Complainant 201804 v The Australian Capital Territory as Represented BY the Education Directorate (Discrimination)

[2019] ACAT 3

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 201804 v THE AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY THE EDUCATION DIRECTORATE (Discrimination) [2019] ACAT 3

DT 4/2018

Catchwords:                DISCRIMINATION – age – employment – recruitment process – appropriate experience

Legislation cited:        Discrimination Act 1991 ss 7, 8, 10

Human Rights Commission Act 2005 ss 42, 53CA, 88

Cases cited:Cooley v Australian National University [2007] ACTDT 2

Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Prezzi and Discrimination Commissioner [1996] ACTAAT 132
Purvis v New South Wales [2003] HCA 62
Sharma v Legal Aid (Qld) [2002] FCAFC 196
Tadawan v South Australia [2001] FMCA 25
Virgin Blue Airlines Pty Ltdv Hopper & Ors [2007] QSC 75

Tribunal:Senior Member H Robinson

Date of Orders:  9 January 2019

Date of Reasons for Decision:          9 January 2019

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          DT 4 of 2018

BETWEEN:

COMPLAINANT 201804

Complainant

AND:

THE AUSTRALIAN CAPITAL TERRITORY

AS REPRESENTED BY THE EDUCATION DIRECTORATE

Respondent

TRIBUNAL:Senior Member H Robinson

DATE:9 January 2019

ORDER

The Tribunal orders that:

1.The complainant is to be known as Complainant 201804.

2.The respondent is amended to “The Australian Capital Territory as represented by the Education Directorate”.

3.The complaint is dismissed.

………………………………..

Senior Member H Robinson

REASONS FOR DECISION

The application

1.By way of this complaint, the complainant seeks a remedy for alleged discrimination on the basis of age in the area of employment in breach of the Discrimination Act 1991 (the Act).

2.The complainant claims that the respondent – the Australian Capital Territory as represented by the Education Directorate (ED) – declined to grant him an interview for a teaching position because he was an older candidate. He submitted that the discrimination may have been because of his age generally, but may also have been motivated by the fact that, as an older candidate, he was more experienced, and ED’s salary advancement rules would have entitled him to be paid a higher starting salary than a younger, less experienced candidate.

3.The respondent denies the allegation, and says that the complainant was not granted an interview because other candidates had more appropriate experience.

The hearing

4.The complainant represented himself at the hearing. He gave evidence and was cross examined, and also relied on the records of the recruitment process, which he subpoenaed from ED.

5.The respondent was represented by Ms Musgrove of Counsel, instructed by the ACT Government Solicitor. The respondent relied upon the evidence of Ms Julie Murkins, the principal of Lake Tuggeranong College (the College). Ms Murkins filed a witness statement,[1] gave oral evidence and was cross examined.

[1] Exhibit R2

Background

6.On 2 February 2017, the respondent publicly advertised the position of Classroom Teacher in Technology (permanent) at the College. The College had need of two technology teachers, one in automotive studies and the other in building and construction.  Applications were sought by 8 February 2017.

7.By way of background, students at the College are in their senior years of secondary school and are aged between 16 and 19 years old. Students study a curriculum approved by the Board of Senior Secondary Studies (BSSS). In addition, the College is a registered training organisation, and some units are delivered in a manner that also allows students to obtain vocational education and training (VET) qualifications. All technology students must meet the BSSS requirements, but some students may also choose to undertake the separate and different competency-based assessment for a VET qualification. Teachers must be able to deliver and assess both kinds of course.

8.The complainant is an articulate, highly educated man with significant experience in both vocational training and in the building industry. Amongst his many qualifications is a Masters of Secondary Education. Upon reading the advertisement, he formed the view, not unreasonably, that he was well-qualified and experienced for the position. As the closing date was about the pass, the complainant contacted ED and obtained an extension to submit his application.  He prepared a resume and lodged an application on 9 February 2017.

9.On 17 February 2017 the complainant was notified by the contact officer for the position, Ms Murkins, that his application would not be progressed to interview stage.  He made enquiries as to the reason, and Ms Murkins sent him an email that stated, in part:

In a nutshell … whilst you had ample qualifications, other candidates were able to give stronger evidence in relation to the criteria. At least two other candidates also carried both Auto and Building quals and experiences, meaning they will go through to interview at this stage.

I’m sorry to be the bearer of not-so-great-news. I’ve been advertising to fill this sort of staffing gap between on and off for five years and have never even come close to seeing a single candidate carrying both teaching areas – and in this particular foray, I get two![2]

[2] T-Documents [2]; Email of Ms Murkins 17 February 2017 10:39pm

10.The complainant was not satisfied with this explanation. He sought both further feedback and internal review, but was dissatisfied with the results. He also sought access to the recruitment documentation but, due to privacy considerations, was unable to obtain it prior to these proceedings. He was perplexed as to why, having regard to his qualifications and experience, he did not obtain so much as an interview.  He formed the view that a reason for rejecting his application must have been his age.

11.On 24 March 2017, the complainant lodged a complaint with the Human Rights Commission (HRC). The complaint alleged unlawful discrimination by the respondent in the area of employment on the basis of age. On 13 February 2018 the parties attended a conciliation convened by the HRC. The matter was not resolved.

12.On 19 March 2019, the ACT Discrimination Commissioner wrote to the parties advising that the complaint would be closed on the basis that conciliation was unlikely to succeed. The complainant asked that the complaint be referred to this Tribunal pursuant to sections 42(2)(d) and 88 of the Human Rights Commission Act 2005 (HRC Act).

The complainant’s evidence

13.The complainant’s evidence consisted primarily of the (anonymised) applications and other selection material before the selection panel. He submitted that, having regard to the applications, he was clearly a preferable, if not the preferable, candidate, for either or both positions. He emphasised his qualifications, experience, and the quality of his application, particularly by reference to the other three applicants who were ranked more highly than him.

14.The complainant also raised some issues about the recruitment process, including potentially some errors in the summaries of other applicants’ qualifications and experience put together by the panel. He went as far as to suggest that one of the other candidates was not properly qualified.

15.The complainant tendered a copy of the ED’s “Guidelines for Incremental Salary Advancement” for teachers. He submitted that, had he been successful, the ED would have been required to recognise his prior experience and pay him highly on that scale. I do not believe it to be in dispute that a more highly qualified or experienced candidate may be entitled to a higher starting salary.

16.The complainant agreed that his resume did not state his age. When asked by the Tribunal as to how he thought the respondent determined his age, he suggested that ED may have made enquiries with another government agency, noting that Access Canberra had access to his age as part of the process to assess his eligibility for a working with vulnerable people registration card.

17.The complainant also noted that on his resume he claimed to have “over 10,000 … coalface hours”, and that this could have given an indication to the panel as to his age – “ten thousand hours is done in … 10 or 12 years”.[3]

[3] Transcript of proceedings 9 October 2018 page 28 [23]

18.Arguably, the complainant’s age could also be inferred from the dates upon which he obtained his qualifications.  Some of the names of his qualifications have since changed, which may also indicate that he is an older candidate.

19.In his concluding submissions, the complainant surmised his position as follows:

…based on the above I feel I have clearly demonstrated that I have been discriminated against. So why would I have been discriminated? What attributes do I possess that would cause them to do so? The only one that makes any sense to me is my age because I cannot think of another, so I say that it is far more probable than not that it’s my age. I say it’s highly probable and it would not have been difficult from a variety of sources, notwithstanding what Ms Murkins said, to find out what my age was.[4]

[4] Transcript of proceedings 9 October 2018 page 63 [30]-[37]

The respondent’s evidence

20.The respondent relied upon the evidence of Ms Murkins, as chair of the selection panel.

21.Although Ms Murkins was not the only decision-maker, she was one of the three members of the panel who had to make the decision, and she participated in all the relevant discussions and decisions. She was also the person with ultimate management responsibility for the selection process, and I accept her evidence as being evidence of the reasons for the decision under review.

22.Ms Murkins impressed me as an honest, reliable and knowledgeable witness. Her evidence may be summarised as follows.

23.The committee constituted Ms Murkins as chair, the Deputy Principal of the College as the internal member, and a school leader who is responsible for the coordination of vocational education and training at another secondary college as the external member.

24.As the chair, Ms Murkins convened the selection committee, sought endorsement of the committee composition from the Australian Education Union, coordinated the development of the advertisement and selection criteria and arranged for shortlisting of applicants with the other members of the selection panel. It was also her responsibility to see that shortlisting accorded with the selection criteria under the job description.

25.For this position applicants were asked to address the standard teacher domains of the Australian Professional Standards for Teachers, being professional knowledge, professional practice, and professional engagement. The advertised position also listed as ‘highly desirable’ vocational education and training qualifications.

26.The committee first met on 14 February 2017 via telephone. At this stage the committee members had not seen the applications and the purpose of this phone call was to orientate committee members to the needs of the position. After this conversation the committee members were provided with the applications. At the teleconference the committee members agreed that technical vocational skills and teaching experience in a school setting were essential to the position. This is because the position was located in a school-based registered training organisation.

27.The shortlisting meeting occurred on 16 February 2017. By then committee members had read and conducted their preliminary assessment of each candidate’s application.

28.During the shortlisting process the committee identified three clear clusters of applications:

(a)applicants who were practising classroom teachers within school settings with relevant VET qualifications;

(b)applicants who were practising classroom teachers in school settings without relevant VET qualifications;

(c)applicants, including the complainant, who had teacher qualifications, VET qualification and training experience in settings other than schools.

29.The complainant and the three shortlisted candidates all held teacher qualifications and all had, in one form or another, current VET qualifications relevant to the two industries covered in the teaching roles advertised.

30.The core difference between the candidates that were shortlisted and the complainant was their time and experience teaching in classrooms and schools, and hence their practical understanding of the dual BSSS and VET requirements, particularly in relation to the development of assessment items that would serve both those requirements.

31.There was further discussion between the three panel members in relation to the complainant on the basis of his qualifications. Ms Murkins acknowledged much about the complainant’s application was interesting, but said that ultimately the committee members felt that his lack of experience in school-based classrooms distinguished him from the other shortlisted candidates. Accordingly, his application was not advanced to interview.

32.As to why the committee shortlisted only three applicants, Ms Murkins explained that:

the committee then believed that they had three candidates that had both sets of qualifications and experiences that we were looking for. The panel makes a decision around the efficiency of moving forward to interview. There’s no cap. There’s no magic number about how many people go through to interview. The panel makes that [decision] based on the quality of the applicants. We felt we had a clear distinction between the top three candidates who had both, the next candidate, which happened to be [the complainant], and then the subsequent candidates who had neither one nor the other.[5]

[5] Transcript of proceedings 9 October 2018 page 38 [46] to page 39 [6]

33.Ms Murkins expressly denied that she took the complainant’s age into account when considering whether to grant him an interview. She denied even knowing the complainant’s age.[6] She acknowledged that the complainant’s covering letter included a statement that he had amassed approximately 10,000 hours “at the coal face”, but she did not recall that the statement influenced or informed any discussion in relation to his possible age. The statement did, she said, trigger the committee to go back over the complainant’s employment history to look closely for experience as a classroom teacher to see if the complainant met the requirements of the position.[7]

[6] Transcript of proceedings 9 October 2018 page 39 [10]-[13]

[7] Transcript of proceedings 9 October 2018 page 39

34.I accept Ms Murkin’s evidence and I am satisfied on the basis of her evidence that the panel did not consciously consider the complainant’s age when deciding who to shortlist. However, unlawful discrimination may be unconscious, or may be founded on the ground of a characteristic, or assumed characteristic, that a person with a protected attribute has or is assumed to have.[8] For example, presumed seniority may be sufficient to found a claim, even if the complainant’s precise age was not known. This is considered further below.

[8] Discrimination Act1991 section 8(2)

35.During cross examination, the complainant suggested to Ms Murkins that she was mistaken about his experience in classroom teaching. His evidence was that his Masters of Secondary Education contained a significant practical component that involved experience in teaching secondary school. Ms Murkins did not deny this, although she noted that the other candidates “had actual appointed classroom teaching experience.”[9] It may well be that the committee was mistaken about the complainant’s experience (although, if so, it is at least partially because he did not directly state it in his application), but for reasons set out below, the mistake is not, of itself, evidence of age discrimination.

[9] Transcript of proceedings 9 October 2018 page 49 [6]

36.The applicant also raised some issues about the recruitment process, including potentially some minor errors in the summaries of other candidates’ qualifications and experience prepared by the Committee. Ms Murkins did not concede these errors.

Consideration

37.The Act applies to discrimination against a person on the ground of certain “protected attributes” as defined in section 7 of that Act. “Age” is one protected attribute.[10] There is no definition of “age” in the Act, but it could not be seriously disputed that an older person may be considered ‘too old’ for particular employment. The complainant is of such an age that he could fall within such a group that may be disadvantaged in obtaining employment.[11] “Age” may also be considered a proxy for other characteristics typically associated with age – and the complainant has suggested that too much experience, and hence an entitlement to higher starting salary (that is, being perceived to be a more expensive employee), may be such a characteristic.

[10] Discrimination Act1991 section 7(1)(b)

[11] Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 75

38.Section 10(1)(b) of the Act provides that it is unlawful for an employer to ‘discriminate’ against a person in deciding who should be offered work.

39.‘Discrimination’, for the purposes of the Act, is defined in section 8(1) 1 to occur when a person “discriminates either directly or indirectly against someone else”.

40.Under the Act, ‘discrimination’ may take one of two forms: direct or indirect. Pursuant to sections 8(2) and 8(3) of the Act:

(a)a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has one or more protected attributes;

(b)a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes.

41.Although it not entirely clear on the face of the complainant’s application and supporting documents, it appears that he is arguing that he was directly discriminated against, in the sense of being treated unfavourably because of his age. The hearing was conducted on this basis.

42.In a case of ‘direct discrimination’, the prohibition lies against treating a person ‘unfavourably’ because of a protected attribute.  In this case, the allegation is that the complainant was treated unfavourably because of his age, or a characteristic of his age.

43.The Act does not define ‘unfavourably’ or ‘unfavourable treatment’, but a body of case law has developed which gives meaning to the term. In Prezzi and Discrimination Commissioner [1996] ACTAAT 132 at paragraphs 22 to 24 (affirmed by the Federal Court in Edgely[12]) the then discrimination tribunal said that:

The ACT Discrimination Act … does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.

[12] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 [54]-[57]

44.Put another way, ‘unfavourable treatment’ encompasses acts or omissions which result in some detriment, being loss, damage or injury.[13]

[13] Cooley v Australian National University [2007] ACTDT 2 [44]

45.The alleged unfavourable treatment in this case is the decision by the committee (on behalf of the respondent) to decline to interview the applicant for the position for which he applied. In its submissions, the respondent states that it “does not accept that a decision to not advance an individual’s application for employment” can amount to unfavourable treatment.[14] It agrees that it may be that where there is significant competition for appointment to limited positions, the failure to interview a particular candidate may amount to only an insubstantial or minor detriment, or indeed no detriment at all if the candidate has no prospects.  But that is not the case here. I am satisfied that a failure to advance a applicant’s application to interview can amount to unfavourable treatment, and I am prepared to accept that it was unfavourable treatment in this case.

[14] Respondent’s Outline of Submissions 20 June 2018

46.Nonetheless, unfavourable treatment alone does not constitute discrimination for the purposes of the Act. The Act is breached only where the “true basis or real reason” for that conduct is the existence of a protected attribute (in this case, the complainant’s age or a characteristic thereof).[15] There must be a proven causative relationship between the unfavourable treatment and the discrimination.

[15] See Purvis v New South Wales (2003) 217 CLR 92

47.The complainant bears the onus of establishing that unlawful discrimination has occurred.[16] That said, it is a rebuttable presumption that discrimination has occurred if the complainant establishes that the treatment was unfavourable and presents evidence that enables the tribunal to decide in the absence of any other explanation that the treatment was because of his protected attribute.[17]

[16] HRC Act section 53CA

[17] HRC Act section 53CA(2)(a)

48.The test for direct discrimination can be difficult to meet. Accordingly, in the absence of direct evidence of the reason for unfavourable treatment, inferences may be drawn provided from circumstantial evidence.[18] There are numerous decisions of this tribunal which set out what inferences can be drawn. The complainant is asking that the Tribunal draw such an inference in this case.

[18] Sharma v Legal Aid (Qld) [2002] FCAFC 196; Tadawan v South Australia [2001] FMCA 25

49.The complainant’s starting position is that his qualifications were evidentially superior to that of the other candidates, and that in the circumstances the only reasonable inference to be drawn is that he was discriminated against on some basis, and on the balance of probabilities that basis was his age.

50.I decline to draw such an inference. The complainant is well-qualified and experienced, but so are the other candidates.  A clear point of difference between the complainant and the other candidates was the other candidates’ practical teaching experience. This is a reasonable and rationale explanation, supported by evidence.

51.I do note that the explanation given by Ms Murkin in the 17 February 2018 email (being that the other candidates had both auto and building experience) is subtly different to that given in these proceedings (the other candidates had practical teaching experience). That did give me reason to consider whether the explanation advanced at this hearing has been constructed after the fact.  However, I am satisfied that there is no necessary inconsistency between the explanations.  Both explanations are reasonable and believable, and are consistent with the paperwork and the evidence. There is nothing in the evidence to suggest Ms Murkins was anything other than a frank and honest witness. There is no other evidence that would suggest some bias or discrimination in the decision-making process such that an inference of discriminatory intent may be drawn.

52.No doubt, the complainant was a well-qualified applicant. His extensive experience in relation to VET is not in doubt, and was expressly acknowledged by Ms Murkins at the hearing. However, the ED, for reasons that were well‑articulated by Ms Murkins at the hearing, determined that the primary consideration was practical, demonstrated classroom teaching experience. The other candidates articulated that experience in their applications. The complainant did not. I accept that is a legitimate point of difference, and that is the reason why the complainant was not offered an interview.

53.It appears to this Tribunal that the true basis for the complainant’s grievance is what he sees as the failure by the decision-makers to give a proper and due regard to the practical experience he gained through his Masters degree course, or to properly consider the relevance of his work in vocational training. These may or may not have some basis. However it is not the role of this Tribunal to review the broader aspects of the recruitment process. The weighing of the various forms of experience is ultimately a matter for the ED. The only issue before the Tribunal is whether this allegedly unfavourable treatment was due to the complainant’s age, and I am satisfied that it was not.

54.In closing, I note that public sector recruitment can be complicated, formulaic and opaque. The process of selection criteria, joint selection panels, rankings, shortlisting and interviews can seem impenetrable. It is often not a simple matter for a candidate to obtain meaningful feedback, particularly where there were numerous candidates or when they are excluded at the commencement of the process. Even when feedback is available, the contact officer may find it challenging to clearly articulate, in a short email or brief telephone conversation, how a candidate was compared or ranked. Such were the problems facing both the complainant in this case, and the ED officers who liaised with him. The unfortunate consequence has been this discrimination case.

55.The complainant in this matter applied for a job for which he was well-qualified and had relevant experience. He did not obtain an interview. He was perplexed and surprised by the result, and understandably so. He asked: what basis was there for rejecting my application, other than my age? His queries were not unreasonable. However, having reviewed the application and evidence, I am satisfied that they are not justified. In reaching this conclusion, I do not discount the complainant’s genuine angst or bewilderment. He was a strong candidate. As Ms Murkins acknowledged at the hearing, in other rounds he may well have been successful. But unfortunately for the complainant, this round of recruitment was a surprisingly competitive one, and in the end he was excluded only for the reason that his experience did not match that sought by the respondent, in circumstances where the respondent was able to choose. 

56.Accordingly, for the reasons set out above, the complaint is dismissed.

………………………………..

Senior Member H Robinson

HEARING DETAILS

FILE NUMBER:

DT 4/2018

PARTIES, APPLICANT:

Complainant 201804

PARTIES, RESPONDENT:

Australian Capital Territory

as represented by the Education Directorate

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

Ms K Musgrove

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

ACT Government Solicitor

TRIBUNAL MEMBERS:

Senior Member H Robinson

DATES OF HEARING:

9 October 2018