2026 WAIRC 00178
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00178



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 10 DECEMBER 2025 & THURSDAY, 11 DECEMBER 2025



DELIVERED
:
FRIDAY, 27 MARCH 2026



FILE NO.
:
M 149 OF 2024



BETWEEN
:
RUBEN SANZANA


CLAIMANT





AND





STATE OF WESTERN AUSTRALIA


FIRST RESPONDENT





DIRECTOR GENERAL, DEPARTMENT OF EDUCATION


SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Industrial Relations Act 1979 – Allegation of damaging action taken by employer – Whether the employer took damaging action against the employee – The reasons taken by the employer and whether the employer has discharged its onus – Turns on the facts
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Fair Work Act 2009 (Cth)
Instrument : School Education Act Employees’ (Teachers and Administrators) General Agreement 2021 [2022] WAIRC 00834
Cases referred
to in reasons : Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 00139; (2024) 104 WAIG 322
Hughes v East Metropolitan Health Service [2024] WAIRC 982; 104 WAIG 2560
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
Khiani v Australian Bureau of Statistics [2011] FCAFC 109; (2011) 63 AILR 101-446
Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217
Result : The claim is dismissed
Representation:
Claimant : In person
Respondents : Mr J. Carroll (of counsel)


REASONS FOR DECISION
Background
1 Ruben Sanzana (the claimant) is employed by the State of Western Australia as a teacher within the Department of Education (the Department).
2 The claimant commenced in the remote teaching service (RTS) on 18 June 2021 and was employed on fixed term contracts at various remote schools. While employed on a fixed term contract at Halls Creek District High School in 2023, the claimant became a permanent employee with the Department.
3 On 29 January 2024, the claimant commenced at the Burringurah Remote Community School (BRCS) on a fixed term contract to end on 13 July 2024.
4 The claimant did not undertake teaching duties between approximately 15 July 2024 and 18 November 2024.
5 On or around 18 November 2024 the claimant commenced a relief teaching position followed by a fixed term teaching position at Belridge Secondary College, Perth.
The Claim
6 On 20 November 2024, the claimant lodged an originating claim against the Department under the Industrial Relations Act 1979 (WA) (IR Act). The originating claim did not clearly identify the basis for the claim save that the claimant made reference to ‘a grievance’ he had made against a former Principal, being treated unfairly by the Department and having lost entitlements.
7 At a pre-trial conference, the claimant was ordered to lodge an amended statement of claim, and following orders made by the Court on 15 May 2025, a further amended statement of claim was lodged on 13 June 2025 and 23 October 2025 (the October Amended Claim).
8 The name of the respondent was also amended to the State of Western Australia, and the State did not oppose the addition of a second-named respondent, the Director General, Department of Education (the respondents).
9 The October Amended Claim outlines the claimant’s claim for determination. The October Amended Claim was also clarified with the claimant at the start of the hearing because the claimant has never clearly identified his cause of action beyond stating he made certain complaints and alleging certain things occurred because he did so.
10 However, the claimant also alleged that the Department placed him on leave without pay (LWOP) from 7 October 2024 despite being a ‘permanent teacher and never requesting leave’, October Amended Claim at [14].
which he describes as altering his position to his disadvantage. In a conflation of two issues, he also describes being informed that he was on LWOP because he did not comply with certain requirements, which he says was a ‘clear violation of the Teacher’s Employment Award’. October Amended Claim at [15].

11 Therefore, from the Court’s perspective there was concern that embedded in the October Amended Claim was, arguably, an allegation of the respondents contravening a term of an industrial agreement. The respondents responded to this part of the October Amended Claim admitting the claimant was not paid from 7 October 2024 to 15 November 2024 because he was not teaching at any school and he had not provided the requisite documents to the relevant staff member so as to progress his redeployment.
12 The Court sought to clarify this with the parties after the hearing. The claimant responded to the Court in an email dated 24 February 2026, and he did not raise any further issue to that raised in the October Amended Claim and in the hearing.
13 However, while the respondents attempted to address in closing submissions what they referred to as an ‘entitlement claim’, the second respondent’s position is that the claimant has not identified any entitlement provision he says has been contravened and the claimant should not be allowed to progress such a claim. Further, where the second respondent has never been put on notice of what an ‘entitlement claim’ might be, if any, it is not for the Court to identify a possible claim. The second respondent refers to Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 139; (2024) 104 WAIG 322 at [16].
14 In clarifying the claimant’s claim at the hearing, the Court confirmed the two complaints he said he made, and which were referred to in the October Amended Claim. ts 5.
The Court then asked the claimant to identify the consequences he says occurred as a result of these two complaints. ts 5  6.

15 The claimant informed the Court that the consequences were that he missed out on two job opportunities and was put on LWOP because of the complaints, causing him to lose $15,615 and having his entitlements ‘frozen’. ts 7  9.

16 The Court then requested the claimant to identify what ‘damaging action’ he says the respondents engaged in by reference to the definition of that term in s 97 of the IR Act, to which the claimant responded that his position was altered to his disadvantage (or using the claimant’s words, ‘changed his employment status’). ts 10.

17 To the extent that the October Amended Claim made reference to a ‘clear violation of the Teacher’s Employment Award’ in respect of LWOP, I am satisfied that this was raised only in the context of the claimant’s allegation that the respondents altered his position to his disadvantage, and did not raise a separate cause of action of an alleged contravention of any industrial agreement by the second respondent.
18 Accordingly, the Court has proceeded on the understanding that the claimant’s claim was made only under s 97A of the IR Act, which was confirmed by the claimant at the commencement of the hearing. The claimant’s email dated 24 February 2026 does not alter this.
19 The claimant alleges that he made two complaints on:
(1) 29 April 2024, when he made an informal complaint via email to Jasmine Harris (Ms Harris), the Principal of BRCS, copied to Lisa Criddle (Ms Criddle) and Danielle Wilton, senior district officers, about Ms Harris’ behaviour towards him (the First Complaint); and
(2) 26 June 2024, when he lodged a formal complaint with the Department about Ms Harris’ behaviour towards him (the Second Complaint).
20 The claimant alleges that nothing happened because of the First Complaint, but the First Complaint led to the Second Complaint and the combined effect was that:
(a) he missed out on job opportunities at Ngaanyatjarra Lands School (NLS) and at One Arm Point;
(b) he was placed on LWOP for which he lost $15,615 in salary;
(c) his personal and long service leave entitlements were ‘frozen’; and
(d) he was subject to performance management at Belridge Secondary College.
(the Alleged Damaging Actions).
21 The claimant seeks orders that:
(a) he be credited with six months of additional paid leave for the fourth year of RTS;
(b) he be compensated for $15,615 in unpaid salary for being placed on LWOP;
(c) he be credited with personal and long service leave entitlements; and
(d) the Department stop any further harassment, discrimination and damaging actions against him ‘for complaining about Ms Harris’.
22 At the hearing, the claimant identified that the damaging action he relies upon is s 97(a)(ii) of the IR Act, namely, that his position was altered to his disadvantage.
23 While the respondents admit the claimant sent the First Complaint and the Second Complaint, the respondents deny the circumstances as alleged by the claimant and deny that any damaging action was taken or that the claimant has not and cannot make out a claim of damaging action under s 97A of the IR Act.
Issues for Determination
24 The principal issues for determination in respect of the First and Second Complaints and the Alleged Damaging Actions are:
(1) do the First and Second Complaints amount to ‘employment-related inquiries or complaints’ under s 97A(1) of the IR Act?
(2) does the Alleged Damaging Actions constitute ‘damaging action’ as that term is defined under s 97(a) of the IR Act?
(3) if the First and Second Complaints amount to ‘employment-related inquiries or complaints’ and the Alleged Damaging Actions constitute ‘damaging action’, did the respondents do so for the reason, or reasons that include, that the claimant made the First and Second Complaints? That is, is there a causal link between the Alleged Damaging Actions and the First and Second Complaints?
25 There are also factual issues in dispute.
Legislative Framework
26 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.
27 Section 97 of the IR Act defines certain terms, and, relevant to the Alleged Damaging Actions, 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).
28 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; 104 WAIG 2560 (Hughes) [156]  [158].

29 The Full Court of the Federal Court of Australia in Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301 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;
(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. 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;
(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;
(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;
(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;
(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 precondition;
(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, 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. 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;
(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;
(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. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason; 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.
(citations omitted)
30 Relevant to the October Amended Claim, the claimant bears the onus of proving on the balance of probabilities that:
(1) the First and Second Complaints he said he made or raised were ‘employment-related inquiries or complaints’ he was able to make; and
(2) the Alleged Damaging Actions taken by the respondents were ‘damaging action’ within the meaning of s 97(a) of the IR Act.
31 If the claimant proves that the First and Second Complaints he made were employment-related inquiries or complaints he was able to make and the Alleged Damaging Actions were damaging action taken by the respondents against him, it is for the respondents to prove on the balance of probabilities that it did not do so for the reason, or for reasons that include, the fact that the claimant made the First and Second Complaints.
32 A claim for damaging action does not entitle the claimant to ‘a broad inquiry as to whether [he] 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 [48] referred to in Hughes at [82]  [83].

33 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 [the applicant] wishes to about the validity of the steps taken before [their] 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.
Evidence
34 The claimant’s evidence consisted of three witness statements signed or dated by him on: 8 September 2025 with annexures attached; Exhibit 1 – Witness Statement of Ruben Sanzana signed 8 September 2025 with annexures A  M2.
16 October 2025 with annexures attached; Exhibit 2 – Witness Statement of Ruben Sanzana signed 26 October 2025 with annexures A1  E1.
and 25 November 2025 with annexures attached. Exhibit 3 – Witness Statement of Ruben Sanzana dated 25 November 2025 with annexures 3A  3E.
The claimant also gave oral evidence.
35 The respondents’ evidence included witness statements by: Mark Batka (Mr Batka) signed on 15 September 2025 with annexure MB1; Ms Harris signed on 16 September 2025 with annexures JH1 to JH5; Jason Van Poelgeest (Mr Van Poelgeest) signed on 7 September 2025 with annexures JVP1 to JVP3; and Lucina Barnard (Ms Barnard) signed on 19 September 2025. Ms Harris also provided a supplementary statement dated 28 October 2025.
36 Ms Harris is employed as the Principal of BRCS. She has been employed by the Department since 2002 and has taught in remote areas since 2010. Exhibit 7 – Witness Statement of Jasmine Harris dated 16 September 2025 at [1].

37 Mr Batka is employed as the Principal of One Arm Point Remote Community School (One Arm Point) and has been in this position since April 2025. He has been employed by the Department since 2005 and has worked in remote areas. Exhibit 6 – Witness Statement of Mark Batka dated 15 September 2025 at [1].

38 Mr Van Poelgeest is employed as the Executive Principal of NLS and has been in this position since April 2024. He has been employed by the Department since 2006. Exhibit 10 – Witness Statement of Jason Van Poelgeest dated 16 September 2025 at [1]  [2].

39 Ms Barnard is the Director, Staff Recruitment and Employment Services and has held the position for about 10 years but has been within the Department since 2005. She is responsible for the team which provides support and placement services to employees requiring placement within the Department. Exhibit 9 – Witness Statement of Lucinda Barnard dated 19 September 2025 at [1]  [3].

Undisputed Facts
40 There are some facts which are not in dispute between the parties. Alternatively, there is uncontroverted evidence I consider to be reliable.
41 The claimant is a permanent teacher within the Department.
42 In or around January 2024, Ms Harris offered the claimant a six-month contract as a teacher at BRCS for the first half of 2024. Exhibit 7 at [2].

43 On 29 April 2024 at 8.25 am, Ms Harris emailed the claimant requesting him to provide her with a list of on-line courses he had completed related to literacy before 3.00 pm. Exhibit 7 at JH-1.

44 On 29 April 2024 at 1.00 pm, the claimant sent the First Complaint stating: Exhibit 1 at annexure B; Exhibit 7 at JH-2.

This is to respond your today email, where you are demanding I provide information and evidence of all online PDs I have done in week 2 and I have till 3 pm to do so.
The PDs are as follows:
…
You have sent my colleague, Jessica to supervise me, while I am teaching in my class, without even providing a reason or explanation for it and without prior notification on your intentions to do so.
On one occasion, I asked Jess to demonstrate a practical lesson, using The Reading Eggs Program, as I wasn't familiar with it. She struggled to get all my students engaged in the lesson.
Her students often ask if they can come and work in my class. My students have told me they do not like going to her, when Jess takes my class during my [Duties Other Than Teaching Time].
As you are aware, I have built a strong rapport, not only with my students, but all the school community, specially [sic] the Senior Class (Jessica’s class)
It seems to me that everything I do, is wrong in your eyes and that you go out of your way to find faults.
At the beginning of the year, I had to deal with some serious challenging behaviours in my class. On one occasion, I had to remove a kitchen knife from a student who wanted to stab another student.
In my incident report I described being physically hit a couple of times, while intervening and supressing this dangerous confrontation. Despite my report, you showed no consideration for my wellbeing at all after that event. On the contrary, next day, after you read my report, you came to my class, demanding that I show you the knife and then you just denied the knife I showed you was the knife in question. As if you were there during the incident. You even asked Pricilla, in front of me, if it was the real knife. This demonstrates a lack of empathy and a failure of duty od [sic] care from my perspective.
I have successfully introduced a ‘Cash Reward Program’ in my class. The students enjoy ‘money’ rewards for their good work and behaviours, expecting to earn a toy of their choice. Despite your initial support and agreement to purchase toys, which students had selected from a Kmart Catalogue, if they achieved their targets. Yu [sic] later reneged on this arrangement and refused to purchase the agreed toys. I understand that there are funds for this type of programs in the budget. Furthermore, you are trying to stop me, from buying those toys, with my own funds. The students are working and saving to achieve their goals. How can I tell them that now they will not get their toys? This seems like another attempt to undermine me good relationship with my students.
You seem determinate to make me resign from this teaching post. If this unprofessional harassment against me person doesn't stop, I may have to do that. But I will make a formal complaint to the Department ad [sic] maybe an outside agency, if I don't get justice and more respectful, mature, professional attitude from you.
45 In June 2024, the claimant applied for other RTS positions, including at NLS. Exhibit 1 at [20]; Exhibit 10 at [5] and JVP-1.

46 On 17 June 2024, Scott Fatnowna, Executive Deputy Principal of NLS (Mr Fatnowna), informed the claimant that he would like to make contact with his current Principal and share in their information about his time at BRCS. Exhibit 1 at annexure C.

47 The claimant emailed, in response to a telephone conversation he had with Mr Fatnowna, informing him that he did not get on with his current Principal (Ms Harris) and would rather his former Principal and Deputy Principal at Halls Creek District High School were his referees. Exhibit 1 at annexure C.

48 On 18 June 2024 at 4.16 pm, Ms Harris sent an email to Andrew Cleary (Mr Cleary), School Staffing Support, stating:
Hi Andrew,
Ruben going to be trying to go out into The Lands for work. He had Ngangatjarra or similar written next to his phone. Exhibit 10 at JVP-2.

49 On 18 June 2024 at 4.41 pm, Mr Cleary sent an email to a staff member at NLS stating:
Hi Beck,
Give me a buzz in the morning can you please? (Need to give you a BIG RED FLAG warning with this one…) Exhibit 10 at JVP-2.

50 This email was not copied to Ms Harris.
51 In response to this email, on 19 June 2024, Mr Van Poelgeest spoke separately with Mr Cleary and Ms Harris and made notes of his conversation with them. Exhibit 10 at [11] and JVP-3.

52 Mr Cleary informed Mr Van Poelgeest to speak with Ms Harris at BRCS where there was a reason she was not included as a referee as a current Principal and there were ‘alarm bells’. Exhibit 10 at [12] and JVP-3.

53 On the same day, Mr Van Poelgeest spoke with Ms Harris. Mr Van Poelgeest’s handwritten record of the conversation is:
Poor [behaviour] management
Doesn’t know how to teach lit
Unprofessional dressing at review
Asks for lots of [personal leave]
Doesn’t integrate it
Background: 2 teachers left unexpectedly
Had ppl lined up – ppl pulled out
Panel – CV – not accepted to RTS post previously
Sent CV
Plays the system – knows all his rights – can’t teach
Looking for way out
Looking to sue people Exhibit 10 at JVP-3.

54 Following his conversations with Mr Cleary and Ms Harris, Mr Van Poelgeest spoke with Mr Fatnowna about the claimant. Mr Van Poelgeest decided not to follow up further with the claimant on the basis that there were concerns about his conduct and performance and all of the information made him think that the claimant was not a good fit for NLS. Exhibit 10 at [15]  [17] and JVP-2.

55 Between 21 and 28 June 2024, the claimant took personal leave and did not return to BRCS. Exhibit 1 at [22].

56 On 26 June 2024, the claimant submitted the Second Complaint. Exhibit 1 at annexure D.

57 On 15 July 2024, the claimant commenced paid leave for a period of 10 weeks, in addition to being paid two weeks’ vacation leave prior to taking the 10 weeks’ leave and being paid two weeks’ vacation leave after taking the 10 weeks’ leave.
58 On or around 16 July 2024, the claimant spoke with Mr Batka about commencing a teaching position at One Arm Point and sent him some forms. Exhibit 6 at [3].

59 On 17 July 2024 at 3.08 pm, Mr Batka sent an email to the claimant stating:
Good afternoon, Ruben.
My sincere apologies but we will need to advertise this teaching position officially, for 6 months with a possible 30 month extension. My apologies for getting ahead of ourselves.
Please feel free to apply for the role when it is officially advertised in the next few days.
Once again, my apologies for the confusion and inconvenience. Exhibit 6 at MB1 and Exhibit 1 at F.

60 On 18 July 2024, Mr Batka sent an email to Mr Cleary stating:
Hi Andrew,
…
After talking to members of the local community who sit on our school council and said they would like to be represented on all staffing decisions, I sent Ruben the email below.
I got ahead of myself because of the need for a teacher and rightly so, I was pulled up as due process should be followed.
Ideally, if we advertise and are successful in finding a solid application the school council endorses, it should be a walk in the park to extend the contract. Exhibit 6 at MB1.

61 On 18 July 2024, the claimant received a letter via email from Ms Criddle about the Second Complaint. In this letter, Ms Criddle states:
I have met with the Principal, Ms Harris to discuss your concerns. She has disputed some of your concerns, however, is fully aware of them. Exhibit 1 at annexure G.

62 On 19 July 2024, the claimant received an email from Helen Barnes, a staff member at BRCS, copied to Ms Harris about the state of his classroom. Exhibit 1 at annexure H.

63 On 20 August 2024, the claimant received a letter via email from the Manager Complaints and Integrity Education, Standards and Integrity Directorate about his behaviour towards another staff member and for taking students off premises without permission and without adequate equipment and water. Exhibit 1 at annexure I.

64 On or around 7 October 2024, the claimant was advised that he was on LWOP. Exhibit 1 at annexure J.
The claimant was on LWOP from 7 October 2024 to 15 November 2024.
65 On 8 October 2024, the claimant said he was informed by Mr Cleary that LWOP was imposed because he had not submitted an updated CV, a redeployment statement and a working with children check. Exhibit 1 at [32]. The attachment referred to in Exhibit 1 is not what is stated in the witness statement.
However, the attachment referred to by the claimant in support of this conversation does not refer to LWOP and instead refers to RTS leave. Exhibit 1 at annexure K.

66 On 14 October 2024, the claimant states he was sent a Redeployment Information Package. Exhibit 1 at [33] and annexure L.

67 On 18 November 2024, Mr Cleary arranged for the claimant to undertake a relief teaching position at Belridge Secondary College and the claimant’s salary commenced being paid from that date. Exhibit 1 at [35] and [36].

Disputed Evidence
The Claimant
68 The claimant’s evidence was mainly focused on his grievances with Ms Harris and issues he had while at BRCS. I do not intend on summarising these grievances and issues. They are not matters upon which the Court will making findings to determine the Claim. That is, determination of the Claim does not require the Court to make findings about whether a ‘serious incident’ occurred in a classroom on 14 February 2024 and what Ms Harris did or did not do about that ‘serious incident’ or whether Ms Harris continued to make ‘minor complaints’ about the claimant after the purported success of a ‘Toy Cash Reward Program’.
69 The only observation I make for contextual reasons is that based on their evidence, the claimant had issues with respect to Ms Harris’s management and Ms Harris had issues with the claimant’s behaviour and performance during his employment at BRCS.
70 The claimant made the First Complaint directly to Ms Harris, copied to others in the Department, which he admitted in cross-examination that nothing happened as a result of the First Complaint.
71 The claimant made the Second Complaint to the Department. For reasons that will be explained, he made the Second Complaint using the Department’s online facility after he commenced personal leave on 21 June 2024.
72 Otherwise, in respect of evidence that has not already been covered, the claimant states on 24 July 2024, he attended a ‘Redeployment CV Webinar’, where one of the presenters stated that principals generally contact a teacher’s most recent principal. Exhibit 1 at [29].

73 The claimant states he was on LWOP from 7 October 2024 to 18 November 2024. Exhibit 1 at [34].

74 As outlined, the claimant made a vague reference in the October Amended Claim to there being a ‘violation’ of the ‘Teacher’s Employment Award’ when he was placed on LWOP for not submitting an ‘updated CV, redeployment statement and working with children card.’ October Amended Claim at [15].

75 This was never fully addressed by the claimant beyond referring to the Redeployment Information Pack sent to him by Mr Cleary, Exhibit 1 at annexure L.
which states:
There will be no change in your conditions of employment – you will retain your permanent status as an employee of the Department of Education, but this will likely be at another school or worksite.
Your salary and [full time equivalent] will not change, and you will have no breaks in pay other than any leave you may book.
76 The same document goes on to say:
It is expected that you will:
· provide me with a regularly updated, high quality deployment CV and statement
· engage positively in all vacancy referral activities, including speaking with Principals and line managers about vacancies at their school
· apply for suitable advertised positions at www.jobs.wa.gov.au
· participate in regular performance management and development
· discuss any plans you have for leave exceeding four weeks.
77 On 15 July 2024, Mr Cleary referred the claimant to cl 40.8 and cl 45 of the School Education Act Employees’ (Teachers and Administrators) General Agreement 2021 (Teachers Agreement). Exhibit 1 at annexure K.

78 The claimant states that in May 2025 he ‘learned that Ms Harris had requested [his] performance appraisal as early as August 2024.’ Exhibit 1 at [37].

79 The claimant says that the treatment by Ms Harris and subsequently by the Department has caused him significant stress, financial loss and the forfeiture of an additional six months’ leave entitlement that he would have earned had he completed a fourth year of remote service. He calculates his financial loss as $15,615. Exhibit 1 at [38]  [39].

80 In cross-examination, the claimant confirmed that he did not work in the second half of the school year in 2024 (the BRCS contract being for term one of 2024).
81 The claimant agreed that he did not tell Mr Fatnowna or Mr Batka that he made a complaint about Ms Harris but he said he told Mr Fatnowna that Ms Harris would not provide fair feedback about his performance. ts 18  19.

82 The claimant agreed that as of 15 July 2024 he did not have a contract for RTS and that the leave he took in term three of 2024 was paid RTS leave for 10 weeks, and the two weeks prior to this he was on paid vacation leave and two weeks after he was on further paid vacation leave. ts 21.

83 In relation to the Redeployment Information Pack, Exhibit 1 at annexure L.
the claimant agreed that it made reference to certain requirements by teachers requiring positions, but it also said that his salary would not change and there would be no breach in pay. ts 21  22.

84 The claimant agreed that although he spoke with some principals, he did not apply for any teaching positions in term two of 2024. However, he agreed that he did not provide Mr Cleary with certain information referred to in the Redeployment Information Pack, saying he was not in Australia at the time. ts 22  23.
This information included a Statement of Deployment.
85 Emails between Mr Cleary and the claimant between June and October 2024 show the interactions between the Department and the claimant in relation to trying to secure the claimant a teaching position. Exhibit 4 – emails between Mr Cleary and the claimant from June to October 2024.

86 The claimant was asked about the document he said he saw in May 2025 and which he said was generated by Ms Harris. It was suggested that the document he saw online was a reference to his complaint about Ms Harris and that he completed the online form and provided additional documents via the ICT Self-Service Hub. Exhibit 5 – Attachments A – A1 of the Document Signed by Ruben Sanzana on 2 December 2025, at A and A1.
The claimant seemed confused about what he did although he appeared to accept that he submitted a complaint online, which is consistent with a response document confirming the claimant’s complaint was made via a complaints portal. ts 25  26.

87 The claimant gave evidence to the best of his ability. However, he often focused on issues unrelated to the Claim and had a vague recollection of matters expected to be within his knowledge, such as him making the Second Complaint online. I did not find the claimant to be a reliable witness. I find the contemporaneous documents more reliable than the claimant’s evidence. I also found the respondents’ witness evidence to be more reliable.
Mark Batka
88 In addition to the undisputed facts, Mr Batka stated that following his telephone conversation with the claimant and Deputy Principal Vivian McDermott (Ms McDermott), he had a conversation with one of the Aboriginal Elders at One Arm Point and another person, Keith Bedford. He was reminded that he should discuss the proposed appointment of the claimant with the school council. Mr Batka agreed, stating that he ‘should have known better’, as he always ‘run staffing decisions by council’. As a result, it was decided that the position should be advertised. Exhibit 6 at [4].

89 Mr Batka stated that on this occasion he was under a lot of pressure with the school review and he ‘jumped the gun in [his] telephone conversation with [the claimant]’. Exhibit 6 at [4].

90 Consequently, he retracted his offer to the claimant and the position was advertised, and the claimant did not apply for the position. Exhibit 6 at [5] and [7].

91 In cross-examination, Mr Batka denied the claimant ‘won’ the job or ‘earned’ the position. While Mr Batka spoke with Mr Cleary often about a variety of subjects, he did not recall speaking to Mr Cleary about the claimant. ts 35.

92 Mr Batka maintained that he was under a lot of pressure at the time and admitted that he did not follow ‘due process’ with respect to the teaching position he offered to the claimant and he was reminded of this by members of the school council. That is, there was a requirement for an Aboriginal team member to be part of the recruitment process, and there was no Aboriginal member taking part in the conversation with the claimant, including Ms McDermott who is not Aboriginal. ts 35  37.

93 Mr Batka did not know the name ‘Jasmine’ or ‘Justine’ Harris and he did not speak to the claimant’s referees. ts 38.

Jason Van Poelgeest
94 In addition to the undisputed facts, Mr Van Poelgeest stated that both he and Mr Fatnowna are responsible for teacher recruitment at NLS. Mr Van Poelgeest would have requested Mr Fatnowna to follow up with the claimant by speaking with him, requesting his CV and speaking with the claimant’s referees.
95 Mr Van Poelgeest spoke with Ms Harris, after Mr Cleary recommended that he do so. He said Ms Harris informed him that the claimant had poor behaviour management; did not know how to teach literacy and numeracy; dressed unprofessionally at a review function; asked for a lot of professional development but did not incorporate it into his practice; and had berated her for the number of meetings she was holding with him. Ms Harris also informed him that the claimant had not previously been accepted into the RTS pool following an interview panel, and she gave her view that the claimant could not teach. Exhibit 10 at [13] and JVP-3.

96 In cross-examination, Mr Van Poelgeest denied being aware of any of the claimant’s issues with Ms Harris because he had been told something by Mr Fatnowna. ts 75  77.

97 Mr Van Poelgeest denied having seen the emails between the claimant and Mr Fatnowna dated 14 and 17 June 2024 Exhibit 1 at annexures C and C1.
and the first time he had seen them was in Court during cross-examination. ts 76.
He denied knowing the claimant had made a complaint about Ms Harris at the time of the claimant’s application to teach at NLS. ts 77  78.

98 Mr Van Poelgeest said he had never seen the First Complaint. Exhibit 1 at annexure B; ts 78.

99 Mr Van Poelgeest maintained that his handwritten notation of the conversations with Ms Harris and Mr Cleary was everything he noted from the conversations. ts 77 referring to JVP-3.

100 Mr Van Poelgeest denied Mr Cleary spoke about any complaint about Ms Harris and he did not recall that being said or mentioned. ts 77.

101 Mr Van Poelgeest said he was not aware of any formal complaint about Ms Harris. Mr Van Poelgeest maintained that it was Mr Cleary who advised him to be in contact with Ms Harris and he contacted Ms Harris on the same day. The information provided by Ms Harris was more detailed but similar to the information provided by Mr Cleary. Mr Van Poelgeest said Mr Cleary initiated contact with NLS. ts 79.

102 Mr Van Poelgeest said that it was normal practice to provide details of a teacher’s current line manager (for the purpose of recruitment) and if this was not done the current line manager can still be contacted. ts 79.

Lucinda Barnard
103 Ms Barnard explained that the claimant’s appointment to the RTS finished at the end of the second term in 2024. He was then required to take his RTS leave where he was an employee requiring placement within the Department. As an employee requiring placement, the claimant was required to participate in the process of identifying an alternative placement. Exhibit 9 at [4].

104 When teachers take RTS leave after completing RTS and require placement in another position, they are placed in an ‘unattached position’ on the Department’s payroll system, known as HRMIS. Exhibit 9 at [5].

105 When an alternative position is located while a teacher is on RTS leave, they are moved from the ‘unattached position’ to the new position effective from their RTS leave completion and no further support is required from Recruitment and Employment Services. Exhibit 9 at [6].
In that situation, once the staff member returns from RTS leave and commences working in the new position, their pay continues as usual.
106 For teachers who remain ‘unattached’ at the end of their RTS leave (for example, where no new position has been found), it was the practice of some payroll officers to place the employee on LWOP from the end date of their paid leave so that the employee was not overpaid when the paid leave ended. Exhibit 9 at [7].

107 Ms Barnard explained that this practice has now ceased. That is, teachers on RTS leave who remain ‘unattached’ at the end of their RTS leave will only be placed on LWOP at the instruction of a senior officer in Recruitment and Employment Services. Exhibit 9 at [8].

108 Ms Barnard reviewed the claimant’s payroll records and confirmed the claimant was put on LWOP as part of the former practice due to him being recorded and remaining in an ‘unattached position’ at the conclusion of his RTS leave. This former practice has now ceased. Exhibit 9 at [9].

109 In cross-examination, Ms Barnard further explained that the process of placing RTS teachers with an ‘unattached position’ on LWOP had changed, but she could not say whether the process had changed because of the claimant’s situation. ts 48.

110 That is, the former process was for RTS teachers who were identified as ‘unattached position’ to be put on LWOP to prevent overpayments without obtaining senior officer instruction. The current process is for the payroll team to obtain direction from an officer in Staff Recruitment and Employment Services before the RTS teacher was put on LWOP. ts 48.

111 HRMIS will ‘flag’ to a payroll officer that RTS leave is ending and the teacher does not have a new position or is not in a position. Ms Barnard is not sure if the teacher gets notice of the commencement of LWOP. ts 50.

112 Ms Barnard said there are reasons why a teacher may want to remain on LWOP, for example if the teacher did not want to come back to work. If a teacher did want to come back to work but no position was located for them, their pay would be resumed. In the claimant’s case, he was difficult to get in contact with, and it was then difficult to place him. ts 49.

Jasmine Harris
113 Similar to the claimant, Ms Harris goes into considerable detail in response to the claimant’s evidence about matters which the Court will not be making findings on.
114 That is, Ms Harris provides answers to the grievances and issues raised by the claimant in his evidence, no doubt because she wanted to ensure her side of the story was recorded and because the claimant ‘pleaded’ the claim in the way that he did.
115 However, as already stated and for contextual purposes, Ms Harris had issues or difficulties with the claimant’s behaviour and performance while he was at BRCS, which she sought to address. The Court is not required to make findings on whether Ms Harris dealt with those issues properly or if she could have dealt with them differently or better.
116 Otherwise, Ms Harris states that she recalled speaking with Mr Van Poelgeest and Mr Fatnowna and provided an honest reference based on her experiences and observations of the claimant. This was around 19 June 2024. Exhibit 7 at [73].

117 Ms Harris states she had no contact with anyone from One Arm Point concerning the claimant. Exhibit 7 at [74].

118 Ms Harris also states that the claimant’s last day working at BRCS was on 20 June 2024 and he did not return to the school after he submitted a medical certificate for the period between 21 to 28 June 2024. Exhibit 8 at [3]  [4].

119 Ms Harris denies making a performance appraisal request for the claimant in August 2024. She said that the claimant was no longer at BRCS, and she was no longer his principal so she would have no reason to request for his performance to be appraised. Exhibit 8 at [6]  [7].

120 In cross-examination, Ms Harris explained her understanding of the nature of the First Complaint but she said that it did not seem like a complaint and described it as a response to an email sent by her to the claimant. Ms Harris had no response from the Department’s District Office about the First Complaint. ts 61.

121 Ms Harris said she would have had conversations with Mr Cleary about the claimant but in the same way that she has similar conversations with him about many teachers. ts 62.

122 Ms Harris outlined the reference she gave to NLS about the claimant. ts 62  63.

123 Ms Harris denied seeing the Second Complaint and she only found out about it in December 2024 when the claimant made a complaint to the Human Rights Commission. She was aware the claimant had contacted the Department’s District Office, but she did not know the extent of what his complaints were about. ts 65.

124 Ms Harris denies that she was informed of the Second Complaint or the complaints made by the claimant more generally. She cannot explain why Ms Criddle said she was ‘fully aware’ Exhibit 1 at annexure G.
of the Second Complaint because she was not and she has never been provided with a copy to answer to it. ts 65  66.

125 Ms Harris maintained her denial that she ‘put a performance appraisal’ on the claimant.
126 Ms Harris denied taking any form of retaliatory action against the claimant because he made complaints about her. She said her only concern was for the students and making sure they had the best person for the job in teaching them. ts 70.

127 The respondents’ witnesses gave evidence truthfully and it was consistent with other evidence, including the respondents’ other witness evidence. Overall, I find their evidence to be credible and reliable.
Findings of Fact
128 I accept and find as follows:
(a) Mr Van Poelgeest was not aware of any complaint made by the claimant about Ms Harris when he spoke with her about the claimant after the claimant expressed interest in a teaching position at NLS;
(b) Mr Van Poelgeest spoke with Ms Harris in her capacity as the claimant’s current or more recent principal and she gave her opinion about his teaching performance;
(c) NLS made no offer of a teaching position to the claimant. The claimant expressed interest in a teaching position and Mr Van Poelgeest determined that the claimant was not the right fit for NLS;
(d) Mr Batka was not aware of any complaint the claimant made about Ms Harris, did not know Ms Harris, and did not speak with her before he retracted the offer of a teaching position at One Arm Point;
(e) the claimant did not ‘win’ or ‘earn’ a teaching position at One Arm Point. He applied for a teaching position at One Arm Point and Mr Batka erroneously offered him a position before having approval by the school council; and
(f) Ms Harris was not aware of the extent of the Second Complaint until December 2024, and I accept her evidence that any discussion she had with Ms Criddle was brief and did not go into detail about the content of the Second Complaint. Ms Harris cannot speak to the contents of Ms Criddle’s letter.
Was the First and Second Complaints ‘Employment-Related Inquiries or Complaints’ the Claimant was Able to Make?
129 The respondents accept that the form and content of the First Complaint and the Second Complaint are capable of being characterised as ‘employment-related inquiries or complaints’ the claimant was able to make for the purposes of s 97A of the IR Act.
Did the Alleged Damaging Actions Constitute Damaging Action Within the Meaning of s 97(a) of the IR Act?
130 The respondents accept that aspects of the Alleged Damaging Actions are capable of being characterised as ‘damaging action’ within the meaning of s 97(a)(ii) of the IR Act, including being placed on LWOP (and ‘losing salary’) and ancillary to that, the effects on personal leave and long service leave. However, even if these actions are characterised as damaging action, the respondents say they were not carried out for a reason or reason that included the First and Second Complaints.
131 The respondents do not accept that the claimant ‘missing out’ on the job opportunities at NLS and One Arm Point constitutes ‘damaging action’ within the meaning of s 97(a)(ii) of the IR Act, although it accepts that the character of each is, arguably, different. However, if this action is characterised as damaging action, again, the respondents say it was not carried out for a reason or reason that included the First and Second Complaints.
132 The respondents do not accept that the claimant being placed on performance management at Belridge Secondary College constitutes ‘damaging action’ within the meaning of s 97(a)(ii) of the IR Act. However, if this action is characterised as damaging action, again, the respondents say it was not carried out for a reason or reason that included the First and Second Complaints.
Missing Out on Job Opportunities
133 The claimant says NLS initially expressed interest but then subsequently ceased communication with him, and this constitutes damaging action.
134 The respondents say that Mr Fatnowna, of NLS, initially showing interest in offering the claimant a position and then losing interest does not amount to ‘damaging action’ within the meaning of s 97(a)(ii) of the IR Act.
135 The difficulty for the claimant is that the found facts do not support any offer of a position at NLS. At best, NLS were making enquiries with a view to appointing a suitable teacher to a position at NLS. The claimant’s position as a permanent employee, as either an RTS teacher or as a non-RTS teacher, had not been altered. At the end of the contracted period at BRCS, the claimant was required to find or be allocated another teaching position, a process which he was required to engage in. There was no requirement for the Department to place the claimant at NLS and there was no requirement for NLS to make an offer to the claimant.
136 This is not to say that there might not be occasions where missing out on a job opportunity constitutes damaging action, however, the facts in this case as it relates to an expression of interest at NLS do not go so far as to show that the claimant was given any promise for a position. He expressed an interest and NLS decided not to pursue the claimant’s interest any further.
137 The claimant says the retraction of the offer of a teaching position at One Arm Point also constitutes damaging action.
138 The respondents say that the offer of a position at One Arm Point and its subsequent retraction may constitute ‘damaging action’ within the meaning of s 97(a)(ii) of the IR Act. However, the reasons for the retraction explained by Mr Batka demonstrate that it was unrelated to the First and Second Complaints.
139 It is at least open to the Court to consider that the retraction of the offer of a teaching position at One Arm Point may constitute ‘damaging action’ within the meaning of s 97(a)(ii) of the IR Act. That is, in the circumstances, the claimant had an offer of future employment and then he did not, and to that extent, on the view most favourable to the claimant, his position was altered to his disadvantage.
Performance Management
140 The claimant says he was placed on performance ‘appraisal’ (or management) when he commenced full time at Belridge Secondary College in early 2025. Prior to that from 18 November 2024, he was teaching in a relief position at Belridge Secondary College.
141 However, he provides no detail or evidence as to how his position as a teacher was in some way altered to his disadvantage because he was placed on performance management.
142 He later says that he suffered stress, but any such assertion was merely in a general sense and suffering stress does not alter his position as a teacher.
143 While there might be occasions where an employee being placed on performance management does, in fact, alter their position to their disadvantage, the evidence in this claim does not rise to one of those occasions.
144 Accordingly, I am not satisfied, nor do I find, that being placed on performance management at Belridge Secondary College amounted to ‘damaging action’ within the meaning of s 97(a)(ii) of the IR Act.
145 For the sake of completeness, the same evidence would not satisfy me that the claimant was otherwise injured in relation to his employment within the meaning of s 97(a)(iv) of the IR Act.
If the Action Taken was Damaging Action, was it Taken Because the Claimant made an Employment-Related Inquiry or Complaint?
146 Notwithstanding the determination in relation to the missed job opportunity at the NLS and being placed on performance management or appraisal, I will consider whether all of the Alleged Damaging Actions were taken because the claimant made the First and Second Complaints.
147 Where an employee alleges an employer has taken action against them, if the employee proves the action was damaging action and the employee alleges that the damaging action was taken for the reason or reasons that include the employee made or was able to make an employment-related inquiry or complaint (assuming the employee also proves this element), the onus shifts to the employer to prove that the employer was not motivated by the reason alleged.
148 If the employer does not discharge the onus, the reason alleged by the employee stands as proof of the fact that the employer has taken damaging action for that reason alleged (or reasons that include the reason alleged).
149 In considering whether the employer has discharged its onus, the Court is to determine why the employer took the damaging action and ask if it was wholly or in part because the employee made or was able to make an employment-related inquiry or complaint.
150 In determining why the employer took the damaging action, the Court’s inquiry is into ‘the reason’ by the decision-maker (or decision-makers) for taking the action and to determine if the ‘substantial or operative reason’ (or reasons that included) was because the employee made or was able to make an employment-related inquiry or complaint.
151 This 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. Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 at [55] and the cases referred to therein.

The Reasons or Reasons Alleged by the Claimant for the Taking of the Damaging Action
152 The claimant alleges the Alleged Damaging Actions were because he made the First and Second Complaints about Ms Harris.
153 The claimant did not identify who was the decision-maker in respect of any of the Alleged Damaging Actions. He merely attributed the alleged consequences of the First and Second Complaints about Ms Harris and retaliatory action by her, or more generally to the respondents.
154 Therefore, it has largely been left to the Court to fill in the blanks.
Missing Out on Job Opportunities at NLS and One Arm Point
Who Was the Decision-Maker?
155 In respect of the decision to not proceed further with the claimant’s expression of interest for a teaching position at NLS, Mr Van Poelgeest and Mr Fatnowna discussed Mr Van Poelgeest’s telephone conversations with Mr Cleary and Ms Harris. Exhibit 10 at [16].
However, I am satisfied that Mr Van Poelgeest was the principal decision-maker with Mr Fatnowna agreeing with his assessment.
156 In respect of the decision to retract the offer of a teaching position at One Arm Point, the decisionmaker or makers were members of the school council and Mr Batka.
The Reasons Relevant to Mr Van Poelgeest and NLS
157 Mr Van Poelgeest explained that in light of the information provided by Mr Cleary and Ms Harris, and his discussions with Mr Fatnowna, concerning the claimant’s behaviour and performance at his previous school and all of the information he had received, he decided the claimant was not a good fit for NLS. He did not follow up the claimant’s expression of interest as a result. Exhibit 10 at [17].

158 In cross-examination, Mr Van Poelgeest denied being aware of the First Complaint (the Second Complaint had not been made at the time the claimant made enquiries with NLS), denied being aware of any formal complaint about Ms Harris, and denied that Mr Cleary informed him of any complaint made about Ms Harris.
159 The contemporaneous note made by Mr Van Poelgeest of his conversations with Mr Cleary and Ms Harris about the claimant, and his subsequent emails with Mr Fatnowna, are consistent with his witness statement and his oral evidence.
160 I am satisfied that if missing out on a job opportunity at NLS constituted damaging action and if the respondents took this damaging action, then the reason for doing so, as it relates to Mr Van Poelgeest, was not because the claimant made the First or Second Complaints, a combination of them both, or for reasons that include the claimant was able to, or did, make the First or Second Complaints.
161 Simply put, Mr Van Poelgeest had no knowledge of any complaint made by the claimant about Ms Harris and had no knowledge of the First or Second Complaints (noting the Second Complaint had not yet been made).
162 Mr Van Poelgeest made his own assessment based on his discussion with Mr Fatnowna and his discussions with Mr Cleary and Ms Harris, which was solely about the claimant’s behaviour and performance at BRCS. To that end, Ms Harris’s discussions with Mr Van Poelgeest did not reference any complaints made by the claimant about her. I accept Ms Harris’s evidence that she was not motivated to take retaliatory steps against the claimant when she spoke with Mr Van Poelgeest, particularly where on her evidence she did not view the First Complaint as a complaint but a response to an email sent by her to the claimant, she was not aware of the Second Complaint or its substance until after she spoke with Mr Van Poelgeest and her motivation was to do the right thing for the students.
163 There is no evidence that in any way casts doubt on Mr Van Poelgeest’s evidence of his reasons for not following up further with the claimant in respect of a teaching position at NLS.
164 I am satisfied, and I find that, as it relates to Mr Van Poelgeest’s reasons for not following up further with the claimant for a teaching position at NLS, if the alleged damaging action was taken, the respondents have discharged their onus set out in s 97A(2) of the IR Act, and I am satisfied that First and Second Complaints made by the claimant was not a substantive and operative reason or included as a substantive or operative reason for the decision.
The Reasons Relevant to Mr Batka and the One Arm Point School Council
165 Mr Batka explained that following a conversation with Aboriginal members of the school council, he realised that he had ‘jumped the gun’ and made the job offer to the claimant without first seeking approval of the school council for teaching appointments. He retracted the offer made to the claimant and the teaching position was advertised. Exhibit 6 at [4]  [5].

166 Mr Batka further explained he was under a lot of pressure at the time with the school review.
167 In cross-examination, Mr Batka denied knowing Ms Harris and denied speaking to Mr Cleary about the claimant.
168 The contemporaneous emails between Mr Batka, Mr Cleary and the claimant sent on 17 and 18 July 2024 are consistent with his witness statement and his oral evidence.
169 I am satisfied that the retraction of the offer of a teaching position at One Arm Point was not for the reason, as it relates to Mr Batka or the One Arm Point school council, that the claimant made the First or Second Complaints, a combination of them both, or for reasons that include the claimant was able to, or did, make the First or Second Complaints.
170 Simply put, Mr Batka had no knowledge of any complaint made by the claimant about Ms Harris, he had no knowledge of the First or Second Complaints, and did not know Ms Harris in any event.
171 Mr Batka, by his own admission, did not follow the correct procedure as it related to the appointment of teachers at One Arm Point, and when advised of this, took steps to remedy his error.
172 There is no evidence that in any way casts doubt on Mr Batka’s evidence of the reasons for retracting the offer of a teaching position at One Arm Point.
173 I am satisfied, and I find that, as it relates to Mr Batka’s reasons (and the school council’s reasons) for retracting the teaching position at One Arm Point, if the alleged damaging action was taken, the respondents have discharged their onus set out in s 97A(2) of the IR Act, and I am satisfied that the First and Second Complaints made by the claimant was not a substantive and operative reason or included as a substantive or operative reason for the decision.
LWOP/Leave Entitlements
Who Was the Decision-Maker?
174 The claimant does not identify any person as the decision-maker who he says placed him on LWOP. The claimant says this was part of the retaliatory action taken because he made the First and Second Complaints.
175 Other than Ms Barnard’s evidence about the practice of ‘some payroll officers’ exercising a discretion to put unallocated teachers on LWOP, there was no other evidence of which payroll officer made the decision to put the claimant on LWOP in or around 7 October 2024.
176 Mr Cleary followed up with the claimant informing him of the reason he was placed on LWOP but it does not follow that he was the person who made the decision to do so. If the claimant is suggesting Ms Harris was the decision-maker, Ms Barnard’s evidence completely refutes this suggestion.
177 Assuming in some general sense it was the respondents who made the decision, the reasons for doing so can best be explained by Ms Barnard.
The Respondents’ Reasons
178 Ms Barnard explained that for teachers on RTS leave who remained unattached at the conclusion of their leave, the former practice within the relevant department was for individual payroll officers to place the unattached teacher on LWOP so they were not overpaid.
179 This practice remains but the difference is that it is now not up to individual payroll officers to make that decision, but the same decision is made at the instruction of a senior officer within Ms Barnard’s team. Exhibit 9 at [7]  [8].

180 Ms Barnard’s review of the claimant’s payroll records shows the claimant was placed on LWOP as part of the Department’s former practices due to him remaining ‘unattached’ at the end of his RTS leave.
181 While the claimant relied upon a conversation from Mr Cleary explaining why he was on LWOP (the content of the conversation being the claimant had not provided the Department with updated documents), the email the claimant relies upon in support of this conversation does not refer to LWOP but refers to RTS leave.
182 The respondents say the claimant did not have a contract for term three in 2024 and was on paid student vacation leave from 1 to 12 July 2024 (that is, the school holidays). Since the claimant did not have a contract for term three, and the claimant had accrued 10 weeks’ RTS leave, he was required to clear this leave before commencing at a school outside of the RTS pursuant to cl 45.4 of the Teachers Agreement. Therefore, the claimant was on RTS leave from 15 July 2024 to 20 September 2024. From 23 September 2024 to 4 October 2024 the claimant was again on paid student vacation leave (that is, school holidays).
183 The respondents say the claimant was on LWOP between 7 October 2024 and 15 November 2024 because during this period he was not teaching at any school and had not provided the relevant documents and information to Mr Cleary enabling Mr Cleary to progress the claimant’s redeployment within the Department.
184 Mr Cleary found the claimant a fixed term teaching position at Belridge Secondary College and the claimant resumed a paid position from 18 November 2024.
185 In closing submissions, the respondents referred to cl 45 of the Teachers Agreement in the context of demonstrating that the claimant’s assertion that he ‘missed out’ on six months of leave, if he had completed an extra year of service, was incorrect. That is, pursuant to cl 45.1 of the Teachers Agreement, the RTS leave entitlement was 22 weeks upon completion of eight semesters, inclusive of the 10 weeks’ entitlement after six semesters. On the assumption the claimant proved his claim, the entitlement he ‘missed out on’ could only be 12 weeks. In further explanation, the respondents again referred to cl 45.4 of the Teachers Agreement requiring the clearance of all RTS leave before an employee commences at a school outside the RTS, disputing the claimant’s assertion that he was ‘forced’ to take RTS leave. It was a requirement under the Teachers Agreement that he do so.
186 I am satisfied that the claimant being placed on LWOP was not for the reason or reasons that included because the claimant made the First or Second Complaints or the combination of them both.
187 Simply put, Ms Barnard’s evidence is that this was done as a matter of departmental practice for teachers who remained in an unattached position on HRMIS. The practice remains the same, but the approval process has changed.
188 There is no evidence that in any way casts doubt on Ms Barnard’s evidence of the reasons for the claimant being placed on LWOP, and the consequential ‘freezing’ of leave entitlements.
189 Further, whether the procedure for placing the claimant on LWOP was correct or incorrect, the reasons why this occurred as explained by Ms Barnard bears some relationship with the information contained in the Redeployment Information Pack in that the claimant was required to engage in the redeployment process.
190 I am satisfied, and I find that, as it relates to the respondents’ reason for placing the claimant on LWOP (and the consequential ‘freezing’ of leave entitlements), the respondents have discharged their onus set out in s 97A(2) of the IR Act, and I am satisfied that the First and Second Complaints made by the claimant was not a substantive and operative reason, or included as a substantive or operative reason, for the decision.
Performance Management
Who Was the Decision-Maker?
191 The claimant states that he found out in May 2025 that Ms Harris was the person who requested his ‘performance appraisal’ after he commenced at Belridge Secondary School in early 2025.
192 The claimant states he saw a document on the Department’s internal system from August 2024 which he says was attributable to Ms Harris.
193 Ms Harris disavows that she ever requested for the claimant to be subject to performance appraisal in August 2024 or at all. She denies generating such a request in August 2024 because at the time she was no longer the claimant’s principal and would have no reason to request his performance appraisal.
194 In cross-examination, it was put to the claimant that the document he saw was a reference to his complaint about Ms Harris and that he completed the online form and provided additional documents via the ICT Self-Service Hub. Exhibit 5 at Documents A and A1.
The claimant seemed confused about what he did although he appeared to accept that he submitted a complaint online. ts 25  26.

195 I accept Ms Harris’ evidence that she was not involved in any performance appraisal request in August 2024 or when the claimant attended Belridge Secondary College in early 2025. Her evidence was unequivocal and there was a sound basis for her evidence. The claimant’s evidence was based on something he thinks he saw but that something seems to be his own complaint submitted via the Department’s online platform.
196 Who placed the claimant on performance management at Belridge Secondary College is unknown, but it was definitely unrelated to any decision made by Ms Harris. The claimant alleges that she did so because he made the First and Second Complaints about her.
197 There is simply no evidentiary nexus between any decision (not) made by Ms Harris, the First and Second Complaints and the claimant being subject to performance appraisal at Belridge Secondary College.
198 In those circumstances, I am satisfied, and I find that the respondents have discharged their onus set out in s 97A(2) of the IR Act, and I am satisfied that the First and Second Complaints made by the claimant was not a substantive and operative reason or included as a substantive or operative reason for the decision to place the claimant on performance appraisal at Belridge Secondary College.
Conclusion
199 I am not satisfied that the claimant has proven to the requisite standard the respondents took damaging action against him in relation to the missed job opportunity at NLS or when he was subject to performance management at Belridge Secondary College.
200 However, if these actions did amount to damaging action within the meaning of s 97(a)(ii) of the IR Act, I am satisfied that any such damaging action was not for the reason or a reason that included, or because the claimant made employment-related inquiries or complaints, being the First and Second Complaints.
201 That is, I am satisfied that the respondents have discharged their onus under s 97A(2) of the IR Act as it relates to the missed job opportunity at NLS and performance management at Belridge Secondary College.
202 While I am satisfied that the retraction of the offer of a teaching position at One Arm Point and the placing of the claimant on LWOP (with the consequential effects on any leave) may amount to ‘damaging action’ within the meaning of s 97(a)(ii) of the IR Act, I am satisfied that any such damaging action was not for the reason or a reason that included, or because the claimant made employment-related inquiries or complaints, being the First and Second Complaints.
203 That is, I am satisfied the respondents have discharged their onus under s 97A(2) of the IR Act as it relates to the retraction of the offer of a teaching position at One Arm Point and the placing the claimant on LWOP.
Outcome
204 The 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)