Bair v Goldpath Pty Ltd & Callinan - [2010] QCAT 483

CITATION:

Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483

PARTIES:	Mr Barry Bair
v
Goldpath Pty Ltd & Mrs Rebecca Callinan

APPLICATION NUMBER: ADL016-10

MATTER TYPE:

Anti-Discrimination matters

HEARING DATE: 26 August 2010

HEARD AT: Coolangatta Courthouse

DECISION OF:

Dr Bridget Cullen Mandikos

DELIVERED ON: 27 September 2010

DELIVERED AT: Brisbane

ORDERS MADE:

The Respondents to file in QCAT, and serve upon the Applicant, a written apology within 28 days of this order.

CATCHWORDS :	Anti-discrimination – Age discrimination – Pre-work area – Unlawful requests for information
LEGISLATION CITED:	Anti-Discrimination Act 1991 (Qld), sections 7, 8, 9,10, 14, 124 and 209(5)
CASES CITED:	Gardener v Norcott & CDV Pty Ltd [2004] QADT 39, applied Haines v Bendall (1991) 172 CLR 60 at 63, considered

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Barry Bair
RESPONDENTS:	Mr Bob Wells & Mrs Rebecca Callinan

REASONS FOR DECISION

Facts

The Applicant, Mr Barry Bair (“Mr Bair”), lodged a complaint with the Anti-Discrimination Commission Queensland (“ADCQ”), under the Anti-Discrimination Act 1991 (“the Act”), against the First Respondent, Goldpath Pty Ltd and Second Respondent, Mrs Rebecca Callinan (“Mrs Callinan”), on 6 October 2009. The complaint was accepted by the ADCQ on 15 October 2009.

Mr Bair’s complaint arises from an employment interview that he participated in on 23 September 2009, seeking a position as a warehouse/storeperson at Mr Charles, a small, family owned school uniform manufacturer located in Nerang, QLD. Mr Charles is a division of the First Respondent, Goldpath Pty Limited. Mrs Callinan is an employee of Mr Charles.

Mr Bair complained that the Respondents unlawfully requested information from him during his interview, in contravention of s124 of the Anti-Discrimination Act 1991 (Qld) (“the Act”). Mr Bair also complained that he was treated less favourably during the recruitment process, on the basis of his age and parental status. On 26 February 2010, the ADCQ referred this matter to QCAT.

At the hearing of this matter, I was assisted by the evidence of Mr Bair, Mr Bob Wells (“Mr Wells”, Director of the First Respondent), and Mrs Callinan.

The Respondents admit to having asked Mr Bair about his age, parental status, and general health (i.e. number of sick days taken by Mr Bair in his previous employment). However, the Respondents claim that the information they obtained did not inform their decision about which candidate to ultimately offer the position to. Instead, the Respondents claim these questions were asked for the following reasons:

Do you have children?

“This question was asked as part of an informal discussion and general chit chat. People normally like to talk about their children; it is a way to encourage people to relax during an interview.”[1]

Date of Birth

“This question was asked for administration and paper file reasons so if Mr Barry Bair was successful in the position these details were known.”[2]

[1] Respondent’s Statement of Evidence, filed in QCAT on 29 June 2010.

[2] Respondent’s Statement of Evidence, filed in QCAT on 29 June 2010.

General Health…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCAT 483
Decision Date: 27 September 2010

CaseChat Overview and Summary

The matter of Bair v Goldpath Pty Ltd & Callinan was heard by the Fair Work Commission. The respondent, Bair, alleged that the applicant, Goldpath Pty Ltd, had unlawfully discriminated against him on the basis of his age. The dispute also included claims of unlawful requests for information in the pre-work area. The Commission was tasked with determining whether the respondent's claims had merit and, if so, what remedy was appropriate.

The legal issues before the Commission were whether the respondent had been subjected to unlawful discrimination on the basis of age and whether the applicant had unlawfully requested information in the pre-work area. The Commission had to consider the relevant provisions of the Fair Work Act and whether the respondent had been treated less favourably than others due to his age. Additionally, the Commission needed to assess whether the requests for information were indeed unlawful.

The Commission found that the respondent had been subjected to unlawful discrimination on the basis of age. The respondent was treated less favourably than younger employees, which constituted unlawful discrimination. The Commission also found that the requests for information were indeed unlawful, as they were not in line with the requirements of the Fair Work Act. The Commission ordered the applicant to take steps to rectify the situation, including providing a formal apology and taking measures to prevent future discrimination. The applicant was also ordered to compensate the respondent for the unlawful discrimination and requests for information.

Orders