Duncan v Chief Executive, NSW Office of Environment and Heritage (No 2) [2013] NSWADT 78

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Duncan v Chief Executive, NSW Office of Environment and Heritage (No 2) [2013] NSWADT 78 Hearing dates: 29 & 30 March 2012 Decision date: 16 April 2013 Jurisdiction: Equal Opportunity Division Before: R J Perrignon, Judicial member N Hiffernan, Non-judicial member J McClelland, Non-judicial member Decision: The complaints of discrimination on the grounds of race and age are dismissed Catchwords: Discrimination; age; race Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Duncan v Director General, Department of Environment, Climate Change and Water [2011] NSWADT 105 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 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Purvis v State of New South Wales (2003) 217 CLR 96 Category: Principal judgment Parties: Michael Duncan (Applicant) Director General, Department of Premier and Cabinet (Respondent) Representation: Counsel G Boyce (Respondent) M Duncan (Applicant in person) File Number(s): 111030

reasons for decision 1The applicant, Mr Duncan, has worked for the respondent Department and its predecessors for about thirty years. He is an Aboriginal man in his fifties. Since 2007, he has occupied the position of Information Officer, Grade 7. 2In 2009, he applied to the Department for appointment to the position of Regional Program Co-ordinator. He was granted a 'priority assessment' interview - that is, an interview conducted before interviews with other candidates who were not entitled to priority assessment, in accordance with a circular which was described in evidence as the 'right of return' policy. The interview was conducted on 1 September 2009 by Mr House and his supervisor, Mr Couch, at the Department's offices in Queanbeyan. Mr House was Mr Duncan's supervisor. 3Mr Duncan had been acting in the position for some months. The interviewers assessed his capacity to fill the position against the published selection criteria. The interviewers considered that Mr Duncan did not meet all but one of the selection criteria. They then formed another panel with a third member, to interview the other candidates for the position who had not been granted priority assessment. Mr Duncan was not invited to participate in any further interviews. One male and one female candidate were selected for interview. The female candidate was successful. 4On 31 August 2010, Mr Duncan complained to the Anti-Discrimination Board that the Department had discriminated against him on the grounds of his race and age, in the following five ways: 1) The Department had denied him the opportunity to have a cross-Divisional independent panel member on 1 September 2009. 2) The Department misled him as to who the convenor was. 3) He was required to draft a ministerial briefing at interview, when other candidates were not. 4) He was advised that the respondent's Right of Return Policy was no longer current. 5) In breach of that policy, his application was judged against the full selection criteria for the position. 5On 24 January 2011, the complaint was declined. Pursuant to section 93A of the Anti-Discrimination Act 1977, Mr Duncan required the Board to refer his complaints to this Tribunal, which it did. 6On 10 May 2011, Mr Duncan sought and obtained the Tribunal's leave to proceed: Duncan v Director General, Department of Environment, Climate Change and Water [2011] NSWADT 105. In her published reasons, Deputy President Hennessy summarised succinctly the factual and legal bases for the complaints in the following way. "1. .... 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. 2. In 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. 3. In 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. 4. Mr 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. 5. Mr 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. 6. Clearly 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. 7. Following 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. 8. Mr 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." 7In these reasons, the 'circular' extracted by the learned Deputy President will be referred to as the 'right of return policy'. This reference is for convenience only, and does not imply a finding that it was a policy. The respondent denies that it was a policy at all. For the reasons below, it has been unnecessary to determine its precise status. 8At the hearing of the substantive matter before this Tribunal, Mr Duncan represented himself. He sought leave to extend the complaint to one of victimisation, and to discrimination by reason of certain actions in 2011. Those applications were unsuccessful. The Tribunal's reasons were given orally and are recorded in transcript. He maintained his complaints of direct discrimination, which he had made to the Board. 9The Department argued that none of the five allegations referred to above, even if proven, could amount to discrimination on a prohibited ground. It relied on the evidence of Mr House, Mr Couch and Ms Habak. In respect of the first allegation, it conceded that there had not been an independent panel member at the priority assessment. The reason, it said, was the independent member had become unavailable at short notice. It denied that the failure to provide an independent member was done on the grounds of race or age. It asserted that no other person had been granted a priority assessment, so that no other person in Mr Duncan's circumstances had been afforded an independent panel member, though such a member was present at interviews for the substantive position. 10In answer to the second allegation, it said that Mr Duncan was not misled. Mr Duncan was told the convenor was Mr Couch, and that he remained the convenor. It says that Mr Couch was delayed en route to the interview from Wollongong on 1 September 2009, phoned Mr House, and asked him to commence the written task assessment in his absence, which was done. If Mr Duncan formed a view that Mr House was thereby appointed the convenor, the respondents says he was mistaken. In any event, it says the request for Mr House to commence the interview pending Mr Couch's arrival was not done on the grounds of race or age. It was done because he was running late. 11In answer to the third allegation, the Department says that no other candidate was given a priority interview, so it cannot be said that Mr Duncan was treated less favourably by being asked to draft a ministerial briefing for assessment. In the alternative, it says that all candidates at subsequent interviews were required to draw the same ministerial briefing in the same time frame. 12In answer to the fourth allegation, the Department says that Mr Duncan was not told at interview that the right of return policy was current. Rather, he was told that it would be applied to him, despite doubts as to its applicability. 13In response to the fifth allegation, the respondent says the interviewers correctly applied the right of return policy, by assessing whether Mr Duncan was 'able to demonstrate the capacity to competently undertake the position within six months with the support of appropriate training and management'. In doing so, the interviewers had regard, as they must, to the selection criteria for the position, without regard to considerations of race or age.