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. Legislative provisions 14Section 8(2) of the Anti-Discrimination Act 1977 relevantly provides: "(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." 15Section 49ZYB makes similar provision in relation to age discrimination. 16Section 7 of the Act sets out what it means to "discriminate" against an employee on the ground of race: "(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." 17Subsections 49ZYA(1)(a) and (b) make similar provision in relation to age discrimination. 18The discrimination referred to in paragraphs 7(a) and 49ZYA(1)(a) is sometimes referred to as 'direct discrimination'. That described by paragraphs 7(c) and 49ZYA(1)(c) is referred to as 'indirect discrimination'. In the way in which he ran his case, Mr Duncan relied on allegations of direct discrimination. He did not submit that he had been subjected to indirect discrimination. 19In her decision, Deputy President Hennessy elegantly stated what needed to be proven to establish direct discrimination: "13. To 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 )." 20It is common ground that Mr Duncan is an Aboriginal man in his fifties. For the purposes of these reasons, we shall assume in his favour that each of the alleged actions of the respondent was an action in relation to the terms and conditions of employment, or had the effect of denying or limiting his access to benefits associated with employment, including opportunities for promotion. To succeed, Mr Duncan must nevertheless satisfy the Tribunal as to differential treatment and causation. As Deputy President Hennessy observed [at 15-18]: "Differential treatment 15. The 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. 16. In 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 17. The 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. 18. GREAT 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 19. In 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. 20. The 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. 21There being no dispute as to Mr Duncan's race or age, the issues for determination by the Tribunal are as follows. 1) Whether, by reason of any of the acts upon which Mr Duncan relies, the respondent 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. 2) If so, whether one of the reasons for the conduct was Mr Duncan's race or age, whether or not it was the dominant or a substantial reason for the conduct. 22For the reasons expressed in Dutt (below), where a hypothetical comparator is considered, those issues form part of the same inquiry. Mr Duncan's evidence 23Mr Duncan gave evidence orally, and by way of certain documents which he put before the Tribunal which combined his recollection of the facts, and his allegations of discrimination. 24Mr Duncan also produced extracts from the respondent's written submissions in his appeal to GREAT. In those submissions, the respondent said that on 26 May 2009 and again on 11 and 17 June 2009, the Department had advertised the position of 'Regional Programs Coordinator, Environment Officer Class 9, Culture & Heritage Division, Southern Region (Queanbeyan)'. It said that, by the time of the priority assessment on1 September 2009, Mr Duncan had been 'occupying the subject position ... for five months'. 25Mr Duncan told the Tribunal that, before the priority assessment interview, he had discussed the position of Regional Program Coordinator with his supervisor, Mr House, who was also an Aboriginal man. Mr Duncan said he was entitled to a priority assessment by virtue of the right of return policy. Mr House had replied that he was not so entitled, observing that the policy was defunct. However, in the end, Mr House said that Mr Duncan could have a priority assessment, apparently after consultation with human resources. 26The priority assessment interview was scheduled for 1 September 2009 at Queanbeyan. It was convened, as he understood it, by Mr House, who also worked at Queanbeyan. Mr House told him that an independent member, Mr Saunders, would also be present. 27According to Mr Duncan, Mr House never mentioned that Mr Couch would be on the panel, or that he would be the convenor. As Mr Duncan put it, 'Mr Couch was not an issue until he walked through the door'. 28At the beginning of the interview, Mr House told Mr Duncan to complete a written task. It is common ground that this was a ministerial briefing, concerning a dispute between stakeholders over a significant Aboriginal site. Mr Duncan agreed that he had been left alone in a room for an hour to complete this task. He thought Mr House would then return with the independent member to conduct the interview. 29At some point, Mr Couch arrived. Mr Duncan described himself as 'speechless'. He says that Mr Couch had spent 'many years ... denying my right of return' - by which he meant, denying that Mr Duncan was entitled the benefit of the right of return policy. Mr Duncan told the Tribunal: "I was shocked that he would take over from Mr House, I actually found it quite difficult to try to voice any objection because I knew that I immediately had to salvage what I could out of the assessment. I knew exactly how it was going to go but I also knew that I wasn't in a position to cancel it. I've had a friend do that once in an interview panel and he certainly didn't benefit from it. My goal was to make the best of a very bad situation but it actually got worse." 30Mr Duncan said that Mr Couch immediately announced, "I'm taking over as convenor". Mr Duncan told the Tribunal, "There was a takeover by Mr Couch and Mr House was - well he literally took a back seat in the whole process." 31Mr Couch said, "We couldn't get an independent". Mr Duncan knew that Mr Saunders worked 'just around the corner, on the same floor". The interview had not been postponed to accommodate him. He also knew that Mr Couch did not work in Queanbeyan. He had driven 200 kilometres from Wollongong to be there. He inferred that Mr Saunders had been asked not to attend. He told the Tribunal, "My understanding was that I wasn't going to get an independent, I knew that immediately." 32He said he understood the position had already been advertised by that stage, and that there were two other applicants. His understanding was that, in accordance with the right of return policy, he would be interviewed separately from the other applicants, and would be appointed to the position if he had the capacity for it. He considered himself suitable for the position because, among other things, he had been complimented by Mr House for successfully repatriating twenty-seven human remains from museums back to five Aboriginal communities in one day, and he was three-quarters of the way through a university degree course covering cultural heritage and management. However, he told the Tribunal: "Given that I thought that I met the limited requirements [for the position] extremely well, I thought that that would be the end of the matter after the priority assessment. But all of that actually changed the moment Mr Couch walked in." 33Mr Duncan said that he told both interviewers: "I have a Right of Return to Grade 12 under the DECCW Right of Return Policy.' 34He said Mr Couch replied, "I do not know anything about the policy", and that Mr House nodded in agreement. 35On 25 September 2009, Mr House and Mr Couch signed their Priority Assessment Report. Mr Duncan was described in the report as the "Displaced Employee". The report set out eight numbered criteria for selection. In respect of each criterion except the eighth (the requirement for a current drivers licence), the panel members reported that Mr Duncan was "unable to meet criterion and/or could not meet within reasonable time given access to training". These words were apparently designed to assess compliance with the requirements of clause 2 of the right of return policy - namely, 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". 36According to the Department's submissions to GREAT, which Mr Duncan did not contradict, another selection panel was convened comprising Mr House as convenor, Mr Couch, and a female member, to assess the four other applicants for the position. Two of the applications were culled on 23 October 2009. The remaining two applicants - one male, one female - were interviewed on 6 November 2009. They were each assessed using the criteria which had been applied to Mr Duncan at the priority assessment. They were required to complete the same ministerial briefing as had been required of Mr Duncan at the priority assessment. The female applicant was ultimately selected. 37Mr Duncan gave his evidence in an impressive fashion. It was internally consistent, and not so improbable as to cause the Tribunal to doubt its correctness. The Tribunal formed the view that he was a witness of truth, and except in respect of the matters set forth below, makes findings in accordance with his evidence. Appeal to GREAT 38Mr Duncan showed the Tribunal a letter dated 21 January 2010, in which the respondent had advised him as follows. "Following careful consideration by the Selection Committee, I regret to advise you that on his occasion your application has been unsuccessful. ... Should you require further information, post selection counselling is available from the Convenor of the Committee, Paul House ..." 39Mr Duncan appealed to GREAT from the Director-General's decision to appoint Ms South to the position rather than himself. His appeal was heard on 24 May 2010 and determined on 9 June 2010. His appeal was unsuccessful because, having regard to all the evidence, GREAT found that the successful applicant was 'the officer with the greatest merit for appointment to the vacant position.' 40However, GREAT also made the following findings: 1) 'Mr Duncan's work history ... and his qualifications support the conclusion that Mr Duncan is a meritorious candidate and more than suitable for appointment to the Regional Programs Coordinator position.' 2) 'The Tribunal considers both officers to meet all the selection criteria but with Mr Duncan slightly ahead in selection criterion 2 and [the successful applicant] ahead on selection criterion 3 and 4.' 3) ' ... the Department is lucky to have two such capable and committed officers vying for the one position.' 41Criterion 2, in which Mr Duncan was found to be ahead, was knowledge of the workings of State and Local Government and relevant legislation. Criteria 3 and 4, in which the successful applicant was found to be superior, were respectively: (3) project management experience, financial management experience and computer skills, and (4) experience in targeted research, assessment and planning for the protection of Aboriginal cultural heritage values. 42Before this Tribunal, the respondent did not challenge the findings of GREAT, and appeared to accept them. However, the issue for determination is not whether, contrary to the conclusion expressed by Messrs House and Couch, Mr Duncan was a suitable candidate, or even whether they had properly applied the right of return policy to him, but whether he was the victim of direct discrimination on the grounds of race or age. Mr House's evidence 43Mr House gave evidence orally and in writing. He said that Mr Duncan's written application had been initially considered by himself, that on 3 August 2009 he had reported that it did not meet the selection criteria, and that on 11 August 2009, his report received the support of Mr Couch. 44Nevertheless, he said, he discussed the idea of granting a priority assessment interview to Mr Duncan 'based on good will' with Mr Couch and another officer, and 'a decision was made to call Mr Duncan to interview'. 45He agreed that he had been the convenor of the later selection panel for merit assessment. When asked why Mr Couch, rather than he, had been the convener of the priority assessment panel, he said that the priority assessment process appeared to be more complicated than a normal recruitment process, making the involvement of someone more senior than him appropriate. He was unable to explain why the Department had described him as the convenor in its letter of 21 January 2010. That letter may well have been in error. 46He said he had been delegated the task of choosing the independent member, as the member was to be a local person. That person, he said, did not attend work that day, and was therefore assumed to be unavailable. He said the interview was not cancelled, because he was of the understanding that only two interviewers were required for a priority assessment, whereas there were required in the merit selection process, in accordance with the Department's practice. 47He said Mr Duncan was informed at the commencement of the interview that Mr Couch was the convenor, that he was delayed by roadwork, that the independent member was not available, and that the interview could proceed because no more than two interviewers were required. He said Mr Duncan agreed to proceed with the written task while waiting for Mr Couch to arrive. 48He confirmed that the same selection criteria by which Mr Duncan had been assessed in the priority assessment were later applied to the candidates in the merit selection process, and that the same written task which Mr Duncan had been asked to complete was also asked of the other candidates. He said that he commented on the successful applicant's written task, which was before the Tribunal, but was unable to locate his comments. They did not appear in his report on the successful applicant, the relevant pages of which were before the Tribunal. 49Mr House identified the written paper prepared at interview by the successful candidate. Mr Duncan's written task was also before the Tribunal. Mr House was shown the relevant parts of the selection panel's written report in relation to the successful applicant. It contained no mention of her written task, or any assessment of it. He thought the panel had made a written assessment of it, but could not explain why its assessment was absent from the report. 50He said the panel considered the successful applicant's written task to have been 'a better document' than the one prepared by Mr Duncan. When asked why, he said that the successful candidate's paper was 'more succinct and more to the point'. She had made one recommendation only. Mr Duncan had made five. Mr House was unable to identify anything wrong with Mr Duncan's recommendations when invited by the Tribunal to do so. The two papers were about the same length, and dealt with the same issue. Despite Mr House's best efforts, the Tribunal was unable to discern any reasonable ground for the trenchant criticisms made of Mr Duncan's paper in the prior assessment report, in light of the apparent approval given by Mr House and his colleagues to the paper of the successful applicant. 51For reasons which are set forth below in the context of Mr Couch's evidence, the Tribunal does not accept that the panel made a formal written record of its assessment of the successful candidate's written task. 52Mr House's evidence conflicts with that of Mr Duncan as to what Mr Duncan was told at the commencement of the interview. It is by no means unusual for two truthful witnesses to have a different recollection of events which occurred years ago. It seems likely that Mr Duncan's recollection would be the more accurate, having regard to the vivid nature of his recall of his own surprise and dismay at the arrival of Mr Couch, and because the interview - though doubtless approached with appropriate importance by Mr House - would have been of even greater importance to Mr Duncan, and one would expect his recollection to be keener, all else being equal. Mr Duncan's evidence on that issue is also more likely to be accurate because, if Mr House did in fact tell him of the independent member's unavailability at the outset, there would have been no reason for Mr Couch to do so when he arrived. Mr Couch recalled having announced that when he arrived (infra). On this issue, the Tribunal prefers the recollection of Mr Duncan. 53Otherwise, Mr House's evidence was largely consistent with that of Mr Duncan, and we make findings in accordance with Mr House's evidence. Mr Couch's evidence 54Mr Couch also gave evidence orally and in writing. He said that Mr House had asked him to be the convenor of the priority assessment panel, and that he had been the convenor from the beginning. On the day of the assessment, he was delayed by road conditions en route from Wollongong, and rang ahead to warn Mr House. He asked Mr House to commence the process in his absence with the written task. 55On arrival at Queanbeyan, Mr Couch told Mr Duncan that he was the convenor, and that they had been unable to obtain an independent member for the assessment. His understanding was that the independent had withdrawn on the day of the assessment. He explained to the Tribunal that the absence of an independent person did not necessitate an adjournment of the interview, because an independent member was not required for the priority assessment process. So far as he knew, a female member was not required for that process, either. He said that the presence of an independent member and gender balance were both required, however, on merit selection panels. 56He denied telling Mr Duncan that he was unaware of the right of return policy. He had taken advantage of it himself in 2004, and had been required to consider it in respect of other applications. He recalled telling Mr Duncan that Human Resources were unsure as to whether it applied to Mr Duncan's circumstances. He thought the uncertainty arose in Mr Duncan's case because, after Mr Duncan was displaced in 2000, he was later assigned to a permanent position within a merged department at a lower grade than his original position. It was not certain whether that appointment disentitled him to a right of return. Nevertheless, he said, the selection panel 'handled Mr Duncan's application as a priority assessment in any case, and afforded Mr Duncan the benefit of a priority assessment in terms of the DECCW policy'. He said, 'we drew the assumption that even in the face of the uncertainty it would apply, we would presume it applies and apply the process accordingly.' 57He told the Tribunal that the panel tested Mr Duncan's application against the selection criteria for the position. Had he been successful at the priority assessment, Mr Couch said, the merit selection process would not have proceeded, and the other candidates would not have been interviewed. However, Mr Duncan was not considered by the panel to 'demonstrate the capacity to competently undertake the position within six months with the support of appropriate training and management', having regard to the selection criteria for the position. The merit selection process did proceed, and another candidate was chosen. He denied that the panel had compared Mr Duncan with the candidate who was ultimately selected. 58Like Mr House, Mr Couch was shown the relevant parts of the report of the merit selection committee in respect of the successful candidate. Mr Couch conceded that it was unlikely the panel had made any written comment on the successful candidate's written work. That concession appears to the Tribunal to have been properly made. Despite Mr House's recollection to the contrary, the evidence discloses no reason why the written assessment, if it existed, would not have been recorded in the relevant pages of the panel's report. The last page of the report was not able to be found. However, the selection criteria considered in the pages that were before the Tribunal were the very selection criteria in respect of which the priority assessment panel had made trenchant criticism of Mr Duncan's written work. If the panel had written down its assessment of the successful candidate's written work, one would expect it to appear in the pages of the panel's report which were in evidence. For these reasons, the Tribunal prefers the recollection of Mr Couch, and infers that Mr House's contrary recollection is mistaken. 59Otherwise, the evidence of Mr Couch is by and large consistent with that of Mr House. It is largely consistent, so far as it goes, with that of Mr Duncan, save that Mr Duncan recalls a denial of the right of return policy by Mr Couch. Such a denial seems inherently unlikely, in our view, as Mr Couch had himself invoked the policy on his own behalf. It is much more likely that Mr Couch expressed doubt about its applicability to Mr Duncan, as he says. In that respect, we prefer the recollection of Mr Couch. The Tribunal had the opportunity of observing Mr Couch under cross examination. His evidence was internally consistent, and given in a forthright manner. We are satisfied he was a witness of truth, and make findings in accordance with his evidence. Ms Habak's evidence 60Ms Habak is an officer of the respondent, who attended the hearing at GREAT on behalf of the respondent's human resources department. She gave oral evidence to the effect that the right of return document was a circular and not a policy document. She described a circular as 'pretty much sort of like a fact sheet, or a notice to staff to inform them about, you know, changes or reforms that pertain to their, you know, work entitlements et cetera'. 61Ms Habak did not deny that the circular was intended to reflect departmental policy or intention, or that employees were intended to believe its contents and rely on them. 62Her evidence appeared to be adduced in order to support a submission that the right of return policy did not apply to Mr Duncan. In light of the conclusion to which we have come, it is unnecessary to determine that issue. Consideration 63To prove direct discrimination, Mr Duncan must satisfy the Tribunal as to differential treatment and causation. That is, he must show that the respondent treated him less favourably than it treats or would have treated another employee not of his race or age, in circumstances which are the same or not materially different. He must also show that at least one of the real reasons for doing so was Mr Duncan's race or age. 64Mr Duncan has not identified any person not of his race or age who, like him, was afforded a priority interview in similar circumstances and was appointed to the position, or at any rate treated more favourably, despite being considered unable "to demonstrate the capacity to competently undertake the position within six months with the support of appropriate training and management". That leaves the hypothetical comparator. As the Tribunal observed in Dutt at 56-65: 59 An applicant faces a difficult task in establishing direct discrimination under the 'comparative' approach of the ADA. There is in our view an issue to be resolved as to how the Tribunal follows the approach set out by the Appeal Panel in Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 in matters where the comparator is hypothetical. 60 The ADA requires Dr Dutt to establish, in relation to each of his allegations, that the CCAHS treated him "less favourably" in the same circumstances than it did or would have treated a person not of Dr Dutt's race. This 'comparative' approach to proving direct discrimination is notoriously problematic: the NSW Law Reform Commission described it as both artificial and complex (Review of the Anti-Discrimination Act 1977 (NSW) Report 92, NSW Law Reform Commission, 1999, at 3.52, and generally at 3.31-34). Although the Commission recommended that a different approach be adopted, the 'comparative' approach remains in place in NSW. 61 The Appeal Panel in Aldridge sets out the two consecutive questions asked by the ADA in relation to a claim of direct discrimination: first, was there less favourable treatment and secondly, if so, was it on the ground of race? The Appeal Panel explained the consecutive nature of the issues in this way: "different treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation" (at para 45). The first question and, if appropriate, the second question must be asked and answered for each of the allegations (Aldridge at para 54). 62 The consecutive nature of these questions is apparent when there is an actual comparator, against whom to assess "less favourable treatment". The relevant treatment of a comparator is assessed, and from that it can be determined whether the applicant was treated less favourably. If less favourable treatment is established, that is the end of the comparative exercise, and attention turns to the ground or grounds for the treatment of the applicant. 63 When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently. 64 In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: 'but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'. 65 This is not to disagree with the analysis in Aldridge, but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of race" might be answered as part of the same reasoning exercise. 65It follows that the questions of less favourable treatment and causation should be approached in this case as part of the same reasoning exercise. 66In Purvis v State of New South Wales (2003) 217 CLR 96 (at 166), the High Court found in relation to causation: "The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator[101]. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act." 67GREAT has found that - contrary to the findings of the priority assessment panel - Mr Duncan was a suitable candidate for the job, having regard to the selection criteria. The respondent does not deny the correctness of that finding. If the right of return policy had been applied to him as the selection panel intended, he ought to have been appointed, and the merit selection process ought not to have proceeded. His distress at what has occurred is both patent, and understandable. 68However, the issue for determination by this Tribunal is not whether the right of return policy was correctly applied to Mr Duncan, or whether the panel made the right decision. It is whether he was discriminated against on the grounds of race or age in respect of the acts of the respondent of which he complains. 69He relies on the following acts of the respondent on 1 September 1990: 1) He was denied the involvement of an independent panel member. 2) He was misled 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 the right of return policy, his application was judged against the full selection criteria for the position. 70We are satisfied that no independent panel member was present on 1 September 2009, because the member selected did not attend work that day, Mr Duncan did not request an adjournment, and both members of the panel considered that the independent was not required for the purposes of a priority assessment. We are not satisfied that Mr Duncan's race or age formed any part of the real reason for the non-attendance of that member, or of the decision to proceed in his absence. 71It is likely that Mr Duncan was not told that Mr Couch was the convenor until his arrival well into the interview. However, we are not satisfied that the department misled Mr Duncan as to who the convenor was. He probably assumed Mr House was the convenor, in the absence of advice to the contrary, because Mr House was the only person present when the interview began. That was not an unreasonable assumption. However, we are not satisfied that Mr House, or any other officer of the respondent, told him that Mr House was the convenor. We are satisfied that Mr Couch agreed to convene the priority assessment at the request of Mr House, and that Mr House made the request because he was concerned that it was a more complex process than the standard merit selection process, and it was appropriate that a more senior officer take charge. We are not satisfied that Mr Duncan's race or age formed any part of the real reason for the failure to communicate Mr Couch's role to Mr Duncan at the outset, or the decision that Mr Couch ought be the convenor of the panel. 72As there was only one candidate for priority assessment, it cannot be said that no other candidates were required to draft the ministerial briefing. In any event, we are satisfied that the two candidates who were selected for a merit selection interview were both required to draft the ministerial briefing. 73We are not satisfied that Mr Duncan was advised at interview that the right of return policy was not current. We are satisfied that Mr Couch advised him of doubts surrounding its applicability to him, and that despite those doubts, the panel proceeded with the priority assessment, intending to give him the benefit of the doubt, and to appoint him if he satisfied the requirements of the right to return policy having regard to the selection criteria for the position. Mr Couch so advised him because he believed the advice he was giving to be true, and relevant. Neither Mr Duncan's race nor age formed any part of the reasons for telling him these things. 74There is evidence, which we accept, that in prior conversations Mr House had expressed the view the policy was defunct. That was probably because he believed it to be defunct. There is no persuasive evidence of any other reason for his actions. 75We are satisfied that the panel did apply the selection criteria for the position at the priority assessment, in that it considered 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', having regard to each of the selection criteria for the position. We are not satisfied that Mr Duncan's race or age formed any part of the real reason for the decision to apply the selection criteria. The panel considered it appropriate to do so, in the application of the right of return policy. It is difficult to see what other conclusion they could reasonably have drawn. 76For those reasons, we are not satisfied that Mr Duncan's race or age formed any part of the "real reason" why Mr House or Mr Couch did what they did. In particular, we are not satisfied that race or age formed any part of the 'real reason' for their decision not to appoint him to the position. That decision appears likely to have been the result of an erroneous assessment as to his capabilities. 77Neither are we satisfied, to the extent it is separately relevant, that the respondent treated Mr Duncan any less favourably than it would have treated another person not of his race or age group in the same circumstances, or in circumstances which are not materially different. 78The complaints of discrimination on the grounds of race and age are dismissed. The respondent has informed the Tribunal that it makes no application for costs, as is appropriate. ********** 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: 16 April 2013