Galstaun v Adept Underpinner Pty Ltd

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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…

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Details
Case
[2021] NSWCATAD 75
Decision Date

CaseChat Overview and Summary

The case of Galstaun v Adept Underpinner Pty Ltd involved a dispute between the applicant, Galstaun, and the respondent, Adept Underpinner Pty Ltd. The applicant alleged that the respondent discriminated against them on the basis of age during a telephone conversation on 11 November 2019. The dispute was brought before the court to determine whether the respondent had contravened the Anti-Discrimination Act 1977 by engaging in unlawful age discrimination.

The primary legal issues the court needed to decide were whether the respondent had indeed discriminated against the applicant on the basis of age and, if so, whether this constituted a contravention of the Anti-Discrimination Act 1977. The court also needed to determine if the applicant was entitled to compensation for the alleged discrimination.

The court found that the respondent had unlawfully discriminated against the applicant on the ground of age during a telephone conversation on 12 November 2019. This finding was based on the respondent's comments about the applicant's age, which were deemed inappropriate and discriminatory. The court held that the respondent's actions contravened section 49ZYB(1)(b) of the Anti-Discrimination Act 1977. Consequently, the respondent was ordered to pay the applicant compensation in the sum of $3,740.40 within 28 days of the decision. The court's decision was clear in its finding of unlawful discrimination and the resultant compensation.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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