Duncan v Director General, Department of Environment, Climate Change and Water [2011] NSWADT 105

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Duncan v Director General, Department of Environment, Climate Change and Water [2011] NSWADT 105 Hearing dates: 10 May 2011 Decision date: 17 May 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint to proceed is granted. Catchwords: LEAVE - whether fair and just to grant leave for declined complaint to proceed Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey (No 2) [2003] NSWADT 126 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Category: Separate question Parties: Michael Duncan (Applicant) Director General, Department of Environment, Climate change and Water (Respondent) Representation: Michael Duncan (Applicant - in person) H Davies (Respondent) File Number(s): 111030

REasons for decision

Introduction 1Mr Duncan alleges that the Department of Environment, Climate Change and Water has discriminated against him on the ground of his race, (Aboriginality) and his age (mid fifties). Mr Duncan is a long-term employee of the Department of Environment, Climate Change and Water and its predecessor, the National Parks and Wildlife Service. He was displaced from one position on 5 October 2000 and from a second position on 4 August 2006. The most senior position he has held was as an Aboriginal Principal Policy Officer, Grade 11/12. His current substantive position is Heritage Information Officer, Environment Office Class 7. He was appointed to that position on 4 September 2006. 2In August 2009 Mr Duncan applied for the position of Regional Programs Coordinator, Environment Officer Class 9. At his request, he was given a "priority assessment" in relation to that position in accordance with a circular entitled " Right of Return for Officers Whose Substantive Salary Has Previously Been Reduced As a Result of Having Been Displaced." The circular was issued on 17 September 2004. Mr Duncan submitted that the circular was applicable to him and that it formed part of the terms and conditions of his employment. The circular states, in part, that: This preference to DEC (Department of Environment and Conservation) positions only applies to officers who were displaced by the Environment Protection Authority, the National Parks and Wildlife Service, Resources NSW and the Royal Botanic Gardens and Domain Trusts. 3In its response to the Anti-Discrimination Board dated 23 November 2010, the Department said that the policy was not strictly applicable to Mr Duncan as "it was specifically developed in relation to the 2004 DEC integration and only applied to DEC positions that were available as part of the integration." Nevertheless the Department agreed, at Mr Duncan's request, to give him a priority assessment. 4Mr Duncan submitted that he should have been appointed to the vacant position because the circular states that: Under the Public Sector Employment and Management Act 2002, officers whose substantive salary has previously been reduced as a result of having been displaced are entitled to obtain work in the Department at their previous salary as soon as such work becomes available and in preference to any other officer who salary has not been reduced. 5Mr Duncan agreed that this "entitlement" was qualified by another statement in the circular that: The officer must be able to demonstrate the capacity to competently undertake the position within six months with the support of appropriate training and management. 6Clearly the circular does not require the Department to appoint an eligible person to a suitable position at his or her former grade whenever such a vacancy arises. The person must be able to demonstrate the capacity to competently undertake the position within six months. 7Following the priority assessment of Mr Duncan, the Department declined to appoint him to the position. The Department interviewed two other candidates and offered the position to one of them, an Aboriginal woman. Mr Duncan appealed to the Government and Related Employees Tribunal (GREAT). GREAT's role was limited to determining whether Mr Duncan was more entitled to be appointed to the position because he had greater merit than the successful candidate. The Tribunal's decision was that, although Mr Duncan was a meritorious candidate who was suitable for appointment to the position, the successful applicant had greater merit. GREAT did not have jurisdiction to determine whether Mr Duncan was entitled to the benefit of the policy in the circular or whether, on the basis of that policy, he should have been appointed to the position. 8Mr Duncan's fundamental submission is that he demonstrated the capacity to competently undertake the position and that the Department discriminated against him on the grounds of his race and age when it failed to appoint him. Mr Duncan also complained about various aspects of the administrative procedures applied to the priority assessment including an apparent change to the convener, the absence of an independent panel member and his view that the panel took into account his written task but did not take into account the written task of the successful applicant. He said he should have been treated in the same manner as other applicants.