Khalafallah v Tasmanian Civil Administrative Tribunal
[2023] TASSC 8
•11 May 2023
[2023] TASSC 8
COURT: SUPREME COURT OF TASMANIA CITATION: Khalafallah v Tasmanian Civil Administrative Tribunal [2023] TASSC 8 PARTIES: KHALAFALLAH, Alhossain Ahmad Ezeldin Abdallah v TASMANIAN CIVIL ADMINISTRATIVE TRIBUNAL FILE NO: 3006/2021 DELIVERED ON: 11 May 2023 DELIVERED AT: Hobart HEARING DATE: 26 September 2022 JUDGMENT OF: Brett J CATCHWORDS: Human Rights – Discrimination – Tribunals, Commissions and other authorities – Tasmania – Power of summary dismissal after investigation – Misconceived or lacking in substance – Response and evidence
offered by respondent relevant to that determination.
Anti-Discrimination Act 1998 (Tas), s71, 72.
State of Tasmania v Anti-Discrimination Tribunal and Others [2009] TASSC 48, approved and applied.
Assal v Department of Health; Housing Community Services [1992] EOC 92 – 409; Nagasinghe v Worthington
[1994] FCA 1387 [1994] 53 FCR 175; Ebber v HR & EA Commission (1995) 129 ALR 455 at 467, referred to.
Aust Dig Human Rights [53]
REPRESENTATION:
Counsel:
Applicant: A Walker Respondent: No Appearance Tasmanian Health Service and Dr Gauden: P Turner SC/G Chen
Solicitors:
Applicant: Bishops Barristers & Solicitors Tasmanian Health Service and Dr Gauden: Office of the Solicitor-General
Judgment Number: [2023] TASSC 8 Number of paragraphs: 33 Serial No 8/2023
File No: 3006/2021
ALHOSSAIN AHMAD EZELDIN ABDALLAH KHALAFALLAH v TASMANIAN
CIVIL AND ADMINISTRATION TRIBUNAL
REASONS FOR JUDGMENT BRETT J
11 May 20231 On 13 June 2018, the applicant made a complaint to the Anti-Discrimination Commissioner alleging that he had been subjected to discrimination and victimisation, in breach of the Anti- Discrimination Act 1998, in the course of his employment as a medical practitioner at the Launceston General Hospital (LGH). He had been employed at the hospital in various capacities since January 2006, and at the time of the relevant events, was a senior specialist and consultant haematologist in the Holman Clinic. The complaint alleged that the unlawful conduct had been engaged in by the hospital director, Dr Stan Gauden. Dr Gauden and the entity responsible for the operation of the hospital, the Tasmanian Health Service (THS), were named as respondents to the complaint.
2 The Commissioner accepted the complaint, and then conducted an investigation. The investigation was carried out by the Commissioner's delegate. On 25 January 2019, at the completion of the investigation, the delegate dismissed the complaint on the ground that it was misconceived and lacking in substance. This was an available outcome of the investigation having regard to the provisions of s 71(1) of the Act.
3 On 20 February 2019, the applicant applied to the Anti-Discrimination Tribunal pursuant to s 71(3) of the Act for a review of that decision. Although such a review is by nature a summary administrative procedure, in this case, it became a protracted piece of litigation, which included interlocutory arguments resulting in a lengthy written decision, and a hearing conducted over three days followed by written submissions. Ultimately, on 1 November 2021, the tribunal member conducting the review, Mr Robert Winter, determined that he was satisfied that the Commissioner had made a correct decision in dismissing the complaint. By virtue of s 72(1) of the Act, this determination meant that the complaint lapsed.
4 Although relevant legislation makes provision for appeals to the Supreme Court from specified decisions of the Tribunal, there is no provision for an appeal from a decision concerning a review under s 72. However, the applicant has now applied to this Court for relief similar to certiorari in respect of the decision. In particular, the application seeks to have the determination quashed and the matter returned to the Tribunal for re-determination. The applicant argues that he is entitled to such relief because the Tribunal committed jurisdictional error, in that it misunderstood the nature of the review under s 71(3) and exceeded its jurisdiction by making determinations and applying standards which were not authorised by that provision.
5 By virtue of s 148 of the Tasmanian Civil and Administrative Tribunal Act 2020, the Anti- Discrimination Tribunal was abolished on 5 November 2021. Transitional provisions in that Act mean that orders of that Tribunal made before that date are taken to be orders of the respondent Tribunal. I
shall use the term “Tribunal” to refer to the Anti-Discrimination Tribunal as it was constituted at the
relevant time. The respondent filed a notice of submission, but both Dr Gauden and the THS were
represented and made submissions on the hearing of the return of the general order.
The complaint
6 The complainant commenced work at the LGH in January 2006 and was still working there at the time of the hearing. It seems that Dr Gauden had management and/or supervisory authority over
2 No 8/2023
him for the whole of that period. The complaint asserts that since the applicant commenced work at the hospital, he has "constantly faced hardship, undue scrutiny and ongoing harassment from Dr Gauden in his various positions." He made a previous complaint to the Commissioner against Dr Gauden and the THS in 2014. This complaint was resolved by alternative dispute resolution later in that year. He alleges that the "hostility and antipathy" has continued since then. He attributes this to discrimination on the basis of race, which he describes as "Egyptian/African" and his religious belief or affiliation, which is Islam. Discrimination on the basis of either attribute is unlawful by virtue of ss 14-16 of the Act. The complaint also asserts that Dr Gauden has continued to victimise the applicant because of the 2014 complaint. Such conduct is unlawful under s18 of the Act.
7 The specific allegations made by the applicant in his complaint, and which became the focus of both the Commissioner's investigation and the Tribunal review are as follows:
In late 2016, the applicant's employment position was reassigned from the Department of Medicine to Cancer Services. As a consequence, he was assigned to a clinic on Friday afternoons. The requirement to attend clinic on Friday afternoon interfered with his previous practice of leaving work to attend a prayer session at the Mowbray campus at that time each Friday. Since starting work at the hospital ten years earlier, he had only been required to attend a clinic each Tuesday, and on Friday was permitted considerable flexibility, and was able to fit in his attendance at prayers in and around his duties. However, after the assignment to the Friday clinic, he was no longer able to do this. He alleges that at a consultant's meeting, when he raised the issue, he was told by Mr Grant Smith, an employee of the THS, that he would have to submit applications for leave without pay in order to attend prayers during the Friday clinic. He alleges that he has since taken that course in order to be able to attend prayers, and that this has caused a detriment to him. The applicant alleged that the change to a Friday clinic and the inflexibility around his attendance at Friday prayers interferes with his religious practice and constitutes direct and/or indirect discrimination, on the basis of his religious belief or affiliation.
Between March and April 2017, Dr Gauden queried and sought an explanation with respect to some incidents in which the applicant had seen patients of the Holman Clinic in his private rooms rather than at the clinic premises. The applicant alleged that Dr Gauden's pursuit of this explanation constituted unfair and unwarranted scrutiny "that would not have been directed at others within the LGH". It was alleged that this constituted indirect discrimination.
In 2017, an issue arose between Dr Gauden and the applicant concerning the applicant's supervision of a PhD student. A concern was raised by Dr Gauden about the applicant offering office space to the student, a registered physician, on the premises of the Holman Clinic, without authorisation. This issue included an incident in which Dr Gauden directly confronted the student and reprimanded him for being on those premises without authorisation. It also included a related accusation that the applicant had wrongfully removed a computer monitor from office space in the Holman Clinic. The applicant alleges that Dr Gauden's "attitude towards the accommodation of" the student and his conduct in and about the confrontation constituted both direct and indirect discrimination.
From March 2018, the scheduling of consultations for the applicant in respect of his work in the outpatient clinic was changed in that his time with each patient was reduced to 15 minutes. He alleges that the previous scheduling practice permitted consultations of at least 30 minutes. The applicant alleged that this change placed him under stress and pressure, and was inconsistent with scheduling practice applicable to other doctors. He alleged that the change in scheduling constituted direct and indirect discrimination.
The complaint contains a general allegation that the applicant has experienced "a general atmosphere of hostility and antipathy" every day at work. He expresses a belief that this attitude towards him, and the specific examples of adverse treatment described above, can be attributed to his 2014 complaint. He alleges that this conduct has "gotten worse since that complaint was made".
3 No 8/2023
The Commissioner
8 By s 64(2) of the Act, a complaint once made must be accepted or rejected by the Commissioner within 42 days. There are several grounds upon which a complaint may be rejected. See s 64(1). They include that the complaint is trivial, vexatious, misconceived or lacking in substance. Section 69 provides that the Commissioner may investigate an accepted complaint "in a manner that is appropriate
to the circumstances".
9 In this case, the Commissioner accepted the complaint on the basis that it disclosed possible breaches of the Act, in particular direct discrimination, indirect discrimination and victimisation. The delegate's subsequent investigation seems to have largely consisted of seeking further submissions, information and supporting documentation from each party. A considerable amount of documentation was provided to the delegate by the respondents, probably because much of the confrontation between the applicant and them over the matters referred to in the complaint was conducted by email and other forms of written correspondence.
10 Section 71(1) provides that on the completion of an investigation, the Commissioner or an authorised person is to determine that the complaint:
"(a) is dismissed on any of several of the grounds referred to in s 64 as a basis for
rejecting a complaint, or
(b) is to proceed to conciliation; or
(c) is to proceed to an inquiry."
11 As already noted, the delegate, in this case, dismissed the complaint on the ground that it was misconceived and lacking in substance. This is one of the grounds referred to in s 64, that is incorporated into s 71. The delegate set out her reasons for this decision in writing. The reasons summarise both the applicant's allegations and the response of both Dr Gauden and the THS. The delegate's analysis notes some factual disputes by the respondents, together with explanations for work changes and attempts undertaken to ameliorate any adverse impact on the applicant. There were also explanations by Dr Gauden in respect of action taken by him in relation to the issues concerning the PhD student and the applicant seeing patients in his private rooms. Some of the argument and evidence presented by the applicant related to his justification for the conduct which had been the subject of Dr Gauden's scrutiny. The delegate found that the applicant "may have been subject to some unreasonable management actions which is disputed by the respondents", and that he was "clearly dissatisfied with the alleged treatment". The delegate was also satisfied that "he has the attributes of race and religious belief or affiliation and has made a previous complaint of discrimination". However, the delegate concluded that there was no evidence to support a causal link between each aspect of the alleged treatment and the said attributes and previous complaint. The delegate noted that the respondent's explanations were disputed by the applicant, but observed that even if these explanations were not accepted "it is equally possible that the alleged treatment may have occurred because of a personality clash". It is clear that the delegate considered that the applicant was unable to prove the requisite causal link between the conduct and the prescribed attribute or prior complaint, and that for that reason, the complaint was "lacking in substance".
The review
12 As the tribunal member correctly noted, the issue for the Tribunal on a review of a dismissal by the Commissioner is whether "the Tribunal is satisfied that the Commissioner made a correct decision
in ….dismissing the complaint". See s 72(1). If that decision is made, then the complaint will lapse
automatically in accordance with the terms of that section.
4 No 8/2023
13 In State of Tasmania v Anti-Discrimination Tribunal and Others [2009] TASSC 48, Porter J considered the nature of such a review. His Honour concluded that the review is an administrative procedure which requires a de novo reconsideration of the question which was before the Commissioner. He described it as "a comprehensive merits review, and is not confined to the material which was before the Commissioner". He commented that the issue of whether a correct decision has been made by the Commissioner means "that the question is whether the decision was correct on the material before the Tribunal. The extent of such material is to be governed by relevance".
14 In reaching this interpretation, his Honour observed that although a review of a rejection under s 64, would be ex parte, "that of a dismissal may be expected to involve the respondent". His Honour also took into account the consequence of a finding that the Commissioner had made the correct decision, which was that the complaint lapsed automatically, as well as the provision made by s 87 for the Tribunal, upon a review, to require the provision of information and the production of documents.
15 These principles are not in dispute in this case. This is appropriate, because, in my view, his Honour's analysis is indisputably correct. I respectfully adopt and apply those principles. The tribunal member also recited and purported to apply those principles in his review of the delegate's decision.
16 In accordance with this approach, the tribunal member permitted each party to submit further evidence for the purpose of the review. In fact, the tribunal member agreed to receive some oral evidence. In the end, the only witness who actually gave oral evidence was Dr Gauden. The applicant's counsel was invited to but did not cross-examine him. The tribunal member explained that the purpose of Dr Gauden's evidence was to assist him "to understand the evidence proposed to be tendered by the respondent through Dr Gauden" and that he did not intend to make any decision concerning his credibility. The purpose of the invitation to the applicant to cross-examine Dr Gauden "was for the purpose of affording procedural fairness to" the applicant.
17 The tribunal member analysed the evidence in a similar way to the Commissioner's delegate, but did so in considerably more detail. In general terms, his approach was to examine the evidence provided by both parties. A summary of his analysis in respect of the specific allegations of breaches of the Act set out in the complaint as follows:
In respect of the issue concerning Friday afternoon prayers, the tribunal member identified significant factual disputes. This included a denial by the respondents that the applicant's duties significantly interfered with his capacity to attend Friday prayers, and that it had been suggested that he should apply for unpaid leave in respect of that attendance. The respondents asserted that the applicant had continued to attend prayers and to the extent that he had needed to take leave, had, in fact, taken annual leave. The tribunal member found that it was more probable that the applicant had requested flexibility to enable him to attend Friday prayers after being assigned to the Friday clinic, and that this had been "promptly agreed to without conditions". The tribunal member expressed the view that even if the applicant had been required to use leave entitlements to facilitate his attendance at Friday prayers, this would not have been unreasonable and was in accordance with "standard practice in the Tasmanian State Service" which "apply equally to all employees regardless of the reasons for absence from the workplace". The tribunal member found that "the ADC was correct in its finding that neither direct nor indirect discrimination nor victimisation had been made out".
In respect of the issue concerning consultation with patients in the applicant's private rooms, the tribunal member examined correspondence provided by the respondents and expressed the view that this correspondence reflected "efforts by the second respondent (Dr Gauden) to deal with issues of concern initially raised by a third party". He also noted a letter forwarded by Dr Gauden to the applicant in which the applicant was advised that his explanation "had been accepted and that it was acknowledged that his actions were taken with the interests of patients in mind". The tribunal member accepted that the documentary evidence "demonstrates that the second respondent was
5 No 8/2023
doing no more than following appropriate procedures in relation to the complainant's performance". It is clear that the tribunal member took into account this explanation when he determined that there was no evidence of "less favourable treatment of the complainant because of his race and religious belief or affiliation, nor because he had made previous complaint" to the Commissioner.
The tribunal member identified some areas of factual dispute in respect of the issue concerning the PhD student. However, most of the interaction relating to that issue is evidenced by written correspondence, which, of course, speaks for itself. Further, Dr Gauden does not dispute confronting the student on the Holman Clinic premises, asking him to leave and indicating that if he was not prepared to do so, he would be escorted out by security officers. The tribunal member analysed this evidence in some detail. The analysis demonstrates that most of the factual dispute concerns the applicant's justification for his conduct. The tribunal member concluded that there was no evidence to support a nexus between any conduct on the part of the respondent in respect of this issue and the prescribed attributes. In respect of the scheduling issue relating to the outpatient clinic, the tribunal member again had available to him a considerable amount of documentary material. He concluded that this material does "not demonstrate that the complainant’s assertions of unreasonable/untenable scheduling of the patients are made out". He found that the delegate "was correct to decide that although it may be possible that the respondent's treatment of the complainant was less potentially favourable than his colleagues, there is insufficient evidence to show that the way in which this issue was dealt with was based on the complainant’s race, religious belief or affiliation, or because he had made a previous complaint to the ADC". Finally, the tribunal member considered the general allegations of worsening conduct since the complaint in 2014. He concluded that "there is no direct evidence or evidence from which an inference can be drawn that demonstrates a causal link between any detriment allegedly suffered by the complainant and his alleged victimisation by the second respondent".
18 On the basis of this analysis, the tribunal member concluded that the complaint was misconceived and lacking in substance and, accordingly, the Commissioner's delegate had made the correct decision.
Discussion
19 The fundamental argument advanced on behalf of the applicant is that a review of a dismissal under s 71 is not concerned with the merits of the complaint and, in particular, is not concerned with the answers offered by the respondents. In his written submissions, counsel for the applicant submitted that s 72 "certainly does not provide authority to the ADT to seek additional evidence from the respondent". The applicant argues, in essence, that the question of whether the complaint was misconceived and lacking in substance, is one that should only be determined on the basis of the allegations made, and evidence adduced by, the complainant, without regard to any response or
evidence provided by the respondents. The sole question, according to the applicant’s argument, is
whether the complaint, and evidence in support of it, taken at its highest, establishes a prima facie case of breach of the Act. The applicant argues that the Tribunal in this case impermissibly engaged in a hearing which took evidence from both the complainant and the respondent, and made its decision on the basis of determinations as to disputed questions of fact. The applicant argues that, in doing so, the Tribunal has gone well beyond the review contemplated by s 71(3) and has, in fact, impermissibly engaged in a process akin to an inquiry under Div 4 of the Act. In doing so, it has exceeded its jurisdiction.
20 Although the applicant's counsel expressed this argument in terms of the nature of a review under s 71(3), the argument, in my view, really raises a different question, which is what is the proper criteria for assessment as to whether a complaint is "lacking in substance", particularly in the context of a determination as to whether a complaint should be dismissed under s 71 after an investigation. It seems to me that what the applicant is really saying is that a complaint can only be found to be lacking in
6 No 8/2023
substance, if the complainant's evidence does not establish a prima facie case. Hence, any examination of the respondent's evidence for this purpose will involve the resolution of disputed areas of fact, and a complaint cannot be found to be lacking in substance on that basis.
21 This argument does not rely on the exclusion of the respondent from making submissions. It merely says that evidence presented by the respondent is not relevant to the determinative issue. In State of Tasmania v Anti-Discrimination Tribunal and Others, Porter J expressly observed that the review of "a dismissal may be expected to involve the respondent". His Honour quite clearly made the point that the review is a comprehensive merits review. I do not understand the applicant to dispute these principles. In particular, the applicant does not dispute that the respondent is entitled to be heard on the review. What the applicant says is that the only issue which will concern the Tribunal on such a review, and in respect of which either party may make submissions, is the question of whether the complainant has established a prima facie case. This must be assessed without regard to the answer and supporting evidence provided by the respondent. In this regard, it is submitted that there is a direct analogy to a "no case" submission in a criminal case. In that jurisdiction, the defendant participates in and makes submissions about whether the prosecution has presented a prima facie case, but that question is assessed without regard to any evidence presented by the defendant. Of course, in a criminal case, the question is assessed before the defendant is offered an opportunity to present evidence in answer to the charge. The applicant's submission is to similar effect. Although the respondent will almost certainly have offered an answer and perhaps evidence during the investigation, the applicant's argument is that that material should be ignored when determining whether the complaint is lacking in substance, but
the respondent can make submissions about whether the complainant’s evidence establishes a prima
facie case.
22 The term "lacking in substance" appears and has been judicially considered in a variety of legislative contexts. Within the context of anti-discrimination legislation, the generally accepted explanation of the term, is that stated by Sir Ronald Wilson in his role as President of the Human Rights and Equal Opportunity Commission in Assal v Department of Health; Housing Community Services
[1992] EOC 92 – 409: "The claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance."
23 In Nagasinghe v Worthington [1994] FCA 1387 [1994] 53 FCR 175, von Doussa J in the Federal Court agreed with the President's formulation and restated it as "whether there was any material before the enquiry Commissioner which indicates any real possibility of there being some connection" between the allegation and the relevant Act.
24 It is tolerably clear from these formulations that the consideration as to whether a complaint has substance is not limited to the question of whether there is a prima facie case. The provision is concerned with the power to summarily dismiss cases which are without substance. This must include those which have no real prospect of success. The power of summary dismissal is an important tool of the screening or "gatekeeper" function entrusted to the Commissioner, and is also carried through and made available to the Tribunal. Section 99 (2) provides that the Tribunal may dismiss a complaint at any time if it is satisfied that it is trivial, vexatious, misconceived or lacking in substance. The role of the Commissioner's power of dismissal as part of the screening function was noted by Porter J in State
of Tasmania v Anti-Discrimination Tribunal and Others:
"The exercise on which the Commissioner is embarked is that of a screening process, so that it is only complaints which appear to have such substance as to require them to be dealt with by conciliation, or if that is inappropriate for any of the reasons set out in the ADA, s78(1), to be the subject of an inquiry by the Tribunal. A complaint may be rejected at the initial stage for any of the reasons set out in s64(1). Of the matters set out in s64(1)(a), three relate 'to the insufficiency or to the absence of merit of the factual
7 No 8/2023
basis', whilst 'misconceived' means 'founded upon a wrong idea as to the facts.'; Langley
v Niland (1981) 2 NSWLR 104 at 107."
25 His Honour also noted the distinction between a dismissal under s64, and one that occurs after an investigation under s 71, and concluded that the latter "is still part of the screening process".
26 In Ebber v HR & EA Commission (1995) 129 ALR 455 at 467, Drummond J said:
"A decision to dismiss a complaint...can be made at any stage of the proceedings. There is no ground for thinking that, before he can be confronted with the prospect of dismissal of his complaint under the section, a complainant is entitled to an opportunity to cross-examine on oath each and every one associated with the allegedly discriminatory decision-maker whom he may subpoena to give evidence in an attempt to turn up evidence supporting of each of his otherwise unsupported theories of discrimination. He cannot defeat an application...to dismiss his complaint by saying that he would be denied, by the summary determination of the proceedings, an opportunity to fish for a case of which he then has insufficient evidence...The inquiry is an adversarial, not an inquisitorial proceeding."
27 The importance of this screening function in the administration of anti-discrimination laws cannot be understated. It is important to the proper operation of such laws that the dispute resolution procedures and resources are reserved for matters of substance, and not diverted by complaints which have no real prospect of substantiation or do not raise matters of substance. This point was made by Sir Ronald Wilson in Assal:
"I find it consistent with the pastorally sensitive and conciliatory purpose of the Act to interpret the power of summary dismissal conferred by s25X as reflecting the intention of the legislature that it is in the public interest, as well as in the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power conferred by s25X of the Act in circumstances where that exercise is clearly warranted."
28 It is not unusual in anti-discrimination cases for a complaint to be made by someone who has suffered what is perceived to be a detriment or poor treatment at the hands of another, and who believes that that detriment or treatment has been based on a relevant attribute, but cannot present any or any sufficient direct or circumstantial evidence to support that belief. There is no question that the complainant's belief in the causal connection between detriment and attribute in not sufficient to confer a complaint with "substance". There must be either direct or circumstantial evidence of the connection. Where both attribute and detriment can be demonstrated, it may well be appropriate for the complaint to be accepted and investigated, but the focus of the subsequent investigation in such a case must always include whether there is evidence to support the complainant's belief in this critical causal link. This consideration must necessarily involve an analysis of any response, explanation or supporting evidence offered by the respondent.
29 In any event, the legislative scheme itself makes clear that consideration as to whether a complaint is lacking in substance which is undertaken after an investigation must take into account any response, explanation or evidence offered by the respondent. A decision to reject a complaint because it is lacking in substance in accordance with s 64 occurs before the complaint has been referred to the respondent for a response. Clearly, at that point, the Commissioner will only be concerned with whether the complaint, taken at its highest, raises a matter of substance, in the sense of a possible breach of the Act. However, it is equally obvious that the investigation will necessarily involve referral to the respondent and consideration and assessment of any submissions, explanations or evidence put forward by the respondent. This has clear implications for the proper understanding of what must be assessed by the Commissioner when deciding whether to dismiss the complaint because it is lacking in substance after such an investigation. Section 71 expressly deals with what is to occur "on the completion of an investigation". This includes the power to dismiss the complaint on the basis that it is "trivial vexatious
8 No 8/2023
misconceived or lacking in substance". It cannot have been intended that the Commissioner is limited to an assessment after an investigation which is, in essence, no different to the assessment made at the earlier stage. The applicant would argue that the purpose of s 71 is to permit a further consideration of whether the complainant can establish a prima facie case taking into account evidence obtained during
the investigation. However, the applicant’s argument would artificially exclude from this consideration
any evidence which is of benefit to the respondent. The impractical and illogical consequences of such an argument are readily apparent. For example, the complainant may offer further material in reply to
the respondent’s response. Is this to be ignored? The Commissioner may obtain independent evidence
during the investigation. What relevance would this have to the prima facie case? It is clear from the terms of the legislation that the Commissioner is to consider whether to exercise the power of summary dismissal, including on the basis that the complaint is "misconceived or lacking in substance" on the basis of the information obtained during the investigation, and this clearly includes that provided by the respondent. This view is consistent with the power of the Tribunal to summarily dismiss the complaint at any time on such bases.
30 These features of the legislative scheme necessarily inform the approach to be taken to the assessment made after an investigation as to whether a complaint is misconceived or lacking in substance. There is no question that such a determination should not be based on a decision which relies upon the credibility of witnesses or purports to resolve a fundamental conflict in versions. That type of forensic decision-making is properly within jurisdictional ambit of an inquiry. I also accept the general
proposition advanced by the applicant's counsel that the complainant’s case should be taken at its
highest. However, what is to be accepted on this basis is evidence of fact offered in support of the complaint, as distinguished from the complainant's belief or theories. The latter have no evidential value, and cannot, without supporting evidence, support the complaint. However, these propositions do not mean that an explanation and/or evidence offered by the respondent should be ignored when determining whether a complaint has substance. As already discussed, the analogy with a prima facie case in criminal law, put forward by the applicant's counsel, is in my view a poor one. The screening process provides the context for the assessment. Ultimately, the question for the Commissioner, and upon review the Tribunal, is whether, after consideration of all of the evidence obtained on the investigation or the review, including any evidence provided by the respondent, there are matters of substance raised by the complaint, which require referral to either conciliation or inquiry. A case in which evidence of the causal link between the treatment of the complainant and an attribute referred to in the Act is lacking or weak, may seem even less capable of substantiation after the respondent has provided an explanation or evidence. This would clearly be relevant to the question of whether the complaint has substance.
31 In my opinion, this case provides a good example of the relevance of material obtained from the respondent in that decision-making process. As was in my view correctly noted by both the delegate and the tribunal member, on the applicant's case taken at its highest, he can demonstrate his possession of the relevant attributes and the fact that he suffered detriment at the hands of the respondents. The difficulty that he faces is that, in each case of alleged discrimination or victimisation, there is no direct evidence to support the casual link between the attribute and the detriment, which is necessary to establish a breach of the Act. Accordingly, in order to establish this link, he must rely on circumstantial reasoning. Clearly, the availability and cogency of alternative innocent explanations for the respondent's conduct or for any detriment experienced by the applicant, is highly relevant to the assessment of whether the applicant's complaint has any real prospect of substantiation.
32 Having regard to the entirety of the tribunal member's reasoning, I am satisfied that he has
correctly approached the task required of him by s 71 of the Act. It is true, as noted above, that he has
assessed the cogency of evidence presented by the respondent, and has expressed his view of the
probability of the existence of innocent explanation for various aspects of detriment alleged by the
applicant. However, he has not made nor relied on findings of disputed fact in reaching his ultimate
conclusion. To the extent that he has made apparent findings or comment concerning evidence presented
9 No 8/2023
by the respondents, it is apparent that this has been done in the context of an assessment of the existence
and cogency of such evidence in explaining the applicant’s perception of his treatment, within an overall
assessment of whether there is any evidence that such treatment occurred because of the alleged
attributes. This examination was entirely appropriate, and within the ambit of the Tribunal’s jurisdiction
on a review under s 71. It is not for me to examine the merits of that determination. I am satisfied that the Tribunal member correctly approached the task required by s 71 and his conclusion is not open to challenge in these proceedings. He did not transgress the jurisdictional limits of the task to be undertaken under s 71.
33 It follows that I am satisfied that the Tribunal has not fallen into jurisdictional error as asserted in the grounds of the application. Accordingly, I order that the application be dismissed and I discharge the general order.
0
3
1