Mr Lincoln, the applicant in these proceedings, seeks the leave of the Tribunal to proceed with a complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 5 July 2019 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from Mr Lincoln against the respondent, the Warren Shire Council. The applicant alleged that he was discriminated against on the ground of his age in relation to his applications for the job of Workshop Coordinator with the respondent.
The President declined the complaint on the basis that it was lacking in substance.
The applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.
[2]
Legislation and principles governing the grant of leave
A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act).
Section 92 provides:
"92 President may decline complaint during investigation
(1) If at any stage of the President's investigation of a complaint -
(a) the President is satisfied that -
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or
(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or
(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
(2) The President, in a notice under this section, is to advise the complainant of -
(a) the reason for declining the complaint or part of the complaint, and
(b) the rights of the complainant under sections 93A and 96."
Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).
Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).
Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).
[3]
Evidence and submissions of the applicant
Mr Lincoln relied upon the material he provided to the Anti-Discrimination Board which was contained in the President's report of the complaint as well as additional material filed with the Tribunal on 8 September 2020 and his oral submissions.
Mr Lincoln has been employed by the respondent as a plant mechanic for over 24 years and recently for 18 months he acted as the Workshop Foreman. In August 2018 he applied for a position advertised by the respondent of Workshop Coordinator. He considered that he met all of the eligibility criteria for the role. He was told that he was the only applicant. On 19 November 2018 he was told that his application was unsuccessful. He was told he could reapply when the role was re-advertised.
Mr Lincoln said the position was re-advertised twice. He applied the first time but not the second time as he thought it was a waste of time. He notified the Divisional Manager he would no longer relieve as Acting Workshop Foreman from late December 2018 as he considered it unfair. He said that the respondent approached two persons directly to apply for the job. After the second advertisement period closed, on December 20 one of the applicants who had been directly approached applied for the job and was appointed in January 2020.
He stated that he was born in 1955. The two people who were approached were younger than he is. One of them was born in 1955. The age of the other person was not in evidence.
A statement by a Steven Clow was in evidence. Mr Clow said that he was approached by the respondent several times in 2018 to apply for the Workshop Coordinator role when he was relieving the Workshop Foreman.
Mr Lincoln states that the Workshop Coordinator role is essentially the same as the Workshop Foreman role that he has been performing, and that he possesses the skills required for the role, and in addition he is the only heavy vehicle inspector in the district. He did not expect to be given a job on seniority but to be given a fair and equal opportunity to prove his expertise during an interview.
Two advertisements for the role were in evidence. The first stated:
"Applicants for this position should hold a combination of base level qualifications, workplace learning and asset data collection experience, be competent in the use of Window-based computer systems and upkeep of asset data and a current NSW Class 1A drivers licence."
The later advertisement closing on 14 December stated:
"Applicants for this position should hold a trade qualification (Minimum Certificate III) in Automotive Trades Heavy Vehicle or 10 years' experience in similar size workshop, be competent in the use of window-based computer systems, possession of Construction Industry White Card and have a minimum HR Drivers Licence willing to obtain a NSW Motor Vehicle HC/MC level Drivers' Licence, and an RMS Heavy Vehicle authorised examiner/ inspector's ticket."
[4]
Evidence and submissions of the respondent
The Council relied on the material it provided to the Anti-Discrimination Board and its oral submissions. It stated that the Workshop Coordinator role was new and had different responsibilities. It did not agree that it was the same as the Workshop Foreman role.
On 22 March 2019 the Council's General Manager wrote to Mr Lincoln and advised that its process complied with the relevant Award and Council workforce plan requirements. It stated:
"…I noted that a discussion was held with the Divisional Manager Engineering Services and through that discussion it was determined that a change in structure and work direction to modernise the workshop was being sought. Following that discussion, the position was again formally advertised. The Divisional Manager has advised that the skills to move the workshop to a new direction and to make changes in record keeping, computer technology and management were required and that the traditional operation of the workshop would not be suitable into the future.
Unfortunately, although your skill levels as a heavy plant mechanic are good, the direction required for the new positon and use of technology, record keeping and process management did not fit the position requirements."
[5]
Consideration
Section 49ZYA provides:
"49ZYA What constitutes discrimination on the ground of age
(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
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, 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.
(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."
Section 49ZYB provides:
"49ZYB Discrimination against applicants and employees
(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.
(2) It is unlawful for an employer to discriminate against an employee on the ground of age -
(a) in the terms or conditions of employment that are afforded to the employee, or
(b) by denying or limiting 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.
(3) This section does not apply to employment for the purposes of a private household.
Mr Lincoln's complaint could come under sub-section 1(a) - the arrangements the employer makes for the purpose of determining who should be offered employment - and potentially also 1(b) - determining who should be offered employment. He complains that he was not given an interview on the occasions when he did apply and that a younger person was offered the job. In order to substantiate his complaint Mr Lincoln would have to prove that: ◦
1. he is of a particular age or age group;
2. that in determining its arrangements for the purpose of deciding who to offer employment, or in determining who to offer employment, the respondent treated him less favourably than it treated or would have treated a younger person in circumstances which were the same or not materially different; and
3. at least one of the reasons for the conduct was Mr Lincoln's age even if that reason was not the dominant or a substantial reason for the treatment.
There is no dispute that Mr Lincoln was born in 1955 (the first element).
In relation to the second element, differential treatment, Mr Lincoln's treatment can be compared to that of one or both of the other persons (assuming that they are both younger) who were approached by the respondent. Only the age of one person was in evidence and that person is six years younger than Mr Lincoln. The Tribunal would be required to determine whether that person was treated differently because of their younger age (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. In this case, since there is no direct evidence of the reason for his treatment relating to his age, a causal link between Mr Lincoln's age and the alleged treatment would have to be established by inference from the available facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262.
Any such inference must be logical and reasonable, and must show that a connection is probable; an inference cannot be made where more probable and innocent explanations are available on the evidence (Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
The basis on which Mr Lincoln submits that it can be inferred that the decisions affecting him were made because of his age are that:
1. The respondent sought out applicants who were younger than he was;
2. He met all the criteria for interview;
3. He was not offered an interview;
4. The successful applicant was younger than him and does not have all the qualifications sought in the advertisement; and
5. The Council's references to a "new direction" indicate that it believed that his age was incompatible with that approach.
The basis on which the respondent submits that it should be found that none of the decisions it made were based on Mr Lincoln's age are that:
1. The council continued to advertise the role due to the lack of applicants. The position was a new role and not the same as the foreman role.
2. No one at the council advised Mr Lincoln that he was refused based on his age.
3. The Council's employment policies support the employment of older people.
4. Mr Lincoln was deemed not the right person to take on the new position based on the needs of the position.
5. The Council is driving change with its new employment practices and does not appoint employees based on seniority.
6. The Workshop was reviewed and it was noted that there were a number of deficiencies in how it was operated.
With reference to Mr Lincoln not being offered an interview following his applications, there is no evidence that this happened because of his age. There is an innocent and more probable reason for this, namely that he was the only applicant. He was in fact told this by a Council employee.
With reference to the offer of employment to the successful applicant, Mr Lincoln said he did not respond to the last advertisement which closed on 14 December as he thought it was a waste of time. Therefore he was not an applicant for the role. If his argument is that he should have been offered an interview without an application as was done for the eventually successful applicant, there is nothing from which I can infer that his age was at least one of the real, genuine or true reasons why he was not offered an interview. The AD Act does not require an employer to follow a particular process in recruiting staff, and does not prohibit an employer from directly approaching a candidate. The successful applicant's age is unknown. Even if I assume he was younger, that is not sufficient to draw the necessary inference that Mr Lincoln was not approached because of his age. In addition Mr Lincoln's failure to apply and decision to cease acting in the foreman role, as well as the Council's change in approach, are other more probable and innocent reasons.
Mr Lincoln may regard it as unfair and unjustified that he has not been offered the role but that does not mean that he has been discriminated against.
[6]
Order
1. Leave to proceed with the complaint is refused.
[7]
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
[8]
Amendments
29 September 2020 - Date of decision corrected
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Decision last updated: 29 September 2020