Craig-Bennet v Greater Western Area Health Service [2011] NSWADT 30

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Craig-Bennet v Greater Western Area Health Service [2011] NSWADT 30 Hearing dates: 16 and 17 November 2010 Decision date: 24 February 2011 Jurisdiction: Equal Opportunity Division Before: Deputy President D Patten B Weule, Non-judicial Member J Schneeweiss, Non-judicial Member Decision: 1. Each complaint is dismissed. 2. No order as to costs. Catchwords: Alleged discrimination on ground of disability and alleged victimisation - Insufficiency of evidence Legislation Cited: Anti-Discrimination Act 1977 Category: Principal judgment Parties: Marion Craig-Bennet (Applicant) Greater Western Area Health Service (Respondent) Representation: M Hutchings (Respondent) P Bennet (Applicant's Agent) McIntosh, McPhillamy & Co. (Respondent) File Number(s): 101034, 101055, 101104

Judgment 1These three matters were heard together at Dubbo on 16 and 17 November last year. Mr Paul Bennet, the applicant's husband, was given leave to appear as agent for her. Mr M Hutchings of counsel appeared for the respondent. 2Each complaint concerned the applicant's unsuccessful attempts to gain permanent employment with the respondent as a Dental Assistant at Dubbo Community Dental Clinic. The earliest of the complaints (101034) was made to the President of the Anti-Discrimination Board on 11 January 2010. Although the terms of the complaint and the letter which accompanied it are somewhat confusing, the essence seems to be that the applicant's application for employment was rejected because as a sufferer from hypoglycaemia she was unable to obtain a motor driver's licence, the possession of which was regarded as essential to the position. The complaint was identified as alleging conduct falling within ss 49A, 49B, 49C, 49D and 53 of the Anti-Discrimination Act 1977 (the Act). The first four of those sections deal with discrimination on the ground of disability and the fifth renders employers responsible for the acts of employees. 3The second complaint (101055) to the Board dated 29 April 2010 was one of victimisation and was accepted as falling within s 50 of the Act and the third complaint dated 5 July 2010 (101104) was also one of victimisation and accepted as falling within s 50 of the Act. In substance, the victimisation alleged in the earlier victimisation complaint was a reduction in the allocation of work to the applicant and in the later, the preference of a candidate other than the applicant for the position for which she had applied. 4We turn to the evidence. Three affidavits of the applicant were relied on, respectively sworn 25 January 2010, 16 August 2010 and 1 November 2010. 5In the first of those affidavits the applicant said that she had been employed by the respondent on a casual basis as a Dental Assistant for 3 years working on average 3 to 5 days a week. She conceded subsequently that she had in fact been called upon to work on a very significantly less number of days than this. On 8 December 2009 she was informed by Ms Leonie Newman, the Practice Co-Ordinator, that a permanent position had been advertised and she was encouraged by Ms Newman to apply for it, which she did, personally delivering the application form to Ms Newman. In that form she addressed in some detail each of the advertised "Selection Criteria" bar one, the exception being "Current licence to drive in NSW". She explained in oral evidence that her condition of hypoglycaemia prevents her from holding a licence to drive a motor vehicle, a circumstance which she said was known to Ms Newman. She also said that this had not caused a problem during her period as a casual employee. 6Following delivery of the application form to Ms Newman she was telephoned by her and invited to attend before an interview panel on 6 January 2010. She attended the interview as requested and found that the panel was to be presided over by Ms Newman, whom incidentally she had nominated as a referee. The other members were Ms Marian Bohan (also nominated by her as a referee) and a Mr Monte Jones, previously unknown to her. 7Before the interview commenced Ms Newman told her that she could not be appointed to a permanent position without a driver's licence and asked whether in that circumstance she wanted to continue. She replied in the affirmative and the interview proceeded, the applicant according to her affidavit answering "all the questions in the interview more than adequately due to the training and the experience that I had gained while working at the clinic". 8Apart from her statement to the effect that at the interview Ms Newman made it clear that without a driver's licence her application would not be successful the affidavit is largely silent as to what occurred. However this deficiency was overcome to some extent by the affidavit of Mr Brett Meyers sworn 14 September 2010 and read in the respondent's case. 9Mr Meyers annexed to his affidavit the selection panel report dated 7 January 2010. It indicates that there were six applicants for the position of whom two were interviewed by the panel, the applicant and the successful candidate. Against the latter's name, the panel wrote "met all essential criteria. Knowledgeable and experienced for position. Answered all questions clearly. Willing to complete Cert III". Against the name of the applicant the panel wrote: "Interviewed - but asked re ability to obtain Driver's Licence Marion is unable for medical reasons - therefore she is not eligible for this position. Marion is employed currently as a casual dental assistant for GWAHS". 10The applicant's second affidavit sworn 16 August 2010 deposes to the fact that on 7 January 2010 she telephoned the Anti-Discrimination Board (ADB) to make a complaint of discrimination. The matter was referred to the Tribunal where she applied for an injunction restraining the respondent from appointing anyone other than herself to the relevant position. While this application was pending the respondent undertook to keep the position unfilled and according to the affidavit a representative of the respondent announced to the Tribunal at some point that Ms Newman was not accredited to chair the interview or the selection panel. 11The affidavit proceeded to deal with matters relied on by the applicant in support of her claim of victimisation. She said that since her complaint to the ADB three shifts had been cancelled without reason by Ms Newman and that she had been allocated very little other work. She gave oral testimony about an occasion on 12 April 2010 when she was rostered for work but instead an employee from Bourke was brought in instead of her. Her perception that in the allotment of work she had been discriminated against because of her complaint to the ADB in January 2010 prompted her to make the second complaint alleging victimisation. 12In the meantime it was decided by the respondent that the decision of the panel of 7 January 2010 (which had not been implemented) should not be allowed to stand and that a fresh interview panel should be constituted. In the result the applicant appeared on 4 June 2010 before a panel comprising Mr Andrew Newton, the General Manager of Dubbo Base Hospital, Ms Robyn Browne and Ms Lesley Begley, none of whom she had met before. She had originally nominated as her referees Ms Newman, Dr Ian Liddell and Ms Bohan but at the conclusion of her interview with the panel on 4 June she was permitted by Mr Newton to substitute Dr Aldwin Agcaoili as a referee in place of Ms Newman. 13The processes leading to the establishment and constitution of a new interview panel were described by Mr Meyers in his affidavit, he being employed by the respondent as "Human Resource Consultant Recruitment Workforce Development": 18. After receiving the initial letter of complaint of the Applicant dated 8 January 2010, I commenced an investigation into the allegations that were raised by the Applicant. This consisted of reviewing the recruitment file and investigating the allegations that had been made. 19. I also represented GWAHS before the Anti Discrimination Board and the Administrative Decisions Tribunal. I agreed through this process that an internal job analysis be undertaken by GWAHS to determine whether the advertised requirement for a New South Wales Drivers Licence was an inherent requirement for the position. 20. I arranged for Ms. Kylie Peacock, Human Resource Consultant, Workforce Development, Dubbo to undertake the internal job analysis. It was the recommendation of Ms. Peacock that a Drivers Licence would be an inherent requirement of the position. The job analysis was forwarded to the Director, Workforce Development, GWAHS, Ms. Jenny McParlane, on 22 February 2010 for approval. Ms. McParlane requested that, in the interests of rigor and transparency, a further job analysis be conducted by another area health service and the requirements of the role be considered in line with similar positions in other areas. 21. I then arranged through Ms. Sandra Duff, Human Resources Manager, GWAHS (Sandra) for Mr. Stephen Crook, Area Human Resources Manager, Greater Southern Area Health Service (GSAHS) to review the position and provide an independent job analysis to determine whether a Drivers Licence was an inherent requirement of the position. It was found by Mr. Brook that a Drivers Licence was required for the position. 22. As a consequence of the findings of the independent job analysis undertaken by Mr. Crook, GWAHS agreed to re-recruit the position accepting all previous applications to be selected through the selection process applying merit based principles, but to allow the Applicant the opportunity to request reasonable adjustment to re-apply for the position without the requirement of a Drivers Licence. 23. Although the re-recruited position still required applicants to hold a New South Wales Drivers Licence, the Applicant was afforded the opportunity to request reasonable adjustment to allow her to reapply for the position without the requirement of the Drivers Licence and with updated referees and selection criteria. 24. The recruitment file was then forwarded to Kylie Peacock for the position to be re-recruited. I arranged for a new selection panel to be convened comprising: - Ms. Kylie Peacock - Human Resource Consultant, Workforce Development (GWAHS) (convener) (Kylie) - Ms. Lesley Begley - Dental Therapist from Cowra (GWAHS) (Lesley) - Ms. Robyn Browne - Dental Assistant from Dubbo (GWAHS) (Robyn). 25. The position was re-recruited on 7 April 2010. 26. I caused all of the initial applicants to be contacted to advise GWAHS whether they wished to resubmit an application for the position. Three (3) applications were received, including the Applicant and the previously successful applicant whom were both interviewed by the first selection panel on 6 January 2010. However, before interviews proceeded one applicant withdrew leaving only two applicants, being the same applicants previously interviewed on 6 January 2010. 27. However, it was subsequently agreed by GWAHS that there was a potential conflict of interest in Ms. Peacock convening the selection panel, and accordingly it was agreed that Ms. Peacock stand down as convener, and that an independent convener with no prior knowledge of the matter be appointed. In late May 2010, I contacted Mr. Andrew Newton (Andrew), General Manager, Dubbo Base Hospital, and arranged for him to convene the selection panel. 28. Interviews were conducted by the new selection panel on 4 June 2010. The selection panel comprised Andrew, Robyn and Lesley. 14The applicant was told by Mr Newton on 25 June 2010 that her application had been unsuccessful. 15Mr Meyers annexed to his affidavit the selection panel report and deposed that not only was the applicant unsuccessful but she was not recommended by the panel for the "eligibility list", a list which would have enabled her to be considered for alternative employment presumably without further interview for a period of 6 months. 16Before coming to the report of the panel which interviewed the applicant on 4 June 2010, we should make reference to the procedure followed at the interview. Each member of the panel was provided with a pro forma list of questions or topics which the applicant in turn was asked or invited to discuss. The panel members recorded the responses in brief notes which are in evidence as an annexure to Mr Meyers' affidavit. Although the applicant was critical of some of the comments recorded, we do not think it is appropriate for us to enter into that dispute. It seems to us that in the absence of something glaringly improbable or inappropriate we should accept at face value the comments and observations made on the forms. It was for the panel and not for us to assess the merits of the applications. 17As to the report itself (Annexure H to Mr Meyers' affidavit) there is a stark difference between the panel's assessment of the applicant on the one hand and the person recommended for the position on the other. As to the former, the report states: Demonstrated that she would not put needs of patient before other parties, e.g. questions 5 & 6. Response to question 3 demonstrated poor understanding of infection control. Experience as dental assistant explored at interview as stated in application that she had 23 years, but CV did not support this. During discussions, maximum that we could get was 13 years. Q4 - conflict resolution response concerned the panel as she would "stand her ground". No driver's licence and stated that she would rely on her friends to get her to work and stay at their places when on outreach. Q9 - confidentiality - talked about AIDS patients needing special care re infection control and would tell sterilising people. NOTE: Asked about reasonable adjustment. Explained about employee health assessment process and review by staff health department, and any reasonable adjustment would be discussed with the dental manager. This did not have any affect on the recommendation. 18In relation to the successful applicant, the report summarises: Answered all questions very comprehensively and impressed panel. Infection control and confidentiality answered very appropriately. Personal protective equipment response was excellent, including lead apron for patient. Response to scenario was excellent. Demonstrated skills such as forehanded dentistry and oral health promotion. Infection control knowledge demonstrated at excellent level. Q2 - dealing with children was outstanding - utilise parents, keep calm etc. Q4 - professionalism demonstrated. 19According to Mr Meyers, Mr Newton contacted two of the applicant's referees, namely Dr Liddell and Dr Agcaoili. Dr Agcaoili appears to have been generally supportive but Dr Liddell was rather negative or at least lukewarm in relation to her abilities and no doubt quite unhelpful to her cause by apparently referring to her as a "trouble maker" and as "disruptive". 20In her most recent affidavit, that sworn 1 November 2010, the applicant claimed that before February 2010 she was given at least 60 - 70 days work per year. She also claimed that in the period from January 2010 to October 2010 she was allotted work on only about 9 occasions. She complained that a dental assistant was being brought from Bourke in effect to perform work which she could perform at much less cost. 21Apart from the affidavit of Mr Meyers already referred to, the respondent read the affidavits of Mr Newton sworn 15 September 2010 and Ms Jennifer Floyd sworn 14 September 2010. 22Mr Newton said that the interview was conducted in the Board Room of Dubbo Base Hospital at a large triangular shaped table. He positioned the panel and the interviewee at the smaller end of the table to provide an air of informality and he sat next to the applicant. She told him she was comfortable with the seating arrangements. 23Mr Newton described the panel interview in these terms: 18. The interview proceeded on the basis that each member of the panel had a pro forma set questionnaire of the questions to be posed to each applicant. That questionnaire had been provided to us as a part of the interview material emailed to me. 19. I said to the Applicant words to the effect: "I have a series of questions to ask you. While you will be speaking, we will each be taking notes. At the end of the questions, I will give you an opportunity to revisit your answers to any questions in case you have thought of anything you would like to add. You will get an opportunity to ask us any questions at the end of the interview." 20. The Applicant appeared to understand and acknowledge she was ready to proceed. 21. The interview commenced. I had questions 1 and 2 on the pro forma questionnaire. Robyn asked questions 3, 4 and 5. Lesley asked questions 6, 7 and 8 and I closed off with question 9. 22. After question 9, the pro forma questionnaire requires a series of procedural or "house keeping" questions to be asked of the applicant, eg: for identification or background checking. I led the Applicant through those questions. 23. I had a conversation with the Applicant as follows: "Can I see your Driver's Licence for identification purposes please?" to which she replied: "No, I do not have a Drivers Licence. I rely on friends to get me to work and I stay at their place when I have to work outreach." 24. I then had a conversation with the Applicant to the following effect: Me: "Is there anything you would like to go back to, to supplement your responses?" Applicant: "No." Me: "Do you have any questions of us?" Applicant: "Yes. Will reasonable adjustments be made for me if I get the job?" Me: "You will be required to complete an employee health assessment questionnaire which will be reviewed by the staff health department of the Area Risk Management Unit. Any reasonable adjustments required will be discussed with the Dental Manager." Applicant: "Ok." 24On 6 August 2010 Mr Newton met with the applicant for about an hour and discussed with her where her answers to questions had not met the panel's expectations. During this meeting he had the questionnaires as completed by the panel members on the table in front of him. He told her that the panel's reasons for regarding her as unsuitable for the position were: i. She demonstrated that she would not put patient care as a priority (eg: questions 5 and 6); ii. She demonstrated poor understanding of infection control (eg: question 3); iii. She wrote in her application and verbalised to the interview panel that she had twenty-three (23) years experience, but could not identify twenty-three (23) years of experience, and explained this away at interview as a "typo"; iv. Her response to question 4 (conflict) concerned the panel that her response was most likely to inflame a situation than diffuse a situation; v. During her response to question 9 (confidentiality), the Applicant used the terminology "AIDS patient". This is not an appropriate term and is an inappropriate prejudicial statement. It reflects poor understanding of infection control procedures. 25Ms Floyd, employed by GWAHS as Area Manager Oral Health Services, explained the absence of evidence from Ms Newman as due to the fact that she was on leave until September 27. 26She described the position for which the applicant applied as "a twelve month maternity leave replacement position which was temporary full time". She said there were distinctions between the roles performed by a Casual Dental Assistant and a Full-time dental Assistant which included: (a) To be appointed as a casual is not normally a competitive process. However, to be appointed to a full time position (temporary or permanent) is. Any permanent position greater than three (3) months requires the employee to undergo a selection process and be successful at a formal interview. (b) A casual employee would usually always be supervised in their duties. A full time employee would be expected to work in an unsupervised capacity from time to time. (c) A casual would not be required to provide support or supervision to other staff, whereas a full time position would be required to provide support or supervision to other staff, including casuals. (d) The scope of duties for a casual would usually be restricted, and would be assessed on a day to day basis, having regard to the work required to be performed for which the casual is to be engaged. A permanent employee would be required to be more flexible in the work performed on a day to day basis, as there is less scope for pre planning and assessment of the tasks to be performed for which the casual is specifically engaged. 27Ms Floyd annexed to her affidavit a schedule of hours worked by the applicant which according to Ms Floyd demonstrated no regular pattern of employment but rather that she had been employed as a true casual. The schedule does however demonstrate a marked diminution in the applicant's hours of work after February 2010 as compared to the previous six months. In relation to this Ms Floyd testified: 27. There have been periods when the applicant has not been offered employment by me because there has been no work available to offer the Applicant. 28. The clinic is known as a four (4) chair dental clinic. In October, the clinic will be moving to new premises when it will become a six (6) chair clinic. At its maximum capacity, the clinic handles seven (7) Clinicians. Clinicians comprise Dentists, Therapists, and a part time Prosthetist. Clinicians require an assistant to perform their work, but one Clinician can assist another. Due to a number of issues, the clinic has not always operated at its capacity at its existing premises, and has not always had sufficient Clinicians to require the employment of additional assistants. The Applicant has been affected in the number of hours of employment that I have been able to offer her for this reason. I have offered the Applicant employment when there has been a Clinician requiring an assistant, but otherwise I have formed the view that it has not been necessary to engage the Applicant. 29. Once the clinic moves to its new premises, it will have the capacity to engage more Clinicians, which in turn will create a demand for assistants, however I do not anticipate that this position will change in the short to medium term notwithstanding the relocation of the clinic to new premises. 28Ms Floyd was not required for cross-examination and her evidence was therefore unchallenged. 29It may be accepted (although the respondent submitted to the contrary) that the applicant suffering hypoglycaemia had a disability as defined in s 4 for the purposes of ss 49B and 49D. It may also, we think, be accepted that if the applicant were unsuccessful in obtaining the position she applied for because of her disability, the respondent would prima facie have acted unlawfully and contrary to the provisions of s 49D(1). 30We observe however that the thrust of the applicant's complaint of victimisation by diminution in the amount of work offered to her after February 2010 is somewhat undermined by the terms of her letter in evidence to the Member for Dubbo, Ms D Fardell MP, on 6 May 2009: Hello Dawn I have been working at the Dubbo Community Dental Clinic for the past fifteen (15) months on a permanent then casual basis. With at least two weeks work per month, sometimes more. Yesterday I was informed that I would get no more work as the new CEO of GWAHS has cancelled all future casual employment. This is not only destructive to me as I will have no future employment but catastrophic to patients of the clinic as they will have their appointments cancelled due to not enough dental assistants to assist the dentists and therapists. Some of these patients have already waited for over two years for their appointment and this will extend their waiting time indefinitely. As of next week, one of the permanent staff members is going on two weeks annual leave and two new dentists are starting. This means that there will be no-one assisting the dentist and the appointments will be cancelled effectively shutting down this service to the community. This is the most ridiculous decision to date as it affects the whole region. In the past, the clinic has hired casual therapists as well as assistants to keep the clinic operating at optimum level. Now, because of this executive decision where casual staff cannot be employed, the clinic is being put in a position of not having enough support staff to keep up the support to the prosthetist, dentists and therapists as well as Sterilisation officer and practice co-ordinator if permanent staff are ill or are on leave for some reason. This is not only happening in the Dubbo Clinic but in Mudgee and Orange as well. In Mudgee all support staff and dentists and therapists have been casual. Therefore without casuals the clinic cannot operate. The issue here is that permanent staff will have their leave entitlements cut or be unable to take sick leave due to this ridiculous decision of not hiring any casual staff. This is not in the best interests of this clinic and the public community. This makes the practice look bad from the public's point of view and is obviously a decision made by someone who has no idea what happens at ground level. I, other members of the clinic and the patients in particular would certainly appreciate your assistance in this matter. Could you please keep my name in confidence. Yours in distress Marion Craig-Bennet 31The sections of the Act which bear upon the applicant's claim are: 49B What constitutes discrimination on the ground of disability (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 49C What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. 49D Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. ... (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. 50 Victimisation (1) It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 32Mr Bennet made extensive written submissions on his wife's behalf. Unfortunately many of them went beyond issues which this Tribunal has to decide, an example being his contention that the applicant "had been promised permanent employment by her supervisor Leonie Newman twice previously and most recently in December 2009". What Ms Newman said or did not say to the applicant has no relevance to any matter we have to decide. If Ms Newman "promised" her employment and was unable to deliver on that promise, it would be regrettable but have no bearing on the issue whether there was unlawful discrimination because of the applicant's disability. 33It seems to us that taking the evidence in the applicant's case at its highest in her favour, no breach of s 49D(1) was proved in relation to the decision of the panel on 6 January 2010. In the first place, the stipulation that applicants hold a driver's licence was unrelated to any disability and did not fall within s 49D(1)(a). It was a condition applying to all applicants for the position. As the decision of the panel to prefer a candidate other than the applicant was in effect annulled, there was no determination within s 49D(1)(b) and no offer of employment within s 49D(1)(c). Indeed although Mr Bennet contended that his wife was regarded as the superior candidate were it not for the fact that she did not hold a driver's licence, there is no evidence to support that proposition. The material before us is silent on the question. Indeed as Mr Hutchings pointed out in his submissions there was no evidence that the members of the panel knew that the applicant suffered from hypoglycaemia, only that "for medical reasons" she did not hold a driver's licence, a circumstance which of itself of course did not evidence a disability for the purposes of the Act. 34It thus becomes unnecessary to consider whether the holding of a driver's licence was an inherent requirement of the employment. 35In relation to the first claim of victimisation, there is no direct evidence that the applicant received less work because of her complaint to the ADB in January 2010. The reason why she received less work was explained in the unchallenged evidence of Ms Floyd. Moreover the applicant's letter to Ms Fardell of 6 May 2009, 8 months before her complaint to the ADB expresses concern about her diminishing work prospects. The applicant asks us to infer a causal link between her complaint to the ADB and a reduction in the hours of work offered to her thereafter. In our opinion the state of the evidence does not permit such an inference to be drawn and we decline to draw it. The second complaint should be dismissed. 36We turn to the third complaint that she was victimised because of her complaint to the ADB when she was not appointed to the position following the panel interview on 4 June 2010. There is no evidence to support this contention and no evidence from which an inference of victimisation can be drawn. To the contrary, the evidence is overwhelmingly to the effect that the other candidate was adjudged superior on the merits and moreover that the panel did not rate the applicant sufficiently highly to place her on the "eligibility list". The reasons given in the panel's report do not appear to us to be glaringly improbable or unreasonable. We do not think we should go behind them. 37In the result, none of the three complaints has been proved. We make these orders: 1. Each complaint is dismissed. 2. No order as to costs.