Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Perera v Director-General, Department of Education and Communities (Office of Communities) [2012] NSWADT 108 Hearing dates: 28 November 2011 Decision date: 01 June 2012 Jurisdiction: Equal Opportunity Division Before: J Wakefield, Judicial Member Decision: That the Complaint be dismissed pursuant to s.102 of the Anti-Discrimination Act 1977 (NSW) Catchwords: DISCRIMINATION - on grounds of age - application to dismiss claim - lacking in substance Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: AEQ v. Department of Education & Communities [2011] NSWADT 194 Assal v. Department of Health, Housing & Community Service (1992) EOC 92-409 Australian Iron & Steel Pty Ltd v. Banovic (1989) 169 CLR 165 Bassili v. Star City Pty Ltd [2008] NSWADT 62 Bradley v. State of New South Wales [2002] NSW ADT 11 Chi v. Technical & Further Education Commission (No 3) [2009] NSWADT 271 Chi v. Technical & Further Education Division (EOD) [2010] NSWADTAP 67 Commissioner of Police, New South Wales Police Service v. Orr [2001] NSWADTAP 16 Commissioner of Corrective Services v. Aldridge [2000] NSWADTAP 5 Dutt v. Central Coast Area Health Service [2002] NSWADT 133 Ebber v. Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 Fricke v. Corbett Research P/L [2004] NSW ADT 128 General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Griffin v. Commissioner of Police, NSW Police & Anor [2005] NSW ADT 92 Harding v. Vice Chancellor, University of NSW [2003] NSW ADT 74 Heber v. Glen Henney & Son Pty Limited (No 2) [2007] NSWADT 230 Hillman v. Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179 Hurst v. Star City Pty Ltd [2009] NSWADT 65 Karekar v. TAFE Commission of NSW [2000] NSWADT 187 Legal Services Commissioner v. Ball [2001] NSWADT 86 Lunn v. Storm Retirement Village (EOD) [2003] NSW ADTAP 62 Margan v. University of Technology, Sydney (EOD) [2003] NSWADTAP 65 McGlade v. Human Rights & Equal Opportunity Commission [2000] FCA 1477 Mohamed & Ors v. State of NSW (NSW Police Force) [2009] NSWADT 51 Nagasinghe v. Worthington (1994) 53 FCR 175 Nicholls & Nicholls v. Director General, Department of Education & Training (No 2) [2009] NSW ADTAP 20 O'Sullivan v. Pehm [2010] NSWADT 57 O'Sullivan v. NSW Medical Board [2010] NSWADT 75 Paramasivam v. Vice Chancellor, University of New South Wales [2003] NSWADTAP 2 Prakash v. Bob Borg Enterprises Pty Ltd [1999] NSWADT 73 Purvis v. State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Rae v. Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 Rana v. Human Rights & Equal Opportunity Commission [1999] FCA 264 Revel v. Plastral Fidence Pty Ltd [1999] NSWADT 18 Rocky Point Pty Limited v. Chief Commissioner of State Revenue [2010] NSWADT 19 Robertson v. Wentworth Area Health Service [2004] NSW ADT 274 Salama v. Qantas Airways Ltd [2002] NSWADT 119 State Electricity Commissioner of Victoria v. Rabel [1998] 1 VR 102 Tredinnick v. Wentworth Area Health Service [2000] NSW ADT 172 Star City Pty Limited v. Hurst (EOD) [2009] NSW ADTAP 35 Category: Principal judgment Parties: A A Cyril Perera (Applicant) New South Wales Department of Education and Communities (Office of Communities) (Respondent) Representation: Counsel E Brus (Respondent) A A Cyril Perera (Applicant - in Person) Department of Education and Communities (Office of Communities) (Respondent) File Number(s): 111041 REASONS FOR DECISION Introduction 1This is the hearing of an application by the Respondent for summary dismissal of the proceedings pursuant to s.102 of the Anti-Discrimination 1977 (NSW) (ADA). Grounds of Application 2The Respondent says that the complaint is "lacking in substance" being a ground on which the President may decline the whole or any part of a complaint under s.92(1)(a)(i) of ADA. Background 3On or about 16 April 2010, the Applicant who was then 62 years old applied for the position of "Service Co-ordinator, Lake Burrendong - 000003E4" (the position) with the Respondent (Communities NSW (Sport & Recreation) as it then was). He attended an interview on 3 May 2010. He was not recommended for appointment or placed on the eligibility list. 4On 21 June 2010, the Applicant lodged with the Anti-Discrimination Board (ADB) a complaint under the ADA alleging age discrimination in employment by the Respondent. 5The President of the ADB referred the complaint to the Tribunal pursuant to s.93C of the ADA on 12 May 2011 and provided a summary of complaint (the President's Summary) and bundle of materials (the President's Bundle). The Applicant's Complaint 6In the ADB complaint form dated 21 June 2010 contained within the President's Bundle the Applicant stated: "I posses [sic] all required qualifications for this position ... Also at the interview I asnwered [sic] very well. I strongly feel that I have been discriminated [sic] because of my age." He stated: "At the interview: * I was not allowed to complete the answer to the fisrt [sic] question by Ms. Helen Swan." 7In the same form the Applicant stated that he would like the following to happen in respect of his complaint: "* Investigate fuly [sic] into what have [sic] been stated in this application. * Selection is done on merit. * Equal employment opportunity is implemented as per Anti-Discrimination Act 1977." 8The Applicant repeated the complaint in his letter to ADB dated 21 June 2010 enclosing the complaint form in which he stated: "Although I have all required Mix of Qualifications and Experiences [sic] and also I answered very well at the Interview, someone else has been appointed for the position. Therefore, I strongly feel, I have been Discriminated due to my Age ..." He asks the ADB to: "Investigate and take necessary remedial action and restore Justice". 9In his letter dated 3 October 2010 to the ADB the Applicant stated: "I reiterate that I have not been selected due to my age. Discrimination could be Direct, Indirect and Planned. Mine falls into the Planned Discrimination (due to age) category. Because I possessed all required Qualification [sic]. Experience and Knowledge for this position as per the Job information package [sic]. Therefore I was short listed for the Interview with a plan to knock me out at the interview." 10The President's Summary identified the complaint as a complaint of age discrimination and breaches of ss.49ZYA and 49ZYB of ADA. 11In his letter to the Tribunal dated 23 July 2011, the Applicant stated: "I have been discriminated [sic] and feel it was due to my age but could be even due to my Creed, Colour or some other reason." He has not sought to amend his complaint to include discrimination on other grounds. The Applicant's Evidence 12The Applicant has not filed or served any witness statement. Accordingly, the Tribunal has had regard to all the material capable of being converted into evidence contained both in the President's Bundle including correspondence from the Applicant and the Applicant's correspondence with the Tribunal. 13At the case conference on 13 July 2011, the Applicant was provided with an opportunity to file and serve evidence. In his letter to the Tribunal dated 23 July 2011, the Applicant stated: "I refer to the case conference on 13/07/2011 ... The only evidence I have is my Qualifications. Comparing the Qualifications of the selected Candidate and my qualifications, I am confident that it be proved beyond any reasonable doubt, that I have been discriminated [sic] at the Interview held for the "SERVICE COORDINATOR'S" position at Lake Burrendong. I stand by the details given in my Letter addressed to the 'Manager, Enquiries and Conciliation Branch of Anti-Discrimination Board dated 12/8/2010, and copies Credentials [sic] attached to same." 14In his letter to the ADB dated 12.8.2010 (but dated stamped by the ADB on 13 July 2010) the Applicant stated: "At the interview: 1) I was not allowed to continue answering the 1st question, and at the start itself I was told that is enough. This was the 1st question and also I was the last applicant. Therefore I was at a loss to understand the reason (running out of time) for this action. 2) I did not see those making notes while I was being interviewed. Although the independent panel member attempted to make note [sic], he gave up as other panel members were not taking notes. (May have made notes after I left the Room) ...." 15The Applicant also stated: "In light of my past experience, at the interview conducted for the Position of Services Co-ordinator at Lake Burrendong, I felt that I was Interviewed for the sake of Interviewing and not to assess my Knowledge, Experience or suitability for the position. Due to the reasons mentioned above I very strongly believe that the interview panel did not select me because of my age." 16In this letter in response to the ADB's request that he identify what it was the interview panel said or did which lead the Applicant to believe that they did not select him because of his age the Applicant reiterated the lengthy statement of his qualifications for the position. 17In his letter to the ADB dated 3 October 2010, the Applicant set out his employment history. He said that: "On the strength of what I have stated above, reason [sic] given by the Selection Committee for not selecting me i.e. 'Current position and skills not as tailed to the job', becomes false." 18He further stated: "I strongly believe that I was short listed for the interview, due to my Qualifications, Experience and knowledge, which were supported by documentary evidence. But with a plan to knock me out at the interview." Relevantly, in that letter the Applicant also stated that: "... I agree that there was no indication that age was a factor in determining which candidates were interviewed." He further stated: "I agree that the questions asked by the selection committee made no reference to the age of candidates and were not of a nature where an older person would be at a disadvantage on responding in comparison to people or a younger age group." He states however that: "But I was not allowed to complete the answer to the first Question, which was the most imported [sic] Question out of all. Therefore I believe that interview notes had been recorded in such a way to disqualify me due to my Age. That was why the notes were not made then and there." 19In his letter, the Applicant addressed a report into his complaint prepared by Lyndsay Stewart of the Corporate Human Resources Group in the Respondent dated August 2010 (the Investigation Report) which had been provided to him by ADB. On the issue of information received by the investigator from Ms Helen Swan (Centre Manager of the Lake Burrendong Sport & Recreation Centre and the Selection Committee Convenor), the Applicant refers to the 11th paragraph under the sub-heading which bore the statement made by Ms Swan: "Our notes indicate that Mr Perera gave a full answer to the first question." The Applicant says: "This statement is far from truth ... [sic]. I started to explaining [sic] details of my working career since 1972. I explained about the training period of a Trainee Assistant Superintendent, training schedule and what I learnt during that period. Thereafter I explained to the Panel about my Role and Responsibilities as an Assistant Superintendent. Also I said, it was compulsory for Assistant Superintendents of Tea Plantation to sit for three (3) examinations. They [sic] Bookkeeping Examination, Tea Manufacture, Examination, and Tamal Language Examination. As I got through those three (3) examinations, in 1978 I was elevated to the position of Superintendent/Manager. Plantation Manager is responsible for the entire Plantation. i.e to run the Plantation as a viable [sic]. Profitable unit, Security and welfare of the Resident Population (both workers and dependents), Managements [sic] of all Assess [sic], Preparation of Annual Budget working according to the approved Budget, [sic]. At this stage Ms Helen Swan, interrupted and said 'that is enough.' I was surprised when Ms Helen Swan said this. But I did not want to be rude and continue. Therefore I concluded saying 'I bring those knowledge and experience [sic] to the role of Service Coordinator at Lake Burrendong, Sport and Recreation Centre, if I am selected." The Applicant went on to summarise the history of his working career in Australia and overseas including general matters, volunteer work and sports and recreational activities which he said were relevant to the job application. The Applicant continued: "Although I carried two (2) folders, packed with Credentials and fully prepared to give details of my past and present working career, Educational, and recreational activities, I could not do so. Because I was interrupted and stopped when I was answering to [sic] the 1st Question at the interview. In view of what I have stated above, it proves beyond any reasonable doubt that I was not allowed to give the full and complete answer to the 1st question, explaining what skills and experience I could bring to the role of Service Co-ordinator at the Lake Burrendong, Sports and Recreation Centre." The Applicant states that these details "clearly disprove" the statement of Ms Swan referred to above. 20The Applicant then refers to the statement by Ms Swan referred to in the Investigation Report that: "There are clear sequential notes by each panel member to each question answered by Mr Perera." He says: "With regard to this sentence I reiterate that the notes may have been made by the Interview Panel after I left the Interview room, to give the same meaning but worded differently. I did not see anyone making notes when I was being Interviewed." 21The Applicant also expressed concern that he had not been informed in writing that he was an unsuccessful candidate. The Investigation Report on page 11 refers to a statement from Ms Swan in which she said: "Mr Perera called me some time after the interview. I can't recall the time exactly, but it may have been as long as 3 - 4 weeks following. He wanted to know if he had been successful in his application. I was surprised that he had not been informed as I had gotten the file back to HR as soon as I could (within 7-10 days) because I was very keen to offer the successful candidate the job. ..." The Applicant asserts: "Is this an acceptable explanation from a 'High Ranking Executive Officer in a Government sector'? Has this been done deliberately as a precautionary measure to prevent any representations/Complaints against the Recommendation/Selection/Appointment made [sic]." Ms Swan stated that the Applicant asked her for a reason why he was not successful. She: "explained that we had a quality field of candidates and that the Panel chose someone who they felt was the best person for the position. ..." The Applicant confirms in his letter that: "When I telephoned, only feed back [sic] I received from Ms Helen Swan was 'We had a quality field of candidates'." 22The Applicant stated in his letter to the ADB dated 3 October 2010 that: "It was a planned discrimination and I reiterate the following evidence. 1) I was interrupted and not allowed to complete the answer to the 1st Question at the Interview. 2) Interview Notes were not made when I was being Interviewed. Notes may have been made after I left the Interview Room, worded differently to give the same meaning by the Panel members/ 3) Ms Helen Swan's failure to forward my File to the HR. 4) Age of the selected candidate for the position of Service Co-ordinator and the ages of the two candidates Placed on Eligibility List, i.e * 37 year old successful candidate, * 44 year old Placed on Eligibility List. * 50 year old Placed on Eligibility List * 56 year old Not recommended. * 62 year old Not recommended. * Data not Available not recommended., and * 5) The statement 'Experience in the Teas plantation very relevant, but in the past (20 years). Current position and skills not as tailed [sic] to the job'." 23At the hearing the Applicant stated that he did not propose to serve any further evidence. The Respondent's Evidence 24The Respondent has served witness statements of Barry McIntosh dated 15 August 2011 and Helen Swan dated 16 August 2011. It also relies upon the material in the President's Summary and the President's Bundle including the Investigation Report. 25Ms Swan gave evidence of the establishment of the selection panel for the position and the conduct of the selection process. The selection panel comprised four people. There were eight applications for the position. 26Her evidence was that after individual grading of the applications, two applicants were assessed as not being eligible for interview based upon their applications not meeting the criteria. Of the six remaining applicants, four were assessed as being suitable for interview based on their applications. The two remaining applications, including the Applicants, were discussed by the selection panel in detail. Ms Swan's evidence was that: "Neither of them were judged to be very well written or suitable applications in terms of addressing the selection criteria." 27The Applicant's application was assessed fifth and an internal applicant as sixth. Applicants were advised of the four person panel and that they would each receive questions 10 minutes prior to the interview. The interview questions were distributed to the panel and confirmed on or about 13 May 2010. All applicants were asked the same questions. The Applicant at his choice took the last interview time. 28Ms Swan's evidence was that the panel unanimously decided that there was a "clear stand out candidate". That candidate's written application was highly rated and the applicant was recommended to the position. The panel conducted a detailed discussion about each applicant's suitability for the eligibility list. Ms Swan's evidence was that the three top ranked candidates: "had the relevant and recent specific experience and adaptability to meet the needs of the position of Services Co-ordinator." 29The three other candidates including the Applicant were not considered suitable for the eligibility list by reason that the panel felt that they were unable to: "adequately describe how their skills could be transferred into our environment." 30Ms Swan's evidence was that the recruitment process complied with public sector and departmental merit selection policies and guidelines which were annexed to her statement. 31Mr McIntosh's evidence was that he was a member of the selection panel for the position and that the selection process followed a process that was consistent with previous recruitment actions in which he had been involved with a number of New South Wales government agencies. 32The applicants deemed suitable by the panel were selected for interview and each applicant was asked the same set of questions. The applicants were individually ranked after all interviews had been completed and the successful applicant was by far the best candidate. 33Mr McIntosh gave evidence that the Applicant's application showed considerable experience at a senior level of a large company. He was: "a senior manager at a tea and rubber plantation in charge of more than 30 staff. He managed large budgets and conducted monthly staff meetings. I was not able to determine from his application how hands-on he was in his role and whether he performed, or could perform any duties other than the senior management and more strategic tasks. I ranked his application in the bottom half of those selected for interview." 34Mr McIntosh's recollection of the Applicant's interview is that: "he confirmed the senior management and planning experience that he detailed in his application but did not give sufficient details or examples to convince me that he could perform the daily activities of a service co-ordinator." 35In relation to the first question which dealt with skills and experience, Mr McIntosh said that the Applicant: "gave an extensive description of his very detailed budgeting and planning process with weekly, quarterly, seasonal and annual maintenance plans. This was suitable for a very large company but not for a Centre with a small number of employees under his control. He did not allude to how he would change his approach for a small work site." 36The Applicant was interviewed about the handling of maintenance and repairs. Mr McIntosh's evidence was that: "Mr Perera said that he would obtain quotes for major repairs and use handymen on site for minor repairs. He did not indicate that he was willing or capable of carrying out any maintenance or repair activities himself." 37The Applicant was also questioned about communication and staff morale. The Applicant said that: "he would have a daily meeting, verbally warn staff, 'write to them', give them 3 months." 38Mr McIntosh's impression was that the Applicant's communication style would be: "too formal and managerial to build a good relationship and successfully manage a small team." 39Mr McIntosh acknowledged that the Applicant did appear to have considerable experience with large scale ordering, freighting and scheduling procedures. 40The Applicant was questioned about outstanding work and Mr McIntosh said that the Applicant indicated that he would: "have staff meetings, priority schedules and add more resources." 41Mr McIntosh gave evidence that "adding more resources" is not usually an option particularly for urgent maintenance and repairs. He said that the Applicant: "did not indicate that he was willing or able to carry out any maintenance or repairs activities until he was prompted. Even then he did not give any examples about which activities he would perform or where he had previous experience." 42Mr McIntosh said that other candidates had given numerous examples of their previous experience in this area. 43Mr McIntosh's evidence was that the panel was unanimous that the successful applicant was by far the best candidate being superior to the other applicants in areas of communication, response to difficult and urgent situations and capacity and willingness to assist his team in hands-on roles whenever necessary. Mr McIntosh did not rate the Applicant as suitable to be placed on the eligibility list. He said that all applicants who were eventually placed on that list had "far more strengths" than the Applicant. 44There was contained in the President's Bundle the handwritten Form "7c Selection Report - Applicant's interviewed but unsuccessful". In respect of the Applicant the selection report stated: "Experience in the tea plantation very relevant but in the past (20 years). Current position and skills not as tailored to job." The selection report further noted: "It was an excellent field all over but the 3 (recommended and 2 eligible applicants) had a much greater range of skills and experience." 45The President's Bundle also contained the Investigation Report to which reference has been made. 46In addition to the six candidates referred to by the Applicant the Investigation Report on page 9 identifies two additional candidates who were ultimately not interviewed. These candidates were 53 years old and 47 years old respectively being younger than the Applicant and at least one other candidate who was not recommended. The 47 year old was also younger than one candidate who was placed on the eligibility list. 47The Investigation Report concluded that there was no evidence that the selection committee considered the age of candidates in determining who was the person for the position. There was also no evidence that other candidates not of the same age as the Applicant, but all other factors being equal, would have been treated any differently to the Applicant. There was no disadvantage due to the Applicant's age in complying with the requirements of the selection committee. The Investigation Report found that there was: "no identifiable action taken, statement made or other treatment of [the Applicant] in the selection process where he was discriminated against on the basis of his age." 48It concluded that the Selection Committee's recommendations were based on the Committee's opinion of the relative merits of the candidates and that the procedures adopted by the selection committee were: "consistent with public sector policies and procedures, and that the age of candidates was not a consideration in forming the recommendations of the Committee." The Applicant's Submissions 49The Applicant was given an opportunity to provide submissions on the Respondent's application. He did so by letter to the Tribunal dated 10 October 2011. In this letter he referred to his earlier letter dated 3 October 2010, in which he made comments in relation to the age discrimination complaint. In particular, he made reference to the tabulation of the age of candidates at the time of interview starting from the youngest person: * 37 year old - successful candidate; * 44 year old - placed on eligibility list; * 50 year old - placed on eligibility list; * 56 year old - not recommended; * 62 year old - not recommended; * Data not available - not recommended. 50The Applicant said that this table "disproved" the investigating officer's statement in the Investigation Report that: "The limitations of the data set prevent any conclusion being drawn as to whether there are indications of discrimination against older candidates. (Pages 9 & 10)" 51The Applicant also reiterated in his submissions that he was not permitted an opportunity to summarise or explain any one of a number of relevant matters to Ms Swan who conducted the interview because he was stopped from answering the first question at the interview. He said he was not allowed to give a full and complete answer explaining what skills and experience he could bring to the role. He again asserted that interview notes were not made when he was being interviewed and that Ms Swan failed to forward his file to Human Resources. 52The Applicant submitted that: "... a pre-determined Applicant was appointed to the position and therefore the Selection Panel/Chairman of the Selection Panel was not interested to find out my suitability for the position. Due to these reasons [sic]. I believe I have been discriminated [sic]. Due to my age or some other reason [sic]. Credentials I posses [sic] will prove my knowledge, experience, qualification and suitability for this position." 53In his letter to the ADB dated 24 March 2011 in response to a letter from the ADB enclosing the Respondent's "Selection Report recommended applicant" the Applicant submitted: "1) I have mentioned in my first letter/complain [sic] that Interview Panel did not make notes when I was first being interviewed. 2) Some of the notes made are far from truth [sic]. 3) I strongly feel that the person/candidate whom they wanted was recommended and note [sic] have been made accordingly to justify their decision. 4) It appears that the Panel did not want to recognise the overseas experience/qualification. Further I reiterate that in fairness to me, it is extremely important to obtain the views/opinion of at least two working retired Tea Plantation Managers. Because the respondent has little or no knowledge of the role and responsibility of a tea plantation Manager. Without any hesitation I could tell that a Tea Plantation Manager is fully qualified and capable of not only discharging the duties of a service co-ordinator, Tea Plantation Manager [sic] could Manager [sic] any of these facilities equally good or better, Therefore [sic] I earnestly request you to consult few [sic] Tea Plantation Managers. Ex-Tea Plantation Managers are available in Australia, England or in any Tea Producing Country. I have given these details in one of my previous replies." At the hearing the Applicant stated that he had no further submissions to make. The Respondent's Submissions 54The Respondent submits that the complaint is lacking in substance within the meaning of s.92(1)(a)(i) of the ADA. 55The Respondent submits that the Applicant has provided no direct or indirect evidence to support his complaint and that his evidence, at its highest, does not establish nor is it capable of establishing the discrimination which has been alleged. Accordingly, the Respondent submits that the complaint is lacking in substance and the Respondent should not be put to any further trouble and associated expense in defending the complaint. 56The Respondent submits that the test posed by Sir Ronald Wilson in Assal v. Department of Health, Housing & Community Service (1992) EOC 92-409 at 78,900 and approved in Rana v. Human Rights & Equal Opportunity Commission [1999] FCA 264 for determining whether a complaint should be summarily terminated has been satisfied. The claim for dismissal 57Section 102 of the ADA provides: "The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b)." 58In turn, s.92(1) of the ADA provides: "If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or... (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint." 59The authorities concerning the exercise of the power to dismiss a complaint summarily under section 102 of the ADA were considered by Pritchard JM in O'Sullivan v. Pehm [2010] NSWADT 57 at [51-53]. As the Judicial Member observed, the power has been considered extensively by the Tribunal. The Tribunal has adopted a careful approach to the exercise of the power and emphasised that it should be exercised with exceptional caution and only if the circumstances clearly warrant such action. See for example Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179; Bassili v Star City Pty Ltd [2008] NSWADT 62; Mohamed & ors v State of NSW (NSW Police Force) [2009] NSWADT 51; Hurst v Star City Pty Ltd [2009] NSWADT 65; Rae v. Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 at [84]. 60As was noted by Pritchard JM, the Tribunal's approach is consistent with the principles applicable to the inherent jurisdiction to terminate an action summarily as articulated by the High Court in General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [129-130]. 61On the issue of dismissal before final hearing the Appeal Panel in Lunn v. Storm Retirement Village (EOD) [2003] NSWADTAP 62 at [20] has adopted the approach of Ormiston JA in State Electricity Commissioner of Victoria v. Rabel [1998] 1 VR 102 at page 122 where it was held that: "there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the claim is so hopeless that it should be summarily brought to an end...a complaint cannot be dismissed...unless it is clear beyond doubt that the complaint is lacking in substance, that is, that the complaint has no arguable case which should be allowed to be resolved at a full hearing." 62In Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [14], the Appeal Panel also agreed with and adopted Ormiston JA's approach. The Tribunal has cited Margan with approval in O'Sullivan v NSW Medical Board [2010] NSWADT 75 at [17-18] and in Johnson v Free Spirit Management Pty Ltd [2010] NSWADT 31 at [21]. 63Additionally, the Tribunal in Omeri v. Quality Assurance Service Pty Limited [2003] NSWADT 188 at [20] noted that: "The standard of satisfaction for a Section 111 [as it then was] application is quite high. The Tribunal must be satisfied in effect that the complaint has no chance of succeeding on the evidence as set out before it." 64The Tribunal in Fricke v. Corbett Research P/L [2004] NSWADT 128 found at [36]: "It has been suggested that 'prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it is far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis...'" Ehl v. Department of Educating and Training and NSW Teachers Federation (1999) NSW ADT 102 at para.14. See also Dee v. Commissioner of Police & Anor (2003) NSW ADT 217 at para. 24." 65Additionally, there is a special need for caution where the dismissal application is made prior to the adducing of the Applicant's evidence at the substantive hearing: see Karekar v. TAFE Commissioner of New South Wales [2000] NSWADT 187 at [36]; Tredinnick v Wentworth Area Health Service [2000] NSWADT 172 at [33]; Bradley v. State of New South Wales [2002] NSWADT 11 at [30]; Robertson v. Wentworth Area Health Service [2004] NSWADT 274 at [28]; Fricke at [35]. 66In this matter the Applicant has set out in correspondence to the ADB and the Tribunal the nature of his evidence and indicated to the Tribunal that he will not serve any further material. He has had every reasonable opportunity to explain his complaint and adduce evidence to support it. The Respondent has served its evidence on the issues raised by the Applicant. But for the Respondent's application the matter was ready to proceed to a hearing on the merits. The Tribunal finds that those circumstances clearly warrant the determination of the application. Legislative provisions, burden and standard of proof 67S.49ZYA of ADA provides: "49ZYA What constitutes discrimination on the ground of age (1) A person ('the perpetrator') discriminates against another person ('the aggrieved person') on the ground of age if, on the ground of the aggrieved person's age or the age 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 is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, 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 age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group. (3) In this section: 'associate' of a person means any person with whom he or she associates, whether socially or in business or commerce, or otherwise. 'relative' of a person means: (a) any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person, or (b) any person who is wholly or mainly dependent on, or a member of the household of, the person." 68S. 49ZYB of the Act provides: "49ZYB Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of age: (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 employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of age: (a) in the terms or conditions of employment that are afforded to the employee, or (b) by denying or limiting 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. (3) This section does not apply to employment for the purposes of a private household." 69At the centre of the complaint are the facts that the Applicant applied for a position of employment with the Respondent and he was not the successful applicant. The Respondent has proceeded upon the basis that the Applicant relies upon s.49ZYB(1)(b). There was no requirement or condition required by the Respondent such as might support a claim for indirect discrimination under s.49ZYA(1)(b) of the ADA. 70Accordingly, in order to make out the complaint the Applicant must establish in line with s.49ZYA(1)(a) of ADA that the Respondent discriminated against him on the ground of age by, on the ground of his age, treating him less favourably than the Respondent treated or would have treated a person who is not of that age in the same circumstances or in circumstances which were not materially different. 71The legal and evidentiary burden remains on the applicant to prove his case under the ADA, see: Australian Iron & Steel Pty Ltd v. Banovic (1989) 169 CLR 165 at 176; AEQ v. Department of Education & Communities [2011] NSWADT 194 at [29]. 72In the context of an application for summary dismissal the Applicant's case is to be taken as its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act: see Prakash v. Bob Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]; Revel v. Plastral Fidence Pty Ltd [1999] NSWADT 18; Fricke at [38]. 73However, as was held in Omeri at [20]: "It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and in the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish." 74The Tribunal has had close regard to the allegations of factual matters which the Applicant has raised and the materials contained in the President's Bundle. Differential treatment and causation 75Pursuant to s.5 of the ADA, the Act binds the Crown in right of New South Wales and accordingly applies to departments of the government. This is confirmed by s.4B(1)(a) which provides that a reference in the ADA to an employer in relation to employment in a Department, is a reference to the relevant Department Head. Accordingly, the Respondent is an employer within the meaning of s.49ZYB(1)(a) ADA. 76The Appeal Panel in Commissioner of Corrective Services v. Aldridge [2000] NSWADTAP 5 held there to be two key components of a successful allegation of direct discrimination; the first being differential treatment and the second causation. As was held in Heber v. Glen Henney & Son Pty Limited (No 2) [2007] NSWADT 230 at [24-25] differential treatment is to be considered first and if there is no differential treatment then it is unnecessary to consider causation: see also Purvis v. New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231]. If the Tribunal finds that there has been less favourable treatment, it then turns to consider whether such treatment was on the ground of age: Heber at [26]. 77To determine whether there has been differential treatment the treatment afforded to the Applicant is to be compared with the treatment that would have been afforded to a comparator, being a person possessed of all the Applicant's attributes other than his age in the same or not materially different circumstances, in order to ascertain whether that treatment was objectively less favourable: see Aldridge at [46]. 78In his submissions the Applicant made no reference to the candidates who were not interviewed for the position. The complete table of candidates is set out in the Investigation Report as follows: " Age at Interview Outcome Candidate 1 50 years old Placed on Eligibility List Candidate 2 Data not available Not Recommended Candidate 3 37 years old Successful Candidate Candidate 4 44 years old Placed on Eligibility List Candidate 5 53 years old Not Interviewed Candidate 6 (Mr Perera) 62 years old Not recommended Candidate 7 47 years old Not interviewed Candidate 8 56 years old Not recommended." 79On the basis of that material it would seem that two persons younger than the Applicant (53 and 47 years old) did not reach the interview stage as he did and one of these (the 47 year old) was younger than one of the candidates placed on the Eligibility List. However, the resumes of the respective candidates were not in evidence. It is not possible to compare the resumes to determine whether there is a comparator, being a person with the same or similar qualifications and employment history and experience but not of the Applicant's age, to whom the Applicant was treated objectively less favourably by the Respondent. 80As Hennessey DP observed in AEQ, the differential treatment and causation requirements merge where there is no actual comparator at [28]: see Dutt v. Central Coast Area Health Service [2002] NSWADT 133. Accordingly, one must look at the issue of causation, namely whether a reason or ground for the less favourable treatment of the Applicant by the Respondent was the Applicant's age. 81In Purvis the High Court confirmed that the test for causation in the context of anti-discrimination legislation is to consider why the aggrieved person was treated as they were. The focus was on the "true basis", the "genuine basis" (Gleeson CJ at 102), or the "real reason" (per McHugh & Kirby JJ at 144) for the treatment. 82In Nicholls & Nicholls v. Director General, Department of Education & Training (No 2) [2009] NSWADTAP 20 the Appeal Panel at [28] concluded that: "The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. ..." 83The Appeal Panel further concluded at [37]: "As for complaints of discrimination...that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment ..." 84Accordingly, the Applicant would need to show that his age was at least one of the "real", "genuine" or "true" reasons for not being awarded the position. See also Chi v. Technical & Further Education Commissioner (No 3) [2009] NSWADT 271 at [64-72]. 85As Hennessey DP observed in AEQ at [30], in order to prove "causation" an applicant must rely on either direct evidence of causation or seek to draw inferences from primary facts. In this matter there is no direct evidence of causation. Indeed, the Applicant has conceded in his letter to ADB on 3 October 2010 that: "there was no indication that age was a factor in determining which candidates were interviewed." He also agreed that: "the questions asked by the selection committee made no reference to the age of candidates and were not of a nature where an older person would be at a disadvantage on responding in comparison to people or a younger age group [sic]." The Applicant also confirmed at the hearing that he could adduce no direct evidence of causation. 86The Tribunal in Chi at [85] considered the relevant considerations to which regard should be had in drawing inferences of discrimination: "85 The exercise of drawing inferences has been discussed by the Tribunal in numerous decisions: for example, Hafez v. Warilla Women's Refuge Ltd & Ors [1997] NSW EOT (at page 5 of 35); AVB [1997] NSW EOT (at page 17 of 19); Edwards v. Bourke Bowling Club Ltd [2000] NSW ADT 31; Dutt v. Central Coast Area Health Service [2002] NSW ADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v. McGuiness [2000] NSW CA 29 (2000) 49 NSW LR 262, identify the following considerations in the drawing of inferences of discrimination: (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of 'probable connection'; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence." 87These principles were held to be unexceptional on appeal: Chi v. Technical & Further Education Division (EOD) [2010] NSWADTAP 67 at [8]. 88The Applicant has said that his "only evidence" is his "Qualifications". He suggests that a comparison between the qualifications of the selected candidate and his qualifications would "prove" the discrimination by inference that he was otherwise the better candidate but excluded by his age. As the Tribunal has indicated above the task of assessing differential treatment cannot be undertaken without evidence of the qualifications of other candidates. 89Nor of themselves do the Applicant's qualifications give rise to an inference that age was one of the "real", "genuine" or "true" reasons for the conduct complained of. The inference is not logical rather than supposition. Nor is such an inference reasonably able to be drawn in light of the evidence of a more probable and innocent explanation, namely that after following an appropriate process for review and selection another candidate was found to be more suitably qualified for the position. 90The Applicant has summarised other evidence in support of his application in his letter to the Tribunal dated 23 July 2011 to which reference will be made in turn: "1) I was interrupted and not allowed to complete the answer to the 1st Question at the interview." The first interview question was: "What skills and experience would you bring to the role of Services Co-ordinator at Lake Burrendong Sport & Recreation Centre?" Ms Swan's response detailed in the Investigation Report was that: "I don't recollect stopping Mr Perera, but I may have. The first question was designed in part to help the applicant get comfortable by talking about him/herself. The questions following were designed to elicit more information about the experience and suitability of the applicant. It may have been that he began covering some ground that was relevant to the other questions. Our notes indicate that Mr Perera gave a full answer to the first question." It was Mr McIntosh's evidence that the first question which dealt with skills and experience was answered extensively by the Applicant. It is difficult to reconcile the Applicant's evidence that he was interrupted and not allowed to complete Question 1 with his own statement in his letter to the ADB dated 3 October 2010 to which the Tribunal has referred. In answer to Question 1, the Applicant apparently gave a reasonably detailed background to his working career and the responsibilities of a Plantation Manager. He also said in the complaint form that he answered at the interview very well. Additionally, he had provided the Respondent in his application of 34 pages comprising his response to the selection criteria, a resume and attachments. 91Adopting the considerations in Chi, even if the Tribunal were to accept that the Applicant was cut off in his answer to the first question, there is no causal link which could be established by inference from that fact that age was one of the "real", "genuine" or "true" reasons for the conduct complained of. Nor is such an inference able to be reasonably drawn on the basis of that fact. The inference is not logical rather than supposition. The Respondent has put forward a more probable and innocent explanation. 92 "2) Interview Notes were not made when I was being interviewed. Notes may have been made after I left the Interview Room, worded differently to give the same meaning by the Panel members." It was Ms Swan's recollection identified in the Investigation Report that: "There were clear sequential notes taken by each panel member to each question answered by Mr Perera". Mr McIntosh's evidence was that he took notes during each interview and that after each interview time was taken for each panel member to finalise the notes and individual rating of the applicant. Even if the Tribunal were to accept the Applicant's evidence on this aspect of the matter, notwithstanding the contrary evidence of Ms Swan and Mr McIntosh, the fact that interview notes might not have been made during the course of the interview is not of itself evidence that there was some collusion between the members of the interviewing panel by preparing interview notes after he left the interview room to "give the same meaning but worded differently" to disqualify the Applicant on the grounds of age. There is no other evidence upon which such a finding could be made. The fact that notes may not have been taken does not give rise to an inference establishing a causal link from that fact that age was one of the "real", "genuine" or "true" reasons for the conduct complained of. Nor is such an inference reasonably able to be drawn on the basis of that fact. Nor is the inference logical. As the Tribunal has indicated a more probable and innocent explanation is available on the evidence. 93 "3) Ms Helen Swan's failure to forward my File to the HR." It was Ms Swan's recollection referred to in the Investigation Report that she had returned the file to HR as soon as she could "within 7 to 10 days" because she was keen to offer the successful candidate the job. There is no evidence of any failure by Ms Swan to forward the file to HR. The Applicant however asserts such a failure and questions whether it was deliberate as a precautionary measure to prevent a complaint against the appointment. Even if there had been a failure to forward the file notwithstanding the evidence to the contrary, taking into account the considerations outlined in Chi there is no available inference from that fact alone that age was one of the "real", "genuine" or "true" reasons for the conduct complained of. Nor in the Tribunal's view is such an inference reasonably able to be drawn on the basis of the fact alleged. Nor is the inference logical rather than supposition. A more probable and innocent explanation is available on the evidence. 94 4) Age of the selected candidate for the position of Service Co-ordinator and the ages of the two candidates Placed on Eligibility List, i.e. * 37 year old successful candidate, * 44 year old Placed on Eligibility List. * 50 year old Placed on Eligibility List * 56 year old Not recommended. * 62 year old Not recommended. * Data not Available not recommended." * From his identification of the ages of the candidates placed on the eligibility list and his conclusion that those three candidates including the successful candidate were younger than the other three applicants including himself the Applicant apparently seeks to draw an inference that age was one of the reasons for which he was not appointed to the position. This inference is not available in light of the evidence in the Investigation Report to which the Tribunal has referred that two additional candidates were considered but ultimately not interviewed. They were 53 years old and 47 years old respectively and younger than the Applicant and at least one other candidate. One of these was also younger than a candidate placed on the eligibility list. In other words the Applicant who was interviewed was older than two candidates who did not even reach the interview stage. 95 * 5) The statement 'Experience in the Teas plantation very relevant, but in the past (20 years). Current position and skills not as tailed [sic] to the job'." The Applicant apparently seeks to draw an inference by reason of the acknowledgement that his experience in Tea Plantations was very relevant, that the reason he was not awarded the position was his age. The Tribunal finds that that inference is also not available. The reason for his non-appointment is set out in the statement he refers to, namely "current position and skills not as tailored to the job". Having regard to the considerations identified in Chi including that the inference cannot be made where more probable and innocent explanations are available on the evidence this inference is not available to the Applicant. Finding 96Having considered the material in the President's Bundle, the evidence filed by the Respondent and the submissions made by the parties and taking into account the considerations outlined in Chi there do not seem to be any facts from which an inference can reasonably be drawn that age was the "real", "genuine" or "true" reason or one of the reasons for which the Applicant was not awarded the position or placed on the eligibility list. There is extensive evidence to which reference has been made to the contrary. The Applicant was included in those applicants asked for an interview. There were two applicants younger than the Applicant who did not reach the interview stage. One of them was younger than one of the candidates placed on the eligibility list. The Respondent has put forward a more probable and innocent explanation, namely that another candidate was more suitably qualified for the position. In the Tribunal's view the evidence and material capable of being converted into evidence cannot support a finding that on the grounds of his age the Respondent treated the Applicant less favourably than in the same circumstances or in circumstances which were not materially different the Respondent treated or would have treated a person who was not of his age. When a complaint is lacking in substance 97As was noted by the Tribunal in Griffin v. Commissioner of Police, NSW Police & Anor [2005] NSWADT 92 at [22] the meaning of the term "lacking in substance" has been considered extensively. 98In Harding v. Vice Chancellor, University of NSW [2003] NSWADT 74 at [24] the Tribunal set out the following principles which it considered should be applied in determining whether a complaint lacked substance: "A complaint will be lacking in substance when there exists no factual basis for the allegations, or the allegations lack merit: See Langley v. Niland & Anor: [1981] 2 NSWLR 104 at 107; Reyes-Gonzalez v. Sydney Institute of Technology (1998) NSW EOT (6 March 1998) at 6; A complaint lacks substance if it contains 'an untenable proposition of law or fact': State Electricity Commissioner of Victoria v. Rabel [1998] 1 VR 102 at 108-109 per Ormiston J.A." 99This approach was followed in Karekar and in Salama v. Qantas Airways Ltd [2002] NSWADT 119. 100In Paramasivam v. Vice Chancellor, University of New South Wales [2003] NSWADTAP 2 at [25] the Appeal Panel found that: "... the complaint, in legal terms, comprises the evidence that exists to support it. If that evidence does not support the factual allegations or, even if they do, if the factual allegations do not comprise a breach of the ADA, the complaint 'lacks substance'." Conclusion 101The Applicant has not been able to point to any direct evidence of differential treatment or of causation or to any inference reasonably able to be drawn from primary findings of fact which would support a finding by the Tribunal that in not being appointed to the position he was discriminated against upon the ground of age. The mere assertion by the Applicant that this is so in the absence of evidence to that effect is insufficient (see Omeri at para. 20). The complaint is lacking in substance, there being no factual basis for the allegations. In those circumstances, adopting the approach of Ormiston JA in Rabel referred to above, it is clear beyond doubt that the Applicant has no arguable case which should be resolved at a full hearing. 102The Tribunal has found that there is no material capable of amounting to a contravention of the ADA to support the claim for discrimination. There is evidence to the contrary which would undoubtedly deny the Applicant relief. Taking the authorities into consideration the Tribunal is satisfied that the complaint is so hopeless that it should be dismissed. The test in Assal 103The Respondent has submitted that the test posed by Sir Ronald Wilson in Assal for determining whether a complaint should be summarily terminated has been satisfied. In that case, Sir Ronald Wilson said at [78-900] referring to a Commonwealth provision equivalent to s.102 of the ADA and in substantially the same terms: "A claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance." 104The Federal Court has adopted this approach in a number of cases (for example, Rana, Nagasinghe v Worthington (1994) 53 FCR 175 and Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455) as did the Appeal Panel in Paramasivam at [19]. 105In Star City Pty Limited v. Hurst (EOD) [2009] NSWADTAP 35 at [39] O'Connor K - DCJ (President) expressed the view that it: "may be that the appropriate standard in anti-discrimination matters was best expressed by Sir Ronald Wilson in Assal ..." In doing so, the President noted that the provision under notice in the appeal (s.102 ADA, s.92(1)) and that the subject of the decision in Assal allowed for an application to strike out to be made at any stage of proceedings including at trial. This was contrasted with the decisions of some Victorian courts which refer to other cases arising in the context of rules regulating the pre-trial environment: see for example Rabel per Ormiston J at [108] and Forrester v. AIMS Corporation [2004] VSC 506 per Kaye J at [17-25]. 106In Rabel the majority of the Victorian Court of Appeal disagreed with the approach suggested in Assal, Ormiston JA formulating the test referred to above. In McGlade v. Human Rights & Equal Opportunity Commission [2000] FCA 1477, Carr J also distinguished the approach in Assal and endorsed the position taken in Rabel by reason that in McGlade the proceedings were at a preliminary stage when they were dismissed. 107Having regard to the adoption of the Ormiston JA's formulation in Rabel by the Tribunal in the recent decisions referred to above it is not certain whether Sir Ronald Wilson's test in Assal remains the appropriate one. Having found that the complaint is lacking in substance by reference to the more recent authorities it is unnecessary to determine this issue. In any event, as noted by the Tribunal in Rocky Point Pty Limited v Chief Commissioner of State Revenue [2010] NSWADT 19 at [17], citing Legal Services Commissioner v Ball [2001] NSWADT 86 at [27], although the cases regard these as distinct tests the distinction between the two is "of such subtlety as to make it unlikely that a choice between one formulation or the other would affect the decision in any but an exceptional case". Orders 108The Complaint is dismissed. 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: 01 June 2012