Adams v University of Western Sydney [2001] NSWADT 19 (12 February 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Adams v University of Western Sydney [2001] NSWADT 19 revised - 06/03/2001

PARTIES: APPLICANT

Gayle Adams

RESPONDENT

University of Western Sydney

FILE NUMBERS: 53 of 1998

HEARING DATES: 15/06/00

16/06/00

SUBMISSIONS CLOSED: 16/06/2000

DECISION DATE: 12/02/2001

BEFORE: Rees N - Judicial MemberClayton S - MemberEdwards K - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

Sex Discrimination Act 1984 (Cth)

CASES CITED: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13

Haines v Leves [1987] 8 NSWLR 442

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Human Rights and Equal Opportunity Commission v Ms Isa Mines Ltd (1993) 118 ALR 80

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165

Reg. v. Birmingham City Council; Ex parte Equal Opportunities Commission

Director-General of Education v Breen , the Court of Appeal of New South Wales

Hill v University of New England (1990) EOC 92-291

APPLICATION: Sex Discrimination - In work

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

S Winters, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

J Oakley, barrister

ORDERS: 1. Complaint dismissed

Reasons for Decision:

Introduction

1 In this case the complainant, Ms Gayle Adams, alleges that her former employer, the University of Western Sydney (the respondent), breached the sex discrimination provisions of the Anti-Discrimination Act 1977 (the Act) by failing to renew her contract of employment when it expired, due to the effluxion of time, in early 1997.

2 The case was heard by the Tribunal in Sydney on 15 and 16 June 2000. Both parties were represented by counsel: the complainant by Ms Winters and the respondent by Ms Oakley.

3 In the paragraphs which follow we have set out summaries of the history of these proceedings, the evidence presented at the hearing and the submissions made by both parties, together with the judicial member's understanding of the applicable law, our findings of fact and the reasoning process which has led us to conclude that the complaint should be dismissed.

History of the proceedings

4 The summary which follows is drawn from the report of the President of the Anti-Discrimination Board (the President), which was tendered in evidence, the `pleadings' filed by both parties in compliance with directions made by the Tribunal and correspondence between the parties (also tendered in evidence) concerning particulars.

5 On 5 December 1996 the President received a written complaint of sex discrimination from Ms Adams. In her letter to the President, dated 2 December 1996, the complainant alleged that the respondent had informed her that her 5 year contract of employment, which was due to expire on 23 February 1997, would not be renewed. The complainant pointed out that she was employed in a senior management position as the Manager of Management Information and Planning and that other senior managers on fixed term contracts, who were male, had had their contracts renewed. The complainant stated that it was "my belief that a male manager in my position would have had a significantly greater chance of having his contract renewed, all else being equal".

6 In the written complaint to the President the complainant referred to two other reasons which she believed influenced the decision not to renew her contract. She identified them as "my activities as Convenor of the Womens' Action League at Macarthur" and "my documented concerns about what I believed to be unethical practices".

7 On 30 July 1997 the President wrote to Professor Deryck Schreuder, the then Vice-Chancellor of the University of Western Sydney, advising him of Ms Adams' complaint of sex discrimination and inviting a response.

8 Professor Schreuder responded to the President's letter on 26 August 1997 by stating that there was no discrimination against Ms Adams. He provided the President with a copy of a letter to Professor Schreuder from Professor David Barr, dated 21 August 1997. Professor Barr was the Deputy Vice-Chancellor of the University of Western Sydney and the President of its Macarthur campus where Ms Adams had worked. In his letter Professor Barr indicated that he had made the decision not to renew Ms Adams' contract of employment. He stated that his reasons for not offering Ms Adams a new contract were set out in his letter to her, dated 10 October 1996. A copy of that letter was annexed to Professor Barr's letter to Professor Schreuder. The relevant portion of that letter states:

I now wish to advise that the position you are holding will not continue in the same form beyond the expiry date of your contract (i.e. 23 February 1997) and that the University will not be offering you a new contract of employment. It is the University's intention to review the existing roles of the Registrar and that of the Manager of the Division of Management Information and Planning with a view to the Registrar having a stronger role in the management information and planning function.

9 Annexed to Professor Barr's letter of 21 August 1997 to Professor Schreuder was a report, dated 20 May 1997, prepared by Dr Janet Dash, the Manager of EEO and Affirmative Action at UWS Macarthur, titled `Complaint of Systemic Discrimination on Grounds of Gender'. This report was prepared by Dr Dash, at Professor Barr's direction, in response to a grievance which Ms Adams had lodged with Dr Dash on 8 November 1996 concerning the decision by the respondent not to renew Ms Adams' contract of employment. This grievance was described by Dr Dash, in a memorandum to Professor Barr dated 12 December 1996, as "a complaint of systemic discrimination on the grounds of gender".

10 In setting out the background to this complaint it is useful to quote extensively from Dr Dash's report of 20 May 1997:

In 1989 all of the Deans were offered contract appointment to replace the previous employment situation. The correspondence indicates consistency and no differences on a gender basis. From this time on all of the new appointments to senior managers and Deans were offered on contracts. By 1994 all of the pool of senior managers would have been on contract. Each contract contains a standard clause which allowed for the non-renewal of the contract. Correspondence for renewal of contracts indicates the same procedures for individuals. The standard length of time was 5 years, although this was varied to provide a shorter contract where the incumbent had indicated intention to retire; this appeared twice (1 female, 1 male).

A standard letter is sent from the Personnel Section, about 8 months prior to the end of a contract, to alert the senior executive responsible for the manager's position. The responsible senior executive makes a recommendation to the CEO, who discusses all aspects of the position and organisational structure. Between 1994 and end 1997 there were fourteen such reviews of senior management contracts by the CEO and of these, a decision to renew the contract was made in 11 cases, and not to renew in three cases. In two of these cases, after a discussion concerning the new directions the positions would take, the incumbents (1 male, 1 female) decided not to apply for renewal, and sought other options outside the University. As a result, the Deputy CEO's position was not replaced and 2 new positions of Pro-Vice Chancellor were instituted.

The remaining case (Ms Adams) arose more recently in a climate of financial cutbacks produced by the Federal Government's budget statement in August 1996. In this context, the decision was taken to restructure the Registrar's Department.

In the 6 years to end of 1996 the following patterns of separation from the senior management pool were found:

Retirements, including medical retirement, were 5 - 1 female, 4 males

Voluntary redundancies (from tenured positions) - 1 male

Resignations to take up an advertised position elsewhere - 0

Those seeking renewal of contract were 12 in this period. They were 3 females and 9 males. Those successful were 2 females and 9 males

Those unsuccessful in renewal were 1 female

Total separations in this group in 1996 were 7 people - 2 females and 5 males.

11 Dr Dash concluded her report by stating:

The reason that Ms Adams' contract was not renewed was due to a restructuring within the Registrar's Division, coinciding with the Registrar's impending retirement and Ms Adams' end of contract, in a climate of financial cutbacks.

Technically the non-renewal of Ms Adams' contract did not constitute discrimination on the grounds of gender. Because the number of women in the senior management pool are so small, various employment practices appear to impact more heavily on this group. For example, the attrition rate is proportionately higher for women in this group but cannot be attributed to the non-renewal of contracts, except in Ms Adams' case.

12 Ms Adams was provided with copies of Professor Barr's letter of 21 August 1997 and Dr Dash's report of 20 May 1997 by the President and asked to comment. She responded in some detail. In her letter to the Board, dated 9 October 1997, Ms Adams stated:

In essence, my comments relate to the University's response and my views that:

the University treated me unfairly in rejecting the recommendation of the Registrar that my 5 year contract as Manager, Management Information and Planning, should be renewed

a male manager in my situation would have had his contract renewed

in its response, the University has failed to substantiate the reasons it gave for not renewing my contract; in particular, my position was not abolished and the University has recently advertised a management position which is similar, if not identical, to the one I held

there have been no savings as a result of action taken by the University since my contract expired

Dr Dash's data and analysis fail to support the conclusion that there is no systemic sex discrimination in the University of a kind that would account for my non-renewal.

13 In a document attached to that letter to the Board Ms Adams stated:

I believe I have been treated unfairly. A very sound recommendation from the Registrar (a member of the Senior Executive) was rejected without consultation in an organization where custom and practice suggested contracts for core positions were generally renewed unless performance was in question. It was rejected without due notice, with undue hardship and for reasons that could not be substantiated at the time and certainly cannot be substantiated in hindsight. The proposed restructure has made little material change to my position and there have been no savings.

I do not know what the underlying reasons for not renewing my contract were. I do know that this is not the first time I have been treated unfairly. In 1992 the University failed to take prompt action against a member of staff (formerly the Executive Officer to the President) who harassed me over a long period of time.

In 1995 the Deputy CEO prepared a document that was highly critical of me and presented it to the Senior Executive without seeking prior comment from me or the Registrar. I was refused the opportunity to prepare a written response to false allegations of professional incompetence.

14 The President's report indicates that following a conciliation conference, which did not resolve the matter, the complaint was referred to the Tribunal for hearing at Ms Adams' request.

15 When the complaint was listed before the Tribunal for mention the usual directions concerning the filing of Points of Claim and Points of Defence were made. Paragraphs 16, 17 and 18 of the complainant's Points of Claim are significant:

16. For the purposes of s24(1)(a) of the Act the Respondent discriminated against the Complainant on the grounds of her sex in that the Respondent treated the Complainant less favourably than in the same circumstances, or in circumstances which were not materially different, the perpetrator treated or would treat a man.

Particulars

(a) The less favourable treatment was not renewing the Complainant's contract when the Respondent renewed all of the contracts of the male mangers which came due for consideration between 1994 and 1996

(b) The circumstances which were the same or which were not materially different included:

(1) The Complainant and the male managers were employed on similar fixed term contracts.

(2) The contracts provide for termination of services on one month's notice in writing if the employees' services are considered to be unsatisfactory. Neither the Complainant nor any of the male managers were terminated for unsatisfactory services.

(3) The Complainant and the male managers were employed as general staff at the University of Western Sydney Macarthur at Grade 11/12 under the Higher Education General And Salaried Staff (Interim) Award 1989. They were all subsequently employed at Level 10 under the University of Western Sydney Higher Education National Framework on Enterprise Agreement (General Staff) Agreement 1993.

(4) The contracts of the Complainant and the male managers all became due for consideration between 1994 and 1996 as to whether new contracts of employment would be offered.

(5) The criteria for considering whether to offer new contracts of employment to the Complainant and the male managers between 1994 and 1996 were based on "the particular strategic priorities, operational demands and fiscal constraints at the time" (Tab 4 of the Report of the President of the Anti-Discrimination Board, the letter from the Deputy President dated 21 August 1997).

(c) The treatment afforded to male managers was to renew their contracts of employment, which is the treatment that would have been afforded to the Complainant if she had been a man.

17. For the purposes of s24(1)(b) of the Act the Respondent discriminated against the Complainant on the ground of her sex in that the Respondent implicitly required the Complainant to comply with a requirement or condition that she be a male person in order to have her contract renewed, being a requirement or condition with which a substantially higher proportion of men comply, or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case, and with which the Complainant does not or is not able to comply.

18. The Respondent unlawfully discriminated against the Complainant in contravention of s25(2) by not renewing her contract.

In its Point of Defence the respondent denied the allegations contained in these paragraphs.

The Evidence

16 The complainant, Ms Adams, gave evidence. She had prepared a lengthy written statement with 19 documents annexed to it (Exhibit 3). The complainant's statement was, in effect, an elaboration of her original complaint to the President and the subsequent material provided to the President, which has been described at paragraphs 11 and 12. No other persons were called to give evidence for the complainant.

17 There appeared to be no dispute between the parties concerning the principal terms and conditions of Ms Adams' contract of employment, the identity of the documents which record those terms and conditions and the key events in the employment relationship. The relevant details are:

(a) Ms Adams worked for the respondent as Manager, Division of Management Information and Planning from 25 February 1992 until 24 February 1997.

(b) the respondent's offer of employment was set out in a letter to Ms Adams from the Secretary, dated 21 January 1991 (in some copies of this letter the date has been amended by hand to 21 January 1992 which would appear to be the actual date upon which it was sent. For the sake of clarity we will refer to this letter as the Secretary's letter of 21 January 1992).

(c) in this letter Ms Adams was given the option of either a "tenurable appointment" or an "appointment to a fixed term 5 year contract". If the fixed term appointment was chosen Ms Adams was to be provided with a University motor vehicle as part of her remuneration package.

(d) in this letter Ms Adams was also given advice about the respondent's approach to renewal of her contract of employment if the fixed term option was chosen. The letter stated that 6 months prior to the expiration of her contract she would be advised "(i) whether or not the position you are holding will continue to exist beyond the expiry date" and "(ii) subject to (i) whether the position will be filled by re-negotiating a new contract with you or be filled by open advertisement".

(e) by letter dated 23 January 1992 Ms Adams accepted the respondent's offer of appointment and chose the option of a fixed term contract of employment.

(f) on 12 July 1996, in a handwritten note to Professor Barr, Ms Adams' immediate supervisor the Registrar, Mr Keith Jennings, recommended "a further extension of contract".

(g) on the same day Professor Barr responded in handwriting to Mr Jennings' recommendation in the following terms:

I am unwilling to make any decisions related to contracts until after the budget. There is also an appeal outstanding on the size of this job which I would like resolved before making a decision on how we will proceed. Is it six months notice. I believe so.

(h) on 23 September 1996 Ms Adams wrote to Professor Barr requesting advice concerning the continuation of the position of Manager, Management Information and Planning beyond 23 February 1997 and, if it was to continue, "whether the position will be filled by renegotiating a new contract with me or be filled by open advertisement".

(i) on 10 October 1996 Professor Barr wrote to Ms Adams to inform her that the position she held would not be continued beyond the expiry date of her contract. The relevant portion of that letter has been reproduced in paragraph 8.

(j) Ms Adams ceased employment with the respondent on 24 February 1997. As she had not been given six months notice concerning the continuation of her position, as set out in the University's Secretary's letter to her of 21 January 1992, Ms Adams was provided with remuneration to compensate her for this lack of notice.

18 Much of Ms Adams' evidence was directed towards providing the Tribunal with information concerning the people who were referred to by counsel for both parties as "the comparators". We understood these people to be, in Ms Adams' words, "a group of senior general staff Level 10 managers on long term contracts who reported to members of the senior executive". The term "Level 10 managers" is a reference to people employed as Higher Education Workers Level 10 (HEW Level 10) following the implementation of the relevant enterprise agreement for general staff which was the University of Western Sydney Higher Education National Framework on Enterprise Bargaining (General Staff) Agreement 1993 (Exhibit 24). Ms Adams' employment was covered by that enterprise agreement.

19 The core of Ms Adams' complaint of sex discrimination is set out in paragraph 7 of her written statement:

My complaint is that I was treated less favourably than the 6 male general staff Level 10 managers whose contracts came up for consideration of renewal by the Deputy President between 1994 and 1996. I did not have my contract renewed. They did have their contracts renewed. The position I held is not materially different from the current position. I assert that the reason my contract was not renewed is that I am a female.

20 At a directions hearing it had been ordered, by agreement between the parties, that the names of the "comparators" would not be published. Consequently, in these reasons, we will not refer to the names of the persons employed by the respondent with whom Ms Adams has identified herself. The titles of these six general staff positions were Manager Finance, Manager Properties, Manager Information and Technology Services, Director International Programs, Manager Human Resources and Head Library and Information Services.

21 It is our understanding that it was common ground between the parties that the occupants of these positions, at all relevant times, were male, that all of the occupants were employed in notional HEW Level 10 positions, that all were employed in fixed term positions of either three or five years duration and that when those contracts expired between 1994 and 1996 all were offered new fixed term contracts of either three or five years duration.

22 There was dispute concerning the possible inclusion of two further employees within the group of "comparators". The first was a woman who, at all relevant times, occupied the position of Head, Student Services Division. This woman was offered and accepted a renewal of her fixed term contract of employment in 1994. The complainant contended that this woman could not properly be included within the group of "comparators" because, unlike Ms Adams, she was first employed in an academic position before transferring to a general staff position. The respondent argued that this woman should be included within the group of "comparators" because she was employed in a general staff position on a fixed term contract which was renewed during the relevant period. In view of the conclusion which we have reached about the "comparators" it is unnecessary for us to resolve this dispute.

23 The second employee is a man who occupied the position of Manager, Office of Development and External Relations. It was the complainant's contention that in 1992 he was promoted from a permanent Level 8 position to a fixed term Level 10 position and that this contract was renewed in 1997 when the first fixed term contract expired. There was some uncertainty concerning this man because the documents pertaining to his employment by the respondent had not been tendered in evidence. Again, in view of the conclusion we have ultimately reached about the "comparators" it is unnecessary for us to make any findings concerning the renewal of this man's contract of employment.

24 In order to complete the picture of the evidence given by Ms Adams we should quote two portions of her statement. Ms Adams alleged that following her departure from the University a new position similar to the one she had held was created:

In November 1997 a Level 10 position remunerated at $81,000 and described as Director, Executive Information Services Unit, was advertised by the University of Western Sydney Macarthur. This position was materially no different from the position I held as Manager, Management Information and Planning. All of the duties were duties that I had performed during my employment at UWS Macarthur. The position reported to the Registrar and the Executive Information Services Unit has the same structure, similar role and the same staff and positions as the Management Information and Planning Division.

Ms Adams was dissatisfied with the reasons given by Professor Barr for refusing to renew her contract of employment:

No reasonable explanation was provided by the President for rejecting the Registrar's recommendation that my contract be renewed.

25 There were two witnesses for the respondent, the Deputy Vice-Chancellor Professor Barr and the former Head of Human Services, Mr John Steele. We consider the following extracts from Professor Barr's written statement (Exhibit 10) to be significant:

13. Background to the Renegotiation of Contracts for Senior Managers

13.1 Contracts for a maximum period (usually, but not in all cases, 5 years) for senior managers at what is now UWS Macarthur were introduced in 1989, prior to UWS Macarthur becoming a member of UWS. The contracts were used to provide more flexibility and productivity for UWS and the employee.

13.2 After UWS Macarthur became a member of UWS, it continued to use contracts for senior managers.

13.3 Up until August 1996, most contract employees who, during the period of their contract, performed their duties satisfactorily would have expected that they would be offered a new contract if they requested it. Having said this, however, contract renegotiations were always subject to UWS Macarthur having sufficient work to justify the offering of a further contract. In addition, UWS Macarthur was careful to ensure that representations were not made to senior managers which may have prematurely led them to believe that their contract may be or would be renegotiated.

13.4 Ms Adams was never given an assurance by UWS that she was entitled to tenure. In fact her contract revealed quite the opposite intention by both parties. In this way, she was treated no differently to any other member of UWS Macarthur's senior management team.

13.5 For the reasons set out in 14, since August 1996 financial and management considerations became much more important in considering whether contracts should be renegotiated. The decision whether to offer a further contract has depended much more on the performance of the manager, the performance of the unit for which the manager is responsible and UWS Macarthur's financial position. From August 1996 to November 1999, the contracts of 7 senior managers will have expired. Of those 7, only 2 senior managers - one male, one female - have entered or will enter into new contracts with UWS. The balance of the senior managers whose contracts will have expired from August 1996 to November 1999 have not entered into new contracts with UWS.

14. Budget Considerations

14.1 The Federal Liberal government's budget was released in August 1996 (`Budget') following their election the previous March. In light of the election campaign and subsequent statements by Government ministers there was a clear expectation that there were going to be very significant changes to university funding......

14.8 The decision not of offer Ms Adams a further contract was part of the productivity drive at UWS as a direct result of the Budget......

16. Factors in the decision not to offer Ms Adams a further contract

16.1 In July 1996, I considered the following factors in relation to the position of Manager, MIP:

(a) I was aware that Ms Adams' contract was coming to an end early in 1997;

(b) the Budget was due to be handed down in August 1996;

(c) I had concerns about some aspects of Ms Adams' performance;

(d) the strategic planning aspect of the Manager, MIP had not been well conducted during Ms Adams' appointment;

(e) although Mr Jennings' contract was not due to expire until 22 March 1997, he indicated to me orally in May 1996 and confirmed in writing on 22 July 1996 that he intended to retire in the first quarter of 1997; and

(f) I wished to conduct a review of the allocation of responsibilities between the Registrar and Manager, MIP.

16.2 The fact that Ms Adams is female was completely irrelevant to my decision not to offer her a further contract after her contract expired. My decision would have been the same if a male had occupied Ms Adams' position at the time, provided that all other things were equal.....

21.5 The new position of Director, Executive Information Services is different to the position occupied by Ms Adams in some respects, although some of the duties also remain the same. The main difference between the new position and the position that was held by Ms Adams is that the responsibility for strategic planning is now that of the Registrar.

26 Mr Steele's statement was tendered (Exhibit 11); he was not required for cross-examination. Mr Steele was Head of Human Resources at the respondent's Macarthur campus from June 1991 until August 1998. He left his position with the respondent to take up an appointment at a university in England. The following extracts from Mr Steele's statement are of significance:

6.1 At the time of my resignation from UWSM all senior managers at UWSM were employed under fixed term contracts. Since 1989 there has been a practice to offer all senior managers contract employment in lieu of tenured employment. The rationale for this was consistent with employment trends in relation to the employment of senior management in the private sector at that time - due to a desire to make senior managers more accountable and provide organisational flexibility.

7.1 The senior managers were not the only group of UWSM employees to be employed on fixed term contracts. A number of academic employees as well as some general staff were also employed on fixed term contracts.

8.1 Around 1989 existing senior managers employed on a tenured basis were given a choice to move to fixed term employment. New employees were given the option of tenured or fixed term employment. I am aware of 2 senior managers who were previously employed on tenure who subsequently accepted offers to go onto 5 year fixed term contracts on the same conditions as those offered to Gayle Adams (`Ms Adams').

9.1 The issuing of a new contract upon expiry of a senior manager's contract was not automatic. I was not usually privy to the decision making process surrounding the expiration or renegotiation of senior manager contracts.

30.1 In accordance with the standard process for determining whether a senior managers' contract will expire or be renegotiated, automatic memoranda, dated 8 July 1996 and 11 September 1996, were produced by the Human Resources Division and sent to Keith Jennings, Registrar of UWSM, Ms Adams' line manager (`Mr Jennings'). The memoranda reminded Mr Jennings that Ms Adams' contract was to expire on 24 February 1996 and requested that Mr Jennings provide a recommendation as to whether Ms Adams' contact should expire or be renegotiated.

31.1 I had a conversation with Ms Adams in my office, sometime before six months of her contract remained, in words to the following effect:

Ms Adams: `When does the University have to tell me whether or not my contract will be renewed?'

Me: `Your contract provides for the University to give you six month's notice of whether they intended to renegotiate your contract or not...'

Ms Adams: `When is that?'

Me: `Around late August.'

32.1 Ms Adams rang me at least once subsequently to the above conversation and prior to the decision being made to ask me:

`Do you know what's happening with my contract?'

Me: `I don't know, but you should follow it up with Keith [Jennings], get him to chase David [Professor Barr].'

33.1 I met with Mr Jennings in relation to the expiration of Ms Adams' contract sometime before October 1996. I cannot recall at whose instigation the meeting took place. We discussed the general process in relation to the expiration of Ms Adams' contract. I no longer recall the detail of that conversation.

34.1 Five senior managers reported to Mr Jennings. As Mr Jennings was only employed at the University for a period of less than five years, he only had to deal with the expiration of one or two contracts of senior managers reporting to him. It was not unusual therefore that he should discuss the expiration of Ms Adams' contract.

35.1 I met with Professor Barr, at his request, in relation to the expiration of Ms Adams' contract in early October 1996. He told me of his decision not to renegotiate Ms Adams' contract in words to the following effect:

`I have decided not to renegotiate Gayle's contract. As Keith [Jennings] is leaving it gives me an opportunity to re-structure MIP and the Registrar position - especially in light of the funding cuts. I think the strategic planning element of Gayle's job needs to be under the direct control of the Registrar so that they can be more hands on. What are the legal aspects that I should be aware of? Can you draft me a letter to send to Ms Adams advising her of my decision.'

36.1 Apart from reminding Professor Barr in passing that he had to make a decision about the expiration of Ms Adams' contract this was the only time I discussed the expiration of Ms Adams' contract with Professor Barr before Ms Adams was informed of the decision.

37.1 Despite the fact that since the introduction of fixed term contracts for senior management in 1989 and up to the expiry of Ms Adams' contract in February 1997 all senior managers whose contracts had expired had renegotiated new contracts (bearing in mind that there were only approximately 14 employees in this category and that only 8 had actually had their contracts expire) there was not an expectation that a contract would be automatically renegotiated. The decision of whether a contract was renegotiated was ultimately in the hands of Professor Barr. It was clearly stated in all letters of offer of employment that there were no guarantees or automatic expectations that new contracts of employment would be offered. Often senior managers expressed a concern to me that their contract may not be renegotiated, as they were all aware that they had swapped or forgone the security of tenure for the greater financial gains of the fixed term contacts.

38.1 I am aware that since Ms Adams' contract expired at least one other male senior manager had not had their contract renegotiated.

Submissions made by the parties

27 As the relevant portions of the complainant's Point of Claim indicate (reproduced in paragraph 15 of these reasons), Ms Adams has alleged that the respondent contravened section 25(2) of the Act when it failed to renew her contract of employment. Whilst the complainant alleged both direct and indirect discrimination on the grounds of sex, Ms Winters made it clear from the outset that "the complainant's case is fundamentally one of direct discrimination".

28 Ms Winters submitted that there was no direct evidence of sex discrimination; the complainant's case relied upon circumstantial evidence. It was argued that there were at least six men in a similar position to Ms Adams with whom she should be compared when considering the complaint of direct discrimination. The reasons why those men fell within the statutory language of being "in the same circumstances, or in circumstances which are not materially different" to the complainant are set out in paragraph 16(b) of the Points of Claim. Ms Adams was treated less favourably than these men, it was submitted, because they had their contracts of employment renewed and she did not.

29 Ms Winters submitted that a reason for the less favourable treatment was the complainant's gender. The reasoning process advanced by Ms Winters to reach this conclusion was quite complex. She submitted that the Tribunal should not accept the reason given by Professor Barr in his letter to Ms Adams of 10 October 1996 (reproduced in paragraph 8) for failing to renew the contract because he later gave reasons for that decision which are different to the reason given in the letter of 10 October 1996. To compress the argument, Ms Winters submitted that the original reason given by Professor Barr was the need to restructure the positions held by Ms Adams and the Registrar, whereas at later times there were references to the 1996 Budget and Ms Adams' work performance as factors which influenced the decision not to renew her contract. In Ms Winters' words, "the reasons appear to be a bit of a moving feast......because they're trying to muddy the waters".

30 As we understood the submission, the Tribunal should look to the evidence concerning the contract renewal of the six male "comparators" in order to conclude that the sex of the complainant was a reason which caused the respondent not to renew her contract of employment. Ms Winters submitted that the state of mind of the relevant decision maker, Professor Barr, was not in issue. It was open to the Tribunal to conclude, on the evidence, that gender was an issue which subconsciously caused Professor Barr to decline to renew Ms Adams' contract.

31 The respondent did not dispute the fact that it failed to renew Ms Adams' contract of employment. It denied, however, that this decision constituted discrimination on the ground of sex. When undertaking the comparison required by section 24(1)(a) of the Act Ms Oakley submitted that the Tribunal should consider a broader group of "comparators" than that advanced by the complainant. According to Ms Oakley it was necessary to consider HEW Level 10 employees on fixed term contracts whose contracts expired both before and after the date upon which the decision was made not to renew the complainant's contract. The reason for this was the impact which the 1996 Federal Budget had upon decision making within the respondent. Because that Budget had an adverse impact upon the finances available to the respondent, senior managers whose contracts expired subsequent to August 1996 could no longer have a reasonable expectation that the contract would be renewed. By looking at this broader period the size of the relevant group of "comparators" is expanded. Some men whose contracts expired after the August 1996 Budget did not have their contracts renewed, whilst others accepted redundancy packages or retired. In Ms Oakley's submission the woman who occupied the position of Head of Student Services Division, and who had her contract renewed, should also be included within the "comparators" group. If the group of "comparators" is enlarged in this way the complainant's case is not so stark.

32 Ms Oakley submitted that even if the Tribunal were to find that the respondent had treated the complainant less favourably than it treated men in the same or similar circumstances there was no evidence upon which it could find that a reason for this differential treatment was the sex of the complainant. Professor Barr's evidence concerning his reasons for failing to renew the complainant's contract was not challenged in cross-examination and should be accepted Ms Oakley submitted.

The law

33 In every complaint of unlawful discrimination the Tribunal must first determine whether the impugned act of the respondent falls within a substantive provision of the Act and then, if that question is answered in the affirmative, determine whether the respondent's act constituted discrimination within the meaning of the Act (see Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at para. 82). This process must be undertaken because not all discrimination on the basis of sex is unlawful; it is only discrimination on the ground of sex in the areas covered by the Act - work, education, provision of goods and services, accommodation and membership of registered clubs - which is unlawful. Further, discrimination on the ground of sex is defined in the Act. Consequently, it is only sex discrimination which falls within one of the areas covered by the Act (the substantive provisions) and which satisfies the statutory definition of discrimination on the ground of sex which is unlawful.

34 In this case the complainant has alleged that the relevant substantive provision is section 25(2) which states:

It is unlawful for an employer to discriminate against an employee on the ground of sex:

(a) in the terms of conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

35 It appears that the relevant paragraph in section 25(2) is (c) for there is no evidence to suggest that the complaint falls within either paragraphs (a) or (b) of that sub-section. Only the second part of paragraph (c) is relevant for the complainant was not dismissed; her contract of employment expired due to the effluxion of time and it was not renewed. The phrase "subjecting the employee to any other detriment" is extremely broad. On the facts of this case it would appear that failing to offer the complainant a new contract, or failing to extend her existing contract, is capable of falling within that phrase, especially when there is undisputed evidence that other employees were offered new contracts or had existing contracts extended.

36 Discrimination on the ground of sex is defined in section 24(1) of the Act which states:

A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply

37 In this case the complainant has alleged that the respondent's act which subjected her to a detriment within the meaning of section 25(2)(c) fell within both paragraphs (a) and (b) of section 24(1). In other words, the complainant has alleged that the respondent committed acts of both direct and indirect sex discrimination.

38 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at para. 44 an Appeal Panel of this Tribunal, after reviewing various authorities in relation to cases of direct discrimination, formulated a question which the Tribunal should pose for itself in cases of this nature. In the circumstances of this case that question is: did the respondent, on the ground of sex, treat Ms Adams less favourably than it treated or would have treated a man in the same circumstances, or in circumstances which were not materially different?

39 The Appeal Panel went on to say:

It is useful, for the purposes of analysis, to identify and label the two key components of this question. The first component is differential treatment and the second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.

40 To adapt the language used in Commissioner of Corrective Services v Aldridge to the circumstances of this case, for differential treatment to have occurred the treatment of Ms Adams must have been objectively less favourable than the treatment which was actually afforded to a man, or which would have been afforded to a man in the same circumstances as Ms Adams, or in circumstances which were not materially different.

41 There is little clear authority to assist the Tribunal in determining how to undertake the comparison required by the Act. When are circumstances the same, or not materially different? Ms Winters submitted that it is a question of fact, which clearly seems to be correct. The statutory language - the use of the words "treats or would treat" - appears to suggest that the Tribunal could consider either the treatment afforded by the respondent to an actual man in the same or similar circumstances to the complainant or, if this comparison is not possible on the facts of the case, the treatment which the respondent would have afforded to a hypothetical man in the same or similar circumstances to the complainant.

42 In Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 Mahoney JA appears to suggest that the comparison must be between the treatment actually afforded to the complainant and that which would have been afforded to a hypothetical person of a different sex, rather than that which was actually afforded to a person of a different sex. He stated, when discussing the meaning of the words "less favourably":

These words require that there be two situations or sets of circumstances, the actual and the hypothesized, so that it can be determined by a comparison whether treatment in the former is "less favourable" than in the latter.

Despite this statement Mahoney JA goes on to give an example of his understanding of the direct discrimination provisions of the Act which involves a comparison between two actual people who are applicants for the same job.

43 In Haines v Leves [1987] 8 NSWLR 442, which was a case of sex discrimination in education, the former Equal Opportunity Tribunal compared the actual treatment afforded to the female complainant with that afforded to her twin brother. Kirby P asked rhetorically "whether the comparison between Melinda and Rhys was a valid one or whether it unduly narrowed the hypothetical comparison required by the Act" (at p. 473) and went on to state that "the comparison between Melinda and her brother Rhys is not, strictly, the comparison required by the Act".

44 The statutory intent seems clear, however. When considering the differential treatment element of a direct sex discrimination case the Tribunal should consider whether the treatment which was afforded to the complainant was objectively less favourable than that afforded to an actual person of the opposite sex in the same or similar circumstances, if such a comparison is possible on the facts of the case. Clearly, in some cases, this comparison will be possible, whilst in others, it will not. If an actual comparison is not possible then the Tribunal must undertake the artificial exercise of seeking to determine how the respondent would have treated a person of the opposite sex in the same or similar circumstances to the complainant. In each case it is a question of fact whether on the evidence a comparison with an actual person (or persons) is possible or whether, in the absence of such evidence, a comparison with a hypothetical person becomes necessary.

45 The second key component of direct discrimination identified in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at para 47 is causation. The law in relation to causation was succinctly stated by McHugh J in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 400-401 when discussing the definition of direct discrimination in Victorian legislation:

The words "on the ground of the status or by reason of the private life of the other person" in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against.....the words "on the ground of" and "by reason of" require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of the act.....

46 A question which arises for consideration in this case is how causation may be proved or, in other words, how it may be proved that the respondent performed the impugned act on the ground of sex. The authorities suggest that the totality of the circumstances of the case must be considered. In some cases there will be direct evidence of the reasons or grounds for the impugned act which may permit a conclusion that the act was performed on the ground of sex, whilst in other it will be appropriate to draw the inference from circumstantial evidence that sex was a ground upon which the respondent performed the impugned act. In some instances it may be possible to draw the inference that sex was a ground for the impugned act because the Tribunal rejects the stated ground or grounds for an act advanced by the respondent. Ms Winters submitted that we should reach that conclusion in this case. As a matter of general principle it is a finding open to the Tribunal. It is a question of fact whether that finding should be made in this case.

47 The issue of the proof of causation was considered at some length by Lockhart J in Human Rights and Equal Opportunity Commission v Ms Isa Mines Ltd (1993) 118 ALR 80 when discussing the analogous direct discrimination provisions of the Sex Discrimination Act 1984. Lockhart J stated (at pp 102-103):

In my view the Act requires that when an inquiry is being held into alleged discrimination prohibited by s14(2) on the ground of the sex of an employee, all the relevant circumstances surrounding the alleged discriminatory conduct should be examined. The intention of the defendant is not necessarily irrelevant. The purpose and motive of the defendant may also be relevant. The law draws distinctions between the concepts of intention, motive and purpose for various purposes, some of which were adverted to by Lord Goff in Eastleigh at 773. In some cases they may be central to the case. An obvious example is where a man refuses to employ women because he does not like women. In other cases, of which Birmingham and Eastleigh are examples, intention, motive or purpose may be of little, if any, relevance ......

Thus, in some cases intention may be critical; but in others it may be of little, if any, significance. The objects of the SD Act would be frustrated, however, if sections were to be interpreted as requiring in every case intention, motive or purpose of the alleged discriminator: see Waters per Mason CJ and Gaudron at 173 CLR at 359 ......

Ultimately the question must be decided by determining whether there is a relationship of cause and effect between the sex (or characteristic of the kind mentioned in s5(1)(b) or (c) of the Act) of the aggrieved person and the less favourable treatment of that person, but I do not accept that this inquiry necessarily rejects the motive, intention or purpose of the alleged discriminator.

48 These statements by Lockhart J in Human Rights and Equal Opportunity Commission v Ms Isa Mines Ltd (1993) 118 ALR 80 render it easier to understand relevant statements by various justices of the High Court which may appear to be inconsistent. When dealing with the issue of causation we understood Ms Winters to be relying upon the following statements of Deane and Gaudron JJ in Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 176:

It is not difficult to envisage situations in which the ground of an act or decision may be identifiable as one falling with s24(1)(a), (b) or (c) notwithstanding that the act or decision is not actuated by a motive to discriminate. One need go no further by way of example than an act or decision - as in the past frequently happened - denying women certain opportunities by reference to the inadequacy of toilet facilities. And in that situation it is possible that "consciousness" may extend only to the inadequacy of toilet facilities without a full appreciation that that consideration is but an aspect of a characteristic that appertains generally or is generally imputed to women. And there may be other situations in which habits of thought and preconceptions may so affect an individual's perception of persons with particular characteristics that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision. Thus in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or decision. And that my also be the case where some factor is identified as common to a significant proportion of those adversely affected.

49 The correctness of this statement was questioned by McHugh J in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 401:

The words "on the ground of the status or by reason of the private life of the other person" in s.17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept that statement of Lord Goff of Chieveley in Reg. v. Birmingham City Council; Ex parte Equal Opportunities Commission, and the statements of Deane and Gaudron JJ in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator ("the discriminator") be actuated by status or private life in a provision such as s.17(1). With great respect to Deane and Gaudron JJ., I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which falls within s. 17(5). The words "on the ground of" and "by reason of " require a casual connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ("the victim"). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently "on the ground of" status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then "the ground of" the act of the discriminator was the status or private life of the victim . But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted "on the ground of the status or by reason of the private life" of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen , the Court of Appeal of New South Wales held that the Director-General had not acted "on the ground of sex" in selecting principals for non-secondary schools from a primary school promotions list rather than an infants school promotions list even though the use of the former list favoured male teachers. Only 1.5 percent of teachers of the infants list were male but on the primary school list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to s.17(5). At the relevant time, however, the Anti-Discrimination Act had no such equivalent [citations omitted].

50 In the same case Mason CJ and Gaudron J stated (at p 359):

There is some force in the suggestion that the expressions "on the ground of the status" and "by reason of the private life' in s.17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, "to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status". It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of "on the ground of" and "by reason of". A similar view was adopted by the House of Lords in Reg v Birmingham City Council; Ex parte Equal Opportunities Commission in relation to s.1(1)(a) of the Sex Discrimination Act (U.K.) which proscribes less favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said: "The intention or motive of the defendant to discriminate.....is not a necessary condition of liability." His Lordship noted (24) that, if intention or motive were relevant "it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question received less favourable treatment than the boys" (emphasis added). (See also the discussion by Deane and Gaudron JJ. in Banovic.) [citations omitted]

51 It may be possible to reconcile these statements by reference to the quoted remarks of Lockhart J in Human Rights and Equal Opportunity Commission v Ms Isa Mines Ltd. In a case of direct discrimination on the ground of sex it is not necessary to prove that the respondent intended to discriminate against the complainant, in the sense that the respondent meant some disadvantage to flow to the complainant because of her sex. The respondent may intend no harm to the complainant but still be guilty of sex discrimination if the gender of the complainant was a reason which caused him to perform an act which results in the complainant receiving objectively less favourable treatment than a man. As Lockhart J pointed out in Mt Isa Mines, evidence concerning the actual intention of the respondent may assist in determining the ultimate issue upon which liability rests: whether gender was a reason or ground for the respondent's impugned act.

52 The point of greatest difficulty is whether the gender of the complainant must be a factor which the respondent knowingly took into account when he decided to act as he did. It is clearly not necessary for gender per se to be knowingly taken into account because of the language used in section 24(1A):

For the purposes of subsection (1)(a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

53 Thus a respondent may be moved or actuated by a characteristic that appertains generally to women, or that is generally imputed to women, without turning his mind to the fact that an underlying or base reason for his action is the gender of the complainant. In such circumstances the respondent's act of sex discrimination would be unconscious, in the sense that the gender of the complainant may not be a factor to which he turned his mind when making the decision in question, but his action would still amount to unlawful sex discrimination because a characteristic which appertains generally to women, or which is generally imputed to women, has been a factor which influenced his decision. Viewed in this way the statements of Deane and Gaudron JJ in Banovic, Mason CJ and Gaudron JJ in Waters and McHugh J in Waters are reconcilable to at least some extent. In a direct discrimination case it must be proved that the respondent knowingly took into account either the gender or a characteristic of the gender of the complainant when seeking to determine whether the impugned act was done on the ground of sex.

54 Of course, as McHugh J pointed out in Waters, the complainant in seeking to prove her case "is not bound by the verbal formula which the discriminator has used". It is quite open to a complainant to point to evidence which suggests that the respondent's stated reasons for his actions are a ruse or a pretext. It is also quite open to a complainant to argue that the respondent did not knowingly take gender per se into account, but that one of the factors which knowingly influenced him to act as he did was a matter that is a characteristic which appertains generally to women, or which is imputed generally to women. Ultimately, however, the Tribunal must be persuaded on the evidence that the respondent knowingly took into account either gender, or a characteristic of gender, if the respondent is to be found to have committed an act of unlawful sex discrimination. As section 4A of the Act makes clear, sex need only be a reason for the impugned act in order for the respondent's conduct to be unlawful. It is unnecessary for the Tribunal to determine whether sex was a dominant or significant reason for the act in question.

Conclusions

55 As we indicated at paragraph 33, the Tribunal must first determine whether the impugned act of the respondent falls within a substantive provision of the Act. There was no dispute between the parties that the complainant was employed by the respondent on a fixed term contract of employment from 25 February 1992 until 24 February 1997. On 10 October 1996 the respondent informed the complainant that her contract would not be renewed when it expired. The respondent did not in fact extend the contract and Ms Adams ceased employment with the respondent on 24 February 1997. These matters were not in contention.

56 It was also not disputed that other people employed by the respondent on fixed term contracts of employment had their contracts renewed when they expired. We do find that the respondent failed to offer to renew Ms Adams' contract of employment when it expired and that this failure, in the circumstances of this case, constitutes an employer "subjecting the employee to any other detriment" pursuant to section 25(2)(c)of the Act. Thus Ms Adam's complaint falls within a substantive provision of the Act. It is necessary, however, for her to prove that her employer subjected her to detriment on the ground of sex if her complaint of unlawful sex discrimination is to succeed. In order to determine the complaint of direct discrimination made by Ms Adams the Tribunal must ask itself whether, on the evidence, it is satisfied that the respondent, on the ground of sex treated her less favourably than it treated or would have treated a man in the same circumstances, or in circumstances which were not materially different.

57 To adopt the terminology used by the Appeal Panel in Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5, we must consider the components of both differential treatment and causation in order to determine whether there has been direct discrimination on the ground of sex in this case. As the Appeal Panel pointed out in Aldridge,the issue of differential treatment should be considered first because if there is no finding of relevant differential treatment it is, strictly speaking, unnecessary to consider the issue of causation.

58 We stated at paragraph 44 that the Tribunal should first consider whether the treatment which was afforded to Ms Adams by the respondent was objectively less favourable than the treatment which it afforded to an actual man, or men, in the same circumstances, or in circumstances which were not materially different. We have concluded, on the facts of this case, that it is not possible to make a comparison with an actual man or men.

59 There was nobody employed by the respondent, man or woman, whose circumstances were the same as the complainant. There was only one position of Manager of Management Information and Planning during the period of Ms Adams' employment with the respondent. Ms Adams has argued, however, that there were a number of men whose circumstances were similar to hers and with whom she should be compared for the purpose of determining whether she has been the victim of direct discrimination on the ground of sex.

60 Whether there were men whose circumstances were not materially different to those of Ms Adams, thereby permitting the statutory comparison to be made with actual people, is a question of fact. We have determined that the evidence does not disclose any men employed by the respondent with whom Ms Adams can be compared because "the circumstances" of all the men about whom we heard evidence were materially different to "the circumstances" of Ms Adams. There was dispute between the parties concerning the men with whom Ms Adams should be compared. We have concluded that it is unnecessary to determine that dispute because even the "comparators" identified by the complainant are men whose circumstances were materially different to those of Ms Adams.

61 The only similarities between the complainant and the six male members of general staff with whom Ms Adams sought to compare herself were that all were engaged on fixed term contracts of employment, all were middle managers and all were employed at the same notional classification level (Level 10) under the relevant enterprise agreement. By contrast Ms Adams and the six males all performed vastly different jobs (the position descriptions are set out in paragraph 19), they were paid different salaries, their contracts commenced and expired at different times, their contracts were not of the same duration, they reported to different members of senior management of the respondent, they had different employment histories and they had different qualifications and levels of experience. In addition, the respondent made decisions about renewing the contracts of employment of these middle managers over a period of years in a climate of significant change, including variations in the level of resources available to it. Consequently, it is not possible to conclude that the male "comparators" identified by the complainant were afforded treatment by the respondent in circumstances which were not materially different to those of the complainant.

62 It is, therefore, necessary for the Tribunal, when determining the issue of differential treatment, to consider how the respondent would have treated a hypothetical man in the same or similar circumstances to the complainant. When considering this issue we believe it is permissible to take into account evidence concerning the treatment of actual men employed by the respondent even though their circumstances may be materially different to those of the complainant. This evidence falls within the notion of "all the relevant circumstances surrounding the alleged discriminatory conduct" identified by Lockhart J in Human Rights and Equal Opportunity Commission v Ms Isa Mines Ltd (1993) 118 ALR 80 at 102.

63 In this case, despite the evidence that six HEW Level 10 middle managers employed on fixed term contracts had their contracts renewed, there is insufficient evidence to satisfy us, on the balance of probabilities, that the respondent would have treated a hypothetical man differently to Ms Adams had that person been in the same circumstances as Ms Adams, or in circumstances which were not materially different.

64 Having reached this conclusion, Ms Adams' complaint of direct discrimination must fail. It is, strictly speaking, unnecessary for us to consider the issue of causation but we will do so in case we are mistaken in our finding that Ms Adams cannot compare herself with the six male middle managers because their circumstances differ materially from hers. We have set out at some length, in paragraphs 45 to 54, our understanding of the relevant law concerning causation.

65 It is instructive to refer to Ms Adams' Points of Claim, the relevant portions of which are set out in paragraph 14 of these reasons. The complainant did not include an allegation about causation in her Points of Claim. In paragraph 16 of her Points of Claim she made an allegation concerning differential treatment and provided detailed particulars in support of that allegation. Nowhere in the Points of Claim does she allege that a reason for the differential treatment of which she complains was her gender. This point was not taken by the respondent at the hearing and Ms Winters made submissions concerning the issue of causation. In our opinion those submissions sought to draw too much from the statements of Deane and Gaudron JJ in Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 176 which have been reproduced in paragraph 48 of these reasons. As we said at paragraph 53, the Tribunal must be satisfied that the respondent knowingly took into account either gender, or a characteristic of gender, when it failed to renew Ms Adams' contract of employment in order for the complaint of direct discrimination on the ground of sex to succeed.

66 In this case we cannot be satisfied that Ms Adams' gender, or a characteristic of her gender, was a reason which caused the respondent to fail to renew her contract of employment. Certainly the reasons which she was given for the failure to renew her contract were sparse and she is understandably aggrieved by that decision, especially following the recommendation by her immediate supervisor Mr Jennings that there be "a further extension of contract". The respondent, however, was legally entitled to act as it did. It informed Ms Adams that it had decided not to renew her fixed term contract, it gave Ms Adams' the briefest of reasons for that decision, it did not permit her to argue her own case before the decision in question was made and it ultimately permitted her contract of employment to expire. These practices conform with the law concerning fixed term contracts of employment as stated by Professors Creighton and Stewart in Labour Law : an introduction, 3rd ed, Sydney : Federation Press, 2000 at page 297:

The orthodox view is that not only is an employer not required to show cause when exercising a contractual power of termination (unless of course the contract itself imposes that condition), there is not even an obligation to accord the employee the basic procedural requirements suggested by the rules of natural justice.

67 This is not a case in which the respondent could be said to have shown proper cause for its decision to terminate its employment relationship with Ms Adams. But neither the Act nor the common law require it to do so. Under other statutory schemes, such as the Workplace Relations Act 1996, the onus rests with the employer to advance legitimate reasons for terminating a contract of employment when an allegation of sex discrimination is made (see sections 170 CK and 170 CQ). Under this Act, as Ms Winters rightly conceded, the onus is upon the complainant to prove that she has been discriminated against on the ground of her sex (see C. Ronalds, Discrimination Law and Practice, Sydney : Federation Press, 1998 at p 182) Ms Adams has not satisfied that onus; her suspicions concerning the reasons for the failure to renew her contract of employment do not constitute proof to the requisite standard (see Hill v University of New England (1990) EOC 92-291).

68 Professor Barr, in his evidence in this case, provided a more elaborate set of reasons for declining to renew Ms Adams' contract than he gave to Ms Adams in his initial letter to her of 10 October 1996 and to Professor Schreuder in his letter of 21 August 1997. This expansion of reasons, for taking a step for which he was not obliged legally to give any reasons, does not lead ineluctably to the conclusion that gender, or a characteristic of gender, was a reason which caused Professor Barr to act as he did. We are not persuaded that Professor Barr took into account Ms Adams' gender, or a characteristic of her gender, when he decided not to renew her contract. Ms Adams herself, in her complaint to the President (see paragraph 6 of these reasons), speculated about matters other than gender which may have caused Professor Barr to act as he did. Ms Adams' own speculation is at odds with Ms Winters' submission that there could be no explanation other than gender for Professor Barr's decision if we reject his stated reasons. Consequently, even if our analysis concerning differential treatment is incorrect, Ms Adams' complaint of direct discrimination must fail for we are not satisfied that the respondent's failure to renew her contract of employment was a detriment to which she was subjected on the ground of sex.

69 In paragraph 17 of her Points of Claim (reproduced in paragraph 14 of these reasons) Ms Adams alleged that the respondent indirectly discriminated against her on the ground of her sex. In her opening remarks to the Tribunal Ms Winters stated that "the authorities are against me on the prospect of having a finding of both direct and indirect discrimination" and "the complainant's case is fundamentally one of direct discrimination." However as Ms Winters did not withdraw the allegation of indirect discrimination we should make a finding in relation to this matter.

70 The requirement or condition with which the complainant has alleged she was required to comply was that "she be a male person in order to have her contract renewed". There was no evidence before the Tribunal which would enable us to be satisfied that the complainant was required by the respondent to be a man in order to have her contract of employment renewed. Consequently, Ms Adams' complaint of indirect discrimination must fail.

71 The decision of the Tribunal is that the complaint be dismissed. There was no application by the respondent for costs and there will be no order as to costs.