Anti-Discrimination Decisions

[2007] TASADT 07

Catchwords:

Equal opportunity - Review of Commissioner's decision to dismiss complaint - Alleged discrimination on the basis of age, gender, irrelevant criminal record and victimisation - Notification to the parties of acceptance of complaint by Commissioner - Tribunal's power to admit fresh evidence not before Commissioner - Tribunal's power to take into account material before commencement of Act - Anti-Discrimination Act 1998 (Tas) ss14, 16, 18, 64, 67, 71, 72, 78, 97, 108

Representation:

Reasons For Decision

APPLICATION

1. This is an application to review a determination made by the Anti-Discrimination Commissioner on 8 July 2005 dismissing a complaint made by Kurt von Stalheim (the complainant) pursuant to the Anti-Discrimination Act 1998 (the Act) received on 9 November 2004.

PROCEDURAL HISTORY

2. The complainant lodged an undated complaint, together with attachments, received by the Commissioner on 9 November 2004. The complaint alleged discrimination on the basis of age, gender, irrelevant criminal record and victimisation by Davey Accounting Plus (Davey). By letter dated 5 January 2005 the Commissioner advised the complainant that she had accepted the complaint for investigation following a delegate of the Commissioner seeking more information concerning the complaint. By letter dated 8 July 2005 the Commissioner dismissed the complaint under section 71 (1) (a) of the Act on the basis that it lacked substance under section 64 (1) (a) of the Act.

3. On 11 July 2005 the complainant applied for a review of the Commissioner's decision to this Tribunal. The application was initially referred to Member Rheinberger who conducted a directions conference on 20 September 2005 during which the complainant objected to her hearing the matter. On 4 November 2005 Member Rheinberger disqualified herself. The matter was then referred to Member Bartlett who conducted a directions conference on 13 December 2005 during which the complainant represented himself and the respondent was granted leave to have legal representation. She made various other orders relating to documents and also ordered that the hearing of the matter be open to the public. Following the conference the complainant made written objections on 29 January 2006 to Member Bartlett hearing the matter. The matter was set down for hearing on 31 May 2006, during which Member Bartlett disqualified herself.

4. The matter was then re-allocated to me first for another directions conference and then for hearing. I conducted a directions conference on 15 September 2006 and I again granted leave to Mr Pearce to represent the respondent, despite the complainant's objection. The complainant also sought the attendance of the respondent's principal's wife, Mrs Davey.

5. The hearing was conducted in Launceston on 26 September 2006. The complainant represented himself and Mr Pearce represented the respondent.

6. During the course of the hearing the complainant raised a jurisdictional question based on his submission that the Commissioner had not completed her investigation within 6 months of the notification, as provided for by section 67 of the Act, and thus should have referred the complainant to the Tribunal, provided for by section 78 (2) of the Act.

7. The letter dated 5 January 2005 accepting the complaint for investigation did not appear to be on the file. I therefore ordered that the complainant provide a copy of the letter and directed that Mr Pearce respond with his submissions within 14 days of receipt. On 16 October 2006 the complainant provided a copy of the letter and made further submissions. On 16 November 2006 Mr Pearce responded with his submissions.

8. The complainant again wrote to the Tribunal on 28 October 2006 and 18 November 2006. In the first letter he asserted there was little benefit to be obtained from making an invalid decision on the ground that I allowed the respondent legal representation based on the complainant's capacity to represent himself, rather than identifying factors which related to the respondent's ability to represent itself. He also asserted that during the course of the hearing I allowed Mr Pearce to introduce new evidence without any warning which prevented the complainant from asking questions about less favourable treatment, and conducted the Tribunal "in such a way as to deprive me of any opportunity to present my case at all".

9. He also referred at length to my refusal to allow the complainant to seek evidence relating to less favourable treatment in relation to resumes, payroll records and in relation to calling Mrs Davey.

10. He concluded by asking that I invalidate the proceedings to allow for a new hearing.

11. In his letter of 11 November 2006 the complainant made more submissions in relation to the question of jurisdiction, citing Project Blue Sky (1998) 194 CLR 355 at 290 and 1 W v City of Perth (1997) 191 CLR 1 at 12 (per Kirby J) and the construction of section 78 of the Act, that is, it directs the Commissioner to act in the prescribed manner and that if she does not, she loses jurisdiction. If the time limit of 6 months for referral to inquiry provided for in section 78 (2) has been reached, the Commissioner lacks the jurisdiction to make a decision pursuant to section 71.

12. The complainant also asserted that I should disqualify myself. I have ignored this in the context of any attempt by him to influence my decision.

JURISDICTION OF THE TRIBUNAL

13. The question of the jurisdiction of the Tribunal to hear the matter was not raised by the complainant until the course of the hearing necessitating further submissions (outlined above).

14. The complainant submitted that section 78(2) of the Act provides that the Commissioner is to refer a complaint within six months after notification under section 67, or within any further period agreed with the complainant, regardless of whether the investigation has been completed. As the letter from the Commissioner advising the complainant that his complaint had been accepted for investigation was dated 5 January 2005, and the letter from the Commissioner advising that she had decided to dismiss the complaint was dated 8 July 2006, this was not within the six months, "a very mandatory instruction" and thus should have been referred to the Tribunal, regardless of whether the investigation of the complaint had been completed. He cited Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR at 390: "it is a purpose of the legislation that an act done in breach (of the provision) should be invalid". He submitted that "the Act is clear, once the time period has elapsed a certain action must be conducted; any other course of action is unlawful."

15. Mr Pearce submitted that there was a preliminary factual issue in that notice to the parties of acceptance of the complaint under section 67 of the Act was dated 5 January 2005, but there is no evidence of when it was received (for the purpose of notification). He submitted that unless it was sent by registered mail about which there was no evidence, notice is deemed to have taken place on the day it would be received in the ordinary course of post (Acts Interpretation Act 1931, sections 29AB and 30); that being likely to be 6 January 2005 the six month period expired on 6 July 2005. Written notification of the determination to dismiss the complaint was dated 8 July 2005. He submitted that the determination itself must have been made earlier. He referred to section 71 of the Act, which provides that the Commissioner on the completion of an investigation of a complaint is to determine that the complaint is dismissed, is to proceed to conciliation or is to proceed to an inquiry and is to notify the determination to the complainant and respondent as soon as practicable.

16. He submitted that the Tribunal must determine as a matter of fact when the determination was made, and referred to the distinction drawn in section 71 between the determination and its notification. If the determination was in fact made on or before 6 July 2005, it was within time and the provision requiring referral to the Tribunal for inquiry does not arise. Evidence of the relevant date was not before the Tribunal.

17. He submitted that if in fact the determination was not made within six months, the question is whether the Commissioner's decision to dismiss the complaint was valid, despite being in breach of the Act. He also cited Project Blue Sky v Australian Broadcasting Authority (supra), submitting that the test for determining the issue of validity is to ask "whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid". In determining that question, regard must be had to the language of the relevant provision and the scope and object of the whole statute (per McHugh, Gummow, Kirby and Hayne JJ at 390 – 391).

18. He cited R v Resource Management & Planning Appeal Tribunal; ex parte Wilson (2000) 9 Tas R 203 where Underwood J (as he then was) applied Project Blue Sky v Australian Broadcasting Authority (supra). In that case the issue was whether a decision made outside the time provided for section 16 of the Resource Management and Planning Appeal Tribunal Act 1993 failed for want of jurisdiction. The section provided for a 90-day time limit for the Tribunal to hear and determine an appeal. Underwood J held that it was inconceivable that by the enactment of the Act, Parliament intended to deprive the tribunal of jurisdiction if it did not determine an appeal within the prescribed 90-day period. The section also provided for an extension of the 90-day period.

19. Mr Pearce submitted that, as in that case, section 78(2) allows for an extension of time. He argued that there would be hardship on the parties caused by delay and wastage of time and costs if, through an oversight, an investigation was not determined within the prescribed period. The purpose of the Act is to provide protection from unlawful dismissal and the scheme of the Act is to enable complaints to be made in a timely way. Section 78(2) contributes to that purpose. But the Act also protects respondents from unmeritorious allegations by allowing the Commissioner to dismiss complaints (section 71). It would be absurd to find that Parliament intended that a properly considered direction to dismiss a complaint should be invalidated because it was made just outside the time provided.

20. He submitted that a conclusion that Parliament did not intend that the Commissioner should lose jurisdiction by acting in breach does not cause prejudice to the complainant given the right of appeal to the Tribunal under section 71.

21. Section 67 of the Act provides:

22. Factually the relevant letter was dated 5 January 2006. The section provides that within 10 days of accepting a complaint the Commissioner is to notify the respondent of that acceptance (and provide the respondent with reasons and a summary or copy of the complaint). Curiously the Act is silent as to notification of acceptance of a complaint to the complainant. The practice of the Commissioner appears to be that notification of acceptance is given to both parties simultaneously. The Tribunal accepts Mr Pearce's submission that in the absence of any factual material before the Tribunal as to the method of posting that notification, receipt of notification is deemed to be by ordinary mail (in accordance with sections 29AB and 30 of the Acts Interpretation Act) and that 6 January 2005 is thus deemed to be the date of notification (5 January 2005 being a Wednesday).

23. It is common ground that section 78(2) of the Act provides that the Commissioner is to refer a complaint [for inquiry] within six months of notification under section 67 or within any further period agreed with the complainant, regardless of whether the investigation of the complaint has been completed.

24. In this case the Tribunal accepts that notification to both the complainant and the respondent was dated 8 July 2005 and therefore was just outside the six month period. However, there was no factual evidence before the Tribunal as to when the investigation was completed. Section 71(1) provides that the Commissioner on the completion of an investigation is to determine that the complaint is dismissed (inter alia). Section 72(2) provides that the Commissioner as soon as practicable is to notify the determination to the complainant and respondent with written reasons.

25. Thus it follows that the investigation was completed before the Commissioner made her determination and that notification was made by the Commissioner thereafter. It may be that this means the determination was on or before 6 July and that 5 July was as soon as practicable. Due to the delay and time wasted in the hearing of this matter, the Tribunal is not prepared to investigate and inform itself as to the exact date of the completion of the investigation.

26. The Tribunal accepts the reasoning of Underwood J (as he then was) in R v Resource Management & Planning Appeal Tribunal; ex parte Wilson (supra) in applying Project Blue Sky. The Act is beneficial legislation and its intent is to strike a balance between timeliness in investigation of complaints and their determination and providing procedural fairness to the complainant and the respondent. It would be absurd if Parliament intended that a technical breach (if in fact a breach occurred) of section 78(2) deprives the Commissioner of jurisdiction to dismiss a complaint. Thus the Tribunal has jurisdiction in hearing the application for review made by the complainant.

HEARING

27. At the outset of the hearing, the complainant submitted that Ms Jenny Davey should be joined as a respondent. He asserted that the respondent is owned by a trust, that as a trustee with Mr Davey she should have been joined and that pursuant to section 104 of the Act she was also responsible with Mr Davey as part of an organisation whose obligation is to ensure that its members and employees are made aware of discrimination and prohibited conduct.

28. In respect of an interview on 14 April 1999, he stated that Mr Davey indicated during the interview that no graduates were employed. He asserted that Mr Davey indicated that he would consider him when he employed graduates. He argued that he could draw an inference that he passed the interview. He stated that by 1999 he was a very highly qualified accountant, but with an IQ of 138 he is different from others and tended to be excluded from society. He listed his referees. In respect of the age attribute, the complainant asserted that his conduct was appropriate for an older student at university and that his references were from older people. He asserted that he fulfilled any requirement for communication and integration skills as an enthusiastic and motivated person. He asserted that he was treated less favourably than younger people who do not appear to comply with this requirement.

29. In respect of "less favourable treatment", the complainant argued that the respondent engaged in secret recruiting by interviewing a whole group after using the student employment service at the University of Tasmania (an internal email network), thereby preventing him from applying for positions. He asserted that at the interview with the respondent in April 1999 he was told that people with experience were being recruited over graduates, but from 1999 to 2004 the firm increased in size and graduates were employed, including a female from India with lesser qualifications than him. He asserted that due to the respondent's and other accounting firms' past unlawful conduct, he was prevented from gaining work experience and now cannot meet the requirement for experience.

30. In respect of "gender", the complainant stated that in 1999 a female graduate obtained a job with the respondent. When he failed to gain a job he was provided with reasons why others had succeeded, that is, good marks, more experience and the ability to fit in and integrate, but he was not provided with such reasons.

31. In respect of "victimisation", he outlined what he asserted was a different system of recruitment, together with secret recruitment to disadvantage him. He stated from July 2002 the respondent ceased to advertise in the Examiner newspaper and began using employment recruitment agencies, Jet Personnel and Searson Buck. After his Supreme Court action, accounting firms changed their method of recruitment to use Seek Personnel and Flying Higher following the respondent's trend. He asserted that he had caused the change.

32. The complainant argued that if "less favourable treatment" is real, then the Tribunal must turn to section 16 of the Act to consider the discrimination of less favourable treatment on the basis of an attribute but that the attribute need not be the dominant factor, that is, the nexus between the discrimination and attribute may be on the basis of any of the attributes prescribed in section 16. He could choose the wrong attribute but it was open for the Tribunal to determine which attribute – it is discrimination with a nexus between any prescribed attribute. All he need prove is the presence of any prescribed attribute.

33. In respect to the respondent's letter to the Commissioner dated 16 May 2005 in which Mr Davey set out the selection criteria, that is, significant public accounting experience, outstanding academic qualifications, effective communication with motivation and confidence, and support, the complainant asserted that these particular requirements were not complied with by the respondent. He cited Kirby J in I W v The City of Perth (1997) 191 CLR 1: that a requirement is only ever lawful if it is actually required. He asserted that genuine requirements, such as knowledge of and ability to apply the law, knowledge of accounting processes and ability to analyse accounting reports and financial statements, were not stated by the respondent.

34. In respect of "irrelevant criminal record", the complainant outlined the history of allegations about his alleged paedophilia, which he said were spread around Launceston in 1996 by a Judy van Tatenhof [sic] concerning two prior convictions which he said were not sexually motivated. He referred to a restraint order taken out against him by Deloittes, another accounting firm in Launceston, saying its staff spread allegations about him. The complainant submitted that it is the conduct and circumstances related to a conviction, rather than the conviction itself which is relevant. The complainant himself then stated he has two convictions which were now "spent", for a breach of the peace and behaving in an offensive manner. He argued that as they were not sexual offences and were committed because of a compulsive disorder, they were not relevant and the conduct could be explained. He argued that the respondent should ascertain the criminal history or record of every employee and if the respondent had not, his record therefore must be irrelevant. He asserted that he had to raise the question of his irrelevant, previously imputed, criminal record because of the allegations made against him that he was a paedophile.

35. The complainant made submissions in respect of the Tribunal's power to admit new evidence when conducting a review pursuant to section 72 of the Act. He cited Abebe v Commonwealth (1999) 197 CLR 510 to support his submission that [such] "a tribunal has a duty as fact finders … if they fail to consider the facts of the matter before them they will fail to provide procedural fairness". He submitted that the withholding of evidence such as personnel records of the respondent and the resumes of applicants or the failure by the Tribunal to order the production of such evidence pursuant to section 97 of the Act, affects the legitimacy of the Commissioner's determination, and the Tribunal's decision. On this basis the complaint is not a static document and any attempt to restrict the extent of the complaint or the protection of the Act is invalid (Gubbins & Ors v Qantas & Ors (1992) 28 NSWLR, per Kirby J).

36. He argued that section 73 of the Act, which provides:

would not apply in the event that the Tribunal is satisfied the Commissioner made a correct decision in dismissing the complaint because it would not be the same matter

37. The complainant also argued that the conduct complained of is not proscribed by the operation of section 108 of the Act which provides:

38. He argued that the respondent's conduct of which he complained was indicative of a trend that commenced in 1999.

39. Mr Pearce in representing the respondent, called Mr Davey to give evidence in response to the complainant making a number of assertions that he introduced as evidence that were not before the Commissioner. Mr Davey gave evidence in respect of the structure of his firm, that is, that it is a partnership with three trusts conducted by a trustee company Anafi Pty Ltd. He is a director of the trustee company. His wife does not have an interest in the firm or the trusts.

40. In respect of the complainant's two prior convictions, Mr Davey said that before the hearing he had known of allegations of paedophilia because the complainant himself had put the allegations in submissions before the Commissioner. He denied any knowledge of the two prior convictions before the hearing – he did not know of the convictions previously, thus he denied telling anyone else about them. He was cross-examined by the complainant and repeated his denials.

41. Mr Pearce conceded in his first submission that although the hearing is in the nature of an appeal, it is in effect a rehearing with a discretion to admit fresh evidence (Dean v Department of State Development (Arts Tasmania) [2003] TASADT 10).

42. The complaint against the respondent alleges discrimination on the grounds of age, gender and irrelevant criminal record, and victimisation between 1996 and 2004. Mr Pearce submitted that the Act does not apply to discrimination or conduct that took place and concluded before 10 December 1999 (the commencement of the Act) (section 108). He conceded that prior conduct can be taken into account as an aid to explain conduct prior to the date the Act came into force, or it might be part of an incomplete instance of discrimination which became complete after the commencement of the Act.

43. In respect of "lacking substance", Mr Pearce cited von Stalheim v KPMG [2003] TASADT 12 in which Chairperson Wood noted the comments made by Sir Ronald Wilson in Assal v DHHS [1992] EOC 92-409 at 48,900:

44. In turning to s14 of the Act he submitted that the complainant must be able to point to some material that the Commissioner and the Tribunal could determine showed that he has been treated less favourably in the area of employment (section 22(1) of the Act), that is, he was not given a job on the ground that he was a male, or that he was a person of a certain age or that he had an irrelevant conviction. He conceded that the complainant was correct to submit that the Tribunal is not bound to restrict itself to the boxes ticked in the complaint, but during the hearing he did not submit there was another attribute. The Commissioner was correct in determining there was no discrimination or prohibited conduct on the basis of "age" or "gender".

45. In respect of "irrelevant criminal conviction", Mr. Davey was not aware of any convictions the complainant had prior to the hearing. He was previously aware of rumours or allegations of paedophilia but this was because the complainant had brought those before the Commissioner during the investigation. There was no evidence that hiring or not hiring the complainant was related to those allegations.

46. He submitted that the Commissioner was correct in determining that incidents referred to in the complaint were not related to the respondent not employing the complainant. Those were (a) laughing in the street; (b) previous complaints he had made to the Commissioner; and (c) a plan of the respondent and other accounting firms to use different recruitment methods. In respect of (a), even if an unidentified person laughed at the complainant, there is no legislative warrant to stop them and there is no nexus to the respondent. In respect of (b), even if the respondent knew that there were previous complaints, there is no evidence that it was a factor taken into account in not giving the complainant a job. In respect of (c), the respondent had in fact changed its method of recruitment, but this had no connection with the complainant. There was no evidence of victimisation nor that it was a detriment to the complainant. The complainant's assertions led to the conclusion that he wanted the Tribunal to determine that every time an employee was hired from 1999 to the date of the complaint, an act of discrimination may have taken place. According to the complainant, his qualifications and motivation, in effect, determine that he should gain a position, and if not, that must be on the basis of gender or age or irrelevant criminal record. An employer is entitled to employ whom they want on the basis of factors which are not capable of precise judgement, which does not necessarily relate to any characteristic. But section 14 of the Act provides that less favourable treatment must be because of the attribute.

47. Mr Davey gave evidence in respect of the respondent's methods of recruitment, stating that it had used recruitment agencies to recruit secretaries and that he had recruited for professionals through, for example, Seek on the Internet in the 12 months before the hearing. He did not recall using any recruitment agency in the last 12 months. He agreed that he had spoken to the University about high value candidates and the respondent's scholarship for a second-year student, the winner of which could elect to have work experience with the respondent. Mr Davey denied discussing the respondent's recruitment procedures with other accounting firms. In respect of the respondent's employees in October 2004 (the date of the relevant advertisement) Mr Davey stated that from 15 employees in 2002 the firm had grown to 25 or 26 by September 2004. He stated that some employees had come from other firms, some had come in as casual enquiries from the street, one was a scholarship winner who had taken up work experience, one was an Indian accountant with a visa, as far as he was aware.

48. He stated that the respondent's recruitment practices were not discussed with other accounting firms. He discussed recruitment with his senior staff and sets up interview panels within the firm. He stated that he could not recall other staff members discussing the complainant. He himself had interviewed the complainant in 1999 and considered he had failed that interview. He considers every person who applies for a position and an interview and replies to correspondence. He had done so in the complainant's case. Mr Pearce submitted finally that the complainant's assertions in relation to discrimination were not based on fact. His allegations or victimisation were a figment of his imagination. To proceed to an inquiry would be a waste of time and resources.

49. The complainant again asserted he had not failed the interview in 1999 and again alleged the respondent's change in recruitment was a detriment to him. He again asserted that every time he was rejected it was on the basis of prescribed attributes as a factor. He again asserted that the respondent's conduct between 1999 and 2004 was a trend of discriminatory conduct which did not conclude before the commencement of the Act.

50. I have dealt with the question of jurisdiction of the Tribunal to proceed to hear the complainant's application to seek a review. I now turn to the complainant's submission that I failed to order the respondent to produce payroll records and resumes of persons who had gained employment with the respondent. I did so on the basis that on balance the cost and time to the respondent to do so between 1999 and 2004 far outweighed the relevance of such evidence. On referral to the Tribunal, the documentation before the Commissioner was made available to me. I refer to a letter dated 16 October 2002 from Mr Davey to the complainant (document 29) in which he outlined the letters and emails from the complainant – nine between March 2001 and October 2002 – in addition to letters of application for accounting positions from 10 February 1997 to 4 August 2001. In the letter he reiterated that he had already supplied the information the complainant had requested in his correspondence, together with the reasons why he was not employed by Mr Davey in previous correspondence. The complainant sought, and seeks, to cast the widest possible net in an attempt to find a nexus between alleged discrimination and the attributes detailed in his complaint.

51. In respect of my order to grant leave for legal representation, I was not, and am not, persuaded that the complainant is at a disadvantage. He has pursued the complaint and review process vigorously and has conducted considerable research. I allowed a day for the hearing. The respondent has been put to considerable cost. I accept that Davey is an accounting firm with greater financial resources than the complainant, but I also accept that if Davey chooses to obtain legal representation in an area of the law not within accounting expertise to meet the complainant’s submissions, it is fair for it to do so.

52. The Tribunal's role is limited to consideration of whether or not the Commissioner's determination to dismiss the complaint was correct. The Tribunal has a discretion to admit further evidence for consideration in the review process. Following the complainant's evidence during the hearing that he had two prior convictions, I allowed Mr Davey to give sworn evidence (and cross-examination by the complainant) that he had no prior knowledge of these two convictions before the hearing. I accept Mr Davey as an honest witness.

53. I reject the complainant's assertion that Mrs Davey should have been joined as a respondent or have been ordered to appear. I accept that Mr Davey is the principal of Davey and that the complainant has dealt with him through the complaint process (and indeed before it – see document 29).

54. I do not accept that the Tribunal is obliged to take into account the interview the complainant had with Davey on 14 April 1999. It was well before the commencement of the Act in December 1999 and over five years before the position advertised in October 2004, the subject of the complaint. Consequently I need not consider whether the complainant "passed" or "failed" the interview. I also reject the complainant's assertion that the respondent's alleged course of conduct constituted conduct which the Tribunal would consider as "continuing conduct" so as to prevent the operation of section 108 of the Act.

55. In respect of "age" and "gender", I accept the Commissioner's decision was correct. She sought further information from the respondent in relation to the age and gender of the applicants. All the applicants were male and their ages were 22, 31 and 55 (with one applicant not disclosing age). The successful applicant was 22 years of age with three years' experience in public accounting, then employed with an accounting firm and in his fourth year of university.

56. The Commissioner determined that there was no, or insufficient, evidence to infer the possibility of gender discrimination, as all applicants were male. Further, the age of the applicants was broad and the successful applicant, although the youngest, had significant experience. She was of the view that the recruitment basis was merit based.

57. In respect of "irrelevant criminal record", in order to establish discrimination on the ground of that attribute, it is a requirement that a nexus be established between less favourable treatment alleged and the attribute (sections 14 and 16 of the Act). It is common ground that Mr Davey was aware of a rumour that the complainant was a paedophile, as it had been brought to his attention during the investigation by the Commissioner. As the Commissioner noted, the complainant alerted Mr Davey to the rumours and made it clear that he denied them. I agree with the Commissioner that "there is no, or insufficient material to establish a possible nexus between the less favourable treatment and the attribute of an irrelevant criminal record, or an imputed irrelevant criminal record" (as per section 14(2)).

58. In relation to the prior convictions about which the complainant gave evidence during the hearing, I accept that Mr Davey had no prior knowledge of them until the hearing. Thus there was no evidence that hiring or not hiring the complainant in October 2004 was related to those convictions and there is no nexus between alleged less favourable treatment and the attribute of "irrelevant criminal record".

59. The Tribunal considered at length the complainant's assertions and submissions in relation to "less favourable treatment". It is common ground that the respondent adopted different methods of recruitment over the years to engage accountants. I do not accept that there is any nexus between such methods and the complainant. He suggested there was discussion about him with other firms. Mr Davey denied this.

60. Methods of recruitment change with new technology and updated work practices, such as using the Internet or recruitment agencies for specific personnel. The Tribunal rejects the conclusion that every time the respondent hired an employee and not him that an act of discrimination may have taken place on the basis of less favourable treatment because of a prescribed attribute or imputed prescribed attribute.

61. The Commissioner was correct in determining that incidents such as laughing in the street, different recruitment methods and previous complaints the complainant had made to the Commissioner were not related to the respondent not employing him. In respect of victimisation (section 18 of the Act), I reject the complainant's reference to his application of review of a rejection of a previous complaint by the Commissioner before Member Brett (ADT 71/2003). Member Brett upheld the complainant's application – but for further investigation by the Commissioner pursuant to section 72(2) of the Act – on the question of victimisation. The Commissioner had rejected the complaint on the ground that it lacked substance. Member Brett considered the question of detriment. He said, at par16 "… if it can be established that the decision not to advertise publicly has been made because of prior complaints made under the Act, as opposed to a legislative reason for not doing so, then it seems to be that such action would be capable of constituting a breach of the Act within the meaning of section 18".

62. In this case, the Commissioner has investigated the question of victimisation and found there was no evidence connecting alleged laughter by staff of the respondent, previous complaints to the Commissioner that the complainant confirmed in correspondence to Mr Davey (dated 18 March 2001, 3 April 2002 and 23 September 2002) and advertising by accounting firms via the internal student employment service with any alleged detriment.

63. Thus the Tribunal finds that the Commissioner was correct in determining that the complainant was unable to establish victimisation within the meaning of section 18 of the Act.

64. The Tribunal is satisfied that the Commissioner's direction dismissing the complaint on the basis that it lacks substance under section 64(1)(a) of the Act was correct. The complaint therefore lapses.