Heber v Glen Henney & Son Pty Ltd

CITATION:	Heber v Glen Henney & Son Pty Ltd [2007] NSWADT 93
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Adrian Heber RESPONDENT Glen Henney & Son Pty Ltd
FILE NUMBER:	071021
HEARING DATES:	14 March 2007
SUBMISSIONS CLOSED:	5 April 2007
DATE OF DECISION:	19 April 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Xu v Sydney West Area Health Service, [2006] NSWADT 3
REPRESENTATION:	APPLICANT In person RESPONDENT G Henney, agent
ORDERS:	Leave is granted.

REASONS FOR DECISION

Introduction

1 Mr Heber complained to the President of the Anti-Discrimination Board that his former employer, Glen Henney & Son Pty Ltd, had discriminated against him on the ground of his age. He is 60 years old and worked as a tele-marketer for Glen Henney & Son Pty Ltd for two weeks in October 2005. He says that Mr Henney made derogatory remarks about his age during the course of his employment. Some of the alleged remarks were, “what have you ever done, didley squat”, “so, your date of birth stinks”, “use the computer, old fool” and that he was “too old”. Mr Heber also alleges that on 28 October 2005 his employment was terminated on the ground of his age.

2 Mr Henney denies that he made the remarks Mr Heber says that he made or that he dismissed Mr Heber. Mr Henney says that Mr Heber resigned after a decision was made to put him on an employee management program. According to Mr Henney, that decision was made because despite saying that he was computer literate, Mr Heber was unable to use a computer and required training.

3 The President of the Anti-Discrimination Board declined Mr Heber’s complaint as lacking in substance. The President said that, taking Mr Heber’s evidence at its highest, a complaint of age discrimination could not succeed. When the President declines a complaint on that ground, s 96 of the Anti-Discrimination Act 1977 (AD Act) requires the applicant to obtain the Tribunal’s permission (or leave) before the complaint can go ahead. Mr Heber applied for leave and the application was heard on 14 March 2007.

4 Several preliminary matters need to be noted before determining Mr Heber’s application. First, Mr Heber made it clear that he was complaining only of age discrimination despite the fact that his initial letter of complaint to the President of the ADB alleged discrimination on the ground of sexuality, race and appearance as well as age. Secondly, Mr Heber’s complaint relates only to the way he was treated during the course of his employment and his allegation that he was dismissed. It does not relate to any dispute about wages. Mr Heber complained about the wages he was paid on termination to the Office of Industrial Relations but following investigation, that Office found no evidence to sustain claims of a breach of any NSW industrial law. Thirdly, at about the same…