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. Legislative provisions 9If permission is given for the complaint to proceed to a hearing, Mr Duncan would have to prove that the Department has breached s 8(2) of the AD Act which provides that: (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment , or (c) by dismissing the employee or subjecting the employee to any other detriment. 10Section 49ZYB is a similar provision in relation to age discrimination. 11What it means to "discriminate" against an employee on the ground of race is set out in s 7: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race , or . . . (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race , or who have such a relative or associate not of that race , 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. 12A similar provision in relation to age discrimination appears at s 49ZYA(1). Section 7(1)(a) and s 49ZYA(1)(a) define what is known as 'direct' discrimination. Section 7(1)(b) and s 49ZYA(1)(b) define what is known as 'indirect' discrimination. My understanding is that Mr Duncan is complaining of 'direct' discrimination. 13To substantiate his complaint Mr Duncan would have to prove that: (1)he is a member of a particular race as defined in s 4 and/or is of a particular age or age group; (2)the alleged conduct relates to the terms or conditions of his employment or constitutes denying access to opportunities for promotion or 'any other detriment: (3)the Department treated him less favourably than it treats or would have treated another employee not of his race or not of his age or age group in circumstances which are the same or not materially different: ( differential treatment ); and (4)at least one of the reasons for the conduct was Mr Duncan's race or age even if that reason was not the dominant or a substantial reason for the treatment: ( causation ). 14There appears to be no dispute that Mr Duncan is an Aboriginal and that he is in his mid fifties. I have assumed, but only for the purpose of these proceedings, that the circular applied to him at the relevant time and that it was part of the terms and conditions of his employment. I have also assumed, again only for the purpose of these proceedings, that Mr Duncan was either denied a promotion or subjected to a detriment by not being appointed to the vacant position. Differential treatment 15The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Duncan must be compared with the treatment that would have been afforded to a person not of his race or age in the same or similar circumstances. In his complaint to the Anti-Discrimination Board, Mr Duncan said that no non-Aboriginal officer has ever been refused their return to grade when vacancies have occurred because the policy in the circular was said not to apply to them. Mr Duncan asserted that the policy is applied to all staff who have lost grade due to restructures. However, during the hearing when asked to identify a non-Aboriginal person to whom the policy had been applied, Mr Duncan was not able to do so. 16In the absence of an actual person whose treatment could be validly compared with the treatment given to Mr Duncan, the Tribunal would have to rely on a hypothetical person in a comparable situation. In those circumstances, the differential treatment and causation enquiries merge because the Tribunal could only reach the conclusion that the Department treated Mr Duncan less favourably than a hypothetical person of another race or age would have been treated by determining that race or age was a reason for that treatment: Dutt v Central Coast Area Health Service [2002] NSWADT 133; Martin v McKensey (No 2) [2003] NSWADT 126). Causation 17The second component of discrimination is 'causation'. At least one of the reasons for being treated in the way he was treated must be his race: AD Act , s 4A. There is no need to prove that a respondent intended to discriminate. Discrimination may not be conscious. The fact that the reason for the conduct is almost always within the respondent's knowledge, means that it is often difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case. 18GREAT found that Mr Duncan was "more than suitable for appointment to the regional programs coordinator position." Mr Duncan relies on that finding as evidence that if the circular had been applied on its terms to him, he would have been appointed to the position. That submission is arguable. Conclusion 19In my view, it would be fair and just to grant leave for this complaint to proceed. However, that does not mean that the Tribunal will embark on an inquiry as to the fairness of the procedures that the Department adopted in determining who should be appointed to the vacant position. The Tribunal's role is much narrower than that. The only question for the Tribunal, if the assumptions made in these proceedings are found to be correct, is whether the Department's decision not to appoint Mr Duncan to the vacant position constituted direct discrimination on the ground of race or age. 20The best evidence of any such discrimination would be the identification of a non-Aboriginal or significantly younger employee who, in the same or similar circumstances to those under consideration, received a priority assessment and was appointed to a vacant position. For the circumstances to be the same or not materially different from Mr Duncan's circumstances, that person must have been appointed to the position even though they were not the candidate with the greatest merit. If Mr Duncan can identify such a person, his complaint has some prospects of success. If he cannot, then it is much less likely that an inference could be drawn on the basis of the evidence currently before the Tribunal, that race or age was a factor in his non-appointment. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar 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. Decision last updated: 17 May 2011