2024 WAIRC 00378
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00378

CORAM : INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD : THURSDAY, 13 JUNE 2024

DELIVERED : FRIDAY, 28 JUNE 2024

FILE NO. : M 17 OF 2024

BETWEEN : DELIA GAVRIL
CLAIMANT

AND

DIRECTOR GENERAL DEPARTMENT OF EDUCATION, WA
RESPONDENT

CatchWords : INDUSTRIAL LAW – Application by respondent to strike out claim and further and better particulars of claim – Whether there is a real issue of fact or law to be tried
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Public Sector Management Act 1994 (WA)
Public Service Award 1992 (WA)
WA Work Health and Safety (General) Regulations 2002 (WA)
Case(s) referred
to in reasons: : Miller v Minister of Pensions [1947] 2 All ER 372, 374
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362
United Voice WA v The Minister for Health [2011] WAIRC 01065; 91 WAIG 2337
Fancourt v Mercantile Credits Ltd [1983] HCA 25; 154 CLR 87
Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991)
Burton v Shire of Bairnsdale [1908] HCA 57; 7 CLR 76
Shilkin v Taylor [2011] WASCA 255
Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081
Forshaw v Qantas Airways Limited [2023] FCA 957
Western Australia Prison Officers Union of Workers v Minister for Corrective Services [2024] WAIRC 139
Result : Application granted in part
Representation:


Claimant : Ms G. Alvarez (industrial agent)
Respondent : Mr J. Carroll (of counsel) as instructed by the State Solicitor’s Office

REASONS FOR DECISION
(This decision was delivered in part extemporaneously on 13 June 2024 and has been edited from the transcript to correct matters of grammar, add headings, provide more detail, and include complete references.)
Background
1 The claimant is or was employed by the Department of Education (the respondent) as a Fixed Assets Officer, a Pay Roll Officer and a Tax Support Officer. It appears the claimant was employed on a series of fixed term contracts from 28 February 2022 with the last contract due to expire on 27 October 2023. On or around 10 June 2023, the claimant did not attend work and she may be accessing worker’s compensation.
2 On 23 February 2024, the claimant lodged a claim against the respondent under s 97A of the Industrial Relations Act 1979 WA (IRA), alleging the respondent took damaging action against her, and seeking orders the respondent reinstate her to her former position as a Tax Support Officer; compensation for alleged injuries and losses suffered; and pecuniary penalties payable to her (the Claim).
3 The respondent has yet to respond to the Claim.
The respondent’s application and orders sought
4 On 15 May 2024, the respondent lodged an application seeking, pursuant to reg 5 and reg 7(1) of the Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (WA) (the IMC Regulations), the Claim and further and better particulars lodged on 8 May 2024 (the Particulars) be struck out because they fail to:
(a) disclose a reasonable cause of action within the Industrial Magistrates Court’s (IMC) jurisdiction; and
(b) provide reasonable notice of the case the respondent is required to meet such that the Claim cannot be responded to (the Application).
5 The respondent relies upon an affidavit of John Matthew Carroll (Mr Carroll) affirmed on 14 May 2024 in support of the Application (Carroll Affidavit).
6 The claimant opposes the Application.
7 Schedule I of these reasons outlines the jurisdiction, standard of proof, practice, and procedure of the IMC in determining this case.
History of the Claim
8 The Claim was commenced following the claimant discontinuing claim M 138 of 2023 against the same respondent.
9 M 138 of 2023 was commenced in November 2023, whereupon the respondent applied for orders to strike out the claim and for the claimant to file and serve a new statement of claim. Rather than striking out the claim, the IMC made orders requiring the claimant to amend her statement of claim. Instead of doing so, the claimant discontinued M 138 of 2023 and commenced the Claim, which is generally a restatement of M 138 of 2023.
10 It is fair to say that both claims were and are problematic, as neither clearly state the grounds upon which the claimant says the respondent has taken damaging action against her. While the basis for the Claim is somewhat clearer than what it was in M 138 of 2023, the Claim and the Particulars are a recitation of the many interactions the claimant says she has had with various employees of the respondent and her feelings about those interactions. In addition, the claimant conflates causes of action and seeks orders that are beyond the jurisdiction of the IMC, noting the Claim is made under s 97A of the IRA.
11 The respondent again applied to strike out and dismiss the Claim as an abuse of process. The Claim was allowed to proceed, but the claimant was ordered to provide the Particulars after the respondent offered to identify to the claimant the issues requiring clarification. Carroll Affidavit at JMC1

12 The Application was made following lodgement of the Particulars.
The respondent’s evidence
13 Mr Carroll is a legal practitioner employed by the State Solicitor’s Office who acts for the respondent. In the Carroll Affidavit, he deposes to the following:
· on 18 April 2024, he wrote to the claimant’s industrial agent identifying matters requiring clarification in respect of the Claim Carroll Affidavit at JMC1
; and
· the respondent otherwise relies upon an attached schedule identifying the reasons why the respondent is unable to respond to the Particulars and that the Claim ought be struck out.
The claimant’s evidence
14 The claimant did not provide any evidence in response to the Application but lodged a written response.
15 At the start of the hearing of the Application, the respondent’s counsel suggested he might be able to divine some limited basis for the Claim. Accordingly, the IMC asked the claimant to further clarify the Claim. Upon reviewing the claimant’s material, there was, to borrow the phrase, the germ of a case concealed within inadequately drafted Particulars Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 at [89] referred to in Forshaw v Qantas Airways Limited [2023] FCA 957 at [75].
.
16 Following lengthy discussions, the IMC and the claimant clarified the Claim as comprising essentially three grounds:
· Ground 1 – following an enquiry or complaint about an entitlement to paid leave loading and about taxation paid on a ‘cost of living’ allowance, the claimant who was transferred to a level 2 position in Accounts Processing and was refused a return to a contracted position as a level 3 Tax Support Officer;
· Ground 2 – following an enquiry or complaint about the alleged deletion or tampering or modification of files on an ‘S’ drive, the claimant who was transferred to a level 2 position in Accounts Processing, was refused a return to a contracted position as a level 3 Tax Support Officer; and
· Ground 3 – following [yet unspecified] enquiries or complaints made, the claimant was denied an opportunity for permanency [as opposed to a contracted employee].
17 There is overlap between grounds 1 and 2, but given each ground arises, on the claimant’s case, following separate enquiries or complainants about different subject matter it is better to keep them separate. Notably, the claimant did not lose income because of the transfer or the refusal to return but says the effect was to deny her an opportunity to progress or be made a permanent employee.
18 The respondent conceded that if the Claim comprised grounds 1 and 2, the respondent would be able to respond to those grounds.
19 However, without further specificity in respect of ground 3, the respondent contended there was no way of knowing if the alleged damaging action was because the claimant was viewed as generally a ‘complainer’ or if there were other reasons, including those outlined in grounds 1 and 2. I agree with this contention. Unlike other parts of the Particulars, ground 3 is possibly salvageable with further particulars to be provided by the claimant to further clarify ground 3.
20 Notwithstanding having undertaken a process of clarification, there remains other parts of the Claim and the Particulars which the IMC must determine for the claimant to understand what the Claim will be limited to and for the respondent to know the case she is required to meet.
The parties’ submissions
The respondent’s submissions
21 While the respondent’s original position was that the whole of the Claim should be struck out, this position softened as the hearing progressed [for reasons given above]. However, the respondent maintained that for much of the Claim and the Particulars:
· they did not disclose any reasonable ground for the Claim; and
· the defects in the Claim were highlighted to the claimant, and she was ordered to provide further and better particulars, but which did not further advance the basis for the Claim (other than as already stated).
22 In summary, the respondent submits she is only liable for alleged contraventions within the IMC’s jurisdiction (having regard to the Claim and Particulars) and no others and she is entitled to procedural fairness to understand the case made against her.
23 A claim for damaging action contains four ‘elements’ which should be clearly identified by the claimant, and which is not relieved by the reverse onus provision: s 97A (1) and (2) of the IRA.
24 The respondent thereafter critiques the Particulars, which she notes were ordered to clarify the Claim.
25 The respondent concludes that the Claim remains deficient after having three tries, and that providing further opportunities to provide further particulars will not remedy the defects and likely cause further confusion.
The claimant’s submissions
26 The claimant says in response that if the Application is successful, it will contravene s 26(1) of the IRA. With respect to the claimant, s 26 of the IRA does not apply to the IMC. However, the claimant goes on to refer to reg 5 of the IMC Regulations.
27 Relevantly, the claimant says she made or raised enquiries or complaints directly to ‘officers’ meaning public servant officers and executive officers employed in the ‘Public Service’ under Part 3 and Part 8 of the Public Sector Management Act 1994 (WA) (PSMA).
28 The claimant thereafter goes on to further explain each part of the Particulars.
The Claim and the Particulars
29 As already stated, the Claim recites many interactions with various employees of the respondent. It is a history of the claimant’s employment and is likely to be the ‘evidence’ the claimant will lead in support of the Claim.
30 Unfortunately, what it does not do is enable a clear understanding of the allegations referrable to s 97A of the IRA such that the respondent could fairly be expected to respond to the Claim. The Particulars do not assist, as they generally restate the history outlined in the Claim.
31 The Claim refers to 18 incidents (the Incidents) and the Particulars contain seven parts (the Parts).
The Incidents
32 The following is a summary only of the Incidents.
33 Incident 1 refers to interactions the claimant had with various training staff while she was undertaking training as a payroll officer. The claimant states she was treated poorly and felt marginalised and humiliated. As a result, she sent an email to one of the trainers explaining how she felt, and she says this email was read in class. The claimant says she felt she was being shamed in class, and the trainer made things more difficult for her.
34 Incident 2 refers to interactions the claimant had with a supervisor in the pay roll team, stating the supervisor raised her voice at the claimant upsetting and embarrassing the claimant. The claimant requested to be allocated another supervisor. The claimant states she sent an email to the supervisor explaining she was unwell and let the supervisor know how badly she had treated the claimant. An acting team leader responded to the claimant’s email and later ‘sided’ with the supervisor.
35 Incident 3 refers to the claimant’s disgruntlement with the interview process for the position of pay roll officer, including the alleged lack of fairness accorded to her during the process. This also included a move into the COVID19 team for which the claimant says she was undervalued. The move into the COVID19 team extended to late December 2022. The claimant asserts she failed the interview because people had a vendetta against her and that it was a ‘clear retaliation’ against her because she had previously raised concerns about her supervisors.
36 Incident 4 refers to the claimant refers to suffering a ‘panic attack’ and attending her general practitioner and counselling. She asserts she suffered pain and suffering caused by ‘work-related bullying’ while working in pay roll.
37 Incident 5 refers to enquiries made by the claimant regarding paid leave loading and being transferred to the Finance Department as a Tax Support Officer.
38 Incident 6 refers to enquiries made by the claimant regarding the taxation paid on a ‘cost-of-living' payment.
39 Incident 7 refers to an incident in which she says a supervisor banged on a window to a room in which she was having a private telephone conversation. The claimant said she felt intimidated as a result and sent the supervisor an email to tell him how the incident made her feel.
40 Incident 8 refers to the claimant identifying that an ‘Acquisition and Disposal Report’ was modified and states she was concerned someone was interfering with her work files. She emailed a business improvement officer about this.
41 Incidents 9 and 10 refer to other electronic files the claimant says were modified or deleted or tampered with, and the enquiries she made with respect to this and how she felt as a result.
42 Incident 11 is a recitation of the interactions the claimant says she had with various supervisors and how the claimant felt about those interactions.
43 Incident 12 refers to the claimant working in the Accounts Processing team and not understanding the role and feeling isolated by her team leader. The claimant says her mental health declined, and she was diagnosed with depression.
44 Incident 13 refers to the claimant receiving an email from a supervisor about the tasks she had completed and wanting direction about working two different jobs. The claimant states two supervisors came to meet her presumably about the email she sent, and the claimant says she felt intimidated and had a ‘panic attack’. The claimant left the workplace to get medical attention. The claimant refers to a later discussion with two supervisors about a move back to Accounts Processing, and how the claimant felt about the meeting and her position more generally.
45 Incident 14 – there is no incident 14.
46 Incident 15 refers to an enquiry made by the claimant about the overpayment of the taxation on a ‘cost-of-living' payment, and the ‘demotion’ the claimant says she suffered because she raised concerns about her work being deleted.
47 Incident 16 refers to interactions the claimant says she had with various employees and how this made her feel.
48 Incident 17 refers to the claimant making enquiries about the complaint process following the receipt of an email from a supervisor in which the supervisor raised concerns about the claimant’s work performance and the number of personal calls made by the claimant. The claimant says this was in retaliation for her making enquiries about how to make a complaint.
49 Incident 18 refers to the claimant having a ‘panic attack’ and not going to work.
50 The claimant makes a ‘closing statement’ to the Claim alleging bullying and abuse by managers. She also makes various references to how she felt and blames the respondent in various ways for an alleged psychological or psychiatric injury.
51 The claimant refers to s 97 of the IRA and itemises each ‘damaging action’ she says occurred in the payroll section and in the taxation team.
The Parts
52 Part 1 refers to the complaints made by the claimant regarding a supervisor’s ‘substandard’ training while she was [presumably] undertaking training as a pay roll officer. The claimant refers to a refusal to renew her contract (which must have been renewed as the claimant continued to work in the Department). The claimant says the respondent engaged in damaging action and various other alleged contraventions of the PSMA, Public Service Award 1992 (WA) (the Award) and the Public Sector Code of Ethics and Staff Conduct Policy.
53 Part 2 is an extension of Part 1 where the gravamen of the complaint is the claimant was not provided with information about the process to follow to make a complaint about an interview process while she was working in the pay roll section. She then alleges that something was said to her by a manager she found to be discriminatory and insensitive. Again, the claimant says the respondent engaged in damaging action and various other alleged contraventions of the PSMA, the Award and the Public Sector Code of Ethics and Staff Conduct Policy.
54 Part 3 refers, in part, to enquiries made by the claimant about paid leave loading and the alleged overpayment of taxation on a ‘cost of living’ allowance.
55 Part 4 refers to enquiries made by the claimant for a more comfortable chair while working in pay roll, and she says the respondent did not provide her with a new chair causing stress and work-related injuries. The claimant says respondent engaged in damaging action and alleged contraventions of the Work Health and Safety (General) Regulations 2002 (WA) and the Public Sector Code of Ethics and Staff Conduct Policy.
56 Part 5 refers to enquiries and complaints made by the claimant about alleged deleted, modified or tamperedwith files, and refers to, amongst other things, making a complaint to the Commissioner for Public Sector Standards.
57 Part 6 refers to enquiries made by the claimant about her workload and working conditions and being upset at a meeting with two managers. The claimant says she suffered physical and emotional decline due to a ‘toxic work environment’ and attributes her enquiry to her being treated unfairly.
58 Part 7 was withdrawn by the claimant during the hearing of the Application.
Determination
59 The IMC is not a court of pleadings. However, the principles stated by the Full Bench in Western Australia Prison Officers Union of Workers v Minister for Corrective Services [2024] WAIRC 139 at [15] and [16] are apposite to the Claim. Namely, a contravention of s 97A of the IRA is a civil penalty provision and the respondent may be liable for a civil penalty of up to $650,000 if a serious contravention or up to $65,000 if it is not a serious contravention. Further, s 97A of the IRA contains a reverse onus provision where, if the claimant proves damaging action was taken, the respondent is then required to prove it was not because the enquiry or complaint was made by the claimant. Accordingly, the respondent must have a fair opportunity to know what enquiry or complaint was made and the reason the claimant says this resulted in the respondent taking damaging action.
60 In addition, the claimant may have had many issues in the workplace, however, certain issues, even if they occurred as alleged, are not capable of being heard under s 97A of the IRA. That is, s 97A of the IRA is not a ‘one stop shop’ to litigate every grievance an employee had or has in the workplace.
61 The IMC has the power to strike out (or summarily dispose of) a claim on the basis that there is no reasonable prospect of success. United Voice WA v The Minister for Health [2011] WAIRC 01065; 91 WAIG 2337.
The IMC’s duties in dealing with cases are set out in reg 5 of the Regulations The IMC is exercising federal jurisdiction in respect of the Claim and the Regulations apply to govern the practice and procedure of the IMC in this regard.
. Regulation 7 of the Regulations sets out what the IMC may do for the purpose of controlling and managing cases and trials, including, at reg 7(1)(h) ‘order that an issue not be tried’, and at reg 7(1)(r) ‘take any other action or make any other order for the purpose of complying with reg 5’. This would also include striking out part of a claim for the same reasons.
62 Therefore, the IMC has the power to make the order sought by the respondent if it concludes the Claim is so clearly untenable that it could not possibly succeed and, if that circumstance exists, to dismiss the claim so as to deal with the case efficiently, economically and expeditiously and to ensure that the IMC’s resources are used as efficiently as possible. Regulation 5(2)(a) and (c) of the Regulations.

63 The power to order the strike out of the whole a claim is one that should be exercised with great care. Fancourt v Mercantile Credits Ltd [1983] HCA 25; 154 CLR 87.

64 A party has an obligation to provide particulars of an arguable claim (as the case may be) and to provide a statement of facts which go to show that it is arguable. Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991)

65 Disposal of a claim summarily ‘will never be exercised unless the party’s claim is so obviously untenable that it cannot possibly succeed’. Burton v Shire of Bairnsdale [1908] HCA 57; 7 CLR 76, 92 (see also Shilkin v Taylor [2011] WASCA 255 [29]).

66 To that I would also add that for similar reasons the IMC has the power to order part of a case be struck out on the basis that it discloses no reasonable cause of action; it is likely to cause prejudice or delay; is evasive or ambiguous; or contains frivolous or vexatious material.
Section 97A of the IRA
67 Section 97A(1) of the IRA provides [a]n ‘employer must not take damaging action against an employee for the reason, or for reasons that include, that the employee is able to make an employment-related inquiry or complaint to the employer or another person.'
68 Section 97(a) of the IRA defines damaging action against an employee to mean:
(i) dismissing the employee;
(ii) altering the employee’s position to the employee’s disadvantage;
(iii) refusing to promote or transfer the employee;
(iv) otherwise injuring the employee in relation to the employee’s employment with the employer or another person; or
(v) threatening to do anything referred to in subparagraphs (i) to (iv).
69 Section 97A(2) of the IRA provides that in relation to s 97A(1), ‘if it is proved that an employer took damaging action against the employee, it is for the employer to prove that the employer did not do so because the employee made the inquiry or complaint or proposed to make the inquiry or complaint.’
70 A contravention of s 97A(1) is a civil penalty provision for the purposes of s 83E of the IRA.
71 The claimant bears the onus of proving on the balance of probabilities that the respondent took damaging action against her, what the damaging action was (within the meaning of s 97(a)), and that the reason the damaging action was taken was because the claimant made an employmentrelated injury or complaint to the respondent or to some other person.
72 For the respondent to know the case against her and what she is required to respond to, at the very least, the claimant should clearly set out:
· What damaging action (as that term is defined) she says was taken by the respondent (as the employer) or if it was a person other than the respondent, how or why it is alleged that conduct can be imputed to the respondent;
· The reason or reasons she says the damaging action was taken; and
· If she alleges the damaging action was made in response to an employmentrelated inquiry or complaint, what inquiry or complaint was made and to whom and about what.
Should the whole or part thereof of the Claim be struck out?
73 After the lengthy incourt discussions and having distilled three grounds that appear to encapsulate the Claim and which may give rise to a cause of action under s 97A of the IRA, I am satisfied that the whole of the Claim should not be struck out, although further and better particulars should be provided to ground 3 (as referred to above).
74 However, parts of the Claim and the Particulars should be struck out where I am satisfied, they do not disclose a cause of action referrable to s 97A of the IRA, and I am further satisfied those parts are not salvageable by further amending the Claim or providing ongoing further and better particulars.
75 I am satisfied that the struck-out parts of the Claim and Particulars refer to other possible causes of action, such as worker’s compensation or a public sector breach [of some unknown description]. Alternatively, the struck-out parts do not disclose any reasonable basis for damaging action where, if a complaint or enquiry was made by the claimant, it was to inform another person of their behaviour and how it made the claimant feel. It may be that the claimant is trying to convey the cumulative effect of her complaints or enquiries, but if this is the case, then it ought to be properly particularised, possibly in ground 3, so it can be fairly answered by the respondent. Further, the struck-out parts contain bald assertions with no detail of how these assertions come within s 97A of the IRA.
76 In striking out parts of the Claim and the Particulars, I am cognisant of the early stage of the proceedings and the level of care required before exercising the power. However, the IMC also has an obligation to deal with cases efficiently, economically and expeditiously and to ensure that the IMC’s resources are used as efficiently as possible, particularly in cases where it concludes parts of the Claim, and the Particulars, are so clearly untenable that it could not possibly succeed. In my view, parts of the Claim and the Particulars fall within this type of case.
77 In summary, the following parts of the Claim and Particulars will not be struck out where I am satisfied, they reflect one of the three grounds clarified by the claimant in court.
The Claim (Incident) and Particulars (Part)
The Claim
· Paragraphs 1 to 4
· Paragraph 5, first sentence only
· Paragraph 6, first sentence only
· Paragraph 7, first sentence, part of the second sentence, part of the third sentence, fourth sentence
· Paragraph 8
· Paragraph 9
Ground 1
· Incident 5
· Incident 6, paragraph 39 only
· Incident 15
· Damaging Action under the heading ‘In the Taxation teams’, paragraph (g)
· Part 3
Ground 2
· Incident 8
· Incident 9, paragraph 43 only
· Incident 10, paragraph 49 only
· Incident 11, paragraph 56, last line only and paragraph 60, first and fifth paragraphs only and paragraph 61
· Damaging Action under the heading ‘In the Taxation teams’, paragraphs (b), (c) and (d) only
· Part 5, paragraphs 1 to 3, 5 to 7 and 13
Ground 3
Notwithstanding it will be ordered that the claimant is to provide further and better particulars in relation to ground 3, the following parts of the Claim and Particulars are consistent with this ground:
· Incident 9, paragraphs 44 and 48
· Incident, paragraph 60, last paragraph
· Incident 17
· Damaging Action under the heading ‘In the Taxation teams’, paragraph (a)
78 Schedule II to these reasons is a marked-up version of the Claim and Particulars showing the struck-out parts with the parts of the Claim and Particulars to proceed remaining.
Outcome and orders made
79 The Application will be granted in part and pursuant to reg 5 and reg 7(1)(h) of the Regulations, parts of the Claim and the Particulars will be struck out.
80 Schedule II to these reasons contains the parts of the Claim and Particulars struck out.
81 Consequential programming orders will be made.
82 Schedule III of these reasons are the orders made.





D. SCADDAN
INDUSTRIAL MAGISTRATE



SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] The IMC has the jurisdiction conferred by the IRA and other legislation. Sections 81A and 97A of the IRA confer jurisdiction on the IMC in respect of a claim known as ‘damaging action’ involving an employee and an employer.
[2] For the purposes of s 97A of the IRA, s 97B of the IRA provides the orders the IMC may make, which includes reinstatement of an employee, employment of an employee and compensation for loss or injury suffered as a result of damaging action. In addition, a contravention of s 97A(1) of the IRA is a civil penalty provision for the purposes of s 83E: s 97A(3) of the IRA.
[3] ‘Damaging action’ is defined in s 97 of the IRA, along with the terms ‘employee’ and ‘employer’.
[4] The powers, practice and procedure of the IMC are contained in the Regulations.
Contravention
[5] Contravention of a civil penalty provision may result in a pecuniary penalty; in the case of a body corporate, a penalty of $650,000 if the contravention is a serious penalty or $65,000 if it is not a serious contravention: s 83E(1)(a)(i) and (ii) of the IRA.
Burden and standard of proof
[6] In an application under the IRA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms: It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.
[7] Notably, pursuant to s 97A(2) of the IRA, if it is proved the employer took damaging action against the employee, the employer is then required to prove it did not take damaging action because the employee made a complaint or inquiry.
[8] In the context of an allegation of the breach of a civil penalty provision of the IRA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362:
The seriousness of an 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.


SCHEDULE II: Parts of the Claim and Particulars struck out
1. My full name is Delia Gavril.
2. I am [redacted] years of age (DOB: [redacted]).
3. I currently reside at [redacted].
Employment
4. I commenced employment with Department of Education on 28 February 2022 and the address of work was 151 Royal Street, East Perth.
5. I was hired first in Finance section as a fixed assets officer on a 2 months contract with possible extension. [text struck out]
6. On 31 May 2022 I applied for the payroll officer job within the Department of Education and on the 3 June 2022, I was offered the payroll officer job on merit. [text struck out]
7. Early December 2022 I was successful in winning another contract back in Finance Section as a Tax Support Officer on 1st January 2023. When I took this job it was an initial contract for 2 month with possible extension… [text struck out] Late in January 2023 I received another job offer form another department and my team leader Cheryl Jones extended my contract until 27 Oct 2023 immediately… [text struck out] I had a few discussions with my team leader, Cheryl Jones about the future of this position and my last discussion with her was on the 4th of May 2023 and she promised me at least another extension until the end of the year and then the position is likely to modify so it will include more tasks as a result of the revision process but I definitely have the opportunity to stay on a permanent basis. [text struck out]
8. The following acts, events and circumstances were a breach of Industrial Relations Act 1979 (WA) including breaches of: employee protection provisions set out in Part 6B such as Damaging action because of inquiry or complaint in Section 97 inserted: No. 30 of 2021 s. 61.] and Section 97A inserted: No. 30 of 2021 s. 61.]
9. 97A. Damaging action because of inquiry or complaint
[Heading inserted: No. 30 of 2021 s. 61.]
(1) An employer must not take damaging action against an employee for the reason, or for reasons that include, that the employee is able to make an employment-related inquiry or complaint to the employer or another person.
97. Damaging Action
[Heading inserted: No. 30 of 2021 s. 61.]
damaging action, against an employee, means –
(a) in the case of an employee —
(i) dismissing the employee; or
(ii) altering the employee’s position to the employee’s disadvantage;
(iii) refusing to promote or transfer the employee; or
(iv) otherwise injuring the employee in relation to the employee’s employment with the employer or another person; or
(v) threatening to do anything referred to in subparagraphs (i) to (iv);
and
(b) refusing to employ the prospective employee –
(i) refusing to employ the prospective employee; or
(ii) discriminating against the prospective employee in the terms or conditions on which the employer offers to employ the prospective employee; or
(iii) threatening to do anything referred to in subparagraphs (i) and (ii);
employee includes a prospective employee;
employer includes a former employer or prospective employer.
[Section 97 inserted: No. 30 of 2021 s. 61.]
Incident 1
[Paragraphs 10  15 struck out]
Incident 2
[Paragraphs 16  20 struck out]
Incident 3
[Paragraphs 21  30 struck out]
Incident 4
[Paragraphs 31  32 struck out]
Incident 5
33. On or about mid November 2022 I discovered that I was not being paid leave loading. I addressed this with my team leader in the covid team, (Ben Ren) and he told me that he would resolve this issue for me. On 2 December 2022 I received an email from the manager Sam Mastrolembo, saying that he tried to resolve it, but Work Relations Department advised that they cannot pay me because my contract, was ending on Friday 30 Dec 2022. I could not believe the lack of interest to resolve this, especially when it was Sam’s mistake in the first place as he drafted my contract and also having so much experience in payroll he would have known the effect of the end of the contract. I asked Sam if I could escalate this further. After making him aware that I want to escalate I went to talk to the Union Representative Bill Barnard and soon after I spoke with him, Sam informed me that he resolved it. I felt very upset and unsupported and felt his hostility towards me.
34. On 6 December 2022 I was announced that I was successful in winning another contract for 2 months with possible extension back in the Finance as a Tax Support Officer. Previous to applying to this job I had 3 discussions with Cheryl Jones about the prospect of this job and she explained to me that Tips (the person that was working on this position) was acting on a higher-level position and if she would take that job, this position becomes vacant and as is a permanent role it will be advertised and as I work already on I would have priority. She also told me that the Finance is under revision and I asked her if the tax support officer position it will be affected and she said definitely no.
35. On was very happy to move back to finance as I did very well there and was treated very nice by my colleagues and superiors and never had any difficulties. At that time my team leader was Bill Barnard, Assets/Leasing team leader and the Finance Manager was Charles Maiwasha.
36. When I got this position back in finance, as tax support officer, the manager was Fiona Anning as she returned from acting on a different position during covid period. After I was successful in this job I asked Fiona Anning to have a meeting with her and I wanted to explain to her why I made the decision to move to payroll. I wanted to have this conversation with her because she was very upset when I left and she almost did not want to let me go. In this meeting I explained that has come to my attention that the future of the role I was, was very uncertain as the substantive of this role is very likely to come back and I was encouraged to apply for other jobs. I told her that I regret making this decision as payroll is quite a toxic work place. I did not want to go in details and she was fine with this. She also told me that the Finance is going through revision and there will be plenty opportunities for me to grow. She felt really happy with me coming back and I felt very happy for the promises and also coming back to “my family’, as I used to call the finance team. She also sent me an email to welcome me back in the team.
Incident 6
[Paragraphs 37  38 struck out]
39. On our first pay in February 2023, we were paid the cost-of-living lump sum and from my discussion with Cheryl Jones – team leader taxation level 7, Steve Morriss– accountant taxation level 6 and Kristina Lemut – accountant general ledger level 6, I realized that I had paid taxes as much as a level 6 or 7. This did not seem right and after some discussions with them at that time Cheryl encouraged me to raise a case with payroll which I did. When I received the response for the case I raised with payroll regarding this matter, I was not given a proper explanation that would normally include a calculation. I was told that that everything was calculated correctly. I discussed this with Cheryl, and she was also surprised as to why I was not provided with a detailed calculation of the taxes I paid as this was my right. Cheryl advised me that I should escalate this to the manager which was Sam Mastrolembo.
Incident 7
[Paragraph 40 struck out]
Incident 8
41. On 9 March 2023 I discovered that the Acquisition and Disposal Report for the month of February 2023, that I had completed in early February, had been modified with a different and unfinalized one. I realized that this was done purposely as it was very different from the steps I would usually take and this was not in any way an error in saving the document. This report was done once a month and I had to upload it from another software called Fleetcare. After uploading this report into an excel spreadsheet I had to create another tab into the same spreadsheet where I processed the information from the report uploaded, following specific steps. In the report I found in the sdrive on the 9th of March, for the month of February, there were multiple tabs added in the spreadsheet with information that was wrong and incomplete and in a format that I would have never done myself. As I am a very organised and methodical person, I knew that this was not done by me as I always followed the steps from my notes I took when I had the training. I emailed my colleague Sudhakar Jayarama, the business improvement officer and asked if I could see who made changes to my work. Sudhakar did not reply to my message, but he came personally to my desk to discuss it with me and advised me that it was not possible to see this, but to be on the safe side I could save a backup of my work on the desktop. From that day on I started to save a backup of all my work on my desktop and did not make any further inquiries as I was told is not possible to see who is interfering with my work files. After that day I felt very stressed as I did not know what was happening and who would want to modify my work and why.
Incident 9
[Paragraph 42 struck out]
43. Cheryl asked me to review the Q1 that was processed already by Steve Morriss, the accountant in our team. When I started to review it, I found many days that had been analysed as for business purposes when they were personal purpose, as were days off according to the report implemented by me. I also noticed some errors that the telematics were recording, thanks to this report, by identifying an work address (such as a school) which was far away form the address identified therefore analysing the trip as a work related address, when it was actually not. I notified Cheryl about this too. When I communicated this to her, verbally, Steve was next to her. She then started a discussion with Steve and she sounded a bit frustrated with Steve as he said he knew about this but did not consider it important. She then asked me to email her an example and then she forwarded this concern to the team dealing with the telematics. These mistakes had an impact on the business percentage usage for the respective director’s and impacted the main spreadsheet used for the FBT year end. I verbally communicated this to Cheryl and Steve heard this too.
44. My colleague Emmilia Maunela, which was a senior Tax officer in our team, was due to go to a act on a different position within the department from the 1 May 2023. From the discussions that took place in our weekly team meeting prior 2 weeks to her leaving, I learned that Cheryl had concerns filling this position as it might be possible that they would not find the right person. I then expressed my interest with Cheryl to act on this position until Emilia will be back on the 27th October 2023. Having in mind that I did very well so far and that I was in the team already and learning some of the tasks that Emilia was doing already I believed I could be a very good fit for this temporary opportunity. I was very surprised about Cheryl`s reaction as she denied me this opportunity saying that I still have a lot to learn in my role and the role will require someone with 5 years’ experience in tax environment. Later she gave the position to a colleague Maha from Accounts processing that was a level 2 and to my knowledge she did not have the tax experience requirement she told me I would need for this role and also the accounting qualification that the ad for this position required.
[Paragraphs 45  47 struck out]
48. On 4 May, Cheryl did the performance development assessment with me and Steve as this was due for the entire Finance section. In this meeting I expressed my interest to be trained in more tasks as I felt I could do more. Also, my job description mentions that I was supposed to do work with the GST, but I was never trained for this. I also asked if she was happy with me, and my work and she said she was and she would have let me know if there was something to be addressed therefore, she is happy with me. I asked her again about the future of my position and she told me that she can promise me for now and extension until end of December and then see what Tips is doing in her acting role. She also told me that the position that I was on, the taxation support officer it might become a bit mix with the accounts. She also told me that it may be the case that I will work 3 days for taxation and then 2 days for accounts processing as she had a discussion with Fionna a few days before. I was happy with this perspective of the position as I was happy to learn more, as I asked also in the personal development assessment.
Incident 10
49. On 5 May 2023, as I was revising the car logs I just completed for Q1, I discovered with disbelief, that some of my work analysis of the car logs I had completed recently were deleted and some of it was modified in the Sdrive. I was in shock, and I felt my head spinning and my heart rate going up and felt very hot and sweaty. I could not believe this was happening again. I could clearly see that my work was modified or deleted as I was comparing my files saved on my desktop with the files in the Sdrive at that moment. The logs I revised were in excel spreadsheet and as I advised Cheryl, I did not make any changes to previous work done by Steve or Tips, but I added another tab in the same spreadsheet which I named Reviewed log DG, that contained my work. In some of the logs my tab was deleted, in some logs my tab was modified and in some of them it was replaced with some work done incorrectly.
I had it saved on my desktop, and I started to put it back on the Sdrive immediately thinking that Cheryl needed this asap for the year end and didn’t want to waste time investigating.
[Paragraphs 50  53 struck out]
Incident 11
[Paragraphs 54 - 55 struck out]
56. [Text struck out] … I emailed Cheryl and expressed my concerns about my work being deleted and told her that I felt stressed about this.
[Paragraphs 57  59 struck out]
60. On 12 May, at around 9.30am Fiona called me to meet in a meeting room to discuss. In the beginning of the meeting, she questioned me about the way I was saving my work, and implied that I was not saving it properly and I explained how I save my work. I explained to her that after my discussion with ICT officer they confirmed with me that I was saving my work correctly. It was also confirmed that the only way the files disappear from the Sdrive is only if someone deletes them. Her answer to this was: “What do they know”.
[Text struck out]
At the end of this meeting Fiona told me that I should start to look for another job which for me this was very inappropriate to say and made me feel like I was not wanted anymore because I raised concerns about these problems. It felt like a retaliation because I requested an investigation why my work was modified or deleted.
Just few days before these events, I had a discussion with my team leader about being extended on my position and now I was being told to go look for another job immediately after I raised concerns about my work being deleted. Fionna invited me to look for another job as there might not be opportunities for me there. I felt really disappointed and unsupported and also, I felt like I was fired already.
61. Following this meeting Fiona moved me to Accounts Processing team to help with the year- end flow, while she investigated my computer as she believed that it was something wrong with my computer that`s why my work was disappearing and she might need to buy me new computers. I told her that I do not believe there is anything wrong with my computer as the IT department told me already.
Incident 12
[Paragraphs 62  64 struck out]
Incident 13
[Paragraphs 65  71 struck out]
Incident 15
72. On 20 June I followed up with the payroll regarding my case I raised for overpayment of taxes for the cost-of-living payment I raised in February 2023.
At around 4.30 pm same day, Fiona came to me and asked why Sam Mastrolembo sent the email referred to this matter to her. I was in shock as I could not understand why my personal query relating to my pay will have to be disclosed to my manager as I believe this was a breach of privacy.
I told her that I didn’t know why he sent the email to her. She then asked me what it was about, and I explained that it was because I believe that taxes were not calculated correctly on 2 occasions and I believe there is glitch in the system, and if this is the case maybe this should be looked at. Fiona responded that they know about this glitch and then she left.
73. On 25 June I sent an email to Fiona and explained that I do not wish to move to AP team and and also included a very detailed point summary of our previous discussion on the 20 June. As a response to my email there are a sequence of emails that followed in which Fiona denied my return to tax team saying that she is making the decision and also told me that my contract will not be extended here.
74. Her responses were a clear sign of retaliation against me because I raised concerns about my work being deleted. Me being demoted from a position level 3 to a position level 2 with meaningless tasks to do and also being told that my contract will not going to be extended with the Department after just a few weeks when I was told that I will be extended, constitutes a very serious act of retaliation that was taken against me because I raised concerns about my work being deleted and requesting an inquiry about this.
Incident 16
[Paragraphs 75  77 struck out]
Incident 17
78. On 4 July at 8.39 am, the day after I made inquiries about the procedure to make a complaint I received an email from Fiona, in which she raised concerns about my performance and also she attached me a performance plan for me. She also pointed that she saw me taking regularly personal phone calls, which it probably happened once a day, maybe, and out of respect for my colleagues not to bother them, I was taking the call in the hall. This was very clear to me that she was retaliating against me because I made inquiries about how to make a complaint. Everyone was having personal phone calls and also she never had any concerns about this before. Her complaints about my performance were not justified at all as I was only learning that job and they did not have a formal training process in place. Being forced to move to a meaningless position, because I was not learning what I was promised and being served with a performance plan after only 3 weeks working in that job it shows clearly that she retaliated. Please be reminded that I had previous communication with Fionna about not having enough work to do and asked her to provide me with more training but she denied me this.
79. After I received the email with the performance plan, I felt very sad and lost and could not believe that me raising concerns about my work being deleted and modified, could lead to such devastating consequences for me. I felt, again, bullied, helpless and trapped having no support at all. I really believed that addressing concerns to my manager, an investigation would be made immediately to see what or who has made those changes to my work, but instead I found myself punished and pushed away. Deliberately deleting work files, especially if it involves important information or data, can potentially be considered a breach of various laws in Australia and it was for me it was a shock to see the cascade of adverse action taken against myself because I raised this concern.
[Paragraph 80 struck out]
Incident 18
[Paragraph 81 struck out]
Closing statement:
[Text struck out]
DAMAGING ACTIONS:
193. The meaning of adverse action is provided for in Part 6B section 97 of the of the Act.
194. I suffered the following damaging actions by the Respondent as follows:
In the payroll section:
[Paragraphs (a)  (d) struck out]
In the Taxation team:
(a) My team leader Cheryl Jones refused to give me the opportunity for a promotion to a senior tax officer position within our team, for a short period (4 months), even though I was already performing tasks for that position. Instead, she awarded the position to a colleague who was a level 2 and worked in the Accounts Processing team, that to my knowledge she was lacking the qualifications or experience required for the role that Cheryl informed me that I needed to earn this position. This action is a damaging one, as per Part 6B Division 1, specifically Section 97a (iv) of the Act, as it involves refusing to promote or transfer the employee
(b) While in the Taxation team, I discovered that some of my work files were deleted and modified. Upon making inquiries with the IT department to understand the reason for files disappearing from the shared drive, I was advised that the only way those files would have disappeared is if someone deleted them. When I raised these concerns with my team leader Cheryl Jones, she did express any concerns about this and she did not take any action to investigate this. This constitutes a breach of the Public Sector Management Act 1994
(c) Following me raising concerns about my work being deleted, my team leader Cheryl Jones, ostracized me from seeking further assistance from Sudhakar, whose role was to provide support to any staff facing IT problems. This is a damaging action, as per Part 6B Division 1, specifically Section 97a (iv) of the Act (otherwise injuring the employee in relation to the employee’s employment with the employer or another person).
After I had a meeting with Fiona Anning where I expressed my concern about my work being deleted the following damaging actions were taken against me:
(d) I was asked to move to the Accounts Processing team in a level 2 position, with the assurance that an investigation would be conducted into why my work was being deleted. However, I was never informed about whether any investigation was carried out or the findings thereof. This is a damaging action, as per Part 6B Division 1, specifically Section 97a (ii) of the Act (altering the employee's position to the employee's disadvantage) and also is a breach of the Public Sector Management Act 1994
[Paragraphs (e)  (f) struck out]
(g) My manager, Fiona Anning, denied my request to return to my position as a taxation support officer, as per my contract, obligating me to stay in a level 2 position in Accounts processing without providing me the necessary training. This forced me to remain in a role with no meaningful tasks. This is a damaging action, as per Part 6B Division 1, specifically Section 97a (ii) of the Act (altering the employee’s position to the employee’s disadvantage).
[Paragraph (h) struck out]



FURTHER AND BETTER PARTICULARS

OF CLAIM

CLAIM: M172024

CLAIMANT: DELIA GAVRIL


AND


RESPONDENT: THE DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION:


The claimant was employed as a Fix Asset Officer Level 2 with the respondent on a Fixed Term Contract started 21 February 2022 finished 20 April 2022; in accordance with s64(1)(b) Public Sector Management Act 1994; clause 8 of the Public Service Award 1992 subject to probationary period; Public Sector CSA Agreement 2021; Public Sector Code of Ethics; Staff Conduct and Discipline policy and procedures. (Doc 1)

The claimant was employed as a Payroll Officer Level 3 with the respondent on a Fixed Term Contract started 13 June 2022 finished 30 December 2022; in accordance with s 64(1)(b) Public Sector Management Act 1994; Public Service and Government Officers General Agreement 2017; Public Service Award 1992; Public Sector Management Act 1994; Public Sector Management (General) Regulations 1994; Public Sector Code of Ethics; Performance management Policies; Staff Conduct policy. (Doc 2)

The claimant was employed as a Tax Support Officer for a Fixed Term Contract due to a vacancy, leave/secondment/acting; started 01 January 2023 finished 03 March 2023; then her contract was renew from 03 March 2023 to 27 October 2023; but her last day of work was on the 07 July 2023 she apply to Workers Compensation. The contract is under the Public Sector Management Act 1994; the Public Service Award 1992; Public Sector CSA Agreement 2021; Public Sector Code of Ethic; Employee Performance policy and procedure; Staff Conduct and Discipline policy and Procedures. (Doc 3)


PART 1: Working as a Payroll Officer
[Paragraphs 1  5 struck out]
PART 2: Payroll Officer Renew Contract
[Paragraphs 1  7 struck out]
PART 3: Enquiries about entitlements
Damage Action
1. On or about November 2022 the claimant made a verbal enquiry with Team Leader COVID19 Mr Ben Rer about not being paid leave loading.
[Paragraph 2 struck out]
3. On or about the first week of February 2023 the claimant enquired about her taxes to the Payroll services as she believes that she had overpaid taxes as much as a Level 6-7 officer when she is only Level 3 officer. (Doc 9)
[Paragraphs 4  8 struck out]
PART 4: Enquire about a appropriate seating
[Paragraphs 1  6 struck out]
PART 5: Inquiries and complaints about the Disappearance of Documents
Serious Contravention
1. On 09 March 2023 claimant complaint about the file (February Acquisition and Disposal Report) being deleted or modified from the Sdrive the claimant contacted Business Improvement Officer Sudhakar as he was the person who usually assisted officers; He did not have or provide the claimant with a proper set of standard procedures for her to be follow in regard to the delete files; however as a quick solution he suggested making a copy of future files on the desktop.(Doc 16)
2. On 05 May 2023 the claimant made a complaint to the Manager Cheryl Jones Branch: Finance Services about her work file (Q1, Q2 Car Log Analysis) being deleted and modified. The Manager did not take any action or assigned the adequate authority to investigate the matter, only suggested to contact Steve Morris Account or the ICT department. (Docs 17)
3. On 08 May 2023 the claimant made a complaint to the Manager Cheryl Jones about her file again ( the April Acquisition and Disposal Report) being deleted, modified or just disappeared from the computer for a third and fourth time; and has become a concurrent issue but management has no showed interest in deal with the claimant’s complaints the claimant argues that the management of the finance services had fail to act expeditiously as the files kept disappearing and no solution was given to the claimant to resolve the issue.(Doc 18)
[Paragraph 4 struck out]
5. On 12 May 2023 the claimant made a complaint to Fiona Anning the Manager about the files being deleted or modified. The Manager did not show any interest or willingness to do an investigation; the management did not provide or have a form of protocol to follow under the circumstances; no one seems to have an interest or responsibility in conducting an investigation. The management actions are prejudiced by blaming the claimant without running a proper investigation or providing the claimant’s answers; there was no courtesy, no consideration, and lack sensitivity towards the claimant's complaint. (Doc 20)
6. The Manager Fiona Anning Finance services refused to transfer the claimant to her original position as a Tax Support Officer, as she has been demoted to Accounts Processing services without justification only she was told that ‘she will be better off’ at that position. The claimant could not understand the management position as she was told to “think about it” but she was transferred anyway without any consultation.
7. The claimant send an email to Manager Fiona Anning rejecting the offer of Account Processing Officer Level 2 as by altering the claimant’s position she will be worse off because she was not trained or offered training when she asked, there was no further prospect of a position as usually there is no much work in that department; her contract terms and conditions substantially change to her predicament and under these conditions she felt she would not be able to meet the requirement of the Individual Performance Plan a day after the claimant made the complaint imposed by the Management Fionna Anning jut 3 weeks working for the Account Processing Services. (Docs 21)
[Paragraphs 8  12]
13. The respondent Manager Fiona Anning decided to keep the claimant in Accounts Processing therefore catering and employee’s position to their disadvantage.
[Paragraph 14 struck out]
PART 6: Enquire about workload
[Paragraphs 1  12 struck out]
PART 7: Enquiry about Future Position
[Paragraphs 1  3 struck out]


REMEDIES SOUGHT BY CLAIMANT
1. Pay to the claimant under the Industrial Relations Act 1979 pecuniary and civil penalties and compensation under serious contravention Part 3 Div 2 s 83E(1).
2. Industrial Relations Act 1979 s 97 A Damages Action.
3. Reinstated to the formal position of Tax Support Officer.
4. Pay Workers Compensation for pain and suffering.
5. Pay penalty and interest for damage action claim.
6. Payment of claimant’s entitlement under the Award


SCHEDULE III: Orders
Orders
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (Practice Direction)
Form 20

Court Use Only
Court at Perth
Claim No: M 17 of 2024


Claimant
Name:
Delia Gavril
Address:




Postcode:

Respondent
Attach Form 28 if more than one respondent
Name:
Director General Department of Education, WA
Address:




Postcode:

Name of Industrial Magistrate
Name: D. Scaddan

Orders made by the Court
It is hereby ordered that:
1. The respondent’s application to strike out the claimant’s claim and further and better particulars of claim is granted in part.
2. The following parts of the claimant’s Statement of Claim and Further and Better Particulars will be struck out:
Further and Particulars Lodged on 8 May 2024
Part 1 – all paragraphs
Part 2 – all paragraphs
Part 3 – paragraphs 2, 4-8
Part 4 – all paragraphs
Part 5 – paragraphs 4, 8-12, and 14
Part 6 – all paragraphs
Part 7 – withdrawn by the claimant
Statement of Claim Lodged on 23 February 2024
Paragraph 5 – the sentence commencing, ‘I learned very quick....was acting in a different position.’
Paragraph 6 – the sentence commencing, ‘In this role....work related issues.’
Paragraph 7 – the sentences from ‘but the team leader Cheryl Jones.....and become permanent’ and from ‘because she was very happy....in this position’ and from ‘I was very happy....open more options.’
Paragraphs 10 to 15
Paragraphs 16 to 20
Paragraphs 21 to 30
Paragraphs 31 to 32
Paragraphs 37 and 38
Paragraph 40
Paragraphs 42, 45 to 47
Paragraphs 50 to 53
Paragraphs 54 to 59, save for the sentence in paragraph 56, ‘I emailed Cheryl and expressed my concerns about my work being deleted and told her I felt stressed about this.’
Paragraph 60, the second, third and fourth subparagraphs only
Paragraphs 62 to 64
Paragraphs 65 to 71
Paragraphs 75 to 77
Paragraph 80
Paragraph 81
Closing Statement – all paragraphs
Damaging Action – paragraph 194(a), (b), (c) and (d) under the heading of ‘In the payroll section”, paragraph 194(e), (f) and (h) under the heading of ‘In the Taxation team’.
3. The claimant is to lodge and serve Further and Better Particulars to proposed ground 3 (that being: following the claimant making enquiries and complaints she was deprived of or had a reduced opportunity to be a permanent employee) on or before 5 July 2024.
4. The respondent is to lodge and serve a response to the remaining parts of the Statement of Claim and the Further and Better Particulars (including the Further and Better Particulars referred to in order 3) on or before 26 July 2024.
5. The parties are to provide their unavailable dates for a pre-trial conference (for August 2024) within 14 days of the date of this order.
6. The parties are to attend a pre-trial conference as directed by the Clerk of the Industrial Magistrates Court.

Date of Orders
Date: 13 June 2024

Issue and Seal of Court
Issued by the Clerk of the Court on the 21st day of June 2024.





Clerk of the Court

Industrial Magistrates Court, Level 17, 111 St Georges Terrace, PERTH WA 6000
Telephone: (08) 9420 4467
Website: www.imc.wa.gov.au

[Signatures, stamps and parties’ addresses omitted]