Vye v Secretary, Department of Finance, Services and Innovation

The alleged conduct

1. The applicant has about 30 years' experience in the property industry. In March 2014, the applicant returned from a secondment to the Major Projects Division within Government Property NSW, a statutory authority and part of the respondent. He was at this time 60 years of age.
2. A new director, a Mr Henry, had been appointed to head the Major Projects Division during the applicant's secondment.
3. The applicant's evidence is that, when he returned from secondment, he was not given any meaningful work, whilst other younger people in the Division were given such work. In particular, he was not given work in divestment projects, despite his extensive experience in such projects and despite requesting that he be given this kind of work. He describes the work he was given as "administrative tasks."
4. The applicant stated that younger employees in the team, in their twenties and thirties, were given the kind of project work which he had asked for but had not been allocated.
5. In August 2014, the applicant met with Mr Henry to discuss the applicant's personal development program and, according to the applicant, Mr Henry expressed satisfaction with his work.
6. In January 2015, it was announced that Mr Henry had left the organisation and that a Mr Horton and Mr Hurley would jointly run the Major Projects Division. The applicant says that he was not allocated work by Mr Horton despite his requests for work.
7. In 2014, a restructure of the Division was announced. In the first phase of the restructure, existing staff members were considered for direct appointment. The applicant was the only member of his team of five staff not to be directly appointed to a position. Three members of the team were in their thirties or forties, and one member of the team was older than the applicant (a Mr Goodchild).
8. The applicant stated that: "At no time was I given any reason or justification for why I had not been allocated work and for why I was not direct appointed. This led me to form the view that it must have been related to my age."
9. The applicant then had to compete for his position in the merit selection phase of the restructure.
10. In April 2015, the applicant had a meeting with his managers in which one of his managers was critical of his performance. The applicant provided explanations for the manager's criticism that a project he was responsible for had been delayed and disputed that it contained what the manager described as "careless errors".
11. In May and June 2015, the applicant was informed that he had been unsuccessful in applications for positions with the respondent. In June 2015, the applicant received a redundancy letter which informed him that his employment had been terminated.
12. In July 2015, the applicant wrote to the respondent alleging that his non-appointment during the restructure was due to age discrimination against him. An external investigator was appointed. The investigator interviewed the applicant in August 2015 and obtained statements from and interviewed five other staff members. The investigator's report was finalised in September 2015. The report found that there was insufficient evidence to establish that the applicant was discriminated against on the grounds of his age.
13. The respondent accepts that there were times when the applicant did not have sufficient work to do or was allocated administrative type tasks rather than the high value sales work he requested. The respondent's position is that the reason for this was because of the applicant's unsatisfactory performance on some projects and tasks.

Relevant legislation

1. If leave were granted for the complaint of age discrimination to proceed, the burden of proof would be on the applicant to prove his case on the balance of probabilities. The applicant would have to establish that the respondent breached s 49ZYB of the Act. That section 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.
2. The applicant's complaint appears to be one of direct age discrimination within s 49ZYA(1)(a). Section 49ZYA relevantly 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 … (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.
3. In order to substantiate his complaint of age discrimination, the applicant would need to prove: 1. that the applicant was treated less favourably than a hypothetical or actual person who was younger than the applicant (the comparator); 2. that the less favourable treatment was on the ground of the applicant's age (causation); and 3. that the respondent's conduct falls into one or more paragraphs in s 49ZYB(1) and/or (2).
4. The applicant's solicitor indicated at the hearing that the applicant relies upon s 49ZYB(1)(b), (2)(b) and (c), and it may be that he also would also rely upon other paragraphs in s 49ZYB if leave were granted.

Causation

1. For the purposes of considering the applicant's case as to causation, I will assume that the applicant is able to establish that he was treated less favourably than a younger person in his position was treated or would have been treated in the same circumstances.
2. When considering causation, s 4A of the Act is to be borne in mind. That section provides: 4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
3. I accept the respondent's submission that the applicant has not identified a basis on which to conclude that any less favourable treatment of him was on the ground of his age.
4. The applicant's solicitor, Mr Kennedy, submitted that it could be inferred that the less favourable treatment of the applicant was due to his age on the following bases: 1. The applicant was ostracised by Mr Henry; 2. There was no objective reason for this and no explanation for why Mr Henry took the approach he did; 3. The applicant had no history of performance issues; 4. Mr Henry was not interviewed by the external investigator, because he had left his employment with the respondent at the time of the investigation; 5. It was only through a hearing that the applicant would have an opportunity to test the reasons why Mr Henry acted in the way he did; 6. A logical explanation for the applicant's less favourable treatment was his age, given that meaningful work was given to other, younger members of the team with less experience than the applicant and that they were given training and mentoring which the applicant did not receive.
5. In response to the respondent's submission that the treatment of the applicant could be explained by reference to his managers' concerns about his performance, Mr Kennedy said that this was not a serious proposition as the failure to give him meaningful work occurred upon his return from secondment. Further, Mr Kennedy submitted that the respondent did not act on any of its concerns about the applicant's performance, if it held such concerns.
6. Mr Kennedy also submitted, in response to the respondent's point that Mr Goodchild, an employee older than the applicant, was given meaningful work, that Mr Goodchild already had ongoing projects when Mr Henry began to manage the team. Mr Goodchild was thus in a different position from the applicant, who had no work when he came back into the team.
7. Mr Kennedy submitted that the Tribunal should exercise caution when determining whether to grant leave, having regard to the fact that it has not had the benefit of hearing evidence and has not heard from the decision-maker (Mr Henry and subsequent managers), so cannot determine the decision-maker's credibility. Further, Mr Kennedy said it was fair and just to grant leave in circumstances where neither Mr Henry, his successor nor the human resources manager had been interviewed by the external investigator.
8. The Tribunal accepts that a cautious approach should be adopted to a refusal of leave, bearing "in mind that refusal of such leave will finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights": Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [32].
9. The Tribunal's view, however, is that the applicant's case as to causation is largely based upon speculation. The applicant wishes to cross examine Mr Henry at the hearing as to his reasons for treating the applicant unfavourably. The applicant implicitly acknowledges that he does not know what those reasons are. The applicant's evidence, from which I have quoted above, indicates that he came to the view that he was not allocated work and he was not direct appointed on the basis of his age, because he was not given an explanation for this treatment. That conclusion was speculative and was not, at least on its face, consistent with the fact that an older member of his team was given work and succeeded in being direct appointed.
10. The difficulties for an applicant in a case of discrimination in employment have been acknowledged by the former Administrative Decisions Tribunal. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [19], the Tribunal observed that the employer generally controls all the information essential to the applicant's case and that cross examination of a manager may be necessary for the applicant to make out his or her case. These considerations may be thought to suggest that it is fair and just for an applicant in this situation to be given leave, so that he or she may cross examine the relevant persons who are claimed to have treated the applicant less favourably on the basis of age. However, the question of what is "fair and just" must take into account what is fair and just to both parties, not just to the applicant.
11. As indicated above, the applicant relies heavily upon inferences to make out his case. The parties accept that the relevant principles regarding reasoning by inference are set out in Howe v NSW Farmers' Association [2010] NSWADT 101 at [94], as applied in State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [80]. These include that an inference may only be reasonably drawn upon the basis of facts which have been established by the applicant in evidence such that "it is more probable that it exists than that it does not".
12. The facts put forward by the applicant as supporting the inference that the unfavourable treatment of the applicant was due to age do not, in my view, do so. The applicant has not pointed to a fact "which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case … a specific state of affairs existed," that state of affairs being that the applicant was treated differently from other employees on the grounds of his age: Jones v Dunkel (1959) 101 CLR 298, Kitto J at 305, cited in Howe v NSW Farmers' Association [2010] NSWADT 101 at [94]. The circumstance that the applicant was ostracised by Mr Henry (taking the applicant's case at its highest) does not "positively suggest" that this was done due to the applicant's age, even taking into account the cumulative effect of the circumstances of the case.
13. As the respondent has submitted, there are a number of facts tending against the conclusion that the applicant's age was the true basis of the work allocations. These include that Mr Goodchild, an employee older than the applicant, was allocated a lot of work and was direct appointed. Although Mr Goodchild had been allocated most of this work before Mr Henry started managing the team, there is no evidence of work being taken away from Mr Goodchild. On the other hand, the applicant complained in material provided to the President of the Anti-Discrimination Board that work was taken from him and given to younger staff.
14. Another relevant fact is that the applicant was allocated a project known as the "real estate agent pre-qualification project" which the respondent considers to be an important task. The applicant accepts that he was given and that he performed this task, but he did not regard it as significant as it was not a divestment project. As Mr Coles submitted for the respondent, this does not mean that the work was not significant from the point of view of the person allocating the applicant the task.
15. Finally, there is evidence that the applicant's managers regarded his performance as poor in 2015. This evidence concerns a period in which Mr Henry was not managing the applicant. I do not accept the respondent's submission that it may be inferred from this that his performance was also weak in 2014, because this would mean accepting not only that the applicant's performance was perceived as weak in 2015, but that it was in fact weak, which would not be taking his case at its highest (as the respondent accepted that I should do). There is not, in my view, sufficient evidence to determine the reasons for Mr Henry's treatment of the applicant. However, there is nothing to suggest that he was unfavourably treated on the grounds of his age.
16. For these reasons, I find that the part of the applicant's case concerning causation is without substance. It is therefore not necessary to consider the other elements of his case.
17. In the circumstances, the applicant has not established that it would be fair and just to allow his case to proceed. Accordingly, I decline to grant leave for the applicant's complaint to be the subject of proceedings before the Tribunal, pursuant to s 96(1) of the Act. 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: 16 June 2016