Dismissal applications

DA4: Complaint has no reasonable prospect of success

Last updated: January 31, 2024

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Legal test: section 27(1)(c) of the Human Rights Code

The respondent must show that there is no reasonable chance the complainant will win at a hearing.

See section 27(1)(c) and Tribunal cases about it.

How does a complainant win their case?

There are 2 parts to winning.

  1. Complainant proves their case
    A complainant must prove facts that show discrimination.
  2. No defence proved
    If the complainant proves their case, the respondent must prove facts that show a defence. If the respondent does not prove a defence, the complainant wins.

In most cases, the complainant must prove three things:

1. Ground of discrimination

The complainant has a characteristic such as race or disability that the Code protects, or

The respondents thinks the complainant has the characteristic.

2. Harm in a protected area

The respondent harmed the complainant in a protected area such as employment.

The legal term for harm is “adverse effect” or “adverse impact”.

3. Connection between harm and ground of discrimination

There is a connection between the harm and the ground of discrimination. For more information, see:

The legal test for discrimination is different in some areas. For more information, see:

There is a connection between the harm and the ground of discrimination.

How does a respondent show the complainant has no reasonable chance of winning?

There are two ways:

  1. The respondent shows the complainant has no reasonable chance of proving a part of their case at a hearing:
    • Ground of discrimination
    • Harm in a protected area
    • Connection between the ground and harm.
  2. The respondent shows that they will prove a defence at a hearing. The respondent must show this is “reasonably certain”.

Here are three common arguments:

  • The complainant has no evidence to show a connection between the harm and ground of discrimination.
  • My evidence shows that my conduct had nothing to do with the ground of discrimination.
  • My conduct was justified. I am reasonably certain to prove a defence.

What if the parties disagree about what happened?

It depends. In most cases the parties disagree about some things. But, the Tribunal may need a hearing to decide what happened. Usually, it depends on how important the facts are.

Example. A complainant says the respondent used racial slurs. The respondent denies it. These are important facts. The Tribunal needs a hearing to decide who to believe.

Respondent’s information (evidence)

A respondent must attach information to support what they say.

Example:

  • A respondent says they fired the complainant because of performance problems. They should give statements from:
    • the people who knew about the performance problems
    • the person who decided to fire the complainant.
  • The respondent should back this up with documents, like performance reviews.

A note about affidavits:

An affidavit is a written statement of facts. The affidavit can include documents. A person swears or affirms that they are telling the truth. A person signs their statement in front of a person with authority, like a notary or a lawyer.

Consider giving the Tribunal affidavits instead of unsworn statements. You are asking the Tribunal to dismiss someone’s complaint with no hearing. Use the best evidence you can.

Sample argument for respondent

“The complainant says her age was a factor in not being hired. She is older than the person we hired. But she has no reasonable chance of proving her age was a factor.

I hired the most qualified candidate. The person I hired had more experience than the complainant. The person I hired did better in the interview. I hired her only because of these two things.

I can show this with documents. I attach the complainant’s resumé. I also attach the resumé of the person I hired. I deleted only information that could identify her. The 2 resumés show that:

  • the person I hired had 2 years’ management experience and 10 years’ experience in the industry
  • the complainant had 1 year management experience and 5 years in the industry

I attach our hiring criteria (what we were looking for). I also attach the hiring committee’s notes. The notes show the person I hired gave better answers in 7 of 8 questions.

I also attach affidavits from each member of the hiring committee. The members each:

  • explain the job and hiring criteria
  • explain hiring process
  • say that the complainant’s age had no role at all in the hiring

The complainant only says she is older than the person I hired. The evidence shows her age had nothing to do with the hiring. She has no reasonable chance of proving her age was a factor in the hiring.”

Complainant’s information (evidence)

A complainant should attach information to support what they say happened.

Examples:

  • If there is a witness, get a statement from them. Give it to the Tribunal. 
  • If there are emails, print them. Give a copy to the Tribunal.

Sample argument for complainant

The complainant must respond to the respondent’s arguments.

First, the complainant could say where the parties agree.

Example. “The respondent agrees he fired me. The respondent agrees I am Black. He only disagrees that there is a connection between me being fired and me being Black.”

Second, the complainant should say if they disagree with the respondent’s facts.

Example. “The respondent says they fired me because of performance problems. I disagree. It is true I was late to work twice. But I don’t agree with what else they say. They never told me these were problems. They put none of it on my performance review.”

Third, the complainant should respond to the respondent’s information. They should say if there is a problem with the information. They should say if information is missing.

Fourth, the complainant should say why the respondent has not met the legal test.

Example:

  •  “The respondent says I have no reasonable chance of showing my age was a factor in not hiring me.
  • First, they say I am speculating. This is not true. I am just as qualified for the job. The only difference is my age. The Tribunal could see from these two facts that my age was a factor. This is reasonable, not speculation.
  • Second, the respondent says the person they hired had more experience. But the resumés do not show this. I worked for 4 years at ABC Company. ABC is also in the industry. I also had management responsibilities there. There might be some difference in experience. But the respondent said the final decision would be based on the interview.
  • Third, the respondent said the person they hired did better in the interview. They say she gave better answers on 7 of 8 questions. There are two problems with this.
    • First, our answers on those 7 questions were only 1 or 2 marks apart.
    • Second, I did much better on one question. But that question was only worth 5%. It should have been worth more. I attach the job description and posting. They show that this question was about an important qualification. The respondent has not explained this.”

Respondent’s reply

A respondent can reply to the complainant’s information and arguments.

The respondent should not:

  • repeat what it already said
  • give new information except to respond to the complainant
  • raise new issues.

End of submissions

After the reply, that is the end of submissions. The complainant cannot give more argument or information. There are two exceptions:

  1. The respondent raises a new issue and it would be unfair not to respond to it
  2. The respondent relies on new information and it would be unfair not to respond to it.

There is a time limit to apply to make a further submission. See Rule 28(4) and (5) of the Tribunal’s rules.

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