Equal Opportunity Tribunal of New South Wales CITATION: A -V- B [1997] NSWEOT COMPLAINANT: A RESPONDENT: B NUMBER: 70 of 1995 Mr G Ireland ( Judicial Member ) TRIBUNAL: Ms L Farmer O.A.M. Ms L Mooney GROUNDS OF COMPLAINT: DATES OF HEARING: 11/03/1997; 11/04/1997; 11/05/1997; 11/06/1997; 11/07/1997 DATE OF JUDGMENT: 12/18/1997 Complainant: Ms J Keys (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr L McKay, Crown Solicitors Office Ms C Ronalds (Counsel) JUDGMENT IN FAVOUR OF: Respondent This is an application made by the Respondent under Section 111(1) of the Anti Discrimination Act 1997 as amended (The Act) in which the Respondent seeks an order from the Tribunal for the complaint to be dismissed on the ground that it lacks substance. The Application is made at the close of the Complainant's evidence. The evidence at this stage includes a copy of the report made by President of the Anti Discrimination Board to the Tribunal, a voluminous statement of the Complainant to which is attached numerous documents referred to in the statement and a copy of a letter from the Complainant to the Registrar of the Equal Opportunity Tribunal dated 31 January 1996 which is not part of the President's Report to the Tribunal. The Complainant has been cross examined by the Respondent. One other witness was called by the Complainant, a senior teacher who supervised the Complainant in her earlier period of employment with the Respondent. The Respondent, by consent, interposed one witness during the Complainants evidence, a senior teacher who supervised the Complainant during a later period of her employment. The Respondent has filed statements of a number of members of the teaching staff and of management of the Respondent. At this stage of the inquiry, the Tribunal has not admitted those statements into evidence nor have the witnesses been examined. The inquiry by the Tribunal into the complaint arose from a reference from the President of the Anti Discrimination Board on the 3 July 1995, in accordance with Section 91(1)(2) of the Act. The President had inquired into a complaint made to the Anti Discrimination Board by the Complainant on 9 October 1992, in which the Complainant sought the assistance of the President to have her reinstated as a teacher in the Respondent organisation, following her suspension on 9 October 1992 from her position as a teacher of biological techniques. The President had investigated the complaint and on 19 December 1994 the President advised the Complainant that he had formed the view that the complaint was lacking in substance and he declined to entertain it further. The Complainant then requested that the complaint be referred to this Tribunal for inquiry. A number of interlocutory applications were made by the parties to this Tribunal, prior to the inquiry commencing on 3 November 1997. The Complainant has made several attempts to specify the nature of the complaints to be inquired into by the Tribunal and following directions given by the Tribunal in its decision of 13 June 1997, on the first day of the hearing the Complainant filed Points of Claim which set out particulars of the Claim and the allegations of discrimination which supports the Claims. The Tribunal in the interlocutory applications, has ruled that it has no jurisdiction to inquire into a claim of victimisation under Section 50 of the Act and has also ruled that the period of the complaint is confined to events occurring between April 1992 and 9 October 1992 with the proviso that the Complainant is entitled to support contentions about the allegations of discrimination during that period, with background material commencing in 1988. At the commencement of the 2nd day of the hearing, on the application of the Complainant and with the consent of the Respondent, the Tribunal directed, under Section 110A(1) of the Act, that the identity of the parties be suppressed and not identified or disclosed. Background The Complainant is a female and was born in China of Russian parents and describes herself "an employee of non-English speaking background (NESB)". The Complainant was appointed to the full time teaching staff of the Respondent in January 1985 to teach Biochemistry. For two years prior to that time, the Complainant held a part-time teaching position with the Respondent. The Complainant taught food biochemistry to applied chemistry students from 1985 - 1989, until that subject was modified for the new Associate Diploma Courses introduced by the Respondent. There were no complaints by staff or students in relation to the Complainant's teaching from 1985 - 1989. By 1986 the Complainant had completed a graduate diploma in teacher education and in that year she obtained a project fellowship from the Respondent, to study developments and new techniques in biochemistry and biotechnology fields and in educational and teaching practices in the United Kingdom, Sweden and West Germany. In 1989 the then Assistant Principal retired from the Respondent and an Acting Assistant Principal was appointed (who for convenience, in view of the suppression order will be called "Mr X"). By September 1991, Mr X had been appointed the Principal of the section of the Respondent in which the Complainant was employed. In June 1990 Mr X produced a file to the Complainant which contained a number of complaints about the Complainant. After the intervention of the Equal Opportunity Officer of the Respondent and a representative of the Teachers Federation it was agreed by the two Acting Assistant Principals of the Respondent that it was not appropriate to keep a file of complaints without the knowledge of the Complainant and it was agreed that more than half of the contents of the complaint file would be destroyed. These documents were destroyed by the Acting Assistant Principal in the presence of the Complainant. After that there were no complaints about the Complainant in the first semester of 1991. In April 1991 two students informed the Complainant that a teacher had requested them and other students to write a complaint letter about the Complainant. The Complainant reported this conversation to the Acting Assistant Principal. In 1990 a new Manager of the Biochemistry laboratory was transferred from the Level 6 Instrumentation laboratory to the Level 7 Biochemistry laboratory. The Complainant at that time was a teacher in the Level 7 Biochemistry laboratory. The Complainant alleges that in 1990 and 1991 the new Manager of the Level 7 Biochemistry interfered in the teaching of the practical work in Cellular Biochemistry which was introduced and taught by the Complainant for the new Associate Diploma Course. The Complainant alleges that the new Manager tried to alter the practical work to his standards and that he behaved in a threatening manner to her in classes. The Complainant reported this conduct to the then Assistant Principal and she states that no action was taken nor was she consulted about the intention to transfer her to the Level 6 laboratory where she was required to teach Cellular Biochemistry and Laboratory Instrumentation in the Instrumentation Laboratory. The Complainant further alleges that she advised the Acting Principal at the time of the transfer that it would create problems as the laboratory on Level 6 lacked all the necessary Biochemical equipment and reagents to effectively run classes and that the technicians in the laboratory were not familiar with the advanced biochemical and immunological techniques taught in that subject. The Complainant complained that her transfer was inappropriate. She states that she was assured that all the equipment and resources from the Level 7 laboratory would be available for her classes. She was requested to submit detailed requirements in August 1991 so that the requirements could be obtained for her to teach the Cellular Biochemistry subject in 1992 in the Instrumentation Laboratory on Level 6. The Complainant alleges that in February 1992 only the first part of the course was prepared by the Senior Technical Officers on Level 6 and that there were no resources left in the Level 6 laboratory for the second part of the Course, the Immunology Section. At the suggestion of the Senior Head Teacher, in April 1992, the Complainant requested a special allocation of funds from the Assistant Principal for the Immunology course, but this request was rejected. The Complainant states that she then had to arrange alternative practical demonstrations and visits to industrial laboratories to enable her class to cover the Immunology topics prescribed by the syllabus. By this time a number of further complaints about the Complainant had been received by the management of the Respondent. The relationship between the Complainant and some of her fellow teachers, her senior teachers and management in the Respondent had deteriorated. The complaints were critical of the Complainant's performance in the preparation of her courses, in her attitude to her assistants and to her senior teachers and to management and the complaints included complaints from some students who had expressed concern that they were not able to benefit from her tuition. The Respondent instituted processes for monitoring the performance of the Complainant. These attempts were resisted by the Complainant as she considered that the processes were unfair and that those who were monitoring her were biased against her. The situation culminated in the decision taken by management by the Respondent to charge her with breaches of discipline under sections of the Teaching Services Act 1980 and on 9 October 1992 she was served with a notice from the Respondent advising her of fourteen charges including claims of misconduct, unlawful disregard of lawful orders, negligence and inefficiency. Particulars were given of the fourteen charges. The Complainant was suspended from duty on full pay. In accordance with the regulations under the Teaching Services Act 1980, a Prescribed Officer was appointed to investigate the charges and in this inquiry, the Complainant was represented by Counsel. The Prescribed Officer completed his report on 11 May 1995. He found that nine of the charges should be dismissed and five charges should be upheld. His report contains the following conclusion "it is clear from the material I have considered that there have been ongoing difficulties between (the Complainant) on the one hand and almost every other member of staff, both teaching and non-teaching. It is also equally and patently clear to me that there has been a cumulative deterioration in administrative and professional conduct and leadership in all levels that has resulted in an atmosphere that is not conducive to teaching and learning. As to what part the ongoing restructuring and movement of any personnel had to do with this deplorable state of affairs I am unable to state, but what I am able to say is that the situation as presently exists is not conducive to the good order and management of the section and urgent action needs to be taken to resolve it." The Prescribed Officer recommended that the Complainant be reprimanded on one of the charges that was upheld and that on each of the other four charges that were upheld, that she be reduced in salary for twelve months. The Complainant appealed against that decision to the Government and Related Employees Appeal Tribunal (GREAT). GREAT handed down its decision on 16 April 1997 and decided to set aside the decision to reduce the appellant in salary and in lieu gave the Complainant a choice to tender her resignation or be dismissed immediately. In its conclusion the Tribunal stated "however, because we are of the view that the administration of this matter by the Respondent has not been blameless, and that more could have been done on an earlier time to resolve the matter, we have decided that the appellant should be given the option of resigning her employment, rather than being dismissed out of hand". The Complainant sought to appeal against the GREAT decision to the Supreme Court of NSW. The application for the appeal was not granted. The Complainant has also brought an application to the Industrial Relations Commission in NSW. The Commission found that in view of the proceedings before GREAT that it had no jurisdiction to consider the matter. The Complainant did not elect to resign from her employment and as a consequence the Respondent has dismissed her. In its decision of 13 June 1997, this Tribunal determined that as the nature of the inquiry sought by the Complainant under the Anti Discrimination Act 1977, before this Tribunal, does not require a review by this Tribunal of the GREAT decision, this Tribunal has jurisdiction to continue it's inquiry into the complaint in accordance with the Act. The relevant provisions of the Act The Complainant has stated that she relies on allegations of direct discrimination and does not rely on the provisions of the Act which relate to indirect discrimination. The events on which the allegations are based, occurred in and prior to 1992, at a time when the relevant provisions of the Act were different to those provisions of the Act as amended in 1994. The relevant provisions of the Act as they apply to the allegations of direct discrimination in the complaint are as follows: Racial discrimination 7.(1) A person discriminates against another person on the ground of his race if, on the ground of - (a) his race; (b) a characteristic that appertains generally to persons of his race; or (c) a characteristic that is generally imputed to persons of his race, he - (d) treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of a different race; or (e) segregates him from persons of a different race. Discrimination against applicants and employees 8.(2) It is unlawful for an employee to discriminate against an employee on the ground of his race - (a) in the terms or conditions of employment which he affords him; (b) by denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing him or subjecting him to any other detriment. Sex discrimination 24.(1) A person discriminates against another person on the ground of his sex if, on the ground of - (a) his sex; (b) a characteristic that appertains generally to persons of his sex; or (c) a characteristic that is generally imputed to persons of his six, treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of the opposite sex. Discrimination against applicants and employees 25.(2) It is unlawful for an employer to discriminate against an employee on the ground of his sex - (a) in the terms or conditions of employment which he affords him; (b) by denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing him or subjecting him to any other detriment. Examination of the Claimants Allegations A. Allegations not capable of substantiation In the Points of Claim filed with the Tribunal on 3 November 1997, the Complainant alleges discrimination under the Act in the area of employment on the grounds of race and sex, due to events which happened at her work place during the course of her employment with the Respondent over the period from August 1988 to October 1992 and particularly the period from April to October 1992. The Points of Claim specify thirty four items of discrimination which it is alleged occurred between 1988 and 1992. The Tribunal has approached its consideration of these allegations by first examining each of the items of specification and the evidence which has been produced by the Complainant, to determine whether in relation to each item, the allegation is capable of establishing on the balance of probability, that the treatment to which the Complainant was subjected would be treatment less favourable than treatment which the Respondent would have subjected on a male or a person of another race in the same or similar circumstances, secondly in relation to each item, if the Tribunal is satisfied that the Complainant's evidence is capable of establishing such less favourable treatment, that the Complainant was so treated on the grounds of her race or her sex; thirdly to consider if the items taken separately were considered incapable of being established on the test stated in categories one and two, whether considered cumulatively the items are capable of establishing less favourable treatment on the grounds of the race and or sex of the Complainant. Having examined each of the items specified, individually, the Tribunal is of the opinion that the evidence of the Complainant is not capable of establishing that the following numbered items in paragraph 6 of the Points of Claim would constitute treatment less favourable than in the same circumstances, or in circumstances not materially different, the Respondent treats or would treat a person of a different race or sex: (1) and (2) These items relate mainly to the Complainant's suspension from duties after October 1992 and to the disciplinary charges dealt with by the Prescribed Officer in May 1995. To the extent that the items cover periods subsequent to the 9 October 1992, the allegations are outside the scope of this inquiry. To the extent that the items require consideration of the failure of the Respondent to explain to the Complainant the reasons for the suspension, the Tribunal considers that the specification of the charges by the Respondent contained sufficient material for the Complainant to be aware to the charges against her. The procedures adopted by the Respondent at that time, are dealt with later under item 11. (6) The Complainant was appointed to carry out her classes on Level 6 in the Laboratory Instrument 1 and Laboratory Supervision subjects. Although this was not the subjects for which the Complainant was originally appointed by the Respondent, the changes to her duties in 1989 and 1990 required the Complainant to adapt to the new requirements of the Respondent. (8) In September 1992 the Complainant was not qualified to sit for the TAA 4 Promotional Assessment as she had not satisfactorily completed the Action Plan required to be completed by the Respondent. The Complainant was not qualified to sit for the assessment at that time. (10) An example of one junior male teacher being given an opportunity of advancement by attending a staff development course while in a position of Acting Senior Teacher is not, in the view of the Tribunal, evidence of less favourable treatment of the Complainant. The Tribunal considers that it was within the authority of the Respondent to direct the Complainant to be reassigned to teach on Level 6 in June 1991 and in the absence of any evidence to demonstrate that the actions of the Respondent were without authority, the complaint is not capable of establishing less favourable treatment from this action. (14), (15) and (16) Each of these items lacks sufficient evidence to support the claim that the item has potential to demonstrate that the Complainant received less favourable treatment. In relation to each item, elements of the particulars specified are not supported by evidence or sufficient evidence which would satisfy the Tribunal that the items are capable of demonstrating less favourable treatment of the relevant kind. (18) There is insufficient evidence to support the claim that the Complainant was denied training courses in 1989, 1990, 1991 and 1992. This allegation is not capable of being substantiated. (19) "The Respondent subjected the Complainant to a detriment by not informing her about her right to lodge a complaint with the Anti-Discrimination Board in May/September 1992." The Complainant has stated that she was not advised by the Respondent, and in particular by its Equal Opportunity office of the opportunity which may be available to her to make a complaint to the Anti-Discrimination Board during the period of the disputes between the Complainant and the Respondent. The Tribunal does not accept that a failure to advise an employee of the opportunity to make a complaint to the Anti-Discrimination Board, itself constitutes either less favourable treatment of the employee, in the absence of evidence that other employees were so advised, or that, per se, such a failure could constitute a ground of discrimination proscribed by the Act. (20) This item lacks sufficient particularity to justify the Tribunal interpreting this item, together with the generalised nature of the evidence of the Complainant, in a way that justifies a view that the Respondent has subjected the Complainant to less favourable treatment of the relevant kind. (21) The Tribunal takes a similar view of this item to that taken to item (20). The evidence in the Complainant's case does not include materials sufficient for the Tribunal to infer that instructions or permission of the nature alleged were given by the Principal of the Respondent to the person in the Human Resource Management Department of the Respondent. This item is not capable of being established. (23) A similar view is taken by the Tribunal in relation to this item as it has taken in item (21). (24) The specification of this item is too vague and general, and the nature of the evidence of the Complainant lacks sufficient detail, to enable the Tribunal to determine directly or by inference that the Respondent through its management did not effectively implement the Act. (26) The Complainant's evidence does not include material which would enable the Tribunal to determine the Respondent's requirements in relation to its male teachers, as to what they were required to wear, such as laboratory coats and auxiliaries. This item is not capable to being established. (27) The evidence of the Complainant does not enable the Tribunal to determine the nature of the working conditions of the Respondent in the terms that are set out in this item. This items is not capable of being established. (28), (29) and (30) These items also are not capable of being established from the material in evidence at this stage of the inquiry. (31) In her statement, the Complainant refers to a situation in 1988 and again in 1989 when she alleges that she was denied teaching hours in Biochemistry and was not given preference over part time teachers to extend her teaching hours in Biochemistry subjects and that as a consequence she was forced to teach subjects outside her specialty and different subjects each semester in three different teaching areas. She alleges in this item that no Australian male teacher was asked to do that. The material in evidence does not enable the Tribunal to make a determination as to what was asked or not asked of Australian male teachers. The evidence does not support a finding that this item is capable of supporting the allegation made by the Complainant. (32) and (33) These items do not raise questions concerning less favourable treatment of the Complainant. The items raise allegations of detriment, damage and loss of access to benefits for the Complainant. These items are more appropriate to be considered if the Tribunal should ultimately accede to the Complainant's submissions on the substantiation of her complaints. (34) The Complainant added to this item in the opening statements of her Counsel, by referring to paragraphs 38, 57, 59 and 61 of the Complainant's statement. After considering that material, the Tribunal is not clear as to the nature of this allegation. The lack of sufficient particularity leaves the Tribunal to conclude that the item should be disregarded as it is not capable of being made the subject of an allegation of discrimination under the Act. B. Allegations Capable of Substantiation The Tribunal now turns to a consideration of those items in the particulars of discrimination alleged by the Complainant, which require close examination, as they have the potential to establish that the Complainant did suffer less favourable treatment of the relevant kind. (3) "Complaints and petition-statements to support the disciplinary charges were sought by the Respondent from staff and students" The material in the evidence of the Complainant supports this allegation. By 15 September 1992, the Human Resource section of the Respondent had examined the Complainant's file and the Industrial Officer on that day recommended to the Industrial Relations Officer that there was sufficient evidentiary material available to proceed against the Complainant for breaches of discipline under the Teaching Services Act 1980. This is evidenced by his memorandum of the 15 September 1992 which contains reference to "a copy of the Statement and Motions of the meeting of teachers at 2 "B" TA Branch, held on 8/9/92 signed by the majority of Teachers Federation members present." The original is still under (Name of Assistant Principal) (for convenience to be called "Z"), care and he is endeavouring to obtain additional signatures of the balance of the teachers present." A statement signed by members of the class support staff in Biological Sciences was sent by the Principal of the Respondent (X) to the Manager of the Industrial Relations division of 29 September 1992. In the statement, the support teachers state that they are no longer able to provide their services to the Complainant and set out a list of the reasons and difficulties which support their position. The statement concludes "with considerable regret at being forced into this course of action, we wish to inform the management of the Institute that the Public Service Association will direct the staff to withdraw our services from any activity with her." That statement originated at a meeting of the No. 2 "B" TA Branch meeting of the Teachers Federation held on 8 September 1992. At that meeting, resolutions were passed which criticized the Teachers Federation for having intervened on behalf of the Complainant and criticized Federation Officers for not having fully acquainted themselves with the background to the Complainant allegations. The statement, at the bottom of the page, contained the following notation in handwriting "We, the undersigned, support and endorse the above actions and were present at the above meeting". Underneath that notation is the signatures of 13 persons, one of whom is the Assistant Principal(Z) who, the Industrial Officer in his memo of 15 September 1992, stated was endeavouring to obtain additional signatures of the balance of the teachers present at the meeting. One of the other signatures was that of the senior teacher to whom the Complainant directly reported in 1992 and who gave evidence before the Tribunal. The Tribunal concludes from this material that from 8 September 1992 the Assistant Principal (Z) who was responsible for the management of the Special Action Plan put in place to assist and monitor the Complainant's performance, was actively participating in the collection of material to support disciplinary action against her. This item also alleges that complaints against the Complainant were sought by the Respondent from support staff and students. To demonstrate this allegation the Complainant refers to a memorandum of 1 May 1992 from the then Assistant Principal who was the predecessor to Mr Z, and who for convenience we will call "Mr Y". He wrote to the Human Resource Manager of the Respondent and stated that he was arranging to obtain reports from the Support Staff Manager, from her Acting Senior Head Teacher from the previous term, from teachers assisting her on her current classes and her current in-charge teacher. The memo states that Mr X intends that a qualified Senior Head teacher be placed on full release to be present in all classes of the Complainant, in order to observe and monitor her performance. He states that he intends that a report will be issued to her and to a management committee at the end of each week and that a discussion would be held with the Complainant at the beginning of each week to enable her "to correct and/or improve". The memo concludes by stating that Mr Y saw three possible outcomes: (1) That full improvement to an acceptable level be achieved. (2) That she be asked to resign (3) That she be dismissed. In effect, this is the beginning of what transpires as the disciplinary action culminating in the Complainant's suspension on the 9 October 1992. Also on 1 May 1992 a memo was given to the Laboratory Manager by one of the Laboratory Assistant staff. The memo contains a long criticism of the practices and attitude of the Complainant in the Cellular Biochemistry practical classes on Level 6. The same Laboratory Assistant brought a memo on 6 May 1992 to the Complainant, in which she complains about lack of notice from the Complainant of the Complainant's proposals for demonstrating various pieces of laboratory equipment. On 13 May 1992 the same Laboratory Assistant wrote again to the Laboratory Manager complaining that her earlier complaints did not appear to have achieved any change in the Complainant's conduct in class or towards the support staff. In a memo which is undated but apparently of a similar date a part time teacher wrote to the Senior Head Teacher with similar types of criticism about the Complainant's quality of teaching in the practical classes. A further memo of 26 May written by a support staff member to Mr Y starts "as requested, I submit the following" the memo then sets out "it is with despair and disappointment that I now inform you that (the Complainant) has not taken full advantage of this opportunity. It is my opinion that (the Complainant) shows little interest in the subject." The opportunity referred to is the opportunity given by the writer of the memo to the Complainant over the last five semesters to learn all the practical and theoretical aspects associated with the subject of Laboratory Instrumentation. On 27 May the teacher in charge of the Complainant wrote to Mr Y stating that despite a personal appeal from him to the Complainant to cooperate with the technical staff "conflicts continued to occur.". This memorandum is significant in the view of the Tribunal, because it contains an objective assessment of the situation facing the Complainant: "However, in defence of (the Complainant) I would like to point out that she has been expected to run practical work for Cellular Biochemistry with totally inadequate money and facilities hence preventing her from running the classes normal practical program, this has placed undue stress on all staff concerned. However, (the Complainant) has a happy knack of upsetting our technical staff to the extent that a "virtual rebellion" refusing to work with her has occurred because she is always right. They are frequently spoken to in an abrupt and aggressive manner which has resulted in them putting up the shutters, passive resistance. (The Complainant) is obviously not an instrumentation teacher, but she has excellent training in Biochemistry and Biotechnology and to her credit has excellent ideas but has problems in their implementation. (The Complainant) should be employed concentrating on Biotechnology, because it was obvious that as soon as she was involved in setting up practical work for Biotechnological type training she became totally involved. From my observations (the Complainant) has a lot to offer in the area of Biotechnology, but she finds it difficult to communicate and work with other staff often unaware that problems exist. In addition (the Complainant) does keep up date by attending conferences and makes frequent use of the journals in libraries." Having regard to the originating memo from Mr Y of 1 May 1992 and the statement at the beginning of the memo of 26 May 1992 from the assistant teacher to Mr Y, it may be inferred that Mr Y was instrumental in the complaints which were engendered at that time. In the view of the Tribunal this material would substantiate an allegation by the Complainant that members of the senior management of the Respondent were participating actively in the collection of complaints and petitions to support the actions intended to be taken by those managers. Such treatment of the Complainant is at best unfair and within the context of the Act may be such that it would lead the Tribunal to an inference that it was less favourable than treatment which in similar circumstances the Respondent would adopt with other teachers. (4) "Disciplinary assessment under the "personal development scheme" - "Action Plan" of July - September 1992 was arranged to substitute for the (the Respondent) TAA 4 Promotional Assessment of Teachers (necessary for promotional opportunities at (the Respondent) after 6 years of Service)" (9) "TAA 4 Action Plan of June 1992 for Professional and Career Development and to improve the teaching performance was interfered with by the T/AP and the Principal by their special 6 weeks "Personal-Development Scheme - Action Plan" imposed on the Complainant in July 1992" (4) and (9) These items raise for consideration the procedures and attitude of the senior managers of the Respondent in the formal assessment of her performance and the manner in which she was treated in the application of those assessments. The Tribunal has given detailed consideration to the material of the Complainant as it considers that the attitudes and actions taken by some of the senior managers and some of the teaching staff of the Respondent towards the Complainant demonstrate that the treatment suffered by the Complainant could be less favourable than would and should have been applied in similar circumstances to other teachers employed by the Respondent. On 25 March 1992 the Complainant applied, in accordance with the Respondents procedures, for a TAA 4 Assessment to determine her eligibility for placement on the promotions list. The assessment was completed on 15 April 1992 but she was assessed as failed. Comments supporting the recommendation that she not be placed on the promotion list state: "(the Complainant) needs to prepare thoroughly prior to her next TAA 4 Assessment. This includes familiarisation with relevant documents/reports e.g. manual for new (Respondent) teachers, HT manual, familiarisation with various forms used in EC system, requisitioning. It is also necessary for (the Complainant) to ensure the smooth running of her practical classes in a productive working relationship with technical support staff. Benefit will also be gained by talking with other teachers who have recently undertaken a TAA 4 Assessment." The report contains the following comment by her immediate superior "(the Complainant) certainly has the theoretical knowledge in relation to Biochemistry but lacks practical knowledge of instrumentation. Lacks communication skills with technical staff, never accepts blame for any problems which occur during practical work. Recommend she receives training in interpersonal relations." Section B of the report contained an Action Plan which the Complainant signed on 3 June 1992. The Plan sets out its aims, and five specified objectives each of which allocated a performance indicator, with the dates of review for each objective commencing from mid August 1992 through to November 1992. Prior to this Action Plan being signed, in the memorandum of 1 May 1992, referred to earlier, Mr Y advised the Human Resource Department of the Respondent of his view of a record of incompetence, disruption and complaints concerning the Complainant, and he sets out his proposal for a scheme for monitoring the Complainant in her class work. There is no evidence that the Action Plan was put into effect. In the events that subsequently occurred that Action Plan was over ridden by the steps taken at the end of July 1992 to give effect to the proposal of Mr Y of 1 May 1992. At the beginning of semester 2, on 13 July 1992, Mr Z replaced Mr Y as acting assistant Principal in charge of the department to which the Complainant was attached. Following a meeting on 24 July 1992 attended by the Complainant and Mr Z and representatives of the Teachers Federation it was agreed that the Complainant would be put on a modified teaching program, with the purpose of monitoring her performance and to allow her to prepare a manual of a laboratory practical program for the current Cellular Biochemistry class. Mr Z prepared a document specifying the requirements under which the Complainant's performance would be monitored during a six week period up to 4 September 1992. This document was presented by Mr Z to the Complainant at 4.45pm on Friday 27 July and she was asked to read it and sign it. The Complainant states that at such short notice she had no alternative but to sign the document but did so under protest and under duress. The document provided that her teaching performance would be monitored on a face to face basis by the senior head teacher who the Complainant had constantly complained about as being biased towards her, from the time of her original appointment by the Respondent. Her protests in this regard were ignored. The Complainant then complained to the Director of the Respondent about the way in which the document of 27 July 1992 was presented to her for her signature and maintained her protest about the monitoring of her performance by the senior head teacher. The Director declined to intervene. When the Complainant on 3 August 1992 wrote to Mr Z with similar protests, he replied that the Complainant had signed the document after it had been read to her on 27 July 1992 and he stated "I demand from you that you carry out your agreement without further delaying tactics." On 6 August 1992 the Complainant again wrote to Mr Z in which she again protested about the monitoring by the particular teacher and made objections to the format of the process for monitoring her performance by pointing out that the document was deficient as it contained no statement of objectives and operational criteria, no specific guidelines for the assessment or how the assessment will be defined, nor did it provide for feedback on the assessment and a number of other objections to the inadequacies of the document as a proper format for assessing her performance. Mr Z replied to the Complainant on 10 August 1992 and stated that the Complainant has misconceived the nature of the process and stated that it is "an information/data gathering exercise". He stated "an evaluation will be made by me of all the gathered information/data at the end of the six week period and the subsequent report and any accumulated data will be available for your perusal. No interim evaluation will be undertaken. No interim data will be released. This is an accepted research practice so as to externally and internally validate the evaluation. There is to be no path for the possibility of external bias." The letter of 10 August 1992 then proceeds to set out twelve items of "additional information", which purport to deal with the items listed by the Complainant as critical in providing a process of fair and proper assessment. The letter then concluded "my only goal at this stage is to pursue the exercise without annoying and displaced delaying tactics on your part." On 10 August the Complainant also wrote to her senior head teacher, her laboratory manager and to Mr Z, in which she lists items of services and equipment which are lacking in her laboratory. Mr Z responding to this letter by a memo of 17 August to the Complainant made the following statements "before I can accede to such demands, let me inform you about some basic concepts in laboratory science". He proceeded to make five commentaries in regard to the items of service and equipment about which the Complainant complained. The memo then states "are we experiencing a lack of familiarity with the equipment concern from such an experienced teacher? - All the other teachers concerned with the use of equipment on Level 6 do not seem to require such "urgent servicing.". The memo then stated "in conclusion, it seems to me that by these piquant and frequent communications you are exacerbating a very tenuous situation between yourself, the technical support staff and your teacher colleagues. Furthermore, it is now obvious that you have developed and have an extremely rude and condescending attitude towards these support staff. I urge you to change your manner and seek cooperation with the people you work with so that the students may gain from what you have to offer. Your classes are currently being serviced under protest while you continue to treat the support staff with disdain." At this stage, the Complainant received support from the Teachers Federation. A meeting was held on 20 August 1992 between the Principal of the Respondent, a representative of the Teachers Federation and the Complainant at which it was agreed that the document of 27 July was not an Action Plan in the format specified in the Respondent manuals, as it lacked specific aims, objectives, performance indicators and a review date, and that it was to be rewritten in order to comply with those requirements. In addition, it was agreed that the subjects that the Complainant was currently teaching were to be reconsidered as well as the achievable outcome relating to the preparation of the laboratory manual. There followed some negotiation of the terms of the redraft of the Action Plan, between the Teachers Federation and the Principal and in a letter from the Welfare Officer of the Teachers Federation to the Principal on 25 August the Welfare Officer stated "I am most concerned that I have to report to you a further complaint by the Complainant about the behavior of (the monitoring teacher). She alleges that while she was in brief conversation with him immediately prior to her class, (the monitoring teacher) made a number of provocative and gratuitous comments regarding her teaching load of only seven hours and the attitude of other teachers to that workload. Needless to say she felt most distressed by these comments and found it very difficult to concentrate her attention on the class." The redraft Action Plan was completed and became effective on 26 August 1992. Its period was extended to 11 September 1992. The monitoring teacher continued as the monitor of the Complainant's teaching performance "for three hours only per week" covering laboratory instrumentation. It provided for the Complainant to receive comments about her performance during the course of the period of assessment. A problem arose on 28 August 1992 between the Complainant and Mr Z concerning Mr Z's unavailability at an appointment made to discuss the monitoring of her performance. Finally, the Principal directed Mr Z to be available to the Complainant on 4 September for 30 minutes. The material does not indicate if that meeting was held, but the Complainant states "the fact that there was no feedback and no opportunity for the Complainant to respond to the feedback indicated that the program did not aim to improve the teacher." On 14 September 1992, Mr Z provided a report to the Principal on the outcomes of the redrafted Action Plan. He found that the Complainant had not provided quality delivery of educational programs both in an individual and team setting and that the Complainant had failed to produce a laboratory practical manual within the time allocated. The report sets out reasons for these outcomes. The report concludes in the following terms "From the above information, it is quite clear to me that (the Complainant) has abused the period of time allotted to her. From the observations by (monitoring teacher), (the Complainant) is not capable of carrying out teaching duties and associated ancillary duties. (The Complainant) is not capable of developing and maintaining a cooperative work environment with educational and support staff and has produced material, in my opinion, plagiarized from other sources and not referenced; a task (the Complainant) is well aware of considering her academic background. Due to the above technical incompetence of (the Complainant) and also to her misconduct in not observing her educational and ancillary duties I recommend that disciplinary action be instigated." This report was discussed with the Complainant and a representative of the Teachers Federation on 14 September 1992. The Complainant gave a detailed written response to the Director and to the Principal on 29 September 1992. We have previously referred to material indicating that Mr Z around the date that he made his report, was participating in the collection of signatures to support a petition and complaint against the Complainant. On 9 October 1992 the Respondent charged the Complainant with fourteen counts of breaches of discipline and conduct. From the report of the Prescribed Officer investigating these charges, the Respondent in relation to some of the charges, relied on the report of the 14 September 1992 by Mr Z and relied on reports of the monitoring of the Complainant's performance during the period from 27 July 1992 to 11 September 1992. Having considered all this material, the Tribunal is of the opinion that the material supports a proposition that members of the senior management of the Respondent misled the Complainant as to the nature of the process of monitoring commenced on 27 July 1992. It is clear that the process was not merely an information gathering process but was a process aimed at monitoring the performance of the Respondent and the results were ultimately used in the disciplinary actions taken against her. The format of the original process on 27 July 1992, did not conform with the Respondent's specified requirements for an Action Plan aimed at measuring teachers performance. The process adopted of using as a monitor a person about whom the Complainant constantly protested on the basis of perceived bias and the persistence in the face of that protest with the monitoring by that person is also a most unsatisfactory and prejudicial procedure for allowing the Complainant to be assessed under conducive circumstances. The Tribunal is of the opinion that the procedures adopted and applied during the period from 27 July 1992 to 11 September 1992 are capable of being established as treatment of the Complainant which would not have been adopted and applied by the Respondent to other teachers in similar circumstances. (5) "Disciplinary assessment was carried out by the Officers lacking impartiality and contrary to (the Respondent's) regulation". The memorandum from Mr Z of 27 July 1992 which sets out the process for monitoring the Complainant's performance contains the following requirements "these practices will be monitored by (the Assistant Senior Head Teacher), and (the monitoring teacher) and by Mr Z." The Complainant was convinced of the bias of the monitoring teacher and in the opinion of the Tribunal, the material gives her reason for this view. Both the Assistant Senior Head teacher and Mr Z, for the reasons already expressed by the Tribunal, had participated in procedures prejudicial to the Complainant. It is the view of the Tribunal that the Complainant's material demonstrates that this item of the complaint is capable of establishing that the lack of impartiality of these Officers of the Respondent in the disciplinary processes that they adopted, was treatment less favourable than would have been accorded to other teachers of the Respondent in similar circumstances. (7) "No feedback was provided during the disciplinary assessment, no supervision to guide the improvement of the teaching performance, no opportunity given to improve according to the supervisors requests." In his letter to the Complainant of 10 August 1992 Mr Z agreed that it was not intended that the monitoring process will provide for regular feedback during the assessment period. This is contrary to the Respondent's established procedures and is also in conflict with the original proposal for monitoring the Complainant's performance in the memo from the Assistant Principal Mr Y of 1 May 1992 which states "a report will be issued to her and a management committee at the end of each week. This would be discussed with (the Complainant) before the commencement of each week, to enable her to correct and or improve." It is also in conflict with the redrafted Action Plan of 26 August 1992 which provides "(the Complainant) should be provided with the opportunity to present comments regarding the progress of the Action Plan and to receive comments from (Mr Y), who will consult with (the monitoring teacher), including sessions already observed and they are still to come." The statement of the Complainant confirms that no feedback was given to her during the assessment process. The Tribunal is of the opinion that this material is capable of establishing that the Respondent by not providing feedback to the Complainant of her performance during the assessment periods, treated the Complainant less favourably than the Respondent would have treated other teachers in similar circumstances. (11) "Complainant was given no opportunity prior to the suspension to attempt to improve performance in accordance with Respondent's guidelines" On 14 September 1992 (the date of the Report by Mr Z to Mr Y who was then the Principal) on the assessment of the Complainant's performance under the Action Plan, an officer of the Respondent's Industrial Relations department wrote a memo to his superior. In the memo he concludes "what I need to discuss with you are "ways" and "means" to take disciplinary action (leading to dismissal) if (the Complainant) does not satisfactorily pass her program." The memo attaches a detailed summary report of the Officer's view of the history of the Complainant's employment with the Respondent, directed to the recommendation for taking disciplinary action. The summary report annexes copies of letters and memos including a copy of (Mr Z's report) on (the Complainant's) Action Plan. The narrative in the summary report does not refer to Mr Z's report. It appears that the list of attached documents was prepared on 16 September 1992, that is, after the memorandum was written. The memorandum and the attached report demonstrate to the Tribunal, that steps had been put in train by the Respondent prior to the receipt by the Industrial Relations officer of Mr Z's report, for disciplinary action to be taken against the Complainant. In a memo of 16 September 1992 the Director of the Respondent advised the Managing Director of the Respondent of his recommendation to proceed against the Complainant for breaches of discipline. During this period the Complainant is unaware of the disciplinary actions proposed against her. The Principal of the Respondent (Mr Y) in a memorandum of 17 September 1993 to the Complainant, which recorded the meeting held with the Complainant on 14 September 1992, does not refer to advice being obtained by the Respondent for taking proceedings for breach of discipline against her. During the Respondent's vacation period, the Complainant prepared a lengthy response to the report of Mr Z and delivered a copy of that report to the Director and to the Principal of the Respondent on 7 October 1992. The Tribunal accepts that up to this time, the Complainant was not aware that disciplinary proceedings were to be commenced against her until she received the letter suspending her from duties on 9 October 1992. The failure by the Respondent to advise the Complainant of its intention to bring disciplinary proceedings against her does not conform with the Respondent's Policy of Staff Discipline. That document, although not expressed in clear terms, indicates that a person to be charged, be given an opportunity to make submissions to the Managing Director. Requirements of natural justice and fairness would require that a teacher in the circumstances and with the history of the recent processes to assess her performance, be given an opportunity to be heard and to have her response to the report on her performance, considered and replied to. Again, it is the opinion of the Tribunal that the material presented by the Complainant to the Tribunal is capable of establishing that less favourable treatment was afforded to her in this instance. (13) "The Respondent permitted staff to apply to the Complainant during lunch-time meeting the offensive sobriquet "Madam Kalashnikoff" referring to a Russian assault rifle and a "Cow"." The Tribunal has reserved this item for special comment as it contains reference to characteristics of race and of sex, which if established, would support the complaint as based on the race and sex of the Complainant. The evidence and material provided by the Complainant does not, in the opinion of the Tribunal, establish or is capable of establishing with the sufficient degree of probability that these statements were made or if made, were made in reference to the Complainant. The Complainant has not produced any direct evidence of having heard these statements made about her. The senior teacher who gave evidence before the Tribunal stated that he had been told that some members of staff had referred to the Complainant as "Madam Kalashnikoff". The statements and evidence, are too tenuous to justify the Tribunal finding that such statements in fact were made. There was no evidence presented to this Tribunal of the use of the term "cow" in relation to the Complainant. (25) "The Respondent discriminated by not acting according to the Respondent's regulations in disciplinary procedures prior to suspension" The Tribunal, under item 11, has commented on the failure of the management of the Respondent to observe its policy for proceeding with formal disciplinary action, and the capability of this conduct to demonstrate that less favourable treatment was suffered by the Complainant. In summary, the Tribunal finds that the items in the particulars of the complaint filed by the Complainant, which have been listed under (B) by the Tribunal, are supported by material such that those items are capable of establishing that the Respondent treated the Complainant less favourably than the Respondent would have treated another teacher of the Respondent, in the same circumstances or in circumstances not materially different to the circumstances of the Complainant. It is likely that other teachers who, notionally, may have been in the same or similar circumstances would have been of a different sex or race. The case for the Complainant is capable of satisfying the Tribunal that the elements relating to some of the claims of less favourable treatment can be established within the terms of Section 7 (1) (d) and Section 24 (1) of the Act. Provided the Tribunal is satisfied that the less favourable treatment suffered by the Complainant was on the grounds of either the race or the sex of the Complainant, all the elements to be satisfied under those sections, will have been substantiated. On the Ground of the Complainant's Race or Sex The Tribunal now turns to a consideration of the issue of whether the material and evidence of the Complainant assessed by the Tribunal at this stage of the inquiry, is capable of establishing that the less favourable treatment of the Complainant by the Respondent was on the ground of her race or sex. To establish that the less favourable treatment suffered by the Complainant was on the ground of the race or sex of the Complainant, the Complainant must satisfy the Tribunal that on the balance of probability, and having regard to the serious nature of the complaint, that there was a causal connection between the less favourable treatment directed to the Complainant by the Respondent through its employees, and the race or sex of the Complainant. Where a characteristic relative to the race or sex of the Complainant is relied upon to provide the causal connection, the characteristics must have a causally operative affect upon the decision to subject the Complainant to the differential treatment (Director General of Education V Breen (1984) EOC 92 - 015 Per Street, CJ at 75429). In dealing with the phrase "by reason of" in the definition of sex discrimination in the Sex Discrimination Act (Commonwealth) 1984, Lockart J. stated "the phrase implies a relationship of cause and effect between the sex (or characteristic of the kind mentioned in Section 5(1)(b) or (c)) of the aggrieved person) and the less favourable treatment by the discriminator of that person ( Human Rights and Equal Opportunity Commission V Mt Isa Mines Ltd (1993) 118ALR80 at 99) and confirmed in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 119ALR133 at 138). The Complainant relies on the direct discrimination provisions of Section 7 and Section 24 of the Act and in her submissions to the Tribunal has acknowledged a paucity of direct evidence to establish the causal relationship between the differential treatment of the Complainant and the decisions of the Respondent's employees in instigating the actions which led to that treatment. The Complainant relies on the whole of the circumstances relating to the less favourable treatment and submits that the Tribunal should infer from the material and evidence presented to it at this stage, that the necessary causal relationship can be established from a consideration of the whole of those circumstances. The Equal Opportunity Board of Victoria in Fares v Box Hill College of TAFE and others (1992) EOC 92-391, considered that the whole of the evidence in that inquiry, established by inference that the less favourable treatment suffered by the complainant was on the ground of her sex and NESB background. The Board quoted the following passage from the decision of the Equal Opportunity of Western Australia in Alone V Homes West (1992) EOC 92-392 "It is unusual in cases coming before this Tribunal for there to be direct evidence of, for example, racial discrimination. Of its very nature that is ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial. The decision of the High Court in Chamberlain and Another v the Queen (1984) 153CLR521,536;51ALR225,237, establishes that a Tribunal of fact should decide whether to accept the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation but in the light of the whole of the evidence and can draw an inference from the combination of facts, none of which viewed alone would support that inference." "It is important to appreciate, however that discrimination cannot be inferred when more probably and innocent explanations are open on the evidence. Fenwick v Beverage Building Products Pty Ltd (1985) 62ALR275): Erbs v Overseas Corporation Pty Ltd (1986) EOC 92-181: Department of Health v Arumugam (1988) VR319". An examination of the background that supported the finding of the Board in Farus v Box Hill College of TAFE , shows that the Board had evidence of difference in treatment between some male teachers and female teachers and also had before it a report of the equal opportunity unit of Tafe that there was systematic discrimination in the department of Tafe against NESB women. In the opinion of the Tribunal, in this inquiry, the evidence of the Complainant at this stage, contains no persuasive material that would support an inference that the courses of action taken by officers of the Respondent in relation to the Complainant were influenced by the fact that she was a female or that she was of Russian background or even put more broadly as the Counsel for the Complainant submitted, because she was of NESB background. The only direct reference to the Complainant's race or sex is contained in the allegation that members of the teaching staff referred to the Complainant as "Madam Kalashnikoff" and as "a Cow" and that she was the only female teacher in the Laboratory Instrumentation class. The Tribunal has already referred to the evidence of the use of those epithets and considers that it is too tenuous to support the finding that those terms had in fact been used by staff of the Respondent to describe the Complainant. The Complainant has submitted that as she relies on the circumstantial nature of the whole of the evidence and as the Respondent's application to dismiss this complaint has been brought at the close of the Complainant's case, the Complainant is entitled to have the case for the Respondent presented to the Tribunal as the Complainant considers that she can add sufficient support from cross examination of the Respondent's witnesses to satisfy the Tribunal that the less favourable treatment was taken against her on the grounds of her sex or race. Section 111(1) of the Act entitles the Respondent to make the application to dismiss the complaint at any time in the inquiry, and at the point in the evidence at which the application is made is this inquiry, the Tribunal is required to decide at this stage whether the evidence before it is such that the complaint is or is not capable of being established. The Tribunal should err on the side of caution and should not dismiss a complaint if the evidence before it at that time contains a reasonable prospect that the case for the Complainant can be established. To propose that at the point of time at which this application is made that the case for the Complainant will rely on evidence arising out of the cross examination of the Respondent's case cannot be accepted as a valid basis for allowing the inquiry to continue. Such a proposition was considered by Drummond J. in Ebber V HR and EO Commission (1995) EOC 92-709 at 98341-2 "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 under s.25X 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 Complainant did not rely entirely on this proposition. The submissions dealt with the identification of the characteristics of the Complainant relative to her sex and race from descriptions of the Complainant contained in memos and letters written by officers of the Respondent who initiated the less favourable treatment against her. In her cross examination, the Complainant disavowed the characteristics which she had described in her evidence in chief as attributable to Russian women such as arrogant and aggressive. The submissions identified the following characteristics subscribed to the Complainant by the Respondent's officers: Rude Condescending Discourteous Over concerned with qualifications Over critical and inappropriate criticism of support staff Smug Too ambitious (by construction) The argument then proceeded that if a male had these attributes and was from a NESB background, that male would not have been treated in the manner that the Respondent's officers treated the Complainant. The Tribunal was asked to draw this inference from the whole of the circumstances of the Complainant's evidentiary material. There are several problems with this proposition. The attributes attributed to the Complainant are not suggested as attributes attributable generally to females or to persons of a Russian background. The characteristics were attributed personally to the Complainant. The Tribunal accepts that the evidentiary material does establish that officers of the Respondent expressed their opinion at different times about one or more of these attributes of the Complainant. The test for the purposes of determining whether the characteristics of sex or race are relevant for the purposes of a determination of discrimination under Section 7 and Section 24 of the Act, on grounds of race or sex, does not involve an examination of whether the less favourable treatment occurred because the Complainant personally held certain characteristics but requires consideration of whether the Complainant was treated less favourably because she was of a race or was of a sex which has characteristics which pertain generally to or is imputed to persons of that race or sex. In Commonwealth of Australia V Human Rights and Equal Opportunity Commission and others 119ALR133 at 146 Lockart J. in considering Section 14 of the Sex Discrimination Act (Commonwealth) 1984 said: "In this case Section(6)(1) requires the comparison to be made between Mr. Dopking as a person with the characteristic mentioned in para (b) or (c) of the sub-section (1) and a person of a different marital status. There is no extension of that other person's marital status for the purpose of this Section. In other words, the comparison is not made with a person having a characteristic that appertains generally or is generally imputed to persons of another marital status; it is made with a person of a different marital status - for example a married person." In Gerhardy V Brown 57ALR472 at 515 Brennan J. observed: "differential treatment based on a specific racial attribute ordinarily constitutes racial discrimination." These passages support the view that the comparison to be made in order to establish that a person has been treated less favourably on the ground of race or sex by relying on a characteristic must establish that the characteristic pertains generally or is imputed generally to persons of that race or sex and it is not sufficient to rely, as in this case, on the individual characteristics attributed to the Complainant. After considering all the circumstances, including that there exists in the evidence and material of the Complainant situations that are capable of establishing that the Respondent treated the Complainant less favourably than it would have treated a person of a different race or sex in those or similar circumstances, the evidence is not capable of establishing that such treatment of the Complainant was causally connected to her race or sex. The Complainant in her evidence demonstrated that she held a genuine conviction that the less favourable treatment was directed at her because of her Russian or HESB background or because she is a female. The Tribunal has stressed on many occasions that the subjective view of a complainant as to the cause of less favourable treatment, is not sufficient on its own to satisfy the onus on the Complainant to substantiate, on the balance of probability, the real course for that treatment. The serious nature of a complaint of racial or sexual discrimination requires an objective assessment by the Tribunal of the circumstances, supported by compelling evidence, to enable the Tribunal to be satisfied that a complaint of this nature is substantiated. In this inquiry, the evidence and material presented to the Tribunal at the close of the case for the Complainant, lacks sufficient substance to demonstrate a capability of satisfying the onus. The Tribunal is of the opinion that the complaints as stated in the Points of Claim lack sufficient substance to support the continuation of the inquiry. The Tribunal accordingly directs that the complaints be dismissed. The respondent has not made an application for costs and no direction will be made for costs in this inquiry. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.