is no evidence of unfavourable treatment of Mrs "L" or "J". As the complaint of discrimination fails at the first stage,it is,therefore, unnecessary for the Tribunal to go through the process of considering whether any unfavourable treatment was on the basis of a prescribed attribute (race and/or age). For the record, the Tribunal notes its agreement with the submission from Mr Turner, that there is, in any event, no evidence to support any such link. Similarly, the Tribunal has come to the conclusion that there is no evidence of detriment that would support an allegation of victimisation, and having come to this view it is unnecessary to go further and consider any link with proceedings under the Act as required under section 18.

229. In light of these conclusions, the Tribunal also rejects the relevance of submissions on behalf of the Complainants in reliance on section 21 (which prohibits a person aiding contravention of the Act) and section 105 of the Act which prohibits the making of false or misleading statements.

Department of Education

230. Special attention needs to be given to the Department of Education as a Respondent to this complaint as it an organisation. Pursuant to section 104 of the Act, organisations have certain obligations under the Act, and if it fails to comply with those obligations, it can be found liable for any contravention of the Act committee by any of its members, officers, employees and agents.

231. The section in full, provides as follows:

"104 Obligation of organisations

(1) An organisation is to ensure that -

(a) its members, officers, employees and agents are made aware of the discrimination and prohibited conduct to which this Act relates; and

(b) the terms of an order made under section 89 relating to that organisation are brought to the notice of those of its members, officers, employees and agents whose duties are such that they may engage in conduct of the kind to which the order relates; and

(c) no member, officer, employee or agent of the organisation engages in, repeats or continues such conduct.

(2) An organisation is to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct.

(3) An organisation that does not comply with this section is liable for any contravention of this Act committed by any of its members, officers, employees and agents."

232. As Mr Turner had noted in his submissions to the Tribunal, there are a number of preconditions to the operation of the provision: firstly, that there has been a contravention of the Act by an employee (one of the individually named Respondents) and secondly, that the organisation has not complied with its obligations under the Act which refers back to subsections 104(1) and (2). In this case, the Tribunal has come to the view that there is no evidence to support any of the allegations against any of the individually named Respondents. It accordingly follows that there has been no contravention of the Act by any employee of the Respondent Department and therefore section 104 has no application.

233. Finally, the Tribunal notes that indirect discrimination (under section 16 of the Act) was not raised or argued before it; the Tribunal has considered its applicability to this case but has concluded that it is not relevant and that there is no evidence to support it.

TRIBUNAL'S CONCLUSION

234. The Tribunal accepts that Mrs "L" is genuine, albeit misguided, in her belief that there has been discrimination and victimisation against her and her son "J". Her sensitivity and overreaction to issues has also been noted, resulting in lack of proper objective judgement and this has no doubt influenced her perception of events. The Tribunal’s role is to objectively and even-handedly weigh up the evidence and assess whether the complaint has been made out to the required standard (proof on the basis of balance of probabilities): in this case, the Tribunal has no hesitation in concluding that the complaint has not been established to the required standard. Indeed, in the absence of any reliable evidence in support of the allegations raised, the Tribunal has not had to consider the exact interpretation of that standard in light of the Briginshaw principle that was argued before it.

235. In view of the Tribunal’s conclusion that there is no evidence to support any part of the complaint, the complaint against all Respondents is dismissed.

236. The Tribunal has referred earlier to the suppression order that had been made (para 5 above). The Tribunal has determined that it is appropriate that the suppression order in those terms remain in place and apply to this decision.