At times Geoff can be a little overpowering but he has been made aware of this and has consciously made the effort to rectify his demeanour.

1. Mr Lowth also noted that the Applicant competently covered the position of Shift Supervisor when the occasional opportunities arose; and that he would arrange for the Applicant to cover the Shift Supervisor position more frequently.
2. In 2007, the Applicant became a Shift Representative member of the Australian Services Union (the 'ASU') enterprise bargaining team. The Applicant resigned his membership of the ASU in 2012 and joined the Construction Forestry Mining and Energy Union (the 'CFMEU').[12]
3. The Applicant's Shift Supervisor, Nick Taylor, conducted a salary review in January 2007, in which he described the Applicant's skills and performance in very positive terms. However, Mr Taylor also commented:[13]

My vision of Geoff's leadership is one of a degree of authoritarianism with a touch of diplomacy. He is extremely good at leading the team through tasks associated with operating the units and usually states the way he would like things done. While this appears to work well for him with no rebuttal from his peers, I would like to see an increased mentoring approach taken when he is in the leadership role...

My only criticism of Geoff relates to his interactive skills with other team members. Here, his advice is not always well received. I believe this relates to Geoff's excellent abilities to come up with solutions, but in doing so, he does not always listen to alternative advice provided by those he is interacting with.

Although this is a criticism of Geoff, it is a minor issue when assessing the overall package Geoff provides.

1. The Applicant was offered more senior roles, including the position of Asset Manager at Hazelwood Power Station;[14] and the Position of Production Engineer at Loy Yang B.[15] The Applicant was also selected to participate in a training program designed to accelerate the development and retention of talented employees, and to extend their careers into supervisory roles.
2. The Applicant relies upon consistently positive performance reviews, including comments to the effect that he had successfully performed the role of Shift Supervisor in a relief capacity.
3. The Applicant relies upon his evidence and materials filed, demonstrating his technical and leadership skills, to support the conclusion that he was an outstanding candidate for the positions for which he applied.
4. The Applicant invited the Tribunal to draw the inference that the Applicant's industrial and/or employment activity was a substantial reason for him being unsuccessful for each of the six positions. In short, the Applicant submits that but for these attributes, the Applicant would have been the successful candidate in each case.

1. Respondent's Counsel submits that the Tribunal ought exercise its discretion under s 76 of the Victorian Civil and Administrative Tribunal Act 1998 (the 'VCAT Act') to summarily strike out the proceeding on the basis of inordinate delay. Item 18 of Schedule 1 to the VCAT Act provides as follows:

The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

1. Counsel relied upon the following circumstances.
2. On 9 August 2012, the Applicant sent an email to Des Dalton, Maintenance Manager, in the following terms, following his unsuccessful application for the 2012 Shift Supervisor position:

Without prejudice, I dispute the selection of the two candidates (based on merit) who were recently appointed to the Shift Supervisor Fixed-Term positions. Following on from a series of such selections, where I have been oddly unsuccessful despite my strong credentials for the positions, I now believe that I am being both deliberately and unfairly over-looked for promotion. As such, I am currently seeking advice on the best course of action available to me in this matter.[16] (emphasis added).

1. Under cross-examination, the Applicant gave evidence about this email as follows:

As this email indicates, this is the point in time where you decide to get advice on taking this matter further?---Correct.

And this is the point in time, effectively, which - where you've resolved to potentially bring litigation in relation to the matter?---Correct.

Now, you - in the first sentence - dispute the outcome, namely, the outcome of the sixth selection process?---Yes.

And then you state the essential rationale or why you believe that you potentially have been discriminated against over the years?---Correct. Yes.

That rationale is - is that you consider yourself to have been oddly unsuccessful in relation to a series of selections over the years?---Correct.

And the outcome of the sixth selection process was the last link in that series which prompted you to believe, at that point in time, that you were being deliberately unfairly overlooked for promotion, correct?---Correct."[17] (emphasis added).

1. In further questioning, the Applicant refused to accept that this was the point in time that he formed the belief that he had been unlawfully discriminated against, although he had used the words 'I now believe' in his 9 August 2012 email, and he had previously not made any allegation of unlawful discrimination in respect of any of the first, second, third or fifth promotions. In his evidence in reply, the Applicant said:

...in the early stages, I was prepared to give the company the benefit of the doubt because - you know, I realise selection processes are competitive, but by the sixth process - it was so blatant that I felt I needed to take some sort of action to stop it from continuing.[18]

1. As to the 2011 Shift Supervisor Position, the Applicant sent an email to Stephen Rieniets (his brother-in-law and then Plant Manager), raising concerns about the panel process.[19] In that email, he expressed a view that the panel process was too subjective; was not based on merit; and he had been discriminated against (without specifying the basis of that discrimination). In his concluding observations, before asking Mr Rieniets to consider taking action to fix the panel process, he stated:

I realize that you vet the process before approving the selected candidate, but you really only have the interview panel's recorded data to go by unless you make another subjective assessment on top of that.[20]

1. Under cross-examination, the Applicant agreed that in asking Mr Rieniets to fix the panel process he was not accusing Mr Rieniets of harbouring any unlawful bias against him in selecting the successful candidate.[21]
2. Furthermore, in subsequent discussions with Mr Rieniets about the harassment investigation (in which Mr Thomas had been involved), the Applicant acknowledged that Mr Rieniets advised him that he could submit a grievance, for the company to investigate, if he strongly believed that he had been discriminated against, but he was prepared to give Mr Thomas the benefit of the doubt at that stage.[22]
3. Accordingly, apart from the 9 August 2012 email to Mr Dalton, and the 11 May 2011 email to Mr Rieniets and the subsequent meeting they had, there is no evidence that the Applicant made any formal or informal allegation that he had been unlawfully discriminated against in a promotion selection.
4. Clearly all of the alleged contraventions occurred more than 12 months prior to the Applicant's formal claim. However, in my view, this is not an appropriate case in which to exercise the Tribunal's discretion. While the delay and failure of the Applicant to make relevant complaints in a timely manner is a relevant circumstance to be taken into account in the totality of the evidence, the Applicant now seeks to rely upon alleged contraventions under the 2010 Act,[23] and in support, has prepared a detailed witness statement and supporting documentation, which traverses his industrial and employment activity throughout the relevant period. I accept that the Applicant does not make these claims either lightly or frivolously and they deserve to be considered on their merits.

1. The Tribunal is not bound by the rules of evidence[24] and may inform itself on any matter as it sees fit,[25] consistent with acting fairly and according to the substantial merits of the case.[26] In highly contested and potentially complex matters such as the present case, it is more common to observe the rules of evidence.[27]
2. Under subs 13(a) of the 1995 Act an employer must not discriminate against a person in determining who should be offered employment. The parallel provision appears at subs 16(a) of the 2010 Act.
3. Both Acts (subs 14(a) and 18(a) respectively) also provide that an employer must not discriminate against an employee by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment.
4. Under the 1995 Act, 'direct discrimination' was defined in s 8 as follows:

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

1. The 2010 Act defines direct discrimination differently. Section 8 now provides as follows:

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

1. The 2010 Act removes the requirement for an applicant to demonstrate that their treatment was less favourable than would have been afforded to someone without the relevant attribute, in this case, 'industrial activity' or 'employment activity'.
2. Applicant's Counsel contended that the Respondent had provided little detail about other candidates for the subject positions.[28] Accordingly, the relevant comparator for the Tribunal to consider is someone without the relevant attributes claimed by the Applicant (as to industrial activity or employment activity) who otherwise presented with equivalent qualifications, skills and experience to the Applicant. In my view, the only relevant comparison is between the Applicant, with the relevant attribute/s and the other candidates who applied for the subject positions, who did not also bear the relevant attribute/s. The question then becomes, for the positions during the period of the 1995 Act, was the Applicant treated less favourably than other candidates, without the relevant attribute; and in the case of all positions, including the position after the commencement of the 2010 Act, was the Applicant treated unfavourably because of the relevant attribute?

1. The Applicant bears the onus of proving, on the balance of probabilities, that he was, in each case alleged, the victim of direct discrimination on the grounds alleged.[29] In particular, that one or other of the claimed attributes was a substantial reason[30] why the Applicant was unsuccessful in each application for promotion.
2. It is appropriate to briefly consider the nature of the burden of proof.
3. In Gama v Qantas Airways Limited[31] Federal Magistrate Raphael observed that the test to be applied to evidence of racial discrimination from which an inference to be drawn is:

... the civil standard of proof on the balance of probabilities. There is no third standard. However, in civil proceedings where allegations of fraud or serious impropriety are made, it has been said that courts should proceed in accordance with the observations of Dixon J in Briginshaw. As per Hall J in Duhbihur v Transport Appeal Board [2005] NSWSC 811.

1. A parallel can be drawn with disciplinary proceedings in the Tribunal where the relevant standard is applied having regard to the principles enunciated in Briginshaw v Briginshaw.[32] After considering the evidence applicable to the relevant disciplinary charge, the Tribunal will be satisfied, on the balance of probabilities, if the allegation is made out to the reasonable satisfaction of the Tribunal. Dixon J expanded upon this concept in the following often quoted passage:

The truth is that, when the law requires proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained independently of the nature of the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal in such matters, 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect influences.[33]

1. In Con Karakatsanis and Tony Karakatsanis v Racing Victoria Limited[34] the Court of Appeal observed that while the principles embodied in the Briginshaw test are now reflected in s 140 of the Evidence Act 2008, that Act only applies to proceedings in a Victorian court[35] which is defined to include persons or bodies required to apply the laws of evidence. The VCAT Act makes plain that the Tribunal is not bound by the rules of evidence. Accordingly:

...provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law ... it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue.[36]

1. In Department of Health v Arumugam[37] racial discrimination was expressly recognised as a serious matter, not to be lightly inferred. Arumugam concerned allegations of racial discrimination in the employment of two senior medical staff, which was considered by the court to be of sufficient gravity to warrant the application of the Briginshaw test, although noting that the absence of explanation from an employer for the apparently discriminatory conduct does not constitute sufficient basis for an inference of racial discrimination to be drawn.[38]
2. In Sharma[39] the issue was again a matter of racial discrimination in employment. Although the complainant, a solicitor, was ultimately unsuccessful in his race discrimination claim, the Court had to consider carefully whether a notation by a panel member betrayed a disposition against the complainant based on his race. The note questioned whether the complainant could be the 'public face' of the organisation. The Court accepted sworn evidence of the respondent explaining what was intended by this reference, which was not connected in any way to race.[40] In finding that no discrimination had been proved, the Court discussed the standard the applicant must prove:

[40] It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953 at 958. There may be cases in which the motivation is subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realized it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425 at 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319 at 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.

[41] In a case depending on circumstantial evidence, it is well established that the trier of fact must consider 'the weight which is to be given to the united force of all the circumstances together'. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v R (No 2) [1984] HCA 7; (1983-1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.

1. It does not follow that the Briginshaw test will apply in all matters of discrimination. In Victoria v Macedonian Teachers Assn of Victoria Inc and Anor[41] the Court declined to apply it to a decision by the State of Victoria to impose a certain name to describe Macedonian citizens, which the court concluded was not discriminatory:

The Briginshaw test only becomes relevant when, because of the seriousness of the allegations being made in relation to an issue to be determined in a particular case, a decision-maker must proceed with caution in arriving at a state of satisfaction.

1. I am satisfied that the allegations raised in this case are sufficiently serious to warrant the application of the Briginshaw test. The Tribunal is being asked to find that the interview panel in the case of each job application, consciously exercised bias against the Applicant on account of either or both of his claimed attributes. Specifically, six differently constituted interview panels, comprising 11 senior personnel in aggregate, are alleged to have conspired together in their respective panels to eliminate the Applicant from contention. Clearly such allegations, if proven, reflect seriously upon the staff members concerned and amount to serious misconduct and breach of their employment duties.
2. Discrimination may be established by an applicant, without clear words or conduct, that an employer was motivated by one of the attributes identified in the Act. An inference from other facts may be drawn.[42] The question for a tribunal determining such a claim is whether the alleged discrimination is the most probable explanation for the employer's conduct.[43]
3. In this case, the Tribunal is being called upon to draw an inference that one or both of the alleged attributes were a substantial reason for the interviewing panel discriminating against the Applicant.
4. In G v H[44] Brennan and McHugh JJ defined an inference in the context of judicial decision-making as:

a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies ... But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle.

1. The prerequisite factual basis for the drawing of inferences has been variously described in a long line of authorities.[45] In the High Court case Jones v Dunkel[46] Kitto J states:

One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.

1. The care which must be taken before drawing inferences is usefully summarised in the expression, finding 'a foundation of objective facts'.[47]

... the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view ... A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.

1. In summary, before the Tribunal can draw an inference in this case, that the Applicant was treated less favourably than other candidates or unfavourably, as the case may be, in each application for promotion, it must be comfortably satisfied, on the balance of probabilities, that a claimed attribute was a substantial reason for the Applicant not being the successful candidate.
2. I acknowledge the very comprehensive written submissions made on behalf of each party and, where appropriate, I have incorporated parts of those written submissions into these reasons.

1. The Applicant joined the ASU at the commencement of his employment and remained a member, while employed by the Respondent, until February 2012[48] when he joined the CFMEU. The ASU and the CFMEU both meet the definition of 'industrial organisation' as set out in s 4 of both the 1995 and 2010 Acts.
2. The Applicant's involvement in the activities of the ASU meant that he was engaged in 'industrial activity'[49] informally at least, from about 2007 onwards.
3. In June 2007, the Applicant became an ASU Shift Representative for the entire shift operations group. In that role, the Applicant was involved in enterprise bargaining, but he was also involved in other activities, including the overtime equalisation issue.[50]
4. During the course of the enterprise bargaining negotiations, along with other ASU representatives, the Applicant attended meetings with management representatives and advocated the case on behalf of employees.[51]
5. Enterprise bargaining negotiations throughout 2007 were characterised by a significant change in the terms and conditions of employment for the Respondent's employees. In those negotiations, ordinary hours were reduced from 38 per week to 36 per week. Negotiations continued for a period of about a year, with the Enterprise Bargaining Agreement ('EBA') being finalised in early 2008.
6. However, following introduction of the EBA, during 2008 there was an ongoing debate between management and the ASU, about whether the 36-hour week had led to a decrease in productivity.[52] The Applicant was involved in that process.[53]
7. The Applicant was not formally appointed as an ASU delegate until 30 October 2008.[54] Prior to this appointment, in his statement and evidence, the Applicant made very general statements about his involvement in matters being negotiated between the Respondent and the ASU. In truth, his involvement appeared to be more in the nature of one of a number of representatives attending meetings and providing support, on the periphery, rather than as a leading spokesperson for the ASU.
8. Nevertheless, it is not contested that the Applicant's conduct set out above, and more particularly after his appointment as a union delegate, fell within the meaning of the term 'industrial activity' as defined under both Acts. The Applicant's activity met the definitions in paras (d) and (f) of the definition in that he participated in lawful activity organised or promoted by an industrial organisation (namely the ASU); or represented or advanced the views, claims or interests of members of an industrial organisation.
9. Accordingly, it is also not contested that the Applicant was engaged in various kinds of 'industrial activity' during periods of his employment when he was an applicant for various employment positions with the Respondent.

1. In relation to one or more positions for which the Applicant applied, he also relies upon a number of incidents which he alleges fall within the definition of 'employment activity'[55] on the basis that either he was:
   • (a) making a reasonable request to the Respondent, orally or in writing, for information regarding his employment entitlements; or
   • (b) communicating to the Respondent, orally or in writing, his concern that he has not, is not being or will not be, given some or all of his employment entitlements.
2. These incidents are set out under the relevant position below.

1. For ease of reference, Attachment 1 summarises relevant dates and personnel relating to all six Positions which are the subject of this proceeding.

1st Alleged Contravention - Power Station Production Manager Role - November 2007

1. In November 2007, the Respondent advertised for the position of Production Manager (2007 Production Manager Position). This was the most senior production management role on the Respondent's site at the time. The Applicant was one of the applicants for the position.[56] The interview panel was selected by Alistair Tompkin, the Plant Manager at the time, and comprised Des Dalton, the Maintenance Manager, John Smart, the Compliance Manager and Paul Burns, the Community and Employee Relations Manager.
2. After the panel interviewed the competing candidates, the panel recommended that the position be offered to Mr Thomas. Mr Tompkin, accepted that recommendation and appointed Mr Thomas to the role, ahead of the Applicant and other candidates.
3. The Applicant alleges that by being overlooked for this position, he was discriminated against because of his industrial activity; namely his involvement as an ASU Shift Representative in enterprise bargaining negotiations.[57] In particular, the Applicant refers to the following circumstances:
   • (a) Mr Burns was the lead negotiator for the employer during the 2007 enterprise agreement negotiations;
   • (b) Mr Burns recalled the Applicant having been involved in those negotiations, in an informal capacity, but not as an ASU delegate;[58]
   • (c) Those negotiations continued for a substantial period, and saw the union win a significant concession from the employer, that is, a 36 hour week;
   • (d) Notwithstanding financial competence having been a key requirement of the role, the Applicant was not asked any financial competence questions, which would have allowed him to draw upon his recently completed Bachelor of Business Studies;[59] and
   • (e) Mr Dalton persistently interrupted the Applicant's responses.
4. In denying any discrimination as alleged, Respondent's Counsel relied upon the following evidence and submissions.
5. First, the Applicant has effectively made this complaint as an afterthought, having first identified discrimination... 'since Mr Dyke first became an ASU representative on 30 October 2008'.[60] The Applicant explained the delay under cross-examination as follows:

I go back to my claim that there's a pattern of behaviour. At the time I observed what I considered to be unfair interviewing where I was continually interrupted in providing my answers and I linked that later with the pattern of behaviour that was continuing.[61]

1. In my view, the Applicant's alleged industrial activity, in the context of this first position, is vague and non-specific. It has not been demonstrated how any such activity, whether formal or informal, affected or was likely to affect any of the panel members. As indicated in Mr Burns statement, he was not aware that the Applicant was an accredited ASU official during 2007 and he took part in the EBA negotiations in an informal capacity only.
2. Mr Burns also indicates that prior to 1992 he had been a full-time ASU official and was one of the lead negotiators in the first enterprise agreement negotiations at the Loy Yang B power station. Mr Burns also documents his role in HR matters for the Respondent and the pro-union stance taken by the company.
3. In my view, there is no credible evidence given by the Applicant which could in any way raise a concern as to any basis for bias on the part of Mr Burns toward the Applicant.
4. Secondly, the evidence establishes that:
   • (a) the ultimate decision-maker was Alistair Tompkin,[62] a person with whom the Applicant had very little interaction;[63]
   • (b) the Applicant conceded he had not had any specific interactions with any of the panel members or Mr Tompkin that would support the conclusion that he was discriminated against because of his role assisting the ASU in enterprise bargaining;[64]
   • (c) Mr Tompkin denied that the Applicant's union involvement was a consideration for him;[65]
   • (d) the 2007 Production Manager Position was a significant leap above the Applicant's current role as Operator Technician;[66] and
   • (e) Mr Thomas was the superior candidate in all respects.[67]
5. Thirdly, certain matters raised in the Applicant's Points of Claim and affidavit have no substance. In particular, the Applicant refers to:
   • (a) an overtime equalisation issue in October 2007 raised with Nick Taylor, the then shift supervisor.[68] However, in cross-examination, the Applicant conceded that there was nothing in the exchange of emails concerning this issue that suggested Mr Taylor was uncomfortable or awkward about this. In fact, Mr Taylor's email response to the Applicant states: 'I totally agree with what you are saying';[69]
   • (b) negotiations over reduction of ordinary hours and his assertions concerning the alleged productivity dip. However, in cross-examination the Applicant conceded that this activity occurred in 2008, namely after the recruitment for the 2007 Production Manager Position;[70] and
   • (c) coming up with a definition to clarify the term 'degree qualification'. However, in cross-examination the Applicant conceded that this matter also occurred in 2008, namely after the recruitment for the 2007 Production Manager Position.[71]
6. I am satisfied that there is no substance in any of these alleged industrial activities.
7. Fourthly, the Applicant relies upon Mr Dalton having allegedly unfairly questioned him in the panel interview, interrupting his answers. He gives no content or context to the type of interruptions. In his evidence, Mr Dalton did not deny that he may have asked numerous questions in the interview. However, he explained how frequent questioning has a role in event-based interviewing to direct the candidate to relate things that disclose behavioural competencies the panel wants to hear about.[72]
8. In his statement, Mr Burns comments upon this allegation as follows:

I was present at the interview in question. Des did ask questions of Geoff (as he did of the other candidates), but I did not consider that Des was constantly interrupting Geoff. Further, I deny that Geoff was being sabotaged or that the selection process was predetermined. In the interview process, identical documentation was used for each candidate and the process was the same for all candidates. We applied the same interview format and process for all candidates to ensure that the appointment was based on merit...[73]

1. Mr Dalton also confirmed that he asked the Applicant all the relevant questions which he also asked the other candidates.[74] Furthermore, in relation to the Applicant's allegation that he was not asked questions about his degree in accounting, which would have satisfied financial competency, Mr Dalton confirmed that he was aware of the Applicant's qualifications and the Applicant would have had the opportunity, in answering the questions, to bring forward that as evidence.[75]
2. I am satisfied that Mr Dalton and Mr Burns have both provided a reasonable and credible account of the manner in which Mr Dalton conducted his questioning of the Applicant, which did not indicate that the Applicant was being unfairly targeted or treated differently from other candidates. There is no reasonable basis upon which an allegation of bias has been proven against Mr Dalton.
3. Finally, the statement of Mr Tompkin provides very compelling evidence as to why the Applicant did not have adequate skills or experience for the very senior position of Production Manager. Mr Tompkin personally selected the interview panel, having regard to their seniority and relevant experience; and the fact that the successful candidate would report directly to Mr Tompkin. In his statement he details the selection criteria for the role and the recruitment process undertaken. He further notes that:[76]

Roles like the Production Manager role did not come up very often. Selecting the right person was critical...

It should be understood that Geoff's role at Loy Yang B was hands on Operations and Minor Maintenance which had functional relationships with others but no organisational responsibility for others. The Shift Manager carried full responsibility for all performance issues, performance assessment, personal development, deployment and all other people management requirements. Geoff would from time to time give functional instructions to others but had given little indication of his ability as an effective manager of people.

None of the Shift Managers at the time applied for the role. From conversations I had with them they considered the role too demanding for them...

It would be very unusual, in fact unheard of to appoint a person from the production ranks to the Production Manager role without demonstrating a high level of ability and confidence as an appointed Shift Manager. Geoff and many others have relieved as a Shift Manager and whilst this involves a good operational knowledge it does not to any great degree demonstrate people management skills. The relief does not take on any responsibility for the long-term development, personal assessment and the many improvement objectives given to individual Shift Managers. It would be a huge leap of faith and at worst even foolhardy to appoint a person without a proven record at this level of responsibility.

The successful applicant, Lance Thomas, had a great deal of experience in different businesses outside the power industry... This experience gave him the necessary people management skills along with the knowledge and tools to deliver the business outcomes required for Loy Yang B going forward...

I saw Geoff as a reliable, steady and competent worker. However unlike Mr Thomas, Geoff did not have the proven requisite skills or experience to drive the business forward with improved business practices, good financial capability, good plant understanding and strong people management.

Lance Thomas was in my view clearly the best candidate to that role.

1. Mr Tompkin also notes that he was not aware that the Applicant held any formal position in the union but was aware that he was assisting Ross Brooker with negotiations for the 2007 EBA. Mr Tompkin did not consider union involvement was a disadvantage to the Applicant and referred to having previously appointed a union representative to a supervisor role in other employment; and also referred to the example of Ross Brooker, who succeeded to a management role from a union background.[77]
2. I am satisfied that the Applicant has adduced no evidence of the any nexus between the decision of Mr Tompkin to appoint the successful candidate, Mr Thomas, and any prior assistance which the Applicant might have given to the ASU in enterprise bargaining or any other activity which could be characterised as 'industrial activity'.
3. In summary, I am satisfied that there is no evidence that the assessment process and recommendations of the interview panel or the final decision taken by Mr Tompkin was in any way influenced by a relevant attribute of the Applicant. I am further satisfied that there is no credible evidence upon which the Tribunal could be comfortably satisfied that any such attribute was a substantial reason why the Applicant was unsuccessful in his application for the 2007 Production Manager Position.
4. The Applicant's claim of unlawful discrimination in connection with the recruitment for the 2007 Production Manager Position must therefore fail.

Further employment and industrial activity from 30 October 2008

1. On 30 October 2008, the ASU advised the Respondent that the Applicant had been elected to the position of ASU Site Delegate for Loy Yang B power station.[78] For the purpose of the Applicant's claim in respect of the 2009 Shift Supervisor positions, in addition to previous industrial activity, the Applicant referred to two areas of industrial activity and one incident of employment activity, which he alleges formed the basis of the subsequent discrimination against him.
2. First, following the EBA, the change to the 36-hour week was a source of continuing negotiation between the ASU and management. The Applicant asserted that he was involved in that dispute, ultimately producing a detailed analysis which demonstrated that the allegation of a decrease in productivity was incorrect.[79]
3. Secondly, in November 2008, the Applicant was involved in a meeting with management representatives of the Respondent in relation to shift roster working arrangements.[80] The issue concerned payment for meetings and project work outside of rostered hours. The meeting involved the Applicant, as well as ASU organiser Glenn Asling, Mr Lance Thomas and Mr Paul Burns.
4. The Applicant said that when he opposed the position being advanced by the company, Mr Thomas appeared to lose his temper, became red in the face and shouted at him, with words to the effect of:

What is this about ... I thought we were here to implement the proposal not to discuss it.[81]

1. The Applicant then described Mr Thomas exiting the room and Mr Burns following to 'calm him down'.[82] Mr Burns does not address the incident in his statement.
2. In my view, Mr Thomas gives quite a different background and outcome to the meeting. In his statement he says:[83]

I did raise my voice and objected to the way that Geoff was trying to direct the meeting. However, my frustration arose not merely from Geoff opposing the proposed changes. Prior to this meeting, I had had discussions with all the shift crews, including Geoff and believe I had addressed all of the concerns they had raised, which were limited in number. I became frustrated because Geoff was opposing the proposed arrangements from what I saw was his personal perspective, and not as a representative of the shift crews' views. I left the room to gather my thoughts and later came back to apologise. I wanted to support Paul Burns and to allow the meeting to continue as I had been the one who had the discussions with the shift crews and I needed to be there to progress the outcome.

When I returned to the meeting, I apologised to Geoff and we got on with the meeting...

The outcome of the issue after this meeting was that we did introduce [the Respondent's] proposed change to shift roster working arrangements.

1. Mr Thomas acknowledged that he lost his temper momentarily in the November 2008 meeting in response to a position being adopted by the Applicant and under cross-examination he acknowledged that the incident did cause him embarrassment.[84] However, he also clarified that he believed that the Applicant was advancing a personal position which was not consistent with matters already resolved with employees. This belief would also appear to have been borne out by the ultimate outcome, to which Mr Thomas refers in his statement. I accept Respondent Counsel's submission that there is no direct evidence about what the ASU's position was in relation to the overtime allocation issue so it is not at all clear how the Applicant's resistance to Mr Thomas' proposal fell within (d) or (f) of the definition of 'industrial activity'.
2. It is also noteworthy that the Applicant acknowledged under cross-examination that Mr Thomas did not personally attack him; the Applicant accepted that Mr Thomas believed the change proposal had already been agreed; and Mr Burns played a constructive role in the circumstances. The Applicant also conceded that in meetings of that nature, disagreements can arise that can lead to frustration and tempers fraying; and that at the time everyone moved on, including himself.[85]
3. Mr Thomas denied that this incident had anything to do with his decision making, either in this panel or subsequent panels.[86]
4. In my view, this incident was of no great moment at the time and, in any event, was quickly and appropriately resolved. I accept that Mr Thomas was a credible witness and there is no other evidence to suggest that Mr Thomas harboured any resentment toward the Applicant.
5. Thirdly, the day after the above incident, Mr Thomas approached the Applicant and advised him of a harassment allegation against him and that Mr Thomas was to conduct the investigation into the allegation.[87]
6. Mr Thomas could not recall whether he subsequently made Mr Rieniets aware of the above incident or anyone else on the investigating panel. However, he saw no need to disqualify himself from investigating the harassment allegation. Under cross-examination he said:

I consider myself a professional manager and I wouldn't let those biases come in, and there are other people on the panel.[88]

1. The allegation was ultimately found not to have been substantiated.[89] However, the investigation panel made the following additional finding:[90]

The investigation team has found that the respondent appears to have a lack of self awareness with regard to his general communication style and workplace behaviour, and the negative impact it creates on others around him, supported by persons interviewed. This ongoing behaviour within the workplace appears to have manifested itself as unacceptable to the complainant, leading to personal stress and submission of the harassment claim, and from the evidence gathered the Company also finds this behaviour as inappropriate, whether perceived or otherwise....

...the outcome of this investigation does not support disciplinary action for either the complainant or respondent, however to ensure sustained behaviour modification professional support for both parties is recommended, as outlined below.

1. The Panel then set out detailed recommendations as to professional counselling to be undertaken by the Applicant together with monitoring of such participation and progress by his Shift Supervisor.[91] The Applicant took exception to these recommendations and complained to Mr Rieniets about the investigation panel.[92] In particular, he:
   • (a) Raised concerns over the alleged deviation from company policy;
   • (b) Alleged that the panel had discriminated against him; and
   • (c) Alleged that Lance Thomas was motivated by anger about the Applicant's performance of his role as a union representative.
2. The Applicant then had the ASU further complain on his behalf. The ASU wrote to the Respondent criticising the investigation panel's approach and conclusions and demanded a full retraction of the panel's recommendations made in their report.[93] This did not happen. In fact Mr Burns responded, in part, as follows:[94]

I am confident that the process which was followed is not only beyond criticism but was extremely thorough and afforded Mr Dyke every opportunity to participate freely and with accompanying representation when discussions were held with him... Any examination of the documentation will lead to the obvious conclusion that the process was fair, thorough and beyond reproach in the circumstances. Further all company procedure and policy was followed by the Investigation Team. There will be no retraction of the report and we fully expect Mr Dyke to comply with our requirements...

1. Mr Thomas was made aware of the ASU correspondence in February 2009, before participating in the interview of the Applicant later that month.[95] Ms Jongerius also became aware of the ASU correspondence, at the time of the correspondence.
2. The Applicant relies upon his conduct in making his verbal complaint and having his union write on his behalf, as constituting 'employment activity' within the meaning of sub-s 6(ca) of the 1995 Act and s 4 of the 2010 Act; and also industrial activity, as defined above. In my view, both grounds are untenable.
3. There is no evidence that the investigation of the complaint of harassment against the Applicant or the subsequent recommendations made by the panel had any connection to or were in any way motivated by the Applicant's activities as an ASU delegate. As Mr Burns points out in his response to the ASU, both the complainant and the Applicant were union members. The investigation was properly and necessarily undertaken in response to a complaint made against the Applicant by another employee. It did not in any way arise out of his role as a union delegate.
4. In relation to 'employment activity', under cross-examination, the Applicant confirmed that his concerns in relation to the investigation were that there might be disciplinary action taken if he did not undertake the recommended workplace counselling; and if the reporting on his interactions with other employees did not show improvement. Indeed, the Applicant conceded that what he was raising was not a breach of his employment entitlements.[96] He also acknowledged that the complainant was subject to the same recommendations.
5. I accept Respondent Counsel's submission that the concerns raised by the Applicant regarding the harassment investigation did not amount to either a reasonable request for information regarding his employment entitlements (as defined) or a communication to the Respondent regarding his concern that he has not been given some or all of his employment entitlements. Accordingly, the Applicant did not possess the requisite attribute to establish a claim of discrimination on the basis of employment activity.
6. Furthermore, I also accept that even if this was an 'employment activity', there is no credible basis for inferring that either Mr Thomas, or Ms Jongerius, would be unduly influenced in the context of a selection process for an employment position. In reaching this conclusion, I have also had regard to the fact that:
   • (a) three persons comprised the panel which conducted the investigation and made the recommendations;
   • (b) the Respondent did not choose to subject the Applicant to an investigation - it was a process that had to be carried out after the co-worker, who had made the initial harassment complaint against the Applicant, insisted that his complaint be investigated, despite being offered other less formal options for resolution of his complaint;[97]
   • (c) the panel found the complaint against the Applicant unsubstantiated;
   • (d) in light of the issues raised in the investigation, it recommended that both the Applicant and the complainant undergo some counselling;
   • (e) while the Applicant had concerns about this initially, he agreed to do it; and
   • (f) the Applicant accepted that this counselling was not disciplinary action.[98]
7. Both the Applicant and the complainant underwent counselling sessions with John Redman, Clinical Psychologist. In his report, Mr Redman briefly addressed the purpose of the counselling:

as a result of the harassment investigation... It was decided that the complainant and respondent would each benefit from organisational counselling with partial involvement with the shift supervisor to assist in ensuring organisational behaviour, which consists of actions defined as voluntary and indicated performance orientation...

The aim of the counselling was to stabilise the situation for participants, prevent work stress or inefficiency and to aid the prevention of more inappropriate or difficult events developing in the future. The participants were to be helped to have mastery over particular interpersonal situations and increase their source of self efficiency, ie to be discretionary and use autonomy by utilising their skills and knowledge in a team setting... The Matrix of the Harassment Investigation showed there was no collusion of silence among colleagues and that many opinions were sought. It is noted that the management offered assistance in good faith to alleviate the work situation and resolve past differences...[99]

1. Mr Redman goes on to deal with the Applicant's response to counselling sessions, including some pertinent comments in relation to his perceived personality type. In my view, the report provides strong endorsement for the recommendations made by the investigating panel and the benefits derived by both parties involved in the counselling process and the workplace environment generally.
2. I also accept Respondent Counsel's submission to the effect that no aspect of this process reflects an anti-union delegate bias on the part of Mr Thomas or Ms Jongerius either generally or in the context of the selection for the following Shift Supervisor positions.

2nd Alleged Contravention - Shift Supervisor (6 Months) - February 2009

1. In January 2009, the Respondent called for expressions of interest for the position of Shift Supervisor - fixed term for a period of 6 months. There were two positions available.[100]
2. The Applicant applied for the position and in about February 2009 he was interviewed by a panel comprising Wendy Jongerius, Human Resources Advisor; Lance Thomas, Production Manager; and Ross Brooker, Chemical Team Leader.
3. The panel made its recommendation to Mr Rieniets on or about 2 March 2009. The successful candidates were Colin Leach and Trevor Robinson.[101]
4. In his Points of Claim, the Applicant alleges that by overlooking him for one of these positions, the Respondent discriminated against him because of his industrial and/or employment activities.
5. I have already dealt with the Applicant's claims in respect of his opposition to a change proposed by the Respondent in a meeting in November 2008;[102] and the investigation of the harassment complaint.
6. The Applicant further alleged to the effect that Mr Thomas and Ms Jongerius were unduly influenced and/or prejudiced in their assessment of the Applicant.
7. Mr Thomas was well aware of:
   • (a) the Applicant's industrial activity, namely, his involvement in relation to the 36-hour week productivity issue;
   • (b) the Applicant's representation of employees -

(i) on the disciplinary issues, where Mr Thomas withdrew two disciplinary letters sent to operators;[103] and

(ii) on the shift roster issue, where he had an angry outburst towards the Applicant during the course of the meeting;

(c) the ASU letter, which by implication, criticised Mr Thomas' conduct of the investigation of the harassment allegation against the Applicant, and the recommendations he had joined in making.

1. Ms Jongerius was aware of the ASU letter, which had criticised the conduct of the investigation of the harassment allegation against the Applicant, and the recommendations she had joined in making.[104]
2. Applicant's Counsel submitted that it is not credible, notwithstanding their denials, that these issues did not colour the approach of those two persons to the Applicant's application for the shift supervisor positions.
3. Again, I have already addressed above the circumstances relating to the Applicant's opposition to the Respondent's shift roster proposal and the investigation of the harassment complaint. I reiterate that, in my view, there is no reasonable basis for attributing any ulterior motive or mindset to Mr Thomas by reason of his involvement in these matters. The kinds of industrial activity and representation which the Applicant describes and of which he was largely but one participant, was an integral part of the ongoing relationship between the Respondent and the ASU. Indeed, the Applicant acknowledges that Mr Brooker, one of the panel members for the 2009 Shift Supervisor positions, had previously sought the Applicant's assistance in the enterprise bargaining negotiations when Mr Brooker was himself the main ASU site representative.[105] The Applicant was subsequently selected, with four other operators, for the Respondent's Shift Supervisor succession training program and indeed subsequently fulfilled the role of acting and relief Shift Supervisor. Clearly the Respondent saw no conflict or inconsistency with an employee fulfilling an industrial relations role at the same time as that employee's career prospects were being promoted.
4. The Applicant also sought to impugn the selection procedure as follows.
5. First, Applicant's Counsel referred to his 'impeccable credentials for the role' which included his:
   • (a) long experience as an operator employed by the Respondent;
   • (b) degrees in business and engineering;
   • (c) experience at Yallourn as a supervisor; and
   • (d) experience in the role of Acting Shift Supervisor, which although modest in 2006 and 2007, was very substantial in 2008.[106]
6. By comparison, Applicant's Counsel submitted that the Respondent elected not to produce the applications submitted by other candidates; or the interview summary forms completed in respect of the other candidates, which would have enabled the Tribunal to make a fair and proper comparison.
7. In my view, the kind of assessment which Applicant's Counsel called upon the Tribunal to perform in relation to each subject position would effectively amount to the Tribunal standing in the shoes of the interviewing panel and conducting an assessment as between candidates for each position. This is not the function of the Tribunal in the current application. Rather, the onus is upon the Applicant to satisfy the Tribunal that a substantial reason why the Applicant was not a successful candidate was because the relevant interviewing panel discriminated against him on the basis of a relevant attribute, namely his prior industrial and/or employment activities.
8. There is no question that the Applicant was a suitable candidate in each case. There is no question that he is highly qualified and experienced and that he has received commendable performance appraisals in the past. However, all of these qualities would not be sufficient to guarantee any candidate success. The candidates for each position were, the Applicant concedes, in a highly competitive environment. The Tribunal need only be concerned as to evidence that:
   • (a) the assessment and appointment procedure was open, fair and consistent with the advertised position;
   • (b) all candidates were treated in an equivalent manner; and
   • (c) the interviewing panel were selected or appointed in the normal course of such selections; were qualified for the task; and did not individually or collectively manifest discrimination toward the Applicant.
9. The Respondent produced an evaluation matrix[107] in respect of the four applicants and an Interview Recommendation and Summary Sheet.
10. I am satisfied that the Respondent's witnesses and tendered documents provide credible evidence as follows:
    • (a) There was low attrition at the site which meant few opportunities for promotion and when they did arise, there was competition for the vacancy;[108]
    • (b) both successful candidates were, like the Applicant, long-serving operator technicians with 22 and 28 years' experience;[109]
    • (c) each of the successful candidates had been in the Shift Supervisor Succession program;[110] and had been undertaking fixed term positions as Shift Supervisor since March 2009;
    • (d) the two successful applicants were each described as superior candidates with proven performance in the role;[111]
    • (e) each of the three panel members concluded that the successful candidates demonstrated, in the event-based interview process, the requisite leadership qualities to a greater extent than did the Applicant;[112] and
    • (f) all panel members denied being influenced in any way by the Applicant's industrial and/or employment activities.[113]
11. Furthermore, the Applicant could not point to any evidence of prior difficulties with Ms Jongerius or Mr Brooker, which might have formed a basis for their being biased against him in the selection process.[114]
12. I note that Applicant's Counsel raised a circumstance which indicated that the Applicant was treated differently to the other candidates. On 26 February 2009, Mr Burns sent to Ms Jongerius the Wave Psychometric Profile assessment for the Applicant. Under cross-examination Ms Jongerius confirmed that she had not asked for the report; did not recall receiving it; and she did nothing with the report, in terms of the recruitment process.[115] In my view, the suggestion raised by Applicant's Counsel is speculative and not confirmed by the evidence.
13. Applicant's Counsel drew attention to the interview summary documents for Mr Brooker and Mr Thomas, alleging that the Tribunal could conclude that they colluded in writing their comments by reason that they both describe the Applicant becoming 'disengaged'. Both panel members denied any such collusion, insisting that they made their comments independently. In any event, as postulated by Respondent's Counsel, the similarity in the expressions used by Mr Thomas and Mr Brooker does not prove that there was collusion and even if there was some discussion between the panel members, it does not establish that the comments are unfair or not honestly held. It is not a reasonable basis for inferring that the panel members were biased against the Applicant on account of his industrial and/or employment activities. Furthermore, there is also no evidence that the Applicant was treated differently from other candidates.
14. Since the introduction of the written recommendation process, Stephen Rieniets[116] made his decisions by reference to this process.[117] In his witness statement and in cross-examination, Mr Rieniets explained that he trusted the skills and integrity of his managers who sat on the selection panels and that his focus was to ensure that the process had been followed. Once provided with the evaluation matrix by the interviewing panel, he asked questions to satisfy himself that the recommendation was sound.[118]
15. In his witness statement, Mr Rieniets stood by his decisions. It is appropriate to quote his general response to the allegations made by the Applicant, which were also endorsed in his oral evidence:
    1. I have known Geoff a long time. I first met him in 1987 when he started dating my sister. They married a few years later, so Geoff and I have been brothers-in law since 1991.
    2. Geoff and I have always had an amicable relationship as family members and, since 2008 when I started at IPM, we have always had a professional relationship at work. In a social setting, whether amongst family members or staff, we have always gotten along amicably. Given what I consider to be our strong and respectful professional and personal relationship, I think it is unfortunate that Geoff is aggrieved to the point that he has seen it as necessary to bring this application. But I stand by the process and the outcomes.
    3. I have always had a high regard for Geoff's technical knowledge and skills. However, as I explain in my statement below, these qualities are not enough for an individual to be competent or effective in supervisory or managerial roles. You need to be able to lead a team, so personal skills and attributes in communication, relationship-building and influencing others become important. Over the years, Geoff has been rated low in areas such as communication, ability to build and maintain relationships and capacity to show empathy. Geoff has received feedback that these are areas he needs to work on.
    4. Not everyone naturally possesses the qualities necessary for such roles. These personal skills and attributes can be developed through concerted effort and application, but it is not for everyone. Further, in a competitive recruitment process, a candidate has to demonstrate in the pressure of a panel interview process that they have these qualities to the point that they are the highest calibre candidate amongst a field of high quality candidates.
    5. Unfortunately for Geoff, in each of the promotional positions he has applied for at IPM over the years, he has not demonstrated to the various people on interview panels that he has the leadership qualities necessary for the position, or that he was the best candidate for the position.
    6. I have always met with Geoff when requested to discuss issues relating to career development and offered advice based upon my own experiences in order that he improve himself. I have continually advised Geoff to seek feedback and to act on it. I have actively supported and was influential in Geoff's move to the Plant Engineer role in 2011 for his own personal development and have sought other development roles for him outside of Loy Yang B.
    7. Each of these positions are important positions for the management of IPM's business. I have to decide who is appointed to them in the best interests of IPM and IP Australia. I take that responsibility seriously. For the reasons set out in detail below, I consider the process has been fair to Geoff. I absolutely deny Geoff's allegations that he has been discriminated against.
16. I am satisfied that all three panel members who gave evidence in relation to the 2009 Shift Supervisor positions, gave a comprehensive account of their knowledge of the process; the basis upon which they assessed each candidate; and the reasons for their ultimate recommendation.
17. I am satisfied that there was no basis upon which the Applicant could impugn the motives of Ms Jongerius or Mr Brooker, in terms of any past dealings between the parties.
18. I am satisfied that the particular incidents in which Mr Thomas had been involved in relation to the Applicant, for the reasons already addressed above, did not disclose of any predisposing animosity or prejudice by Mr Thomas toward the Applicant.
19. Accordingly, I am satisfied that even if the Applicant did possess a requisite attribute (be it industrial activity or employment activity) this was not a reason, let alone a substantial reason, for the Applicant's failure to secure one of the 2009 Shift Supervisor Positions.
20. The Applicant's claim of unlawful discrimination in connection with the recruitment for the 2009 Shift Supervisor Positions must therefore fail.

3rd Alleged Contravention - Shift Supervisor (Permanent) - March 2010

1. In February 2010, the Respondent advertised for two permanent Shift Supervisor positions (2010 Shift Supervisor Positions).[120] In about March 2010, the Applicant made a further application for one of two advertised permanent positions of Shift Supervisor.[121]
2. Interviews were conducted by a panel comprising Ms Jongerius, Mr Thomas and Mr Des Dalton, who was then the Engineering and Maintenance Manager. The panel made its recommendation to Mr Rieniets, which was approved on 18 March 2010. The successful candidates were Colin Leach and Trevor Robinson, the incumbents of the 2009 Shift Supervisor Positions, that had been fixed term appointments.[122]
3. The Applicant alleges that by overlooking him for one of these positions, the Respondent discriminated against him because of his industrial and/or employment activities.
4. In terms of industrial activity, the Applicant purported to rely upon various other industrial disputes on behalf of ASU members employed by the Respondent throughout 2009. During the course of that year he was involved in disputes as to superannuation death benefit insurance; selection of superannuation schemes for new employees; a dispute about internal advertisement; and Victorian gap make-up pay for injured workers.[123] I note that the Applicant's earlier witness statement[124] prepared for another matter, which refers to some of these industrial activities, does not give any detail or context as to how it is claimed that any member of an interview panel was necessarily, or even likely, to have been prejudiced or biased against the Applicant as a result of such activities.
5. In terms of employment activity, the Applicant purported to rely upon two incidents during 2009, which he asserts were the bases of discrimination against him, in addition to all past industrial activities.
6. First, from February 2009 onwards, the Applicant was involved in a dispute with the Respondent about bonuses on behalf of the ASU and its members.[125]
7. On 31 August 2009, the Applicant was involved in negotiations with the Respondent's representatives, including Paul Burns, Manager Community/Employee Relations. During the course of those negotiations, the Applicant alleges that Mr Burns said words to the effect:[126]

That's the trouble with you Geoff. You will be judged by what you say and how you act in this room.

1. In a letter to Steve Rieniets on the same day, the Applicant said:[127]

I would request that your managers are reminded of their obligations to avoid workplace bullying and discrimination under law.

1. In his statement,[128] Mr Burns gives quite a different account of the incident. In particular, he said that the Applicant had made a number of negative comments about the process and about managers, to the effect that 'managers can never be trusted'. In response, Mr Burns said words to the effect:

it doesn't matter what's occurred in the past; who said what and what manager said what; you and the rest of us will be judged by what is said (now) in this room. We are all judged by what we say and do in this room.

1. Mr Burns said that the Applicant took exception to what he had said and questioned his motives. The facilitator looked to Mr Burns to retract what he said, which he did and everyone moved on. Mr Burns further stated that he believed he did not say anything which could be construed as singling out the Applicant more than anyone else at the meeting. In any event, he later provided an unreserved apology and this was communicated to the Plant Manager (Mr Rieniets), when he received a written complaint from the Applicant.
2. Mr Burns also refers to his long experience in negotiating for both the ASU and the company. Negotiations are typically robust and each party is seeking the best outcome for their constituents. Mr Burns rejected any suggestion that he harboured any resentment toward the Applicant or that such incident influenced him in any future selection process.[129]
3. Mr Burns was not involved in the March 2010 selection process.
4. In my view, the account of Mr Burns is more credible and I concur with the analysis presented by Respondent's Counsel. There is no question, on Mr Burns' account, that he was not intending to threaten the Applicant or single him out. But even on the Applicant's version of what Mr Burns said to him, it does not constitute a threat. The words attributed to Mr Burns do not contain an express threat and cannot reasonably be read as implying a threat to do anything. Furthermore, the Applicant conceded under cross-examination that Mr Burns had retracted what he had said, later apologised and the matter was resolved to the Applicant's satisfaction at the time.[130]
5. In relation to the alleged 'employment activity', the Applicant has not explained how his letter to Mr Rieniets on 31 August 2009 about the alleged threat, amounts to 'employment activity' as defined. The letter does not involve a reasonable request for information regarding his employment entitlements (as defined) or a communication to the Respondent regarding his concern that he has not been given some or all of his employment entitlements.
6. Secondly, the Applicant relies upon the Respondent's alleged failure to obtain accreditation for certain training. In February 2008, the Applicant attended a company program to obtain national recognition for prior learning in Certificate II, III IV and Diploma of ESI General (Operations). The Applicant received Certificates, but was not granted the Diploma level Certificate because the assessor deemed that he could not show evidence in one compulsory Unit. The Applicant believed that he should have been given formal accreditation for all of the other Units that he had met within the Diploma level qualification under the National Training Framework. By email dated 15 October 2009, the Applicant formally complained that he had not received recognition of prior learning for units completed in the Diploma in ESI Generation (Operations).[131] The Applicant refers to difficulties he had experienced in obtaining requisite documentation from Connect Access, a third-party service provider. In my view, the series of emails annexed to the Applicant's witness statement demonstrate that senior personnel of the Respondent were very sympathetic to the Applicant's predicament; acted promptly as soon as his concerns were formally raised; met with the Applicant to consider options; and promptly documented an agreed course of action. The Respondent cannot be held responsible for the accreditation company going into receivership in the meantime.
7. In my view, it is quite inexplicable how the Applicant relies upon the actions of the Respondent in this instance as engendering a likely bias or prejudice toward the Applicant.
8. Furthermore, the Applicant has failed to identify how his raising of this matter with the Respondent constitutes 'employment activity'. Not every dispute or query in relation to employment falls within that definition. The relevant request of or communication with the Respondent must be about an employment entitlement (as defined).
9. Even if the Applicant can establish that he held a relevant attribute (industrial activity or employment activity), the evidence does not support an inference of unlawful direct discrimination in the decision to select the two candidates over the Applicant.
10. In relation to the selection process generally, the successful candidates were the current incumbents, having secured the equivalent roles in 2009. The Applicant conceded that the successful candidates had the benefit of incumbency.[132]
11. The panel members each regarded the two successful candidates as having performed better than the Applicant in their interviews.
12. Ms Jongerius, in her statement said:[133]

I supported the recommendation to appoint candidates other than Geoff because Geoff was ranked lower than the successful candidate in respect of the final panel assessment. The two recommended candidates had previously won these roles on a fixed term basis out of the 2009 Shift Supervisor recruitment process. Each was able to draw on this experience and again strongly demonstrate the leadership competencies related to this role, and were additionally evaluated as proven performers based on 'on the job' performance. Each of the successful candidates competency profiles were evaluated predominately in the range of strong evidence, whereas Geoff was predominately evaluated within the weak evidence range.

1. Mr Thomas, in his statement said:[134]

It was the panel's recommendation to appoint two candidates other than Geoff to the 2010 Shift Supervisor role because those candidates presented better than Geoff in the interview process. As illustrated in the evaluation matrix referred to in paragraph 30 above, the two candidates scored higher on an overall assessment of their competencies against Geoff's, and both of these candidates were the successful candidates. Both of these candidates demonstrated the competencies to an above average level (in this respect) and demonstrated effective leadership. On the other hand, Geoff demonstrated the competencies only to an average level. In the practical scenario, which each candidate was required to present on at interview, Geoff demonstrated a lack of confidence in his peers and support groups and a tendency to exert controlling behaviour when confronted with issues. The panel members were unanimous in their recommendation.

1. The other panel member, Mr Dalton, gave similar evidence.[135]
2. Observations were also made in the psychometric testing report, obtained during the recruitment process, that indicated that the Applicant had areas to improve upon in terms of his leadership and communication skills.[136] This was consistent with comments in prior psychometric reports and performance reviews in 2005, 2006 and 2007.
3. All panel members expressly and directly denied the allegation of unlawful discrimination in their statements and under cross-examination.[137]
4. It is unsurprising that the current incumbents were better able to demonstrate the required competencies during the competency-based interview process.
5. Applicant's Counsel raised a number of specific objections to the selection process.
6. First, Counsel submitted that Mr Dalton revealed a bias against the Applicant by questioning him as to how he might handle his union delegate role if he were to be a Shift Supervisor.[138] In my view this suggestion, on the evidence presented, is without substance. Even on the Applicant's own evidence of what Mr Dalton had said, it was not the voicing of a concern, but rather the asking of a pertinent question. Mr Dalton confirmed this and denied that he had any concern about the Applicant's role as a union delegate or that it influenced his thinking in performing his panel role:[139]

ASU representatives have been managers and supervisors in the past and I have never had any issue with this.[140]

1. Applicant's Counsel submitted that it was significant that Mr Dalton had initially justified his enquiry having regard to some health concerns of the Applicant. However, Mr Dalton amended his statement when he realised that this matter was not apparent until sometime later. In any event it is quite clear from the statement that the primary motivation for the question was how the Applicant would meet the demands of the two roles.
2. Furthermore, under cross-examination the Applicant conceded to the effect that Mr Dalton's question was appropriate:[141]

...Des Dalton asked you a question regarding how you would deal with your union delegate role if you were to get the shift supervisor position. Again, you took that question at face value, gave it a considered and sensible response in which you recognised that there was a potential for a conflict of interest there that you would need to manage. Do you agree with that?---Yes.

Again, fair question; fair answer?---As I go back to before, the other candidates didn't get that as an interview question.

You don't know that, do you?---Well, none of the others were delegates, so - - -

All right. Apart from that, pointing to your belief that other candidates were not asked those specific questions in their interview, you have got no issue with those questions, do you?---I have got a concern that asking about my union representation rights, or union representation in the context of a job interview is inappropriate in my view, personal view.

You didn't say that, did you?---Not at the time, no.

No. Not - or at any time afterwards until your complaint here?---Correct.

Okay. And the answer that you gave Mr Dalton, was one in which you recognised that there was the potential for conflict of interest, which you would need to manage?---Correct.

Which stands to reason, doesn't it? If you're in a leadership role, and you're in a shop steward role, that there is the potential for conflict of interest, and you would have to manage that?---Correct.

1. Secondly, the Applicant says that he was repeatedly asked to demonstrate the possession of the relevant competencies by reference to situations in the previous 18 months.[142] That was a limitation that the Applicant had not previously encountered, and which was likely to have the effect of favouring the persons who had been operating in the fixed term roles. Applicant's Counsel submitted that this approach is:
   • (a) consistent with the interviewers taking an approach likely to be unfavourable to the Applicant; and
   • (b) inconsistent with the Respondent's own competency-based system, which should identify the existence of traits or attributes required to perform the role, rather than simply identifying prior experience in the performance of a role.
2. Mr Burns confirmed that there was a preference in competency-based interviews for a focus upon recent experience and examples.[143] However, there is no suggestion that the interview panel would not consider any relevant experience. Indeed, under cross-examination, in the context of his interview for the 2011 Shift Supervisor Position, the Applicant acknowledged that he could draw upon older examples.[144]
3. Thirdly, the Applicant's scores decreased between the 2009 and 2010 interviews. Both Mr Thomas and Ms Jongerius, who had previously scored the Applicant a '9' for technical knowledge, now scored him a '7' and '6' respectively,[145] in circumstances where the scoring index remained the same. The Applicant's overall score dropped from 16 to 12. Counsel submitted that it is not credible that the technical skills of an employee could drop so markedly in the course of a year, when the employer's other records continue to reveal, his performance at a continuing high level.
4. Ms Jongerius rejected this analysis, pointing out:[146]

each process is stand alone, so you don't go back and look at the results of the previous one before you conduct these interviews and say, well, if he demonstrated at the same level then he must be at the same level...

When I did my assessment in 2010 I would have had no regard or - or knowledge of my previous score from 2009 and would have assessed him on the day.

1. I accept, as confirmed by the evidence of Ms Jongerius and other panel members,[147] that prior scoring is not the relevant comparison. Rather, the panel made a relative assessment as between candidates in a given selection process, not scores in a previous process.[148] Further and in any event, the evaluation matrices also show that the successful candidates' scores also decreased between the 2009 and 2010 interviews.[149]
2. Accordingly, even if the Applicant did possess a requisite attribute (be it industrial activity or employment activity) this was not a reason for the Applicant's failure to secure one of the 2010 Shift Supervisor Positions, let alone a substantial reason.
3. The Applicant has failed to establish any causal nexus between the alleged activities and his failure to secure one of the positions.
4. The Applicant's claim of unlawful discrimination in connection with the recruitment for the 2010 Shift Supervisor Positions must therefore fail.

Applicant's Illness and Sick Leave - 2010/2011

1. On or about 30 June 2010, the Applicant was diagnosed with Chronic Lymphatic Leukaemia.[150] During his period of absence, the Applicant took sick leave to which he was entitled pursuant to the Loy Yang B Enterprise Agreement 2008.[151]
2. In the period between 30 June 2010 and about February 2011, the Applicant was unable to perform the role of relief shift supervisor, by reason of his impairment.
3. The Applicant sought to rely upon his conduct in raising a concern with the Respondent, as amounting to 'employment activity' as defined for the purpose of constituting a relevant attribute in his allegation of discrimination.
4. Specifically, on 5 October 2010, the Applicant emailed the Respondent expressing concern about the impact of the Respondent's proposed new sick leave policy on the Applicant's then entitlements, pursuant to the Respondent's then current sick leave policy.[152] This concern was expressed in the Applicant's email of 5 October 2010 to Ms Jongerius, Jillian Rainbow and Jayne Hassett, copied in to Nick Taylor and Mr Rieniets.
5. Jayne Hasset, one of the Respondent's Human Resources Officers, responded on the same day, saying that she needed to speak to a few people before responding in full and then added:

I can however assure you that the intention behind the policy certainly is not to erode current conditions under the enterprise agreement. Short term sick leave will continue to be unlimited (or no debit) in accordance with the enterprise agreement. What constitutes long term sick leave will be the subject of discussions between management and the ASU. In consistency with the approach that LYB has adopted in the past, the company will continue to exercise compassion in circumstances such as yours.[153]

1. Following further concerns raised by the Applicant, Ms Hassett provided the following reply, in part, in her email dated 12 October 2010:

The proposed leave policy in its current form does not propose any changes to long term sick leave and the manner in which these are dealt with... Whilst 'no debit' may not be a term that you are familiar with, the policy clearly states that 'an employee is entitled to unlimited (no debit) sick leave', I take your point that it may be a new terminology but in no way does it reflect any variation to agreed entitlement.

As per all previous communication, discussions with the workforce are required with the ASU as the Fair Work Act requires us to implement changes to ensure that, amongst other things, unused personal leave accrues from year to year...

I stand by my earlier statement that the policy does not attempt to erode current conditions, but rather to ensure compliance with the relevant legislation...

I am confident that through continued consultation with the workforce, changes can be made to the policy which will be acceptable to the workforce. Perhaps if you have any further concerns you may wish to meet with me to discuss them?

1. Ms Hassett had also provided a draft of her proposed email to the Applicant for review by Steve Harkins, expressing that she was... 'Starting to get quite frustrated with these emails and hope that it is not reflected in my response'.
2. In my view, the chain of emails clearly demonstrates a misunderstanding on the part of the Applicant and a somewhat stubborn insistence that his entitlements were being eroded. Ms Hassett's 'frustration' was entirely understandable in the circumstances and her responses, in each case, were informative and reassuring.

4th Alleged Contravention - Shift Supervisor (8 months) - March 2011

1. In April 2011, the Respondent advertised for a fixed term Shift Supervisor position (2011 Shift Supervisor Position)[154] and the Applicant applied for that position.[155] Interviews were conducted by a panel comprising Jayne Hasset, Human Resources Officer; David Elkington, Shift Supervisor; and Ross Brooker, Chemical Team Leader. The panel made its recommendation to Mr Rieniets, which was approved on 21 April 2011.[156] The successful candidate was Chris van der Zalm.
2. In his Points of Claim, the Applicant alleges that by overlooking him for this position the Respondent discriminated against him because of his industrial and/or employment activity. In this instance, it is not clear whether the Applicant is relying upon any particular industrial activity.
3. In light of Ms Hasset's involvement with the sick leave issue, some 5 months previously, Applicant's Counsel submitted that the Tribunal could reasonably infer that she was set against the Applicant. In support of this conclusion Counsel submitted that Ms Hasset's interview sheet[157] was not consistent with the other evidence, including evidence from the Respondent's own records, of the Applicant's performance, and his continued utilisation in the relief Shift Supervisor role. Ms Hasset rates the Applicant an NA, or 'Not Acceptable: Candidate does not meet the requirements for successful job performance'. Further, his technical knowledge rating, at just above the Acceptable level, sits in stark contrast to earlier ratings, and all of the evidence as to the Applicant's technical skills, including his possession of a degree in engineering.
4. The Applicant also asserted that both Ms Hasset and Mr Brooker were condescending and arrogant toward him when he attended a feedback interview with them on 5 May 2011.[158]
5. In relation to the sick leave issue, I note that the Applicant otherwise acknowledged that Ms Hassett had handled the issue very professionally.[159]
6. In my view, imputing an improper motive to Ms Hassett on the basis of two emails, both of which were polite, informative and entirely appropriate, is speculative in the extreme. Ms Hassett was one of three panel members. There is no evidence to suggest that she harboured a bias or prejudice against the Applicant or otherwise influenced other panel members in their assessments.
7. In relation to the interview process generally, the Applicant's criticisms were focused upon two areas.
8. First, in the Applicant's Points of Claim, in the alternative, the Applicant claimed indirect discrimination by reason of an impairment, namely that in satisfying itself that a candidate met behaviour based competencies, the Respondent limited its consideration to evidence from job applicants from the period 12 to 18 months prior to the date of interview, being a limitation which the Applicant could not satisfy by reason of his intervening illness. In his witness statement the Applicant alleged that the panel asked him to confine his answers to the previous 18 months.[160]
9. This aspect of the Applicant's claim is not relied upon in the final submissions of Applicant's Counsel. I note that under cross-examination the Applicant conceded that he was allowed to and did indeed draw upon older examples.[161] Furthermore, I note from the witness statement of Ross Brooker, that it was standard practice for all candidates to be asked to make their response to the behavioural questions based upon work or life examples preferable to a timeframe within the last 12 to 18 months. However, candidates were also allowed to use examples outside of this timeframe.[162] Mr Brooker further commented:

in my experience, however, it is rare that a candidate cannot put forward a recent and relevant example, be it a work or life based experience relevant to this timeframe. Despite Geoff's illness, I would expect that as a senior Operator/Technician at Loy Yang B, Geoff would have many examples of his leadership that he could have drawn from, such as his experiencing managing projects outside his operational role or interpersonal relationship issues within shift teams.

... The intent behind limiting the timeframe is to ensure that the information provided is recent , relevant and reflective of the candidates recently demonstrated SKA's ... If a candidate struggles to find a work related example to answer the question, he or she will be prompted for a non-work related experience relevant to the question.[163]

1. In my view, Mr Brooker has given an account of the practice of an interview panel which is both reasonable and credible and in view of the concession made by the Applicant, I am satisfied that there is no basis for the alleged indirect discrimination.
2. Secondly, Counsel refers to aspects of the panel members' assessment of the Applicant which do not reflect his abilities, as verified in prior performance reviews. In particular:
   • (a) Ms Hasset's interview summary sheet[164] refers critically to the Applicant's reference to examples based on his experience at Yallourn in 2003;
   • (b) Mr Elkington's comments are alleged to be at odds with the independent evidence of the Applicant's performance in his role as Operator/Technician;
   • (c) Mr Brooker rated the Applicant's technical skills in the 'Acceptable' range, that is, that he was just meeting the criteria for successful job performance, which is alleged to be at odds both with the other evidence of the Applicant's excellent technical skills, including his selection later that year to act in the role of Plant Engineer;[165] and Mr Brooker's comment under the Primary Competencies heading that:

He (sic) strengths lay in a technical role, not leadership! His strong desire for need for achievement should be directed to this skill element.

1. In my view, the criticisms of the selection process in this instance suffer the same misconception as similar submissions made of the selection process for all of the other positions, namely that Applicant's Counsel is focused upon past performance reviews and the technical qualifications and overall experience of the Applicant. Whereas the candidates for each position were assessed by reference to their performance vis a vis other candidates. I will return to this matter shortly.
2. I am satisfied, on the basis of the evidence given by panel member Mr Brooker and the panel assessment records, that all panel members regarded Mr Chris van der Zalm, the successful candidate, as having better demonstrated the behavioural competencies at interview.[166]
3. Mr van der Zalm was also one of the alumni of the Shift Supervisor Succession Program.[167] Like the Applicant, he had missed out on the 2010 Shift Supervisor positions. However, he appears to have responded constructively to the feedback given to him at that time and developed himself as someone who could assume the leadership role.[168]
4. According to Mr Brooker:

...In my experience, quite often when I have re-interviewed candidates for subsequent positions, the candidates openly reflect on past interviews, what they have learned from the process and what personal development they have focused on. I did not see this from Geoff. In this interview Geoff scored lower than his peers in those key leadership competencies set for the role - namely, Interpersonal Diagnosis, Empowering and Motivating Others, Promoting Team Participation and Developmental Coaching. Geoff scored well in technical based competencies areas. I recall that the successful applicant in this instance had shown a great degree of self-reflection on past feedback and interview outcomes and presented very well at interview in demonstrating the sought after competencies.[169]

1. The panel's recommendation explains why the panel saw Mr van der Zalm as the best candidate. It states:

[Mr van der Zalm] is an experienced and competent operator with 23 years experience in the power industry. He demonstrated superior technical knowledge throughout the selection process, more than adequately exceeding the criteria for successful industry. He demonstrated superior technical knowledge throughout the selection process, more than adequately exceeding the criteria for successful job performance. [Mr van der Zalm] also demonstrated the ability to take good control and command of operational issues through his response to the scenario.

In the area of primary competencies identified for this position [Mr van der Zalm] was scored as exceptional. [Mr van der Zalm] displays the characteristics of a strong leader. Having developed an awareness of the challenges facing Loy Yang B through his involvement in the Organisational Improvement Project (OIP), [Mr van der Zalm]; expresses a desire to lead a team in meeting those challenges and welcomes the opportunity to take on a role with the scope to make a real difference. Since last applying for this role, [Mr van der Zalm] has demonstrated that he has taken on board the feedback received and invested significantly in his own professional development is willing to accept accountability and demonstrated a strong focus on coaching and developing others. While acting in the Shift Supervisor's role [Mr van der Zalm] has further demonstrated that he is a proven performer.

1. Ultimately, Mr Rieniets made the final decision. His evidence is that he examined this matter carefully. Given the panel was not recommending the Applicant, Mr Rieniets directed specific questions about the Applicant during the meeting with the panel. In particular, he asked the panel their view as to whether the Applicant had taken on feedback from previous interviews. The general response to Mr Rieniets was that the Applicant's interview performance had not improved.[170] By contrast, the panel found that since the last time Mr van der Zalm unsuccessfully applied for the role, he had taken on board feedback received and had invested heavily in his own professional development and demonstrated a strong development/coaching focus.[171] Following this questioning of the interview panel, Mr Rieniets was satisfied with the panel's recommendation and adopted it on 21 April 2011.
2. Finally, Applicant's Counsel invited the Tribunal to draw an inference from the Respondent's failure to call Ms Hassett and Mr Elkington to give evidence, that these witnesses would not have assisted the Respondent. I concur with Respondent's Counsel that there is no basis for drawing such inference in this case. There is no suggestion that Mr Elkington had any 'set' against the Applicant; and the factual basis for the allegations of bias against Ms Hassett are remote and speculative in the extreme. There are no questions left unexplained by the absence of such witnesses, which have not been addressed by Mr Brooker and Mr Rieniets.
3. The Applicant's claim of unlawful discrimination in connection with the recruitment for this role must therefore fail.

5th Alleged Contravention - Production Superintendent (6 month position) - June 2011

1. In about June 2011, the Respondent conducted a recruitment process for a fixed term, 6 months, Production Superintendent position (2011 Production Superintendent Position).[172] In place of the standard process adopted previously, candidates were provided with a scenario and asked to present to the General Management Team.[173] The successful candidate was Peter Duncan.[174]
2. The members of the Respondent's staff evaluating that process were:
   • (a) Ross Brooker, Acting Compliance Manager;
   • (b) Paul Burns, Community and Employee Relations Manager;
   • (c) Lance Thomas, Production Manager;
   • (d) Simon Treblecock Finance Manager;
   • (e) Des Dalton, Maintenance Manager; and
   • (f) Ian Wilcox Contracts & Procurement Manager.
3. In his Points of Claim, the Applicant alleges that by overlooking him for the 2011 Production Superintendent Position, the Respondent discriminated against him because of his industrial and/or employment activity.
4. Applicant's Counsel relied again upon the previous dealings between the Applicant and Mr Thomas, Mr Burns and Mr Dalton.
5. The Applicant also relied upon the following conduct as constituting 'employment activity' for the purpose of founding discrimination in the selection process.
6. On 2 May 2011, the Applicant met with Steve Rieniets. He had a lengthy discussion with him in which he articulated his concern as to his successive failures at promotion and the apparent disregard of merit-based selection. In the discussion he said words to the effect:

"It seems to me Steve that I have been black listed by the company and discriminated against."

1. Applicant's Counsel submitted that the merit-selection complaint was a communication by the Applicant to the Respondent that the Applicant was not being given some or all of his employment entitlements under the EBA;[175] and/or the Respondent's Equal Opportunity in the Workplace Policy.
2. In addition, Counsel submitted that the documents retained by the employer in relation to the selection process[176] show that none of the interviewers made any record in relation to the Applicant to record the display of the relevant competencies. Nor did any of the interviewers allocate the Applicant scores. Counsel suggested that this was an inexplicable departure from the usual process of assessment.
3. Counsel further submitted that the failure of each of the managers is consistent with those managers having known in advance that the Applicant would never be appointed for the role in any circumstances.
4. In my view, these submissions are misconceived. The new position was not an EBA position. Accordingly, the process for filling vacant EBA covered roles did not apply.[177] The Respondent could have elected to appoint someone to the role without any selection process, but Mr Rieniets favoured a transparent competitive selection process with a panel recommendation to consider. He did not stipulate that the process mirror the process used for EBA covered roles.[178]
5. Mr Rieniets was away overseas at the time, but upon being briefed by the panel, he was satisfied that the process was fair and that the recommendation of Peter Duncan over the Applicant was warranted.[179] He decided to adopt the recommendation and he left it for Mr Thomas to communicate this.[180] Mr Rieniets expressly denied that the merit-selection complaint had anything to do with this decision.[181]
6. Mr Rieniets had further discussions with Mr Thomas to ensure that the Applicant was provided with other development opportunities, which led to him being offered a temporary supervisory position in the Engineering Department.[182]
7. I am satisfied that the evidence establishes the following:
   • (a) Recruitment for this role involved a panel of seven individuals (listed above), who unanimously agreed that the successful applicant, Peter Duncan, gave the more impressive presentation;[183]
   • (b) The scenario-based approach adopted by the panel was entirely appropriate, as it was to be a non-EBA role;[184]
   • (c) Leadership qualities were critical and Peter Duncan was able to demonstrate a more strategic outlook and greater leadership abilities;[185] and
   • (d) The report prepared by Saville Consulting for all candidates indicated that the Applicant was below average in building relationships and average in delivering results and that both of these aspects were crucial for the Production Superintendent role.[186]
8. The fact that two of the seven panel members were not called to give evidence does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel.[187] The rule in Jones v Dunkel relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. However, an unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called, there must be a basis elsewhere in evidence to support that inference. In this case there is no evidence about the two panel members who did not make statements or were called to give evidence, which has left any matter unexplained or called into question past dealings with the Applicant. Accordingly, the Applicant has failed to establish the primary facts that could support such an inference.
9. I am satisfied that, even if the Applicant did possess a requisite attribute, this was not a reason for his failure to secure the Production Superintendent Position, let alone a substantial reason.
10. The Applicant has failed to establish any causal nexus between the alleged industrial and employment activities and his failure to secure the Production Superintendent Position.
11. The Applicant's claim of unlawful discrimination in connection with the selection for this role must therefore fail.

1. In late 2011, the Applicant applied for and was offered a role as Shift Manager with Macquarie Generation at Bayswater and Liddell Power Stations in the Hunter Valley.[188] The Applicant submits that this offer is further independent evidence of the Applicant's capacity to perform in an interview setting, demonstrated merit and demonstrated leadership skills; and that it sits in stark contrast to the assessments made by those of the Respondent's managers involved in its recruitment and selection process.
2. In February 2012, the Applicant resigned his membership of the ASU and joined the Construction Forestry Mining and Energy Union (the CFMEU).[189] Following his resignation, and the resignation of other delegates, the majority of the workforce followed suit.
3. In April 2012, the Applicant wrote to the CEO of the Respondent's parent company, GDF Suez, requesting that the Respondent recognise the rights of CFMEU members to join that trade union.[190] The Respondent applied to Fair Work Australia seeking orders that the CFMEU not be entitled to represent the industrial interests of its employees at Loy Yang B power station.
4. In an affidavit in relation to those proceedings,[191] the Respondent's solicitor averred, on instruction from Mr Burns, that an environment of unease and confusion had arisen at Loy Yang B from the activities of the 'defecting' ASU delegates who had manipulated and misled the employees on site. The affidavit characterised the conduct of the former ASU delegates as 'posturing'.
5. The Applicant submits that the affidavit is revealing in that it betrays the adverse view taken by the Respondent about the workplace delegates, of whom the Applicant was one and implies that, but for the interference of the delegates (including the Applicant), there would be no industrial difficulties at the site.

6th Alleged Contravention - Shift Supervisor (6 months) - August 2012

1. In July 2012, the Respondent advertised for two fixed term Shift Supervisor positions (2012 Shift Supervisor Positions).[192] Interviews were conducted by a panel comprising Des Dalton, Production Manager; Ross Brooker, Acting Compliance Manager; Wendy Jongerius, Senior Human Resources Advisor; and Michelle Ketchion, Administration Officer. The panel made its recommendation to Mr Rieniets, which was approved (via email) on 1 August 2012.[193] The successful candidates were Michael McAuley and Michael Caffrey.
2. In the Points of Claim, the Applicant alleges that by overlooking him for the 2012 Shift Supervisor Positions, the Respondent discriminated against him because of his industrial activity and employment activity.
3. Apart from general reliance on the previous industrial activities, the Applicant cites the following industrial and/or employment activities:
   • (a) the more recent development of him joining the CFMEU;
   • (b) his correspondence with GDF SUEZ requesting that the Respondent recognise the rights of CFMEU members; and
   • (c) his preparation of witness statements on behalf of the CFMEU in the demarcation proceedings.[194]
4. Applicant's Counsel criticises Mr Brooker's assessment of the Applicant in the interview summary on the basis that it is not consistent with the Applicant's February 2009 Shift Supervisor application, where the Applicant was scored 9 out of 10 in relation to technical skills and 7 out of 10 in relation to the leadership competencies. Again, it is alleged that the assessment is starkly at odds with the other independent evidence of the Applicant's demonstrated leadership competencies.
5. I am satisfied that the evidence establishes that:
   • (a) The successful candidates scored more highly than the Applicant in the relevant competencies. The first preference candidate strongly demonstrated the leadership competencies for the role. In particular he was able to identify the leadership skills he had gained from involvement in community activities and transfer those back to the workplace. The second preference candidate also scored higher than the Applicant and was assessed as being suitable. The Applicant predominately scored in the weak evidence range and was not considered a suitable appointment;[195]
   • (b) The panel evaluation was unanimous. However, there was discussion about the Applicant's continued inability to demonstrate the leadership competencies required for the Shift Supervisor role;[196] and
   • (c) At the conclusion of the interview panel's presentation and question time, Mr Rieniets went to extra lengths to satisfy himself that the interview process had been conducted appropriately and fairly. He took further time to consider the panel's recommendations and explore the feedback given to the Applicant from his previous unsuccessful interviews. He concluded that the recruitment process had been fairly adopted and agreed with the panel's recommendation.[197]
6. Mr Rieniets, Messrs Dalton and Brooker and Ms Jongerius, all denied being in any way influenced by any of the alleged industrial or employment activities.[198]
7. Under cross-examination, the Applicant conceded that he had no evidence of any prior flare-ups or disagreements with any of the four panel members referable to his industrial or employment activities:

And again there's no evidence that you point to of any flare ups or disagreements with any of those panellists, those four panellists, in terms of your role in industrial negotiations or employment claims. Would you agree with that? Or do I need to go through each person again?---Well - yes, well - look, there was a number of issues, and management and HR obviously in dealing with them - when management decisions are reversed, that obviously causes concern for the company. Now, whether they harboured any resentment from that I don't know.

Yes. And again Steve Rieniets made the final decision on selection?---Correct.

And again, consistent with your evidence in relation to the earlier selection decisions made by Mr Rieniets, youre not alleging that he harboured a personal bias against you in making that decision?---Well, I don't know. But - his - his view. But there's nothing directly that points to a conflict that led to that, other than, you know, obviously, as I said before, you know, having to reverse management decisions is, you know.[199]

1. Applicant's Counsel submitted that the Tribunal ought reasonably infer that the Respondent, through its senior management, was likely to harbour resentment and be motivated by bias against the Applicant by reason of the decision taken by him and other employees to become members of the CFMEU. In my view, there is no credible evidence that the Respondent at any stage singled out the Applicant in this regard. I accept the explanation given by Mr Burns to the effect that the Respondent was concerned that it not be in breach of a pre-existing agreement with the ASU and was concerned to maintain that single union coverage arrangement and to avoid the risk of demarcation disputes between two unions in the future.[200]
2. I am satisfied that even if the Applicant did possess a requisite attribute (industrial activity or employment activity) this was not a reason for the Applicant's failure to secure one of the 2012 Shift Supervisor Positions, let alone a substantial reason.
3. The Applicant has failed to establish any nexus between the alleged industrial or employment activity and his failure to secure one of the 2012 Shift Supervisor Positions.
4. The Applicant's claim of unlawful discrimination in connection with the selection for this role must therefore fail.

1. Applicant's Counsel, in her final submissions in reply, contended that it is not surprising that the Respondent, if it were minded to discriminate against an employee in the manner alleged in this case, would not leave a documentary trail to that effect. Accordingly, the Tribunal is entitled to draw inferences from:
   • (a) the nature of the industrial and employment activities in which the Applicant had been involved, which included conflicts with various senior personnel, who were subsequently involved in one or more selection panels;
   • (b) the absence of documentation which the Applicant says is relevant to a proper comparison with other candidates, on their merits; and
   • (c) the fact that the Applicant was an 'outstanding candidate' with 'superior performance and recognised leadership ability.'
2. Counsel invited the Tribunal to draw the only reasonable inference of discrimination from these factual circumstances, having regard to the following.
3. First, in relation to the Applicant's industrial and employment activities:
   • (a) It is reasonable to expect that the relevant employees would be influenced by their conflict with the Applicant and have formed a negative view about the Applicant; and
   • (b) It is reasonable to expect that any negative view harboured by such employees might affect others within the management team generally and the interview panel in particular.
4. Secondly, in relation to the process adopted by the Respondent for the interview, assessment and ultimate selection of a successful candidate:
   • (a) The Respondent did not apply or follow the proper procedures;
   • (b) The evidence did not reveal that there was any independent or intervening process of assessment; and
   • (c) Such documentation, as has been produced by the Respondent, reveals inconsistencies in the assessment of the Applicant and previous assessments and performance appraisals.
5. Thirdly, in considering whether it should draw the inference that the Applicant's industrial and/or employment activity was a substantial reason that his application was unsuccessful, the Tribunal should have regard to the Respondent's election:
   • (a) not to provide evidence of the application and/or a CV of any other candidate for the role;
   • (b) not to provide the interview summaries prepared in respect of the other candidates; and
   • (c) to neither call evidence from Ms Ketchion, Administration Officer, nor to explain the reason for declining to do so.
6. Taken together with the Applicant's obvious merit, the Tribunal ought comfortably conclude that any evidence about the other applicants or their interview performance would not assist the Respondent in the proceedings.[201]
7. In conclusion, the Tribunal can be satisfied that the Applicant's industrial activity and/or employment activity were substantial reasons why his application was unsuccessful in each case.

Summary of Recruitment Process for Positions with the Respondent

1. The recruitment process employed by the Respondent varied according to whether the position was covered by the EBA.[202]
2. If the position was not covered by the EBA, such as management roles, as in the case of the 2011 Production Superintendent Position, then the Respondent was at liberty to determine how best to recruit for the role. In particular the Respondent may recruit externally and may appoint someone directly to that role.
3. If the position is covered by the EBA, then the Respondent follows a set procedure and protocol which encompasses:
   • (a) advertising internally and possibly externally;
   • (b) pre-requisites being made known via an expression of interest;
   • (c) short-listing of applicants;[203]
   • (d) selection of interview panel, all of whom must have been trained in the Loy Yang B Competency Based Interviewing model and techniques;
   • (e) some candidates may be asked to undergo psychometric testing before the interview;
   • (f) sometimes candidates may be asked to prepare a presentation to deliver to the interview panel;
   • (g) candidates are interviewed by the panel collectively: including the significance of behavioural competencies; their technical knowledge; and factors relevant to the particular position;
   • (h) each panel member makes their own individual assessment which is then shared and debated, until a final panel assessment is made;
   • (i) a panel provides to the decision-maker an 'Interview Recommendation and Summary Sheet' and an evaluation matrix;
   • (j) the decision maker undertakes detailed questioning of the panel about the process and particular features such as aptitude testing, comparative rating between candidates; reference checks etc.; and
   • (k) final decision is made.
4. The Respondent's witnesses placed particular emphasis upon the behavioural competencies that were identified as most valuable for the particular position. Leadership and communication styles; and the candidates' ability to influence others, were key factors for the Shift Supervisor and Production Superintendent roles. To identify whether a candidate had behavioural competencies and to what extent, the Respondent used an event-based interviewing technique. This technique was designed to elicit from candidates meaningful examples of how they had dealt with particular work situations which exhibited the relevant behavioural competences that the panel valued for the role, to the greatest degree.
5. In each case, the panel's task was to assess each candidate relative to the other candidates. This was a competitive process. Performance in the interview was the key.
6. In the case of each of the subject positions, the Respondent appointed a panel of managers to conduct the interviews. This process has been in place for many years, both before and after the Respondent acquired the Loy Yang B power station.[204] The process is based on extensive research including research undertaken by the US Navy, and has been adopted worldwide, including in the UK and Indonesia.[205] The panel members were all trained in this interview technique.[206]
7. Respondent's Counsel emphasised that, contrary to the approach which the Applicant appears to impress upon the Tribunal, the selection process was not about comparing CVs and performance reviews. The Respondent identified the behavioural competencies it valued for each role and assessed those in each candidate by the event-based interviewing technique.
8. Respondent's Counsel noted, and the Applicant acknowledged, that vacancies did not come up often and there was competition for them when they did.[207] The Applicant also agreed that only two out of the five alumni of the Shift Supervisor Succession Program, had managed to secure a permanent promotion, namely, Trevor Robinson and Colin Leach.[208]

Applicant's Delayed Allegation of Discrimination

1. Respondent's Counsel referred to two events which are not consistent with the Applicant's allegation of continuous discrimination since he first applied for a promotion in 2007.
2. First, the ASU letter dated 11 September 2012, which the Applicant caused to be written on his behalf following his unsuccessful application for the 2012 position, refers to:[209]

... A continuing pattern adopted by the company in like circumstances since Mr Dyke first became an ASU representative on 30 October 2008.

1. Under cross-examination, the Applicant agreed that the letter did not allege discrimination prior to his first becoming an ASU representative in October 2008.
2. Secondly, the Applicant's complaint to the EOHRC dated 30 October 2012[210] did not contain any reference to his illness in 2010. Whereas, in this proceeding the Applicant suggested that his absence from work while on sick leave, and the questioning by the panel which placed emphasis upon work experience in the previous 12 to 18 months, unfairly discriminated against him relative to other candidates.
3. Respondent's Counsel further submitted that, in light of the above particular circumstances, and the delay generally in making any formal complaint, the Applicant's claims are in essence an afterthought. The Applicant's case reflects a mindset that, given his qualifications and prior performance in various roles, including acting at the level of positions for which he had applied, there is no reasonable explanation for the Applicant being unsuccessful on six occasions, other than unlawful discrimination as a result of his prior industrial and/or employment activity.

Applicant's Case - Misconceived and/or Speculative

1. In essence, the Applicant seeks to bring together various industrial activities in which he had been engaged together with various concerns he had raised in an employment context; and use these 'conflicts' as a basis for various members of successive interview panels having a bias against him and/or having conspired to ensure that he was not a successful candidate.
2. Respondent's Counsel submitted to the effect that this approach merely invited the Tribunal to engage in impermissible speculation and to draw inferences as to causal connections where there was no evidence and no serious question left unanswered.
3. Finally, there are instances where the Applicant has gone outside the Points of Claim and his affidavit, floating other exercises of 'industrial activity' or 'employment activity' as potentially explaining why he missed out on the promotions.[211] Respondent's Counsel submitted that no weight should be given to these activities. They are vague and undirected afterthoughts. The Applicant accepted in cross-examination that he included all significant matters in his Points of Claim.[212]

1. I accept the analysis presented by the Respondent.
2. I find that there are a number of fatal flaws in the evidence relied upon by the Applicant and the reasoning advanced by Applicant's Counsel.
3. First, while the Respondent acknowledged that the Applicant was a very competent Operator/Technician, it was not accepted that he was 'outstanding' in the sense of being clearly the best candidate in any of the selection processes. I am satisfied that the evidence demonstrated that:
   • (a) there were other candidates of similar calibre and experience who regularly performed Relief Shift Supervisor duties and who competed against him for the Shift Supervisor positions;
   • (b) the Applicant acknowledged that in these selection processes, he was competing against others who had participated with him in the 2007 Shift Supervisor Succession Plan;[213] and
   • (c) from at least 2005, in performance reviews and in psychometric reports, there had been identified some behavioural competencies for leadership which the Applicant still needed to develop, such as communication style, empathy and influencing skills.[214]
4. Secondly, there is no evidence that any of the successful candidates were significantly less experienced or clearly inferior to the Applicant such as to raise reasonable questions about how the panel arrived at its recommendation. As stated:
   • (a) As to the Shift Supervisor roles, the Applicant was competing against colleagues in the Shift Supervisor Succession Program, who were all high quality experienced Operators/Technicians;[215]
   • (b) As to the 2007 Production Manager position, Mr Tompkins' evidence confirmed that Mr Thomas was a higher calibre candidate with extensive managerial experience; and
   • (c) As to the 2011 Shift Superintendent position, the evidence confirmed that the successful candidate was an Engineer at the same salary level as the Applicant; and all seven panellists rated his performance as the most superior.
5. Thirdly, the Respondent promoted candidates based on a competitive process of event-based interviewing, rather than comparing CVs and performance reviews. The key to success was performance at interview relative to other candidates (or, in the case of the 2011 Shift Superintendent position, performance at the presentation). In my view, this was a fair, open and appropriate process which was comprehensively explained in the witness statements and oral evidence of the Respondent's witnesses. There is no evidence to suggest that the Applicant was treated any differently to other candidates.
6. Fourthly, the extensive documentation produced in the proceeding has not revealed any material which indicates that any panel member took into account or was otherwise improperly influenced by any matter that could be construed as falling within one of the claimed attributes.
7. This is to be contrasted with the case in Sharma[216] cited above.[217] There is nothing here in any of the notes of the panellists or in their recommendations which is of a kind that caused the Court to consider the subject note in Sharma.
8. I concur with Respondent Counsel's description that the Applicant has pointed a 'wavering finger'[218] at the several senior managers involved in their various capacities in the selection processes, but has failed to elicit any evidence of improper, unreasonable or vindictive behaviour. The Applicant acknowledged in cross-examination that he could point to little or no prior adversarial interactions with most of these personnel, that might raise questions about their disposition towards him, given his industrial and/or employment activities.
9. Under cross-examination, the Applicant was reluctant to disavow that Mr Rieniets (his brother-in-law) was biased against him, although he conceded that he had no evidence to support this.[219] Ultimately, the Applicant appeared to accept that his real concerns were directed at the panel members,[220] consistent with the informal complaint he made to Mr Rieniets in May 2011;[221] and the September 2012 letter from the CFMEU.[222]
10. The Applicant's complaints were focused primarily upon certain senior managers, namely: Mr Thomas; Mr Dalton; and Mr Burns. For the reasons outlined more fully above, I am satisfied that the incidents which the Applicant sought to rely upon were either: adequately explained by the relevant manager; inconsequential in nature; or not indicative of a serious or ongoing conflict. In particular, I am satisfied that none of the alleged industrial or employment activities are probative of unlawful discrimination in any decision not to select the Applicant. Furthermore, I am satisfied that the extent to which any member of a selection panel, or the ultimate decision-maker, had involvement in such activities, does not provide a reasonable basis either for seeking answers or clarification to any matter or for drawing an inference that a substantial reason that the Applicant was an unsuccessful candidate was either or both of his claimed attributes.
11. Accordingly, I find that the Applicant has failed to prove that the Respondent discriminated against the Applicant under Part 4 of the 2010 Act, as alleged. It follows that the Applicant's claims will be dismissed.

Paul Burns, Community & Employee Relations Manager.

[4] Exhibit A, [7]. At that time, the Respondent went by the name Mission Energy Management Australia Pty Ltd.

[14] Which had the same corporate owner as Loy Yang B. Ex A, [27]. The Applicant declined the position as it was not as advertised and too low salary.

[15] Exhibit A, [28]. The Applicant declined the position upon realising there was no budget responsibility component in the role.

[16] Exhibit 1, Email from Applicant to Des Dalton dated 9 August 2012.

[17] Transcript, 27.3.14 at p 100. See also p 112, Lines 4-21.

[18] Transcript, 27.3.14, p 112, Lines 15-21.

[21] Transcript, 27.3.14, p 90, Lines 31-44. See also Transcript 26.3.14, p 69 as to 2010.

[22] Exhibit A, Dyke, [53]; Transcript. 26.3.14, p 46-48.

[23] Which include alleged contraventions during the period in which the 1995 Act applied.

[24] Paragraph 98(1)(b) of the VCAT Act.

[25] Paragraph 98(1)(c) of the VCAT Act.

[27] Golem v TAC [No 1] [2002] VCAT 319; (2002) 19 VAR 265; Pople v Southern Healthcare Network & Ors [2002] VCAT 2017; Light v Technip Oceania Pty Ltd [2007] VCAT 1441 at [11]; Sisalem v RMIT [2011 VCAT 883.

[28] Maxworthy v Shaw [2010] FMCA 1014 - which concerned alleged discrimination on the grounds of sex and disability.

[29] See also Sharma v Legal Aid (Qld) [2002] FCAFC 196 at [40]; Ferrus v Qantas Airways Ltd [2006] FCA 812 as per Collier J at [48]; and Gama v Quantas Airways Ltd (No2) [2006] FMCA 1767.

[30] Paragraph 8(2)(b) of the 2010 Act.

[31] (No2) [2006] FMCA 1767 at [10].

[32] [1938] HCA 34; 60 CLR 336.

[34] [2013] VSCA 305.

[35] Evidence Act 2008 s 4.

[37] [1988] VicRp 42; [1988] VR 319 at [331]; approved by Heerey, Mansfield and Hely JJ in Sharma.

[39] Sharma v Legal Aid (Qld) [2001] FCA 1699; (2001) 112 IR 124.

[40] Sharma at 132-133 and 137 (upheld on appeal).

[41] [1999] FCA 1287 at [15].

[42] Oyekanmi v National Forge Operations Pty Ltd [1995] VADT 3.

[44] [1994] HCA 48; (1994) 124 ALR 353.

[45] Carr v Baker [1936] NSWStRp 20; (1936) 36 SR (NSW) 301 at 306-307 per Jordan CJ; Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; Peter Li v Joseph Eliezer (1997) (Unreported, NSW Supreme Court, 14516 of 1996; 1 May 1997) at [3]-[7]; Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331; Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133.

[47] Nominal Defendants v Owens (1978-79) 22 ALR 128 at [p 130] per Muirhead J who goes on to cite with approval the dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at [264].

[49] As defined in the 1995 Act and Act.

[52] Thomas, XXN, 28.03.14, p 269, L 9.

[60] Letter from the CFMEU to the Respondent dated 11 September 2012; Ex A, Dyke, Annexure 49.

[61] Transcript, 26.3.14, p 33, Lines 41-44.

[63] Transcript, 26.3.14, p 28, Lines 39-42; and p 29, Lines 16-18. See also Ex 3, Tompkin [13]-[14].

[64] Transcript, 26.3.14, p 32, Line 43 to p 33, Line 30.

[66] Exhibit 3, Tompkin, [26]. The Applicant's current role was non-supervisory and had no organisational responsibility: Transcript, 26.3.14, p 26, Lines 38-39, p 27, Lines 20-23.

[67] Exhibit 3, Tompkin, [27]-[30].

[69] Transcript, 26.3.14, p 25, Lines 1-13.

[70] Transcript, 26.3.14, p 25, Lines 26-33.

[71] Transcript, 26.3.14, p 25, Lines 35-43.

[74] Transcript 22.04.14, p 99, L10-13.

[75] Transcript 22.04.14, p 99, L22-24.

[76] Exhibit 3, [23]-[27], [29]-[30].

[84] Transcript 28.03.14, 275, L 13-14.

[85] Transcript, p 34, Lines 18-30, p 35, L17-27.

[88] Transcript 28.3.14, p 275 L 35-40.

[90] The panel comprised Mr Thomas, Ms Jongerius and Mr Rejmer. Ex A, Ann 15.

[95] Thomas, XXN, 28.03.14, p 276, L31.

[96] Transcript, 26.3.14, p 38, Lines 1-17.

[98] Transcript, 26.3.14, p 37 Line 32 to p 38 Line 7.

[101] Exhibit 2, Rieniets, SGR-1 and SGR-3.

[103] In his statement Mr Thomas denies that he was directed to withdraw these letters by Mr Rieniets following representations made by the Applicant. The decision was left entirely to Mr Thomas: Ex 4, [22].

[104] Under cross-examination Ms Jongerius stated that she did not believe she saw a copy of the ASU letter for some time and had no involvement in Mr Burns reply to it. Transcript 22.04.14 p 12, L25-26; p 13, L14-17.

[108] Exhibit 2, Rieniets, [62]-[64]

[109] Transcript, 26.3.14, p 52, Lines 17-39.

[110] Exhibit A, Dyke, [33]; Ex 2, Rieniets, [69].

[111] Exhibit A, Annexure 24: Interview Recommendation and Summary Sheet.

[112] Exhibit 4, Thomas [24]-[28]; Ex 8, Brooker [20]-[21]; Ex 5, Jongerius [20]-[ 21].

[113] Exhibit 4, Thomas [29]; Ex 8, Brooker [22]; Ex 5, Jongerius [22].

[114] Transcript, 26.3.14, p 56 Lines 1-30.

[115] Transcript Jongerius, 22.04.14, p 19, L5-7; p 20, L26-29.

[116] Currently Asset Manager, Mr Rieniets was first employed by the Respondent on 1 July 2008 as a Plant Manager; and from about 1 December 2010 as Head of Operations and Generation: Ex. 2 [1]-[5].

[118] Exhibit 2, Rieniets, [47]-[54].

[119] Exhibit 2, Rieniets, [11]-[17].

[132] Transcript, 26.3.14, p 58, Line 46.

[135] Exhibit 7, Dalton, [26]-[28].

[136] Transcript, 26.3.14, p 64, Lines 24-37.

[137] Exhibit 3, Thomas at [35]; Ex 5, Jongerius at [30]; Ex 7, Dalton at [28].

[139] Transcript, 22.4.14 p 104 and p 108, Line 28 to p 109, Line 6.

[141] Transcript, 26.3.14, p 6, Line 32 to p 66, Line 11.

[143] Transcript 22.04.2014, p 61, Line 27-31; p 62, L1.

[144] Transcript 37.3.14, p 89, L5-10.

[146] Transcript 22.04.14, p 29, L7-11, 15-18.

[149] Exhibit 2, Rieniets, SGR-3 and SGR-6.

[159] Exhibit A, Dyke, Annexure 35 p 2 - joint record of meeting of 12 October 2010; see also Transcript p 84 [5]

[161] Transcript 27.03.14, p 89, L 5-10.

[166] Exhibit 8, Brooker, [33]; Ex 2, SGR-10 at p 2.

[167] Transcript 27.3.14, p 85, Line 45.

[174] Exhibit 4, Thomas, [38]-[40]; Ex A [95].

[178] Exhibit 2, Rieniets, [82]-[84].

[183] Exhibit 4, Thomas, [38]; Ex 7, Dalton [29]; Ex 6, Burns [57].

[185] Exhibit 4, Thomas, [38]; Ex 2, Rieniets, [83]-[84].

[191] See Affidavit of Christopher Leong dated 1 June 2012, Ex A, Annexure 45.

[193] Ex 2, Rieniets, [89], SGR-10 and SGR-15.

[198] Exhibit 2, Rieniets at [118]; Ex 7, Dalton at [29]; Ex 8, Brooker at [37]; Ex 5, Jongerius at [35].

[199] Transcript 27.3.14, p 96, Lines 30-45.

[200] Transcript 22.4.14, p 87 to p 88.

1. [201] Jones v Dunkel (1959) 101 CLR 298

[202] Exhibit 2, Rieniets, [39]-[54].

[203] Mr Rieniets indicated that, as a matter of practice, all internal applicants are interviewed, regardless of whether they have met the pre-requisites: Ex 2, [41].

[204] Exhibit 6, Burns, [6]-[8]; Ex 5, Jongerius, [11]-[14].

[206] Exhibit 5, Jongerius, [15]-[17].

[207] Transcript, 26.3.14, p 22, Lines 3-22.

[208] Transcript, 27.3.14, p 97, Lines 1-33.

[211] For example, the matters referred to in the Applicant's Final Submissions at [133].

[212] Transcript, 26.3.14, p 22, Line 8 to p 23, Line 9.

[214] Exhibit A, Annexure 5, p 3; Ex A Annexure 26, p 6.

[215] Transcript, 26.3.14, p 24 and p 52.

[216] Sharma v Legal Aid (Qld) [2001] FCA 1699; (2001) 112 IR 124.

[217] Sharma at 132-133 and 137 (upheld on appeal).

[218] Rich J used this expression in Briginshaw at 350 - 'In a serious matter ... the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.'

[219] Transcript, 26.3.14, p 69, Lines 8-19.

[220] Transcript, 26.3.14, p 57, Lines 16-17; Transcript, 27.3.14, p 80, Lines 30-34 and p 97, Line 34 to p 98, Line 7.

[221] Exhibit 2, Rieniets, [115]-[117].