Gardem v Etheridge Shire Council

[2013] FCCA 1324

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARDEM v ETHERIDGE SHIRE COUNCIL [2013] FCCA 1324

Catchwords:
HUMAN RIGHTS – Age discrimination – whether Court should draw inference that applicant did not get acting higher duties position because of his age – where one of employer’s stated reasons was to make appointments in its “long-term interests” – where applicant had more formal qualifications and more experience than appointee – no age discrimination – application dismissed.

HUMAN RIGHTS – Disability discrimination – where employer concluded that applicant had abandoned employment and finalised applicant’s entitlements – where applicant absent because of alleged disability – no disability discrimination – application dismissed.

Legislation:

Age Discrimination Act2004 (Cth), ss.14, 16

Disability Discrimination Act1992 (Cth), ss.5, 15, 15(2)(c)

Local Government Act 1993 (Qld), ss.1130, 1130(a), 1130(c)

Whistleblower’s Protection Act 1994 (Qld)

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

Applicant: GRAHAM JOHN GARDEM

Respondent: ETHERIDGE SHIRE COUNCIL

File Number: BRG 5 of 2011

Judgment of: Judge Jarrett

Hearing dates: 1 & 2 August, 2011

Date of Last Submission: 25 April, 2013

Delivered at: Brisbane

Delivered on: 12 September, 2013

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr Ashton

Solicitors for the Respondent: Thynne & Macartney

ORDERS

1. The application filed on 5 January, 2011 is dismissed.

2. Any application for costs, together with any supporting affidavit (if any) and written submissions shall be filed within twenty-eight (28) days of today’s date.

3. The respondent to any such application shall, within twenty-one (21) days after service of any application, file and serve a response, supporting affidavit (if any) and written submissions in respect of the application.

4. Any costs application be considered in Chambers.  If any party wishes there to be a further oral hearing in relation to costs a request for an oral hearing shall be set forth in that party’s written submissions.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 5 of 2011

GRAHAM JOHN GARDEM

Applicant

And

ETHERIDGE SHIRE COUNCIL

Respondent

REASONS FOR JUDGMENT

1. By this application, Mr Gardem seeks an apology, re-training and compensation from his former employer, Etheridge Shire Council, for alleged breaches of the Age Discrimination Act2004 (Cth) and the Disability Discrimination Act1992 (Cth).

2. Mr Gardem’s application filed on 5 January, 2011 sets out his claims as follows:

   Age Discrimination: I allege my former employer appointed a person to a senior position for which I was significantly more greatly qualified and experienced, in circumstances where that person was not qualified by way of either formal qualifications or experience to do the work.

   In particular, I was both formally qualified and had specific experiences in the work. Furthermore, I was a study supervisor of the appointed person at the time the appointment was made. The successful employee was aged 47 years and I was in my 64th year.

   With respect to the appointment, the CEO of Etheridge Shire Council, L. M Edmistone wrote "At all times 1 have considered it my managerial prerogative to appoint a person for reasons that 1 consider to be in the long term interest and development of Etheridge Shire Council.

   Disability Discrimination: I allege my former employer constructively dismissed me without notice while I was absent from work while sick.  At all relevant times my employer had medical certificates that notified it I was unwell and under the care and treatment of a doctor. At the time of my dismissal my employer had a specialist doctor's report that notified my illness was work related, and if treatment was made available to me I would be able to return to work.

   There was continuous correspondence between me and my employer during the period I was unwell. Despite having that information L.M Edmistone, CEO of my employer wrote on 25 September 2010 that he did “Conclude that you have abandoned your employment with the Council” because of, amongst two other equally spurious reasons, I submit “Your absence from work, without authorised leave”, declared that I had “Abandoned your employment with the Council”.

   I immediately responded in writing to declare that “I have not abandoned my work with Council I do continue to suffer from a work-related illness and I do have medical certificates in relation to that illness which cover the continuous period between May 2009 and October 2009”.

   Despite having that information Mr Edmistone wrote on 15 October 2009 “In my letter of 25th September 2009 I expressed the opinion that you had abandoned your employment and I provided you with a cheque representing a final payment of all accrue entitlements. Accordingly, I do not consider it necessary to respond to your letter of 9 September 2009. “

3. On 9 March, 2011 Mr Gardem filed a statement of claim wherein he set out his case.  Mr Gardem represented himself in these proceedings.  He relied upon two affidavits deposed by himself, one filed on 4 July, 2011 and the other filed on 25 July, 2011.

4. The Council was represented by solicitors and counsel.  It relied upon evidence contained in affidavits deposed by Jenniann Leigh Alexander on 18 July, 2011 and Leslie Murdoch Edmistone on 18 July, 2011.

Background

1. Mr Gardem is now about 68 years of age.  At the time relevant to these proceedings he was about 63 years of age.  He is now a recipient of social service benefits although seeks out work to augment his income as opportunities arise.  He is a member of the professional accounting body known as the ‘National Institute of Accountants’, at the level of Professional National Accountant.

2. The Council is a Queensland local government based at Georgetown, a very remote town in the Gulf-Savannah region of far north Queensland.

3. Commencing in about December, 2006 Mr Gardem negotiated with the Council, to undertake some accounting work for it on a temporary basis.  As a result of those negotiations, between 1 April, 2007 and 25 May, 2007 a company controlled by Mr Gardem, Kirbailia Pty Ltd, contracted with the Council to supply Mr Gardem’s services to the Council.

4. Things went well and after Mr Gardem completed that temporary assignment for the Council, he negotiated a more permanent position.  On 18 June, 2007 he took up full-time employment with the Council as a Senior Administration Officer.  His employment was subject to an Australian Workplace Agreement (which was to be read in conjunction with the Etheridge Shire Council Enterprise Bargaining Agreement 2006).

5. Mr Gardem was offered the opportunity to rent accommodation from the Council in Georgetown.  He took up that opportunity.  However, he was at pains to point out during the trial, and I accept, that the accommodation offer was not part of the terms or conditions of his employment or in any way linked to it.  It was a separate agreement between he and the Council.

6. When Mr Gardem commenced his employment as a Senior Administration Officer, Mr Warren Olsen was employed as the Chief Executive Officer of the Council.  Ms Dorretti de Graff (also described as deGraaff in some of the material) was employed by the Council as the Director of Corporate Services. 

7. In November, 2007 the CEO resigned and on 29 November, 2007 Ms de Graaff was appointed the Acting CEO of the Council.  Mr Gardem was appointed the Acting Director of Corporate Services, effective from 14 December, 2007.  The appointment of Mr Gardem to the acting position was temporary.  By the letter of offer for the acting position (accepted by Mr Gardem on 29 November, 2011) the term of the appointment was for the period from 14 December, 2007 to 31 March, 2008).

8. Mr Gardem alleges that during his acting appointment, he became aware of several practices on the part of the Council’s officers that were of considerable concern to him.  For example, he gave evidence that amongst his duties was the duty to countersign payment vouchers. This task required him to ensure the fidelity of the purchase arrangement and the paying transaction.  There were rules that applied to purchases and the disbursement of public moneys.  Mr Gardem gave evidence that during the usual course of reviewing the supporting documents for certain payment vouchers he became aware that several malpractices were entrenched at the Council.  Two in particular rated special mention.  Mr Gardem says that there were:

   a)purchasing malpractices that directed work to preferred persons who were not licensed to do that particular work in Queensland; and

   b)purchasing malpractices that directed very valuable purchase orders to particular individuals by-passing the competitive purchasing protocols that are required under Queensland law.

9. Further, Mr Gardem says that he became aware of the operation of a building development business which was operated by the then acting CEO of the Council, Ms de Graaff.  It concerned him that her business used unlicensed labour for commercial building work and that the use of unlicensed people to perform work for the Council appeared to be an entrenched practice at the Council.  He also claimed that although she had a duty to apply for approvals for the development and other building work carried on by her business and pay to the Council the relevant application fees, Ms de Graaff did not make the applications, obtain the necessary approvals or pay the fees.

10. Mr Gardem took the view that he had a responsibility to notify the Council’s senior officers and other authorities about the practices at the Council that concerned him.  He did that.  He made recommendations about changes that would make the non-compliant practices compliant with the relevant regulatory regimes.  Disappointingly for Mr Gardem however, the senior Council officers with whom he raised the issues did not cause any timely corrective action.  In fact, he says that he was simply ignored and viewed as a trouble-maker.

11. The working relationship between Ms de Graaff and Mr Gardem became strained.  That caused Ms de Graaff to write to Mr Gardem on 25 February, 2008 and for him to reply, not to her, but to the then Mayor of the Council.  The letters appear in Exhibit 1.

12. On 31 March, 2008 Mr Gardem’s appointment as Acting Director of Corporate Services came to an end.  He returned to his role as a Senior Administration Officer.  There is a dispute between the parties about why it ceased.  The Council’s case is that the appointment was only ever a temporary appointment that was intended to conclude on 31 March, 2008.  Mr Gardem’s case is that his temporary appointment came to an end because he had discovered and then sought to do something about various anomalous practices within the Council’s operations.  According to Mr Gardem, the Council’s senior officers were so dissatisfied with him that they sought to punish him by reverting him to his old role.

13. I am satisfied that Mr Gardem’s acting appointment came to an end by effluxion of time.  It may well be the case that the Council was disinclined to renew or extend the appointment because of the matters that Mr Gardem raised, but it is clear enough from the offer of appointment and Mr Gardem’s acceptance of it that the term of that appointment expired on 31 March, 2008 (document 5 in the bundle of documents that are Exhibit 1).

14. On 24 April, 2008 Mr Gardem wrote to the new mayor of the Council setting out his concerns about the “serious breaches of policy, protocol and law” that he thought occurred regularly at the Council.  He also made further complaints about Ms de Graaff.  By a reply from the Mayor dated 23 May, 2008 (but which Mr Gardem says he received in July, 2008) the Mayor informed Mr Gardem of the Council’s plans to begin systematically reviewing all existing policies, organisational structures and contracts of the Council. 

15. Mr Gardem says that he fought against the ongoing wrongful practices at the Council.  He did not condone the practices, although on some occasions he says that he had no choice but to authorise payments that he would not otherwise have authorised.  Sometimes, however, he refused to authorise payments and this caused significant friction between Mr Gardem and senior Council officers.  Mr Gardem says that even after he brought the offending conduct to the attention of the Mayor, no changes were made to address his concerns.

16. Further, Mr Gardem alleges that he was harassed and bullied by the Acting Chief Executive Officer in an effort to cause him to accept the Council’s practices.  Mr Gardem says that upon his acting appointment coming to an end, his other duties were progressively withdrawn until he was left with largely only clerical tasks to perform.

17. Mr Les Edmistone was appointed the new CEO for the Council in June, 2008. Mr Gardem bought his concerns to Mr Edmistone.  Exhibit 1 contains copies of communication records between Mr Edmistone and Mr Gardem.

18. Dissatisfied with the response he received from the Council’s officers, on 6 June, 2008 Mr Gardem wrote a letter to the Minister for Main Roads and Local Government setting out his concerns about the practices at the Council.  The letter was very detailed.  On 27 June, 2008 Mr Gardem wrote to the Policy Adviser to the Minister for Local Government, Sport and Recreation which expanded on some of the matters that he had raised with the Minister.  Mr Gardem described these letters as public interest disclosures pursuant to the Whistleblower’s Protection Act 1994 (Qld).

19. At about the same time, the Council, by the Chief Executive Officer, sought legal advice concerning what the CEO saw as Mr Gardem’s disruptive and unproductive behaviour.  The advice suggested that short of a negotiated outcome with Mr Gardem, performance management or disciplinary procedures could be instituted or alternatively Mr Gardem’s position could be made redundant.  In that respect, the advice suggested that there should be a review of the Council’s organisational structure carried out by a third party.

20. The evidence reveals that the Council determined to proceed with an organisational restructure.  Mr Gardem was made aware of the review and was involved in it.  On or about 14 July, 2008 independent consultants were engaged to carry out the review.

21. However, it is apparent from the documents contained in Exhibit 1, that the CEO of the Council continued to be particularly unhappy with Mr Gardem.  Matters came to a head when the CEO was made aware of Mr Gardem’s public interest disclosures to the Minister for Local Government.  It seems that an officer or employee within the Department of Main Roads (or its equivalent) informed the Council (through persons unknown) of Mr Gardem’s correspondence to the Minister.  The disclosure of that information was prohibited by the Whistleblower’s Protection Act, but nonetheless it occurred.

22. Mr Edmistone sought advice from the Council’s lawyers about how to take formal disciplinary action against Mr Gardem for what the CEO considered was gross insubordination.  On 23 July, 2008 the Council received advice concerning Mr Gardem’s conduct and how the Council could undertake “formal disciplinary action” against Mr Gardem “including proceeding to summary termination of his employment”.  The advice included a draft letter to Mr Gardem asking him to show cause why he should not be subject to disciplinary proceedings and a draft letter terminating his employment.

23. On the same day, 23 July, 2008 Mr Edmistone wrote to Mr Gardem utilising the draft letter prepared by the lawyers.  The letter called upon Mr Gardem to show cause as to why he should not be disciplined (which included the possibility of summary dismissal) for informing the Minister for Local Government, Sport and Recreation and the Minister’s policy adviser about the matters that concerned Mr Gardem.

24. Mr Gardem did not receive a copy of that letter until 4 August, 2008.  Mr Gardem and Mr Edmistone met on 6 August, 2008.  No substantive response was made to the show cause letter and Mr Gardem asked for some weeks to seek legal advice and make an appropriate response.

25. On or about 7 August, 2008 Mr Edmistone received a letter from the office of the Director-General, Department of Local Government, Sport and Recreation.  That letter set out that the Department was investigating Mr Gardem’s claims concerning the Council and asked the Council to delay any disciplinary action against Mr Gardem until the Department completed its review of the issues raised by his correspondence to the Minister.  At the same time, Mr Gardem was also taking matters up with his union.

26. On 11 August, 2008 Mr Edmistone wrote to Mr Gardem in these terms:

    By letter dated 7 August 2008, your union has written to us asserting that Council has acted in a manner which threatened your employment and has attempted to cause you detriment in your employment.  We disagree that a threat to your employment was made, or that there was any attempt made to cause you detriment in your employment, or at all.

    However, in all of the circumstances, Council has decided not to deal further with these allegations.  Accordingly, the request that you provide responses to the allegations is withdrawn.

27. Not content with the Council’s withdrawal signified by that letter, Mr Gardem took Mr Edmistone’s actions up with the Crime and Misconduct Commission (Queensland) by way of emails of 19 August, 2008, 3 October, 2008 and 6 October, 2008.

28. On about 9 September, 2008 Mr Edmistone appointed Jennianne Alexander as the Acting Corporate Services Manager “until the position has been advertised and the successful applicant appointed”. For the reasons that I discuss below, it is this action that Mr Gardem now claims was an action taken against him which breached the prohibition against age discrimination set out in the Age Discrimination Act.

29. On or about 26 September, 2008, the organisational review consultants delivered their report to the Council.  For present purposes, it is sufficient to record that the report suggested that Mr Gardem’s position of senior administration officer should be made redundant.

30. On 23 October, 2008 Mr Gardem wrote to Mr Edmistone.  The letter made it clear that Mr Gardem had received written advice from the Director-General of the Department of Local Government, Sport and Recreation.  Mr Gardem set out some of the advice that he had received in the letter.  Mr Gardem then reiterated his complaints against the Council in the following way:

    My complaints have two main limbs.  These are;

    1. Failure of managers to observe many of the laws, regulations and policies that apply to local governments, particularly with regard to purchasing but also relevant to workplace health and safety issues and building law (amongst others); and

    2. Reprisals against me because I have persistently encouraged Council and its executives to adopt compliant practices and procedures.

    …

    Jenni Alexander has been appointed Acting Manager Corporate Services pending the appointment of a permanent Corporate Services Manager.  It is noted Jenni was my subordinate when I was Acting Director Corporate Services for Council.

    I have been Jenni’s mentor on accounting, administrative and technical matters since I joined Council, and it will be noted she has no relevant qualifications and the barest of relevant experiences for the corporate services role.

    The only criticisms of my work have stemmed from Ms deGraaff who responded inappropriately to my efforts to encourage the adoption of compliant practices at Council, and from you when, by letter in July, you responded inappropriately to my efforts to encourage the adoption of compliant practices at Council.

    In the absence of supportable criticism of my work it appears Jenni’s appointment to the new role is a constructive reprisal against me.  If that is so, it appears to be contrary to policy and law, and is a cause of complaint.

1. On or about 30 October, 2008 Mr Gardem received a response from the CMC. The CMC determined that there was “no doubt” that Mr Edmistone’s action in initiating show cause proceedings upon becoming aware of the contents of Mr Gardem’s “public interest disclosure” was an unlawful reprisal against Mr Gardem that was prohibited by the Whistleblower’s Protection Act 1994 (Qld).  Further, the CMC advised Mr Gardem that a report had been sought from Mr Edmistone detailing the reasons for Ms Alexander being appointed to the position of Acting Manager Corporate Services as that too, might be seen as a reprisal against Mr Gardem.

2. On 5 November, 2008 Mr Edmistone wrote, on behalf of the Council, to Mr Gardem in response to his letter of official complaint dated 23 October, 2008.  In essence, Mr Gardem’s complaints were rejected by the Council, as was his suggestion that the appointment of Ms Alexander to the position of Acting Corporate Services Manager was a constructive reprisal against Mr Gardem.

3. On 12 November, 2008 Mr Edmistone wrote to the CMC in response to the CMC’s letter to him of 30 October, 2008 seeking an explanation from Mr Edmistone about the appointment of Ms Alexander to the position of Acting Corporate Services Manager.  In that letter, Mr Edmistone provided his justification for appointing Ms Alexander.  The letter is pivotal to Mr Gardem’s case for reasons which will appear below.  It is relevant for present purposes, however, to record the following:

   I made the decision to appoint Ms Alexander to that position for a number of reasons including:

   (a)She has during the period of my employment as Chief Executive Officer demonstrated not only high quality managerial and administrative tasks skills, but demonstrates some real potential as a leader.

   (b)In a small remote community, it is essential that Council undertakes some careful succession planning and, to this end, I have decided that it was appropriate to assist Ms Alexander with some multi-skilling by giving her the opportunity to take up a leadership role on a temporary basis.

   (c)I had previously offered the opportunity to experience a more senior leadership role to Mr Graham Gardem when he was asked to temporarily fill that role for approximately two (2) months in September 2007.

   (d)I believe it is appropriate to ensure that all members of staff who demonstrate leadership qualities, have an opportunity to be rotated into a leadership position to help develop their skills and to assess the capacity for leadership roles in the future.

   (e)Although Mr. Gardem could probably be considered as having a higher level of formal qualifications than Ms Alexander, as a CEO I consider it my obligation to assess the full range of qualifications, background, experience, skills and a propensity for leadership as being relevant issues in making an interim appointment.

   (f)From my observations of Ms Alexander to date, it appears to me that she has a range of experience, skills and leadership qualities which could potentially allow her to be promoted to positions of leadership that might involve supervising individuals who may even hold higher levels of formal qualifications that she holds.  She has demonstrated a continuing interest in professional development and managerial education and I would hope that she will continue to undertake appropriate studies to ensure that she continues to develop formal qualifications commensurate with any promotion opportunities.

   (g)At all times, I have considered it my managerial prerogative to appoint a person for reasons that I considered to be in the long-term interests and development of Etheridge Shire Council.

   (h)It is my intention that when the next acting position becomes available, I will give another employee, preferably one who demonstrates some leadership skills and abilities, the opportunity to undertake an acting managerial role.  This way I believe that, over time, I will develop a managerial team with depth of experience, most of whom will be capable of stepping into more senior positions either after resignations or while senior managers are on leave.

4. On 12 November, 2008 Mr Gardem made a formal application for the position of Manager Corporate Services, the position that Ms Alexander was filling on an acting basis.

5. In the first half of 2009, the Council began to implement the organisational restructure recommended by its external consultants.  On 13 May, 2009 Mr Edmistone wrote to Mr Gardem to confirm the oral advice given to Mr Gardem on that same day that his position of Senior Administration Officer had become redundant and Mr Gardem needed to be redeployed within the council.  Mr Gardem was offered the position of Coordinator External Consultancies and Community Services.  It was at a lower rate of pay.

6. In May, 2009 Mr Gardem says that it was necessary for him to take leave from work because he had become so stressed by reason of his dealings with Mr Edmistone and the Council that he could no longer work.  Because the only medical practitioners in Georgetown were general practitioners provided for sessional clinics by the Flying Doctors Service it was necessary for Mr Gardem, he says, to seek “specialist help”.  He returned to “the coast” to consult with a specialist practitioner.  He says that he was issued with medical certificates for all the time that he was absent from the Council offices.

7. On 1 June, 2009 Mr Edmistone wrote to Mr Gardem informing him that his application for appointment to the position of “Manager Corporate and Community Services” was unsuccessful.  Mr Gardem was on sick leave at that time.

8. Mr Gardem subsequently made a claim for workers compensation and was referred by the Council’s insurer to a doctor for an opinion.  Mr Gardem alleges that the Council ignored its own rehabilitation policy and procedures and did not assist him in any material way to regain his health.

9. On 14 July, 2009 Mr Edmistone wrote to Mr Gardem.  The letter was about Mr Gardem’s leave entitlements.  It pointed out that Mr Gardem had no unused sick leave and in the absence of accrued, but unused sick leave, he was not entitled to be paid sick leave, even where he had medical certificates for the period of his absence.  Mr Edmistone pointed out that Mr Gardem, however, had more than 100 hours of annual leave accrued.  Mr Edmistone enclosed a leave application form “in the event that you wish to be paid out of your annual leave”.  The letter made it clear that if Mr Gardem did not elect to use his annual leave entitlements, he would continue to be on leave without pay.

10. Mr Gardem did not respond to that letter.  However, he did write to Mr Edmistone on 9 September, 2009.  He raised a number of unrelated issues.  Mr Gardem sought the “re-crediting” of two days recreation leave that had been interrupted because he was required to work during his holidays.  The letter asked Mr Edmistone to reconsider his rejection of Mr Gardem’s claim for the “re-crediting” of those two days recreation leave.  He also raised an issue about annual leave loading.  He raised an issue concerning time in lieu.  As to those matters, and in particular Mr Gardem’s issues concerning time in lieu he said: “I am eager to have a range of Council’s more bizarre practices scrutinised by a judicial officer sooner rather than later and will send these issues to the Industrial Court and/or other venues as appropriate, if there is a need”.  Mr Gardem also raised an issue about Ms de Graaff’s occupation of some premises in Georgetown.  He withdrew the Council’s permission to make “any non-regulatory deductions from my pay”.  Mr Gardem made reference to a person called Mr Bruce Gould.  Mr Gardem then referred to the Premier and the decision of the CMC.  Mr Gardem pointed out the reprisal offences under the Whistleblower’s Protection Act 1994, other criminal offences under that Act and that civil action is permitted under that Act for acts of reprisal.  Finally the letter closes with the following paragraph:

    As significant legal fees have been paid by Council already and more will be paid on related matters into the future, you will need to ensure there is a clear distinction between Council’s obligations and the private obligations of any individual connected to Council who was part of the events referred to, and ensure appropriate parties personally pay their share of costs.”

11. The letter of 9 September, 2009, which Mr Gardem said under cross examination, was intended to be a response to the letter of 14 July, 2009 from Mr Edmistone was anything but a response to that letter.  It did not address the issues that Mr Edmistone sought to have addressed.

12. At some point in September, 2009 Mr Edmistone became aware that Mr Gardem had moved his furniture from the cottage that he rented from the Council.  Mr Gardem was cross-examined about that matter in the following way:

    MR ASHTON:   …But in any event, you did, in fact, vacate the cottage?‑‑‑I moved some furniture away.  And I will take it their dates are accurate, I don’t have a record of the dates.  And when I say “some furniture” I should say “most of the furniture”. 

    Yes.  Well, did you vacate or not?‑‑‑Well, I’m not quite sure what the term precisely means.  What I can say is that most of the furniture - - -

    Move out?‑‑‑Did I move out?

    Did you move out?‑‑‑No, I didn’t move out.  At – do you – for the purposes of accuracy, I moved most of my furniture out.  Some other furniture was taken by – moved out for me, by local residents for me. 

    And where did you go?‑‑‑Several days later, I should say. 

    Where did you go?‑‑‑I returned to where I was being treated, which was in Caloundra.

13. On the following day, during further cross examination of Mr Gardem, the following exchange occurred:

    MR ASHTON:   Mr Gardem, we spoke briefly yesterday about the vacating of the premises.  Do you remember that? ‑‑‑Yes.

    Now, I'm not quite sure of exactly what you were telling me, and I want to return to the subject.  I put to you that you moved out, that you vacated the premises.  And I think you responded by saying that you took some furniture and then someone else took some furniture? ‑‑‑Yes.

    You vacated those premises, did you not? ‑‑‑ Yes.

    Yes.  There's no question of that? ‑‑‑ No.

    No.  And‑‑‑ ? ‑‑‑Over – or should I say over a period, not on the specific date of my initial removing of the furniture, but when the second lot of furniture was removed a week or so later, that's when I vacated, yes. 

    Yes, thank you.  And did you tell anyone at the council you were doing that or anyone in authority? ‑‑‑No, no, I didn't.  It was a weekend, as you will appreciate, and I didn't.

    Well, you just said you had a space of a week? ‑‑‑ I'm sorry.  I didn't hear your question.

    You just said you had a space of a week in which you were doing this.  In any event ‑‑‑?‑‑‑ Whilst I was in Georgetown, I did not tell anyone.

14. On 25 September, 2009 Mr Edmistone wrote to Mr Gardem and said:

    I refer to:

    1.  My letter to you of 13 May, 2009 – which notified you of the redundancy of the Senior Administration Officer position and offered you the new position of Coordinator External Consultancies and Community Services;

    2. Your failure to respond to the letter;

    3.  Your absence from work without authorised leave, since 17 July 2009; and

    4.  Your abandonment of the tenancy of the Council owned dwelling (situated House 4, High Street, Georgetown) at midnight on 24 September 2009.

    Your actions identified at paragraphs 2 to 4 above have left me with no alternative other than to conclude that you have abandoned your employment with Council…

15. On 30 September, 2009 Mr Gardem sent correspondence by email to Mr Edmistone acknowledging receipt of the letter of 25 September, 2009 but not replying to it in any substantive way.  Mr Gardem directed Mr Edmistone’s attention to the letter of 10 September, 2009 (referred to earlier in these reasons as a letter of 9 September, 2009) and seeking a reply.

16. On 10 October, 2009 Mr Gardem again wrote to Mr Edmistone refuting the proposition that he had abandoned his employment.  Mr Gardem pointed out that he had not received a response to his correspondence of 9 September, 2009.  Whilst Mr Gardem pointed out that Mr Edmistone had not replied to his correspondence of 9 September, 2009, it is clear that Mr Gardem’s correspondence 9 September, 2009 was not a proper response (in part or at all) to Mr Edmistone’s correspondence of 14 July, 2009.

17. On 15 October, 2009 Mr Edmistone wrote a letter to Mr Gardem effectively refusing to enter into any further correspondence with Mr Gardem.  Mr Gardem did not return to his employment with the Council.

Age Discrimination

1. Mr Gardem’s case, as articulated by him, is a case of direct discrimination as defined in s.14 of the Age Discrimination Act. It has little to do with the factual background set out above. I have recorded it because it was a central feature of Mr Gardem’s pleading, submissions and evidence. His age discrimination case, however, focusses upon the appointment of Ms Alexander to the position of Acting Director Corporate Services on or about 9 September, 2008.

2. There is no contention from the Council that if the Council determined not to appoint Mr Gardem to the position of Acting Director Corporate Services in September, 2008 because of his age, it had breached the Age Discrimination Act. Moreover, it is accepted by the Council that if there were two or more reasons why Mr Gardem was not given the acting appointment and one of those reasons was his age, the definition of age discrimination in s.14 of the Age Discrimination Act would be engaged if that reason was the dominant reason for the Council so acting: s.16 of the Age Discrimination Act as it stood at September, 2008.

3. Mr Gardem accepts that there is no evidence which directly indicates that Mr Gardem’s age was a factor considered relevant to the decision to appoint Ms Alexander as Acting Director Corporate Services.  As the above factual background reveals, Mr Gardem took the view at the time of the appointment that he was overlooked as an act of reprisal by Mr Edmistone.  Mr Gardem conceded in cross-examination that at no time before he lodged his complaint with the Australian Human Rights Commission did he suggest that Ms Alexander’s appointment to the acting role had anything to do with his age.

4. He now argues, however, that I should draw an inference that his age was indeed at least one of the reasons that he was not given the appointment.  He argues that I should draw that inference from the following facts:

   a)Ms Alexander was considerably younger than he was;

   b)Ms Alexander did not have the appropriate qualifications, nor experience, for the position;

   c)He was immeasurably more qualified than she was for the position; and

   d)In his letter to the CMC of 12 November, 2008 Mr Edmistone justified his action of appointing Ms Alexander by stating that he had a “managerial prerogative to appoint a person for reasons that I consider to be in the long-term interests and development of Etheridge Shire Council”.

5. It is the last of these matters that Mr Gardem sees as perhaps the most significant and he argues that the statement, taken with the other matters to which I have just referred, clearly indicates the Council’s motivation in not giving him the appointment. 

6. Underpinning Mr Gardem’s submissions about this aspect of the case is his interpretation of that statement.  Specifically, he argues that:

   a)by the use of the phrase “managerial prerogative” Mr Edmistone conveys his belief that he has an exclusive privilege to make workplace decisions “regardless of the clutter of workplace laws” but, while Mr Edmistone obviously has that belief, he does not have such a right;

   b)An implication of workplace succession planning attaches to the statement;

   c)“Amongst human resource managers there is an expectation that a full term of an executive's service will be about five years; some will be longer but many will not.”;

   d)“Presuming five or more years to be a reasonable interpretation of the respondent’s intention when its CEO decided to use the selection criterion revealed by his decision to “Appoint a person for reasons that I consider to be in the long-term interests and development of Etheridge Shire Council”, Edmistone is in effect disaffecting promotional opportunities for every person who is aged, regardless of the excellence of their knowledge or the suitability of their set of skills or of their potential to greatly contribute to the organisation.”;

   e)Mr Edmistone had the view that he had an exclusive privilege by which he could appoint any candidate to any position when, in his opinion alone, the appointee may be a good employee in five or so years’ time.

7. Before moving on any further, I record that the assumptions that underpin Mr Gardem’s case are not made out on the evidence.  There is no evidence to support the assumption that:  “Amongst human resource managers there is an expectation that a full term of an executive's service will be about five years; some will be longer but many will not.”  I reject that assumption.

8. Mr Gardem developed his argument by pointing out that in September, 2008 there was a “Position Description” for the role of Director Corporate Services which required the following qualifications for applicants:

   a)tertiary (either graduate or post graduate) qualifications in Accounting, Commerce or Business;

   b)a minimum of five years senior management, financial planning and management experience; and

   c)high level strategic and finance skills.

9. According to Mr Gardem, the primary duties of the role of Director Corporate Services included:

   a)taking responsibility for the operational management of the Council’s finance and administration functions; and

   b)providing efficient financial and administrative services and advice to internal and external clients.

10. Mr Gardem’s case, which I accept, is that as at September, 2008:

    a)he was an educated and experienced person who had the specific qualifications and experiences appropriate for appointment to the position of Acting Director Corporate Services for the Council;

    b)his experience was additional to other extensive and relevant management experience at a senior level which he commenced to gather from 1976;

    c)he was a Fellow of his professional accounting body.

11. Accordingly, when the respondent needed to appoint a person to the position of Acting Manager Corporate Services in September, 2008 of the field of candidates, Mr Gardem argues that he was the most suitable and the most qualified because:

    a)he had acted in that role between December, 2007 and March 2008;

    b)he was Ms Alexander’s supervisor for an accounting course she was undertaking at the time she was appointed to the position;

    c)he had a demonstrated history of experience and qualifications about which the Council knew and which revealed that he had both the experience and the qualifications specified in the position description for the role.  

12. Mr Gardem argued that the Council’s appointment of Ms Alexander resulted in a curious situation: Ms Alexander, who was being supervised by Mr Gardem in the hope she might earn qualifications that would at some future time cause her to be qualified to do the work she had now been appointed to do, was Mr Gardem’s manager.

13. Of Ms Alexander, Mr Gardem says that:

    a)she had neither the training nor experience to do the work required by the role to which she hade been appointed;

    b)she had neither the experience nor qualifications specified in the position description for the job; and

    c)at best, she was a competent data-input person who was familiar with and skilled at using the respondent’s accounting software package.

14. Mr Gardem pointed out that the Council had a policy concerning Equal Opportunity Employment.  At page 1 of its “Policy Number 14 - Equal Employment Opportunity” Council specified that the policy’s object was to “Ensure that Council obtains the best person for the job as a result of personnel management processes which further the concepts of equity and merit”.

1. He argued that the Council, by appointing Ms Alexander, acted contrary to that policy and “Queensland industrial law”.  It was important, Mr Gardem argued, that a senior and appropriately trained and experienced person be appointed as Director Corporate Services because the Chief Executive Officer of the Council did not have extensive knowledge or experience about financial, technical, and administrative duties.

2. Mr Gardem developed his argument by suggesting that Mr Edmistone’s statement that he had a “managerial prerogative to appoint a person for reasons that I consider to be in the long-term interests and development of Etheridge Shire Council” was in fact the birth of a new policy on the part of the Council to not appoint aged worker’s to any promotional roles because to appoint such a person could never be in the Council’s long-term interests.  It must always be in the Council’s long-term interests to appoint younger workers with more longevity in their roles, than older workers.

Consideration

1. At the outset, it is important to record that the conduct alleged to be age discrimination by Mr Gardem is the conduct of the Council when it appointed Ms Alexander to the position of Acting Director Corporate Services.  The actions and decisions of Ms Alexander in applying for and accepting appointment as Acting Director Corporate Services in September, 2008 are not actions which Mr Gardem alleges amount to age discrimination on the part of Ms Alexander (he brings no claim against her) or on the part of the Council. 

2. Much time was spent by Mr Gardem establishing in cross-examination that Ms Alexander:

   a)did not have the same qualifications as Mr Gardem;

   b)did not have the same experience as Mr Gardem;

   c)worked in a role whereby she reported to, and sought assistance from, Mr Gardem;

   d)was supervised by Mr Gardem in her accounting studies;

   e)was likely to be more compliant with the relaxed approach taken by the Council to the discharge of its public responsibilities (at least as Mr Gardem saw it); and

   f)had not even one of the qualifications or any of the necessary experience at the levels that are specified for the position in the relevant position description.

3. In his submissions, Mr Gardem is critical of the level of understanding that he asserts Ms Alexander had of the role of Director Corporate Services.  He was critical of some of her work practices where they did not coincide with his own (for example, the checking of “payment sets”).  However, whether his criticisms are justified is not to the point.  As I have indicated, it is not Ms Alexander’s conduct which is under scrutiny in these proceedings, but that of her employer.  Many an employee has applied for a position for which they were not fully or even partially qualified.  The reasons for doing so are no doubt multitudinous.  To the extent that Mr Gardem’s case seeks to criticise Ms Alexander’s actions or decisions, particularly her decision to take up the Acting Manager Corporate Services role, the criticism is unjustified.

4. It is the Council’s case that it appointed Ms Alexander to the acting position in order to provide her with experience and to train and develop a team of experienced people in the Council.  I accept that the Council is located in a remote area of Queensland and has recruitment difficulties.  I accept that, as a general proposition, the Council therefore saw it as important that opportunities for acting positions were shared amongst suitable employees to provide them with that training, experience and opportunity to develop their skills.

5. I accept Mr Edmistone’s evidence that the Council’s policy was to appoint the best applicant having regard to s.1130 of the Local Government Act1993 (Qld) (now repealed). That section, as it stood in September, 2008, provided:

   1130 Personnel practices

   A local government must comply with the following principles in its personnel practices—

   (a) processes for appointing persons to positions are to be directed towards ensuring proper assessment of merit of each applicant;

   (b) employees are to be treated fairly and equitably without resort to arbitrary action, irrelevant personal preference or coercion;

   (c) employees are to be given, as far as practicable, effective education, training and development directed to better organisational and individual performance.

6. The obligations cast upon Council by its employment policies and s.1130 of the Local Government Act do not invariably mean that the most highly qualified person should be awarded any particular position. Subsection 1130(a) is directed to the process of appointment and ensuring that the there is a proper assessment of the merit of each applicant. Subsection 1130(c) is directed to the opportunities that employees might expect in their employment, such as education, training and development. In my view nothing in s.1130 of the Local Government Act requires that a candidate identified by proper processes as being the most “meritorious”, should be automatically appointed to any particular position. A balance is to be struck between the obligations imposed by each of the subsections of s.1130 of the Local Government Act.

7. I accept Mr Edmistone’s evidence, and the Council’s submissions, that Ms Alexander was only appointed to the position on a temporary basis whilst a person suitable for permanent appointment was identified. Ultimately such a person was identified and appointed. It was a person from outside the Council’s existing staff. But the appointment of Ms Alexander to the acting position did not offend either the Council’s own employment policies or the Local Government Act. Mr Edmistone’s stated purpose of giving Ms Alexander a temporary opportunity to act in the higher role was not inconsistent with either the policy or the Act.

8. Moreover, I accept the evidence of Mr Edmistone that the Council staff needed to operate as a team and Mr Edmistone had reached a view that Mr Gardem would not be the best person to lead the team and meet the position’s operational requirements.  It is certainly clear from the evidence that Mr Gardem had strained relationships with the Council’s most senior officers.

9. Mr Gardem argues that the Mr Edmistone’s statement is “diametrically opposite” to the Council’s recruiting duty as stated in its Employment Policy.  The policy, it might be accepted, states that “[Etheridge Shire Council] is an EEO employer.  Its policy in regard to filling vacancies is always to appoint the best applicant.”  The difficulty with Mr Gardem’s argument, however, is that it focuses upon qualifications and experience only.  The “best” applicant for a position might not be the applicant who has the “best” formal qualifications, however that is to be judged.  They may not be the person who has the longest periods of “relevant” experience, however that is to be judged.  Rather, the “best” person for a particular appointment might be someone who does not have the “best” formal qualifications or the longest periods of “relevant” experience, but does have the necessary skills to effectively and efficiently manage other staff or customers.  It may be a person who, whilst lacking certain formal qualifications or experience, nonetheless exhibits leadership, or other qualities that an employer finds attractive.

10. The concept of the “best” applicant for any particular position will always be informed by both objective and subjective factors. In the case of a temporary or acting appointment such as the one here under consideration, the appointment of a more junior employee for the very purpose of giving that person exposure to higher level duties and experience is entirely consistent with the Council’s employment obligations (see s.1130(c) of the Local Government Act set out above). It is not inconsistent with the Council’s Employment Policy. I am not satisfied that the selection of Ms Alexander to take up the higher duties appointment on a temporary basis is “diametrically opposite” to the Council’s recruiting duty as stated in its Employment Policy.

11. Mr Gardem also argues that the appointment of Ms Alexander was also “diametrically different” to advice the Council received from the Local Government Association of Queensland.  Mr Gardem argues that by the September, 2008 issue of the LGAQ publication “Workplace Relations Bulletin”, the Council was informed that “EEO policies ensure that people are appointed on the basis of merit” and “It should apply whenever recruiting new staff, making promotions or higher duty assignments”.

12. I reject Mr Gardem’s argument for the reasons I have given above.  The concept of “merit”, whilst encompassing considerations such as formal qualifications and experience, is not limited to those considerations only.  The other matters, to which Mr Edmistone drew the CMC’s attention to in his letter of 12 November, 2008 were also matters relevant to the concept of “merit”.

13. I decline to draw the inference that Mr Gardem asks me to draw.  I am not satisfied that one of the reasons for which Mr Gardem was not appointed to the role of Acting Manager Corporate Services was his age. 

14. I accept the Council’s submissions that Mr Gardem has taken Mr Edmistone’s statement of appointing another candidate to be in the “long-term interests” of the Council out of context.  That statement was made to the CMC in response to Mr Gardem’s complaint to the CMC about Ms Alexander temporarily filling the position on a ‘higher duties’ basis.  It was a reference to the long-term interests of Council in offering existing employees with a range of experience, skills and leadership qualities the opportunity to further develop and deploy those skills.  It was not a reference to any requirement, or any newly formed policy of the Council or the CEO that younger employees were more attractive to the Council than older employees because they had a potentially longer period of service to offer the Council.

15. I reject Mr Gardem’s submission that Mr Edmistone had the view that he had an exclusive privilege by which he could appoint any candidate to any position when, in his opinion alone, the appointee may be a good employee in five or so years’ time.  That is not what Mr Edmistone said, either in his letter to the CMC or in his oral evidence before me.  In my view, Mr Edmistone was saying nothing more than that he had the task of selecting and appointing an appropriate person for this particular acting position.  The long-term interests of the Council no doubt included having sufficiently trained and experienced staff who could act in higher duties if and when the need arose.  Mr Gardem had been afforded that opportunity.  That Mr Edmistone chose to give another, albeit less qualified person, the same opportunity is unremarkable.

16. Moreover, there is nothing inherently problematical with an employer making a recruitment decision with its long-term interests in mind.  Mr Gardem acknowledges that proposition in his written submissions.  That an employer might do so, does not necessarily mean that the decision maker has favoured a younger employee over an older employee because of age.  An employer’s long-term interests might equally be served by the appointment of an older employee with few working years left, but who has skills or the capacity to affect the long-term development of an employer’s business, than it is by the appointment of a much younger employee who has many more working years left but less potential to bring lasting benefits to the business.

17. Mr Gardem submits that by Mr Edmistone’s use of the phrase “long-term interests” as set out above, one should conclude that “because no aged candidate is capable of serving the Council in the long-term simply because they are aged, the Council has the option to decline to appoint or promote them”.  Again, in my view, Mr Edmistone’s use of that phrase means no such thing.  I reject the proposition that by the use of the phrase “long-term” Mr Edmistone meant that persons who can only serve an employer for the short-term (however that might be defined) cannot be appointed, or promoted by him regardless of their suitability and at his whim.

18. Mr Gardem also argued that Ms Alexander was prepared to “acquiesce” in the practices that Mr Gardem saw as unlawful or inappropriate and about which he had made complaints to his superiors in the Council and the Minister for Local Government.  Mr Gardem argues that Ms Alexander willingness to “toe the line” must have been attractive to the Council’s officers.  He further argued that research showed that some managers viewed non-compliancy as a typical (and undesirable) characteristic of older workers.  In the view of those managers, older workers sought to impose their own ideas rather than follow instructions. 

19. However, I am not satisfied that the evidence here establishes either of those propositions.  In any event, even if Ms Alexander was prepared to “toe the line” as Mr Gardem suggests, and that was more attractive to the Council than his stance of railing against what he saw as illegitimate practices by the Council and its officers, and that in fact informed Mr Edmistone’s decision to appoint Ms Alexander over Mr Gardem, those reasons have nothing whatever to do with Mr Gardem’s age.

20. I find the Council’s decision to award Ms Alexander the role of Acting Director Corporate Services in September, 2009 over Mr Gardem was a decision that was not made by the Council because of Mr Gardem’s age.  I am satisfied on the evidence that his age had nothing whatever to do with Mr Edmistone’s decision in that regard.

21. I am satisfied, as I have indicated above, that Mr Edmistone’s decision was informed by the matters to which I have already referred.  I am also satisfied that Mr Edmistone decided that he would not offer Mr Gardem the acting appointment because of the very same matters and for the very same reasons that he gave Mr Gardem the show cause letter dated 23 July, 2008.

Disability Discrimination

1. Mr Gardem’s claim is one of direct discrimination as defined by s.5 of the Disability Discrimination Act on the grounds of a disability possessed by him at the time the Council moved to determine that he had abandoned his employment and its subsequent refusal to reconsider that stance. He claims that by determining that Mr Gardem had abandoned his employment, the Council constructively dismissed him. Discriminating against an employee on the grounds of that employee’s disability by dismissing that employee is unlawful: s.15(2)(c) of the Disability Discrimination Act.

2. To succeed in this claim, Mr Gardem must prove less favourable treatment by the Council which occurred on the ground of a disability possessed by Mr Gardem. He must prove on the balance of probabilities that it was because of the disability that the Council treated him less favourably than it would treat a person without the disability in circumstances that are not materially different (see s.5 of the Disability Discrimination Act).

3. In this case, Mr Gardem complains that the Council terminated his employment. The taking of such action by an employer against an employee is unlawful if the dismissal is made on the ground of the employee’s disability: s.15 of the Disability Discrimination Act.

4. I am satisfied that at the time Mr Edmistone wrote to Mr Gardem informing him that the Council had taken the view that Mr Gardem had abandoned his employment, Mr Gardem was suffering from a disability for the purposes of the Disability Discrimination Act. More specifically, I find that he was suffering from a generalised anxiety disorder for which he was receiving medical treatment. I accept that Mr Gardem was suffering from stress related symptoms from time to time during his employment with the Council. I accept that he commenced sick leave in May, 2009 and that he applied for workers’ compensation soon thereafter.

5. For the purposes of this determination, I am prepared to assume that Mr Gardem did not, in fact, abandon his employment.  Mr Edmistone concluded that he did.  The issue is whether the Council took the action of notifying Mr Gardem that it considered his employment had been abandoned because of, or by reason of, Mr Gardem’s disability.

6. There is no real dispute about the following facts, which I repeat here for ease of reference:

   a)As part of the organisational review commissioned by the Council Mr Gardem’s position was made redundant.

   b)A new position was created and offered to Mr Gardem both in a meeting with Mr Edmistone on 13 May 2009 and by letter of the same date.

   c)According to the offer of further employment Mr Gardem was to be paid at his existing pay rate for a probationary period of three months.  If he took up the new position offered to him, his pay would be reduced to the lower rate commensurate with his new position description.  If Mr Gardem elected not to continue in the new role after the three month period he would be given a redundancy package.

   d)Soon after 13 May, 2009 Mr Gardem left the Council offices and Georgetown and never returned to his employment.

   e)Mr Gardem never replied to that offer, either orally or in writing.

   f)Save for the correspondence, to which I have referred in these reasons, there was no other communication between the parties concerning these issues.

   g)By a letter dated 9 September, 2009 Mr Gardem raised a range of issues with Mr Edmistone, none of which responded to the council’s offer of further employment.  The issues concerned past matters that occurred during Mr Gardem’s work with the Council.  They did not concern matters that might be seen to relate to Mr Gardem’s future employment with the council.

   h)In September, 2009 Mr Edmistone became aware that Mr Gardem had vacated his Council owned rental property without notice and had moved to “the coast”.

   i)Mr Gardem gave to the Council no indication that he intended to vacate that property, or that he intended to return to Georgetown at any particular time, or at all.

   j)Mr Gardem gave to the Council no indication that he intended to take up the Council’s offer of the new position offered to him.

   k)Mr Gardem was not on any authorised leave (sick, recreational or otherwise); although he had given to the council and its insurers medical certificates.

7. It was in these circumstances that Mr Edmistone formed the view that Mr Gardem had abandoned his employment.  Mr Gardem immediately responded to the Council’s correspondence and suggested that he had not abandoned his job, but the Council did not change its position.

8. The Council has drawn my attention to the decision of the High Court of Australia in Purvis v State of New South Wales (2003) 217 CLR 92, which discusses the appropriate approach to the consideration of a claim for disability discrimination such as the present. In that case Gummow, Hayne and Hayden JJ said:

   [223]    In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the  actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

9. I accept the Council’s submission that the appropriate question in this case is: How would the Council have treated the applicant by reference to a comparator in the same circumstances who was not ill?  I accept that the only evidence addressing that test, suggests that the Council would have acted no differently.

1. Mr Edmistone’s evidence is that he took the view that the applicant had abandoned his employment and at no time did he take into consideration Mr Gardem's alleged disability.  Although Mr Gardem sought to attack Mr Edmistone’s credibility during the trial by pointing out inconsistencies in his written evidence, both internally and when compared to his oral evidence, I accept his evidence about that.  Even if Mr Edmistone’s view about the abandonment was legally incorrect, the fact is that he took the action that he did, not because Mr Gardem had a disability, but I am satisfied, because:

   a)Mr Gardem had vacated his residence in Georgetown;

   b)He left town without informing anyone at the Council;

   c)He did not respond to an offer of alternative employment that was made to him following the Council’s organisational restructure; and

   d)He refused to properly complete the necessary formalities to regularise his leave arrangements.

2. I am satisfied that the treatment of Mr Gardem in those circumstances was no different to the treatment that might have been given to any other employee of the Council who acted in the same way.

3. In any event, I am also satisfied that even if the Council treated Mr Gardem differently to the way it would have treated other employees who had acted the same way as Mr Gardem, that different treatment did not come about because of Mr Gardem’s disability.  It came about because the circumstances presented an opportunity for Mr Edmistone to rid himself of Mr Gardem once and for all. 

4. Whatever be the case, I am not satisfied that Mr Gardem’s disability figured in any way in Mr Edmistone’s decision to declare that Mr Gardem had abandoned his employment.  Whilst Mr Gardem links the decision to his disability by suggesting that the reason he removed himself from Georgetown was to seek medical treatment on the coast, it was not until Mr Edmistone became aware that Mr Gardem had abandoned his residence in Georgetown that he formed the view that Mr Gardem had abandoned his employment.  Mr Gardem had no other residence in Georgetown, and certainly did not inform the CEO of any.  Given the geographical remoteness of Georgetown, not having a place of residence, even on a temporary basis, either in, or within a commutable distance of the town is inconsistent with an intention to discharge employment duties there.

5. If it truly was the case that Mr Edmistone was motivated to act by Mr Gardem’s disability, one would expect that he would have taken action against Mr Gardem much sooner than he did, given that Mr Gardem had left the workplace soon after 13 May, 2009.  Vacating his residence without notice to the landlord (the Council) and having no other place of residence in the local area tended to transform what might otherwise appear to be a temporary situation into something more permanent.

6. I am satisfied that even if the Council’s determination to treat Mr Gardem’s employment as abandoned by him was a constructive dismissal of him from the Council’s employ, the Council did not discriminate against Mr Gardem by reason of his disability in breach of s.15(2)(c) of the Disability Discrimination Act.

Conclusion

1. Mr Gardem does not establish either of his claims for age related discrimination or disability related discrimination.  The application must be dismissed.

2. Accordingly, I make the orders and the directions set out at the commencement of these reasons.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 12 September, 2013.

Associate: 

Date:  12 September 2013