Malone and Gold Security Group (International) Pty Ltd - [2011] WASAT 191

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: MALONE and GOLD SECURITY GROUP (INTERNATIONAL) PTY LTD [2011] WASAT 191

MEMBER: MS D TAYLOR (SENIOR MEMBER)

HEARD: 31 OCTOBER 2011

DELIVERED : 25 NOVEMBER 2011

FILE NO/S: EOA 36 of 2011

BETWEEN: MARK JOSEPH MALONE
Applicant
AND
GOLD SECURITY GROUP (INTERNATIONAL) PTY LTD
Respondent

Catchwords:

Discrimination Spent conviction Application for employment Security industry Applicant required to disclose spent conviction Applicant assessed as suitable to be employed Conditional offer of employment Whether applicant declined to meet conditions Whether offer withdrawn because of spent conviction Dispute of fact Applicant's evidence inconsistent Application dismissed

Legislation:

Equal Opportunity Act 1984 (WA), s 83(1), s 83(2), s 93(1)
Security and Related Activities (Control) Act 1996 (WA)
Security and Related Activities (Control) Regulations 1997 (WA), Sch 2, Div 1
Spent Convictions Act 1988 (WA), s 17(2)(a), s 18, s 18(1)(b, s 24, s 24(1), Sch 3 cl 1(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Alan MacDonald
Respondent: Warren Milward

Solicitors:

Applicant: Commissioner for Equal Opportunity
Respondent: WA Work Place Law

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant alleged that the respondent unlawfully discriminated against him on the ground of his spent conviction in the area of employment when processing his application to be employed as a security guard on a gold mine site. He complained that during his interview he was tricked into revealing his spent conviction for a minor offence in 2006 and that this led to the respondent subsequently withdrawing a conditional offer of employment.
The applicant alleged that when the respondent failed to make the arrangements necessary for him to meet the conditions, he telephoned the respondent and was told that he had not got the job because of his spent conviction.
The respondent denied that the applicant's spent conviction was a determinative factor in his application for employment. It agreed that the applicant had been made a conditional offer of employment and said that the application process had stalled when he indicated that he could not fulfil the requisite conditions in the time available, and for no other reason.
The respondent denied that a telephone conversation took place between the applicant and anyone at the company following the interview in which a conditional offer of employment had been withdrawn, for any reason.
The Tribunal was not satisfied that a conversation took place between the applicant and the respondent following the interview. The applicant's account was inconsistent and unsupported by any other evidence.
The Tribunal dismissed the claim.

Background

The applicant, Mr Mark Malone, alleges that Gold Security Group (International) Pty Ltd (GSGI) discriminated against him on the ground of a spent conviction in the area of employment when it informed him in a telephone conversation that took place a day or two after he was offered a job as a security guard on a gold mine site, subject to the obtaining of satisfactory clearances, that he had not got the job because of his spent conviction. He claims that the respondent's conduct contravened s 17(2)(a) and s 18(1)(b) of the Spent Convictions Act 1988 (WA) (SC Act).
On 17 May 2011 Mr Malone lodged a complaint of unlawful discrimination with the Commissioner for Equal Opportunity (Commissioner) under s 83(1) of the Equal Opportunity Act 1984 (WA) (EO Act). By virtue of the provisions of s 24 of the SC Act, his complaint is treated as if it were a contravention under the EO Act, and the provisions of the EO Act apply accordingly.
On 11 August 2011 the Commissioner referred the complaint to the Tribunal pursuant to s 93(1) of the EO Act, the parties having failed to reach agreement at conciliation.
On 31 October 2011 the Tribunal heard oral evidence from Mr Malone in support of his claim and statement signed on 19 October 2011, and from Ms Maree Daly and Mr Malcolm Evans on behalf of GSGI.

Matters not in issue

The applicant is employed in the security industry. He holds a security officer's licence issued pursuant to the Security and Related Activities (Control) Act 1996 (WA) (SRAC Act).
The respondent, GSGI, is a company that recruits staff for the mining, oil and gas industry. Mr Malcolm Evans is a director of the company and the Director of Human Resources. Ms Maree Daly is employed as a recruiting officer by GSGI. In the past two years she has interviewed about 700 applicants for jobs in the industry.
On 16 May 2011 Mr Malone sent his resume to GSGI in response to a general advertisement for a Mine Site Security Officer in the mining, oil and gas industry. He was contacted by Ms Daly and invited to attend for interview that day for a position as a security guard on a gold mine site during an imminent period of shutdown for three to four weeks.
At about 4 pm on 16 May 2011 Ms Daly interviewed Mr Malone at the GSGI's offices in Osborne Park.
Ordinarily Ms Daly interviews prospective employees following an established format. She asks a series of standard questions from an interview questionnaire (form) and takes copies of any qualifications or other documents relevant to the vacancy brought along to the interview by the prospective employee. She assesses the applicant's suitability for the vacancy in question and, if the applicant is suitable, makes a recommendation that he be offered the job. Ms Daly makes handwritten entries on the form during the interview, and completes it with her overall assessment and recommendation immediately after the interview has ended and the applicant has left the room. If her recommendation is positive, the process of appointment will move to the next phase where arrangements are made for essential character and health clearances to be obtained before references are taken up and a formal offer of employment is made.
When Mr Malone was interviewed, the process of appointment was accelerated in order to fill the vacancy by 22 May 2011. To that end, Ms Daly adapted her ordinary format. Mr Malone was told that he would be offered the job, subject to meeting further criteria as to his suitability to be employed. The criteria concerned his health and his character. He was required to undergo a pre-employment medical examination (PEM), an alcohol and drug screen (ADS) and to be deemed suitable to work on a gold mine site.
Anyone wanting to work on a gold mine site is required to agree to the release of information about his criminal record by the Police Gold Stealing Detection Unit to the prospective employer, so that a necessary clearance to enter the site can be obtained. Mr Malone completed the form GSDU 2009 authorising the release of information concerning his criminal record at the interview with Ms Daly.
In the course of the interview Mr Malone disclosed the fact that he had a spent conviction. The information is recorded on both the application form (application form (1)) and the GSDU 2009 that he completed. He says he has a spent conviction for disorderly behaviour that occurred over five years ago and for which he received a $400 fine.
Mr Malone's interview with Ms Daly was a stage in the process of appointment. The final decision could not be made until all the necessary clearances had been obtained. Ms Daly did not make the final decision.
Mr Malone applied for a specific job that required him to fly to the mine site on 21 May 2011 and commence work on 22 May 2011. Ms Daly was required to give the mining company three days notice of a successful applicant. To that end, all necessary examinations, enquiries and clearances had to be finalised by 18 May 2011. Time was of the essence in determining the application.
The parties agree that if Mr Malone's account that a telephone conversation took place in which he was told that he had not got the job because of a spent conviction is accepted, the respondent would have discriminated against him unlawfully in breach of the provisions of the SC Act.

Legislation

The applicant's claim arises pursuant to the provisions of the SC Act, specifically under Pt 3, Div 3 and s 18 that provides:
(1)It is unlawful for an employer to discriminate against a person on the ground of a spent conviction of the person
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of a spent conviction of the employee
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
The complaint is made in the first instance to the Commissioner because of the provisions of s 24(1) of the SC Act that provides:
Where it is alleged that a contravention of this Division has occurred, a complaint may be lodged under section 83(1) or (2) of the Equal Opportunity Act 1984 as if the alleged contravention were a contravention of that Act, and the provisions of that Act shall apply accordingly.
The claim falls to be determined by the Tribunal by virtue of the referral made to it by the Commissioner under s 93(1) of the EO Act 1984 that provides:
Without prejudice to the Commissioner’s powers under section 89, where the Commissioner
(a)is of the opinion that a complaint cannot be resolved by conciliation; or
(b)has endeavoured to resolve a complaint by conciliation but has not been successful in such endeavours; or
(c)is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal,
the Commissioner shall refer the complaint to the Tribunal together with a report relating to the investigation made by the Commissioner into the complaint.

Matters in issue

The issue to be determined is whether the respondent decided not to offer the applicant employment because of his spent conviction.
Determination of this issue requires resolution of two main factual disputes. These concern:
i)what Mr Malone said to Ms Daly during the interview on 16 May 2011 about his availability to attend a medical examination on 17 or 18 May 2011; and
ii)whether a telephone conversation took place between Mr Malone and Ms Daly on a subsequent day.
The main factual issues in dispute are as follows.
Mr Malone told the Tribunal that during the course of his interview he was asked by Ms Daly if he could attend a medical examination in the next couple of days before going on site. He said that he told Ms Daly that he could attend whenever necessary and that when he left GSGI's offices at about 5 pm on 16 May 2011, it was on the understanding that Ms Daly would telephone him the next day with details of the medical appointment.
Mr Malone said that when he heard nothing from Ms Daly he left several telephone messages for her with the receptionist before he was eventually put through to speak to her, at which time she informed him that he did not get the job because of his spent conviction.
Mr Malone's account of when he rang GSGI and spoke to the receptionist and to Ms Daly was inconsistent.
Ms Daly told the Tribunal that having assessed Mr Malone as suitable for the job during the course of the interview, she asked him if he could attend a PEM and ADS in the next two days, and that he told her that he was unavailable because he was working. She said that the application process stalled at that stage because she was seeking to fill a particular vacancy that required a security guard to be on site by 22 May 2011. Ms Daly said that she took no further steps to progress the application because Mr Malone said he could not attend the medical appointment.
Ms Daly denied speaking to Mr Malone again after the interview on the telephone or otherwise.
Ms Daly had no recollection of meeting or interviewing Mr Malone. She relied on the notes she had made at the time of the interview on 16 May 2011 to explain why Mr Malone's application for employment did not go further.
Ultimately, Mr Malone must establish on the balance of probabilities that GSGI refused him employment by unlawfully discriminating against him on the ground of his spent conviction in determining whether he should be offered employment (s 18(1)(b) of the SC Act)). The critical factual issues that he must establish are that he told Ms Daly on 16 May 2011 that he could attend a medical appointment in the next two days and that when he telephoned Ms Daly on 17 May 2011 she informed him that he did not get the job because of his spent conviction.
Given the limited ambit of the factual disputes between the parties, the Tribunal proposes to determine these disputes before considering whether it is necessary to consider any other issue relevant to the claim.
The Tribunal turns now to a more detailed examination of the evidence.

Ms Daly's evidence

Ms Daly is a very experienced recruiting officer for security positions within the mining, oil and gas industry. She has worked for GSGI for nine years and held the position of recruiting officer for two years. She told the Tribunal that she has reviewed about 2,500 applications for employment each year and that she has interviewed approximately 700 applicants for employment in the past two years.
Ms Daly told the Tribunal that she has no independent recollection of Mr Malone or of the conversations she had with him during the interview process on 16 May 2011. She relies on the standard procedure she adopts when dealing with applicants for employment, which she said she applies in all cases. Ms Daly said that ordinarily she reviews an applicant's resumé and makes an appointment for an interview if warranted. At interview an applicant is required to produce all relevant documents relating to licences and qualifications. She then completes an employment application cover sheet on which she records information regarding any requirement to give notice, any pre-booked holidays and the applicant's qualifications and accreditations. She said that she then gives the applicant the application form to fill in while she photocopies the relevant produced documents.
One of the questions on the application form asks if the applicant has ever been convicted of an offence under any Act during the last 10 years, and requires the applicant to give brief details of any convictions. Ms Daly said that if applicants indicate they have no convictions, she asks them if they have any spent convictions. She said that she asks every applicant this question because she believes that individuals are prohibited from being employed in the security industry if they have been convicted of certain offences, even if the convictions are regarded as being spent convictions. She said she could not recall any conversation with the applicant about the issue of disclosing spent convictions.
Ms Daly told the Tribunal that Mr Malone's spent conviction for disorderly behaviour over five years ago did not disqualify him from being employed on the mine site.
Ms Daly said that if she considered a spent conviction was likely to impact on an applicant's chances of employment, she would record that on the form that she completes at the interview and pass it onto the operations manager for a decision. Ms Daly said she has never told an applicant that he cannot have a job because of a spent conviction.
Ms Daly said that the next step in the interview process is for her to ask the applicant a number of standard questions contained in the interview questionnaire. She said that she records the answers contemporaneously in the interview questionnaire. She said that this step would not take place if the applicant was a 'prohibited person', that is, one disqualified from employment in the mining industry.
Ms Daly told the Tribunal that she assessed Mr Malone as suitable for the job and asked him to complete the GSDU form, permitting disclosure of his criminal record because of the urgency of processing the application. She said that this would ordinarily be done at a later stage in the process, after the medical examination. She said that the GSDU form authorised, ultimately, release of the information to the company that controlled the gold mine, and that this company took the final decision about whether or not a person was granted permission to enter the site.
Ms Daly said that she told Mr Malone that he was qualified for the job and asked if he would be available for a medical examination within the next two days. She said that her notes indicate that he told her that he was not available as he was working. She said that the interview must have ended there, as Mr Malone was being interviewed for a specific vacancy. She said that her notes indicate that Mr Malone would be interested in another job with the company if one came up, if the money was better.
Ms Daly said that Mr Malone left the office and she then completed the interview assessment report according to her usual practice. On this form she rates an applicant's performance at interview and addresses an applicant's personal traits as well as his professional, technical and educational qualifications and skills. Ms Daly assessed all of Mr Malone's qualifications and skills positively. Her overall assessment of Mr Malone noted on the form was that he was 'above average; higher than the required standard'.
Ms Daly noted in the section of the report entitled 'Reasons and Comments' that Mr Malone 'will not be available for medical [examination] as he will be working. Has stated that if another position become[s] available he would most likely take it if offered more money'. The interview assessment report is dated 16 May 2011. Ms Daly rejected the proposition put to her in cross-examination that she had added those comments later to disguise the fact that she had told Mr Malone that he did not get the job because of the spent conviction. There was no evidence that cast doubt on Ms Daly's evidence that she wrote her comments during or immediately following the conclusion of the interview on 16 May 2011.
Ms Daly said that she did not forward the GSDU form to the Police as the application could not be taken further when Mr Malone said he was unavailable to take the medical examination in the next two days. She denied that she avoided taking telephone calls from Mr Malone on 17 May 2011 and that she told him he did not get the job because of his spent conviction.
There was no substantial challenge to Ms Daly's account of her usual procedure when interviewing an applicant for employment.

Mr Malone’s evidence

Mr Malone's account of the substance of his interview with Ms Daly echoes the account given by her in most respects. He gives a different account about his response to the question concerning his availability to attend a medical examination and says that the sequence of events at the interview differed from the sequence outlined by Ms Daly. He also says that he was unhappy about being asked to disclose his spent conviction, and that the GSGI had no right to ask him the question.
The Tribunal does not consider that anything turns on the sequence of events at interview or upon Mr Malone's unhappiness at being asked questions about his spent conviction. Whilst Mr Malone's complaint to the Commissioner included a bald assertion that 'it is illegal for a [sic] employer or eployment [sic] agency to ask about spent convictions' it is not a complaint that he pursued at the hearing. The Tribunal considers this to have been a sensible decision on Mr Malone's part. He did not suggest that it was unreasonable for the company to ask questions directly relevant to the validity of a licence required as essential for employment in the security industry. Mr Malone did not challenge the evidence that the question is asked routinely of any applicant for a job that requires the employee to be the holder of a security licence, so as to ensure that the licence remains valid in form and substance, and had not become invalidated since issue by the commission of a disqualifying offence, as set out in Sch 2, Div 1 of the Security and Related Activities (Control) Regulations 1997 (WA).

Mr Malone agreed that all the forms to which Ms Daly referred were completed. He said that he did not see her complete the interview assessment report.
Mr Malone agreed that he disclosed his spent conviction, albeit reluctantly and after protest at being asked to do so.
Mr Malone agreed that Ms Daly had written the words 'over 5 years ago' on the GSDU form concerning the spent conviction.
Mr Malone said that when Ms Daly asked about his availability to undergo a medical examination, he told her that he could attend a medical examination at any time because he was a casual worker. He said his casual work had flexible work hours and he could take a day off whenever he wanted. He was unsure of his rosters for the week but believed he was not working on Wednesday (18 May 2011). He said that Ms Daly told him that she would arrange the medical examination and be in contact with him soon. He said that the interview then ended and he left feeling happy that he had the job.
In answer to questions put to him by his counsel at the hearing, Mr Malone said that when he had not heard from Ms Daly by early afternoon on 17 May 2011, he telephoned GSGI three times and left messages for her with the receptionist.
In his statement signed on 19 October 2011, Mr Malone stated that he telephoned 8 to 10 times in the two days following the interview and left messages for Ms Daly with the receptionist.
However, when confronted at the hearing by counsel for the respondent in cross-examination with his online complaint to the Commissioner sent by email on 17 May 2011 at 4.59 pm, Mr Malone said that he made all telephone calls to Ms Daly on 17 May 2011.
Mr Malone said that he spoke to Ms Daly and was told that he had not got the job because of his spent conviction. He said he was shocked and said words to the effect 'you can't do that'. He said Ms Daly then hung up. He 'was angry and taken aback that [he] had been treated in such a dismissive manner'.
Mr Malone told the Tribunal that he was, and still is, hurt, distressed and humiliated by Ms Daly's advice.

Mr Evans' evidence

Mr Malcolm Evans told the Tribunal that he is a director of GSGI and former police officer. He is the Director of Human Resources within the firm.
Mr Evans said that a standard procedure has been in place for some time in dealing with job applications in order to minimise the likelihood of litigation and the risk of a wrong decision being made. He said that the interview follows a prescribed sequence because there is no sense in continuing with an interview if the required information in the previous step is not acceptable. He confirmed Ms Daly's evidence of the procedure.
Mr Evans said that the GSDU form needs to be lodged with the GSDU by 10 am in order to be reviewed on the same day.
Mr Evans said that two administrative assistants answer the telephone at the company and follow a set procedure when taking a message for a member of staff unavailable at the time of the call. If a caller leaves a message for a staff member, the name of the caller, the caller's telephone number and the message will be recorded in writing by the administrative assistant in a message book. The procedure is the same whether the staff member for whom the message is left is in or out of the building.
Mr Evans produced two message books that were used at the relevant time. They record messages received from 16 to 27 May 2011. Neither reveals a call from Mr Malone to Ms Daly or to anyone else at the company. There is one entry in the message book on 17 May 2011. It does not relate to Mr Malone or to Ms Daly.
Mr Evans said that he first learnt of Mr Malone's complaint when GSGI received a letter dated 23 June 2011 from the Commissioner. He said he then spoke to both administrative assistants and neither had any recollection of the applicant's telephone calls. Mr Malone did not challenge this evidence nor the accuracy of the message books.
Mr Evans said that the project manager determines most applications for employment but some may involve the operations manager or the office manager, depending on the circumstances. Ultimately, the company controlling the site, in this case KMCG, assesses the suitability for entry onto the site of those applicants recommended by the company.
Mr Evans said that the company has worked with KMCG for nine years and he cannot recall anyone being refused employment because of a spent conviction.

Findings

The factual issues essentially boil down to word against word.
On the one hand Mr Malone says he told Ms Daly he could attend a medical examination anytime and that when he called and spoke to her on the telephone on 17 May 2011 she told him he did not have the job because of his spent conviction.
On the other hand Ms Daly says that Mr Malone's application for the job stalled because he said he could not attend a medical examination as he was working, and that she never spoke to him again after the interview.
It is not simply a question of preferring one account to the other. In order to succeed in his claim Mr Malone must demonstrate that his account is more likely than not.
We consider first of all the conflicting accounts about whether or not a telephone conversation took place between Mr Malone and Ms Daly after the interview.
In his complaint to the Commissioner on 17 May 2011, Mr Malone states that he spoke to Ms Daly on 17 May 2011. In his statement dated 19 October 2011, he states that he made 8 to 10 telephone calls over two days after the interview and spoke to Ms Daly on 18 May 2011. In his evidence in chief on 31 October 2011, Mr Malone gave the account consistent with his written statement. When confronted in crossexamination with the timing of his online complaint to the Commissioner by email at 4.59 pm on 17 May 2011, Mr Malone said that he must have spoken to Ms Daly on 17 May 2011. However he did not explain how he came to give a different account in his written statement and in the early part of his oral evidence. He gave no explanation as to why he asserted in his statement that he spoke to a receptionist on several occasions and left repeated messages for Ms Daly on 17 and 18 May 2011.
In view of the timing of the lodging of the complaint at 4.59 pm on 17 May 2011, the Tribunal finds that if Mr Malone made any calls to the respondent, they were made sometime during the afternoon on 17 May 2011, before he sent the email to the Commissioner, over a period of about two hours.
The online complaint requires a complainant to 'give us all the dates and other details you remember'. When making the complaint Mr Malone made no reference to his numerous futile attempts to contact Ms Daly, as might reasonably be expected, given his evidence about his anger and hurt at Ms Daly's attitude towards him, and the fact that on his account he must have made the complaint immediately after the alleged telephone conversation took place.
Mr Evans' evidence about the message book procedure on or about 17 May 2011 was not disputed and is accepted by the Tribunal.
Accordingly, if Mr Malone's account that he left several messages for Ms Daly is true, a record of the message by reference to the caller and member of staff for whom the message was intended would appear in the message book. The absence of any recorded message for Ms Daly in the message book on 17 May 2011 raises doubt about the reliability of Mr Malone's account. The absence of any reference by Mr Malone in his online complaint to having left any messages for Ms Daly before being able to finally speak to her, makes his assertion that he left several messages for her unlikely.
The Tribunal does not accept Mr Malone's evidence that he telephoned the respondent and left several messages for Ms Daly. This is because the discrepancies in the accounts given by him in the online complaint and in his statement, together with the absence of any explanation for the change in his evidence and the evidence about the telephone message book procedure, and the absence of any record of any message having been left by him for Ms Daly, renders his account that he telephoned Ms Daly on numerous occasions implausible.
Notwithstanding our finding that Mr Malone has failed to establish that he telephoned GSGI and spoke to Ms Daly after the interview, we turn now to consider the evidence about the content of the telephone conversation Mr Malone says took place.
Mr Malone told the Tribunal that he left the interview on 16 May 2011 believing he had been offered the job as a security guard on a gold mine site commencing on 22 May 2011, subject to clearance by the GSDU and passing the PEM. He had no reason to believe that his reluctant disclosure of his spent conviction had any material bearing on his application. Ms Daly's evidence that she continued the interview process after Mr Malone's disclosure of his spent conviction at an early stage of the process was unchallenged. She said that she was not concerned, given the nature of the conviction and the fact that it was more than five years ago. The insertion in the GSDU form by Ms Daly that the spent conviction was 'over 5 years ago' was in Mr Malone’s favour and consistent with her evidence that the spent conviction was not an impediment to him securing the job.
There is no evidence that Ms Daly spoke to anyone at the company about the spent conviction or that she had second thoughts about it and changed her mind about its lack of relevance to the application. Ms Daly had assessed Mr Malone as being above average and she had recommended him as suitable for the job. There is no evidence that Ms Daly was concerned about Mr Malone's spent conviction. On the contrary, she had clarified his disclosure on the GSDU form in a positive way and the employment process had progressed.
There is no evidence that casts doubt on Ms Daly's evidence about when she wrote her comments at the conclusion of the report. The GSDU had not considered the information in the GSDU form as it had not been lodged. All the evidence is consistent with Mr Malone being a suitable employee.
Accordingly the Tribunal accepts Ms Daly's evidence that the application process stalled for reasons that rest with Mr Malone. As the parties agree that Mr Malone was asked to attend a PEM and ADS in the next two days as the next step in the process of appointment, we accept Ms Daly's account that his indication that he could not attend due to work commitments was the reason why the application did not proceed. There is no reason why Ms Daly would have the telephone conversation described by the applicant 24 hours or so after he left the office, when his and all other evidence confirms Ms Daly's evidence that the spent conviction was not an issue.
The Tribunal accepts the evidence that the GSDU form had not been submitted by 10 am on 17 May 2011. There was no dispute that release of information by the GSDU to KMCG was a condition of the job offer.
The failure to lodge the GSDU form could mean that either Ms Daly had misrepresented her assessment of the applicant to him and on the relevant forms, or that between around 5 pm on 16 May 2011 and before 10 am on 17 May 2011 when the GSDU form was due to be lodged, something or someone intervened to cause Ms Daly to inform the applicant late on 17 May 2011 that he did not get the job. There is no evidence of any such intervention. There is no evidence that Ms Daly misrepresented her assessment of Mr Malone's suitability to be employed to him or in the relevant forms. Ms Daly's account that the job application came to an end when Mr Malone told her he was unavailable for a medical examination is more plausible than Mr Malone's account of his telephone conversation with Ms Daly on 17 May 2011.
The Tribunal accepts Ms Daly's evidence that she has no independent recollection of the interview with Mr Malone given the large number of applicants she interviews each year. We accept her evidence that it is not unusual for applicants to decline a medical examination and that nothing took place during the interview with Mr Malone that would make it particularly memorable. There was a faint challenge to Ms Daly's evidence about her contemporaneous entries in the report, but there is no evidence to contradict her account. We accept Ms Daly's evidence that she filled in the report immediately after Mr Malone left the office and that its contents are accurate.
As to the sequence of events at interview, there was acceptance by Ms Daly that her standard process was modified to meet the particular needs of the situation, as time was pressing. No real issue was taken with Mr Malone's account of the order in which the interview process proceeded.

Conclusion

The Tribunal finds that the applicant has not proved his claim of unlawful discrimination and dismisses the application.

Orders

The application is dismissed.

I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D TAYLOR, SENIOR MEMBER