Galstaun v Adept Underpinner Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Galstaun v Adept Underpinner Pty Ltd [2021] NSWCATAD 75

Hearing dates:

21 December 2020

Date of orders:

24 March 2021

Decision date:

24 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member
J Newman, General Member

Decision:

1.   The name of the respondent is amended to Adept Underpinner Pty Ltd.

2. We find that the respondent unlawfully discriminated against the applicant on the ground of age in contravention of s 49ZYB(1)(b) of the Anti-Discrimination Act 1977 during a telephone conversation on 12 November 2019.

3.    Within 28 days of this decision the respondent must pay to the applicant compensation in the sum of $3,740.40.

Catchwords:

HUMAN RIGHTS – discrimination – grounds – age discrimination

HUMAN RIGHTS – discrimination – employment – applicants – determining who should be offered employment

HUMAN RIGHTS – discrimination – damages

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (NSW)

Cases Cited:

Commissioner of Corrective Services v Aldridge [1999] NSWADT 33

Commissioner of Police, NSW Police v Mooney (No 3) (EOD)[2004] NSWADTAP 22

Commonwealth v Evans [2004] FCA 654

Craig-Bennet v Greater Western Area Health Service [2011] NSWADT 30

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Green v Department of Family and Community Services [2013] NSWADT 193

Henville v Walker [2001] HCA 52

I and L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41

IW v the City of Perth [1997] HCA 30

Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145

Parr v University of New England [1999] NSWADT 46

Purvis v State of New South Wales (2003) 217 CLR 92

Whiteoak v State of New South Wales [2014] NSWCATAD 45

Y v Human Rights & Equal Opportunity Commission [2004] FCA 184

Texts Cited:

None cited

Category:

Principal judgment

Parties:

John Galstaun (Applicant)
Adept Underpinner Pty Ltd (Respondent)

Representation:

Counsel:
L Andelman (Applicant)

Solicitors:
153 Phillip Barristers
Respondent (Self-represented)

File Number(s):

2020/00223834

Publication restriction:

None

REASONS FOR DECISION

Nature of the claim

1. The applicant, Mr Galstaun, has worked in the construction industry and related industries. As at 12 November 2019, he was 61 years of age. He alleges that he telephoned the respondent, Adept Underpinner Pty Ltd (Adept) on 12 November 2019 to inquire about a casual construction worker job the company had advertised on the recruitment website Indeed. He alleges that the phone was answered by its director, Mr Leslie McDougall, who asked him how old he was and when Mr Galstaun answered that he was 61, laughed and said he would have a heart attack and he didn’t want that happening on his site, said he was too old and ended the call.

2. Mr Galstaun claims that this call affected his confidence in his ability to undertake construction work and as a result he ceased accepting such work for about six months. He claims that this exchange between himself and Mr McDougall…