Coady v Sutherland Shire Council

[2016] NSWCATAD 95

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Coady v Sutherland Shire Council [2016] NSWCATAD 95
Hearing dates:	12 April 2016
Date of orders:	16 May 2016
Decision date:	16 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	The application for an adjournment is refused. The application for a non-publication order is refused. Leave to proceed is refused.
Catchwords:	LEAVE – complaint declined - lacking in substance – whether fair and just for the complaints to proceed
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), ss 24, 35, 49 and 96 Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 51 and 64
Cases Cited:	AEA Constructions Pty Ltd v New South Wales Civil and Administrative Tribunal and Ors [2014] NSWSC 911 Dutt v Central Area Health Services [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 State of New South Wales (Justice Health) and another v Dezfouli [2008] NSWADTAP 69 Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128
Category:	Principal judgment
Parties:	Richard Coady (Applicant) Sutherland Shire Council (Respondent)
Representation:	Applicant (self-represented) People and Culture Strategies (Respondent)
File Number(s):	1510464
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. The question in these proceedings is whether it is fair and just in all the circumstances for Mr Coady’s complaints of sex, disability and age discrimination against the Sutherland Shire Council to go ahead. I have decided that it is not fair and just because Mr Coady is highly unlikely to be able to prove that Sutherland Shire Council has breached the Anti-Discrimination Act 1977 (NSW). I have also refused to grant Mr Coady an adjournment or make a non-disclosure order. The reasons for those rulings are set out at the end of this decision.

The legal test for granting leave

2. The President of the Anti-Discrimination Board declined the complaint as lacking in substance. When that happens an applicant needs the Tribunal’s permission or leave before the complaint can go ahead: Anti-Discrimination Act, s 96(1).

3. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

1. emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

2. found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

3. concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

4. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed.

The complaint

5. Mr Coady applied for a job with the Sutherland Shire Council. The Council received his application after the deadline and did not consider it. Although Mr Coady did not identify the precise conduct about which he complains, on the basis of his submissions, I understand that conduct to be that Sutherland Council:

1. advertised the job as a part-time position;

2. took 10 days to send him the Selection Criteria in the post;

3. treated him rudely when he telephoned and refused to allow him to speak to the contact person;

4. quoted its discrimination and harassment policy in response to his questions about whether they were discriminating against him and inferred that he should not complain; and

5. told him that his late application would not be considered unless other applicants were not suitable and ultimately did not consider him for the position.

What happened?

6. There is some dispute about the facts but for the purpose of these proceedings, I accept Mr Coady’s version of what happened.

7. Mr Coady saw an advertisement for a position in the Sydney Morning Herald. He does not remember whether he saw it on Tuesday 24 September 2013, Wednesday 25 September 2013 or Saturday 28 September 2013. The deadline for applying for the position was Tuesday 1 October 2013. Mr Coady says he could not find the Selection Criteria on the Council’s website so he rang the contact officer. He cannot remember the exact date but thinks it was 30 September 2013. He spoke to a female person who made it clear that she would not email him the Selection Criteria and that it had been taken off the website “some days” before the deadline. It is possible that this phone conversation or another conversation occurred on 3 October 2013 because in an email of 4 October 2013 Mr Coady refers to a conversation he had with a secretary “yesterday”.

8. Mr Coady thinks that the secretary said that the contact person “wasn’t available or something” but the secretary made it clear that she would not email him the Selection Criteria. The secretary also told him that his application would only be considered after all applications that had been lodged within time had been considered. According to Mr Coady the answers Council employees gave him “demonstrate their contempt for myself as a qualified candidate – because I am a middle aged male with disabilities, as they know on the phone”.

9. On 3 October 2013, two days after applications closed, Mr Coady emailed Council attaching his resume and saying that he had not received the Selection Criteria in the mail as promised. On the basis of being told that his late application would not be considered until after the on-time applications had been considered, he posed a number of questions in the email:

I have to ask you whether you:

discriminate against males for this position (given it is part-time)

discriminate against males over 50 for the position;

discriminate against middle aged male with a manageable lower back problem (requiring use of a ‘kneeling’ chair for prolonged seating in the workplace).

If you do you (sic) answer all three of these questions I will complain to the NSW Anti-Discrimination Board about discrimination by the Council.

10. On 4 October 2014 Mr Chris Sweeney, Recruitment Assistant, emailed Mr Coady to let him know that, as discussed by telephone, his application would be treated as a late application as it was not received before the closing date. In answer to Mr Coady’s specific questions about discrimination, Mr Sweeney advised that Council is “an Equal Opportunity Employer and is committed to providing a work environment that respects, protects and promotes the human rights of each individual”. The email goes on to say:

Council places a strong emphasis on the prevention of discrimination, harassment and bullying. We have a range of programs aimed to support diversity in our workplace and ensure that all staff maintain and support equal opportunity practices.

11. This email must also have been posted to Mr Coady with the Selection Criteria because there is a hand written note on the email from Michelle Munro, Personnel. It states:

Hello Richard

Unfortunately this information will reach you after the closing date for applications which was 1/10/13. However I have sent it to you for your information. Unfortunately I did not have a contact number to phone you.

12. Mr Coady says he received the Selection Criteria in the post on 13 October 2013.

13. The Council advised that the position was advertised on their website from 18 September until the closing date on 1 October 2013; on the NSW Council of Social Service (NCOSS) website appearing from 18 September 2013 until 1 October 2013; St George Sutherland Shire Leader on 24 September 2013 and in the Sydney Morning Herald on 21, 24, 25 and 28 September 2013. Council received 21 applications and interviewed three external candidates, two males and one female. The successful candidate commenced employment on 11 November 2013.

Sex, age or disability discrimination?

14. It is unlawful for an employer to discriminate against a person on the ground of sex, disability or age in “the arrangements the employer makes for the purpose of determining who should be offered employment”: Anti-Discrimination Act, s 25(1); s 49D(1) and s 49ZYB. The Council is an employer and it made arrangements for the purpose of determining who should be offered employment. Those arrangements included determining whether the position was full or part-time, advertising the position, placing the selection criteria on the web-site, setting a deadline to receive applications and formulating a policy to deal with late applications. The arrangements do not include the manner in which a person is spoken to on the phone or the response the Council makes to questions about whether its policy on late applications is discriminatory.

15. To be in breach of the Act, the conduct alleged by Mr Coady must be direct or indirect sex, disability or age discrimination as defined in s 24, s 49B and s 49ZYA. Mr Coady describes himself as a middle aged male with a manageable lower back problem.

16. For a complaint of direct discrimination to be substantiated Mr Coady would have to prove that the Council treated him less favourably than they treated or would have treated a younger woman without a disability (differential treatment). Mr Coady would also have to prove that one of the reasons for that treatment was his sex, disability or age (causation).

17. Mr Coady expresses the view that he is “pretty sure that a woman with his qualifications, community projects experience and disabilities would readily get these council jobs – and certainly not be treated with contempt after simply applying for them”. He goes on to say that “Councils are not entitled to design these jobs with only females (and maybe sometimes younger males) in mind.” Finally Mr Coady opines that “it is generally accepted that females will do part-time jobs, especially if supported by a husband with a full-time job and young kids”.

18. There is no direct evidence that the Council treated Mr Coady differently from other applicants because of his sex, disability or age. Mr Coady cannot establish that connection by speculation or by the Council’s response to his questions about the basis for their policy in relation to late applications. There must be primary facts which would allow the Tribunal to draw an inference to that effect. An inference must be logical, reasonable and establish a "probable connection" with his sex, age or disability. An inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Area Health Services [2002] NSWADT 133 at [70].

19. There are no primary facts on which an inference could be drawn that any of the remaining allegations on which Mr Coady relies constitute sex, age or disability discrimination. The innocent explanations are that the job only required a part-time employee and that the Council applied a reasonable policy that late applications would be considered if none of the candidates who applied on time were suitable. Contrary to Mr Coady’s belief, the Council’s email does not suggest that he should not complain. It contains no veiled threat to that effect. Rather, it is a response to his suggestion that by failing to accept his late application Council was discriminating against him.

20. For a complaint of indirect discrimination to be substantiated Mr Coady would have to prove that Council imposed a requirement or condition on all applicants with which he could not comply. Such a requirement would be in breach of the Act if it had a disproportionate impact on males, people with disabilities or older people and was not reasonable in all the circumstances.

21. It is arguable that the Council has imposed a requirement or condition on all applicants that they apply for any job by the advertised deadline. Mr Coady would then have to establish that he is unable to comply with that requirement. Mr Coady would find it difficult to prove that a substantially higher proportion of female applicants without his disability or of a different age could comply with the requirement. The advertisement was available for all to see.

22. The final element of indirect discrimination that Mr Coady would have to prove is that the requirement is not reasonable having regard to the circumstances of the case. The relevant factors when considering reasonableness were summarised by the Tribunal in Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128 (03 July 2012):

23. The Tribunal must have regard to the nature and extent of the discriminatory effect of the requirement and consider this in the light of:

(a) the reasons for the requirement, including any commercial (or practical) considerations;

(b) whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis;

(c) whether there is a less discriminatory option, which accommodates of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory; and,

(d) any other relevant circumstances.

24. It is reasonable for employers to make arrangements for recruiting staff that are fair and transparent. It is highly unlikely that a Tribunal hearing this case would find that the imposition of a strict deadline to apply for a position was not reasonable.

25. The complaints of sex, disability and age discrimination are lacking in substance and it would not be fair or just for them to proceed.

Adjournment application

26. Mr Coady applied for an adjournment of the hearing on 12 April 2016. The three main reasons he gave were that he had run out of time to refine and improve his written submissions, he has had various medical conditions which affected his ability to prepare for a hearing and he had been dealing with ongoing harassment by Housing NSW.

27. The Tribunal may adjourn proceedings to any time and place; Civil and Administrative Act 2013 (NSW) (NCAT Act), s 51. In AEA Constructions Pty Ltd v New South Wales Civil and Administrative Tribunal and Ors [2014] NSWSC 911 (9 July 2014) the Supreme Court held that:

The decision to grant an adjournment involves the careful balancing of different factors which include not only the competing interests of the litigants in the case, but also the effect of an adjournment on court resources and the importance to the proper working of the Tribunal's case management system of adherence to the Tribunal's directions and dates fixed for hearing.

28. The guiding principle for the NCAT Act is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s 36(1). The Tribunal must seek to give effect to that principle when exercising any power under the Act, including the power to adjourn proceedings: s 36(2)(a).

29. When the President of the Anti-Discrimination Board advises the Tribunal that a complaint has been declined as lacking in substance, the Tribunal lists the matter for hearing without making any directions for the filing or service of evidence or submissions. The issue of whether leave should be granted for the complaint to proceed is determined on the basis of the President’s Report and oral and/or written submissions given by the parties on the day of the hearing.

30. The President of the Anti-Discrimination Board referred Mr Coady’s complaint to the Tribunal on 5 August 2015. It was listed for hearing on 22 September 2015 but that date was vacated because Mr Coady had applied to Legal Aid NSW for legal representation and had not heard whether his application had been granted. The matter was adjourned to 19 January 2016 but because Mr Coady had appealed from Legal Aid’s decision to refuse his application, the matter was relisted on 12 April 2016. The Legal Aid Review Committee advised Mr Coady on 24 March 2016 that his appeal had been refused.

31. Mr Coady told the Tribunal that he had obtained preliminary legal advice from Kingsford Legal Centre on 4 April 2016 and had also had a telephone interview with the Disability Law Centre.

32. Mr Coady has had ample time to obtain legal advice and prepare his matter for hearing. There was nothing to prevent him from attempting to obtain legal advice before hearing the outcome of his appeal from the decision of Legal Aid. Even if Mr Coady was justified in waiting until the appeal had been determined, he successfully arranged to obtain preliminary legal advice from two community legal centres after that time. He was also able to produce a 21 page written submission in support of his application.

33. A medical report from Dr Jones, Mr Coady’s general practitioner, dated 23 March 2016, stated that Mr Coady has been suffering from increased knee arthritis and pain. He wrote in a letter to the Council dated 21 March 2016 that he is now on anti-inflammatory medication and his knee pain is more manageable, though still severe. I do not accept that Mr Coady’s knee pain has had any appreciable effect on his ability to prepare his case for hearing.

34. Dr Jones also noted that Mr Coady suffers from hypertension aggravated by stress. Dr Jones expressed the opinion that the hearing listed for 12 April 2016 was exacerbating Mr Coady’s medical condition. I have taken into account Dr Jones’s medical report of 23 March 2016 and accept that the stress of an impending hearing exacerbated Mr Coady’s hypertension. But there is no evidence that Mr Coady will be better able to cope with the stress of a hearing in the future.

35. Other medical reports did not directly address the question of Mr Coady’s fitness to participate in a hearing on 12 April 2016. Parts of that evidence were also redacted because Mr Coady did not agree with the opinion expressed. I have not given any weight to that evidence. I am not satisfied that the medical evidence justifies an adjournment being granted.

36. Mr Coady has prepared his submissions with the assistance of preliminary legal advice. Further adjournments are unlikely to result in less stress for Mr Coady or a significantly better quality of submissions. The application for an adjournment is refused.

Non-disclosure application

37. Mr Coady applied for an order prohibiting the disclosure of his name: NCAT Act, s 64 (1)(a). That provision states that:

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

38. A reference to the name of a person includes a reference to any information, picture or other material that identifies the person was likely to lead to the identification of the person: NCAT Act, s 64(4).

39. While the Tribunal may make a non-disclosure order if it is satisfied that it is ‘desirable’ to do so, the Tribunal should have regard to the common law principle of open justice. The Tribunal should decide what is desirable in accordance with consistent standards and values, not its own particular preferences. The values that have informed judicial decisions about the issues raised in s 64 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access: State of New South Wales (Justice Health) and another v Dezfouli [2008] NSWADTAP 69.

40. There were three bases on which Mr Coady made that application:

1. disclosure of his name may disclose sensitive personal information about him;

2. Council may try to falsely characterise his brief and cordial phone calls to obtain job and contact information in a way which could adversely affect his reputation; and

3. Council may make false claims about Mr Coady in their defence.

41. Mr Coady’s speculation as to the claims that Council may make about him or the potential effect that may have on his reputation are not relevant considerations when determining whether to make a non-disclosure order. The only relevant matter Mr Coady raised was the potential for disclosure of sensitive personal information. I do not consider the disclosure of information about Mr Coady’s knee pain or his hypertension to be sufficiently sensitive to justify a non-disclosure order. The application is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 May 2016