Martin v Hunter Personnel Pty Ltd & ors

Introduction 1 In this case the applicant, Ms Cathlene Martin, has alleged that her former employer, Hunter Personnel Pty Limited, discriminated against her on the ground of her disability by unilaterally determining to change her employment status from that of full-time employee to part-time employee. 2 These particular proceedings were taken against the respondent, Mr Hugh McKensey, who is a former director of Hunter Personnel Pty Limited (hereinafter 'the company'), because the applicant is no longer able to proceed against that company and because she alleged that the respondent was the ultimate decision maker within the company concerning the terms of her employment. The applicant claimed that the respondent should be held liable for the acts of the company, which has been de-registered, because he caused the company to act as it did. 3 The case was heard by the Tribunal in Sydney on 15 November 2002. The applicant was not legally represented and presented her own case. Mr Warren of counsel represented the respondent. History of the proceedings 4 This case has a long and complex procedural history much of which is set out in Martin v Hunter Personnel Pty Ltd & ors [2002] NSWADT 53, an earlier decision pertaining to the applicant's complaint (hereinafter the 'earlier decision'). Consequently, it is unnecessary to provide more than a brief summary of the progress of the complaint from its inception until the hearing on 15 November 2002. 5 By letter dated 12 August 1997 the applicant lodged a complaint under the Anti-Discrimination Act 1977 with the President of the Anti-Discrimination Board against Forsythes Partners and individual partners of that firm, Mr Hugh McKensey, Mr Paul Hankinson, Mr Victor Lewis and Mr Peter Hicks. In this complaint the applicant alleged that she commenced employment with Forsythes Partners on 22 January 1992. She claims that her employment was transferred from Forsythes Partners to Forsythes Personnel Pty Ltd on 1 July 1995. In February 1997 the name of this firm was changed to Hunter Personnel Pty Ltd. It was common ground between the parties that Hunter Personnel Pty Ltd was wound up by order of the NSW Supreme Court on 24 September 1999. The company was subsequently de-registered. 6 As the President of the ADB did not resolve the applicant's complaint it was referred to the Tribunal for the purpose of an inquiry on 2 November 1998. Thereafter, the complaint progressed slowly as a result of failure by the parties to comply with various procedural directions concerning the filing of documents. 7 The applicant was initially represented by solicitors, Geoffrey Edwards & Co. These solicitors filed Points of Claim and a statement by the applicant. The respondents named in the Points of Claim were Hunter Personnel Pty Ltd and Messrs McKensey, Hankinson, Lewis and Hicks, who were alleged to be directors of that company. The solicitors for all of the named respondents, Hunt & Hunt, filed Points of Defence but no witness statements. 8 On 15 December 1999 Hunt & Hunt informed the Tribunal that they wished to make an application under s 111 of the Act that the complaint be summarily dismissed. That application was listed for hearing on 27 March 2000. On 2 February 2000 Geoffrey Edwards & Co informed the Registrar of the Tribunal that they no longer acted for the applicant. At the request of the applicant, and with the consent of the solicitors for the respondents, the hearing date for the s 111 application was vacated in order to permit the applicant to seek legal aid. 9 Thereafter, progress was again slow and the Registrar contacted the parties from time to time in order to ascertain their intentions. Ultimately, the s 111 application was heard on 11 February 2002. This application was made on various grounds which are discussed fully in the earlier decision. Mr Hillard from Clayton Utz, solicitors, appeared for the applicant at this hearing. He accepted that it was not possible for the applicant to continue with her complaint against the company as it had been de-registered. He argued, however, that the applicant should be permitted to proceed against former directors of the company, Messrs McKensey, Hankinson, Lewis and Hicks, because s 52 of the Act renders it unlawful for one person to cause another person to do an unlawful act. 10 The s 111 application was refused for reasons set out in the earlier decision. The applicant was directed to file Amended Points of Claim. Shortly after the hearing of the s 111 application Clayton Utz informed the Registrar that they no longer acted for the applicant. On 21 May 2002 the applicant filed Amended Points of Claim. Only the current respondent, Mr Hugh McKensey, was named as a respondent in that document. The respondent subsequently filed Amended Points of Defence and a number of witness statements. 11 In her Amended Points of Claim the applicant alleged that she had the disability of "depression and stress" which was diagnosed in August 1996. She claimed that she worked as a credit controller from 22 January 1992 to 5 June 1997 with the entity which over the years changed from Forsythes Partners, to Forsythes Personnel Pty Ltd to Hunter Personnel Pty Ltd (hereinafter 'the employer'). The applicant claimed that on 16 August 1996 she presented her employer with a medical certificate from her doctor which stated that she was unfit to work full-time for the next 6 months. The applicant claimed that she negotiated with her employer to work two days per week and that she participated in the process of engaging a new employee, Mr Terry Innes, to job share with her on a temporary basis. 12 It is alleged that the applicant sought to return to work on a full-time basis upon the expiration of the medical certificate in February 1997 and that the respondent, contrary to the agreement reached 6 months earlier, advised her that she would continue to work on a part-time basis only. The applicant claimed that she resigned from this job on 5 June 1997. Before doing so she applied unsuccessfully, in May 1997, for another part-time position with the company. 13 The applicant alleged that the employer discriminated against her on the ground of disability by unilaterally changing her position from that of full-time employee to part-time employee whilst she was absent from work on sick leave. It is alleged that the employer engaged in conduct which amounted to contraventions of ss 49B(1)(a), 49D(2)(a), 49D(2)(c) and 49D(2)(d) of the Act. It is further alleged that the respondent was the person who determined that the applicant should become a permanent part-time employee whilst she was on sick leave and that this action contravened s 52 of the Act because the respondent's actions caused the company which was her employer at this stage to contravene the previously identified provisions in the Act. 14 In the Amended Points of Claim it is also alleged that the employer victimised the applicant in contravention of s 50(1)(c) of the Act by failing to properly consider her application for appointment to a part-time receptionist position because she had lodged a complaint with the Industrial Relations Commission of NSW about the employer's failure to allow her to return to full-time work upon the expiration of her sick leave. It is claimed that the respondent is liable for this victimisation by virtue of s 52 of the Act because he caused the company, which was her employer at this time, to act in breach of s 50(1)(c). The applicant claimed damages for "emotional distress and mental suffering". 15 In the Amended Points of Defence the respondent admitted the employment relationship, as alleged by the applicant, with Forsythes Partners, Forsythes Personnel Pty Ltd and Hunter Personnel Pty Ltd. The respondent denied that he caused the company to act as it did in relation to the applicant claiming that he was only one of six directors. The respondent admitted that the applicant presented her employer with a medical certificate on 16 August 1996 and negotiated to work two days per week thereafter. The respondent alleged that this change from full-time to part-time work was permanent and that the applicant "indicated she would be leaving the organization to travel to South Africa at some point during the period set by the medical certificate". The respondent further alleged that "the Complainant's contract of employment was permanently varied by agreement with the Complainant on the basis that she intended to resign her employment during the period stated in the medical certificate". 16 The respondent claimed that the applicant participated in the selection of a new employee, Mr Innes, who was engaged "for a permanent position working 3 days per week in a job share arrangement initially, with a view to taking over the full position if required". The respondent alleged that the applicant continued to work part-time, in accordance with her varied contract of employment, after the period stated in her medical certificate had expired. The respondent denied that he had discriminated against the applicant on the ground of her disability in the circumstances surrounding her change from full-time to part-time employment, or that he had victimised her in the circumstances surrounding her unsuccessful application for the position of part-time receptionist with the company. The evidence 17 The applicant was the only person to give evidence in support of her complaint. It is unnecessary to set out her evidence in great detail as the issues in dispute between the parties were few and the applicant's testimony was in keeping with the allegations set out in her Amended Points of Claim, which have already been recorded in paragraphs 10-13, above. 18 The applicant stated that she was diagnosed with early emphysema in March 1996. At this time she was also suffering from tiredness, tearfulness and lethargy, which her doctor said was caused by stress. Shortly after learning of this diagnosis she was informed that her father, living in South Africa, had become seriously ill. She then spoke to her immediate supervisor within the company, Mr Allan Beavan, and asked for leave to travel to South Africa. As she had no paid leave owing to her at this time, Mr Beavan informed her that he had spoken to the respondent who had approved two weeks paid leave in advance. 19 The applicant stated that after her return to work, following two weeks leave in South Africa, her health problems continued. On 15 August 1996 her doctor issued a medical certificate stating that she was suffering from depression and stress and that she was fit to work only two days per week for the next six months. This medical certificate was given to Mr Beavan the next day and she was given approval to work part-time. Thereafter she participated in the process of choosing a person to share the position of credit controller with her and stated "I was of the understanding that Mr Innes' appointment was to be temporary for 6 months, during the period of my medical certificate…". 20 The applicant stated that in mid-September 1996 Mr Beavan asked her to supply him with a memo concerning her move from full-time to part-time employment. A discussion ensued but the applicant did not write to Mr Beavan. In mid-February 1997 the applicant sought to return to work on a full-time basis. She informed Mr Beavan that she had received no notice that her full-time position had been terminated and that she expected to return to full-time work upon the expiry of her medical certificate. Mr Beavan indicated that a full-time position was not available as Mr Innes had been employed in a permanent position. On 18 February 1997 the applicant handed Mr Beavan a doctor's certificate which stated that she was fit to resume full-time duties. On the same day she received a letter from the respondent which stated: In accordance with our agreement of 15 August 1996, we confirm that your hours of work are 15 hours per week, currently on the basis of 7.5 hours on both Thursday and Friday. We request that you attend the office for work during these agreed hours only. You are instructed not to discuss the terms of your employment with any other member of staff. 21 Thereafter the applicant stated that she continued to work part-time. She had meetings with the respondent to discuss her position. She claims that in the course of these meetings the respondent was verbally aggressive towards her and that this behaviour caused her to become distressed. On 15 May 1997 the applicant wrote to Mr Beavan to apply for a part-time receptionist position with the company which had recently become available. Shortly afterwards the applicant was interviewed for this position by Mr Beavan who wrote to her on 19 May 1997 with the advice that her application for that position was not successful. 22 The applicant stated that her health difficulties persisted and that she telephoned Mr Beavan on 30 May 1997 to inform him of her doctor's advice that she should stop working for the sake of her health. On 5 June 1997 the applicant submitted her resignation in writing to Mr Beavan who accepted her resignation, in writing, the following day. This was her last day of employment with the company. 23 In the final paragraph of her statement the applicant set out what appears to be the essence of her claim against the respondent: I believe that each of the partners at Hunter Personnel Pty Limited, Forsythes Partners have discriminated against me on the grounds of both mental and physical disability. Mr McKensey's behaviour and the lack of intervention by the other partners caused my stress related condition. When the partners, and in particular, Mr McKensey became aware of my stress related condition and emphysema, no effort was made to modify his behaviour and his verbal attacks escalated. None of the other partners took any action to protect me from his abusive behaviour, despite being made aware of the events taking place. Mr McKensey continually made life unbearable with constant verbal attacks in an attempt to force me into resigning of my own accord. 24 The witnesses for the respondent were the respondent himself, Mr Allan Beavan, Mr Terrence Innes and Mr Paul Hankinson. It is unnecessary to set out their evidence in great detail for, as we have already noted, there were few matters in dispute between the parties. 25 The respondent, who is an accountant, stated that he is the managing partner of a business which provides accounting, human resources and other business services. He stated that he had a meeting with the applicant and Mr Beavan in August 1996 in order to discuss the applicant's future employment. According to the respondent there was a discussion about the applicant's inability to continue in her role as credit controller because of health problems. The respondent's recollection of the conversation was recorded in his statement: The Complainant said she wanted to continue working and produced a medical certificate which limited her to working only 2 days per week for 6 months. I said to the Complainant words to the effect of: "We can accommodate you only working 2 days per week. What will happen after 6 months?" The Complainant said words to the effect of: "My father is very ill in South Africa and I may have to go there to help him run his business. I don't know when I will be going or how long I will be away." I said words to the effect of: Will you want to return to full-time work after the six months is up?" The Complainant said words to the effect of: "Hugh I can give you no commitment at this time. I don't know when or if I will be coming back". 26 The respondent stated that the applicant and Mr Beavan participated in the process of appointing a permanent part-time credit controller to work in a job share arrangement with the applicant. The respondent stated that Mr Innes was appointed to this position on a permanent basis with the applicant's knowledge. He then stated: The Complainant had sought to change the terms of her employment from full-time to part-time of her own volition. Forsythes had gone to considerable expense and effort to recruit a permanent employee capable of performing the role of Credit Controller after the complainant was unable to give any undertaking about her capacity to return to this role on a full-time basis. The Complainant then apparently changed her mind and wanted to change from being a part-time to a full-time employee again. 27 The respondent stated that he played no role in the process of choosing a person to fill the position of part-time receptionist, for which the applicant had applied in May 1997, other than to authorise the employment of the selected candidate. 28 Mr Allan Beavan stated that he has held the position of Administration Manager with Forsythes Business Services since 21 November 1994. Mr Beavan stated that he, the applicant and the respondent met in mid-August 1996 to discuss the applicant's employment in light of the medical certificate which stated that the applicant should work for only two days per week for six months. Mr Beavan's account of that conversation was similar to that given by the respondent. 29 Mr Beavan attached to his statement a handwritten note of that meeting which he stated he had prepared in order to attach to the applicant's personnel file. Whilst that handwritten statement, which is dated 15 August 1996, does not contain a verbatim account of what was said at the meeting, Mr Beavan made reference to statements by the applicant that she may have to go to South Africa for a period of between 3 and 12 months to assist with her father's business. Mr Beavan recorded in his statement that "it has been agreed to give Cathlene a new role". He stated that the applicant participated in the process of selecting someone to work with her in the role of credit controller and that "the position was always described as a permanent part-time role". 30 Mr Beavan stated that in February 1997 the applicant asked him whether there was any possibility of her returning to work on a full-time basis. He replied that at that time there was nothing available. He stated: "I advised the Complainant on a number of occasions that she did not have full-time employment with Forsythes as a result of her request to change to part-time work". Mr Beavan stated that the respondent played no role a choosing a person for the part-time receptionist position. He stated that the applicant had had limited experience as a receptionist and that he chose a better qualified candidate from the four people who were interviewed for the position. 31 Mr Terrence Innes stated that he was employed as a credit controller with Forsythes. He applied for that position on 19 August 1996 in response to an advertisement in the 'Newcastle Herald'. He stated that Mr Beavan and the applicant interviewed him for this position. Mr Innes then stated: The Complainant was present for most of the interview and left only when wages were being discussed. At no time during this interview was I advised that the position was a temporary position. I was gainfully employed at the time of the interview and would not have applied for this role, nor accepted employment had there been any suggestion that this role was only temporary. I was told that my appointment was to be on a permanent part-time basis at the interview and I was appointed on this basis. 32 Mr Paul Hankinson stated that he had been a partner with Forsythes since 1 January 1996. His area of responsibility is human resources business services, which includes temporary and permanent recruitment. Mr Hankinson stated that he was asked to provide Mr Beavan with assistance to recruit a permanent part-time employee to job-share the role of credit controller with the applicant. He said that this position was advertised in the 'Newcastle Herald' on 17 August 1996. Mr Hankinson stated that as Forsythes operates a temporary recruitment agency this pool of people would have been considered for the part-time credit controller position had that position been temporary rather than permanent. Conclusions 33 In every complaint of unlawful discrimination the Tribunal must determine whether the impugned conduct of the respondent falls within a substantive provision, or prohibition, in the Act and, if that question is answered in the affirmative, then determine whether the respondent's conduct amounted to unlawful discrimination as that concept is defined in the Act. 34 In her Amended Points of Claim the applicant alleged that the respondent breached ss 49B(1)(a), 49D(2)(a), 49D(2)(c), 49D(2)(d) and 50(1)(c) of the Act. At this stage it is unnecessary to consider s 49B(1)(a) in any detail as it is not a substantive provision which gives rise to legal rights and obligations; it is a definition of the term "discrimination on the ground of disability" which is to be used when construing the substantive provisions in Part 4A of the Act. 35 Section 49D(2) of the Act is directed towards conduct by an employer towards an employee. It is common ground between the parties that the respondent was not at any relevant time the applicant's employer. It is argued by the applicant, however, that by virtue of s 52 of the Act, which renders it unlawful for a person "to cause, instruct, induce, aid or permit" to do an act which is rendered unlawful by the Anti-Discrimination Act, the respondent should be held legally responsible for the actions of her employer. This section is similarly worded to s 105 of the Sex Discrimination Act 1984 (Cth), which was recently considered at length by Moore J in Elliott v Nanda & Commonwealth [2001] FCA 418, and to s 122 of the Disability Discrimination Act 1992 (Cth), which was recently considered by Madgwick J in Cooper v HREOC (1999) 93 FCR 481. In view of the conclusions which we have reached in this case it is unnecessary to consider s 52 of the Anti-Discrimination Act, or these cases, in any detail. 36 Section 49D(2)(a) of the Act renders it unlawful for an employer to discriminate against an employee on the ground of disability in relation to "the terms or conditions of employment which the employer affords the employee". This phrase has been interpreted to mean all of the legal rights and obligations cast upon an employer and an employee by the various sources which govern an employment relationship, including express and implied terms of the contract, industrial instruments and statute (see Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93). In this case it is argued that the applicant's employer unilaterally decided to alter her contract of employment from full-time to part-time. That conduct, if in fact it occurred, clearly falls within s49D(2)(a) of the Act for it involved a change to the applicant's terms or conditions of employment. 37 Section 49D(2)(c) of the Act renders it unlawful for an employer to dismiss an employee on the ground of disability. It appears that the applicant may have pleaded this provision in error because there is no allegation that the company dismissed, or constructively dismissed, the applicant. The particulars in paragraph 14 of the Amended Points of Claim refer to the applicant's reduction in working hours being "a denial of the Complainant's access to a benefit of employment". It appears that this allegation is directed towards s 49D(2)(b) of the Act which renders it unlawful for an employer to discriminate against an employee on the ground of disability by denying or limiting the employee's access to any benefits associated with employment. Consequently, we propose to proceed on the basis that the applicant has alleged a contravention of s 49D(2)(b). 38 The term "benefits" has been given a broad interpretation by the Tribunal in earlier cases (see e.g. Bonella v Wollongong City Council [2001] NSWADT 194 at [48] to [49]). A decision by an employer to change an employee's status from full-time to part-time is clearly a denial or a limitation of a benefit associated with employment. It is possible, in our opinion, that one action by an employer could constitute a breach of both paragraphs (a) and (b) of s 49D(2) for there is no reason on the face of the statute, or by application of any rules of statutory construction, to regard those two paragraphs as being mutually exclusive. 39 Section 49D(2)(d) of the Act renders it unlawful for an employer to discriminate against an employee on the ground of disability by subjecting the employee to any other detriment. This provision is clearly intended to encompass conduct not otherwise dealt with by s 49D(2). As we have determined that the conduct alleged potentially falls within paragraphs (a) and (b) of s 49D(2), paragraph (d) has no role to play in this case. 40 Discrimination on the ground of disability is defined in s 49B of the Act. The applicant's case has been conducted on the basis of a claim of direct discrimination, which is defined in s 49B(1)(a). No reliance has been placed upon the 'characteristics extension' in s 49B(2). There has been no claim of indirect discrimination, as that concept is defined in s 49B(1)(b). 41 "Disability" is defined in s 4 of the Act. Whilst the respondent formally denied that the applicant had a disability at the relevant time, he called no evidence in response to her medical certificate, dated 15 August 1996, which recorded that she was suffering from "depression" and "stress". Depression is a condition which appears to clearly fall within paragraph (e) of the statutory definition of "disability": "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". Depression is a disorder or illness which affects a person's emotions and may affect their judgment, thought processes and perception of reality (see S Bloch and B Singh, Understanding Troubled Minds: A Guide to Mental Illness and its Treatment, MUP: Melbourne, 1997 at p 102). 42 Stress is a difficult condition to characterise. In the absence of detailed argument about whether stress falls within the definition of "disability" we believe it preferable not to make any findings in relation to this matter. This approach to the issue has had no effect upon our final decision in this case. 43 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 an Appeal Panel of the Tribunal formulated a question which the Tribunal should pose for itself in direct discrimination cases. In the circumstances of this case that question is: did the respondent, on the ground of the applicant's disability, treat the applicant less favourably than he treated, or would have treated, a person without that disability in the same circumstances, or in circumstances which were not materially different? 44 The Appeal Panel identified two components to this question: differential treatment and causation. Differential treatment is a shorthand term which is used to describe that part of the statutory definition of direct discrimination which is concerned with the applicant establishing that he/she received objectively less favourable treatment than other people, who did not have his/her particular disability, in comparable circumstances. 45 In some cases it is possible for the Tribunal to compare the respondent's treatment of the applicant with the respondent's treatment of another actual person who did not have the applicant's particular disability in order to determine whether the applicant was treated less favourably than others who did not have her disability. It is then necessary for the Tribunal to consider the question of causation: to determine whether the applicant's disability was a reason or ground which caused the respondent to afford the applicant differential treatment. To employ the language used by Street CJ in Director General of Education v Breen [1982] IR 93 at 95, it is necessary for the applicant to prove that her disability had a "causally operative effect" upon the decision by the respondent to treat her less favourably than another person in comparable circumstances. 46 In many instances it is not possible for the Tribunal to compare the respondent's treatment of the applicant with the respondent's treatment of another actual person in comparable circumstances, either because no such actual person exists, or because no evidence is led about such a person. In these cases it is necessary for the Tribunal to undertake the artificial exercise of determining how the respondent would have treated a hypothetical person, who did not have the applicant's disability, in circumstances which are comparable to those in which the respondent treated the applicant. The findings about treatment of the 'hypothetical comparator' are then compared with the findings about the treatment of the applicant. This exercise effectively results in the elements of differential treatment and causation being merged in 'hypothetical comparator' cases for a Tribunal could only find that a person without the applicant's disability would have been treated more favourably than the applicant if a reason for the treatment complained of by the applicant was his/her disability (see Dutt v Central Coast Area Health Service [2002] NSWADT 133). 47 In this case it is necessary to compare the employer's treatment of the applicant with its treatment of a hypothetical comparator for there is no evidence which permits us to conclude that there was any other employee who, in comparable circumstances to the applicant, moved from full-time to part-time employment. We are not satisfied that the employer would have treated another employee, who did not have depression, any differently to the manner in which the employer treated the applicant. 48 The applicant's complaint of discrimination on the ground of disability is misconceived. In essence this is a contract dispute. The core of the applicant's case is that her employer unilaterally and unlawfully decided to change her contract of employment from full-time to part-time. She may be correct in that assertion, but in order to succeed in this complaint it is necessary for her to establish that her disability, the fact that she suffered from depression, was a ground or reason for the employer's action. There is no evidence which would permit us to conclude that the applicant's depression had a "causally operative effect" upon the employer's decision to change her employment from full-time to part-time permanently. The applicant appears to have proceeded on the misunderstanding that because a reason for her request to change from full-time to part-time employment was her disability, this must mean that her disability was a factor which caused the employer to act as it did. We repeat that there is no evidence to support such a finding. 49 A root cause of the difficulties which have arisen in this case is the undisputed fact that the agreement reached in August 1996 between the applicant and the employer to move from full-time to part-time employment was not recorded in writing. We accept that the applicant genuinely believed that her contract of employment was being varied for six months and that she would revert to full-time employment when her medical certificate expired in February 1997. We also accept that the respondent and Mr Beavan genuinely believed that the applicant's employment was being changed from full-time to part-time on a permanent or on-going basis and that the applicant simply changed her mind at some stage after the August 1996 meetings. The circumstances surrounding the engagement of Mr Innes in an on-going part-time position clearly support the conclusion we have reached about the beliefs held by the respondent and Mr Beavan. 50 When the failure of the parties to reach an actual agreement concerning the change in the applicant's employment status became apparent in February 1997, which was the time when the applicant sought to return to full-time work, there is no evidence to suggest that the applicant's disability was a ground which caused the employer to insist that the applicant abide by the employer's understanding of how the contract had been varied in August 1996. It may well have been possible for the applicant to argue elsewhere, in breach of contract proceedings, that the failure to reach agreement concerning the variation of her contract from full-time to part-time beyond the six-month period meant that, at law, the contract reverted to one of full-time employment. We do not have jurisdiction to deal with such a claim. The complaint of discrimination on the ground of disability must fail. 51 The applicant has also alleged that the employer victimised her in contravention of s 50(1)(c) of the Act by failing to properly consider her application for a part-time receptionist position because she had lodged a complaint with the Industrial Relations Commission of NSW on 10 March 1997 about the employer's failure to permit her to return to full-time employment in February 1997. It appears that the applicant lodged a complaint of unfair dismissal with the NSW Industrial Relations Commission pursuant to s 84 of the Industrial Relations Act 1996 (NSW). In order to succeed in a victimisation complaint pursuant to s 50(1)(c) of the Act it is necessary for the applicant to prove that her employer, or the respondent, subjected her to detriment because she had alleged that the employer, the respondent, or any other person, had committed an act which would amount to a contravention of the Anti-Discrimination Act. There is no evidence which would permit us to include that the applicant made any such allegation in her unfair dismissal action. 52 Further, we are not satisfied that her application for appointment to the part-time receptionist position was considered other than on its merits. We accept Mr Beavan's evidence that he chose the best qualified applicant for the position and that the respondent played no role in filling the position other than to formally approve Mr Beavan's selection. Accordingly, the complaint of victimisation must fail. 53 In view of our conclusions it is unnecessary to consider whether any liability attaches to the respondent pursuant to s 52 of the Act. 54 There was no application by the respondent for costs and, consequently, there will be no order for costs. Decision and order 55 The decision of the Tribunal is that the complaint is not substantiated. The Tribunal orders that the complaint be dismissed.