2026 WAIRC 00031
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00031



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 29 OCTOBER 2025, THURSDAY, 30 OCTOBER 2025, FRIDAY, 31 OCTOBER 2025



DELIVERED
:
FRIDAY, 23 JANUARY 2026



FILE NO.
:
M 17 OF 2024



BETWEEN
:
DELIA GAVRIL


CLAIMANT





AND





STATE OF WESTERN AUSTRALIA


RESPONDENT

CatchWords : INDUSTRIAL LAW – Industrial Relations Act 1979 – Allegation of damaging action taken by employer – Whether the complaints relied upon are ‘employmentrelated inquiries or complaints’ – Meaning of ‘complaint’ – Whether the employer took damaging action against the employee – The reasons taken by the employer – Whether the employee suffered loss or injury
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Public Sector Management Act 1994 (WA)
Case(s) referred
to in reasons: : Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17; (2015) 67 AILR 102-332
Hughes v East Metropolitan Health Service [2024] WAIRC 00982; (2024) 104 WAIG 2560
Khiani v Australian Bureau of Statistics [2011] FCAFC 109; (2011) 63 AILR 101-446
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1
Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217
Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8
Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 129 IR 270
Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299
AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 04015; (2001) 81 WAIG 2849
Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986
Stephens v Australian Postal Corporation [2014] FCA 732
Gilmore v Cecil Bros (1996) 76 WAIG 4434
Miller v Minister of Pensions [1947] 2 All ER 372
Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27
Result : The claim is dismissed
Representation:
Claimant : Self-represented
Respondent : Mr J. Carroll (of counsel)



REASONS FOR DECISION
Background
1 Delia Gavril (Ms Gavril) was employed on a series of fixed term contracts by the State of Western Australia pursuant to s 64(1)(b) of the Public Sector Management Act 1994 (WA) (PSMA) at the Department of Education (the Department) located at the Department’s offices at 151 Royal Street, East Perth.
2 The fixed term contracts were maximum term contracts of employment as follows:
(1) The first fixed term contract commenced on 21 February 2022 and ceased on 20 April 2022 as a level 2 public service officer in the position of Fixed Assets Officer (First Contract);
(2) The second fixed term contract commenced on 13 June 2022 and ceased on 30 December 2022 as a level 3 public service officer in the position of Payroll Officer (Second Contract);
(3) The third fixed term contract commenced on 1 January 2023 and ceased on 3 March 2023 as a level 3 public service officer in the position of Tax Support Officer (Third Contract); and
(4) The fourth fixed term contract commenced on 4 March 2023 and ceased on 27 October 2023 as a level 3 public service officer in the position of Tax Support Officer (Fourth Contract). This contract was an extension of the Third Contract.
3 The Second to Fourth Contracts are relevant to these proceedings.
The Claim
4 On 23 February 2024, Ms Gavril lodged a claim against the Department under s 97A(1) of the Industrial Relations Act 1979 WA (IR Act), alleging that the respondent, being the Department, took damaging action against her and sought orders that the Department reinstate her to her former position as a Tax Support Officer; pay compensation for alleged injuries and losses suffered; and pay pecuniary penalties payable to her (the Claim).
5 Section 97A(1) of the IR Act is a civil penalty provision for the purposes of s 83E of the IR Act.
6 The Claim was commenced following Ms Gavril discontinuing a claim, M 138 of 2023, against the Department. M 138 of 2023 was commenced in November 2023, whereupon the Department applied for orders to strike out the claim and for Ms Gavril to file and serve a new statement of claim. Rather than striking out the claim, the Industrial Magistrates Court (IMC or Court) made orders requiring Ms Gavril to amend her statement of claim. Instead of doing so, Ms Gavril discontinued M 138 of 2023 and commenced this Claim, which is generally a restatement of M 138 of 2023.
7 Following a series of interlocutory applications and an appeal to the Full Bench of the Western Australian Industrial Relations Commission, an amended statement of claim was lodged in March 2025 (Amended Claim).
8 On 4 June 2025, by consent of the parties, the respondent was changed to the State of Western Australia.
The Complaints or Employment-Related Inquiries Relied Upon
9 For the remainder of these reasons the relevant communications relied upon by Ms Gavril will be referred to as a ‘complaint’, but this should not be taken to mean that the communication is, in fact, an employment-related inquiry or complaint, unless a finding is made to that effect.
10 Ms Gavril asserts that she made complaints or employment-related inquiries on the following dates:
(1) 3 July 2022, when she raised concerns with Training Coordinator, Lee Wheeler (Mr Wheeler), regarding his alleged discriminatory and bullying behaviour during training classes including:
(a) ignoring her questions;
(b) refusing to provide assistance when she requested it; and
(c) making derogatory comments about her to other training support officers (First Complaint);
(2) 1 August 2022, when she made a ‘formal complaint’ reporting alleged bullying behaviour during a work-related interaction with Supervisor, Anja Tjandra (Ms Tjandra), to her Manager, Salvatore (Sam) Mastrolembo (Mr Mastrolembo), and formally requesting a reassignment to a different supervisor due to ongoing bullying and difficulties during workplace interactions (Second Complaint);
(3) 5 and 10 May 2023, when she made complaints to Team Leader, Cheryl Jones (Ms Jones), and Manager, Fiona Anning (Ms Anning), about work files being deleted or modified from a shared ‘S’ drive (Third and Fourth Complaints);
(4) 12 May 2023, when she made a work-related inquiry to Ms Anning for an investigation into the purported deletion of work files (Fifth Complaint);
(5) 9 June 2023, when she made work-related inquiries to Ms Jones about working from home; workload; work location and her job status, raising concerns about the reassignment to Accounts Processing (Sixth Complaint);
(6) 20 June 2023, when she made a complaint to Mr Mastrolembo about a previous payroll inquiry about the payment of taxation on leave loading and cost of living payment (Seventh Complaint);
(7) 26 June 2023, when she asked Ms Anning for the reasoning behind the decision to reassign her to Accounts Processing until the end of the contract period (Eighth Complaint); and
(8) 3 July 2023, when she inquired with Union Representative, Bill Barnard (Mr Barnard), about the procedure to file a formal workplace complaint (Ninth Complaint).
(collectively referred to as the ‘Complaints’).
The Damaging Actions Alleged
11 Ms Gavril alleges the respondent, via Mr Mastrolembo, took two damaging actions against her:
(1) the first damaging action occurred on 5 September 2022, when Mr Mastrolembo removed her from a ‘meaningful’ role as a Payroll Officer and reassigned her to a ‘menial, unskilled position’ as a COVID-19 Inquiries Officer under the ‘pretext of a temporary four-week reassignment’. Ms Gavril says this reassignment was unlawfully extended to four months without consultation or a fair procedure; and
(2) the second damaging action occurred on 31 August 2022, when she was required to interview for the Payroll Officer role.
(First and Second Alleged Damaging Actions)
12 Ms Gavril says that the First and Second Alleged Damaging Actions were taken for the reason, or reasons that include, the cumulative effect of the First and Second Complaints.
13 Ms Gavril says the First and Second Alleged Damaging Actions stripped her of professional responsibilities and career development opportunities, directly obstructed her ability to progress in her career, and were clear retaliatory actions following her formal workplace complaints.
14 Ms Gavril alleges the respondent, via Ms Anning, took damaging action against her by failing to adopt a formal and fair procedure in demoting her to a lower-level position against her will where she was denied proper training, and left her without career advancement opportunities compared to her previous role as a Tax Support Officer (Third Damaging Action).
15 Ms Gavril claims that the Third Damaging Action was taken for the reason or for reasons that include the Third, Fourth and Fifth Complaints about her work files being deleted or modified and also for making an inquiry for an investigation about this.
16 Ms Gavril alleges the respondent, via Ms Anning, also took damaging action against her on 26 June 2023 by denying her contract extension (Fourth Damaging Action).
17 Ms Gavril claims that the Fourth Damaging Action was taken for the reason, or for reasons that include, the cumulative effect of the Sixth Complaint, inquiring about her workload and job status; the Seventh Complaint, when she lodged a formal complaint regarding issues with her taxes; and the Eighth Complaint, when she made a work-related inquiry seeking an explanation for her removal from the Tax Support Officer role.
18 Ms Gavril alleges the respondent, via Ms Anning, took damaging action against her on 4 July 2023 by emailing her an abusive, unreasonable, and unjustified performance review, despite no prior discussions and training deficiencies (Fifth Damaging Action).
19 Ms Gavril claims that the Fifth Damaging Action was taken for the reason or for reasons that include the Ninth Complaint about how to formally file a complaint.
Orders Sought
20 Ms Gavril seeks the following orders pursuant to s 97B(a) and s 97B(b) of the IR Act:
(1) reinstatement in her former position as a Tax Support officer or other position within the Department on conditions at least as favourable as the conditions on which she was employed immediately before she claimed workers compensation. The reinstatement should be effective from 27 October 2023, being the last date of the Fourth Contract, with any related consequential orders for continuity of entitlements and compensation (including long service leave, annual leave, superannuation, personal leave etc.) Further, the reinstatement should be as a permanent employee without a probationary period;
(2) compensation for economic loss, including lost earnings and career stagnation; and
(3) compensation for non-economic loss, including severe distress, reputational damage, and psychological harm.
21 Ms Gavril also seeks the imposition of a civil pecuniary penalty under s 83E of IR Act, paid to her, due to the serious contraventions and alleged damaging actions taken against her.
22 Ms Gavril also sought any additional relief deemed just and necessary by the Court.
The Response
23 The respondent denies many of the facts comprising the Amended Claim.
24 In respect of each of the Complaints and the First to Fifth Alleged Damaging Actions, the respondent denies:
(a) or does not admit the Complaints are ‘employment-related inquiries or complaints’ Ms Gavril was able to make;
(b) or does not admit the First to Fifth Alleged Damaging Actions constitute damaging action within the meaning of s 97(a) of the IR Act;
(c) any action was taken for the reasons alleged by Ms Gavril; and
(d) Ms Gavril is entitled to the relief sought or any relief at all.
25 The respondent seeks an order Ms Gavril pay the costs of the proceedings, including legal costs.
26 The respondent also objected to contents of the Amended Claim and to parts of Ms Gavril’s evidence on the basis that the contents or the evidence was not relevant to the Amended Claim.
Issues for Determination
27 The principal issues for determination in respect of each of the Complaints and the First to Fifth Alleged Damaging Actions are:
(1) do any of the Complaints relied upon by Ms Gavril amount to ‘employment-related inquiries or complaints’ under s 97A(1) of the IR Act?
(2) do any of the First to Fifth Alleged Damaging Actions constitute ‘damaging action’ as that term is defined under s 97(a) of the IR Act?
(3) if the Complaints amount to ‘employment-related inquiries or complaints’ and the First to Fifth Alleged Damaging Actions constitute ‘damaging action’, did the respondent do so for the reason, or reasons that include, that Ms Gavril made the Complaints (in some cases individually and in other cases, cumulatively)? That is, is there a causal link between the First to Fifth Alleged Damaging Actions and the Complaints?
28 There are factual issues in dispute, including:
(1) When the decisionmakers knew of the Complaints, if at all?
(2) Whether contracts of employment could be extended?
(3) Whether promises were made for the extension of contracts of employment?
(4) The surrounding circumstances of certain decisions.
Legislative Framework
29 Section 97A of the IR Act provides:
97A. Damaging action because of inquiry or complaint
(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.
(2) In any proceedings for a contravention of subsection (1), if it is proved that an employer took the 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.
(3) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of section 83E.
30 Section 97 of the IR Act defines certain terms, and, relevant to the Alleged Damaging Action, damaging action against an employee in paragraph (a) means:
(i) dismissing the employee; or
(ii) altering the employee’s position to the employee’s disadvantage; or
(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).
31 Section 97A of the IR Act is modelled on the general protections provisions under the Fair Work Act 2009 (Cth) (FWA) (and its predecessor legislation). Therefore, Federal case law may assist in the proper construction and application of s 97A. Hughes v East Metropolitan Health Service [2024] WAIRC 982; (2024) 104 WAIG 2560 (Hughes) at [156] to [158].

32 The Full Court of the Federal Court of Australia in Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301 (Alam) at [14] provides a helpful summary of the application of the analogous sections of the FWA, s 361 and s 340, and the relationship between these sections:
(a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute ‘adverse action’ and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];
(b) the party making the allegation that adverse action was taken ‘because’ of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];
(c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a ‘substantial and operative’ reason for the action or if the reasons for the action include the proscribed reason: [Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (Bendigo v Barclay)] at [104] (Gummow and Hayne JJ);
(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];
(e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f) while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];
(g) the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be ‘a weighty consideration and often a determinative consideration’ in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 [(Cummins South Pacific)] at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: [Cummins South Pacific at [116]]; [CFMEU v Anglo Coal] at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; [Cummins South Pacific] at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]-[106];
(h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);
(i) the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 [(Endeavour Coal)] at [32], [47]-[48] (Jessup J); and
(j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J)
33 As stated in Hughes, at [214]:
There is importance in the employee specifying with a degree of precision the reason alleged for the damaging action, notwithstanding the Court is not a court of pleadings where parties often represent themselves. In Monash Health v Singh [2023] FCAFC 166, the Federal Court, at [57], summarised principles about the degree of precision by an employee to identify the ‘action’ taken for a ‘particular reason’ to invoke the reversal of the onus under s 361 of the FWA. In my view, the following principles are apposite to s 97A of the IR Act (there may be others):
· the informality of the Court does not alter the fact that the proceedings are penal in nature where, in part, an employee seeks the imposition of a pecuniary penalty;
· allegations of contravention of s 97A are inherently serious and, as a matter of fairness, such a claim should be ‘pleaded’ with sufficient precision for an employer to know the case against it. Section 97A does not involve a ‘broad inquiry as to whether the [employee] has been subjected to a procedurally or substantively unfair outcome’ (Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48]) where the ‘crucial issue’ is the causal relationship between the alleged damaging action and the reasons or reasons that include why the alleged damaging action was taken;
· this means the reason or the reasons (relevant to the employment-related inquiry or complaint) for the alleged damaging action must be specified in the claim by the employee;
· however, what comprises the reason or reasons alleged may be identified from the filed originating claim and/or supporting statement of claim supplemented by, for example, further and better particulars, written submissions, witness statement by the employee.
(original emphasis)
34 Having regard to the Amended Claim, the type of damaging action Ms Gavril says the respondent took against her in each case is under s 97(a)(ii) of the IR Act, altering her position to her disadvantage. There is possible reference to s 97(a)(iv) of the IR Act, otherwise injuring her in relation to her employment. However, that is by no means clear.
35 Relevant to the Amended Claim, Ms Gavril bears the onus of proving on the balance of probabilities that:
(1) each of the Complaints she said she made or raised were ‘employmentrelated inquiries or complaints’ she was able to make; and
(2) the First to Fifth Alleged Damaging Actions taken by the respondent was ‘damaging action’ within the meaning of s 97(a) of the IR Act.
36 If Ms Gavril proves each of the Complaints she said, made or raised were ‘employment-related inquiries or complaints’ she was able to make and the First to Fifth Alleged Damaging Actions were ‘damaging action’ taken by the respondent against her, it is for the respondent to prove on the balance of probabilities that it did not do so for the reason, or for reasons that include, the fact that Ms Gavril made the Complaints.
37 A claim for damaging action does not entitle Ms Gavril to ‘a broad inquiry as to whether [she] has been subjected to a procedurally or substantively unfair outcome’. Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17; (2015) 67 AILR 102-332 at [48] referred to in Hughes at [82] and [83].

38 Further, as stated by the Full Court of the Federal Court of Australia in Khiani v Australian Bureau of Statistics [2011] FCAFC 109; (2011) 63 AILR 101-446 at [31]: Also referred to in Hughes at [82] and [83].

A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.
39 To that end, the following, while referred to in the Amended Claim and in Ms Gavril’s evidence, is not relevant to the Amended Claim or the issues to be determined by the Court as part of its determination under s 97A of the IR Act:
(a) whether Ms Gavril was, in fact, bullied by Mr Wheeler during training in early July 2022;
(b) whether Ms Gavril was, in fact, bullied by a supervisor on 1 August 2022;
(c) the validity of the selection process undertaken by the Department for the Payroll Officer pool interviews and merit-selection in August 2022;
(d) being informed by a staff member that she failed the job interview and being provided feedback following the interview;
(e) whether Ms Gavril, in fact, did or did not successfully complete tasks in the Tax Support Officer role or whether, in fact, she did or did not initiate streamline processes or made improvements;
(f) the sufficiency or insufficiency of training undertaken or whether Ms Gavril ought to have received more or different training;
(g) the alleged cause of any decline in Ms Gavril’s mental health, if, in fact, it did decline; and
(h) the validity of any performance management program implemented by the Department.
40 The Court will also not undertake an investigation into whether work files were deleted from the Department’s ‘S’ drive.
41 Ms Gavril made submissions to the Court referring to many cases, which the respondent says do not stand for the proposition relied upon by Ms Gavril, contain the incorrect citation or do not exist. The respondent says the Court should proceed with caution before accepting Ms Gavril’s submissions or the cases she relies upon.
42 The respondent outlined examples of the errors in Ms Gavril’s case references. I do not intend to traverse the cases referred to by Ms Gavril where the reference to these cases contain obvious errors and do not assist the Court.
43 While Ms Gavril represented herself in the proceedings, she is required to ensure the accuracy of any submission she makes to the Court, which includes referring the Court to any point of law or case she relies upon.
44 In her closing written submissions, Ms Gavril seeks to expand the Amended Claim and adduce further evidence. By way of example, Ms Gavril made reference to the Seventh Complaint being a breach of ‘the Australian Privacy Principle 6 under the Privacy Act 1988 (Cth)’ and the Seventh Complaint ‘offends the duty of trust and confidence recognised in [reference to a High Court case given]’. Ms Gavril also referred to the ‘escalating nature’ of the Complaints and the respondent’s reckless continuation of damaging action against her.
45 Further, she repeatedly referred to being allegedly denied procedural fairness by the respondent and others, uses the documents tendered into evidence to ‘objectively prove her skill and integrity’ and professes there was ‘continuing victimisation’ of her. This suggests, contrary to her assertions otherwise, Ms Gavril wants to re-litigate issues in the workplace and the Amended Claim is a vehicle for this.
46 The Amended Claim sets out the Complaints and the alleged damaging action. This is the case the respondent is required to meet. It is not open to Ms Gavril to change tack or introduce new ‘claims’ midway through the hearing or in closing submissions, which at best conflate the issues, or at worst mislead the Court.
47 These proceedings are, for the most part, dependent upon the findings of fact made by the Court having regard to the evidence the Court finds credible and reliable. Hyperbolic statements and erroneous submissions made by Ms Gavril do not assist the Court in this task.
Evidence
48 Ms Gavril’s evidence included her witness statement signed on 31 July 2025 with 46 annexures The claimant indexed her annexures using a mixture of numbers of letters and not all were in sequential order. Since there was much duplication of evidence in the parties’ statements, I have referred to the respondent’s annexures where it was clearer to do so. Where the claimant’s annexures are referred to, for clarity, I have used the sequential index numbers rather than the descriptions and labelling used by the claimant.
(Gavril Statement) Exhibit 1 – Witness Statement of Delia Gavril signed on 31 July 2025 with annexures.
and her oral evidence. Numerous documents were also tendered into evidence.
49 The respondent’s evidence included:
(a) Witness statement of Salvatore Mastrolembo signed on 28 August 2025 with annexures SM1 to SM8 (Mastrolembo Statement) Exhibit 108 – Witness Statement of Salvatore Mastrolembo signed on 28 August 2025 with annexures.
and his oral evidence;
(b) Witness statement of Cheryl Jones signed on 29 August 2025 with annexures CJ1 to CJ7 (Jones Statement) Exhibit 109 – Witness Statement of Cheryl Jones signed on 29 August 2025 with annexures.
and her oral evidence; and
(c) Witness statement of Fiona Anning signed on 29 August 2025 with annexures FA1 to FA19 (Anning Statement) Exhibit 110 – Witness Statement of Fiona Anning signed on 29 August 2025 with annexures.
and her oral evidence.
50 Mr Mastrolembo has been the Operations Manager, Payroll since 2008. He is responsible for the operations of payroll for the Department and manages approximately 100 staff. He reports to Manager, Payroll Services who then reports to the Director of Business and Customer Services (BCS). Exhibit 108 at [2] to [4].

51 His first interaction with Ms Gavril was in June 2022 when an initially unidentified person, later identified as Ms Gavril, inquired about a vacant position in Payroll. Exhibit 108 at [5] to [7].
Mr Mastrolembo later offered Ms Gavril the Second Contract.
52 Ms Jones has been Accounts Processing and Taxation Team Leader since March 2025. Prior to this she was the Taxation Team Leader since 2018. She is responsible for overseeing accounts processing and taxation, including accounts payable; accounts receivable; Goods and Services Tax; Fringe Benefit Tax; Pay As You Go and other functions. She reports to Manager, Finance Services, Ms Anning. Exhibit 109 at [2] to [6].

53 Her first dealing with Ms Gavril was in January 2023 when Ms Gavril commenced as a level 3 Tax Support Officer. Ms Jones offered Ms Gavril the Third and Fourth Contracts.
54 Ms Anning currently holds the position of Manager, Finance Services. She is responsible for leading and managing the finance services team for the Department. She reports to the Director, BCS. Exhibit 110 at [1] to [4].

55 Ms Anning first interacted with Ms Gavril in May 2022 when she was employed as a level 2, Fixed Assets Officer on the First Contract. She had further interactions with Ms Gavril following Ms Gavril’s appointments under the Second, Third and Fourth Contracts. Exhibit 110 at [7] and ongoing.

Undisputed Facts
56 There are some facts which are not in dispute between the parties. Alternatively, there is uncontroverted evidence I consider to be reliable, and it is unnecessary to traverse that evidence in detail. Where possible I will discuss the evidence based on the issues raised rather than merely recite the witness’s evidence.
57 Ms Gavril was first employed pursuant to the First Contract, where she acknowledged there was no obligation on either party to enter into any further employment arrangement. Exhibit 1 at annexure 1 (February 2022 emails); and Exhibit 110 at FA5.

58 Ms Gavril was appointed from the level 2 Accounts Processing pool following an advertisement and selection process.
59 The First Contract was extended in HRMIS, the Department’s payroll system, to 30 June 2022. No written contract was provided for that extension. Exhibit 110 at [12].

60 On 10 June 2022, Ms Gavril signed the Second Contract. Exhibit 1 annexure 5 (letter from Mr Mastrolembo to Ms Gavril dated 9 June 2022); and Exhibit 108 at SM3.

61 In signing the Second Contract, Ms Gavril acknowledged the position was for a fixed term with no obligation on either party, including the respondent or the Department, to enter into any other further employment arrangement.
62 On 1 July 2022, Ms Gavril emailed Mr Mastrolembo about a conversation he purportedly had with another staff member regarding the training she was undertaking. Ms Gavril reassured Mr Mastrolembo that she was not having an issue with the training, and she was dealing with ‘issues [she was] facing in a different way’. She expressly told Mr Mastrolembo that she preferred not to discuss any issues with him at this stage. Exhibit 1 at annexure 6 (emails dated 1 July 2022).

63 Shortly after, Mr Mastrolembo emailed Ms Gavril inviting her to come and see him at any time if there was anything that was concerning or upsetting her. Exhibit 1 at annexure 6.

64 Ms Gavril did not do so.
First Complaint
65 On 3 July 2022, Ms Gavril sent an email to Mr Wheeler as follows: Exhibit 1 at annexure 7 (email dated 3 July 2022).

Hello Lee,
I decided to use the way of writing as I can express my thought and felling's [sic] better in this way. After our brief discussion on Friday before, lunch time, when you asked me if I still struggle, I realized that you have the impression that I am struggling with the content of the training. I wanted to let you know that this is not the case at all, contrary I quite enjoy this and I find it very interesting. The only thig I am struggling is the level of noise in the class when we have to work, as for me is quite debilitating and slows me down in my work.
Also, I would like to let you know how sad and left out I felt when you did not want to repeat what you have showed the class while I was at the bathroom during the break time, on Wednesday. You have done this in the past for everyone missing out information or even waiting for people to come in the class, even though they were late for the class in the morning, so they can hear what you have to say but you did not do it for [me], even though I asked. This is making me feel very nervous and stressed when I am coming to the class or if I have to ask for help or questions. There were many occasions when you were checking with everyone individually, if they are doing ok while doing practice but you did not ask me at all.
Hope you consider my concerns and I look forward to continue [sic] the training with you for this role!
Second Complaint
66 On 1 August 2022, Ms Gavril sent Mr Mastrolembo an email requesting to meet with him. Mr Mastrolembo met with Ms Gavril where she made the Second Complaint informing him of alleged behaviours by a supervisor, Ms Tjandra, which Ms Gavril describes in the Amended Claim as ‘bullying’ and ‘inappropriate managerial conduct’. Ms Gavril requested to be moved to another team and be supervised by another supervisor. Exhibit 1 at [18] to [20] and annexure 8 (emails between Ms Gavril and Mr Mastrolembo dated 1 August 2022).

67 Mr Mastrolembo made enquiries with Ms Tjandra about the issue raised by Ms Gavril. He decided to move Ms Gavril to the other team, although this was not because he considered there had been any inappropriate behaviour by Ms Tjandra, but he thought there might be a ‘clash of personalities’ and this would accommodate Ms Gavril’s request. Exhibit 108 [22] to [29].

68 On 1 August 2022 at 7.14 pm, an email was sent from a generic central services email address by the Department advising of a short delay in the shortlisting process for the Payroll Officer pool selection process. Queries were to be directed to Mr Mastrolembo as a contact person. Exhibit 1 at annexure 10.

69 On 5 August 2022, Ms Gavril emailed Mr Mastrolembo asking what this email meant. It was coincidence that it happened to be sent on the same day as Ms Gavril met with Mr Mastrolembo. Exhibit 1 at annexure 10.

70 On or around 31 August 2022, Ms Gavril interviewed for the Payroll Officer pool. Exhibit 1 at [30].
She was an unsuccessful applicant for the pool position.
71 In or around November 2022, the Department advertised to fill a fixed term vacancy for the position of level 3 Tax Support Officer. The position was advertised on the Jobs WA website, and the position was open to both internal and external applicants. Exhibit 110 at [16] and Exhibit 1 at annexure 15 (emails dated 28 and 29 November 2022).

72 In or around 28 November 2022, Ms Gavril made enquiries with Ms Jones about the level 3 Tax Support Officer position. Ms Jones emailed Ms Gavril informing her that the position ‘should be advertised today, for a period of two months with possible extension’. Exhibit 1 at annexure 14 (email from Ms Jones to Ms Gavril on 28 November 2022).

73 Ms Gavril was the successful applicant for the position and signed the Third Contract. Ms Gavril signed the Third Contract where she acknowledged that this contract was fixed term for two months with ‘possible extension’. Exhibit 110 at FA7.
However, the Third Contract also acknowledged that following the expiration of ‘this fixed term contract there is no obligation on either party to enter into any further employment arrangement’. Exhibit 110 at FA7.

74 At some point, prior to 4 March 2023, Ms Anning became aware that Ms Jones had extended the Third Contract without her approval. Ms Jones did not have delegated authority to extend the Third Contract, although Ms Anning accepted that had approval been obtained, she would have extended the Third Contract. Exhibit 110 at [21].

75 The Third Contract was extended to 27 October 2023, becoming the Fourth Contract. Exhibit 110 at [23] to [24] and FA9.
The reason for the extension was to cover the substantive position holder’s ongoing secondment in another position. Exhibit 110 at [22].
This was the only term of the Third Contract that was varied.
Third Complaint
76 On 5 May 2023, Ms Jones was working from home.
77 At 12.52 pm, in response to an email from Ms Jones (that was also sent to another colleague, Steven Morriss (Mr Morriss)) asking how Ms Gavril and Mr Morriss were going today, what Ms Gavril was working on and informing Ms Gavril that she was going to email her some tasks soon, Ms Gavril replied, making the Third Complaint, in an email as follows: Exhibit 109 at CJ5.

Hi Cheryl,
For now I am saving all my work on the desktop as the other day something very strange happened to my computer and all the work I have done disappeared. I called Sudhakar to have a look and he could see that it was some application running in the background that was deleting the work.
So from now on I will need to save everything on my desktop.
78 At 1.35 pm, Ms Jones emailed Ms Gavril requesting Ms Gavril to email Ms Jones what she was working on today. She also informed Ms Gavril that she was waiting on a response to the email Ms Jones had sent Ms Gavril about saving reports in the correct folder. Ms Jones said she was accessing the ‘S’ drive without any problems and asked Ms Gavril where she was saving her work. Exhibit 109 at CJ5.

79 At 2.06 pm, Ms Gavril emailed Ms Jones stating that she was saving her work to her desktop as she was advised to do, and that Ms Jones could contact ‘Sudhakar’ to confirm that had happened. Exhibit 109 at CJ5.

80 On 8 May 2023, there was a series of emails between Ms Jones and Ms Gavril in which Ms Jones tells Ms Gavril that ‘Sudhakar’ did not tell Ms Gavril to save to her desktop, Ms Gavril tells Ms Jones that she is stressed about the situation and she is being accused of lying, and Ms Jones tells Ms Gavril not to disturb ‘Sudhakar’ and explains how to ‘save as’ documents. Ms Gavril continues to dispute what has happened and informs Ms Jones that it is beneficial for work to be saved to her desktop. Exhibit 109 at CJ5.

81 In the meantime, Ms Jones informed Mr Morriss that she is concerned about the loss of files from the ‘S’ drive, and Ms Gavril needs to report issues to him or Ms Jones. Exhibit 109 at CJ4.

82 Ms Jones then requests Mr Morriss to see what the issue is with Ms Gavril’s computer. On 8 May 2023 at 11.36 am, Mr Morriss reported back to Ms Jones that Ms Gavril did not appear to understand the ‘save as’ function and was saving work to two different locations on the computer and that she had lost information from two to three hours work by not saving correctly. He further reported Ms Gavril was unable to accept that her method was inefficient and risked losing information in the future. Exhibit 109 at CJ4.

83 Shortly after, Ms Jones requested advice from Mr Morriss on how to deal with the situation, and Mr Morriss reported that he felt bad about ‘Sudhakar’ being used as ‘IT support’. Exhibit 109 at CJ4.

Fourth Complaint
84 The Fourth Complaint was sent by email on 10 May 2023 from Ms Gavril to Ms Jones at 2.30 pm in response to Ms Jones allocating work to Ms Gavril. Ms Gavril says she has been experiencing major issues with her work disappearing from the ‘S’ drive and explains what actions she took as well as interactions with ICT.
85 On 9 or 10 May 2023, Ms Jones spoke with Ms Anning. Ms Anning suggested moving Ms Gavril into Accounts Processing and on 10 May 2023, Ms Jones relayed this information to Mr Morriss stating, ‘so we can work on finalising the return for 2023’. Exhibit 20 (email from Ms Jones to Mr Morriss dated 10 May 2023 at 6.29 pm).

86 On or around 12 May 2023, Ms Gavril requested to meet with Ms Anning. Ms Anning made handwritten notes of the meeting which she later typed up. Exhibit 110 at FA10 and FA11.

87 During this meeting, Ms Anning asked Ms Gavril to explain how she saved documents to the computer; asked how she was doing more generally; and about the possibility of moving to Accounts Processing. Exhibit 110 at [31] and FA10 and FA11.

Fifth Complaint
88 The Fifth Complaint occurred during the 12 May 2023 meeting, where Ms Gavril says she asked Ms Anning to conduct an investigation into the alleged deleting of her work files. Exhibit 1 at [56].

89 Following this meeting, Ms Anning sent an email to Ms Gavril and others informing them that from 15 May 2023, Ms Gavril would relocate to be near another staff member so that Ms Gavril could train in Accounts Processing. Exhibit 110 at FA12.

90 On 26 May 2023, Ms Gavril emailed Ms Anning requesting training in other areas because Accounts Processing was ‘a bit quiet’. In summary, Ms Anning responded that it was best for Ms Gavril to return to ‘Tax’ because other teams were not able to train her, if Accounts Processing needed her again, she could return, and there might be training available in the new year. Exhibit 110 at [49] to [51] and Exhibit 1 at annexure 36 (email dated 26 May 2023 from Ms Anning).

91 The reality was that Ms Gavril remained seated in Accounts Processing but assisted with some of the tax logbook work provided by Ms Jones. Exhibit 110 at [50].

Sixth Complaint
92 On 9 June 2023, in response to a request by Ms Jones to update her on the work Ms Gavril was working on, Ms Gavril summarised the task she had completed and also stated: Exhibit 1 at annexure 38 (Email dated 9 June 2023 from Ms Gavril at 9.17 am).

I would like to mention here that I stopped working for Taxation since 15 June 2024 [sic], as per your discussions with Fiona to train and help in [Accounts Processing], then I was sick for a few days.
Also, Fiona told me that she has discussed with you today to ask you to allow me to stay in [Accounts Processing] as they need help as they are short of staff.
I would really appreciate to have clear instructions [sic] in what is expected from me in terms of what days I work in [Accounts Processing] and what days I work in Taxation as it can become stressful for me not knowing this.
Also, is it possible please, to make arrangements for me to work from home one day per week as everybody else? [sic]
93 This email prompted Ms Anning and Ms Jones to speak with Ms Gavril in person. Ms Gavril walked away from them and sent an email on the same day at 11.26 am informing Ms Anning and Ms Jones to only communicate with her by email. Exhibit 110 at FA14 and Exhibit 1 at [63].

94 After receiving this email, Ms Anning went to see Ms Gavril and arranged for her to be conveyed to hospital. Exhibit 110 at [56] to [59]

95 On 12 June 2023, following enquires made by Ms Anning, Ms Gavril responded that she was unfit for work until 20 June 2023. Exhibit 110 at [61].

96 On 19 June 2023, Ms Anning made enquiries with Ms Gavril about her return to work. Exhibit 110 at [62].

Seventh Complaint
97 On 20 June 2023, Ms Gavril returned to work and Ms Anning requested a meeting with her and a support person. Mr Barnard attended the meeting as a support person and witness. In the meeting, Ms Anning informed Ms Gavril of some of the performance issues reported to her. Ms Anning also informed Ms Gavril that she would remain in Accounts Processing until 30 June 2023 and the Department would honour the Fourth Contract (in a level 3 position) with meaningful work, but the Department would not extend her contract beyond the expiry date of the Fourth Contract. Exhibit 110 at [59], [64] to [67].

98 Ms Gavril asked if she could work from home and Ms Anning declined her request based on the issues identified during the meeting. Ms Anning said that if things changed, the situation could be revisited. During the meeting, Ms Gavril indicated that Ms Jones had ‘promised her a contract extension to December 2023’. Ms Anning checked with Ms Jones as to whether any such ‘promise’ had been made.
99 After the meeting at 2.14 pm, Ms Anning sent an email to Ms Gavril summarising the points raised stating the key dot points from the meeting: Exhibit 110 at FA15 at page 62.

· Cheryl advises me there is currently not enough work to do in the tax role and the current team has it covered. [Fringe benefits tax] is over for another year.
· From my observations I do not feel it is in your best interests to return to the tax team.
· Your current contract is to 27/10/23.
· At this point, after this date your contract is unable to be extended any further.
· You will remain in [Accounts Processing] until at least 30 June 2023. I will honour your contract and provided [sic] meaningful work to do.
· If requested, I can organise further one on one training with [Accounts Processing]. You will confirm if this is required after you have thought about it.
100 On 20 June 2023, Ms Gavril says she escalated her previous enquiry made in February 2023 to Payroll Services where she says she overpaid taxation on annual leave loading and cost of living payment. Exhibit 1 at [69].

101 On 21 June 2023, Ms Gavril sent an email to Ms Anning saying she had a headache and would not be attending work. Ms Gavril returned to work on 22 June 2023.
102 Related to her enquiry about the alleged overpaid taxes, on 22 June 2023, Ms Gavril sent an email to a manager in Payroll Services, copied to Mr Mastrolembo, requesting clarification and an explanation for the calculation. She also states: Exhibit 1 at annexure 41 (email dated 22 June 2023).

On Tuesday evening, Fiona Anning, my Finance manager, approached me about this issue telling me that Sam Mastrolembo has forwarded my email to her and I explained to her as well about this situation and she told me that you are aware of this glitch.
103 On 26 June 2023, Ms Gavril sent an email to Ms Anning advising that she did not agree with the suggestion of moving her to the Accounts Processing team beyond 30 June 2023 and that she wanted to remain in the Tax team. She also referred to her own recollections of the meeting. Exhibit 110 at FA15 at pages 60 to 61; and Exhibit 1 at annexure 39 (email dated 26 June 2023 from Ms Gavril to Ms Anning at 12.14 pm).

104 This email prompted some further email conversations, where Ms Anning acknowledged Ms Gavril’s email and informed Ms Gavril that she would not be returning to the Tax team before the end of the Fourth Contract, she would be given meaningful work to do in Finance Services or the wider BCS until the expiry date, and that the Fourth Contract would not be extended. Exhibit 1 at annexure 39 (email dated 26 June 2023 from Ms Anning to Ms Gavril at 12:29 pm); and Exhibit 110 at FA15.

Eighth Complaint
105 Ms Gavril further responded requesting she be informed why the Fourth Contract would not be extended. Exhibit 1 at annexure 39 (email dated 26 June 2023 from Ms Gavril to Ms Anning at 1:22 pm); and Exhibit 110 at FA15.

106 On 26 June 2023 at 4.57 pm, Ms Anning emailed Ms Gavril and stated: Exhibit 110 at FA15 at page 57.

Your current contract was to 4/3/23 and then extended to 27/10/23.
The merit process was for a period to 4/3/23 with possible extension. Given an extension has already been granted another process would be required should we have a vacancy in the tax support officer role.
Any other vacancies require a process under current RSA Guidelines. Depending on what happens with our current staffing will depend on whether there are any vacancies and how we fill them. I have explained our current finance services review and that we are not filling any roles permanently in our structure to allow flexibility in creating new roles. This is planned to be completed by December 23 pending other priorities.
I have been very honest with you about this and I am hoping you take this opportunity to be applying for roles prior to your end of contract. I don’t want there to be any expectation of a role within [Finance Services] and encourage you to be applying for other roles to secure yourself a contract of employment. I hope you are able to gain permanent employment but unfortunately for the foreseeable future that won’t be with us.
107 On 28 June 2023, a staff member from Payroll Services responded to Ms Gavril advising that the issue about the alleged overpayment of taxation had been investigated with her managers, Ms Anning and Ms Jones, which had been contacted so Payroll Services could understand the context in which the issue had been raised. Exhibit 1 at annexure 41 (emails dated 22 and 28 June 2023 between Ms Gavril and Payroll Services).

108 On 30 June 2023, Ms Gavril did not attend work and did not inform anyone to say that she was not attending work. Ms Gavril informed Ms Anning that she had sent an email, although Ms Anning did not receive any email from Ms Gavril. Exhibit 110 at [76].

Ninth Complaint
109 On 3 July 2023, Ms Gavril sent an email to Mr Barnard requesting him to advise her of the procedure of lodging a complaint, namely, for an email address and person to address the complaint towards. Exhibit 1 at annexure 45 (Email chain between Ms Gavril and Mr Barnard).
Mr Barnard responded to Ms Gavril copying Labour Relations into the email by mistake. Exhibit 1 at annexure 45 (3 July 2023 email from Mr Barnard to Ms Gavril at 4.18 pm).

110 On 4 July 2023, Ms Anning sent an email to Ms Gavril, noting Ms Gavril’s request for communication by email. Ms Anning observes some of the issues with respect to the quality of Ms Gavril’s work and attaches a Performance Development Plan for the remainder of Ms Gavril’s time in Accounts Processing. Exhibit 1 at annexure 46 (4 July 2023 email from Ms Anning to Ms Gavril at 8.39 am); and Exhibit 110 at FA16.

Facts in Dispute
Assessment of the Evidence
111 In her oral evidence, Ms Gavril was defensive and evasive at times where she seemed to anticipate the effect her evidence might have on her case. Ms Gavril was more prone to changing her evidence as a result and often gave self-serving evidence. Ms Gavril was selective in her evidence, and it did not, at times, accord with the more objective evidence contained in contemporaneous records, such as emails. The effect of this is that Ms Gavril’s evidence was less reliable in determining the facts in dispute.
112 The respondent’s witnesses did not change their evidence and were not self-serving, albeit from time to time they also tried to anticipate what might lay ahead. However, the respondent’s witness evidence was consistent with contemporaneous records and, therefore, was more reliable in determining the facts in dispute. Where conflicts arose between witness accounts, I have generally given greater weight to evidence supported by contemporaneous records, as a more reliable basis for determining disputed facts.
Was Mr Mastrolembo Aware of the First Complaint?
113 On Ms Gavril’s evidence, the first and only email sent by her to Mr Mastrolembo alluding to some unknown issue in training was on 1 July 2022. Mr Mastrolembo followed up this email with an offer to discuss the issue, which, on the evidence, was not taken up by Ms Gavril. To the extent Mr Mastrolembo had any notion of what Ms Gavril may be referring to, this was from a conversation with another staff member, which prompted Ms Gavril to reassure Mr Mastrolembo that there was no issue.
114 The next email regarding the First Complaint was the email sent to Mr Wheeler on 3 July 2022. There is no evidence that Mr Mastrolembo was aware of this email or its contents.
115 Following the First Complaint, the next relevant communication with Mr Mastrolembo was on 1 August 2022.
116 I find that Mr Mastrolembo was not aware of the First Complaint.
Was an Extension to the Second Contract Possible?
117 Permeating through the Amended Claim is Ms Gavril’s grievance that she would have either had further contract extensions or been engaged as a permanent public servant, notwithstanding the only alleged damaging action of this character is the Fourth Alleged Damaging Action. In the Amended Claim, Ms Gavril refers to the respondent failing to appoint her to a pool position following an interview, which was communicated to her on 19 September 2022. This communication is not part of the Amended Claim and forms no aspect of any alleged damaging action.
118 For the following reasons, there was no possible extension to the Second Contract.
119 On 3 June 2022, following a meeting with Ms Gavril on the same day, Mr Mastrolembo informed her in an email that her start date was 13 June 2022 with a six-month contract and a ‘recruitment process being finalised during this time’. Exhibit 1 at annexure 4 (email dated 3 June 2022 from Mr Mastrolembo to Ms Gavril at 2:32 pm).

120 Ms Gavril acknowledged the position was a six-month contract. Exhibit 1 at annexure 4 (email dated 3 June 2022 from Ms Gavril to Arif Ahmed at 2.08 pm).

121 Ms Gavril signed the Second Contract on 10 June 2022 which expressly stated it was fixed term contract with an end date of 30 December 2022. Further, Ms Gavril acknowledged that following the expiration of the Second Fixed Term Contract there was no obligation on either party to enter into any further employment arrangement. Exhibit 108 at SM3.

122 Mr Mastrolembo’s evidence is that while he was able to ‘tap’ applicants for a six-month fixed term contract without a merit-selection process, there was no possibility of this occurring again (consistent with his email dated 3 June 2022). Further, all permanent vacant Payroll Officer positions were required to be advertised separately and required merit selection. Mr Mastrolembo’s evidence was that any extension to the Second Contract required a merit selection process to the Payroll Officer pool, which was advertised and Ms Gavril applied for. She was not successful. Exhibit 108 at [32] to [39] and SM5 to SM8.
I accept Mr Mastrolembo’s evidence.
123 Therefore, there was no possibility of an extension to the Second Contract. Ms Gavril was required to apply to the Payroll Officer pool for any future position and undertake the merit-selection process.
Did Ms Jones ‘Promise’ an Extension to the Third Fixed Term Contract?
124 Ms Gavril states that during a performance development plan meeting with Ms Jones on 4 May 2023, she asked about the Third Contract. Ms Gavril states Ms Jones told her that ‘she can promise me at least an extension of my contract until December 2023 then will see further depending on what Tips ‘Tips’ is the nickname of the substantive position holder of level 3 Tax Support Officer at the time.
is doing in her acting role’. (emphasis added) Exhibit 1 at [49].

125 In cross-examination, Ms Gavril gave inconsistent evidence regarding the words she says Ms Jones used. Ms Gavril said Ms Jones ‘promised’, then she said there were no words of ‘promise’ and she did not quote the words verbatim thinking the use of the word ‘promise’ did not matter. ts 80 to 81.
When confronted, and agreeing, with the proposition that the substantive position holder’s future situation was not known in May 2023 (that is, the substantive position holder was acting in another position until 27 October 2023), ts 81 to 82.
Ms Gavril double-downed on the purported promise of an extension to the end of December 2023 she says was made by Ms Jones, saying that she would instead get ‘priority’ to get permanency. ts 87.

126 Ms Jones denies making any ‘promise’ of an extension to December 2023. Ms Jones says that Ms Gavril continually asked about being made a permanent employee to which Ms Jones responded that the level 3 Tax Support Officer position was not vacant and if it became vacant, she would need to apply for the vacant position. Exhibit 109 at [24].

127 Further, Ms Jones said she did not recall her exact words to Ms Gavril, but they would have been along the lines of ‘if the substantive occupant of the position was extended to December, then Ms Gavril may also be extended based on performance’. Exhibit 109 at [25].

128 The documents relied upon by Ms Gavril do not wholly support her evidence. Ms Jones signed the performance development plan on 28 April 2023. Ms Gavril counter-signed the performance development plan on 16 May 2023. Exhibit 109 at CJ3.
There is no communication about any promise of an extension on or around those times.
129 I find that Ms Jones did not make any ‘promise’ for an extension of the Third Contract on 4 May 2023. Firstly, Ms Jones did not know what the substantive position holder’s future situation was, and, therefore, was in no position to ‘promise’ anything past 27 October 2023. Second, Ms Gavril’s evidence was inconsistent in relation to the words allegedly used by Ms Jones. Third, given the relative importance of permanency or an extension to Ms Gavril, it is likely she would have committed that position to writing. Four, it is more likely the conversation was as stated by Ms Jones, which was consistent with what was known at the time.
What was the Content of the Conversation with Ms Anning on 12 May 2023?
130 Ms Gavril states that on 12 May 2023 when she met with Ms Anning regarding the alleged deletion of files from her work computer, Ms Anning made the following comments to her:
(a) in dismissing Ms Gavril’s concerns that someone may be deleting her work files and suggesting that anxiety may be clouding Ms Gavril’s judgment: Exhibit 1 at [57].

What do they know?
(b) when asked about how she was getting along with the Payroll staff: Exhibit 1 at [57].

I want to see if you have the same problems as you have here.
(c) after Ms Gavril ‘briefly explained the issues [she] had with [Mr Mastrolembo] regarding the leave loading and difficulties with [her] team leader: Exhibit 1 at [58].

Young people catch on faster than older people. That is why payroll prefers younger people.
(d) after Ms Gavril asked Ms Anning for an investigation into her work being deleted, Ms Anning allegedly told Ms Gavril to look for another job as it ‘is [an] employee market out there.’ Exhibit 1 at [58].

131 Ms Gavril refers to her ‘contemporaneous notes’ in support. Exhibit 1 at annexure 33 (email dated 26 June 2023 to herself).
Ms Gavril’s purported contemporaneous note is, in fact, not contemporaneous but is an email to herself dated 26 June 2023. There are inaccuracies in this email as it relates to the meeting with Ms Anning, including the date of the meeting which she records as 15 May 2023.
132 Ms Anning states that on around 12 May 2023 she made handwritten notes during a meeting with Ms Gavril, which she typed up shortly after the meeting. Exhibit 110 at FA10 and FA11.

133 Based on her handwritten notes and recollection of the content of the meeting, Ms Anning says that the meeting was requested by Ms Gavril and concerned the alleged deletion of work files from her computer. During the meeting, Ms Anning asked Ms Gavril to explain how she saved her work, and following this meeting she formed the view that Ms Gavril was saving the work incorrectly. Exhibit 110 at [31].

134 Ms Anning also asked Ms Gavril about how she was doing generally and discussed with her a move to Accounts Processing. Ms Anning explains her reasons for making this suggestion. Ms Anning stated Ms Gavril said she was applying for other roles and Ms Anning supported her in doing so, because there was no guarantee of an extension of the Fourth Contract where the substantive position holder’s future situation was unknown. Exhibit 110 at [32] and [33].

135 After making enquiries with the ICT department, Ms Anning ‘closed out’ her conversation with Ms Gavril informing her that she could assist with additional training for document control and saving her work. Ms Gavril rebuffed her suggestion. Exhibit 110 at [36] to [38].

136 Following this meeting, on 15 May 2023, Ms Anning emailed Ms Gavril, Mr Morriss and Ms Jones informing them of Ms Gavril’s move to Accounts Processing and the reasons for the move. Exhibit 110 at FA12.

137 I do not accept Ms Gavril’s evidence about the comments she says were made by Ms Anning on 12 May 2023. As already stated, Ms Gavril’s evidence is not wholly reliable and she often recreated information to support her case, even where it was contrary to objective evidence.
138 Ms Anning’s evidence is supported by handwritten notes made by her on 12 May 2023, typed up one or two days later and consistent with an email sent on 15 May 2023 to Ms Gavril and others.
139 Therefore, I accept the content of the conversation between Ms Anning and Ms Gavril is as recorded in the handwritten note made by Ms Anning on 12 May 2023 as explained in her evidence.
The Circumstances of Ms Jones Purporting to Terminate the Fourth Contract
140 On or around 15 June 2023, Ms Jones admitted to drafting an email to Ms Gavril purporting to terminate the Fourth Contract. This email was recalled by Ms Jones before Ms Gavril received it and the circumstances of the email was not known to Ms Gavril until after legal proceedings were commenced.
141 In the Jones Statement, Ms Jones admitted she ‘jumped the gun’ in purporting to terminate the Fourth Contract. Her reasons for doing so, included that she was concerned Ms Gavril would return to the Tax team and Ms Gavril was unable to perform the requirements of the position, the relationship between Ms Gavril and Ms Jones’ team was ‘untenable’, and she was frustrated with the time taken to get advice from Labour Relations. Exhibit 109 at [44] to [47] and Exhibit 110 at FA19.

142 Ms Jones erroneously thought she could rely on the provisions in the ‘Award’ to terminate Ms Gavril’s employment. Exhibit 109 at [46].
However, Ms Jones stated she did not have a role in deciding not to offer Ms Gavril any further contracts of employment after the expiry of the Fourth Contract. Exhibit 109 at [48].

143 In response to the email drafted by Ms Jones, on 15 June 2023, Ms Anning sought advice from Labour Relations. Exhibit 105 – email from Ms Anning to Labour Relations dated 15 June 2023.

144 The recalling of the email by Ms Jones was in response to Ms Anning’s direction after advice from Labour Relations. Exhibit 105 – email from Ms Anning to Ms Jones dated 15 June 2023.

145 Leading up to Ms Jones’s purported termination of the Fourth Contract, on 15 June 2023, Ms Jones sent an email to Ms Anning and Alison Skeen, Director of Business and Customer Services (Ms Skeen), informing them of the circumstances leading to the Fourth Contract. Consistent with the Jones Statement, Ms Jones says: Exhibit 110 at FA19 at page 79.

The reason I submitted a Movement Advice in HRMIS to extend Delia was because the substantive occupant of the Tax Support Officer position (Tips) was extended for acting in the Financial Reporting branch to 27 October 2023 and being close to the end of the FBT year it was not practical to readvertise the position.
146 Ms Jones then goes into detail about why she says Ms Gavril is not suitable for the Tax Support Officer position. Ms Jones makes no reference to any complaints made by Ms Gavril but details the factors she says makes Ms Gavril unsuitable to the Tax Support Officer position by providing examples from the workplace. Exhibit 110 at FA19 at pages 89 to 92.

147 Ms Jones informs Ms Anning and Ms Skeen of her intention to give Ms Gavril written notice that her last day as a Tax Support Officer will be 20 July 2023. Exhibit 110 at FA19 at page 79.

148 On 15 June 2023, Ms Anning emails Ms Jones remonstrating with her for failing to follow her direction in purporting to terminate the Fourth Contract. Ms Anning informs Ms Jones that she is obtaining further advice. Exhibit 110 at FA19 at page 78.

149 On 19 June 2023, Ms Jones admits to ‘jumping the gun’ and refers to their conversation on 9 June 2023, when it appears there was a discussion on reducing the term of the Fourth Contract. Exhibit 110 at FA19 at page 77.

150 On the same day, Ms Anning sent a draft email to Ms Skeen for Ms Jones and thereafter sent the (approved) draft email to Ms Jones. Exhibit 110 at FA19 at pages 73 to 75.

151 In this email, Ms Anning again counsels Ms Jones on purporting to terminate the Fourth Contract, outlines the advice she obtained from Labour Relations and provides a plan for managing the situation.
152 Ms Anning acknowledges the Department is required to ‘honour’ the Fourth Contract, however, she also acknowledges that it is no longer in Ms Gavril’s or Ms Jones’s interests for her to ‘return to the tax team’ (based on the issues raised by Ms Jones). Ms Anning says she can provide Ms Gavril with meaningful work in Accounts Payable and Finance Services and will undertake performance management as required. Ms Anning advises she intends to speak with Ms Gavril on 20 June 2023 with Mr Barnard present and states ‘this conversation will be predicated on there is not enough work to do in tax and she is no longer required’. Exhibit 48 at the email from Ms Anning to Ms Jones dated 19 June 2023.

153 On 20 June 2023 at 2.30 pm, Ms Jones sent an email to Ms Anning stating she accepts the advice sent and makes reference to reducing the term of the Fourth Contract. She also refers to Ms Gavril’s ‘erratic behaviour’ and the impact her behaviour is having on the Tax team. Exhibit 110 at FA19 at page 72.

154 On 23 June 2023, Ms Gavril responds by email to Ms Anning’s email summation of the meeting on 20 June 2023. Ms Gavril disagrees with Ms Anning; however, she refers to Ms Anning discussing personality issues amongst the team and Ms Jones being concerned about Ms Gavril’s work performance.
155 Ms Gavril was not dismissed, and the Fourth Contract was not terminated. It is apparent from Ms Jones’s emails to Ms Anning that she was frustrated with the process and with Ms Gavril’s behaviour. Ms Anning was concerned about getting it right and was firm with Ms Jones for failing to follow Ms Anning’s instructions. Ms Anning then had to find a solution to what had now become a difficult situation.
156 There are two issues arising from the email correspondence:
(1) Ms Anning obtaining advice from Labour Relations; and
(2) the conversation on 20 June 2023 being predicated on there not being enough work in tax.
157 In relation to the first issue, there was nothing untoward in Ms Anning obtaining advice from Labour Relations. It was entirely reasonable and appropriate that she do so where she was faced with having been informed by Ms Jones of the issues she was having with Ms Gavril. It was then up to Ms Anning to implement or not implement the advice provided by Labour Relations.
158 In relation to the second issue, while it may appear that Ms Anning was not entirely honest with Ms Gavril regarding the reason for the conversation on 20 June 2023, I do not accept that she was dishonest or deceived Ms Gavril.
159 In the draft email to Ms Skeen, Ms Anning informs Ms Skeen: Exhibit 110 at FA19 at page 76.

I would like to discuss with Delia about performance here otherwise she thinks everything is ok???? I think someone needs to be honest with Delia here to? [sic] But not to CJ? not sure if that is best.
160 It is apparent Ms Anning is aware of potential performance issues with Ms Gavril, and she wants to find a way to discuss these issues with her. Ms Anning also had an interaction with Ms Gavril on 9 June 2023 where following an approach to Ms Gavril, Ms Gavril went to hospital. Against this background, it appears Ms Anning wanted to ‘soften the blow’ that Ms Gavril not returning to the Tax team was more about Ms Gavril’s behaviour and performance than it was about the amount of work to be carried out. Which is not to say this was not also a reason. It might have been preferrable for Ms Anning to be ‘brutally’ honest with Ms Gavril, but the evidence does not suggest this would have yielded any better outcome.
161 However, it is apparent from Ms Gavril’s email response on 23 June 2023 that Ms Anning did raise performance and personality issues with Ms Gavril at the meeting on 20 June 2023 and was met with strident denials.
162 What is also apparent from the email communications from Ms Anning is that Ms Anning does not refer to Ms Gavril making complaints but refers to various issues and how these issues are to be addressed.
163 Finally, in her emails to Ms Jones, Ms Anning does not refer to any decision not to extend the Fourth Contract beyond 27 October 2023 and limits her discussions with Ms Jones on how Ms Anning is going to manage the situation during the term of the Fourth Contract. This indicates that Ms Anning came to her own view about whether the Fourth Contract could be extended.
The Circumstances of the Seventh Complaint
164 On 17 March 2023, Ms Gavril asked to escalate her inquiry about the amount of taxation withheld for annual leave loading and the cost-of-living payment. This was following an email sent on the same day from a staff member informing Ms Gavril that Payroll Services did not detail tax calculations. Exhibit 110 at FA18.

165 On 20 March 2023, Ms Gavril received an email from a Team Leader at Payroll Services confirming that the taxation had been calculated correctly. Ms Gavril was informed that if she provided information to Payroll Services about what she thought she should be paid, they would investigate further. Exhibit 110 at FA18.

166 Three months later, on 20 June 2023 at 3.03 pm, Ms Gavril responded to this email, copied to Mr Mastrolembo, as follows: Exhibit 106.

Hello,
Sorry for the late reply but I was busy with the year end in [fringe benefits tax].
As I worked my self in payroll and also was advised by managerial staff, I know that an employee can request an audit if there are unclear calculations related to the payroll.
As I mentioned in my initial email when I first opened this case, all I am concerned is that, I have paid too much taxes for leave loading and also for the cost of living payments.
I have discussed the Cost of living taxes with a few managers and I realized that I have paid the same amount of taxes as a level 6 or 7 has paid.
For this reason I am asking to have an audit forth is taxes I have paid in these 2 occasions as I believe there might be a glitch in the system that lead to this overpayments.
Please advise.
167 Mr Mastrolembo responded in an email to Ms Gavril that her query had been answered but he asked her to let him know what amount of tax she says she should have been paid. Exhibit 110 at FA18.
This email was sent on 20 June 2023 at 3.13 pm and was the first email copied to Ms Anning on this issue.
168 On 21 and 22 June 2023 there were further emails between Ms Gavril and a Team Leader at Payroll Services with further explanations given to Ms Gavril. Exhibit 106.
On 22 June 2023, a Manager of Payroll Services said that they would discuss with Ms Anning and respond directly to Ms Gavril. Exhibit 110 at FA18.

Were the Complaints ‘Employment-Related Inquiries or Complaints’ Ms Gavril was Able to Make?
169 The ability to make an ‘employment-related inquiry or complaint’ must be underpinned by an entitlement the source of which would include a contract of employment, award or legislation. Applying Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea) at [625] referred to in the Explanatory Memorandum for the Industrial Relations Legislation Amendment Bill 2021.

170 For the reasons expressed in Hughes above, it is useful to consider analogous sections of the FWA and associated federal cases in determining what constitutes an ‘employment-related inquiry or complaint’ for the purposes of s 97A of the IR Act.
171 Section 341(1)(c)(ii) of the FWA provides that a person has a workplace right if the person is able to make a complaint or inquiry: if the person is an employee – in relation to his or her employment.
172 What might constitute a ‘complaint’ in s 341(1)(c) of the FWA was discussed in Alam at [59], where the Full Bench of the Federal Court of Australia stated:
In the context of s 341(1)(c), the term ‘complaint’ connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: [Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 (Cummins South Pacific)] at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: [Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271] at [579]-[581]; Cummins South Pacific at [13] per Dodds-Streeton J. Her Honour continued, at [626]-[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
The First Complaint
173 Ms Gavril submits the First Complaint was an employment-related complaint because she was making a complaint to Mr Wheeler about ‘bullying behaviour during training’. She says the First Complaint was made ‘in relation to employment’.
174 The respondent does not admit the First Complaint.
175 The character of the First Complaint is not one of a complaint or employment-related inquiry. In the First Complaint, Ms Gavril refers to a brief discussion on Friday where Mr Wheeler asked her if she was struggling with the training. Ms Gavril says the only thing she is struggling with is the level of noise in the class. She expresses her sadness and feelings of being left out if she misses something in class and says Mr Wheeler has repeated things in class for the benefit of others. She further says she feels nervous and stressed at times if she has to ask for something to be repeated. However, relevantly she closes by saying ‘[h]ope you consider my concerns and I look forward to continue [sic] the training with you for this role.’
176 Bearing in mind that only two days prior, Ms Gavril expressly disavowed to Mr Mastrolembo that she was having any issues with training, and to the extent she purported to have issues (which she did not specify to him in the email) she was dealing with these unspecified issues in her own way.
177 To the extent Mr Mastrolembo knew of any issue with respect to the training, this information came from another staff member, and it was limited to Ms Gavril telling her (the other staff member) about feeling as if she was being ignored.
178 The First Complaint is about Ms Gavril’s feelings and raising her concerns with Mr Wheeler about having to ask for additional assistance. It does not reasonably rise to the level that would constitute a complaint, let alone a complaint about ‘bullying behaviour during training’.
179 Further, the First Complaint was not conveyed to Mr Mastrolembo, who was the person Ms Gavril alleges took the First and Second Alleged Damaging Actions against her as a consequence of the First and the Second Complaints.
180 There is no other evidence the First Complaint was brought to Mr Mastrolembo’s attention. The only other information was given at the end of the training course where Mr Mastrolembo received some verbal feedback from Mr Wheeler that Ms Gavril required more instruction than the other participants.
181 Simply put, on the evidence, the First Complaint could not have bearing on the First and Second Alleged Damaging Actions. It had no bearing because Mr Mastrolembo had limited information about it, he was expressly told by Ms Gavril that she had no issues with the training and was dealing with (unknown) issues in her own way, and when invited to come and speak with Mr Mastrolembo about whatever these issues might be, she did not do so.
The Second Complaint
182 Ms Gavril submits the Second Complaint was an employment-related complaint because she was making a complaint to Mr Mastrolembo about ‘bullying behaviour’ by Ms Tjandra, her supervisor. She says the Second Complaint was made ‘in relation to employment’.
183 Mr Mastrolembo had scant memory of the Second Complaint, but his recollection extended to Ms Gavril having issues with Ms Tjandra and not liking being ‘told off’ in a public space.
184 As already stated, Mr Mastrolembo agreed to move Ms Gavril to another team to be supervised by another supervisor.
185 Without determining the substance of the Second Complaint, a concern of the type raised by Ms Gavril may constitute an employment-related complaint that she is able to make, where she has raised a grievance in respect of which she has sought Mr Mastrolembo’s assistance.
The Third Complaint
186 Ms Gavril submits the Third Complaint was an employment-related complaint because she was making a complaint about the ability to perform her duties and maintain the integrity of records under legislation.
187 The respondent denies the Third Complaint is an employment-related inquiry or complaint Ms Gavril is able to make.
188 The character of the Third Complaint is not one of a complaint or employment-related inquiry. Ms Gavril responds to a request for information by Ms Jones where Ms Jones asks Ms Gavril what she is working on today. Ms Jones is working from home. At best, Ms Gavril is passing on information to Ms Jones and informing Ms Jones what she is intending to do about her work allegedly disappearing. She does not ask Ms Jones for assistance.
189 Ms Jones follows up with Ms Gavril asking her for a response about saving reports in the correct folder, she informs Ms Gavril that she is accessing the ‘S’ drive without any problems and asks Ms Gavril where she is saving her work.
190 Ms Gavril informs Ms Jones that she is saving her work to the desktop and challenges Ms Jones to speak to ‘Sudhakar’ to ‘confirm with him that this happened’.
191 On 8 May 2023, Ms Jones sends an email to Ms Gavril informing her that she contacted Sudhakar who Ms Jones says informed her of something different to what Ms Gavril wrote in her email.
192 Thereafter, it is Ms Gavril who makes accusations against Ms Jones. Ms Jones responds by informing Ms Gavril to speak with Mr Morriss if there are any IT issues and explains the ‘save as’ function for saving work to files. She informs Ms Gavril that if Ms Gavril saves work to her desktop, Ms Jones and Mr Morriss will not have access to the work.
193 Ms Gavril continues to challenge Ms Jones, informing her about the merits of saving work to her desktop and that it is unnecessary for Ms Jones and Mr Morriss to access Ms Gavril’s work.
194 Contrary to Ms Gavril’s characterisation of the Third Complaint (being the email dated 5 May 2023 to Ms Jones), the purported concern was raised only in response to a question by Ms Jones about what Ms Gavril was working on. It did no more than inform Ms Jones of something ‘very strange’ happening on her computer and to her work, following which Ms Jones made a suggestion to remedy the saving of work. The email conversation between Ms Jones and Ms Gavril on 5 May 2023 was largely benign in its content and of a type, objectively speaking, that might be seen in an office.
195 It was not until 8 May 2023 when Ms Jones challenged Ms Gavril’s version of events that Ms Gavril descends into making accusations against Ms Jones. However, none of these emails form the basis of the Complaints alleged in the Amended Claim.
196 From 8 May 2023, Ms Jones then takes steps to follow up and understand what Ms Gavril said in the First Complaint, including asking other staff members to obtain further information. Upon receiving this information, Ms Jones informs Ms Gavril to save her work regularly to the ‘S’ drive rather than to her desktop.
197 There is neither a complaint nor an employment-related inquiry in the Third Complaint. Ms Gavril admitted as much in cross-examination. Further, the Third Complaint contains no request for assistance, even though a mere request for assistance may not necessarily constitute an employment-related inquiry in any event. See Shea at [579] to [581].

Fourth Complaint
198 For the same reason as the Third Complaint, Ms Gavril submits the Fourth Complaint was an employment-related complaint because she was making a complaint about the ability to perform her duties and maintain the integrity of records under legislation.
199 For similar reasons to the Third Complaint, the respondent denies the Fourth Complaint is a complaint or employment-related inquiry Ms Gavril is able to make.
200 The character of the Fourth Complaint is not one of a complaint or employment-related inquiry. Similar to the Third Complaint, Ms Gavril responds to an email from Ms Jones where Ms Jones informs her that Ms Anning would like Ms Gavril to train in ‘AP’ (Accounts Processing) for a ‘couple of hours today and tomorrow’. Ms Jones also asks Ms Gavril to let her know what else she is working on.
201 Ms Gavril responds that she is training between 1.00 pm and 2.00 pm on 10 May 2023, and she will continue to work according to a plan previously discussed with Ms Jones, namely working on acquisitions and disposals.
202 Ms Jones follows up with Ms Gavril to let her know when Ms Gavril has completed the acquisitions and disposals so it can be reviewed by Ms Jones. She also requests Ms Gavril to assess business percentages for three vehicles and to let her know when this is completed so ‘Easyfbt’ can be updated.
203 The Fourth Complaint was sent by email to Ms Jones at 2.30 pm, after the prior emails referred to, where Ms Gavril says ‘[t]oday I have been dealing with major issues regarding my work disappearing from the S drive’. Ms Gavril explains what happened and what she did and an interaction with ICT. To the extent the Fourth Complaint contains a request, the first request was made to ICT to ‘further investigate’ whether someone was deleting files by accident and the second request was made to Ms Jones to ‘[p]lease advise’.
204 Similar to in Alam, at [62], the Fourth Complaint did no more than inform Ms Jones of concerns regarding her work disappearing from the ‘S’ drive. Thereafter, she asks Ms Jones to ‘please advise’. At its highest, the words ‘please advise’ may be a mere request for assistance, but it is not more than that.
Fifth Complaint
205 For the same reason as the Third and Fourth Complaints, Ms Gavril says her ‘work-related inquiry’ for an investigation into the deletion of her files to Ms Anning was an employment-related inquiry because it was about work file deletion and the inappropriate managerial conduct by Ms Jones in not ‘addressing this serious issue’.
206 Without determining the substance of the Fifth Complaint, a concern of the type raised by Ms Gavril may constitute an employment-related complaint that she is able to make, where she has raised a grievance in respect of which, on the case most favourable to Ms Gavril, she has sought Ms Anning’s assistance.
Sixth Complaint
207 Without determining the substance of the 9 June 2023 email, a request to work from home, raising concerns about work load, job status and working within Accounts Processing, of the type raised by Ms Gavril, may constitute an employment-related complaint that she is able to make, where she requests ‘clear instructions’ on what is expected of her. However, it is by no means certain that the Sixth Complaint rises to the requisite level of the kind properly characterised as an employment-related inquiry or complaint. It is merely that in respect of the Sixth Complaint, Ms Gavril is afforded the benefit of the doubt that it might be.
Seventh Complaint
208 Ms Gavril submits the Seventh Complaint is an employment-related complaint because it addressed pay entitlements.
209 Without determining the substance of the Seventh Complaint, an inquiry about taxation or pay entitlements may constitute an employment-related complaint Ms Gavril is able to make.
Eighth Complaint
210 Without determining the substance of the Eighth Complaint, an inquiry about why certain action was taken by a manager may constitute an employment-related complaint Ms Gavril is able to make.
Ninth Complaint
211 Ms Gavril submits the Ninth Complaint is an employment-related complaint because it inquired with Mr Barnard, a union representative, about the procedure to file a formal workplace complaint.
212 An inquiry of this nature cannot be reasonably be characterised as raising a grievance or complaint of the kind contemplated in s 97A of the IR Act.
213 It merely requests of a third party the process for lodging a complaint.
214 Further, and similar to the First Complaint, the Ninth Complaint was never brought to Ms Anning’s attention until the commencement of litigation. Mr Barnard accidentally copied ‘Labour Relations’ into a later email on 3 July 2023, however, there is no evidence this email was ever brought to the attention of Ms Anning on 3 or 4 July 2023.
215 Simply put, on the evidence, the Ninth Complaint could not have had any bearing on the Fifth Alleged Damaging Action. It could not have had any bearing because Ms Anning did not know of its existence at the time the Fifth Alleged Damaging Action was alleged to have been taken.
Summary of Outcomes on the Character of the Concerns
216 Having regard to the above findings, the First Complaint, the Third Complaint, the Fourth Complaint and the Ninth Complaint do not constitute complaints or employment-related inquiries capable of giving rise to consideration of any alleged damaging action.
217 The Second Complaint; Fifth Complaint; Sixth Complaint; Seventh Complaint and the Eighth Complaint may constitute complaints or employment-related inquiries capable of giving rise to alleged damaging action.
Did the First to Fifth Alleged Damaging Actions Constitute Damaging Action Within the Meaning of s 97 of the IR Act?
218 Notwithstanding my findings in relation to the Complaints, if I am wrong about the character of all of the Complaints, I will consider all of the Complaints as being capable of giving rise to a complaint or employment-related inquiry Ms Gavril is able to make.
First and Second Alleged Damaging Actions
219 I infer from Ms Gavril’s description in the First and Second Alleged Damaging Actions that she relies upon the category of damaging action in s 97(a)(ii) of the IR Act, which is consistent with her written submissions. Her description of the First and Second Damaging Actions as having ‘[s]tripped [her] of her professional responsibilities and career development opportunities’ and ‘[d]irectly obstructed her ability to progress her career’ indicates that she asserts these actions altered her position to her disadvantage in accordance with s 97(a)(ii).
220 On or around 5 September 2022, Ms Gavril was moved into a rotational payroll position in the COVID Team for initially four weeks, but this position was extended to the remainder of the Second Contract.
221 Beyond Ms Gavril’s assertion that being assigned to the COVID Team hampered her future prospects, there is no evidence that, in fact, it did.
222 Ms Gavril sought to change the ambit of the Amended Claim to assert that the extension of the assignment in the COVID Team was ‘unlawful’. The respondent objected to this extension where Ms Gavril expressly relied upon the decision to move her to the COVID Team on 5 September 2022 as the damaging action, she says the respondent took.
223 Irrespective of whether the Amended Claim is confined to the decision made on 5 September 2022 or includes the later decision made to extend Ms Gavril’s assignment within the COVID Team, the outcome is the same.
224 That is, Ms Gavril’s assertion, both with respect to the initial assignment decision on 5 September 2022 and to the later decision to extend the assignment, is problematic because her position was not altered. That is, she was contracted to work as a Payroll Officer within Payroll Services. The duties included those in accordance with the Job Description Form and ‘other duties as directed which are within the limits of the employee’s skill, competence and training, including work which is incidental or peripheral to the employee’s main tasks or functions.’ Exhibit 108 at SM3.

225 Mr Mastrolembo rotated other staff through the same position. That Mr Mastrolembo thereafter formed the view Ms Gavril’s skill set was more suited to the easier and more repetitive work undertaken in the COVID Team was consistent with the terms of the Second Contract she signed on 10 June 2022. Exhibit 108 at SM3.

226 Ms Gavril’s subjective view, without more, that in some way the respondent, via Mr Mastrolembo, was responsible for ensuring she could capitalise on the ‘knowledge gathered in the training time’ Exhibit 1 at [32].
in order to advance her payroll experience is misguided.
227 Ms Gavril was employed subject to the terms of the Second Contract, which ended on 30 December 2022, where both parties acknowledged there was no obligation for further employment arrangements.
228 Ms Gavril was directed to undertake work as a Payroll Officer in the COVID Team consistent with the terms of the Second Contract.
229 In that context, there was no disadvantage, only Ms Gavril’s apparent disgruntlement with the arrangement.
230 I also note Ms Jones interviewed Ms Gavril for a level 3 Tax Support Officer position in the Taxation Team and Ms Gavril was selected for a position on or around 15 December 2022 (that is, before the expiry of the Second Contract). It can reasonably be inferred that Ms Gavril experienced no disadvantage, notwithstanding the easy and repetitive nature of the work in the COVID Team, as she was selected for another position at the same level within the Department while doing this work.
231 There is no evidence that Ms Gavril applied for any other position, where the easier, more repetitive work in the COVID Team, affected her application. The position she interviewed for (the subject of the following paragraphs) was on 31 August 2022 before the assignment to the COVID Team.
232 Ms Gavril was appointed by Mr Mastrolembo to the Payroll Officer position using his limited ‘tap’ power on a fixed term six-month contract. Mr Mastrolembo informed Ms Gavril that she would need to comply with the recruitment process for the Payroll Officer pool which was being finalised. Exhibit 108 at [11] and SM2.

233 Ms Gavril applied for the Payroll Officer pool as advertised. Exhibit 108 at SM5 to SM8.

234 Ms Gavril was never ‘forced’ to re-interview for the Payroll Officer role because:
(1) she was never interviewed for a Payroll Officer position in the first place but ‘tapped’ by Mr Mastrolembo for a fixed term six-month contract; and
(2) as discussed with Mr Mastrolembo, to continue in the Payroll Officer role beyond 31 December 2022 she would need to be merit-selected, which included the requirement to interview for a pool position. That is, the Second Contract could not be extended on the same basis as the ‘tapped’ position.
235 Accordingly, the First and Second Alleged Damaging Actions do not amount to damaging action as that term is defined in s 97(a) of the IR Act.
Third Alleged Damaging Action
236 I infer from Ms Gavril’s description in the Third Alleged Damaging Action that she relies upon the category of damaging action in s 97(a)(ii) of the IR Act, which is consistent with her written submissions. Her description that Ms Anning failed to adopt a ‘formal and fair procedure in demoting her to a lower-level position against her will where she was denied proper training and left her without career advancement opportunities’ Amended Claim at [23].
indicates that she asserts these actions altered her position to her disadvantage in accordance with s 97(a)(ii).
237 The gravamen of the Third Alleged Damaging Action is that Ms Gavril asserts she was ‘demoted’ from Tax Support Officer to Accounts Processing by Ms Anning.
238 Similar to the First Alleged Damaging Action, beyond Ms Gavril’s assertion that being moved to Accounts Processing left her without career advancement, there is no evidence that, in fact, it did.
239 Further, the move to Accounts Processing did not alter her level of employment under the terms of the Fourth Contract. That is, Ms Gavril remained a level 3 Tax Support Officer while located and working in Accounts Processing. Therefore, there was no demotion.
240 Again, similar to the First Alleged Damaging Action, Ms Gavril’s assertion that she was demoted by being moved to Accounts Processing, is problematic because her position was not altered. That is, she was contracted to work as a Tax Support Officer within Finance Services. The duties included those in accordance with the Job Description Form and ‘other duties as directed which are within the limits of the employee’s skill, competence and training, including work which is incidental or peripheral to the employee’s main tasks or functions.’ Exhibit 110 at FA7.

241 Accounts Processing was within Finance Services and came within Ms Anning’s management. Ms Anning was Ms Gavril’s manager after Ms Jones.
242 The substantive position holder had assisted in Accounts Processing.
243 Ms Gavril was employed subject to the terms of the Fourth Contract, which ended on 27 October 2023, and there was no future possibility of extending the Fourth Contract. Any future contract required the position to be advertised, and for her to be merit selected as part of that process.
244 Ms Gavril was directed to undertake work as a Tax Support Officer in Accounts Processing consistent with the terms of the Fourth Contract.
245 In that context, again, there was no disadvantage, only Ms Gavril’s apparent disgruntlement with the arrangement.
246 The Third Damaging Action does not amount to damaging action as that term is defined in s 97(a) of the IR Act.
Fourth Alleged Damaging Action
247 I infer from Ms Gavril’s description in the Fourth Alleged Damaging Action that she relies upon the category of damaging action in s 97(a)(ii) of the IR Act, which is consistent with her written submissions. Ms Gavril’s submission is that the cumulative effect of the Sixth, Seventh and Eighth Complaints was that Ms Anning refused her a contract extension. Ms Gavril says she was assured, at least, a contract extension to the end of December 2023 by Ms Jones and possible permanency.
248 Having regard to the findings of fact made, Ms Jones never promised Ms Gavril an extension to the Fourth Contract; nor had anyone, particularly Ms Jones and Ms Anning, indicated that Ms Gavril would possibly be made permanent.
249 Further, pursuant to s 64(4) of the PSMA, a person appointed on a fixed term contract cannot apply for permanent appointment, unless the relevant vacancy has first been advertised as a public sector notice in accordance with the Commissioner’s instructions or in a daily newspaper circulating throughout the State.
250 Accordingly, Ms Anning and Ms Jones were not in a position to promise anything. Further, at the meeting on 20 June 2023, it was unknown whether the substantive position holder for the level 3 Tax Support Officer position was returning to her substantive position.
251 A further difficulty for Ms Gavril is that the found facts demonstrate Ms Anning informed Ms Gavril that the Fourth Contract would not be extended past its expiry date at the meeting on 20 June 2023, also attended by Mr Barnard as a witness. Therefore, Ms Gavril’s follow up email on 26 June 2023 requesting an explanation for not extending the Fourth Contract (the Eighth Complaint) could not have had any bearing on Ms Anning’s decision not to extend the Fourth Contract because the decision had already been made six days prior.
252 Similarly, Ms Gavril’s assertion that the Seventh Complaint was a factor in Ms Anning’s decision not to extend the Fourth Contract cannot be accepted, where Ms Anning had a meeting with Ms Gavril on 20 June 2023 and followed up the meeting with a summary of the topics discussed in an email sent at 2.14 pm. Exhibit 110 at FA15.

253 Ms Gavril sent an email response to Payroll Services, on 20 June 2023 at 3.03 pm, copied to Mr Mastrolembo, which was in response to an email request dated 20 March 2023.
254 Ms Gavril sent an email on 22 June 2023 to Payroll Services in which she referred to Ms Anning approaching her on ‘Tuesday evening’, about the same issue. The ‘Tuesday’ referred to in the email must have been 20 June 2023, and in referring to ‘evening’, the approach by Ms Anning must have been after the decision not to extend the Fourth Contract.
255 This is consistent with the email sent by Ms Gavril on 20 June 2023 at 3.03 pm and the email sent by Mr Mastrolembo on 20 June 2023 at 3.13 pm, copied to Ms Anning, which were both after the email sent by Ms Anning at 2.14 pm summarising the meeting on the same day, where Ms Anning told Ms Gavril that the Fourth Contract would not be extended.
256 Therefore, the Seventh Complaint could not have had any bearing on the decision not to extend the Fourth Contract of Employment.
257 This then leaves the Sixth Complaint.
258 However, reliance on the Sixth Complaint is also problematic where there was no obligation to extend the Fourth Contract. There was no promise to extend the Fourth Contract and s 64 of the PSMA did not enable any offer of permanent employment unless the position was advertised. The level 3 Tax Support Officer position was advertised in February 2024, but Ms Gavril did not apply.
259 Therefore, the Fourth Alleged Damaging Action, could not, and did not, involve any alteration of any current or future position. Further, there is no evidence of any disadvantage suffered by Ms Gavril beyond her subjective assertion that she did. On the evidence, there was no guarantee of future employment either within Financial Services, BCS, or the Department. Ms Gavril was free to apply for any advertised position.
260 The Fourth Alleged Damaging Action does not amount to damaging action as that term is defined in s 97(a) of the IR Act.
Fifth Alleged Damaging Action
261 I infer from Ms Gavril’s description in the Fifth Alleged Damaging Action that she relies upon the category of damaging action in s 97(a)(ii) of the IR Act, which is consistent with her written submissions. Her submissions also refer to being injured in her employment. Her description of the Fifth Damaging Action as Ms Anning issuing a performance plan without proper or due process does not readily indicate what actions she says altered her position to her disadvantage in accordance with s 97(a)(ii) or how she was injured in her employment in accordance with s 97(a)(iv) of the IR Act.
262 Beyond Ms Gavril’s subjective assertion that she suffered a disadvantage or was injured in her employment, there is no evidence that, in fact, she did. Her position was not altered by the Performance Development Plan since, on the evidence, she did not suffer any disadvantage because she was to be performance managed. Further, there is no evidence of any injury suffered as a result of the implementation of the Performance Development Plan.
263 The reality is that Ms Gavril took umbrage to the instigation of the Performance Development Plan, but managerial action is not necessarily damaging action (unless it alters the employee’s position to their disadvantage, and there is no evidence it did in Ms Gavril’s case), irrespective of Ms Gavril describing it as being implemented without ‘proper or due process’.
264 The Fifth Alleged Damaging Action does not amount to damaging action as that term is defined in s 97(a)(ii) or s 97(a)(iv) of the IR Act.
265 Further, the Ninth Complaint was never conveyed to Ms Anning, who was the person Ms Gavril alleged took the Fifth Alleged Damaging Action against her because of the Ninth Complaint. The Ninth Complaint was made to Mr Barnard who copied in ‘Labour Relations’ by mistake, but there was no evidence of who, if anyone, read this email or what they did with it. What the evidence does demonstrate is that Ms Anning was not aware of the Ninth Complaint until well after the commencement of legal proceedings when she was then requested to provide a witness statement.
Reasons
266 However, if I am wrong about the First to Fifth Alleged Damaging Actions not constituting damaging action within the meaning of s 97(a)(ii) or s 97(a)(iv), I will also consider whether the First to Fifth Alleged Damaging Actions were taken because Ms Gavril made employment-related inquiries or complaints (which I did not find).
267 As observed in Hughes at [210], the intention of s 97A is to prohibit employers from discriminating against an employee where an employee makes, or proposes to make, a complaint about their employment conditions. Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2021.
The explanation for s 97A of the IR Act aligns with the FWA provisions (along with the cases referred to therein):
Section 97A(2) provides for a reverse onus of proof in damaging action proceedings. If it is proved that an employer took damaging action, it is for the employer to prove that they did not take the action because the employee made (or proposed to make) an inquiry or complaint. The purpose of the reverse onus is to cast upon the employer the onus of proving that which lies peculiarly within their own knowledge. The reverse onus does not relieve an employee from proving, on the balance of probabilities, each ingredient of the alleged contravention. It simply enables the employee’s allegation to stand as sufficient proof of the fact unless the employer proves otherwise. Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2021.

268 It is useful to again set out relevant paragraphs of Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217, at [54] to [56], where that decision appears to have underpinned the above explanation for s 97A of the IR Act and how it is intended to operate:
When an employee alleges that an employer has taken action against him or her because the employee exercised a workplace right s 361 casts the onus on the employer to ‘prove otherwise’. Under s 360, while there may be multiple reasons for an employer to have taken the adverse action, the employer takes action for a prohibited reason if the reasons for the action include that reason. The rationale for the presumption was explained by Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J as being to throw on to the employer the onus of proving that which lies peculiarly within its own knowledge (cited with approval in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [50] (French CJ and Crennan J)).
Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J). The question is whether a prohibited reason was a ‘substantial and operative’ reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J). The relevant inquiry is therefore into the ‘particular reason’ of the decision-maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).
To displace the presumption created by s 361 in light of the effect of s 360, the respondent must prove that its conduct was not motivated in whole or in part by the prohibited reason alleged. A failure to displace the presumption enables the allegation by an applicant of adverse action for a prohibited reason to stand as sufficient proof of that fact: Davids Distribution Pty Ltd v National Union of Workers (1991) 91 FCR 463 at [109] per Wilcox and Cooper JJ.
The Reason or Reasons Alleged by Ms Gavril for the Taking of the First to Fifth Alleged Damaging Actions
269 As alleged by Ms Gavril, the reason, or reasons that include, the respondent taking the First to Fifth Alleged Damaging Actions was that she was able to, and did, make a series of employment-related complaints or inquiries as specified the Amended Claim, being the First Complaint to the Ninth Complaint.
First and Second Alleged Damaging Actions
270 Ms Gavril claims the First and Second Alleged Damaging Actions were the result of each of the First and Second Complaints and/or the cumulative effect of both.
271 There does not appear to be any dispute that Mr Mastrolembo was the decision-maker alleged by Ms Gavril to have taken the First and Second Alleged Damaging Actions, and, while the respondent does not agree that any damaging action was taken, the respondent does not suggest any other decision-maker was involved in the reasons alleged for the First and Second Alleged Damaging Actions.
Mr Mastrolembo’s Reasons
272 Having regard to the findings of fact, Mr Mastrolembo had scant knowledge of the First Complaint. It was limited to a conversation with another staff member who informed him that Ms Gavril was feeling ignored by Mr Wheeler in training. Mr Mastrolembo told the staff member to encourage Ms Gavril to come and speak directly to him.
273 Ms Gavril did not do so and instead sent an email to Mr Mastrolembo informing him that there was no issue with training and that she was dealing with something else in her own way.
274 There is no other evidence of Mr Mastrolembo having any knowledge of the First Complaint.
275 Thus, the First and Second Alleged Damaging Actions could not have been for the reason or for a reason that included the First Complaint. It is illogical to suggest that someone takes damaging action for a reason or a reason that includes something they have no, or not real, knowledge of.
276 Mr Mastrolembo explained the appointment process for the Payroll Officer pool and Ms Gavril’s appointment on a ‘tapped up’ basis for a six-month fixed term contract (the Second Contract). Mr Mastrolembo explained to Ms Gavril at the outset that she would need to apply to the Payroll Officer pool to be merit selected for any further contract.
277 Further, Ms Gavril could not be made permanent without a formal merit-selection process.
278 Ms Gavril applied for a position in the Payroll Officer pool and was interviewed around 31 August 2022, where she was an unsuccessful applicant.
279 Mr Mastrolembo assigned Ms Gavril to the COVID Team on 5 September 2022 consistent with other payroll officers rotating through those same duties. Mr Mastrolembo decided to retain Ms Gavril in the COVID Team because:
(a) Ms Gavril was unsuccessful in being merit selected for any further position in the Payroll Officer role;
(b) the operational teams would be less disrupted where Ms Gavril would leave at the end of the Second Contract on 31 December 2022, and they would otherwise have to train another officer; and
(c) the duties were more repetitive and easier, and he thought if Ms Gavril performed this work continually, she would pick up the skill and make less errors.
280 In cross-examination, Mr Mastrolembo said it made sense to him operationally for Ms Gavril to rotate into and remain in the COVID Team as this team did many of the same duties as was done in the Payroll Section, albeit the tasks were ‘easier’ but the volume of work was greater.
281 Mr Mastrolembo denied planning to transfer Ms Gavril to the COVID Team from the commencement of the Second Contract. Mr Mastrolembo said there were issues of concern regarding Ms Gavril’s performance where she was not grasping certain concepts or retaining information, albeit she was trying hard but just not performing.
282 He also denied that the decision to move Ms Gavril to the COVID Team was solely operational, rather, that it was also for her development as specified in the Mastrolembo Statement.
283 Mr Mastrolembo also denied that was any other intention for retaining in her in the COVID Team other than what he explained in the Mastrolembo Statement. Exhibit 108 at [46] to [49].

284 The content of the Mastrolembo Statement was consistent with his oral evidence in cross-examination and documents tendered by both parties. Mr Mastrolembo’s evidence was truthful and credible, and I am satisfied his evidence in respect of his reasons for rotating and retaining Ms Gavril in the COVID Team was credible and reliable.
285 For the following reasons I am satisfied that if the respondent took the First and Second Alleged Damaging Actions, then the reason or reasons for doing so was not because Ms Gavril made the First Complaint or the Second Complaint or a combination of the two.
286 There is simply no evidence that demonstrates the reason or reasons that include Mr Mastrolembo assigning Ms Gavril to the COVID Team or retaining in her in that team had anything to do with the Second Complaint.
287 Therefore, the First and Second Complaints had no bearing in any way on the reason Mr Mastrolembo assigned and retained Ms Gavril in the COVID Team, which was primarily an operational decision consistent with the terms of the Second Contract but would also enable Ms Gavril to improve her work performance.
288 Further, the First and Second Complaints had no bearing on Ms Gavril being interviewed for the Payroll Officer pool, which was entirely of her own choosing if she wanted to be considered for an employment contract after the expiry of the Second Contract. Mr Mastrolembo made it clear to Ms Gavril that while he ‘tapped’ her for the Second Contract, any future extension or any other contract required her to be merit selected for the Payroll Officer pool. Ms Gavril applied for the Payroll Officer pool but was unsuccessful.
289 I am satisfied and I find that, if the First and Second Alleged Damaging Actions were taken, the respondent has discharged its onus set out in s 97A(2) of the IR Act, and I am satisfied the First and Second Complaints made by Ms Gavril were not a substantive and operative reason, or included as a substantive or operative reason, for the decisions made by Mr Mastrolembo.
Third Alleged Damaging Action
290 Ms Gavril claims the Third Alleged Damaging Action was because of (or for reason of or for reasons that included) the Third, Fourth and Fifth Complaints and/or the cumulative effect of those complaints.
291 There does not appear to be any dispute that Ms Anning was the decision-maker alleged by Ms Gavril to have taken the Third Alleged Damaging Action, and, while the respondent does not agree that any damaging action was taken, the respondent does not suggest any other decision-maker was involved in the decisions making the Third Alleged Damaging Action.
Ms Anning’s Reasons
292 In the Anning Statement, Ms Anning said the reason or reasons for transferring Ms Gavril to Accounts Processing was to allow Ms Anning time to investigate what was happening with Ms Gavril’s computer, to provide Ms Gavril with an opportunity to learn new skills for future opportunities and to assist the Accounts Processing team for the end of the financial year.
293 In addition, Ms Jones had raised with her concerns about Ms Gavril’s performance, which included Ms Gavril refusing to speak with Ms Jones; difficulty in understanding tasks; being evasive when asked for updates on what work she was doing; the accuracy of her work; poor record keeping; saving her work to the incorrect folders; and the deterioration in the working relationship between Ms Gavril, Ms Jones and Mr Morriss. Exhibit 110 at [40] to [41].
Ms Jones raised concerns with Mr Morriss and Ms Anning the risk of loss of work product, which, in her oral evidence, she said was of concern given the time of year and the pressure to finalise fringe benefit taxation.
294 In cross-examination, Ms Anning maintained the concern raised by Ms Jones and Mr Morriss was Ms Gavril’s ability to save documents and the risk of work or information being lost because it had not been saved. The Tax team had lost confidence in Ms Gavril being able to do her job. Ms Anning denied it was the raising of the issue of work being allegedly deleted from Ms Gavril’s work computer that caused her to transfer Ms Gavril to the Accounts Processing team.
295 Ms Anning maintained that she made inquiries about Ms Gavril’s work computer when she spoke to Mr Morriss; Ms Jones; Sudhakar and made enquiries with ICT; and she observed Ms Gavril’s actions in saving work during the meeting on 12 May 2023.
296 Ms Anning also explained that future vacancies may arise in Accounts Processing and that this was the best opportunity for Ms Gavril to obtain a future contract with the Department. Transferring Ms Gavril to Accounts Processing would expose her to new skills, and she may obtain assistance from another staff member. In addition, Ms Gavril was required to undertake work as part of any contract of employment with the Department.
297 The content of the Anning Statement was consistent with her oral evidence in cross-examination and documents tendered by both parties. Ms Anning’s evidence was truthful and credible, and I am satisfied her evidence in respect of her reasons for why she moved Ms Gavril to assist in Accounts Processing was credible and reliable.
298 For the following reasons I am satisfied that if the respondent took the Third Alleged Damaging Action, then the reason or reasons for doing so was not because Ms Gavril made the Third, Fourth or Fifth Complaints or any combination of the three.
299 The handwritten note made by Ms Anning during the meeting on 12 May 2023 is consistent with her reasons. The content of Ms Anning’s email dated 15 May 2023 is also consistent with her reasons.
300 Neither of these documents include Ms Anning making any reference to the Third, Fourth or Fifth Complaints or to any complaint at all.
301 To the contrary, Ms Anning refers to the issues raised by Ms Jones and Ms Gavril and attempts to find a solution that addresses the concerns raised by Ms Jones while providing Ms Gavril with work within her capabilities and to assist with future opportunities. This was significant because as the found facts establish, there was no certainty associated with Ms Gavril being offered a future contract in Financial Services and she could not lawfully be offered permanent appointment without a permanent position being advertised, applying for it and being merit selected for the position.
302 Notwithstanding it was never part of the Amended Claim, there is no evidence that Ms Anning’s reasons for transferring Ms Gavril to Accounts Processing was a ‘sham’ designed to cover up any ‘real or ‘other’ reasons.
303 I am satisfied and I find that, if the Third Alleged Damaging Action was taken, the respondent has discharged its onus set out in s 97A(2) of the IR Act, and I am satisfied the Third, Fourth and Fifth Complaints made by Ms Gavril were not a substantive and operative reason or included as a substantive or operative reason for Ms Anning’s decision.
Fourth Alleged Damaging Action
304 Ms Gavril claims the Fourth Alleged Damaging Action was for the reason or for reasons that include she made the Sixth, Seventh and Eighth Complaints and/or the cumulative effect of those complaints.
305 Again, there does not appear to be any dispute that Ms Anning was the decision-maker alleged by Ms Gavril to have taken the Fourth Alleged Damaging Action, and, while the respondent does not agree that any damaging action was taken, the respondent does not suggest any other decision-maker was involved in the decisions making the Fourth Alleged Damaging Action.
Ms Anning’s Reasons
306 Having regard to the findings of fact, the Seventh Complaint could not have had any bearing on Ms Anning’s reasons for not extending the Fourth Contract because the decision to not extend the Fourth Contract was made prior to the Seventh Complaint.
307 Similarly, the Eighth Complaint could not have had any bearing on Ms Anning’s reasons for not extending the Fourth Contract because the decision to not extend the Fourth Contract was also made prior to the Eighth Complaint.
308 However, even if I am wrong about the Seventh and Eighth Complaints, the issue is whether the Sixth and Seventh Complaints, singularly or cumulatively, was the reason or was a reason that included why the Fourth Contract was not extended.
309 In the Anning Statement, Ms Anning’s reasons for not extending the Fourth Contract was that Ms Gavril’s Third Contract had already been extended by Ms Jones, albeit Ms Jones had no authority to do so. Therefore, if another extension to the Tax Support Officer role was offered, depending on the substantive position holder’s future situation, it would be advertised and a merit-selection process undertaken. Ms Anning also had concerns about Ms Gavril’s performance having regard to the issues raised by Ms Jones, Ms Palmer and Mr Morriss.
310 Notably in Ms Jones’s email to Ms Anning dated 15 June 2023, Ms Jones does not refer to any issue arising because Ms Gavril made a request to her on 9 June 2023 about working from home and queried her work load or the like. Exhibit 110 at FA19 at pages 79 to 80.
Ms Jones’s concern was Ms Gavril’s general behaviour and work performance.
311 In cross-examination, Ms Anning maintained she could not further extend the Fourth Contract and there were no permanent roles before 27 October 2023. Ms Anning did not know the substantive position holder’s future situation and in June 2023 was not in a position to further extend any contract or offer permanency. Nothing that occurred leading up to the meeting with Ms Gavril on 20 June 2023 changed that.
312 In addition, Ms Anning had concerns about Ms Gavril’s work performance and behaviour which she sought to address during the meeting on 20 June 2023. During the meeting on 20 June 2023 Ms Gavril asked to work from home but Ms Anning denied this request because of the work performances she identified, although she did not completely close the door on it being considered in the future.
313 The content of the Anning Statement was consistent with her oral evidence in cross-examination and documents tendered by both parties. Ms Anning’s evidence was truthful and credible, and I am satisfied her evidence in respect of her reasons for why she did not further extend the Fourth Contract was credible and reliable.
314 For the following reasons I am satisfied that if the respondent took the Fourth Alleged Damaging Action, then the reason or reasons for doing so was not because Ms Gavril made the Sixth or Seventh Complaints or any combination of the two.
315 The email by Ms Anning dated 20 June 2023 sent after the meeting with Ms Gavril and Mr Barnard is consistent with her reasons. It is also consistent with what Ms Anning knew at the time; that is, the future situation of the substantive position holder was unknown. Ms Anning did not create false expectations for Ms Gavril where the future could not be guaranteed.
316 Ms Anning made no reference to the Sixth or Seventh Complaints or to any complaint at all in any associated document. Similarly, Ms Jones, who provided Ms Anning with information about Ms Gavril, made no reference to the Sixth Complaint, save that Ms Jones referred to her and Ms Anning approaching Ms Gavril on 9 June 2023 to discuss the ‘clear instructions’ Ms Gavril requested. Ms Gavril sent an email telling Ms Anning and Ms Jones she was stressed by their approach and told them to only communicate with her by email.
317 That Ms Anning also had concerns about Ms Gavril’s performance does not mean she did not further extend the Fourth Contract for any improper reason. It was open to her to hold this view. Her reasons for not extending the Fourth Contract are not impugned because she held this view.
318 Again, notwithstanding it was never part of the Amended Claim, there is no evidence that Ms Anning’s reasons for not extending the Fourth Contract or ‘giving’ Ms Gavril a permanent public office position, which as a matter of law she could not do, was a ‘sham’ designed to cover up any ‘real or ‘other’ reasons.
319 This includes obtaining advice from Labour Relations and managing Ms Jones’s erroneous attempt to terminate the Fourth Contract (which was never conveyed to Ms Gavril) and having a less ‘brutal’ conversation with Ms Gavril on 20 June 2023 about her work performance and the personality issues in the Tax team.
320 I am satisfied and I find that, if the Fourth Alleged Damaging Action was taken, the respondent has discharged its onus set out in s 97A(2) of the IR Act, and I am satisfied the Sixth, Seventh and Eighth Complaints made by Ms Gavril were not a substantive and operative reason, or included as a substantive or operative reason, for Ms Anning’s decision.
Fifth Alleged Damaging Action
321 Ms Gavril claims the Fifth Alleged Damaging Action was for the reason or for reasons that include the making of the Ninth Complaint.
322 Having regard to the findings of fact, Ms Anning was not aware of the Ninth Complaint when she was alleged to have taken the Fifth Alleged Damaging Action against Ms Gavril.
323 Like the First Complaint and the First and Second Alleged Damaging Actions, the Fifth Alleged Damaging Action could not have been for the reason or for reasons that include making the Ninth Complaint. Again, it is illogical to suggest that someone takes damaging action for a reason they have no knowledge of.
324 There is simply no evidence that demonstrates that the reason or reasons for Ms Anning’s decision to performance manage Ms Gavril during the Fourth Contract had anything to do with the Ninth Complaint, which was made to Mr Barnard, who erroneously copied it to Labour Relations.
325 Further, there is no evidence that Labour Relations or Mr Barnard forwarded the Ninth Complaint or spoke to Ms Anning about the Ninth Complaint, either before the decision was made by her to performance manage Ms Gavril or at all.
326 However, for the avoidance of any doubt, had it been necessary to find, the credible and reliable evidence does not demonstrate that Ms Anning’s decision to performance manage Ms Gavril was because Ms Gavril made the Complaints. To the contrary, Ms Anning identified issues with Ms Gavril’s work performance, albeit it was primarily based on information provided by Ms Jones. Ms Anning knew the Fourth Contract did not expire until 27 October 2023 and she wanted to give Ms Gavril meaningful work to do, but also the Department was paying for work to be done. It was not viable for Ms Gavril to do no work for the remainder of the Fourth Contract or to only do work that she wanted to do.
327 I am satisfied and I find that, if the Fifth Alleged Damaging Action was taken, the respondent has discharged its onus set out in s 97A(2) of the IR Act, and I am satisfied the Ninth Complaint made by Ms Gavril was not a substantive and operative reason or included as a substantive or operative reason for Ms Anning’s decision.
Injury and Loss
328 Again, notwithstanding the substantive findings I have made with respect to the Amended Claim, I will also consider the relief sought by Ms Gavril if she was successful.
329 Pursuant to s 97B(2) of the IR Act, if the Court determines that an employer has contravened s 97A(1) the Court may order the employer to:
(a) if the employee was dismissed from employment, to reinstate the employee: s 97B(2)(a) of the IR Act;
(b) if the employee was refused employment, to employ the employee: s 97B(2)(b) of the IR Act; or
(c) pay to the employee compensation for any loss or injury suffered as a result of the contravention: s 97B(2)(c) of the IR Act.
330 The Court may make these orders in addition to imposing a penalty under s 83E of the IR Act.
331 Pursuant to s 97B(5) of the IR Act, the Court must not make the order if the employee has applied under another provision of this Act or any other written law for relief in relation to the same damaging action unless the proceedings for that relief have been withdrawn or failed for want of jurisdiction. Additionally, an employee is not entitled to compensation for the same damaging action under both s 97B(2)(c) and another provision of the IR Act or any other written law. That is, if an employee seeks compensation under s 23A(6) of the IR Act for unfair dismissal, the Court cannot make an order for compensation if the respondent also made a damaging action by dismissing the employee.
332 Ms Gavril seeks an order to be reinstated to her former role as a level 3, Tax Support Officer or to an equivalent position within the Department at a permanent level, with full continuity of service and no probation period.
333 Alternatively, or in addition to reinstatement, Ms Gavril seeks economic loss for lost earnings and career stagnation, and non-economic loss for severe distress, reputational damage and psychological harm as a result of the First to Fifth Alleged Damaging Actions.
334 Similar issues were raised in Hughes, and I repeat the comments made in that case below.
335 The terms ‘loss’ and ‘injury’ are not defined in s 7 or Part 6B of the IR Act. Further, unlike s 23A(8) of the IR Act, the amount of compensation the Court may order is uncapped. However, s 23A(6) of the IR Act expresses the order for payment of compensation in similar terms to that expressed in s 97B(2)(c) of the IR Act.
336 In Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8 (Bogunovich), Sharkey P outlines principles applicable to assessing compensation for loss or injury caused by an unfair dismissal. Where the definition of damaging action includes dismissing an employee and s 97A is within the same legislation as s 23A, it is, in my view, rational, sensible and consistent to apply similar principles to assessing compensation for loss or injury (including the meaning thereof) under s 97B(2)(c) of the IR Act.
337 Adapting some of the principles in Bogunovich at 8:
(1) the Court is required to make a finding as to the loss or the injury which the employee suffered as a result of the damaging action taken (or contravention);
(2) the employee is required to establish their loss or injury on the balance of probabilities. If there is no loss or injury established, then no compensation will be ordered;
(3) the Court is then required to compensate the employee to the fullest extent in respect of the loss or injury;
(4) there must be a causal link between the loss or injury claimed and the particular damaging action; and
(5) the decision and amount of compensation is not arbitrary and must occur having regard to applicable legal principles.
338 Other applicable principles, as adapted, include that the purpose of compensation (under s 23A but also referrable to s 97B(2)(c)) is to compensate an employee for losses caused, not to punish the employer or to confer a windfall on the employee. This means that compensation ‘must be in respect of a lawful entitlement and/or as compensation for a demonstrated loss or injury’ as a result of the contravention, Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 129 IR 270 at [85].
and compensation is not compensation if it does not, as much as possible, put the person who suffered the loss or injury back into the position which, but for the loss or injury, the person would have been in. Bogunovich at 8.

339 ‘Loss’ is a wide concept that includes, but is not limited to, ‘actual loss of salary or wage, loss of benefits or other amounts which would have been earned, paid to or received by’ the affected employee but for the contravention. Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299 (Capewell) at 303.
‘Loss’ may also include future loss. ‘Injury’ is also a wide concept, incorporating ‘all manner of wrongs’ and includes, for example, humiliation; injury to feelings; loss of reputation; nervous shock and ‘being treated with callousness’. Capewell at 303.
For compensation to be awarded for injury, the injury must ‘fall outside the limits which can be taken to have normally been associated with’ the damaging action. This requires evidence that the employee has suffered ‘loss of dignity, anxiety, humiliation, stress or nervous shock’. AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 4015; (2001) 81 WAIG 2849 at [200], 2862.
There will be an element of distress in most ‘dismissal cases’ (and by extension to cases involving allegations of damaging action). Lynam v Lataga Pty Ltd [2001] WAIRC 2420; (2001) 81 WAIG 986 at [56], 989.

Reinstatement
340 Ms Gavril was never dismissed from employment by the Department or the respondent. The Amended Claim was never litigated on the basis she had been dismissed from or by the Department or the respondent. On this basis alone, reinstatement does not fall to be considered.
341 Further, Ms Gavril was not refused employment by the Department or the respondent. Ms Gavril was employed on a series of fixed term contracts with no obligation on the respondent to provide future or further employment. See [345] to [348] for further detail.
The Fourth Contract expired on 27 October 2023. Ms Gavril could apply for future vacancies and be merit selected for those vacancies.
342 The Department was required to comply with s 64 of the PSMA for a permanent appointment to the public service. While it was not fully litigated in this case, my provisional view is that the purpose of reinstatement in s 97B(2)(a) of the IR Act is not an alternative vehicle to permanency in the public service or to circumvent other written laws.
Loss
343 Ms Gavril does not detail what, if any, future loss she suffered or might have suffered, beyond stating she has ‘lost earnings’ and suffered ‘career stagnation’. She submits that the Court should order all remuneration and superannuation she would have been ‘expected’ to have earnt had her employment continued until she could reasonably be expected to secure a comparable permanent level 3 government position, which she estimates to be 18 months.
344 Ms Gavril also submits that she has lost an opportunity to obtain permanency in the public sector and so she should be compensated for the distress, humiliation and reputational harm, as well as the ongoing emotional impact, including stress and depression, caused by ‘these work events’.
345 While not entirely on point, in Stephens v Australian Postal Corporation [2014] FCA 732 (Stephens), Flick J discussed the onus of proof in relation to the ‘refusal to employ’ a claimant in the context of s 340(1) and s 351(1) of the FWA. At [21], His Honour identified questions about what the phrase means and which party has the onus:
[A] refusal to employ a person to a position which is in fact vacant – in which case, it may be the prospective employee who has the onus of proving that a position is vacant; or
[A] failure to employ a person upon an application being made, whether or not a position has been advertised as being vacant and (perhaps) even where there is known to be no vacant position – in which case, s 361 would transfer the onus to the employer to explain the reason why the application was unsuccessful.
346 Ultimately, his Honour concluded it better to confine attention to the facts of relevance, given the number of factual circumstances that may arise on the issue. Stephens at [22].

347 The fact of relevance in relation to the Amended Claim is that Ms Gavril did not apply for the level 3 Tax Support Officer position when it was advertised in February 2024. There is no evidence of her applying for any position and that she missed out on the position because of the First to Fifth Alleged Damaging Actions or the Complaints.
348 Further, the findings of fact establish that upon the conclusion of the Fourth Contract, the Department was not required to retain, extend or give her future employment. Ms Gavril was free to apply for vacancies and be appointed to those vacancies. There is no evidence she did and there is no evidence of what, if any, vacancies she may have been eligible to apply for.
349 The Amended Claim as it relates to the alleged Second Damaging Action occurred on 31 August 2022, when Ms Gavril alleges that she was required to interview for the Payroll Officer role. The Amended Claim was never advanced on the basis that she was unsuccessful for the Payroll Officer role because she made the First and Second Complaints, rather, Ms Gavril generally refers to the interview process being unfair to her. As already explained, the Court’s role in determining the Amended Claim is not to revisit the interview process and determine whether it was, in fact, unfair in some way to Ms Gavril.
350 Mr Mastrolembo’s reasons unequivocally reject any suggestion of an improper motive behind Ms Gavril’s interview for the Payroll Officer role in August 2022.
351 Mr Mastrolembo’s knowledge of the First and Second Complaints have been discussed, as has his reasons for the alleged Second Damaging Action. During cross-examination, Mr Mastrolembo confirmed that neither Ms Tjandra (the subject of the Second Complaint) nor Mr Wheeler (the subject of the First Complaint) were members of the interview panel for the Payroll Officer role, and he denied that the panel’s composition resulted in an unsuitable outcome. ts 128.

352 Further, during cross-examination, Mr Mastrolembo confirmed that Ms Gavril was never in the pool for the Payroll Officer role, as she had never been merit selected for the pool. Accordingly, beyond the limited ‘tap’ leading to the Second Contract, and notwithstanding the ongoing Payroll Officer pool positions, Mr Mastrolembo could not further extend the Second Contract or appoint Ms Gavril to the Payroll Officer role without Ms Gavril being merit selected. ts 125.

353 Therefore, even if vacancies existed in the Payroll Officer pool, Ms Gavril was not eligible for the pool and the respondent cannot be said to have refused to employ her, giving rise to the assessment of any loss.
354 Ms Gavril’s submissions otherwise invite speculation on her purported and subjective amounts of loss, and they do not rise to the level that satisfies the Court on the balance of probabilities that, in fact, she suffered any loss.
Injury
355 Ms Gavril’s evidence is that she was stressed and depressed by ‘these work events’. However, the mere fact that Ms Gavril says she experienced stress and depression, without more, does not satisfy me on the balance of probabilities that the claimant suffered an ‘injury’ as a result of the First to Fifth Alleged Damaging Actions.
356 That is, it may be expected that some degree of ‘distress’ or ‘stress’ or feelings associated with depression may be associated with receiving unexpected or unwanted information. I am not satisfied on the evidence that Ms Gavril’s feelings are outside the limits which would normally be associated with any feelings of disappointment when circumstances are not what she hoped for.
357 I note that ‘injury’ may include injury to pride (or by extension ‘humiliation’). Gilmore v Cecil Bros (1996) 76 WAIG 4434 at 4447.
However, evidence of the injury is still required. I am not satisfied, without more, that Ms Gavril’s subjective expression of humiliation or reputational damage is an injury that falls outside the limits which would normally be associated with actions with feelings of disappointment.
358 Otherwise, there is no evidence, beyond Ms Gavril’s assertions, of any effect that the Alleged Damaging Action may have had on her.
359 Therefore, on the basis of the evidence before the Court, I am not satisfied to the requisite standard that Ms Gavril has suffered any loss or injury as a result of the First to Fifth Alleged Damaging Actions and there is no order for compensation.
360 I note the respondent took issue with the Court’s jurisdiction to award compensation by way of ‘general damages’ due to the effect of s 418 and s 421(4) of the Workers Compensation and Injury Management Act 2023 (WA).
361 For the same reasons expressed in Hughes, I do not intend to discuss this issue where in adapting the principles in Bogunovich, and consistent with s 97B(2)(c) of the IR Act, the Court must first be satisfied that the claimant has suffered any loss or injury as a result of the alleged damaging action. I am reluctant to express a view where the issue was not fully litigated and was a limited issue before the Court.
Conclusion
362 I am not satisfied Ms Gavril has proven to the requisite standard that the First, Third, Fourth and Ninth Complaints were employment-related inquiries or complaints she was able to make for purpose of alleging that any damaging action was taken by the respondent. I am satisfied that the Second Complaint and the Fifth to Eighth Complaints may be characterised employment-related inquiries or complaints Ms Gavril was able to make for the purpose of alleging damaging action was taken by the respondent.
363 However, I am not satisfied Ms Gavril has proven to the requisite standard that the First to Fifth Alleged Damaging Actions amounted to ‘damaging action’, within the meaning of that term under s 97(a) of the IR Act, taken by the respondent.
364 Alternatively, if the First to Fifth Alleged Damaging Actions did constitute damaging action within the meaning of s 97(a) of the IR Act, I am not satisfied that the respondent took the damaging action for the reason or a reason that included, or because, Ms Gavril made the First to Ninth Complaints. That is, I am satisfied the respondent has satisfied its onus on the balance of probabilities.
365 Further, if Ms Gavril proved the First to Fifth Alleged Damaging Actions, I am not satisfied that she has proven to the requisite standard any loss or injury as a result of the First to Fifth Alleged Damaging Actions and no order for compensation would apply under s 97B(2)(c) of the IR Act.
Orders
366 The claimant’s claim is dismissed.



D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Industrial Relations Act 1979 (WA)
Jurisdiction
[1] The IMC has jurisdiction to hear and determine an allegation that an employer has taken damaging action against an employee having regard to the combined reading of s 97A(3), s 97B(1), s 83E and s 81A of the IR Act.
[2] While s 81A of the IR Act does not make express reference to the Court’s jurisdiction to hear and determine an allegation that an employer has taken damaging action against an employee, the clear intent of Part 6B of the IR Act is that the IMC hear and determine these claims.
[3] That is, s 97A(3) of the IR Act provides that a contravention of s 97A(1) is a civil penalty provision for the purposes of s 83E of the IR Act. Section 83E of the IR Act outlines the pecuniary penalties that may be imposed by the IMC if a person contravenes a civil penalty provision. Section 97B of the IR Act provides the orders the IMC may make if the IMC determines that an employer has contravened s 97A(1), including making the orders in addition to imposing a penalty under s 83E of the IR Act.
Burden and Standard of Proof
[4] Where an employee alleges an employer has taken damaging action against them, the employee carries the burden of proving they made an employment-related inquiry or complaint they were able to make, and the action taken was damaging action (as that term is defined in s 97 of the IR Act). The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’: s 83E(8) of the IR Act. 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.
[5] If the employee proves to the requisite standard the elements they are required to prove, the employer must then prove to the same standard, the reasons for, or reasons that include, the damaging action were not because of the employment-related inquiries or complaints made by the employee.
[6] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[7] Subject to the provisions of the IR Act, the procedure of the IMC relevant to claims under s 97A is contained in the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations): s 113(3) of the IR Act. Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[8] In Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40]. (citations omitted)