Craig-Bennet v Great Western Area Health Service (EOD) - [2011] NSWADTAP 38

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Craig-Bennet v Great Western Area Health Service (EOD) [2011] NSWADTAP 38
Hearing dates: 6 June 2011
Decision date: 29 August 2011
Jurisdiction: Appeal Panel - Internal
Before: Appeal Panel comprising
M Chesterman, Deputy President
S Rice, Judicial Member
E Hayes, Non-judicial Member
Decision:
1. The appeal is dismissed.
2. No order as to costs.

Catchwords: Discrimination on ground of disability - discrimination against applicant for employment - victimisation
Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Cases Cited: Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308
Council of the New South Wales Bar Association v Archer (No 4) [2004] NSWADT 235
Craig-Bennet v Great Western Area Health Service [2011] NSWADT 30
Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164
RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082
Walker v State of New South Wales [2003] NSWADT 13
X v Commonwealth [1999] HCA 63
Texts Cited: C Ronalds, Discrimination Law and Practice, Sydney, Federation Press, 1998
Category: Principal judgment
Parties: Marion Craig-Bennet (Appellant)
Great Western Area Health Service (Respondent)
Representation: Counsel
M Hutchings (Respondent)
P Bennet (Appellant - agent)
McIntosh, McPhillamy & Co (Respondent)

File Number(s): 119009
Decision under appeal

Citation:

[2011] NSWADT 30

Date of Decision:

2011-02-24 00:00:00

Before:

Equal Opportunity Division

File Number(s):

101034, 101055, 101104

REAsons for decision

Introduction

APPEAL PANEL (M CHESTERMAN (DEPUTY PRESIDENT), S RICE (JUDICIAL MEMBER), E HAYES (NON-JUDICIAL MEMBER)): This is an appeal against a decision of the Equal Opportunity Division of the Tribunal ( Craig-Bennet v Great Western Area Health Service [2011] NSWADT 30) dismissing three complaints under the Anti-Discrimination Act 1977 ('the AD Act') brought by the Applicant/Appellant, Ms Marion Craig-Bennet, against the Respondent, the Great Western Area Health Service.

The hearing before the Tribunal took place in Dubbo on 16 and 17 November 2010. Pursuant to directions by the Tribunal, written submissions were filed subsequently.

The Tribunal's decision was delivered on 24 February 2011. The Applicant's Notice of Appeal was received by the Registry 27 days later, on 23 March 2011. Correspondence then ensued between the Applicant and the Registry regarding waiver of the filing fee. A waiver was granted and the Notice was formally recorded as having been filed on 29 March 2011. The latter date would appear to be outside the time-limit of 28 days prescribed for appeals by section 113(3)(a) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). But in these circumstances we do not think (and the Respondent did not argue) that leave to institute the appeal was required under section 113(3)(b). If such leave was required, we grant it.

The hearing of the appeal took place before us on 6 June 2011. We gave leave for the Applicant's husband, Mr Paul Bennet, to represent her as her agent, and to do so by telephone. Mr Hutchings of counsel appeared for the Respondent. This is the same representation as the parties had at the Tribunal hearing in Dubbo.

In the first of her three complaints, the Applicant alleged unlawful discrimination on the ground of disability, occurring in the context of her having been unsuccessful in her application for permanent employment with the Respondent as a Dental Assistant at Dubbo Community Dental Clinic. The disability that she identified was that she suffered from hypoglycaemia. In each of the second and third complaints, she alleged victimisation by the Respondent, resulting from her having complained about this alleged discrimination to the Anti-Discrimination Board (hereafter 'the ADB') and to the Tribunal.

In the Notice of Appeal, it was alleged in all but one of the first nine grounds that at the Tribunal hearing the Applicant was denied procedural fairness or suffered in some other way from procedural error. It is convenient to discuss these matters first, then to consider substantive aspects of the Tribunal's decision, dealing with each of the three complaints separately.

procedural matters

In her Notice of Appeal and in her submissions, the Applicant maintained that the Tribunal had failed in a number of ways to observe the procedural requirements of section 73 of the ADT Act.

The relevant provisions within section 73 state:-

73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:...

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal:...

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases...

The Applicant claimed that the Tribunal failed to make proper use of the two hearing days allocated to the case. She maintained that it unnecessarily prolonged the hearing by engaging in 'over application of the rules of evidence', thereby contravening section 73(2). An associated claim in her Notice of Appeal was that the Tribunal 'failed to apply the rules of the Tribunal, rather treating the hearing like a court'.

When asked by a member of the Appeal Panel why the Tribunal had made a number of deletions from the Applicant's affidavit evidence in the course of admitting it, Mr Hutchings replied that this was not due to 'over application of the rules of evidence'. Instead, the evidence had included passages of irrelevant material and passages in relation to which legitimate objections as to form prompted the Tribunal to grant leave for the matters in question to be dealt with in oral evidence.

In our opinion, these claims of 'over application of the rules of evidence' and 'treating the hearing like a court' have not been made out. The Applicant has not identified any specific instances of this alleged behaviour by the Tribunal, nor has she furnished any evidence as to the impact that it might have had on the progress of the hearing. The mere fact that the Tribunal took time to delete certain passages from affidavits that it admitted into evidence is not sufficient in itself (for reasons such as Mr Hutchings advanced) to substantiate this claim. Even if these claims were made out, they would not establish a need for appellate intervention, on the ground of error of law, unless they led to a denial of procedural fairness.

The Applicant alleged also that the Tribunal brought the hearing in Dubbo to a premature close, at about 2 p.m. on the second day, in order that the panel members could catch a flight back to Sydney later that afternoon. In consequence, she claimed, section 73(4)(c) was contravened, because (a) the Applicant did not have sufficient time to cross-examine Mr Meyers and (b) the parties were denied the opportunity to present their arguments fully at the hearing, being compelled instead to rely on written submissions, filed later.

At the hearing before us, however, Mr Bennet conceded that when the Tribunal indicated that the time allowed to him to cross-examine Mr Meyers was limited, he said that if after the hearing he could file supplementary submissions and tender some documents, the Applicant would be sufficiently 'protected'.

In addition to relying on this concession, Mr Hutchings maintained that one of the reasons why the Tribunal had limited the cross-examination of Mr Meyers and called for written submissions was that Mr Bennet had failed to confine the Applicant's case to what was relevant. He had spent an unnecessarily long period of time, for instance, trying to establish that the selection panel knew that the Applicant suffered from hypoglycaemia.

Once again, we are not persuaded that the procedure adopted by the Tribunal denied procedural fairness to the Applicant or was in some other way erroneous. Its direction that the cross-examination of Mr Meyers should be limited in time was within the scope of a power expressly conferred by section 73(5)(d) of the ADT Act and did not, as indeed Mr Bennet acknowledged at the time, cause irremediable prejudice to the Applicant. Its direction that the parties file written submissions after the hearing was within the scope of the power conferred by section 73(5)(c) and in accordance with the common practice of the Tribunal.

A further claim by the Applicant was that the Tribunal improperly excluded from her evidence an affidavit by Mr Bennet, thereby breaching an agreement between the parties that he claimed to have arisen in the following circumstances. The hearing dates first fixed for the case, which were in September 2010, were vacated at the request of Mr Christopher Nicholls, the Respondent's solicitor. In a letter to the Registrar dated 21 September 2010, Mr Bennet stated that he had agreed not to oppose this request in consideration for some 'concessions'. One of these was that he would be 'able to lodge an affidavit in response to [the Respondent's] affidavits' because he had been present at certain meetings. At the hearing, however, the Tribunal ruled that this affidavit by Mr Bennet should not be admitted.

In response, Mr Hutchings maintained that the Tribunal had excluded Mr Bennet's affidavit on the ground that its contents were irrelevant. He submitted that any agreement such as Mr Bennet's letter described could not, and did not purport to, bind the Tribunal to admit evidentiary material that it deemed to have little or no relevance to the issues that it had to determine.

We agree with this submission and accordingly reject this claim by the Applicant.

A further procedural error claimed by the Applicant was that the Tribunal had taken the Respondent's written submissions into account even though they had been filed three weeks late and no leave to exceed the time allowed had been granted. We note, however, that the three-week period coincided with the Christmas and New Year holidays. More significantly, no prejudice whatsoever to the Applicant was alleged. For this reason, the lateness could not constitute a ground for appellate intervention.

Finally in this context, the Applicant claimed that the Tribunal panel had displayed bias. She based this claim on (a) the alleged procedural errors that we have just outlined and (b) alleged failures by the Tribunal, in breach of section 73(5)(b), to bring about the disclosure of certain material and to give proper consideration to certain questions that were, in her submission, of primary importance in determining her complaints.

At the hearing, Mr Bennet, having drawn our attention to these components of the Applicant's claim of bias, acknowledged that she could not adduce any 'independent evidence' in support of this claim.

The arguments advanced in support of this assertion that the Tribunal panel displayed bias fall well short of what is required. We have already held that in procedural matters the Tribunal did not err as claimed by the Applicant. Its alleged failures to bring about the disclosure of certain material and give proper consideration to certain questions that she claimed to have been of primary importance are discussed below, in the course of our investigation of the approach taken by the Tribunal in determining each of her complaints. To a limited degree outlined below, her arguments on this matter have merit. But bias on the part of a court or tribunal cannot be established merely by showing that errors of this nature occurred. Council of the New South Wales Bar Association v Archer (No 4) [2004] NSWADT 235 was a case in which claims of actual and apprehended bias on the part of a Tribunal panel were fully argued on both sides. In dismissing these claims, the Tribunal said at [34 - 35]:-

34 During the hearing of the application, we sought help from representatives on both sides on two aspects of the relevant law.

35 The first was whether in any decided case on actual or apprehended bias, an application had been granted, or indeed had been made, solely or substantially on the ground of alleged inadequacies in decisions already made in the proceedings. Neither the Respondent nor [counsel for the Applicant] could cite any such case to us (emphasis added).

The First complaint: unlawful discrimination

Outline of facts

The Tribunal's findings relating to the first ground of complaint (file 101034) were stated in its decision at [2 - 12]. In summary, they are as follows.

The complaint was made to the President of the ADB on 11 January 2010. As summarised by the Tribunal at [2], 'the essence seems to be that the applicant's application for employment was rejected because as a sufferer from hypoglycaemia she was unable to obtain a motor driver's licence, the possession of which was regarded as essential to the position'.

At that time, the Applicant had been employed by the Respondent on a casual basis as a Dental Assistant for three years. Although she claimed in an affidavit that she had been working on average three to five days per week, she later conceded that she had in fact been called upon to work significantly less frequently than this.

On 8 December 2009, Ms Leonie Newman, the Practice Co-ordinator, told the Applicant that a permanent position had been advertised and encouraged her to apply for it. She did this, personally delivering the application form to Ms Newman. In that form, she addressed in some detail each of the stated 'Selection Criteria' except one, which stated: 'Current licence to drive in NSW.'

The Applicant explained in oral evidence to the Tribunal that her condition of hypoglycaemia prevented her from holding a licence to drive a motor vehicle. She alleged that Ms Newman knew this. She also said that this had not caused a problem during her period as a casual employee.

Subsequently, Ms Newman telephoned her and invited her to attend an interview in Dubbo on 6 January 2010. When she arrived at the interview, she discovered that the selection panel was presided over by Ms Newman, whom she had nominated as a referee. The other members were Ms Marian Bohan (also nominated by her as a referee) and Mr Monte Jones, who was previously unknown to her.

Before the interview began, Ms Newman told her that she could not be appointed to a permanent position without a driver's licence and asked whether in those circumstances she wanted to continue. She said that she did and the interview proceeded. In her affidavit, she stated: ' I felt that I answered all the questions in the interview more than adequately due to the training and the experience that I had gained while working at the clinic.'

A report prepared by the selection panel, dated 7 January 2010, was annexed to an affidavit of Mr Brett Meyers. Mr Meyers was employed by the Respondent as a human resources consultant. The report indicated that there were six applicants for the position, of whom two were interviewed by the panel, namely, the Applicant and the successful candidate.

Against the name of the successful candidate, the panel wrote: 'Met all essential criteria. Knowledgeable and experienced for position. Answered all questions clearly. Willing to complete Cert III.' Against the name of the Applicant, the panel wrote: 'Interviewed - but asked re ability to obtain Driver's Licence. Marion is unable for medical reasons - therefore she is not eligible for this position. Marion is employed currently as a casual dental assistant for GWAHS.'

On 7 January 2010 the Applicant telephoned the ADB to make a complaint of discrimination. Shortly after, she applied to the Tribunal for an injunction restraining the Respondent from appointing anyone other than herself to the position. While this application was pending, the Respondent undertook to keep the position unfilled. According to the Applicant, a representative of the Respondent told the Tribunal at some point that Ms Newman was not accredited to chair the interview or the selection panel.

Subsequently, the Respondent decided that the decision of the panel of 7 January 2010, which had not been implemented, should not be allowed to stand and that a fresh interview panel should be constituted.

The Applicant's application for an injunction was heard and dismissed on 3 August 2010. By this time, she had made her second and third complaints to the ADB.

Relevant provisions of the AD Act

In the Report of the President of the ADB, the Applicant's complaint was identified as alleging conduct falling within sections 49A, 49B, 49C, 49D and 53 of the AD Act. The first four of these sections state:-

49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

49B What constitutes discrimination on the ground of disability

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

49C What constitutes unjustifiable hardship

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and

(b) the effect of the disability of a person concerned, and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

49D Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of disability:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

...

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

Section 53 of the AD Act renders employers responsible for the acts of employees. In this case, the Respondent did not seek to deny such responsibility.

Reference should also be made to the definition of 'disability' in section 4:-

disability means:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

The Tribunal's decision on the first complaint

The Tribunal gave the following reasons for dismissing this complaint at paragraphs [29] and [32] - [34] of its decision:-

29 It may be accepted (although the respondent submitted to the contrary) that the applicant suffering hypoglycaemia had a disability as defined in s 4 for the purposes of ss 49B and 49D. It may also, we think, be accepted that if the applicant were unsuccessful in obtaining the position she applied for because of her disability, the respondent would prima facie have acted unlawfully and contrary to the provisions of s 49D(1).

32 Mr Bennet made extensive written submissions on his wife's behalf. Unfortunately many of them went beyond issues which this Tribunal has to decide, an example being his contention that the applicant "had been promised permanent employment by her supervisor Leonie Newman twice previously and most recently in December 2009". What Ms Newman said or did not say to the applicant has no relevance to any matter we have to decide. If Ms Newman "promised" her employment and was unable to deliver on that promise, it would be regrettable but have no bearing on the issue whether there was unlawful discrimination because of the applicant's disability.

33 It seems to us that taking the evidence in the applicant's case at its highest in her favour, no breach of s 49D(1) was proved in relation to the decision of the panel on 6 January 2010. In the first place, the stipulation that applicants hold a driver's licence was unrelated to any disability and did not fall within s 49D(1)(a). It was a condition applying to all applicants for the position. As the decision of the panel to prefer a candidate other than the applicant was in effect annulled, there was no determination within s 49D(1)(b) and no offer of employment within s 49D(1)(c). Indeed although Mr Bennet contended that his wife was regarded as the superior candidate were it not for the fact that she did not hold a driver's licence, there is no evidence to support that proposition. The material before us is silent on the question. Indeed as Mr Hutchings pointed out in his submissions there was no evidence that the members of the panel knew that the applicant suffered from hypoglycaemia, only that "for medical reasons" she did not hold a driver's licence, a circumstance which of itself of course did not evidence a disability for the purposes of the Act.

34 It thus becomes unnecessary to consider whether the holding of a driver's licence was an inherent requirement of the employment.

Matters raised by the Applicant in the appeal

Failure to deal appropriately with the question of the Applicant's disability . Ground 2 in the Notice of Appeal was formulated as 'failure to identify the applicant's disability under Section 4 AD Act 1977'. At the hearing of the appeal, a member of the Panel drew to Mr Bennet's attention the Tribunal's statement, at [29], that 'it may be accepted (although the respondent submitted to the contrary) that the applicant suffering hypoglycaemia had a disability as defined in s 4 for the purposes of ss 49B and 49D'. Mr Bennet's response was that the Tribunal should have addressed this matter first, because it was the 'whole basis' of the Applicant's case and, if it were not addressed 'upfront', the Tribunal's decision would inevitably be wrong.

This contention is wholly unpersuasive. The Tribunal's observation on this matter was in fact situated at the beginning of its discussion of the legal merits of the Applicant's claim. Even if it had been located elsewhere, this would not have been enough of itself to cast doubt on the Tribunal's reasoning.

In 'MedlinePlus', an online service of the U.S. National Library of Medicine, hypoglycaemia is described as 'a condition that occurs when your blood sugar (glucose) is too low'. Having regard to paragraph (b) of the definition of 'disability' in section 4 and the presence of the broad term 'malfunction' in paragraph (c), it is quite possible that a person who regularly suffers from hypoglycaemia has a 'disability'. But because this may not inevitably be the case, the Tribunal's assumption that the Applicant did have the disability on which she relied was entirely favourable to her and is not a matter about which she can complain in these proceedings.

Failure to deal appropriately with the question whether possession of a driving licence was an 'inherent requirement' . The Tribunal's view on this question was, as stated at [34], that it did not need to be determined.

The Applicant argued, in her written and oral submissions, that this question was instead a crucial one and that it should have been addressed at the outset. She relied strongly on the fact that when, in circumstances outlined below in connection with her third complaint, she applied to a second selection panel for the position for which she had unsuccessfully applied, she was permitted to request reasonable adjustments to the duties associated with the position, in order that she could fulfil them without having a driving licence. It followed, she claimed, that the Respondent should have recognised from the outset that this criterion should not have been included in the requirements for the position when it was first advertised. It also followed, in her submission, that if it had acted correctly on this matter, her application for the position would have been successful.

We agree with the Applicant to this limited extent. A full investigation of the different lines of argument that could be advanced in support of her claim of unlawful discrimination could, in our opinion, involve determining, rather than bypassing, the question whether possession of a driving licence was an 'inherent requirement' (within the meaning of section 49B(4) of the AD Act) of the position for which she had applied. Not surprisingly, given the complexity of the relevant parts of the AD Act and the fact that she was not represented by a legal practitioner, her submissions in this context did not explain precisely how this particular question might arise for determination. We will endeavour to do so, after having discussed other submissions that she put before us.

Failure to consider the question of 'reasonable adjustments' . The Applicant further submitted that the Tribunal erred in failing to take account of the fact that when she told the selection panel that she did not have a driving licence because of her hypoglycaemia, the panel did not investigate the question whether she should be treated as remaining in contention for the position on the footing that 'reasonable adjustments' might have been worked out. The purpose of these 'adjustments' would be to deal satisfactorily with her not being permitted to drive.

Annexed to written submissions filed by the Applicant before the hearing was a memorandum, issued by Home Care Services, explaining the legal duties of employers to seek to make 'reasonable adjustments' for employees with disabilities. The text of the memorandum makes it clear that the source of the duties outlined in it is section 49D(4) of the AD Act.

Again, we consider that this specific matter could arise for determination in the course of a full investigation of the different lines of argument that could be advanced in support of her claim of unlawful discrimination. Our reasons for this are set out below.

Error regarding selection panel's awareness of the Applicant's medical condition . In the final sentence of paragraph [33], the Tribunal stated that 'there was no evidence that the members of the panel knew that the Applicant suffered from hypoglycaemia, only that "for medical reasons" she did not hold a driver's licence'.

Mr Bennet submitted to us that this was incorrect. At the hearing, Mr Hutchings did not argue to the contrary (although in his written submissions to the Tribunal and to the Appeal Panel he did so argue). The basis for Mr Bennet's submission is that the Applicant, in her form of application for the position being offered by the Respondent, stated: 'I do have hypoglycaemia which requires me to have a food break every two hours but I always carry my required snacks with me'. This application, which was one of the documents annexed to Mr Meyers' affidavit, was presumably read by the members of the selection panel.

It has been held (see RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 and Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164) that for a court or tribunal to state that on a particular question there is 'no evidence', when in fact evidence relating to it has been admitted, amounts to an error of law.

We are accordingly bound to hold that in this specific respect the Tribunal erred in law. But for other reasons (set out below) we consider that the Applicant's challenge to the Tribunal's rejection of her first complaint must fail. Accordingly, this specific error is not such as to require that the Tribunal's decision be set aside.

It is useful to add here that while the Applicant disclosed her hypoglycaemia in her application, she did not state in it that this condition prevented her holding a driving licence. As noted above, when completing the application form, she addressed in some detail each of the advertised selection criteria except 'a current licence to drive in NSW'. On a 'culling form' completed before the interview, her failure to address this criterion was noted. The evidence therefore suggests that at the commencement of the interview the selection panel knew at the very least that she suffered from hypoglycaemia and that she might not have held a driving licence.

In her affidavit, the Applicant alleged that among the panel members Ms Newman, at least, knew before the interview that her hypoglycaemia was the reason for her not having a driving licence. Ms Newman did not testify at the hearing.

The Applicant also said in her affidavit that at the interview she told the panel that there were 'medical reasons' why she did not have a driving licence. This accords with the note made by the panel in its report. According to a letter written by the Applicant on 8 January 2010 (two days after the interview) to the Acting Human Resources Manager of the Respondent, she also told the panel that the relevant medical condition was hypoglycaemia.

Error in failing to find that the Applicant was the 'superior candidate'. The Applicant sought to challenge the following statements of the Tribunal in its decision at [33]:-

Indeed although Mr Bennet contended that his wife was regarded as the superior candidate were it not for the fact that she did not hold a driver's licence, there is no evidence to support that proposition. The material before us is silent on the question.

At the appeal hearing, Mr Bennet claimed that notes taken by the members of the selection panel during the interviews of the Applicant and the successful candidate showed that out of these two the Applicant had more experience and better qualifications. He acknowledged, however, that the difference may have been 'only marginal'.

There are two ways in which this submission may be interpreted. On either interpretation, it must be rejected.

First, it may be treated as a submission that the Tribunal erred in finding that there was no evidence to show that if the question of the driving licence was put to one side, the Applicant 'was regarded' - i.e., by the members of the selection panel - as the superior candidate. In our judgment, however, perusal of the notes taken by the panel members during the interviews and of the report that they prepared entirely supports this finding. Neither individually nor collectively did they indicate which of the two candidates was 'superior'. It may be surmised that they did not do this because they believed that, because the Applicant did not meet one of the stipulated criteria for selection, it was unnecessary for them to do so.

Alternatively, the submission may be taken to be that the Tribunal should have made its own assessment of the merits of the two candidates and concluded that the Applicant was the superior candidate. Mr Bennet's contention that the notes showed the Applicant to have more experience and better qualifications is in line with this interpretation. But an approach along these lines by the Tribunal would have been entirely erroneous. In determining whether the panel members engaged in unlawful discrimination, what matters is whether they considered the Applicant to be preferable and would have recommended her for appointment but for the problem of the driving licence. Whether on the material before them they should have considered her to be preferable is irrelevant.

Further aspects of the Tribunal's decision

Under this heading we deal with three propositions, relating in different ways to the application of the AD Act to the facts of the first complaint, that received little or no attention in either the first instance or appellate proceedings.

These propositions might, if properly framed and supported by further significant evidence, have provided the basis for a decision in the Applicant's favour on the first complaint. But we should make it clear at the outset that, after giving careful consideration to them, we have concluded that they do not provide grounds for disturbing the Tribunal's decision that the complaint should be dismissed.

As will appear below, our main reason for reaching this conclusion is that on account of the way in which the Applicant's case was presented, the Tribunal did not have before it the evidentiary material required to determine whether the first two propositions were sustainable on the facts.

Our starting point is the following passage in paragraph [33] of the Tribunal's decision:-

It seems to us that taking the evidence in the applicant's case at its highest in her favour, no breach of s 49D(1) was proved in relation to the decision of the panel on 6 January 2010. In the first place, the stipulation that applicants hold a driver's licence was unrelated to any disability and did not fall within s 49D(1)(a). It was a condition applying to all applicants for the position. As the decision of the panel to prefer a candidate other than the applicant was in effect annulled, there was no determination within s 49D(1)(b) and no offer of employment within s 49D(1)(c).

We agree with the Tribunal's observations that 'the stipulation that applicants hold a driver's licence was unrelated to any disability' and that this stipulation was 'a condition applying to all applicants for the position'. But the Tribunal did not then ask itself whether the Respondent, by making and acting on this stipulation, might still have engaged in 'discrimination on the ground of disability' as defined in section 49B of the AD Act.

Two of the three propositions that we have foreshadowed, if applicable, might have provided the grounds for a finding that discrimination, as defined in section 49B, did occur. They relate respectively to (i) the so-called 'characteristics extension' (set out in subsection (2)) to the definition of 'direct discrimination' contained in subsection (1)(a), and (ii) the concept of 'indirect discrimination' in subsection (1)(b).

The 'characteristics extension'. It would have been open to the Applicant to argue that the situation of being barred from holding a driving licence was a 'characteristic that appertains generally' (within the meaning of subsection (2)) to persons who have the disability from which she suffered, i.e., hypoglycaemia. If she could show this, the Respondent's 'less favourable treatment' of her (i.e. through stipulating that a driving licence was an essential requirement of the position for which she had applied and determining, by virtue of this stipulation, that she was ineligible), could be held to be 'on the ground of' her disability and therefore to amount to direct discrimination under section 49B(1)(a).

It is established by case law on section 49B(2), however, that unless the matter is one of 'common knowledge', an applicant seeking to rely on the 'characteristics extension' must adduce evidence to show that the characteristic relied on is one that 'appertains generally' or is 'generally imputed' to persons who have the relevant disability. In Walker v State of New South Wales [2003] NSWADT 13, the Tribunal said, at [45 - 46]:-

Whilst s 49B(2) of the Act permits the Tribunal to make such a finding, it is not one which is open to us on the facts of this case. As Ronalds points out in her text on discrimination law (C Ronalds, Discrimination Law and Practice , Sydney: Federation Press, 1998 at pp 28-29):

It is necessary for a complainant to be able to precisely identify and adequately describe the characteristic upon which they seek to rely. Also, they will need to produce some evidence in support of a claim that the characteristic is one that "appertains generally" or is "imputed" to the group which the complainant seeks to demonstrate membership. These characteristics must be of a general or broad nature and not just ones which can be attributed to the complainant personally...It is not necessary to establish that the identified characteristic exists in every case but...it must be established that it generally exists or operates.

46... Whilst the Tribunal is not bound by the rules of evidence, it must base its decisions upon logically probative evidence. Like courts, the Tribunal does not require proof of matters of common knowledge (see s 144 Evidence Act 1995 (NSW)). There are real limits, however, to what is common knowledge, or, to use the language of the common law, the facts about which we may take judicial notice...

The Applicant stated in her affidavit that the reason why she could not obtain a licence was her hypoglycaemia. This was not, as far as we are aware, challenged at the Tribunal hearing (though at the appeal hearing, Mr Hutchings described it as her 'fantasy'). It must therefore, for present purposes, be taken at face value. But as Mr Hutchings pointed out, the Applicant adduced no other evidence to establish a link between hypoglycaemia and inability to obtain a driving licence. Evidence to this effect would be needed to satisfy section 49B(2), given that the question is not one of which the Tribunal could take judicial notice on the ground that it is 'common knowledge'.

In response, Mr Bennet referred to what we understood to be a medical certificate stating that it is 'not recommended' that a person suffering from hypoglycaemia should drive a motor vehicle. We have not been able to locate any such certificate in the evidence put before the Tribunal or among a number of documents that were attached to the Notice of Appeal and the Applicants' written submissions in the appeal. In any event, a certificate to this effect, coupled with the relevant part of the Applicant's affidavit, would still fall well short of establishing that inability to obtain a driving licence is a characteristic that 'appertains generally' or is 'generally imputed' to persons who suffer from hypoglycaemia.

For these reasons, even if the Applicant had invoked the 'characteristics' extension, she still would have failed to show that there was direct discrimination under section 49B(1)(a). This is on account of the defect in her evidence that we have just identified. It was not for the Tribunal to obtain for itself, or to direct the Applicant to obtain, the requisite evidence.

The principle stated in the preceding sentence was set out in another passage in the Tribunal's decision in Walker v State of New South Wales (at [11]), with specific reference to cases (such as the present) in which the applicant does not have the benefit of legal representation:-

11 Whilst the Tribunal is directed by the [AD] Act to conduct an inquiry into each complaint referred to it by the President of the Anti-Discrimination Board, the Tribunal does not have the capacity to gather evidence in support of a complaint. The Tribunal's function as an impartial decision-maker is likely to be imperilled if, in the absence of evidence, it constructs arguments in support of particular complaints. This latter point is of particular relevance in this case where, with appropriate evidence, it may have been possible to mount claims of direct and/or indirect discrimination. As the case law demonstrates (see e.g. Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 and Waters v Public Transport Corporation (1991) 173 CLR 349), indirect discrimination cases are particularly complex. Considerable legal skill is required to construct a case and to gather and present evidence in support of it. In these proceedings we have considered the arguments raised by Ms Eastman, but we have not sought to 'fashion' a case for the applicant because there is insufficient evidence to do so and because the Tribunal's impartiality could be questioned were it to present the applicant's case for him. What we have done is consider any argument in support of the applicant's complaints which reasonably arises from the evidence presented to the Tribunal.

Indirect discrimination. The passage just quoted relates particularly to indirect discrimination under section 49B(1)(b) of the AD Act. An argument that might have been open to the Applicant can be formulated in a way that invokes the language of this provision. It is that the Respondent, by including the possession of a driving licence among the selection criteria for the position that it was offering, required the Applicant, in applying for this position, to 'comply with a requirement or condition with which a substantially higher proportion of persons' who do not have her disability (hypoglycaemia) are able to comply, being a requirement which 'is not reasonable having regard to the circumstances of the case' and with which she is 'not able to comply'.

At the first case conference relating to this complaint, held on 19 May 2010, the Member conducting the conference (Magistrate Hennessy, Deputy President) did in fact characterise it as one of indirect discrimination. This characterisation was not mentioned, however, in the Notice of Appeal or in the Applicant's written submissions, either to the Tribunal or to the Appeal Panel. During the appeal proceedings, a member of the Appeal Panel asked the parties' representatives whether it had been put before the Tribunal. Mr Hutchings answered that according to his recollection indirect discrimination as well as direct discrimination had been argued, but there had been no inquiry by the Tribunal into the question of 'reasonableness' arising in the former context under section 49B(1)(b).

Once again, the problem that the Applicant would have encountered if she had submitted to the Tribunal that the Respondent had engaged in indirect discrimination is that she bore, and had not discharged, the onus of proving important factual matters. These matters, stemming from the terms of section 49B(1)(b), were (i) that a substantially higher proportion of persons who do not suffer from hypoglycaemia, compared with those who do suffer from it, would be able to comply with the requirement of possessing a driving licence, and (ii) that this requirement was 'not reasonable having regard to the circumstances of the case'. It is well established that an applicant bears the onus of proving both of these matters under section 49B(1)(b) and other provisions of the AD Act relating to indirect discrimination: see for example Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [163] and [175].

Once again, due to a defect in the Applicant's evidence, a claim potentially available to her (in this case, a claim of indirect discrimination) was bound to fail.

The phrase 'in determining who should be offered employment'. The focus of our third 'proposition' is this phrase, which is to be found in paragraph (b) of subsection (1) of section 49D. What subsection (1) does, subject to section (4), is to define the contexts in which direct or indirect discrimination by an employer on the ground of disability (as defined in section 49B) will be unlawful.

In paragraph [33] of its decision, the Tribunal stated: 'As the decision of the panel to prefer a candidate other than the applicant was in effect annulled, there was no determination within s 49D(1)(b)...'

While we do not have to reach a definite conclusion on this question, we incline, with respect, to the view that this statement of the Tribunal may be based on an erroneous interpretation of section 49D(1)(b). It appears to us that (a) the decision (made on the Respondent's behalf) to include possession of a driving licence as a criterion of selection and (b) the selection panel's decision to treat the Applicant as ineligible by virtue of this stipulation were both made in the course of 'determining who should be offered employment'. The likelihood is that, if within a short period of time the Applicant had not raised objections to her exclusion from consideration, the panel's recommendation would have been approved and an offer of employment would have been communicated to the successful candidate. What the Applicant was deprived of was the opportunity to be considered alongside the other candidates as someone to whom 'employment' in this particular position might be 'offered'. This view of the matter is not affected by the fact that the Respondent, prompted by her objections, decided subsequently that the panel's decision should be 'annulled' and no offer should be communicated to the successful candidate.

It follows according to this view of the matter that if, contrary to our conclusions and those of the Tribunal, the Respondent's conduct causing the Applicant to be treated as ineligible because she did not possess a driving licence amounted to discrimination as defined in section 49B, this conduct would fall within the range of unlawful discrimination against applicants for employment, as defined in section 49D(1)(b).

'Inherent requirement' and 'reasonable adjustments' . Two further questions might then arise, by virtue of the exemption from liability under section 49D(1)(b) set out in section 49D(4).

The first is whether possession of a driving licence was an 'inherent requirement' of the position being offered by the Respondent, within the meaning of this phrase as used in section 49D(4). As stated above at [43], the Applicant argued strongly that it was not, relying in particular on the fact that when she reapplied for the position she was allowed to request 'reasonable adjustments'. She called in aid the principle, stated with reference to comparable Commonwealth legislation by McHugh J in X v Commonwealth [1999] HCA 63 at [37], that it is 'it is for the Commission [in the present case, read 'the Tribunal'], and not for the employer, to determine whether or not a requirement is inherent in a particular employment'.

There may be some merit in this argument. But if correct, it goes no further to prevent the Respondent relying on the exemption from liability created by section 49D(4). It is not relevant to the antecedent question of whether, but for section 49D(4), liability under section 49D(1) has been established.

The second question is whether during the selection process in January 2010 the Respondent failed to make 'reasonable adjustments' to the requirements of the position that it had advertised, in order to take account of the Applicant's disability, and if so, what impact if any did this failure have on the Applicant's claim of unlawful discrimination. Having regard to the matters relied on by the Applicant (as to which, see [45 - 46] above), we are inclined to the view that during the first selection process the Respondent did not properly consider whether 'reasonable adjustments' might have made employment in the position feasible for the Applicant.

Once again, however, a finding to this effect would not show, or even assist in showing, that the conduct of the Respondent amounted to unlawful discrimination under section 49D(1). Its only effect would be to erect a significant hurdle if the Respondent, in order to escape a liability otherwise arising under this subsection, maintained that the provision of extra 'services or facilities' for the Applicant (as envisaged in section 49B(4)(b)) would impose an 'unjustifiable hardship' upon it (within the meaning of section 49C).

As this discussion illustrates, identifying the precise significance of these two concepts - 'inherent requirement' and 'reasonable adjustments' - in the present context is a difficult task. It is hardly surprising that the Applicant, not having legal representation, misunderstood their place within the provisions defining unlawful discrimination and attached greater importance to them than they merited.

Scope of available relief. In the documents that she filed relating to this first complaint, the Applicant maintained that the Tribunal should order the Respondent to appoint her to the position for which she had applied and should also make an award of damages. We would observe here that if the Tribunal had upheld her complaint, it would have erred if it had then made the first of these orders. For reasons outlined above at [58], it was not for the Tribunal to determine on the Respondent's behalf that the Applicant was the 'superior' candidate. At most, the Tribunal might have thought it appropriate to order the Respondent to repeat the selection process for the position, either (a) without insisting on possession of a driving licence or (b) with provision for 'reasonable adjustments'.

The second of these alternative steps was in fact taken by the Respondent. While the Applicant might, in this eventuality, have been able to make good her accompanying claim for damages, the fact remains that an important component of the relief that she might, if successful, have obtained was in fact granted to her because she had raised objections with the Respondent about the way in which the first selection panel had dealt with her application.

For the foregoing reasons, we dismiss the appeal with regard to the Applicant's first complaint. Although we have identified (at [50 - 51] and [77 - 78] above) what we believe to be two errors or possible errors of law by the Tribunal, they are not such as could warrant setting aside its decision (under section 114(2) of the ADT Act) or extending the appeal to the merits (under section 115). If what we consider to be the correct position on these two matters is adopted, the correct determination with regard to the first complaint is still that it must be dismissed.

The second complaint: victimisation

Outline of facts

The gist of the Applicant's second complaint (file 105055) was that as a consequence of her complaining to the ADB and the Tribunal about the manner in which the selection panel had dealt with her application on 6 January 2010, the Respondent reduced substantially the amount of casual employment that it offered to her.

The Tribunal summarised the Applicant's evidence relating to this complaint at [11] and [20]:-

11 The [Applicant's second] affidavit [sworn on 16 August 2010] proceeded to deal with matters relied on by the applicant in support of her claim of victimisation. She said that since her complaint to the ADB three shifts had been cancelled without reason by Ms Newman and that she had been allocated very little other work. She gave oral testimony about an occasion on 12 April 2010 when she was rostered for work but instead an employee from Bourke was brought in instead of her. Her perception that in the allotment of work she had been discriminated against because of her complaint to the ADB in January 2010 prompted her to make the second complaint alleging victimisation.

20 In her most recent affidavit, that sworn 1 November 2010, the applicant claimed that before February 2010 she was given at least 60 - 70 days work per year. She also claimed that in the period from January 2010 to October 2010 she was allotted work on only about 9 occasions. She complained that a dental assistant was being brought from Bourke in effect to perform work which she could perform at much less cost.

The principal evidence adduced by the Respondent on this matter was an affidavit sworn by Ms Jennifer Floyd, whom it employed as its Area Manager, Oral Health Services. The Tribunal outlined this evidence at [27 - 28]:-

27 Ms Floyd annexed to her affidavit a schedule of hours worked by the applicant which according to Ms Floyd demonstrated no regular pattern of employment but rather that she had been employed as a true casual. The schedule does however demonstrate a marked diminution in the applicant's hours of work after February 2010 as compared to the previous six months. In relation to this Ms Floyd testified:

27. There have been periods when the applicant has not been offered employment by me because there has been no work available to offer the Applicant.

28. The clinic is known as a four (4) chair dental clinic. In October, the clinic will be moving to new premises when it will become a six (6) chair clinic. At its maximum capacity, the clinic handles seven (7) Clinicians. Clinicians comprise Dentists, Therapists, and a part time Prosthetist. Clinicians require an assistant to perform their work, but one Clinician can assist another. Due to a number of issues, the clinic has not always operated at its capacity at its existing premises, and has not always had sufficient Clinicians to require the employment of additional assistants. The Applicant has been affected in the number of hours of employment that I have been able to offer her for this reason. I have offered the Applicant employment when there has been a Clinician requiring an assistant, but otherwise I have formed the view that it has not been necessary to engage the Applicant.

29. Once the clinic moves to its new premises, it will have the capacity to engage more Clinicians, which in turn will create a demand for assistants, however I do not anticipate that this position will change in the short to medium term notwithstanding the relocation of the clinic to new premises.

28 Ms Floyd was not required for cross-examination and her evidence was therefore unchallenged.

At [30], the Tribunal reproduced the text of a letter, dated 6 May 2009, from the Applicant to the Member for Dubbo, Ms D Fardell MP. In this letter, the Applicant complained that although she had worked at the Dubbo Community Dental Clinic for the past fifteen months, 'on a permanent then casual basis', the Respondent had just informed her that she would get no more work as the new Chief Executive Officer of the Respondent had 'cancelled all future casual employment'. The Applicant claimed, giving reasons, that this would be 'destructive' to her and 'catastrophic' to the patients of the clinic and asked Ms Fardell to render 'assistance in this matter'.

Also at [30], the Tribunal observed that 'the thrust of the applicant's complaint of victimisation by diminution in the amount of work offered to her after February 2010' was 'somewhat undermined' by the terms of this letter.

We should also mention in this context the Tribunal's statement (at [15]) that when (in circumstances outlined below) a new selection panel interviewed the Applicant on 4 June 2010 for the position of permanent Dental Assistant, she was not only unsuccessful but also not recommended for the 'eligibility list'. The Tribunal found that this list 'would have enabled her to be considered for alternative employment presumably without further interview for a period of 6 months'.

Liability for victimisation under the AD Act

Section 50 of the AD Act states:-

50 Victimisation

(1) It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

The Tribunal's decision

The Tribunal's reasons for dismissing the second complaint were set out as follows in paragraph [35] of its decision:-

35 In relation to the first claim of victimisation, there is no direct evidence that the applicant received less work because of her complaint to the ADB in January 2010. The reason why she received less work was explained in the unchallenged evidence of Ms Floyd. Moreover the applicant's letter to Ms Fardell of 6 May 2009, 8 months before her complaint to the ADB expresses concern about her diminishing work prospects. The applicant asks us to infer a causal link between her complaint to the ADB and a reduction in the hours of work offered to her thereafter. In our opinion the state of the evidence does not permit such an inference to be drawn and we decline to draw it. The second complaint should be dismissed.

Matters raised in the appeal

The Applicant put forward three grounds of challenge to the Tribunal's dismissal of her second complaint. We will discuss them in turn.

The first was that the Tribunal should have taken into account the decision of the second selection panel on 4 June 2010 not to recommend the Applicant for the 'eligibility list'. In her written submissions in the Appeal, she described this decision in the following terms:-

It was obviously a predetermined action to discredit [her] and skew the process to avoid placing her in any position including casual. It has been determined that [she] was already employed at that time so this effectively dismissed her as a result of making her complaint. This is victimisation.

We will set out below, in the course of discussing the Applicant's third complaint, the circumstances prompting the second selection panel to make this recommendation. It is sufficient at this stage to point out that the panel, in reporting on its interview of the Applicant, put forward reasons which, in its opinion, justified this recommendation and which could not, in our opinion, be regarded as wholly inadequate reasons. In so far as the Applicant claimed that the recommendation 'effectively dismissed' her, this is contradicted by her own evidence (in paragraph 17 of her affidavit of 1 November 2010) that she worked on five occasions in the period between 15 July and 12 October 2010.

Secondly, the Applicant's written submissions in the appeal included a claim that the Tribunal should have examined work roster sheets that she had subpoenaed from the Respondent and tendered in evidence, because these were the only documents that provided 'a clear and accurate determination of the facts required for the change of work allocation of all employees at the clinic'. She added that because Ms Floyd's affidavit was of a general nature only (as also was her own letter to Ms Fardell), there would have been 'no point' in cross-examining Ms Floyd. Mr Bennet reiterated these arguments in his oral submissions.

Mr Hutchings argued in response that (a) Ms Floyd's unchallenged evidence, referring as it did to budgetary factors, outlined clearly the reasons why all the casual employees of the Respondent were offered less work after January 2010 and (b) the Tribunal appropriately treated this evidence as an adequate explanation of the reduction in the amount of work offered to the Applicant.

Our opinion on this question is as follows. The Applicant's submissions did not indicate precisely in what way the work roster sheets (which the Tribunal may or may not have consulted) could usefully have supplemented the evidence (including that of Ms Floyd) on which the Tribunal relied. In particular, those submissions did not suggest that the work roster sheets contained any material specifically supporting her allegation that the Respondent offered her less work 'on the ground that' (to quote the words of section 50) she had instituted Tribunal proceedings under the AD Act or alleged contravention of this Act by the Respondent.

Thirdly, Mr Bennet submitted that the Tribunal failed to take account of a relevant matter, namely, the Applicant's evidence that on a day in April 2010, when she was rostered for work, an employee from Bourke was 'brought in' instead of her.

This submission provides an insufficient basis for disturbing the Tribunal's ruling on the second complaint. This evidence alone, to which the Tribunal did in fact refer, falls well short of showing that the Respondent's decision to 'bring in' the employee from Bourke was made 'on the ground that' the Applicant had instituted Tribunal proceedings under the AD Act or alleged contravention of this Act by the Respondent.

In our opinion, the Tribunal may have attached too much weight to the letter written by the Applicant to Ms Fardell. Our reason is that this letter predated by several months the events of primary significance in the present context.

Subject to this observation, we agree with the Tribunal's reasoning with regard to the Applicant's second complaint, notably its express reliance on the fact that there was 'no direct evidence that [she] received less work because of her complaint to the ADB in January 2010'.

We would add only the following observation. In the absence of direct evidence of victimisation, the Applicant's case inevitably relies on the drawing of inferences from such aspects of the Respondent's conduct as are proved. With regard to this topic, the Tribunal's decision in Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 contains the following useful statement of principle at [85 - 86]:-

85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences of discrimination:

(a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts;

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.

86 In our opinion, such considerations are equally applicable to drawing inferences of victimisation. In the instant case, of particular pertinence is the consideration that an inference cannot be made where more probable and innocent explanations are available on the evidence.

In our opinion, the final sentence of this passage is applicable to the situation that we are now discussing.

For these reasons, we dismiss the appeal with regard to the Applicant's second complaint. No error of law has been identified and there are no grounds for extending the appeal to the merits.

the third complaint: victimisation

Outline of facts

The Applicant's third complaint (file 101104) was that when, in circumstances outlined below, the Respondent set in train a second selection process for a permanent position as a Dental Assistant at Dubbo Community Dental Clinic and, in the course of dealing with her application, permitted her to request 'reasonable adjustments' because she did not have a driving licence, it then 'victimised' her on account of her complaints to the Board and the Tribunal by selecting another candidate whose qualifications for the position were manifestly inferior to hers.

The following account of the relevant facts is chiefly drawn from the Tribunal's reasons.

By virtue of the Applicant's objections to the decision of the panel of 7 January 2010, the Respondent decided that it should not be allowed to stand and that a fresh interview panel should be constituted.

Before this was done, Mr Meyers arranged for the position to be subjected to an internal job analysis. This was conducted by Ms Kylie Peacock (convenor), who held the position of Human Resource Consultant, Workforce Development, with the Respondent. Mr Meyers then obtained an independent job analysis. A finding made during both of these procedures was that the possession of a driving licence was an 'inherent requirement' of the position.

The Respondent then decided to repeat the selection process, accepting all previous applications and permitting the Applicant to request reasonable adjustments so as to enable her to reapply without satisfying the requirement of a driving licence.

The documents submitted by the Applicant included (a) a letter dated 26 March 2010 to Mr Meyers, in which she mentioned not having a driving licence but stated that she could 'undertake reasonable travel independently and if necessary at [her] own expense and at no inconvenience or expense to [the Respondent]', and (b) a copy of the application form that she had submitted in the first selection process.

A new selection panel was constituted, comprising the following: Ms Peacock (convenor); Ms. Lesley Begley, a dental therapist employed in Cowra; and Ms Robyn Browne, a dental assistant employed in Dubbo. It was subsequently decided, however, that there would be a potential conflict of interest if Ms. Peacock convened the selection panel. Accordingly, Mr. Andrew Newton, who was the General Manager, Dubbo Base Hospital, was appointed as an independent convenor. He had no prior knowledge of the matter.

Three applications were received, but by the time of the interview the only candidates were the Applicant and the candidate who had been recommended for the position in January 2010.

Interviews were conducted by the new selection panel on 4 June 2010. The members of the panel were given a pro forma list of questions or topics, which each candidate in turn was asked or invited to discuss. They recorded the candidates' responses in brief notes.

In his affidavit, Mr Newton stated that towards the end of the interview of the Applicant, when he was raising 'housekeeping' matters with her, the following episode occurred:-

23. I had a conversation with the Applicant as follows: "Can I see your Driver's Licence for identification purposes please?" to which she replied: "No, I do not have a Drivers Licence. I rely on friends to get me to work and I stay at their place when I have to work outreach."

24. I then had a conversation with the Applicant to the following effect:

Me: "Is there anything you would like to go back to, to supplement your responses?"

Applicant: "No."

Me: "Do you have any questions of us?"

Applicant: "Yes. Will reasonable adjustments be made for me if I get the job?"

Me: "You will be required to complete an employee health assessment questionnaire which will be reviewed by the staff health department of the Area Risk Management Unit. Any reasonable adjustments required will be discussed with the Dental Manager."

Applicant: "OK."

After the interviews were completed, the selection panel prepared its report. This included observations on each candidate and a recommendation that the position should be offered to the candidate who had been recommended for the position in January 2010.

The observations recorded about the Applicant were as follows:-

Demonstrated that she would not put needs of patient before other parties, e.g. questions 5 & 6. Response to question 3 demonstrated poor understanding of infection control. Experience as dental assistant explored at interview as stated in application that she had 23 years, but CV did not support this. During discussions, maximum that we could get was 13 years. Q4 - conflict resolution response concerned the panel as she would "stand her ground". No driver's licence and stated that she would rely on her friends to get her to work and stay at their places when on outreach. Q9 - confidentiality - talked about AIDS patients needing special care re infection control and would tell sterilising people.

NOTE: Asked about reasonable adjustment. Explained about employee health assessment process and review by staff health department, and any reasonable adjustment would be discussed with the dental manager. This did not have any affect on the recommendation.

As already indicated (see above at [94]), the selection panel also recommended that the Applicant should not be put on the 'eligibility list'.

The selection panel's observations about the successful candidate were:-

Answered all questions very comprehensively and impressed panel. Infection control and confidentiality answered very appropriately. Personal protective equipment response was excellent, including lead apron for patient. Response to scenario was excellent. Demonstrated skills such as forehanded dentistry and oral health promotion. Infection control knowledge demonstrated at excellent level. Q2 - dealing with children was outstanding - utilise parents, keep calm etc. Q4 - professionalism demonstrated.

The Tribunal's account of the evidence on the second selection process included the following passage at [19]:-

According to Mr Meyers, Mr Newton contacted two of the applicant's referees, namely Dr Liddell and Dr Agcaoili. Dr Agcaoili appears to have been generally supportive but Dr Liddell was rather negative or at least lukewarm in relation to her abilities and no doubt quite unhelpful to her cause by apparently referring to her as a "trouble maker" and as "disruptive".

In this passage, the Tribunal did not indicate whether these two referees were contacted before or after the interviews. Mr Meyers' and Mr Newton's affidavits make it clear that contact was made after the interviews.

On 25 June 2010, Mr Newton told the Applicant that her application had been unsuccessful and discussed with her the aspects of her answers that had not met the panel's expectations. These more or less reflected the observations that had been included in the panel's report.

The Tribunal's decision

The passages in the Tribunal's decision containing its reasons for dismissing the Applicant's complaint of victimisation based on the events just outlined are to be found at [16] and [36].

The former passage relates to the notes made by members of the selection panel during their interview of her:-

16... Although the applicant was critical of some of the comments recorded, we do not think it is appropriate for us to enter into that dispute. It seems to us that in the absence of something glaringly improbable or inappropriate we should accept at face value the comments and observations made on the forms. It was for the panel and not for us to assess the merits of the applications.

The latter passage sets out the grounds on which the complaint was dismissed:-

36 We turn to the third complaint that she was victimised because of her complaint to the ADB when she was not appointed to the position following the panel interview on 4 June 2010. There is no evidence to support this contention and no evidence from which an inference of victimisation can be drawn. To the contrary, the evidence is overwhelmingly to the effect that the other candidate was adjudged superior on the merits and moreover that the panel did not rate the applicant sufficiently highly to place her on the "eligibility list". The reasons given in the panel's report do not appear to us to be glaringly improbable or unreasonable. We do not think we should go behind them.

Matters raised in the appeal

In challenging the Tribunal's dismissal of her third complaint, the Applicant advanced four grounds.

First, she argued that the second selection process was 'tainted'. She maintained that the Respondent deliberately structured the questions asked at the interviews in such a way as (a) to prevent her relying on her training and experience at the clinic and (b) to require the candidates to deal with issues (which she broadly identified as 'decisions regarding patients and the operation of the clinic') which were outside her range of experience because casual employees were not permitted to be involved with them. The Tribunal, she maintained, should have taken into account the differences between the questions asked at the first and the second interviews, but failed to do so.

In our opinion, a comparison of the questions used at the two interviews reveals that the inferences urged by the Applicant simply cannot be drawn. There is in fact a significant overlap between the two sets of questions.

Secondly, the Applicant argued, with reference to the episode at the interview described above at [119], that at this point Mr Newton, having discovered from her that she did not have a driving licence, should have dealt immediately with the matter of 'reasonable adjustments' so as to resolve any problems arising from this, but failed to do so.

There is no reason, in our judgment, why the fact that Mr Newton did not follow up on this matter of 'reasonable adjustments' during the interview amounted to unfair treatment of the Applicant or otherwise constituted evidence of victimisation.

Her third argument was that the Tribunal should have given careful consideration to the notes taken by the panel members of her answers to the questions at the interview, and should have concluded that they showed her qualifications for the position to be clearly superior to those of the successful candidate.

In our opinion, the Tribunal's reasoning in its decision at [36] (quoted above at [129]) provides a full answer to this argument. It was not for the Tribunal, lacking relevant expertise, to substitute its own view of the comparative merits of the candidates for that of the selection panel, the members of which had relevant expertise. The Tribunal, correctly, saw its task as being merely to satisfy itself that the panel's view was not wholly unreasonable (or, as the Tribunal put it, not 'glaringly improbable'). Its finding on that matter was wholly justified on the evidence.

Finally, the Applicant contended that the selection panel, having obtained conflicting references for her from Dr Liddell and Dr Agcaoili, should have sought a third reference. She relied on a statement by Mr Newton, which the Tribunal did not mention, to the effect that this would have accorded with the normal practice of the Respondent. The panel's failure to do this, she claimed, added support to her complaint of victimisation.

In response, Mr Hutchings drew our attention to the following matters disclosed in the affidavits of Mr Meyers and Mr Newton: (a) the normal practice of the Respondent was to obtain references after a recommendation was received from a selection panel, and then only for the successful candidate; (b) on this occasion, Mr Newton (on Mr Meyers' instructions) consulted Dr Liddell and Dr Agcaoili because (i) the Applicant was already an employee of the Respondent and (ii) Mr Meyers thought that the references obtained, if positive, might give grounds for putting the Applicant on the 'eligibility list'; and (c) the references were received before Mr Newton advised the Applicant that she had not been successful.

Mr Hutchings also advised us that the references were tendered at a late stage of the hearing, and only because of the Applicant's contention that she was the superior candidate for the position.

The Applicant's arguments relating to these references do not assist her. The focus of her claim of victimisation is the selection panel's decision to recommend that the position be offered to a competing candidate. This decision was made before the Respondent sought references for her. Accordingly, its decision not to seek a third reference cannot be seen as evidence of victimisation.

As with the second complaint, the Applicant did not adduce any direct evidence in support of her third complaint. It was only through drawing inferences that the Tribunal could have made a finding of victimisation. In these circumstances, the passage quoted above from the Tribunal's decision in Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 is again in point. Once again, this is a situation in which (to quote from paragraph [86] of this decision) 'an inference cannot be made where more probable and innocent explanations are available on the evidence'.

For the foregoing reasons, we dismiss the appeal with regard to the Applicant's third complaint. No error of law has been identified and there are no grounds for extending the appeal to the merits.

The Respondent's submissions did not include any application for the costs of the appeal. As will have become apparent, the determination of the appeal has called for consideration of a few matters that might (if the appropriate evidence had been adduced) have given grounds for the Tribunal to reach a different decision on the merits of the first complaint. In addition, we have identified two errors or possible errors of law by the Tribunal, though they are not such as to require intervention.

In these circumstances, it is appropriate that there be no order as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 29 August 2011

Medium Neutral Citation:	Craig-Bennet v Great Western Area Health Service (EOD) [2011] NSWADTAP 38
Hearing dates:	6 June 2011
Decision date:	29 August 2011
Jurisdiction:	Appeal Panel - Internal
Before:	Appeal Panel comprising M Chesterman, Deputy President S Rice, Judicial Member E Hayes, Non-judicial Member
Decision:	1. The appeal is dismissed. 2. No order as to costs.
Catchwords:	Discrimination on ground of disability - discrimination against applicant for employment - victimisation
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 Council of the New South Wales Bar Association v Archer (No 4) [2004] NSWADT 235 Craig-Bennet v Great Western Area Health Service [2011] NSWADT 30 Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164 RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 Walker v State of New South Wales [2003] NSWADT 13 X v Commonwealth [1999] HCA 63
Texts Cited:	C Ronalds, Discrimination Law and Practice, Sydney, Federation Press, 1998
Category:	Principal judgment
Parties:	Marion Craig-Bennet (Appellant) Great Western Area Health Service (Respondent)
Representation:	Counsel M Hutchings (Respondent) P Bennet (Appellant - agent) McIntosh, McPhillamy & Co (Respondent)
File Number(s):	119009
Decision under appeal	Citation: [2011] NSWADT 30 Date of Decision: 2011-02-24 00:00:00 Before: Equal Opportunity Division File Number(s): 101034, 101055, 101104