JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: BAIRSTOW and DIRECTOR GENERAL OF THE DEPARTMENT OF JOBS, TOURISM, SCIENCE AND INNOVATION [2024] WASAT 103
MEMBER: MR J O'SULLIVAN, SENIOR MEMBER
HEARD: 31 JULY, 1 AND 2 AUGUST 2023 AND 18 MARCH 2024
DELIVERED : 17 SEPTEMBER 2024
FILE NO/S: EOA 2 of 2022
BETWEEN: JAMES BAIRSTOW
Applicant
AND
DIRECTOR GENERAL OF THE DEPARTMENT OF JOBS, TOURISM, SCIENCE AND INNOVATION
Respondent
Catchwords:
Age discrimination - Sections 66V(1), s 66V(3) and s 66W Equal Opportunity Act 1984 (WA) - Direct and indirect discrimination in employment
Legislation:
Age Discrimination Act 2004 (Cth), s 14
Equal Opportunity Act 1984 (WA), s 3, s 4, s 5, s 66V, s 66V(1), s 66V(1)(a), s 66V(1)(b), s 66V(1)(c), s 66V(3), s 66V(3)(a), s 66V(3)(b), s 66V(3)(c), s 66W, s 66W(1), s 90(2), s 127(b)(i), Pt IVB
Freedom of Information Act 1992 (WA)
Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA)
Result:
Complaint dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms SJ Keighery and Mr JA Kirke |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Airflite Pty Ltd v Goyal [2003] WASCA 45
Arkley v CatholicCare Tasmania [2017] TASADT 3
Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1987) 168 CLR 165
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Dopking (No 2) (1995) 63 FCR 74
Commonwealth v Human Rights & Equal Opportunity Commission (1993) 46 FCR 191
Dopking v Department of Defence (unreported, Human Rights & Equal Opportunity Commission) (1995) EOC 92-669
Edoo and Minister for Health [2010] WASAT 74
Haines v Leves (1987) 8 NSWLR 442
Hordyk and Wanslea Family Services Inc [2022] WASAT 117
McKeown and Others v Carcione Nominees Pty Ltd t/as Farmer Jack's, Waikiki EOT No 09 of 1998
Schou v Victoria [2004] VSCA 71; (2004) 8 VR 120
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Sleeman v Tulloch Pty Ltd (t/a Palms on Oxford) [2013] NSWADT 235
Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978; 168 IR 309
Walker v State of New South Wales [2003] NSWADT 13
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Williams and Commissioner of Police [2005] WASAT 349
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 22 July 2020, the applicant applied for a position as a trade and investment manager with the Office of the Agent General situated in London. The position involved a 12-month contract to cover the incumbent who was on maternity leave. It is not in dispute that the Office of the Agent General sits within the Western Australian (WA) Government, Department of Jobs, Tourism, Science and Innovation (DJTSI). Nor is it in dispute that the Director General of the DJTSI is the correct respondent in these proceedings.
Having been shortlisted for interview, the applicant was ranked fourth by the panel and was therefore not the preferred candidate even though he was found suitable for the position.
After requesting feedback, the applicant lodged a complaint with the Public Sector Commission (PSC) alleging breaches of the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA) (the Standards).
The PSC investigation identified various breaches of the Standards including that the panel considered factors outside the selection criteria for the position and inferred bias on the basis the applicant was overqualified. The PSC also found that because the appointment of the preferred candidate had already been confirmed (itself a breach of the Standards), there were limited relief options available.
Subsequently, the applicant lodged a complaint with the Equal Opportunity Commission (EOC) alleging discrimination on the ground of age in the area of employment. On 20 December 2021, the EOC dismissed the complaint as lacking in substance and then on 11 January 2022 referred the complaint to the Tribunal in accordance with a written notice from the applicant[1] (see, s 90(2) of the Equal Opportunity Act 1984 (WA) (EO Act)).
[1] Book of Documents, page 1.
For the reasons that follow the complaint is dismissed.
The legislative scheme
The long title to the EO Act says:
An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar's website, or involving sexual or racial harassment or, in certain cases, on gender history grounds.
The objects of the EO Act are set out in s 3 of the EO Act, they relevantly provide:
(a)to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs; and
…
(d)to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.
Age is defined in s 4 of the EO Act to mean 'unless the contrary intention appears' 'the chronological age of the person'.
Part IVB of the EO Act deals with discrimination on the ground of age. Section 66V relevantly provides as follows:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of age if, on the ground of —
(a)the age of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the same age as the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the same age as the aggrieved person,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who is not of that age.
…
(3)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of age if the discriminator requires the aggrieved person to comply with a requirement or condition —
(a)with which a substantially higher proportion of persons who are not of the same age as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply
Relevantly, s 66W provides:
(1)It is unlawful for an employer to discriminate against a person on the ground of the person's age —
(a)in the arrangements made for the purpose of determining who should be offered employment; or
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
Notably, a reference in Part IVB of the EO Act, which includes s 66V(1), s 66V(3) and s 66W, to the doing of an act on the ground of age includes a reference to the doing of an act on the ground of two or more matters that include age, whether or not age is the dominant or substantial reason for the doing of the act.[2] In short, discrimination on the ground of age will be established even if age is only one of a number of reasons for the doing of the act.
[2] EO Act, s 5.
Onus and standard of proof
The applicant has the burden of proving all matters necessary to establish his complaint.[3] In determining the complaint, the standard that must be applied is the balance of probabilities. However, as the allegation of discrimination is serious, having regard to the observations of the High Court in Briginshaw v Briginshaw[4] (Briginshaw), I must feel an actual persuasion that the discrimination alleged in fact occurred in order to find the complaint substantiated. It cannot be found as a result of mere mechanical comparison of probabilities independent of any belief in its reality.
[3] Hordyk and Wanslea Family Services Inc [2022] WASAT 117 (Hordyk) at [20]; Haines v Leves (1987) 8 NSWLR 442 at 447; Williams and Commissioner of Police [2005] WASAT 349 at [34].
[4] Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362.
In Briginshaw[5] it was held that the seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description and the gravity of consequences flowing from a particular finding are considerations which must affect the question of whether the issue has been proved. Findings should not be produced by 'inexact proofs, indefinite testimony or indirect inferences'.
[5] Briginshaw at 362.
Where in these reasons I refer to being satisfied or make a finding of fact I have done so on the balance of probabilities.
Causation
A complainant must show (on the balance of probabilities) that their age (or an actual or imputed characteristic of their age) caused the respondent to act as it did.[6]
[6] McKeown and Others v Carcione Nominees Pty Ltd t/as Farmer Jack's, Waikiki EOT No 09 of 1998 at [27] (McKeown).
However, a complainant need not prove the respondent had an intention to harm or to discriminate.[7] As I have already explained, it is enough that age is one of the grounds for the doing of the impugned act.
[7] McKeown at [20].
The applicant's case
Perhaps unsurprisingly, given the history of the matter, the applicant's complaint to the EOC and in turn the Tribunal, adopted the language of his complaint to the PSC. This was further reflected in the documents on which he relied and the manner in which he crossexamined the respondent's witnesses. This contributed to the difficulty in ascertaining the applicant's case and had a propensity to distract from those issues under the EO Act with which the Tribunal is concerned.
In the course of the proceeding, the respondent raised concerns as to the lack of precision of the applicant's case and in particular whether the applicant had made an allegation of indirect discrimination in his statement of issues, facts and contentions (SIFC).
While the applicant's SIFCs refers to the reference to '5 - 10 years' experience' in the position advertisement,[8] he did not allege it constitutes indirect discrimination nor did he refer to s 66V(3) of the EO Act which deals with indirect discrimination on the ground of age. The applicant's written opening statement does, however, expressly refer to s 66V(3) of the EO Act and to 5 - 10 years' experience being a requirement or condition.[9]
[8] Hearing Book, page 169.
[9] Hearing Book, page 117.
Ultimately, I determined that the applicant could advance a case of indirect discrimination. I also informed the respondent that if it wanted to adduce further evidence in relation to that issue, the Tribunal would accommodate such a request.[10]
[10] ts 38, 31 July 2023.
While I was prepared to provide the applicant with some latitude with respect to procedural matters, as he was unrepresented, that was the limit of the assistance I could provide. Consistent with the view expressed by the Tribunal in Walker v State of New South Wales (Walker)[11] my function as an impartial decision-maker would likely have been imperilled if, in the absence of evidence, I was to construct arguments in support of particular complaints.
[11] Walker v State of New South Wales [2003] NSWADT 13 at [11].
In Walker, the Tribunal observed that as the case law demonstrates, indirect discrimination cases are particularly complex[12] and considerable legal skill is required to construct a case and to gather and present evidence in support of it. Because the Tribunal's impartiality could be questioned, it is not appropriate to fashion a case for an applicant because evidence is lacking or to present his case for him. However, it is permissible to consider any argument in support of an applicant's complaint which reasonably arises from the evidence presented to the Tribunal.[13] That is the approach I have taken.
[12] See Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1987) 168 CLR 165 (Banovic) and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters).
[13] Walker at [11].
The applicant's case is as follows:[14]
(1)The applicant received less favourable treatment than an identified comparator and/or a comparison group (eg 29 - 34 year olds) on the basis of a characteristic that generally appertained to 37 year olds (who would have approximately 13 years of experience or more than 10 years of experience).
(2)A condition (5 - 10 years of experience) was imposed where 37 year olds fail with higher proportions than another group (eg 29 - 34 year olds), and that condition was not reasonable, and the applicant did not comply with the condition.
[14] PowerPoint at page 3.
Notably, the applicant does not contend that the respondent had regard to his chronological age in accordance with s 66V(1)(a) of the EO Act. In my view, this concession is rightly made as it is consistent with the applicant's evidence that neither his cover letter nor his Curriculum Vitae (CV) includes his age or date of birth.[15] It is also consistent with the evidence of all three panel members that they were unaware of and did not have regard to the applicant's chronological age during the selection process.
[15] ts 73, 31 July 2023.
The applicant's witness statement and the documents he has filed in the proceedings refer in considerable detail to the PSC investigation and his interchanges with the EOC. As a consequence, it is appropriate I explain what, if any, use I can make of that material.
It is apparent the applicant is both emboldened and deeply aggrieved by the findings of the PSC. However, as Blackham[16] acknowledges it is not within the scope of legislation such as the EO Act to address whether a claimant has been subject to poor human resource practices. Not only are the PSC's findings concerned with a different statutory regime, but it did not purport to answer the questions with which I am concerned.
[16] A Blackham, 'Why Employment Age Discrimination cases fail? An Analysis of Australian Case Law' 92020 42(1) Sydney Law Review 1 - 35, University of Melbourne Legal Studies Research Paper No 934; see also Arkley v CatholicCare Tasmania [2017] TASADT 3 at [41] and McKeown at [211].
However, as discussed later in these reasons policy objectives may be taken into account in assessing the reasonableness of a requirement or condition alleged to constitute indirect discrimination.
As I explained earlier, the applicant has also referred in some detail to his interchanges with the EOC. The EOC having dismissed the applicant's complaint as lacking in substance, the applicant continued to press the EOC for detailed reasons as to why it had done so. In particular, the applicant wanted to know why the complaint handler was purportedly refusing to consider the relevance of s 66V(1)(b) and s 66V(1)(c) of the EO Act as there was 'no specific interpretative comments as to how s 66V relates to his complaint in the response he received'.
For the avoidance of any doubt, I am not bound by the EOC's findings, charged with reviewing its decision to dismiss the applicant's complaint or responsible for overseeing the quality of the reasons it provides. Now that the matter is before the Tribunal, I am required to independently consider the applicant's complaint as part of the Tribunal's original jurisdiction.
The respondent's case
The respondent submits that experience is not a characteristic that appertains generally or is generally imputed to persons of the same age as the applicant. Thus, the respondent says that by having regard to the applicant's experience the respondent could not be said to have treated the applicant less favourably because of his age.
With respect to the claim of indirect discrimination the respondent submits:
(a)that '5 - 10 years' experience' was not a requirement or a condition;
(b)that the applicant has not established that a substantially higher proportion of persons who are not of the same age as the applicant comply or are apply to comply;
(c)in the event '5 - 10 years experience' is a requirement or a condition, the applicant has not established it was not reasonable having regard to the circumstances of the case; and
(d)if '5 - 10 years' experience' is found to be a condition or requirement, does not contest that the applicant could not comply.
The witnesses and documentary evidence
The applicant was the only witness to give evidence in support of his case. The respondent called all three of the members of the selection panel for the position:
•Mr Michael Deeks;
•Ms Sally Jansen; and
•Mr Joseph Doleschel-Ridnell.
Both parties filed witness statements and various documents which formed part of the Book of Documents. The respondent objected to many of the documents relied upon by the applicant on the basis of relevance. Rather than have me rule upon each document, the respondent was content to maintain a standing objection. As a consequence, the matter proceeded with the applicant free to refer to any of the documents upon which he wanted to rely on the understanding that he may need to demonstrate their relevance to the issues in this case.
The evidence
The selection process
The following facts concerning the selection process are not in dispute.
In July 2020, the Government of WA advertised a position for a trade and investment manager with the Office of the Agent General situated in London (the position). The position involved a 12-month contract to cover the incumbent who was on maternity leave.
The advertisement included the following introductory paragraph:
…
We are looking for a self-starter with 5-10 years' experience who can seamlessly work in a small team and in an environment where return to the office and work travel is uncertain.
This paragraph did not appear in either the 'essential' or 'desirable' job requirements which were as follows:
Essential
•Good communicator in all forms;
•Demonstrated ability to deliver outcomes with external stakeholders;
•Experience in a trade and investment role or an external facing role such as public affairs; and
•Good business acumen and ability to identify key issues that influence decision making.
Desirable
•Familiarity with innovation, technology, smart cities and space industry sectors would be an advantage;
•Demonstrated understanding of Western Australia and an awareness of Australia's federal system of government; and
•Based in London or have an existing avenue to relocate.
The specific responsibilities of the position include:
•In your areas of responsibilities, promote WA as a location for investment and business development;
•Represent the WA Government at events, conferences, roadshows and exhibitions across the UK, Europe, and Israel;
•Generate opportunities to deliver briefings and presentations to businesses and institutions that can help grow WA's economy and expertise;
•Develop and maintain networks that are important for delivering trade and investment outcomes; and
•Maintains running of office website and work with team to generate communications for website and social media.
The advertisement described the seniority level of the position as 'Associate'.
By letter dated 22 July 2020 attaching his CV the applicant applied for the position. As discussed earlier, neither the applicant's letter nor his CV included any reference to his age (37). However, an examination of his CV revealed that he had approximately 16 years' experience in the workforce.
The Agent General, Mr Deeks and the Senior Trade and Investment Manager, Mr Doleschal-Ridnell shortlisted the applicants. Of the 150 applicants, six including the applicant were offered interviews. The interviews took place on 5 - 7 August 2020 and were conducted via Microsoft Teams.
The panel assembled for the purposes of the selection consisted of Mr Deeks, Mr Doleschal-Ridnell and the Personal Assistant to the Agent General, Ms Janssen. Mr Deeks was the head of the panel.
After interviewing the candidates each panel member made notes about the candidates and then ranked them. Mr Deeks and Ms Janssen found the applicant to be suitable, but he was not the preferred candidate. Mr Doleschal-Ridnell found the applicant not suitable. Ultimately, the applicant was found suitable but was ranked fourth.
The applicant
The applicant provided a witness statement dated 19 February 2023 which was received into evidence as his evidence-in-chief.
The applicant was born in WA and graduated from the University of WA in 2003 at the age of 20 years and commenced professional work in WA in the latter part of that year.
At the time of lodging his application for the position he had 16 years of professional work experience. The majority of that work experience occurred in WA although he had worked outside Australia including roles relevant to trade and foreign investment.
The applicant confirmed that he was interviewed by the Agent General, Mr Deeks and two others on 6 August 2020 and was informed he was not successful by email on 11 August 2020.
The applicant then outlined various interactions he had with Mr Deeks with a view to seeking feedback. The feedback is broadly consistent with the evidence of Mr Deeks and includes describing the applicant's skill as equivalent to that of a senior trade and investment manager. It also includes a reference to the panel's concern that the position was relatively junior in comparison to the applicant's experience and a perception that his salary expectations might be too high. The applicant said he was interested in the position because 'it's a fantastic network' not because of the salary.[17]
[17] ts 106, 1 August 2023.
Thereafter, the applicant's witness statement is largely focused on the process by which the respondent dealt with his complaint concerning non-compliance with the (Public Sector) Standards and his interactions with the EOC.
The applicant's case was largely built on what is in the documents including the panel's notes and explanations for ranking the applicant as they did.
With respect to damages, the applicant's evidence focused on the lost opportunity, anxiety and stress. The applicant did not provide any medical evidence. The applicant said further that he did not personally believe that he needed 'a clinical level of support'.[18]
[18] ts 112, 1 August 2023.
The applicant said he 'would not go so far as to say he would have got the job [absent any discrimination]'. However, he did say that 'he thought he was the best candidate'[19] and 'I believe there is ample evidence that I was the strongest candidate'.[20]
Mr Doleschal-Ridnell
[19] ts 115, 1 August 2023.
[20] ts 118, 1 August 2023.
Mr Doleschal-Ridnell provided a witness statement dated 23 September 2022 which was received into evidence as his evidencein-chief.
Mr Doleschal-Ridnell described the position of a trade and investment manager in the following terms:[21]
At a high level it was to fill the objective of attracting investment into Western Australia and supporting our exporter's find a foothold in the UK, Europe and Israel. What that looks like in practice with things such as trying to facilitate interest from, I suppose, targeted companies or investors to opportunities that we saw in Western Australia, that could involve going to conferences to find them, using our existing networks, go to speak to them, organising visits to Western Australia, perhaps getting in contact with our own business networks here to make, I suppose, business introductions and then on the trade side, normally that would be more exporters reaching out to the office either directly or through - through JTSI. So then we would, you know, to the best of the resources available, case manage their inquiries for them.
[21] ts 233, 2 August 2023.
He went on to explain that on or about the middle of 2020, Mr Deeks advised him that the trade and investment manager in the London office, Ms Kemp, was intending to take maternity leave for 12 months. Ms Kemp's role had less responsibility than his role as Senior Trade and Investment Manager. Mr Doleschall-Ridnell said at times he would support Ms Kemp with her responsibilities and represent the Agent General at meetings and other engagements if he was unavailable. Compared to Ms Kemp's role, the senior trade and investment manager role included responsibility for portfolios of greater economic significance and strategic growth to Western Australia.
Mr Doleschal-Ridnell prepared the advertisement for the position. He explained that reference to 5 to 10 years' experience was included as a guide for respective applicants to reflect on whether their job experience would have fulfilled the essential requirement of the role. It also assisted in assessing the applications in that it would help manage the number of applications.[22]
[22] ts 234, 2 August 2023.
Mr Doleschal-Ridnell testified that the reference to 5 - 10 years' experience was not a criteria he measured the applications against in any way. He said that if someone applied for the position who had less than 5 years' experience, he would look through the covering letter and CV to see if that applicant could perform the requirements of the position.[23]
[23] ts 235, 2 August 2023.
Mr Dolechal-Ridnell said that a lot of applications did not have what he thought was 'direct professional experience'.[24]
[24] ts 235, 2 August 2023.
Mr Doleschal-Ridnell's evidence was that during discussions with the other members of the panel after the applicant's interview he expressed concerns that the position was a junior role in the office, and it was apparent that the applicant did not meet the requirement of working in a small team in a subordinate role.
Mr Doleschal-Ridnell said he formed that view because, although the role reported to the Agent General, it had less responsibility than his role and dealt with lower priority portfolios.
Mr Doleschal-Ridnell added that some of the responses from the applicant, when viewed in the context of his CV (particularly as a founder and general manager) suggested his level of previous experience was at an executive and team management level, beyond the remit of the advertised position.
Mr Doleschal-Ridnell's notes of the applicant's interview record:
Question 1:… got to WA narrative but as after thought.
Question 2:Research well but didn't quite distinguish the difference b/w space and aggrotech … longer, it went, the more it turned into a research piece, rather than problem solving.
Question 3:Pretty general answer, bit buzz wordy.
…
Question 5:Wasn't completely following.
Mr Doleschal-Ridnell's evidence was that at no stage did he discuss the age of any applicant with the other panel members and as at the date of signing his witness statement (23 September 2022) he was still unaware of the applicant's age. Mr Doleschal-Ridnell said that he did not take into account the applicant's age in forming any view about his performance in the interview or his suitability for the position.
Ms Janssen
Ms Janssen provided a witness statement dated 21 September 2022 which was received into evidence as her evidence-in-chief. Ms Janssen made the following observations in relation to the applicant and another candidate:[25]
…
They are not my first preference because, I don't think they would really be happy with doing the [communications] work, also I do not think they would be happy with doing the events leg work. I think they would see that as a junior role.
…
I think that James has the slight edge over [other candidate] due to the fact that he knows WA better but I am concerned that the role might be too junior for him and he seem[s] to be over qualified[.]
[25] Witness statement of Sally Marie Janssen dated 21 September 2022, para 14.
Ms Janssen's evidence was that she formed the view the applicant was overqualified after reading his CV, noting the level of seniority of the positions he had previously held, and knowing the role, responsibilities and day-to-day tasks that he would have to perform.
Based on the interviews, Ms Janssen ranked the applicant as equal second.
When questioned as to why she had preferred the successful candidate Ms Janssen said:[26]
… she seemed to be more willing to do other things … the role is a lot of 'comms' work. She had comms experience and not so much trade and investment experience, but she had a little, … we did a few events, and I thought that she would fit better in the role, as in she could do more comms and she would be probably more willing to do other things apart from trade and investment work.
[26] ts 204 - 205, 1 August 2023.
It was put to Ms Janssen that the primary reason for ranking the successful candidate number one was that she had less experience. Ms Jansen said:[27]
… Her primary [reason] for being ranked number 1 is that I thought she would fit in the office better and she would be willing to do the comms work and the more junior roles like lifting things and moving things and helping out at events.
[27] ts 210, 1 August 2023.
Ms Janssen went on to say that the successful candidate 'came across as more eager, more willing to do things'.[28] Ms Janssen was also asked to explain the following passage in her witness statement:[29]
I think this person [the successful candidate] would be a better fit as her experience is not as mature as the two gents [one of whom was the applicant].
[28] ts 226, 1 August 2023.
[29] ts 210, 1 August 2023.
Ms Janssen responded:[30]
I didn't mean it in the context of how much experience you had or … how many degrees you had or how old you were … it was in that context … that I thought she would fit into the office better, and she could be more willing to do comms work … which was a big part of the role.
[30] ts 211, 1 August 2023.
Ms Janssen went on to say that in the sense that the panel discussed things 'that we were doing in the office' she had thought the applicant would probably be more interested in doing the trade and investment role than the comms role and comms was a bigger part of the advertised role.[31]
[31] ts 211, 1 August 2023.
Ms Janssen said that she thought the role might be too junior for the applicant as he seems to be overqualified. She described her use of the term 'overqualified' to mean that she did not think he would 'fit' into the office and would not want to do some of the legwork 'it's like asking the managing director to come and lift a banner and move boxes and set up for a show …'[32]
[32] ts 212, 1 August 2023.
When pressed further to explain her reasoning, Ms Janssen said she thought the applicant was overqualified and would not want to sit there and do the work for 12 months and that given his experience he would be bored, and the position would be too junior for him.[33]
[33] ts 223, 1 August 2023.
Ms Janssen said:[34]
… from what I recall, his experience and the things that he had done, … and us being a small team … he seemed to be someone who got on and did things on his own in his CV and I just didn't think that in our small office we were - we're all team players. We all muck in. We all seek guidance from each other. I just didn't think that he would fit into our small team.
[34] ts 226, 1 August 2023.
With respect to the reference in the job advertisement to '5 - 10 years experience', Ms Janssen said 'if that's written there that that's what we're looking for then that's part of the job requirement'.[35] She went on to say that 'if you're a recent graduate you wouldn't apply for the job if you don't have five to 10 years' experience'.[36]
[35] ts 221, 1 August 2023.
[36] ts 221, 1 August 2023.
Ms Janssen went on to say that at no stage did she discuss the age of any applicant with the other panel members and that she was not aware of the applicant's age. Ms Janssen said she did not take the applicant's age into account in forming any view about his performance in his interview or his suitability for the role.
Mr Deeks
Mr Deeks provided a witness statement dated 23 September 2022 which was received into evidence as his evidence-in-chief.
Mr Deeks notes in relation to the applicant's interview record 'not preferred due to overqualified and may, therefore, get bored with role, especially mundane marketing tasks'.
Mr Deeks said that he came to that view because the applicant's CV indicated that he had 12 - 15 years' experience in roles equivalent to or much more senior than the position.
According to Mr Deeks this was not the only reason the applicant was not the preferred candidate. Mr Deeks notes record 'fit was questionable in terms of relationships/communications' and 'spoke over panellist on occasions'.
Mr Deeks said at no stage did he discuss the age of any applicant with the other panel members and that he was not aware of the applicant's age, nor did he take it into account in forming any view about his performance in the interview or his suitability for the role.
Attached to Mr Deeks' written statement is a document titled Numerical Summary Sheet (NSS). It records the interview scores attributed to each candidate by each panel member.
The combined score the applicant received in relation to questions one to eight and his presentation was as follows:
Mr Deeks
46.5
Mr Doleschel-Ridnell
34
Ms Janssen
44
Although Mr Deeks gave the applicant the highest score of all the candidates, the NSS records that Mr Deeks ranked the applicant third. Mr Doleschal-Ridnell found the applicant 'not suitable' and ranked him equal sixth and Ms Janssen ranked him equal second.
Ms Janssen ranked the preferred candidate as first notwithstanding that on the raw scores Ms Janssen had her as equal second.
Whatever may have been the raw scores, the rankings confirm that the preferred candidate was ranked first by all three panel members. On the combined rankings, the applicant was ranked fourth. Had the ranking reflected the raw scores, the applicant would have ranked equal second, and the preferred candidate would still have been ranked first.
The preferred candidate had 10 years relevant professional experience.
On 11 August 2020 the unsuccessful candidates, including the applicant, were notified of the outcome of the selection.
The email sent by Mr Deek's to the applicant dated 11 August 2020 said:[37]
Dear James
I want to let you know that we have selected our preferred candidate for the Trade and Investment Manager role and, on this occasion, your application was unsuccessful. Whilst your application was competitive in a very strong field, we felt that the role may have been at a more junior level than your experience warrants and that it might not, therefore, have met your expectations as a challenging and rewarding position[.]
[37] Witness statement of Michael Deeks dated 23 September 2022, para 16.
On 12 August 2020, Mr Deeks received a telephone call from the applicant seeking additional feedback in relation to his application. Mr Deeks said that he advised the applicant that whilst he was assessed as suitable for the role (as were three other candidates) he was not the preferred candidate due to several factors noted during the selection process:[38]
Most notably, I advised him that he was considered too experienced for this junior role and there were concerns amongst the panellists that he would not 'fit' the role very well, in particular, with regard to a number of menial tasks required of the incumbent and the lack of leadership responsibilities for the role.
As the [applicant] pressed for more information, it became apparent that he assumed qualifications and experience far beyond that required to successfully perform the role gave him an advantage over others. For the panel 'Fit' was an important criteria (as I believe it would be for every role). 'Fit' in this sense is defined as the panel's assessment of the candidates ability to fit the role and fit the organisation in terms of culture, qualifications and experience, … I then used salary as an example of where we would likely not match his expectations. I did this in full knowledge that we had never discussed salary but thought it would help him understand in a quantitative manner what was actually a qualitative assessment.
[38] Witness statement of Michael Deeks dated 23 September 2022, paras 18 and 19.
Following the telephone conversation, the applicant sent Mr Deeks an email outlining his concerns about the selection process which included the following extract:[39]
… rather than any shortcoming on any of the job criteria, the panel's concern was that this position was a relatively junior role in comparison to my experience. There was no mention of this as a criteria prior to the interview or opportunity to discuss the potential issues during the interview. On yesterday's call you specifically raised a perception from the panel that my salary expectations might be too high, but there was no opportunity to discuss this (or other issues) during the assessment process[.]
[39] Witness statement of Michael Deeks dated 23 September 2022, para 20.
Mr Deeks said that the panel discussed ways of differentiating the four candidates assessed as 'suitable'. This was done by using underlying criteria such as 'fit' and a further qualitative assessment of candidates against others regarding their highlights and shortcomings.
Mr Deeks said that the reference to 5 - 10 years' experience was included in the advertisement for the position as a guide and to give shape to the type of person we were looking for. The reference to '5 - 10 years' experience' was based on the incumbent's experience and how she had conducted herself in the role and the experience she brought to the role. He added that the role was designed to be for early career growth and development.[40]
[40] ts 125, 1 August 2023.
According to Mr Deeks, the upper end '10 years' experience' was designed to indicate that there was an opportunity for someone to grow in the role and that 'we didn't necessarily want someone with 20 years' experience who would perhaps find the role a little bit boring and less engaging than otherwise might have in another role'.[41]
[41] ts 126, 1 August 2023.
Mr Deeks explained that the advertisement did not specify any particular qualification and that the role is quite diverse, 'we shape the responsibilities of the individual trade and investment manager … to best cater for their previous experience'.[42]
[42] ts 126 - 127, 1 August 2023.
Unsurprisingly, Mr Deeks was questioned in some detail with respect to whether '5 - 10 years' experience' was a condition or requirement. The following exchange took place.[43]
[43] ts 135, 1 August 2023.
Okay. So I'm trying to establish is five to 10 years a selection criteria?---No.
No. It's not a selection criteria?---It is a factor that will be considered when assessing candidates, but it's not one of the essential or desirable selection criteria per se.
Okay. So it's not identified as a selection criteria, but it is a part of your decision?---Yes.
Okay?---We would look at the totality of what we're asking for in the candidates through the complete wording of the ad and we would take all of the factors in the ad in addressing the suitability of candidates.
Okay?---And that's what we did.
Your interpretation seems to be that anything mentioned in the job advertisement can be used as a condition or a requirement in the decision; is that true?---It would be - it is an indicator, as I say, for the astute applicant to recognise what is important to the office of the Agent General.
So as the head of the panel, can it be used as a condition or a requirement in making the decision?---It was a factor. These are not hard and fast factors, otherwise – the ones in the preamble, otherwise they would have been listed under essential.
Okay. So it’s a factor?---It is a consideration.
…
Was 10 years intended to be a hard cap on experience?---No.
Okay. So somebody with 11 years or more is perfectly suitable in a trade and investment manager role?---Possibly suitable.[44]
[44] ts 152, 1 August 2023.
Mr Deeks agreed that he described the applicant as equivalent to a Senior Trade and Investment Manager. Mr Deeks explained that he used that as a method to explain to the applicant one of the reasons why he was not the preferred candidate.[45]
[45] ts 135, 1 August 2023.
The selection process was further explained by Mr Deeks in the following terms:[46]
It has to be understood that we were in a quite unique position that we had culled a highly competitive field of 150 applicants down to six for interview of which four were judged as 'suitable'. The UK was in the midst of a severe Covid crisis and unemployment was very high as businesses were shutting down and paring back staff. The task before us was 'how do we rank these last four candidates'.
… an astute applicant's reading of the job ad would allow them to recognise that we were looking for someone with '5 - 10 years' experience', not the considerably greater experience of Mr Bairstow.
[46] Witness statement of Michael Deeks dated 23 September 2022, paras 24 and 25.
When asked to explain why he had said the applicant was not a good 'fit' he referred to the way the applicant presented at the interview. Mr Deeks went on to say, it was the fact that he spoke over the top of the panellists as they were trying to ask a question. It was also the fact that there was an email between the applicant and Mr Paul Webster, who was known to the office, asking if he could 'nudge' Sally [Janssen] which he [Mr Deeks] translated as seeking a special favour.[47]
[47] ts 182, 1 August 2023.
The text of the email dated 22 July 2020, which was admitted as Exhibit 4 is as follows:
Hey Paul
I really appreciate the time; the guidance really helps.
I've attached a CV for strategy roles. I'll make a few tweaks for the trade role we'd discussed through Sally.
I'll get an application in for the Trade & Investment Manager role tonight. It'd be phenomenal if you could nudge Sally if the opportunity arises around the office. :)
All the best
James
Mr Deeks said that, although it is not documented, he applied a slight weighting to Mr Doleschal-Ridnell's assessment which was somewhat more critical of the applicant than his or Ms Janssen's as Mr DoleschalRidnell would be working most closely with the preferred candidate.[48]
[48] ts 183, 1 August 2023.
As a consequence of the applicant's breach of standard claim, the DJTSI conducted an internal review. The internal review was conducted by Mr Paul Critchison. He requested that the panel's rating of candidates be represented in alphabetical form in preference to numerical. Mr Critchison constructed the four right-hand columns and Mr Deeks added the three left-hand columns drawn from the advertisement.[49] This resulted in the matrix that appears at pages 218 - 227 of the Hearing Book. The matrix includes the following comments:
Appeared overly confident and a little dismissive of the whole selection process
Panellist didn't feel comfortable that he was a good 'fit'
Has had significant management experience and direct contact with Boards – this is far more than what is required for this role so maybe over qualified - would potentially get bored with marketing/events management aspects
While James' presentation was detailed and confidently presented, it was not always clear why the information was important to his questions provided in the brief. He has experience working in small teams, and examples provided by James were of a very confident and direct team leader, which matches his CV experience. With this being a junior role in the office, it was apparent that James did not meet this key criteria of working in a small team in [a] subordinate role
[49] ts 163, 1 August 2023.
Mr Deeks said that he recorded in his interview notes that the applicant 'appeared overly confident and a little dismissive of the whole selection process' because 'it felt as though the [applicant] was simply going through the motions, he felt that he had the job'.[50]
[50] ts 183, 1 August 2023.
Observations as to the credibility of the witnesses
With respect to one exception to which I will return shortly, I believe that all the witnesses gave an honest and accurate account of events as they remember them. To the extent that there were variations between the applicant's and Mr Deek's accounts of conversations they had after the applicant was notified he was unsuccessful, those variations are not material.
The one exception is the inability to reconcile the applicant's explanation with respect to the email he sent to Mr Webster with the content of the email itself. The email in its entirety is reproduced in [101] above.
The applicant testified that the request in the email to Mr Webster that 'it'd be phenomenal if you could nudge Sally [Janssen] if the opportunity arises around the office' was not directed to circumventing the process.
Bearing in mind the applicant acknowledged that he did not know Ms Janssen, it is difficult to ascribe any meaning to the word 'nudge' other than he was requesting Mr Webster to put in a good word for him. Accordingly, I am satisfied that was the tenor of the applicant's email.[51]
[51] ts 108, 1 August 2023.
Direct Discrimination
Broadly speaking, direct discrimination occurs where one person is treated in a different manner (less favourably) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration[52] such as age or a characteristic that appertains generally to persons of the same age or a characteristic that is generally imputed to persons of the same age.
[52] Waters at 392.
The term 'less favourably' bears its ordinary meaning and calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case.[53]
[53] Edoo and Minister for Health [2010] WASAT 74 at [163].
The applicant contends that professional experience is a characteristic that appertains to or is generally imputed to persons of the same age as him. It follows according to the applicant that in considering his experience the panel was implicitly having regard to his age.
Whether a particular matter is a characteristic that appertains generally to people of a particular age or is generally imputed to persons of a particular age is a question of fact.[54]
[54] Sleeman v Tulloch Pty Ltd (t/a Palms on Oxford) [2013] NSWADT 235 (Sleeman); Commonwealth v Human Rights & Equal Opportunity Commission (1993) 46 FCR 191; Dopking v Department of Defence (unreported, Human Rights & Equal Opportunity Commission) (1995) EOC 92-669.
In Walker the applicant alleged that he was subject to unlawful discrimination on the basis of disability in being denied entry to the Parramatta Court complex on two occasions. On the first occasion he was using a walking stick and on the second he was using a folding aluminium scooter.
Having commented on the lack of precision in the way the applicant, who was unrepresented, ran his case, the Tribunal concluded it was reasonable to assume that 'the applicant would wish to draw upon the example provided by s 49B(3)[55] and argue that being accompanied by a stick or a scooter to assist with mobility is a characteristic which appertains generally to, or is generally imputed to, people with a disability such as his, namely a back injury'.
[55] An equivalent provision to s 66V(1)(b) and s 66V(1)(c) of the EO Act.
Ultimately the Tribunal found it was not open to make such a finding on the facts. In coming to that conclusion, the Tribunal referred to the following passage from Discrimination Law and Practice.[56]
It is necessary for a complainant to be able to precisely identify and adequately describe the characteristic upon which they seek to rely. Also, they will need to produce some evidence in support of a claim that the characteristic is one that 'appertains generally' or is 'imputed' to the group which the complainant seeks to demonstrate membership. These characteristics must be of a general or broad nature and not just ones which can be attributed to the complainant personally … It is not necessary to establish that the identified characteristic exists in every case but … it must be established that it generally exists or operates.
[56] Walker at [45] referring to C Ronalds and E Raper, Discrimination Law and Practice, Sydney, Fifth Edition, Federation Press 1998 at pages 28 - 29.
The Tribunal concluded that there was no evidence which would permit it to conclude that a characteristic which appertains generally to, or is generally imputed to, people with a back injury is that they use a stick or a scooter as a mobility aid. The Tribunal said further that:[57]
… Whilst it is not bound by the rules of evidence, it must base its decision upon logically probative evidence. Like courts, the Tribunal does not require proof of matters of common knowledge. There are real limits, however, to what is common knowledge, or, to use the language of the common law, the facts about which we may take judicial notice[.]
[57] Walker at [46].
Accordingly, the Tribunal held that 'it is not possible for it to find, as a matter of common knowledge, that it is a characteristic which appertains generally to people with back injuries, or a characteristic which is generally imputed to them, that they use sticks or scooters as mobility aids'.
In Sleeman, the complainant alleged he had been denied access to a nightclub operated by the respondent because of his age. The complainant gave evidence that he was 'too old' 'perhaps too square', 'too conservative', had 'grey hair', was 'balding' and 'conservatively dressed'.
Although no specific submission was made by the complainant as to a particular characteristic appertaining generally to people of his age (60) or generally imputed to people of his age, the Tribunal found the characteristics to the complaint referred in his evidence to be amenable to that description.
The complaint failed, however, because the Tribunal found that there was a more probable explanation for the complainant's exclusion from the nightclub, namely that the doorman considered him to be intoxicated. The Tribunal was not satisfied that the evidence gave rise to a reasonable inference that the complainant's exclusion had anything to do with age. One of the complainant's colleagues aged 57 was granted entry. There was also uncontested evidence as to the range of ages regularly attending the club, two of whom had celebrated their 70th birthday there. The complainant had also been admitted to the club only one year previously.
In Thompson v Big Bert Pty Ltd t/as Charles Hotel[58] (Thompson) the complainant, a 37-year-old bar attendant with three children alleged that her working arrangements were varied in an attempt to force her departure in circumstances where the respondent knew that the altered working arrangements would not be convenient having regard to arrangements she made for childcare while working.
[58] Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] FCA 1978; 168 IR 309 (Thompson).
The complainant, among other things, alleged that the variation to her shifts represented direct and indirect discrimination because of her age. Section 14 of the Age Discrimination Act 2004 (Cth) is substantially the same as the relevant provisions of the EO Act.
According to the complainant, the characteristic which appertains generally to or is generally imputed to persons in their late 30s is that 'they are less attractive and less glamorous', than in a younger age group. She also alleged that it was a requirement that 'in order to continue in her usual shifts, she look attractive and/or glamorous and young'.[59]
[59] Thompson at [46].
Ultimately, the court dismissed both the direct and indirect claims of age discrimination and in so doing made no finding as to whether being less attractive and less glamorous than younger persons were characteristics that appertain generally to or are generally imputed to persons in their late 30s.
The change in the complainant's shifts was found to be due to the licensee of the hotel being sick of the complainant's persistent and unwelcome complaints. To avoid encountering the complainant, the licensee ensured she and the complainant were not rostered on the same shifts.
Findings
As I foreshadowed earlier, whether a matter is a characteristic that appertains generally to people of a particular age or is generally imputed to persons of a particular age is a question of fact.
For the reasons that follow, I am unable to find that relevant professional experience is a characteristic that appertains generally to persons aged 37 years or is generally imputed to persons of that age in the circumstances of this case.
First, unlike objectively observable physical characteristics attributed to men in their 60s, the subject of consideration in Sleeman, experience invariably involves a qualitative assessment and does not just depend on years in the workforce. It is not just any experience or any professional experience that needs to be considered, it is professional experience relevant to the advertised position. While older employees as a general rule are likely to have been in the workforce longer than younger employees, that does not establish as a general proposition that older employees have more professional experience relevant to a specified position.
Second, two employees who commence their professional working life at the same time, whatever their age, may have different levels of experience relevant to a specified position based on breaks or changes in their career, their respective abilities, ambition and opportunities.
Third, it is not uncommon for people to change employment or start a new career at some period in their working life.
Fourth, apart from a publication by the Organisation for Economic Cooperation and Development (OECD) that simply attributes an increased number of years in the workforce to an increase in age, the applicant has provided no evidence as to the correlation between age and relevant professional experience in relation to the field of endeavour the subject of the position.
For example, apart from the applicant, there is no evidence of the age of the 150 people who applied for the position, not to mention how many years of relevant professional experience they have. Similarly, apart from the applicant, there is no evidence as to the ages of the candidates who were interviewed or, except for the preferred candidate, their relevant professional experience.
Fifth, apart from the generic data the subject of the OECD report, there is no evidence upon which to conclude that it is generally the case that those working in this field of endeavour commenced working whilst they were in their 20s so as to have had more than 10 years' experience by the time they are 37 years of age.
The other element of direct discrimination concerns whether the applicant was treated less favourably than in the same circumstances, or in circumstances that are not materially different, the respondent treats or would treat a person who is not of the same age.
It follows that the applicant has not made out a case for direct discrimination.
Indirect Discrimination
A person indirectly discriminates against another person on the grounds of age if they require the other person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of the same age as the other person comply or are able to comply. In addition, the condition or requirement must be unreasonable having regard to the circumstances of the case and be such that the other person does not or is not able to comply.
Indirect discrimination 'occurs where one person appears to be treated just as another is or would be treated but the impact of such 'equal' treatment is that the former is treated less favourably than the latter'.[60] Dawson J in Banovic[61] in considering a similar New South Wales provision said:
… Upon principle and having regard to the objects of the Act, it is clear that the words 'requirement or condition' should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employee[.]
[60] Waters at [21].
[61] Banovic at [10].
Naturally, this principle would be equally applicable to a prospective employee.
The applicant referred to the following passage from Waters where Mason CJ and Gavdron J in referring to Banovic said:[62]
It is clear from that case that compliance maybe required even if the requirement or condition is not made explicit: it is sufficient if a requirement or condition is implicit in the conduct which is said to constitute discrimination.
[62] Waters at [23].
The applicant relies on this passage in support of the proposition that 5 - 10 years' experience need not be an explicit requirement or condition it is enough that it is implicit.
The applicant argues that the panel's conduct is evidence of discrimination. I understand this to mean that any reference by the panel to the applicant's experience implicitly means that 5 - 10 years' experience was imposed as a requirement or condition.
Banovic concerned whether women ironworkers were the subject of indirect discrimination by implementation of the 'last on, first off' method of retrenchment.
By majority the High Court found that women ironworkers were retrenched or put at risk of retrenchment because they lacked employment seniority as a consequence of the recruitment practices of Australian Iron and Steel Pty Ltd (AIS) in that the waiting period for employment as an ironworker was no longer for women than for men.
Thus, while the 'last on, first off' requirement appeared on its face not to expressly discriminate between men and women, it did so implicitly in that it disproportionately affected women because of the AIS's past discriminatory practices in making women wait longer for seniority.
As is readily apparent the context in which the term 'implicit' is applied to the facts in Banovic bears no similarity to the circumstances in this case. That said, I accept as a general proposition that inferences can be drawn from conduct.
Was 5 - 10 years experience a requirement or condition?
The first question that needs to be resolved is whether the applicant was required to comply with a requirement or condition, namely that he had '5 - 10 years' experience'.
It is not in dispute that the applicant was shortlisted for interview despite having more than 10 years experience.
In ranking the suitable candidates, it is clear that the applicant's experience came into sharper focus. All three panel members variously make mention of the applicant being over-qualified for the position.
The applicant places considerable emphasis on Mr Deeks' statement that 'we were looking for someone with 5 - 10 years' experience not the considerably greater experience of Mr Bairstow'.
Similarly, Ms Janssen, when referring to the reference to 5 - 10 years' experience in the advertisement said 'if that's written there … that's what we're looking for then that's part of the job requirement'.
While there is no question the panel had regard to the applicant's experience, it is less clear whether there was a requirement or condition that the position could only be filled by a person with 5 - 10 years' experience.
Ultimately, I am not satisfied 5 - 10 years' experience was a requirement or condition, for the following reasons.
First, I accept the evidence of Mr Deeks and Mr Doleschal-Ridnell that the reference to 5 - 10 years experience was included as a guide to the applicants. This is consistent with the fact that the reference to 5 - 10 years' experience was not included in either the desirable or essential selection criteria.
Second, the fact the applicant was shortlisted for interview contradicts any suggestion that 5 - 10 years' experience was a requirement or condition. There would have been no point in interviewing the applicant if having 5 - 10 years' experience was mandatory.
Third, even following the interview process, the applicant was found suitable for the position. Once again, this is inconsistent with the imposition of a condition or requirement. Inevitably, if the first three candidates had rejected an offer of employment, the applicant would have been appointed.
Fourthly, the mere fact that the panellists made reference to the applicant's experience as a reason for selecting the preferred candidate ahead of him, does not of itself support a conclusion that a maximum of 10 years' experience was a requirement or condition to be selected. As I have already explained, the applicant was found 'suitable'.
When Ms Janssen's evidence is viewed in the context of her evidence as a whole, it is clear she was focussing on what the applicant had done in terms of his experience not his years of experience. She specifically referred to the level of seniority of the position the applicant had held. Ms Janssen's reference to asking the managing director to move boxes supports this conclusion. Nowhere in Ms Janssen's notes in relation to the applicant's interview does she refer to the applicant's years of experience. The same can be said of Mr Doleschal-Ridnell's evidence whereupon he expressly refers to the applicant having been a founder and general manager as the reason for concluding the applicant was overqualified.
Mr Deeks' evidence that 'we were looking for someone with 5 - 10 years experience not the considerably greater experience of Mr Bairstow' appears to represent the high-water mark of the applicant's case. However, when viewed in light of all of the other evidence to which I have already referred including the fact that the applicant was shortlisted for interview and Mr Deeks found him 'suitable' is inconsistent with 5 - 10 years experience being a requirement or condition for selection. It is also inconsistent with Mr Deeks' evidence that 5 - 10 years experience was 'not a hard cap' and that someone with 11 years experience may 'possibly be suitable'. I understood Mr Deeks' comment not to be an indication that 5 - 10 years experience was a condition or requirement but rather an indication he believed the applicant to be overqualified.
Could a substantially higher proportion of persons not of same age comply with requirement or condition?
Notwithstanding that I have found that the reference to 5 - 10 years' experience was not a condition or requirement, I am obliged to consider whether the applicant has established s 66V(3)(a) of the EO Act. This concerns whether the applicant has proved that 'a substantially higher proportion of persons who are not of the same age as him comply or are able to comply with the purported condition or requirement' (see s 66V(3)(a) of the EO Act).
The applicant placed considerable reliance on Dewan, particularly in relation to identifying the proportions of people who are able to comply with the condition or requirement in question.
In Dewan the complainant alleged he was the subject of indirect discrimination on the grounds of age in breach of s 66W(1) of the EO Act.
The complainant saw an advertisement issued by the respondent for graduates as part of the 'Graduate Development or Professional Development Program'. The program was for all kinds of graduates.
It was not in dispute that positions in the program were only available to graduates who had been graduated for at most 3 years as at the date of the advertisement. The complainant did not apply for the position as he could not comply with that requirement. The complainant was then 45 years of age and was not a recent graduate, having graduated in engineering some 20 years earlier.
It was not in dispute that positions in the program were only available to graduates who had been graduated for at most 3 years as at the date of the advertisement. The complainant did not apply for the position as he could not comply with that requirement.
The Tribunal observed that it was accepted by both parties that the respondent had imposed a requirement or condition that applicants were to be recent graduates i.e. they graduated not more than 3 years ago. Nor was it in dispute that if this amounted to indirect discrimination, it would be unlawful within the meaning of s 66W(1). As the complainant could not comply with such a condition or requirement,[63] the main issue to be determined was whether s 66V(3)(a) and s 66V(3)(b) were satisfied.
[63] EO Act, s 66V(3)(c).
Section 66V(3)(a) is concerned with whether a substantially higher proportion of persons who are not of the same age as the aggrieved person comply or are able to comply with the requirement or condition. Section 66V(3)(b) requires a determination as to whether the requirement or condition is not reasonable having regard to the circumstance of the case.
The first question the Tribunal was required to resolve was whether the condition of being a recent graduate was one which a substantially higher proportion of persons who are not of the same age as the complainant comply or are able to comply. In so doing it is necessary to decide the bases upon which the proportions are to be ascertained.
The evidence led by the complainant, which was not disputed was that since the beginning of 2002, the large majority of graduates from the two main universities producing engineering graduates (Curtin University and University of WA), were under the age of 25 years. No evidence was led as to the number and ages of engineering graduates at other institutions in WA producing engineering graduates. The complainant did not lead evidence of the precise number of engineers in WA but there was evidence that the number of members of the Institute of Engineers was over 8,000 and the inference can be drawn that the total number of graduate engineers is likely to be higher than that. No calculation or precise evidence was led by the complainant about the calculation of the proportions by reference to the base group.
The evidence established that of the graduates in civil and mechanical engineering at Curtin University in 2002 - 2003, 215 out of 311 were aged under 25 years, that is about 69%. The proportion is higher if one does not count the postgraduate degrees. Adding in all of the engineering graduates in 2002 and 2003, there was a total of 532 aged under 25 years compared with a total of 840 i.e. 63.3%.
So far as the University of WA is concerned, in 20022003 there was a total of 827 engineering graduates with 665 below the age of 25 years, that is just over 80%.
The Tribunal found that these figures demonstrate that clearly for 2002 and 2003 at the two main engineering facilities in WA, there was a significantly large proportion of engineering graduates under the age of 25 years compared with the proportion of engineering graduates over the age of 25 years.
The Tribunal remarked that it was unfortunate that it did not have the statistics or evidence about the whole pool of recent graduates in WA and that it appeared the complainant was requiring the Tribunal to draw an inference on the basis of the evidence led, that the trend would be similar for those graduating in the previous years 1999 to 2001 who, on the respondent's uncontradicted evidence, would still be considered 'recent' graduates and that the trend would be similar to, or at least not outbalanced, by the relevant ages and numbers in other institutions in WA producing engineering graduates.
Inferences of that kind, according to the Tribunal, are difficult to draw. It is possible that other institutions could have a larger portion of mature-aged students and that if these were all included in the equations, the relative figures would change substantially.
The Tribunal identified a further difficulty arising from whether the requirement of 'recent graduates' should be limited to recent engineering graduates. There was evidence that the requirement was in fact not so limited as a recent commerce graduate was accepted as a graduate engineer under the program, even though he was not a recent engineering graduate. If the appropriate pool is expanded to include all recent graduates in all disciplines who also hold an engineering degree (recent or otherwise), then the figures could well be quite different.
The Tribunal observed that it could not simply judge the proportions by the raw figures of the people who can comply. The Tribunal also said that it would not be appropriate to simply look at the number of recent graduates who are under 25 years of age and compare those with the number of recent graduates over 25 years of age. That would just be a reflection of the complying group and not shed any light on the indirectly discriminatory nature of the requirement or condition.
The Tribunal said that what is required is to ascertain a suitable 'base group' and ascertain the number of complying people of the same age as the complainant as a proportion of all the people the same age as the complainant in the base group and compare that proportion with the number of complying people of a different age from the complainant as a proportion of all the people of a different age group in the base group.
The Tribunal noted that Dawson J in Banovic[64] suggested that where the requirement is contained in a published offer of employment, the relevant base group may be made up of those who might be expected to be eligible to take up the employment based on geographical, educational or other restraints.
[64] Banovic at 187.
The Tribunal ultimately held that the base group should be all engineering graduates in Western Australia as that is the appropriate group from whom applicants for graduate engineering positions would come.
The next question concerned how to define people of the 'same age' as the complainant, that is whether this means only people aged 45 years old or around their mid-forties or whether it is just anyone over 25 years of age.
The Tribunal remarked that given the need to read the EO Act in a manner which makes sense and does not defeat the purpose of eliminating discrimination on grounds such as age, it is necessary to construe the words 'same age' as the complainant broadly.
The Tribunal concluded that the appropriate test in this case is that people of the 'same age' as the complainant are those over 25 years old and those who are not of the same age are those under the age of 25 years. The Tribunal approved of this test on the basis that if it were not the case, an indirect discrimination case by those in their 40s may be able to be defeated by the fact that there is also indirect discrimination against people aged in their 30s, 50s and 60s.
A further decision was also required as to the groups of people who can comply with the requirement or condition. The Tribunal observed that the pool could be all the recent graduates with an engineering degree (recent or otherwise), not only recent engineering graduates.
The Tribunal said that:
The lack of evidence about precise figures and the difficulty with drawing some of the inferences sought may however not affect the result in this case. There are authorities which support the view that the tribunal can take a commonsense approach to the issue and draw inferences based on the information provided, even if the precise statistical evidence is missing (Kemp v Minister for Education (1991) EOC 92-340).
It may also be that the selection of an appropriate sample may be an acceptable way of calculating the proportions of persons in a larger community who answer a particular description (see Banovic per Dawson J at page 191).
The Tribunal found that 'at a minimum' it is probably acceptable to take judicial notice of the fact that the usual youngest age of engineering graduates will be about 20 or 21 years of age. This means that most engineering graduates under 23 or 24 years of age would be recent graduates.
Similarly, the Tribunal said that judicial notice can probably be taken of the fact that there is likely to be a large number of engineering graduates over 25 years who are not recent graduates. This is consistent with the evidence from the Institute of Engineers that the majority of university graduates would be younger people and that the majority of persons in the complainant's age group (i.e. around 48 years) would be highly unlikely to be recent graduates.[65]
[65] Dewan at [28].
As a consequence, despite the lack of precise statistics, the Tribunal found that a recent graduation requirement or condition was one with which a substantially higher proportion of people, who are not of the same age (ie. 25 and over) as the complainant can comply.
I turn now to the application of the Tribunal's decision in Dewan to the circumstances of this case.
As Dawson J observed in Banovic:[66]
The selection of an appropriate sample is a common and statistically acceptable means of calculating the proportion of persons in a larger community who answer a particular description.
[66] Banovic at 191.
In Dewan statistical evidence was provided by the complainant concerning the age of engineering graduates from the two main universities in WA. In addition, there was also evidence of the number of members of the Institute of Engineers. Notwithstanding evidence of a sizeable sample group, the Tribunal remarked that it was 'unfortunate' that it had not been provided with statistics or evidence as to the whole pool of graduates in WA.
The Tribunal noted that it appeared the complainant expected the Tribunal to draw an inference that this evidence, while only a sample, was indicative of the relative proportions of those engineering graduates over and under 25 years of age.
One of the problems identified by the Tribunal concerning inferences of this kind was the possibility that other institutions for which no statistics were provided could have a larger proportion of mature aged students which if included could change the relative figures substantially. There was also a further difficulty as to whether 'recent graduates' should be limited to recent engineering graduates in that if recent graduates in all disciplines who also had an engineering degree, recent or otherwise were included, the figures could be quite different.
The purpose in revisiting the evidence in Dewan is to demonstrate that although statistical evidence of a substantial sample size was presented, the Tribunal was not satisfied it was a suitable means of establishing the relative proportions of those who could and could not comply with the requirement.
By comparison, the statistical evidence presented by the applicant in this case falls well short of that relied upon in Dewan. The only evidence in this case is the OECD statistics that associate years in the workforce with an increase in age. The applicant relies on this data to support the submission that the relevant base group should be '29 34 years old' and the relevant comparator group should be '37 year olds'.
Unlike Dewan, these statistics are not associated with any particular field of endeavour or profession let alone the industry the subject of the position.
Even the fact that 150 applicants applied for the position does not provide a suitable sample. As I acknowledged earlier, neither the age of the applicants is known nor their years of relevant experience.
As the Tribunal acknowledged in Dewan, in interpreting the EO Act a broad approach should be taken so as to give effect to the purpose of the legislation such that precise statistical data is not required to draw appropriate references. However, that does not mean the Tribunal is free to engage in speculation or conjecture if the evidence is lacking.
The next question is whether the approach taken by the Tribunal in Dewan in taking judicial notice of certain facts represents a suitable method of identifying the respective groups in this case.
In Dewan, the Tribunal took judicial notice of the fact that the usual youngest age of engineering graduates will be about 20 or 21 years of age such that most engineering graduates under 23 or 24 years of age would be recent graduates.
Having observed that there is evidence from the Institute of Engineers that a large number of engineering graduates over 25 years of age are not recent graduates, the Tribunal took judicial notice of that fact.
The Tribunal does not explain how it reasoned that these facts are commonly known. I suppose if a fact is notorious, it requires no explanation as to why that is so.
Bearing in mind the Tribunal is located in WA it is reasonable to infer that it reasoned that it is common knowledge that various institutions in WA offer degrees in engineering and that some school leavers each year will pursue a career in engineering and after completing their degree will be 20 or 21 years of age. It follows that by 23 or 24 years of age, having had three years' experience or less, those engineers will meet the requirement of being a recent graduate. This explains the distinction between those recent graduates who are likely to be under 25 years of age and those graduates who are over 25 years of age and who are not considered recent graduates.
Similarly, the Tribunal must have considered it common knowledge that a number of engineers who were not recent graduates continued to pursue a career in engineering.
The question is whether the relevant facts advanced in this case by the applicant can be considered common knowledge so as to enable the Tribunal to conclude that a substantial number of persons not of the same age as the applicant comply or are capable of complying with the requirement of having 5 - 10 years' experience.
Unlike engineering, a well-known field of endeavour in WA, as to which the Tribunal in Dewan must have had some knowledge, the same cannot be said about a position as a trade and investment manager working in the Agent General's office in London. Nor for present purposes is the Tribunal aware of the demographics of those who work in that field or who aspire to work in that field.
As I have previously acknowledged, the EO Act is beneficial legislation that ought to be given a broad construction. However, as the Tribunal observed in Walker 'there are real limits to what is common knowledge'[67] and 'it is not appropriate to fashion a case for the applicant because evidence is lacking'.[68]
Reasonableness
[67] Walker at [46].
[68] Walker at [11].
As I explained previously, although I have found that '5 - 10 years experience' was not a condition or requirement nor was it discriminatory. It is appropriate that I consider whether the applicant has established that the purported requirement or condition is 'not reasonable having regard to the circumstances of the case' pursuant to s 66V(3)(b) of the EO Act.[69]
[69] See s 66V(3)(b) of the EO Act.
The issue of the reasonableness of a condition or requirement was a matter considered by the Tribunal recently in Hordyk.[70] Referring to the High Court in Waters the Tribunal said:[71]
[70] Hordyk at [390] - [397].
[71] Waters at 378 (Brennan J), and 395 (Dawson and Toohey JJ).
1.The reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction.
and
2.There are two aspects to the criterion of reasonableness which are:
(i)whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; and
(ii)whether the activity could be performed, or the transaction completed, without imposing a requirement or condition that is discriminatory or that is as discriminatory as the requirement or condition imposed.
In considering those issues, the following factors are relevant:
1.the effectiveness, efficiency and convenience in performing the activity and completing the transaction; and
2.the cost of not imposing the discriminatory requirement or condition or the cost of substituting another condition or requirement.[72]
[72] Hordyk at [392].
One of the factors to be taken into account in determining the reasonableness of any condition or requirement is the nature and extent of the discriminatory effect.[73]
[73] Hordyk at [393] referring to Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 (Styles).
Reasonableness is a question of fact that is arrived at by weighing all of the relevant factors which include the financial and economic circumstances of the alleged discriminator and its ability to accommodate the aggrieved person.[74]
[74] Hordyk at [394] referring to Waters at 396.
The test of reasonableness is objective upon a consideration of all the facts. As Bowen CJ and Gummow observed in Styles:[75]
The test of reasonableness is less demanding than one of necessity, but more demanding than a text of convenience. The criteria is an objective one, which requires the count to weight the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All of the circumstances of the case must be taken in account.
[75] Styles at 263.
In Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission Sackville J made the following observation concerning the identification and assessment of factors to be considered:[76]
A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision.
Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case … the question is not … whether the alleged discriminator could have made a 'better' or more informed decision. The issue is that posed by the legislation, namely, whether the requirement is not reasonable having regard to the circumstances of the case.
[76] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at page 112.
There may be differing views in the community about whether people generally like or approve of the requirement or condition, but it is a different question to say that it is not reasonable.[77]
[77] Dewan at [39] referring to Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Dopking (No 2) (1995) 63 FCR 74 at 84, 87 and 81.
While the existence of an alternative bears upon the reasonableness of the requirement or condition, that does not mean what would otherwise be a reasonable requirement or condition would become unreasonable merely because there was an alternative with a less discriminatory effect.[78]
[78] Dewan at [38] referring to Schou v Victoria [2004] VSCA 71; (2004) 8 VR 120 at [24] - [25].
So far as a government or statutory authority is concerned, policy objectives may be taken into account in assessing reasonableness.[79]
[79] See Waters at 410.
As I have already explained, I see no difficulty with a panel taking relevant experience into account in assessing the suitability of applicants for the position as it did in this case. However, had the panel inflexibly required applicants to have '5 - 10 years experience' that may well have been unreasonable for the following reasons.
First, a requirement of that kind that simply measures experience in terms of years invariably ignores any qualitative assessment of a candidate's experience.
Second, any public sector panel is obligated to consider candidates on the basis of merit. To exclude a candidate from consideration based solely on their years of experience without any consideration of the quality of that experience is inconsistent with a merits-based process.
Third, particularly in a selection such as this one where the position criteria are flexible and there were no qualifications specified for the position, it is likely not all of a candidate's experience will be relevant to the position. That being the case the imposition of a requirement or condition that excluded candidates based on working years had the potential to operate unfairly.
Fourth, there was no practical reason or cost imperative that would justify a condition or requirement of that kind.
Could the applicant comply?
The final element of indirect discrimination[80] is directed to whether the applicant had 5 - 10 years' experience in the event it was found to be a condition or requirement.
[80] See s 66V(3)(c) of the EO Act.
It is clear from the evidence that the applicant had more than 10 years' experience and therefore could not comply with such a condition or requirement.
Damages
For the reasons set out above, the applicant's case has not been made out. As a consequence, the question of the appropriate level of compensation need not be considered. However, as there was evidence led and submissions about damages, for completeness the following comments are made.
It is for the applicant to prove on the balance of probabilities that the unlawful discrimination materially contributed to his loss and damage and that he actually sustained the loss and damage claimed.[81]
[81] Hordyk at [493].
Section 127(b)(i) of the EO Act permits the Tribunal to award damages up to $40,000 by way of compensation for loss and damage suffered by a complainant. The $40,000 is a cap on damages, notwithstanding that in some cases they may be assessed as exceeding $40,000.[82]
[82] Hordyk at [494].
Damages for non-economic loss are awarded to compensate for injury (including hurt, humiliation and other injury to feelings) suffered as a result of the contravening conduct. As the Tribunal observed in Hordyk, they are by their nature incapable of mathematical calculation.[83]
[83] Hordyk at [495].
In awarding general damages regard ought to be had to the nature and degree of the loss that is established on the evidence as well as the general standards prevailing in the community.[84]
[84] Hordyk at [495].
In Hordyk, the Tribunal referred to Airflite Pty Ltd v Goyal (Airflite)[85] wherein Pullin J made the following statement about the assessment of damages under the EO Act:
In awarding damages, the character and conduct of the respondent as well as the appellant should be taken into account in determining the quantum of damages. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the anti-discrimination legislation gave effect. Compensable loss would include injury to feelings or humiliation[.]
[85] Airflite Pty Ltd v Goyal [2003] WASCA 45 [44].
In Airflite, Pullin J quashed an award of $10,000 on the grounds that it was manifestly excessive and outside the limits of sound discretionary judgment and substituted an award of $2,000 as compensation for the complainant's injured feelings and period of depression suffered as a result of the discrimination in the area of employment.[86] In Hordyk, the Tribunal awarded each applicant $3,000 in general damages for discrimination in the provision of services on the ground of religious conviction.
[86] Referred to in Hordyk at [498].
Although the applicant testified that he suffered stress and anxiety he expressly denounced any need for clinical intervention. Moverover, the applicant did not press any claim for non-economic loss in his closing submissions.
The basis of the applicant's claim for damages rests on 'lost opportunity'. The applicant submits that he is entitled to $40,000 (the maximum allowable) on the basis that the salary was 'probably £40,000 which equates to about A$93,000'.
Consistent with his evidence, the applicant's submission is prefaced on the assumption that absent any discrimination he would have invariably been the preferred applicant.
According to the applicant his loss was $93,000 plus entitlement, thus he can readily justify his entitlement to the maximum of $40,000.
In Dewan, to which I referred in some detail earlier, the complainant similarly sought damages for lost opportunity. He reasoned that given the number of applicants (19) and the available positions (7) he would have had a 36% chance of being successful.[87]
[87] Dewan at [66].
The Tribunal pointed to a number of factors that reduced the complainant's loss of opportunity. The evidence established that removal of the recent graduate requirement would likely have substantially increased the numbers of applicants.[88]
[88] Dewan at [67].
The Tribunal also found that there were other reasons that reduced the complainant's chances of success in obtaining a position. This included the fact that the respondent was not seeking electrical engineers and preferred civil or structural engineers.[89]
[89] Dewan at [68].
The Tribunal also accepted that when the complainant had previously been offered a position in asset management, he was not enthusiastic about working in any other career other than electrical engineering and there were limited employment opportunities in that area.[90]
[90] Dewan at [69].
Another negative factor was that the complainant had previously been dismissed from the Waters and Rivers Commission for disciplinary reasons. While this may not have precluded the complainant from obtaining a position, it was a contingency that further reduced his loss of opportunity.[91]
[91] Dewan at [70].
Ultimately, the Tribunal concluded that as a consequence of these factors, the value of the loss of opportunity should probably be substantially less than 36%, although there was no need to ascertain the precise value of his loss.[92]
[92] Dewan at [71].
The applicant faces similar difficulties to those that confronted the complainant in Dewan. In the event any reference to experience and in particular '5 - 10 years' experience' was to be removed from the advertisement, it is likely that there may have been an increased number of applications in circumstances where there was only one position.
In addition, there are the observations concerning the applicant's performance during the selection process that would have further substantially reduced his prospects of being selected that had nothing to do with his age. For example:
(1)There is the evidence of Mr Deeks that the applicant:
(a)talked over the panel in the interview;
(b)appeared overly confident and a little dismissive of the whole selection process and that it felt as though he was just going through the motions and that he had the job; and
(c)had sent an email to Mr Webster asking him to give Ms Janssen a nudge, which Mr Deeks interpreted as asking for a special favour.
(2)Ms Janssen's assessment that the preferred candidate 'came across as more eager, more willing to do things' and as the role had a lot of comms work, she had comms experience and comms was a bigger part of the role.
(3)Mr Doleschall-Ridnell's comments about the applicant's interview performance referred to in [63] above.
So far as general damages are concerned, even though the applicant did not use the words 'humiliation or hurt feelings' this is likely a product of the fact he was unrepresented. Based on the evidence, I am satisfied his sense of grievance was a manifestation of his hurt feelings. Accordingly, were I to award general damages, it would have been in the range of the awards in Airflite and Hordyk. In arriving at the figure, I have taken into account that no medical intervention was required. I have also had regard to the fact that any award of damages must be attributable to discriminatory conduct not simply poor human resource practices.
Closing comments
Having considered the evidence in this case, it is apparent that the applicant had considerable difficulty understanding why he was unsuccessful in securing the position despite being told he was the equivalent of a senior trade and investment manager. So far as the applicant was concerned, it was beyond reason why the panel would pass over the chance to get the equivalent of a senior trade and investment manager for the salary attributable to a trade and investment manager. Even more curious, from the applicant's perspective, was the fact that the salary was deemed not likely to have met his expectations without him ever being asked what his salary expectations were.
That background, together with the constant reference to the applicant being overqualified and the fact that the position was filled before the PSC had completed its investigation, fuelled the applicant's sense of grievance.
When pressed in cross-examination to explain why he had said the position may not meet the applicant's salary expectations, Mr Deeks said:[93]
… and it was only when - when forced by you to explain to you why you hadn't been the preferred candidate where I was grappling for a method of describing it I could have - I could have told you that you spoke over the panellists when they were questioning you.
… I could have told you that your approach to the interview left the other panellists and me concerned about your attitude. I could have told you that but I'm a bit kinder than that and, perhaps, going back I should have because at the moment, you know, I preferred to let you down gently as to why you weren't the preferred candidate. I didn't expect three years later to be … appearing at a SAT trying to explain my reasons from three years ago[.]
[93] ts 160, 1 August 2023.
What emerged during the hearing is that the feedback provided to the applicant once the selection process was finalised represented a sanitised version of the panel's assessment.
As Mr Deeks explained, the feedback provided to the applicant was designed to be kind. This was reflected in the fact the feedback did not include anything that could be construed as critical of the applicant's performance during the selection process. The references to the applicant's experience and being overqualified in a sense externalised the reasons for his nonselection as these matters were beyond his control.
Because the applicant could not reconcile the feedback he received with the outcome, it contributed to his confusion and sense of grievance culminating in his perception that he had been treated unfairly and possibly the subject of discrimination.
While Mr Deeks' concern for the applicant's feelings was admirable, it would have been better for all concerned had the applicant been provided with a frank account of the panel's assessment of his performance during the selection process. This is particularly so when those criticisms were not amenable to being construed as discriminatory even if the applicant thought them to be unfair.
Orders
The Tribunal orders:
1. The complaint is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J O'Sullivan, SENIOR MEMBER
17 SEPTEMBER 2024
- AGLC
- BAIRSTOW and DIRECTOR GENERAL OF THE DEPARTMENT OF JOBS, TOURISM, SCIENCE AND INNOVATION [2024] WASAT 103
- Case
- [2024] WASAT 103
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the plaintiff had indeed faced direct and indirect discrimination under the definitions provided in sections 66V(1), 66V(3), and 66W of the Act. Specifically, the court needed to determine if the actions of the defendant constituted direct discrimination, which is when someone is treated less favourably than another person because of a personal characteristic, and indirect discrimination, which occurs when a condition or requirement is applied to a person that disadvantage them because of a personal characteristic. The court also needed to consider the applicability of any defences the defendant might have raised.
In reaching its decision, the court examined the evidence presented by both parties and interpreted the relevant provisions of the Act. The court found that the plaintiff had not been subjected to direct discrimination as there was no evidence that she was treated less favourably due to her age. However, the court did find instances of indirect discrimination, where certain workplace practices and conditions disproportionately affected the plaintiff because of her age. The court noted that while the defendant had implemented some measures to mitigate these effects, they were not sufficient to avoid the finding of indirect discrimination. The court concluded that the plaintiff's claims were substantiated under the Act.
The final orders of the court required the defendant to take further steps to ensure compliance with the Act and to eliminate the identified discriminatory practices. The court also ordered the defendant to compensate the plaintiff for the harm suffered due to the discriminatory conduct. The decision serves as a reminder of the importance of workplace policies that avoid age discrimination and the need for employers to provide a work environment that is equitable for all employees, regardless of age.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MR J
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