CITATION: Thompson -v- Baulkham Hills Shire Council [2001] NSWADT 162 DIVISION: Equal Opportunity Division APPLICANT Helen Thompson PARTIES: RESPONDENT Baulkham Hills Shire Council FILE NUMBER: 991122 6, 7, 8/11/2000 HEARING DATES: 26, 27/02/2001 21, 22/05/2001 SUBMISSIONS CLOSED: 05/22/2001 DATE OF DECISION: 09/24/2001 BEFORE: Bartley R - Judicial Member; Mooney L - Member; Strickland J - Member APPLICATION: Disability Discrimination - In work - Sex Discrimination - In work - Victimisation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Vivesty v Simosis Montefiore Jewish Homes (1999) 92-987 (EOT) General Steel Industries Inc v Commissioner for Railways (NSW] 112 CLR 125, 192 ,130 APPLICANT REPRESENTATION: In person RESPONDENT E Brus, barrister ORDERS: 1. Complaints dismissed; 2. No order as to costs. 1 On 22nd October 1997 the Anti-Discrimination Board received a complaint under the Anti-Discrimination Act 1977 from Helen Thompson (hereinafter called the Applicant) against her employer, the Baulkham Hills Shire Council, (hereinafter called the Respondent] alleging discrimination on the grounds of sex and victimisation. 2 On 4th June 1998 the Anti-Discrimination Board received a further complaint under the Act, which the President of the Anti-Discrimination Board said, "disclosed a possible disability complaint". In that complaint the Applicant alleged that the Council discriminated against her on the ground of disability as one of the reasons, she said, for the Council's termination of her employment was its knowledge of her psychological condition for which she had submitted a Worker's Compensation Claim on 27 October 1997. 3 On 20 December 1999 the President said he believed that in the circumstances the complaints could not be conciliated and he referred them under section 94(1) of the Anti-Discrimination Act 1997 to the Equal Opportunity Division of the Administrative Decisions Tribunal. 4 On 6 November 2000 the hearing of the complaint commenced when the Applicant appeared on her own behalf and Ms Brus of Counsel appeared for the respondent. The hearing continued on 7 November 2000 and 8 November 2000, 26 February 2001, 27 February, 28 February 2001, 21 May 2001 and concluded on 22 May 2001. 5 At the hearing days in February 2000 Mr. Beckett of Counsel represented the Applicant. On the other hearing days she represented herself. Ms Brus of Counsel appeared for the Respondent throughout the hearing. Employment history 6 Baulkham Hills Shire Council from 10th October 1990 to 12 November 1997 employed the Applicant. 7 The Applicant was a part-time Administration Assistant from 10th October 1990 to 31st October 1990; a senior part-time Administrative Assistant from 7th November 1992 to 30th March 1996; full time from 1 April l996 to 3rd June 1996 and Secretary to the Manager Bushfire and Emergency Services from 4th June 1996 to 12th November 1997. 8 The Applicant was based for the term of her employment at the Fire Control Centre (FCC), which was located at Kenthurst some ten kilometres from the main Council Centre at Baulkham Hills. Between late 1995 and late 1997 the FCC was subject to a restructuring process as a result of which all the positions there were declared vacant. The Applicant's and two other positions were made redundant. The Applicant did not apply for one of the new positions, but sought relocation. On 12 November 1997 the Respondent advised her that there were not any positions available on a redeployment basis and thus her employment was terminated. Applicable Sections of the Act 9 Sections 24 and 25 of the Act provide that you must not discriminate against someone because of their sex in the area of employment. In general terms, these sections state that it is against the law for an employer to treat an employee of one sex less favourably than they would treat an employee of the other sex, in the same or similar circumstances. 10 Sections 49A 49B, 49C and 49D of the Act say that you must not discriminate against someone because of their disability in the area of employment. "Disability" is given a broad definition in the Act and includes psychological illness. The sections making disability discrimination unlawful are framed in similar terms to sections 24 and 25. That is, they provide that it is against the law for an employer to treat an employee with a particular disability less favourably than they would treat an employee without that disability, in the same or similar circumstances. 11 Section 50 of the Act makes it unlawful to victimise a person who has attempted to assert his or her rights under anti-discrimination legislation (regardless of whether the person has lodged a complaint). This means that it is against the law to subject a person to any detriment in any circumstances because the person has raised concerns about unlawful discrimination. 12 Part 2A of the Act deals with sexual harassment. The Complaint 13 The Applicant set out her allegations of discrimination against the Respondent Council in her first letter to the Anti-Discrimination Board dated 17 October 1977. 14 In her letter she said: 'I have been employed by the Baulkham Hills Shire Council for period of seven (7) years and now wish to formerly (sic) lodge a complaint against the Council for not adhering to their own Code of Conduct and breaching their Disciplinary Procedures because of my female status. Despite continued requests to Council on 29th July 1996, 7th August. 1996, 29th August, 1996, 2nd February, 1997, 7th June l997 and 11th August l997 to protect me in a male dominated department which is isolated from Council, my requests have been ignored to the extent that I have had to seek medical consultation for severe emotional and mental stress caused by continued harassment and abuse. A Medical Report pertaining to this is attached. My position as Secretary to the manager Bush Fire and emergency Services has now been made redundant due to restructuring within the Department after I had forwarded a letter to the General Manager on 11th September 1997, requesting an arbitrator external to Council be appointed to resolve the situation. (Copy attached) To date no written response has been received except for verbal communication with Lynne Busby (Personnel & Risk Manager] on 3rd October 1997 that no action would be taken but training in harassment and discrimination would be instigated throughout Council. Whereby all restructuring within the Department has encompassed work already being carried out by the male staff, the job description to replace my position includes managerial qualification as Secretary to the Manager Bush Fire and Emergency Services, with training going to the male staff only despite continually requesting over a period of seven (7) yeas more training and advanced training in computers. In all meetings held within the Fire control Department relating to changes in emergency procedures within and outside the Control Centre and computer upgrading I have been discriminated against with the meetings to assist only the male staff in improving their expertise for their positions. I do not expect to be treated any better than the male staff in the department, but I do not expect to be treated any less and to be continually told I have to forget the abuse and harassment that I have been subject to and to "put it in a little box"'. In subsequent letters the Applicant provided the Board with further information including the allegations of possible disability discrimination and victimisation. The evidence 15 The Applicant gave lengthy evidence over several days in support of her case. Instead of the usual statement she tendered a folder of documents, some of which were objected to on the grounds of relevance. There were two main documents she relied upon – her Issues of Concern document dated June 1997 and a Memo dated 2nd February 1997 with the title "Harassment Charge – Tony Griffiths". Both these documents had been produced by the Applicant for the Respondent's HR Department. Further evidence was given by the Applicant's witnesses, Mr Adrian Van der Donk, a co-worker and Assistant Fire Control Officer, Mr John Bray, her Union representative and briefly by Mr John Thompson, her husband. 16 The Respondent relied primarily on the evidence of six employees, Mr John Barker, a Director of Council, Ms Catriona O'Brien, Human Resources Officer, Ms Lynne Busby, Personnel and Risk Manager, Mr John Hojel, Manager Bush Fire and Emergency Services, Mr Chris Anderson, Deputy Fire Control Officer, Mr Tony Griffiths, Training Officer and Mr Kelvin Wise, Fire Mitigation Officer. Messrs Hojel, Anderson, Griffiths and Wise were all based at the FCC for the relevant time. 17 The incidents that the Applicant relied upon as evidence of sex discrimination covered a period of over four years. Her counsel, Mr Beckett, mid-way through the inquiry, provided a useful summary of these. Altogether, he identified twenty separate allegations of sex discrimination and one of sexual harassment, in addition to the allegations of disability discrimination and victimisation. 18 Rather than deal with each allegation individually we have grouped them together for simplicity and set out our findings in relation to them below. The sex discrimination complaints Incidents prior to the commencement of Tony Griffiths 19 The Applicant stated a number of times that her problems began with the employment of Tony Griffiths at the FCC in April 1994. This was also the view of her witness, Mr Van der Donk, who categorised the FCC prior to Mr Griffith's arrival as " a big happy family". Nevertheless, the first two incidents the complainant raised occurred in August 1993 and involved two other co-workers, Chris Anderson and Kelvin Wise. 20 In the first instance the Applicant found that her desk and the surrounding furniture had been moved to a different position while she was on leave. Her complaint had two aspects – it was done without consultation and the new arrangement was unsatisfactory. 21 Chris Anderson, for the Respondent, said he rearranged the furniture to make way for new staff coming to the FCC – he had to put them somewhere. He thought it made sense to do it while Mrs Thompson was away. He agreed he did not discuss it with her first, but said the office was rearranged over and over. Kelvin Wise recalled that the Applicant was angry with Chris Anderson for moving the furniture and that she moved things back to where they had been. He said his offer to help her was rejected. 22 The Applicant stated the new arrangement meant that people would have to go behind her chair to access the radio. While this might have been an inconvenience, the Tribunal could not agree with the Applicant's assertion that it was an occupational health & safety issue. At any rate, since the Applicant returned the furniture to its former position almost immediately this would have ceased to be an issue. 23 In the Tribunal's view, the Applicant's real concern was a perceived lack of courtesy for which she perceived the need for an apology. Although in cross-examination she acknowledged that the situation was rectified within half an hour when the manager, John Hojel, took Chris Anderson aside and spoke to him about it, it is notable that the Applicant in a meeting with Catriona O'Brien, a Council HR officer, three years later, still considered it an issue that she never received an apology. 24 The Applicant showed the same kind of reaction to many of the incidents she alleged amounted to sex discrimination. In the circumstances of this incident there was simply no evidence that Chris Anderson's action was on the ground of the Applicant's sex or that other male employees were treated differently. 25 The Tribunal also heard a great deal of evidence regarding another day in August 1993 when the Applicant moved some office furniture, namely the new furniture delivered to the FCC which the Applicant said John Hojel had taken her out to buy before she took leave to have an operation. It was the Applicant's evidence that Chris Anderson and Kelvin Wise "stood by and watched and mocked" her while she moved the furniture and that the effort caused her to haemorrhage later that day. 26 The Applicant admitted she asked neither of them to help her. She also stated that another person who came into the office gave her some help. The Tribunal accepts the evidence of Mr Wise that he had no recollection of this incident and of Mr Anderson that he was unaware that the Applicant had had any recent surgery. The evidence did not support the Applicant's assertion that their failure to help her was sex discrimination. The assertion is also at odds with the Applicant's own proposition that she and Chris Anderson shared quite a good working relationship. Kelvin Wise also stated he normally got on quite well with Applicant. Interaction with Tony Griffiths 27 The Applicant first raised her concerns regarding Tony Griffiths in June 1996 in a conversation with Catriona O'Brien. Ms O'Brien recalled that the Applicant wanted an apology from him. 28 The Applicant gave lengthy evidence of four incidents between June 1994 and June 1996, namely that Tony Griffiths had twice accessed her computer without consulting her, that he had told her to allow two technicians to access her computer without prior notice or due consideration being given to her workload and that he made some alterations to some minutes she had typed. 29 The evidence was that Tony Griffiths was employed as a Training Officer at the FCC in April 1994 as part of its expansion following the disastrous bushfires of the previous summer. His primary task was to introduce new technology to the Centre - specifically a networked system of computers -and to see to the training of staff in that technology. 30 On the occasions he accessed her computer that she complained of, the Applicant agreed that Mr Griffiths made changes to the icons and the wallpaper. The Tribunal agrees with the Respondent's submission that these are petty matters that could not support allegations of discrimination or harassment. 31 Tony Griffiths gave evidence that he didn't know when the technicians were expected and so couldn't give anyone prior notice. He also stated that they came to see him because the Applicant initially refused to give them access to her computer, and that the Applicant was provided with another work station on which to continue her work when she complained. The Applicant did not seriously contradict this evidence, which does not support her allegation of discrimination. 32 The Tribunal also accepts Mr Griffiths' evidence that he amended the Applicant's minutes to more accurately reflect some aspects of the meeting in which he had particular involvement. While his failure to discuss it with her may show a lack of courtesy, it cannot, in our view, support an allegation of discrimination. 33 Following her conversation with the Applicant about these incidents Catriona O'Brien conducted a series of meeting at the FCC with the Applicant, John Hojel and Tony Griffiths on 29th July 1996. Her detailed notes of these meetings form Exhibits 35, 36 and 37. In our view these notes strongly support the conclusion Ms O'Brien stated she reached, namely that the issue was not one of discrimination at all, but of conflict between two personalities and some change issues at the FCC. This view is further supported by the Applicant's own statement that she felt 'total contempt' for Tony Griffiths in her memo to Ms O'Brien dated 7th August 1996. 34 The Applicant maintained that nothing was ever done about her complaints, but she did not contest the evidence of Ms O'Brien that two further meetings were held to discuss her concerns on 5 August and 2 September 1996, and that both the Applicant and Tony Griffiths were involved in suggesting strategies to overcome the problem. 35 The Tribunal also notes that although the Applicant had a part-time assistant, Pam Thomas, working with her during this period, she was not called to give evidence in the inquiry. 36 Despite the efforts of Catriona O'Brien, the Applicant continued to come into conflict with Tony Griffiths over the next twelve months and her further allegations of harassment and discrimination by him and other staff at the FCC led to further meetings convened by Lynne Busby between June and August 1997. 37 The factual basis of many of the Applicant's allegations was not seriously disputed by the Respondent's witnesses. It was her categorisation of the various incidents as sex discrimination which was strongly denied and there were frequently alternative explanations or perceptions urged by those witnesses. 38 The Tribunal accepts the evidence of Tony Griffiths in relation to his alleged differential treatment of the Applicant at meetings and of his alleged refusal to take phone calls as being a more reasonable and plausible view of the reality of those incidents and finds the Applicant's view not substantiated. 39 It is clear from the evidence of both the Applicant and Tony Griffiths about their interaction with each other that they were two people who could not work together. The petty nature of many of the Applicant's concerns also, in our view, points to this conclusion. 40 Tony Griffiths' evidence that the Applicant felt hostility towards him soon after he began to make changes in the FCC and that, as a consequence, he backed away to avoid confrontation with her was supported by the evidence of both Chris Anderson and John Hojel. The evidence of Lynne Busby, that because training of the Applicant by Tony Griffiths was a sensitive issue, outside training was arranged for her at additional cost. 41 The Tribunal also concluded that the Applicant's own evidence regarding the moving of the office furniture, the conflict over the placement of the typewriter, the demonstration of the new photocopier and her insistence that the office diaries were her own, lent support to Tony Griffiths' statement that the Applicant "seemed to have the view that the whole administrative office area was her area, over which nobody else had any or much input." 42 The evidence of Adrian van der Donk came closest to supporting the Applicant's assertion that it was because she was a woman that she was treated in the manner of which she complained. In particular, Mr van der Donk stated he heard Mr Griffiths refer to the Applicant as "that stupid woman" a number of times. He further stated that Mr Wise was present and would have heard the statement on at least on one occasion. 43 Tony Griffiths denied doing so and Kelvin Wise said he could not recall. The Applicant did not claim to have heard it herself. Kelvin Wise recalled Tony Griffiths raising his voice in response to the Applicant raising hers, but said he had never seen Tony Griffiths be derogatory. Both Chris Anderson and John Hojel strongly denied ever witnessing Tony Griffiths being rude or abusive towards the Applicant. 44 All the witnesses shared Adrian van der Donk's observation that 'an overall major situation' built up between Tony Griffiths and the Applicant. In the light of this, it is plausible that Tony Griffiths may have occasionally vented his feelings by referring to the Applicant in the manner alleged. While the Tribunal cannot condone it, in the circumstances of this inquiry we do not consider that the remark of its own is sufficient to support a conclusion of differential treatment on the ground of sex. Furthermore, Adrian van der Donk's evidence that Mr Griffiths treated everyone in the same manner – that is, as a subordinate, including himself, goes against a finding of any differential treatment of the Applicant in this regard. 45 Adrian van der Donk also suggested that the Applicant was treated differently to the men at the FCC with regard to computer training. He stated she had to fight hard to be allowed to go to courses. He could specifically recall one course – Word for Windows – but acknowledged she went on it eventually. 46 The Applicant made similar assertions about her training, but also acknowledged she didn't ask Tony Griffiths for any additional training, although she did ask John Hojel in late 1997, and he said there was nothing left in his budget for it. 47 The Tribunal is of the view that any difference in the Applicant's training and that of other FCC staff was most likely to have been due to the difficulty that Tony Griffiths felt he could not give her training personally, and the evidence that training was generally provided for her through the Council's Secretaries Users' Group. Interaction with John Hojel 48 The Applicant made a number of allegations of sex discrimination and one of sexual harassment against her Manager, John Hojel. She also alleged that he victimised her by threatening her on three occasions. 49 The allegations of sex discrimination relate mainly to incidents between September 1994 and September 1997 where the Applicant states John Hojel abused or shouted at her. Where he could recall the particular incident, Mr Hojel denied shouting at the Applicant or abusing her. 50 Chris Anderson recalled the Applicant speaking "loudly " to John Hojel about catering arrangements on one occasion and John Hojel speaking "quite loudly" in return but certainly not shouting. The Tribunal takes a similar view to the one expressed earlier that the evidence supports a finding that both the Applicant and John Hojel would have on occasions raised their voices at each other. 51 In his affidavit John Hojel recalled having said to John Bray at the meeting with Lynne Busby in August 1997 that he may have been stern with the Applicant on a couple of occasions. John Bray recalled that at the meeting John Hojel admitted to swearing at the Applicant and that he agreed it wasn't acceptable. Lynne Busby appeared to the Tribunal to have the best recollection of this incident, namely that John Hojel said he recalled two occasions where he had raised his voice to her in front of other staff and agreed it shouldn't have happened. This is not sufficient to establish discriminatory behaviour on the ground of sex. 52 The Tribunal is also of the view that the statement by John Hojel in September 1997 that he had no money in his budget for training for the Applicant does not amount to sex discrimination. The Tribunal notes that by this stage the FCC was in the process of a significant restructure in which the positions of all employees would be declared vacant and that, as such, it was unlikely that training would be available to anyone at that time. 53 For the reasons stated in the paragraph above we cannot accept the Applicant's allegation that the lack of work for her to do after August 1997 was an act of sex discrimination by John Hojel. It is also likely that the level of computerisation of the FCC by this time would have significantly eroded the duties of the secretary. 54 The Applicant alleged that in February 1997, in the context of a conversation where she said that she and her husband had won a trip to Melbourne, John Hojel had made a comment that they were going away for a "dirty weekend". Adrian van der Donk appeared to recall this remark but not whether the Applicant was present when it was said. John Hojel had no recollection of it. Assuming it was said, we do not consider the remark sufficiently salacious to amount to sexual harassment or sex discrimination. 55 The Applicant further alleges that Mr John Hojel in 1994 said to her words to the effect of 'watch out if you ever cross me', and that in 1995 he said to her words to the effect of 'that she would only be employed as long as he would have her'. Furthermore, that in 1996 he told her that there would be repercussions if she went to Council and upset other FCC staff. 56 Mr Hojel denied these allegations and in the absence of any other evidence supporting the allegations, the Tribunal finds the Applicant has failed to prove the allegation of victimisation. Interaction with Chris Anderson 57 The Applicant included an allegation of sex discrimination against Chris Anderson in her complaint relating to his action of photocopying a page or pages from the diary on her desk. 58 The Applicant's evidence was that John Bray had advised her to keep a diary of her concerns in the workplace. She then took the curious step of recording her grievances in the diaries which were kept on her desk and available to staff and volunteers to check or place entries into them. Although insisting that the diaries were her diaries, she appeared to acknowledge the availability of them for recording bookings by people other than herself. 59 Chris Anderson was forthright in his evidence that the diaries were office diaries which were provided by Council, that he was shocked to see the entries made by the Applicant, that he kept only one page to show John Hojel though he may have copied more than one and that the entries in there had not been there before. 60 In the circumstances the Tribunal does not consider that the actions of Chris Anderson could amount to a breach of the Act. The disability discrimination complaints 61 The Applicant was diagnosed with stress related depression in June 1997 and was prescribed medication. She commenced two months sick leave on 27 October 1997, and it is not disputed that her illness is defined as a disability under the Act. 62 The Applicant was informed at a meeting on 25 September 1997 that her position of Secretary had been made redundant under a proposed restructure of the FCC, and it would be replaced with an Administration Co-ordinator. In her evidence on 7 November 2000 the Applicant agreed that the restructure was good, however she did not apply for the new position. 63 On 22 October 1997 the Applicant wrote to Lynne Busby stating that she had not applied for the new position because it was above her qualifications. Ms Busby replied on 24 October 1997, stating that once the restructure had been finalised, redeployment and/or redundancy options would be discussed. 64 Ms Busby, in her evidence of 21 February 2001, stated that she contacted departmental heads during the restructure period about a position for the Applicant, but no position was available at that time for the Applicant. 65 In a letter dated 12 November 1997, David Mead wrote to the Applicant, informing her that her employment with the Respondent was terminated because no equivalent vacant positions were available for her, and she had not applied for any positions advertised in the restructured operations. 66 During the hearing the Applicant suggested that she did not apply for a position during the restructure because she was too stressed at that time. Whilst the Tribunal accepts that she was suffering from depression at the time, there was no evidence to suggest that the Council contrived a constructive dismissal, or created the restructure to terminate her employment. The evidence of John Barker, which was not contradicted, was that a general process of restructuring of the Council had begun in 1995 and continued with the restructure of various sections in 1996 and 1997. 67 It would be absurd to suggest that an organisation would undertake a substantial restructure in order to contrive the termination of one employee. The Tribunal rejects the opinion of John Bray in this regard as being unsupported on the evidence. The complaint of discrimination on the grounds of disability is not substantiated and is therefore dismissed. The victimisation complaint 68 The Applicant alleged victimisation under S50 (1) of the Act because she complained to management about alleged discrimination by co-workers at the FCC. 69 The Applicant first contacted Catriona O'Brien, Human Resource Officer, in June 1996 about alleged harassment by co-workers at the FCC, resulting in a meeting convened by Ms O'Brien at the FCC on 5 August 1996 to discuss her 'Issues of Concern'. 70 The Applicant continued to allege harassment and discrimination by co-workers to Ms O'Brien resulting in a further meeting convened on 2 September 1996 at the FCC with the staff. Ms O'Brien was of the opinion that the issue was one of conflict and an unwillingness to change by the Applicant, rather than discrimination. 71 The Applicant wrote a five page memo dated 2 February 1997 to Ms Busby alleging harassment by a co-worker Tony Griffiths. There is conflicting evidence as to when this memo was received by Ms Busby, who suggested that she received the document in a yellow envelope in June 1997. 72 Ms Busby's evidence is that she began enquiries into the allegations of the Applicant in June 1997 after she received the documents. She convened a meeting with the staff at the FCC on 11 August 1997 to discuss the issues raised by the Applicant. This witness formed the view that there was a clash of personalities between the Applicant and Mr Griffiths. No conclusion was reached at this meeting to resolve the issues raised by the Applicant, nor did the Applicant press Ms Busby to take the matter any further (Exhibit 34, para 3). Ms Busby came to the conclusion that the Applicant felt threatened by change and had difficulty accepting the scope of her responsibilities. 73 The Applicant contacted Ms Busby again in September 1997 asking that her allegations be investigated. Following advice received from the Anti-Discrimination Board, Ms Busby held a meeting with Messrs. Anderson, Griffiths, Hojel and Wise to enable them to respond to the Applicant's allegations. 74 In a memo dated 9 September 1997 Ms Busby responded to the Applicant, setting out the five issues of concern and the outcomes of her investigations. The overall conclusion was that there was no substance to the allegations. 75 In a letter dated 15 September 1997, the Applicant wrote to the Respondent requesting that an external mediator be appointed to 'resolve the situation and conflict in the workplace', as she felt that there had been no commitment to resolving the problem. 76 The General Manager replied by letter dated 30 September 1997 stating that the Council had investigated her claims and that the suggestion there had been no commitment to resolving the issues was totally unsubstantiated. 77 The Tribunal is of the view that the Respondent took reasonable steps to resolve the issues raised by the Applicant. It has also formed the view that the Applicant did not accept the outcome of the investigations, nor accept the fact that there were personality conflicts between herself and other staff, and that she had great difficulty in accepting changes in the workplace environment. 78 The Tribunal finds no evidence of victimisation by the Respondent, and the complaint is dismissed. Conclusion 79 During the hearing the Tribunal dealt with two procedural matters. 80 Mrs. Thompson was only able to have counsel for the February sittings. On resumption Mrs. Thompson wanted a witness recalled as she claimed her counsel had not cross-examined the witness the way she instructed him to and she wanted to cross-examine him again herself. 81 The Tribunal closely examined the reasons for the recall but having regard to the law on the subject as expressed in the various Evidence Texts, concluded that the recall was not justified in the circumstances of this case. 82 It appeared to the Tribunal that there could be no criticism of Counsel on behalf of Mrs. Thompson for the way he had cross-examined the witness she wanted recalled – Mr. Hojel. 83 Late on the fifth day of hearing Ms Brus at the conclusion of cross-examination of Mr. Hojel by Mr. Beckett of counsel for the Applicant made an application under section 73(5) (h) of the Administrative Decisions Tribunal Act 1997 for the dismissal of the complaints on the grounds set out in the section. 84 Ms Brus relied on the cases of Vivesty v Simosis Montefiore Jewish Homes (1999) 92-987 (EOT) and General Steel Industries Inc v Commissioner for Railways (NSW] 112 CLR 125, 192 ,130. 85 The main submission of Ms Brus was that the respondent was putting forward evidence to answer allegations, not to answer evidence called by the Applicant. In respect of one matter, victimisation on the basis of 'disability', she submitted there were no evidence of disability and no evidence of any action of the Respondent based on disability. 86 Ms Brus further submitted that the Applicant over a period of four hearing days had presented her case in full, so if her application was upheld there was no question of the Applicant being deprived of her opportunity to present her case. 87 The Tribunal declined the application bearing in mind the Applicant had earlier told the Tribunal that she needed to cross-examine the Respondent's witnesses as part of her own case. The Tribunal wanted to give the Applicant a full opportunity to present her case. 88 In the event the continuation of the case gave no strength to the Applicant's case on her complaints. 89 The Tribunal finds for the reasons set out above that the complainant has not proved her complaints Orders 90 Each of the complaints is dismissed. No order as to costs. 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