Hayne v YMCA NSW

NCAT Administrative and Equal Opportunity|2015-11-10|Before: Schmidt J

Introduction

Mr Hayne, a man in his mid-fifties, applied for a position as a senior lifeguard at Moruya War Memorial Pool which was operated by YMCA NSW. Mr Lindeboom interviewed him for the position but did not recommend him for appointment. YMCA did not appoint him to the position. Mr Hayne complained to the President of the Anti-Discrimination Board that the YMCA had discriminated against him on the grounds of sex and age in breach of the Anti-Discrimination Act 1977 (NSW). The YMCA denies discriminating against Mr Hayne and says that the reason he was not successful was because of comments he made during the interview.
The President declined the complaint on the basis that it was lacking in substance: Anti-Discrimination Act, s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or 'leave' for the complaint to go ahead: Anti-Discrimination Act, s 96. In this case there is insufficient evidence on which an inference could be drawn that even one of the reasons for refusing to appoint Mr Hayne was his age or his sex. YMCA has provided a credible explanation for their decision. I have refused leave in this case because the complaint lacks substance and it would not be fair or just for it to proceed.

Background

Mr Hayne says he was offered the job of lifeguard at Moruya Pool by the pool manager, Andy Baker. Following an interview conducted by Mr Lindeboom, he was not offered the position. Mr Lindeboom identified Mr Hayne's response to one of his questions as a 'red flag issue' and notified that issue to YMCA's head office. The file note Mr Lindeboom prepared dated 2 October 2014 states that: 2 October 2014 During the interview Scott explained that he was a counsellor who specialised in male youths and abused children. Scott said he had been counselling casually for several years and had the goal of going full time with his own practice. Scott said that he employed unorthodox methods to gain the respect and trust of youth in his counselling sessions. Scott's exact words were "I take a different approach; you see some kids need to be touched, they need to be wrestled. They need to know that you can pin them down with little effort." Scott then explained that he did not hurt the youth or use excessive force on them. He would just employ these practices to earn the respect of the troubled young boys he worked with. He then went on to say that he has had many success stories based on this style of counselling. I told Scott that I had concerns with a conflict of interest between YMCA policy and his practice methods. I explained that if he were successful in attaining the position that he was not to touch any children nor was he to solicit any business whilst at the centre. Scott agreed and said he would not. As Scott was very passionate and attached to his beliefs I asked how he would handle a situation in which a youth in need came to the centre that could benefit from counselling. Scott said he would keep his counselling interests and his life guarding duties separate and not mention his counselling practice to the child. After the interview I spoke to (name deleted) and asked what he thought of Scott's comments and he responded, "You don't say that sort of thing in an interview." I contacted (name deleted) after the interview to ask for direction as I found Scott's comments to be a red flag and I had concerns that Scott's counselling interests could have had a genuine negative impact on the YMCA should any of Scott's counselling methods result in an abuse allegation. I was also concerned that Scott was spending time alone with children who may be frequenting the centre and I wanted this to be disclosed to YMCA management. 6 November 2014 I received an email stating Scott's application was unsuccessful for the position of lifeguard although he had not yet been informed. (Name deleted) asked if I could make the call as I had conducted the interview.
According to YMCA, representatives from their head office held a conference on 30 October 2014 and decided to decline the application for employment. The basis for that decision was that the comments made by Mr Hayne during the interview were inconsistent with YMCA's policies and procedures, specifically with respect to working with children. Mr Lindeboom advised Mr Hayne on 6 November 2014 that his application had been unsuccessful because of a perceived conflict between YMCA's policies and the counselling methods Mr Hayne had described at the interview. Mr Hayne challenged Mr Lindeboom's decision during that conversation.
Mr Hayne made a complaint about the recruitment process and the decision not to offer him the job. Nowhere in that complaint was sex or age discrimination mentioned. Mr Hayne says he only became aware that he had been discriminated against in late January 2015 when an employee told him that he was never going to get the job because he was a "dinosaur". Mr Hayne interpreted this comment as meaning that he was an ageing male.
On 4 December 2014, Mr Hayne had a lengthy conversation with YMCA's Human Resource Manager, Ms Pearson, about the complaint. The conversation covered issues including the advertising protocol, the application process, the fact that the interview was held outside and the time it had taken to complete the recruitment process. Most significantly, Mr Hayne asked Ms Pearson whether the decision not to employ him was because YMCA considered him to be a child molester. Ms Pearson made a detailed file note of that conversation.
Mr Hayne alleges that there were references to age and gender discrimination in that conversation but they were not recorded in Ms Pearson's file note. YMCA's response was that Ms Pearson's record was accurate and the Tribunal should not accept that there was any reference made to age or gender discrimination. Mr Hayne did not mention those references in his complaint to the Anti-Discrimination Board.
In response to Mr Hayne's complaint, YMCA commissioned Integroe Partners to conduct an independent investigation. An investigation was conducted and a report delivered dated 27 January 2015. That report identified procedural anomalies in the recruitment process including conducting the interview outside but concluded that Mr Hayne had not been disadvantaged in any way because of any of the procedural anomalies.
In support of his complaint, Mr Hayne refers to an email dated 6 November 2014 which he says was written by Mr Lindeboom and addressed to him. Parts of that email were deleted but the relevant passages were as follows: Please be aware (words deleted) that everyone knows everyone down here. Andy knows what the responses were in the interview and knows that they were inappropriate. I personally spoke to him about this. Changing culture down here has been almost impossible, it's a totally different culture to anywhere that I have worked. As people know each other they hold grudges that stem back years and years, but it's impossible to recruit staff down here as well, as evident by the no application for jobs when advertised. We are very lucky to have got (words deleted) and I'm hoping in two years' time things will be different. Just appreciate that it's difficult down here and will take time to change.

Legislative provisions

Mr Hayne alleges that the decision not to employ him constitutes sex discrimination in breach of s 25(1) and age discrimination in breach of s 49ZYB of the Anti-Discrimination Act. Section 25(1) provides that: (1) It is unlawful for an employer to discriminate against a person on the ground of sex: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment.
Section 49ZYB provides that: (1) It is unlawful for an employer to discriminate against a person on the ground of age: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which employment is offered.
The complaint is one of direct sex discrimination as defined in s 24(1) and direct age discrimination as defined in s 49ZYA: (1) 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 (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if the perpetrator: (a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, 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 who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.
The effect of s 4A is that sex or age does not have to be the dominant or a substantial reason for the less favourable treatment as long as it is a reason.
To substantiate his complaints Mr Hayne would have to prove that: ◦ 1. he is a man and he is of a particular age or age group; 2. the alleged conduct relates to the arrangements YMCA made for the purpose of determining who should be offered employment or the decision YMCA made not to offer him employment, 3. YMCA treated him less favourably than it treats or would have treated a female applicant or a younger person in circumstances which are the same or not materially different: (differential treatment); and 4. at least one of the reasons for the conduct was Mr Hayne's sex or age even if that reason was not the dominant or a substantial reason for the treatment: (causation).

Consideration

There is no dispute as to the first two elements. In relation to the third element, differential treatment, there was no other applicant for the job and no one was appointed. Consequently, there is no woman or younger person with whom Mr Hayne can be compared. The Tribunal would be required to determine whether a hypothetical woman or younger person who had applied for the job and had answered a question in the same way as Mr Hayne, would have been treated any differently. In determining that issue the Tribunal would have to examine the causation element.
The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex or age is at least one of the 'real', 'genuine' or 'true' reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. As with the vast majority of complaints of discrimination, a causal link between Mr Hayne's sex or age and the alleged treatment would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: "... (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence."
The basis on which Mr Hayne submits that it can be inferred that the decisions affecting him were made because of his sex or age are that: 1. Mr Lindeboom misinterpreted his counselling methods and "red flagged" him as a risk to work with children when no one has ever expressed any concern about his suitability to work with children; 2. he only became aware that he had been discriminated against in late January 2015 when an employee told him that he was never going to get the job because he was a "dinosaur". Mr Hayne interpreted this comment as meaning that he was an ageing male; 3. Mr Lindeboom was attempting to change the culture of the organisation by not hiring older males; 4. Mr Hayne was applying for a job as a lifeguard, not a counsellor.
The basis on which YMCA submits that it can be inferred that none of the decisions it made were based on Mr Hayne's sex or age are that: 1. Mr Hayne did not raise those grounds in his initial complaint to the Human Resources Manager dated 14 November 2014 or in his subsequent conversation with Ms Pearson; 2. the reference to "changing the culture" in Mr Lindeboom's email was not a reference to refusing to employ ageing males; 3. the interview was conducted and the email was written by Mr Lindeboom but he was not the ultimate decision-maker; 4. Mr Hayne's real grievances were procedural matters relating to the interview and the recruitment process and his perception that the reason he was unsuccessful was that he was considered a risk to children. According to YMCA, that is apparent from the following response he gave to the President of the Anti-Discrimination Board on 5 June 2015: In the call from Mr Lindeboom on 5 November he informed me that my application was declined because I was a risk to work with children because I like to touch them. He then told me he is trained to pick out people that are a risk to children, I never took it well and was infuriated by these comments.
The issue in these proceedings is not whether Mr Lindeboom misinterpreted Mr Hayne's response to his questions or, indeed, whether Mr Hayne poses a risk to the safety of children. Mr Hayne may regard it as unfair and unjustified that he has been refused employment on that basis but that does not mean that it is discriminatory. It is also irrelevant that Mr Hayne was applying for a job as a lifeguard, not as a counsellor. The issue is whether there is some evidence from which an inference could be drawn that his age or sex, rather than his answers to the questions, was the real or genuine reason for the decision.
I am not persuaded by Mr Hayne's assertion that his age or sex was a reason for the decisions. In my view, if this matter did proceed to hearing, it would be highly likely that the Tribunal would conclude that there was no reference to age or gender discrimination in the conversation between Mr Hayne and Ms Pearson. It is likely that the Tribunal would accept the content of the detailed contemporaneous record of that conversation rather than Mr Hayne's general assertion made for the first time in submissions to the Tribunal.
An opinion expressed by a person who was not involved in the decision making process that he is a 'dinosaur' would not carry any weight with a Tribunal hearing this matter.
When I asked Mr Hayne during the course of the hearing what he understood by the reference to "changing culture" he said he didn't know. It is likely that a Tribunal hearing this case would interpret those words in context as meaning a change in the culture from that of a small community where people have known each other for a long time and hold grudges to a culture where applicants for jobs are considered on their merits.
In my view there is an innocent explanation for the YMCA's decision not to employ Mr Hayne. That explanation is that given his response to Mr Lindeboom's question YMCA did not consider his style of working with children as being compatible with its policies. YMCA was Case Study No 2 in the Royal Commission into Institutional Responses to Child Sexual Abuse. It is further a matter of public record that the Case Study involved examination of YMCA's recruitment practices for adults working with children. Neither Mr Hayne's sex nor his age was a reason for refusing to employ him or for any of the other procedural decisions made by YMCA during the recruitment process.

Order Leave is refused for the complaints of sex and age discrimination to proceed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 January 2016

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